     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

                                2019COA48

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                                          2019COA48


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,

 2013 CO 20, ¶ 15. 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. Id. We then review de novo the ultimate

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

 custody, People v. Matheny, 46 P.3d 453, 459 (Colo. 2002), or

 whether a particular inquiry constituted interrogation, People v.

 Gonzales, 987 P.2d 239, 242 (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, 517 F.3d 1007, 1009 (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, 2018 COA 53, ¶ 19.

                          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, 384 U.S. 436, 478 (1966);

  People v. Theander, 2013 CO 15, ¶ 20. 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, 46 P.3d at 462.

¶ 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, 467 U.S.

  649, 657-58 (1984); see also People v. Mullins, 188 Colo. 23, 27,

  532 P.2d 733, 735 (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, 919 P.2d 874, 879 (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, 467 U.S.

  at 655; People v. Ingram, 984 P.2d 597, 605 (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.

  467 U.S. at 651-52. The officer chased the suspect through a

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

  Id. at 652. When the officer frisked the suspect, he discovered that

  the defendant was wearing an empty shoulder holster. Id. 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. Id.

¶ 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. Id. at 657-58. 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.” Id. at

  657.

                             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. 919 P.2d at 878.

  Within two minutes of receiving the dispatch and a description of

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

  the vehicle. Id. An officer approached the vehicle and asked where

  the knife was. Id. 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. Id.




                                     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?” 2016 COA 69, ¶ 56, rev’d on other

  grounds, 2018 CO 89.

¶ 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. 2018 COA 37, ¶ 57. 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.” Id.

¶ 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, 467 U.S. at 657. 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, 156 P.3d 452, 459 (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, 2012

  CO 63, ¶ 11. 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. Id. 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, 2017 CO 15, ¶ 2. 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, 2012 CO

  63, ¶ 14. Because whether merger applies to specific criminal

  offenses presents an issue of statutory interpretation, we review the

  matter de novo. People v. Zweygardt, 2012 COA 119, ¶ 10.




                                     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, 275 P.3d 728, 736-37 (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, 219 P.3d 332, 336 (Colo. App. 2009). But see

  People v. Burlingame, 2019 COA 17, ¶¶ 28-34 (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, 2018 CO 32, ¶ 40.

                        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,

  411 U.S. 423 (1973). “Outrageous governmental conduct is

  conduct that violates fundamental fairness and is shocking to the


                                     14
  universal sense of justice.” People v. Medina, 51 P.3d 1006, 1011

  (Colo. App. 2001), aff’d sub nom. Mata-Medina v. People, 71 P.3d

  973 (Colo. 2003).

¶ 34   However, instances in which trial courts have found

  outrageous governmental conduct in Colorado are rare. Compare

  People v. Auld, 815 P.2d 956, 959 (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., 761 P.2d 1124, 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, 725 P.2d 510, 515 (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, 585 F.2d 443, 445 (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, 467 U.S. 649 (1984), the United States

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

  of Miranda v. Arizona, 384 U.S. 436 (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, 467 U.S. at 657;

  see also People v. Ingram, 984 P.2d 597 (Colo. 1999); People v.

  Allen, 199 P.3d 33 (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, 467 U.S. at 658-60.

  Unlike in either Ingram, 984 P.2d 597, or Allen, 199 P.3d 33, 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, 467 U.S. 649, 655 (1984); United
  States v. DeJear, 552 F.3d 1196, 1201 (10th Cir. 2009); People v.
  Janis, 2016 COA 69, ¶¶ 52-53, rev’d on other grounds, 2018 CO 89.
  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, 467 U.S. at 658-60.

¶ 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
