The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY April 4, 2019

No. 15CA0546, People v. Perez — Criminal Law — Search and Seizure — Custodial Interrogations — Miranda — Public Safety Exception; Constitutional Law — Fifth Amendment — Right Against Self-Incrimination

A division of the court of appeals considers whether the public

safety exception to Miranda applies when an officer found shotgun

shells but no shotgun on the defendant, who had fled from another

officer, and then asked the defendant where the gun was. Here,

there was no information that the defendant was armed or that the

officer was responding to a report of a crime involving a weapon.

Based on the facts of this case, a majority of the division concludes

that there was an insufficient basis to inquire about a weapon

before the Miranda advisement was given, and the defendant’s

motion to suppress should have been granted. Nonetheless, the

division ultimately finds that the error was harmless beyond a reasonable doubt. The special concurrence would conclude that

the officer’s inquiry fell within the public safety exception. COLORADO COURT OF APPEALS

Court of Appeals No. 15CA0546 City and County of Denver District Court No. 14CR781 Honorable Ann B. Frick, Judge Honorable Elizabeth A. Starrs, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Marcus Perez,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division I Opinion by JUDGE TOW Taubman, J., concurs Berger, J., specially concurs

Announced April 4, 2019

Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Laura E. Schwartz, Alternate Defense Counsel, Esteban A. Martinez, Alternate Defense Counsel, Longmont, Colorado, for Defendant-Appellant ¶1 Defendant, Marcus Perez, appeals the judgment of conviction

entered on a jury verdict finding him guilty of second degree assault

on a peace officer and four counts of possession of a dangerous

weapon by a previous offender. We affirm in part, reverse in part,

and remand with directions.

I. Background

¶2 In February 2014, police officers conducted a traffic stop of an

SUV for various traffic infractions. The officers noticed that the

occupants were acting suspiciously, appeared more nervous than

the officers would have expected, and may have been attempting to

conceal something. An officer contacted the passenger (later

identified as Perez), who provided a name and date of birth. When

the officer found no record of such an individual, he asked Perez to

step out of the car. Perez complied, but immediately started

running.

¶3 Perez ran across a very busy street through rush-hour traffic,

and through residential and commercial areas, while the officers

pursued him. Eventually, officers caught up to him in a residential

backyard. At this point, additional police officers arrived to assist.

Perez took a fighting stance and began to resist the officers’ efforts

1 to take him into custody. During the fracas, Perez broke an officer’s

nose. Another officer injured himself during the chase.

¶4 After handcuffing Perez, an officer frisked him and found two

shotgun shells in his pocket. Before advising him of his Miranda

rights, the officer asked Perez where the gun was. Perez responded

that he had thrown it away. When asked where he had thrown it,

Perez’s response was unintelligible. The officer did not pursue the

inquiry further.

¶5 At some point, other officers searched the car, though it is

unclear from the record when the search occurred in relation to

Perez’s statement. During the search, the officers found a short

shotgun1 between the center console and the passenger seat.

¶6 The prosecution later charged Perez with two counts of second

degree assault on a peace officer and eight counts of possession of a

weapon by a previous offender (POWPO). All eight POWPO charges

involved the same short shotgun; there were two separate charges

(one alleging possession of a firearm, and one alleging possession of

——————————————————————— 1 A short shotgun is “a shotgun having a barrel or barrels less than eighteen inches long or an overall length of less than twenty-six inches.” § 18-12-101(1)(i), C.R.S. 2018.

2 a “dangerous weapon” 2) connected to each of four prior felony

convictions. Before trial, the prosecution dismissed one of the

second degree assault charges.

¶7 A jury convicted Perez of the remaining assault charge and the

four POWPO charges involving a dangerous weapon. At sentencing,

Perez admitted that he had three prior felony convictions, and the

parties stipulated that Perez would receive a twenty-four-year

prison sentence in this case, a concurrent six-year prison sentence

in a separate case, and a third case would be dismissed in its

entirety. At the sentencing hearing, the court sentenced Perez to

twenty-four years in prison for second degree assault and four years

in prison for each of Perez’s four POWPO counts. The remaining

POWPO charges were dismissed. The court ordered that all of the

sentences would run concurrently.

——————————————————————— 2 “[T]he term ‘dangerous weapon’ means a firearm silencer, machine gun, short shotgun, short rifle, or ballistic knife.” § 18-12-102(1), C.R.S. 2018. If the weapon possessed by a previously convicted felon is a dangerous weapon, the POWPO charge is elevated from a class 6 felony to a class 5 felony. § 18-12-108(2)(a), (b), C.R.S. 2018.

3 II. Miranda Violation

¶8 Perez first contends that the trial court erred by denying his

motion to suppress incriminating statements he made after his

arrest and before police advised him of his Miranda rights. We

conclude that, although admission of the statement was erroneous,

reversal is not required.

A. Standard of Review

¶9 Whether custodial interrogation has occurred in violation of

Miranda is a mixed question of fact and law. People v. Barraza,

. We defer to the trial court’s findings of historical

fact and will not overturn them if they are supported by competent

evidence in the record.

We then review de novo the ultimate

legal effect of those facts, such as whether the defendant was in

custody, People v. Matheny,

(Colo. 2002), or

whether a particular inquiry constituted interrogation, People v.

Gonzales,

(Colo. 1999). Although no Colorado

appellate court has clearly stated that whether the public safety

exception applies is a legal determination, other courts have done

so. See United States v. Liddell,

(8th Cir.

2008). We agree and review the issue de novo.

4 ¶ 10 “When reviewing a trial court’s suppression ruling, appellate

courts must only consider evidence presented at the suppression

hearing.” People v. Bryant,

.

B. Applicable Law

¶ 11 The Fifth Amendment of the United States Constitution

provides that no person shall be compelled to be a witness against

himself in a criminal case. Police must warn a person of his rights

against self-incrimination when he is subjected to custodial

interrogation. See Miranda v. Arizona,

(1966);

People v. Theander,

. Absent such warnings, the

prosecution generally cannot introduce in its case-in-chief any

statement obtained from a suspect as a result of custodial

interrogation. Matheny,

.

¶ 12 However, in some circumstances, police may question a

suspect in custody who has not yet received a Miranda warning

about the presence of weapons that could immediately endanger

them or members of the public. See New York v. Quarles,

(1984); see also People v. Mullins,

,

(1975). This exception to Miranda, called the

public safety exception, applies most readily in the context of

5 immediate, on-scene investigations of a crime. See People v.

Requejo,

(Colo. App. 1996). The determinative

question is whether the officer’s questioning related to an

objectively reasonable need to protect the police or the public from

immediate danger associated with a weapon. See Quarles,

; People v. Ingram,

(Colo. 1999).

¶ 13 In Quarles, for example, a police officer pursued a rape

suspect who had been described by the victim as carrying a gun.

. The officer chased the suspect through a

grocery store, ultimately apprehending him in the rear of the store.

. When the officer frisked the suspect, he discovered that

the defendant was wearing an empty shoulder holster.

After

handcuffing him, but before advising him of his Miranda rights, the

officer asked the suspect where the gun was located, and the

suspect told him.

¶ 14 The defendant’s statements about the gun were excluded at

trial because they were elicited before he had received a Miranda

warning. The Supreme Court ultimately held that the initial

statement indicating the location of the gun was admissible under a

public safety exception, despite the officer failing to advise the

6 defendant of his Miranda rights.

. It explained, “the

need for answers to questions in a situation posing a threat to the

public safety outweighs the need for the prophylactic rule protecting

the Fifth Amendment’s privilege against self-incrimination.”

.

C. Application

¶ 15 Here, there is no dispute that Perez was in custody when the

officer asked about the gun. Nor do the People argue that the

inquiry about the gun was not interrogation. We thus turn to the

applicability of the public safety exception.

¶ 16 The public safety exception has been discussed sparingly in

Colorado case law. In Requejo, officers were responding to a bar

fight during which someone had been stabbed.

.

Within two minutes of receiving the dispatch and a description of

the suspect’s vehicle leaving the scene, officers located and stopped

the vehicle.

An officer approached the vehicle and asked where

the knife was.

A division of this court held that because the

officer had a legitimate concern for her safety, the inquiry was

within the scope of the public safety exception.

7 ¶ 17 In People v. Janis, a division of this court held that the public

safety exception applied when officers responded to a report of a

stabbing, encountered the defendant shortly thereafter near the

location of the stabbing, had reason to believe that the defendant

was involved in the crime, and then asked the defendant, “Do you

have any weapons on you?”

, rev’d on other

grounds,

.

¶ 18 In People v. Wakefield, a division of this court held that the

public safety exception applied when officers responded to a report

of a shooting, found the defendant at the scene of the crime, and

asked the defendant about the extent of his injuries and whether

there was anyone else in the residence.

. There,

“the officers, having just arrived on the scene, had a legitimate

concern that there could be other armed suspects or injured victims

in the vicinity.”

¶ 19 In Quarles, Requejo, Janis, and Wakefield, the very nature of

the dispatch informed the officers that a weapon might be present;

in each case, someone had already reported to the police that a

weapon was involved. Here, in contrast, when the officer first

contacted Perez, he had no information suggesting that Perez was

8 armed. Nor was the officer responding to a report of a crime

involving a weapon. Only after the officer found shotgun shells in

Perez’s pocket did the officer become concerned that Perez may

have disposed of a shotgun while being chased through residential

and commercial areas.

¶ 20 Although bullets may suggest possession of a gun, the

suggestion in this case was not so strong as to give the officer “every

reason to believe” that Perez had just discarded a shotgun while

being chased. Quarles,

. Moreover, it is notable

that the record does not reflect any other observation by the officers

during their contact with or pursuit of Perez that would suggest he

discarded or abandoned a shotgun. For example, there is no

evidence that as he fled he appeared to be concealing anything. No

officer testified that he appeared to discard anything during his

flight. And nothing in the record would indicate that his clothes

were capable of hiding a weapon of that size.

¶ 21 We do not suggest that purely circumstantial evidence that a

weapon may be present will never be enough to justify such an

inquiry. Nor do we suggest that the possible presence of a weapon

must always be known to the officers before contacting the suspect.

9 We only hold that, on the facts of this case, where the sole

suggestion that Perez may have discarded or abandoned a shotgun

was two shotgun shells in his pocket, there was an insufficient

basis to inquire about a weapon before the Miranda advisement was

given. Because the officer’s question was not required to protect

the police or public from immediate danger associated with a

weapon, the public safety exception did not apply, and the trial

court erred in denying the motion to suppress the incriminating

statement. 3

¶ 22 In the motion to suppress, Perez also sought suppression of

“all evidence flowing from that statement.” To the extent Perez is

arguing that the gun itself should have been suppressed as a result

of the Miranda violation, we disagree.

¶ 23 First, the search of the car was not testified to at the

suppression hearing. Therefore, whether the search of the car

derived from Perez’s statement is unclear. Second, even if it did,

——————————————————————— 3 We are, of course, mindful of the importance of officer safety. Further, we do not mean to suggest that the officer in this case acted in bad faith or with any other improper motive. However, the fact that the officer did not inquire any further into the location of the gun would appear to demonstrate that the officers did not consider themselves in substantial danger.

10 the fruit of the poisonous tree doctrine does not apply to Miranda

violations. People v. Bradshaw,

(Colo. 2007)

(“[B]ecause Miranda violations do not rise to actual coercion in

violation of the Fifth Amendment, the fruit of the poisonous tree

doctrine does not apply.”). For both of these reasons, the trial court

did not err in denying the motion to suppress all evidence flowing

from the statement.

¶ 24 Having concluded that admitting Perez’s statement that he

discarded the gun was error, we turn to whether the error warrants

reversal. We review preserved trial errors of constitutional

dimension for constitutional harmless error. Hagos v. People,

. Under this standard, we must reverse unless the

error was harmless beyond a reasonable doubt, meaning there is no

reasonable possibility that the error might have contributed to the

conviction.

We conclude the error was harmless beyond a

reasonable doubt.

¶ 25 The shotgun was located in the car; thus, Perez had not

thrown it away. The evidence of Perez’s possession of the weapon

was overwhelming without regard to the statement. He possessed

ammunition for the gun, the gun was closest to where he was

11 seated in the car, and he fled from the police upon contact.

Significantly, the prosecution did not even mention Perez’s

statement during closing argument. There is no reasonable

possibility that the statement contributed to the verdict. Therefore,

we conclude that the error was harmless beyond a reasonable

doubt.

III. Double Jeopardy

¶ 26 Perez also contends that the trial court erred in allowing the

jury to convict him of four counts of POWPO when the charges

derived from the same weapon. We agree.

A. Standard of Review

¶ 27 Unpreserved double jeopardy claims may be raised for the first

time on appeal, and we review such claims for plain error. Reyna-

Abarca v. People,

. Plain error is error that is

obvious and substantial, and that casts serious doubt on the

reliability of the judgment of conviction. Hagos v. People,

. Because whether merger applies to specific criminal

offenses presents an issue of statutory interpretation, we review the

matter de novo. People v. Zweygardt,

.

12 B. Applicable Law

¶ 28 In Colorado, a person commits the crime of POWPO if he or

she knowingly possesses a firearm subsequent to a felony

conviction. § 18-12-108, C.R.S. 2018. A person with multiple prior

felony convictions may not be convicted of multiple POWPO counts

for possession of a single gun during a single incident. People v.

DeWitt,

(Colo. App. 2011).

C. Application

¶ 29 Because the necessity of merging these convictions is

established in case law, the error was obvious. And because double

jeopardy prohibits more than one conviction for the same offense,

the error was substantial. Finally, the reliability of the judgment of

conviction is clearly in doubt because the trial court failed to merge

the convictions appropriately. The error here was plain.

¶ 30 We therefore reverse this portion of the judgment and remand

the case to the trial court to vacate Perez’s POWPO convictions and

sentences on counts four, five, and six.

IV. Due Process Challenge

¶ 31 Perez lastly contends that the trial court erred by allowing the

prosecution to proceed when law enforcement’s outrageous conduct

13 violated his federal and state rights to due process. Specifically,

Perez alleges that (1) the traffic stop should have ended once the

officer “cleared the driver”; (2) the officers had no basis for detaining

and chasing him; and (3) the officers beat Perez after he put his

hands up, “a universal sign of surrender.”

A. Standard of Review

¶ 32 We review a trial court’s dismissal of a case based on a finding

of outrageous governmental conduct for an abuse of discretion.

People v. McDowell,

(Colo. App. 2009). But see

People v. Burlingame,

(Tow, J., specially

concurring) (positing that the proper standard of review should be

de novo). However, this claim is also raised for the first time on

appeal. Because this claim was not preserved, we review for plain

error. People v. Rediger,

.

B. Law and Application

¶ 33 The Supreme Court has recognized certain circumstances in

which the conduct of police officers may be so outrageous as to

violate a defendant’s right to due process. United States v. Russell,

(1973). “Outrageous governmental conduct is

conduct that violates fundamental fairness and is shocking to the

14 universal sense of justice.” People v. Medina,

, 1011

(Colo. App. 2001), aff’d sub nom. Mata-Medina v. People,

(Colo. 2003).

¶ 34 However, instances in which trial courts have found

outrageous governmental conduct in Colorado are rare. Compare

People v. Auld,

(Colo. App. 1991) (finding

outrageous governmental conduct and affirming the dismissal of a

case based on a fictitious complaint filed against a fictitious

defendant in order to investigate a later-retained defense attorney),

with People in Interest of M.N.,

, 1129 (Colo. 1988)

(finding no outrageous governmental conduct when an undercover

officer convinced a minor to steal tires and obtain marijuana for

him and then shared the marijuana with the minor), and People v.

Morley,

(Colo. 1986) (finding no outrageous

governmental conduct when an undercover operation discovered

evidence linking an attorney with prostitution-related activity).

¶ 35 Perez has not cited to any authority, nor have we found any,

suggesting the conduct that occurred here was outrageous. The

due process claim of outrageous governmental conduct is

“interwoven with the entrapment defense.” M.N., 761 P.2d at 1131

15 (quoting United States v. Szycher,

(10th Cir.

1978)). Nothing in Perez’s allegations indicates the police

encouraged or participated in Perez’s commission of the crimes for

which he was prosecuted. Perez gave what appeared to the officer

to be a false name, then fled. Officers pursued him and eventually

apprehended him. Upon apprehension, Perez fought the officers,

assaulting one of them. Perez chose to flee by running across a

major thoroughfare in busy traffic and elected to fight the arresting

officers; these were decisions entirely of his own making.

¶ 36 Perez has not shown any error, let alone plain error.

V. Conclusion

¶ 37 The judgment is reversed in part and remanded with

directions to vacate Perez’s POWPO convictions and sentences in

counts four, five, and six and to correct the mittimus accordingly.

The judgment is affirmed in all other respects.

JUDGE TAUBMAN concurs.

JUDGE BERGER specially concurs.

16 JUDGE BERGER, specially concurring.

¶ 38 In New York v. Quarles,

(1984), the United States

Supreme Court recognized the “public safety exception” to the rule

of Miranda v. Arizona,

(1966). Reasoning that the

“need for answers to questions in a situation posing a threat to the

public safety outweighs the need for the prophylactic rule protecting

the Fifth Amendment’s privilege against self-incrimination,” the

Court held that a suspect’s answers to questions concerning the

location of an abandoned weapon were admissible even though the

suspect was not given Miranda warnings. Quarles,

;

see also People v. Ingram,

(Colo. 1999); People v.

Allen,

(Colo. App. 2007).

¶ 39 Quarles has spawned many perplexing questions for courts —

the permissible timing of unwarned interrogations, the permissible

length of such interrogations, the permissible subjects of such

inquiries, and the effect of the suspect’s invocation of the right to

counsel. See Brian Gallini, The Languishing Public Safety Doctrine,

68 Rutgers U. L. Rev. 957 (2016).

17 ¶ 40 But this is not such a case. This case, instead, presents a

straightforward application of Quarles, and I am convinced that the

majority incorrectly applies it.

¶ 41 When the police discovered live shotgun shells in Perez’s

pockets, any reasonable police officer (or other person) would have

inferred from that discovery that there was a strong likelihood that

Perez had access to a gun during the criminal episode. Once the

officer drew that entirely reasonable inference, the officer was

entitled, under the public safety exception, to ask Perez where the

gun was, and neither Miranda nor the Fifth Amendment protections

against self-incrimination were impediments to the admission of

Perez’s response at his criminal trial. Quarles,

.

Unlike in either Ingram,

, or Allen,

, the

officer did nothing more than ask about the location of the weapon.

¶ 42 As I read the majority opinion, it concludes that the public

safety exception was inapplicable for two reasons. First, the

majority correctly notes that the police did not know before

discovering the shotgun shells that Perez had, or might have had, a

gun. Second, the majority evidently reasons that finding two live

shotgun shells in the suspect’s pockets is insufficient to raise a

18 reasonable inference that Perez had, or recently had access to, a

gun.

¶ 43 With respect to the majority’s first point, I agree with its

factual observation, but I believe it is irrelevant to the application of

the public safety exception. I have not found, and the majority has

not cited, a single case that turns on whether the police discover

that the suspect might have access to a gun before or after the

suspect’s apprehension. More important than the absence of such

a case is the underlying rationale for the public safety doctrine. As

the name of the exception well illustrates, the purpose of the

exception is to protect both officers and public safety. When the

police discover that the person they have apprehended has or had

access to a gun is completely irrelevant to whether such a weapon

is a danger to the police or to the public. 1

——————————————————————— 1 The cases are clear that the fact that the suspect is in custody and handcuffed does not prevent the application of the public safety doctrine. New York v. Quarles,

(1984); United States v. DeJear,

(10th Cir. 2009); People v. Janis,

, rev’d on other grounds,

. Moreover, as illustrated here, the fact that the suspect is in custody does not eliminate danger to the police. Here, the shotgun was found in the vehicle in which Perez had been a passenger. That shotgun continued to be a danger to the police or anyone else who had access to the vehicle.

19 ¶ 44 Regarding the majority’s second point, in my view (based on

logic, not experience), when a person carries live shotgun shells in

his pockets, the chances are pretty good that the person has, or

had relatively immediate possession of or access to, a firearm that

is capable of firing those shells. I am not aware, nor is it logical to

assume, that most people carry live shotgun shells in their pockets

for no reason. This does not mean that, in every case, a person

carrying live shotgun shells will have immediate access to a gun.

¶ 45 The undisputed evidence established that Perez led the officers

on a lengthy foot chase across a busy highway and onto both

commercial and residential properties. Indeed, he finally was

apprehended in a residential backyard. The secretion of a shotgun

in any of those locations could seriously impact the safety of both

investigating officers and members of the public. Had Perez

secreted the gun in a residential backyard, such as the place where

he was apprehended, the real possibility of a child discovering the

gun and the tragedy that might follow is unmistakable and

unacceptable.

¶ 46 Under these circumstances, the officer properly asked Perez

where the gun was before giving him Miranda warnings, and Perez’s

20 answer was not barred by Miranda or the Fifth Amendment.

Quarles,

.

¶ 47 For these reasons, and with respect, I disagree with the

majority’s contrary determination. I agree entirely with the balance

of the majority’s opinion and disposition.

21