COLORADO COURT OF APPEALS                                     2016COA150


Court of Appeals No. 14CA0959
Adams County District Court No. 13CR1295
Honorable John E. Popovich, Jr., Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Carl A. Brown,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division III
                           Opinion by JUDGE WEBB
                       Hawthorne and Navarro, JJ., concur

                          Announced October 20, 2016


Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Rachel K. Mercer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Does the Fourth Amendment allow police officers to impound

 a car only because the driver and sole occupant was cited — but

 not arrested — for driving on a suspended license? If the answer is

 “no,” then is the ensuing inventory search unlawful? These are

 novel questions in Colorado.

¶2    A jury convicted Carl A. Brown of possession of a controlled

 substance (over two grams) and possession of a controlled

 substance with intent to distribute. The trial court sentenced him

 to ten years in the custody of the Department of Corrections, plus

 five years of mandatory parole.

¶3    On appeal, Mr. Brown raises contentions of an illegal

 impoundment and inventory search during which the drugs were

 discovered, an unlawful peremptory challenge under Batson,

 improper expert testimony by police officers, prosecutorial

 misconduct in closing argument, failure to merge the convictions,

 and the trial court’s misunderstanding of its sentencing discretion.

 Because we agree that the impoundment and inventory search of




                                   1
 Mr. Brown’s car violated the Fourth Amendment,1 we reverse and

 remand for the trial court to grant his motion to suppress.2

                I. Impoundment and Inventory Search

                           A. Background

¶4    Aurora police officers pulled Mr. Brown’s car over after he

 failed to make a complete stop at a stop sign.3 During the traffic

 stop, the officers learned that Mr. Brown was driving on a

 suspended license. Based on this violation, they chose to issue Mr.

 Brown a summons, but not to arrest him. Still, the officers decided

 to impound his car. While waiting for the tow truck, one of them

 performed an inventory search and found the drugs. Only then did

 they arrest Mr. Brown.

                           B. Preservation

¶5    The Attorney General asserts that Mr. Brown failed to preserve

 his contention that impoundment of his car was not


 1 Mr. Brown does not make a separate argument based on the
 counterpart provision of the Colorado Constitution. See Colo.
 Const. art. II, § 7.
 2 Given this conclusion and because Mr. Brown’s remaining

 contentions are unlikely to arise on retrial, we need not address
 them.
 3 Mr. Brown does not contest the validity of the traffic stop.




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 constitutionally reasonable, given an exception — discussed more

 fully below — to the warrant requirement that allows impoundment

 without a warrant under some circumstances. This assertion

 misses the mark for two reasons.

¶6    First, during the suppression hearing, defense counsel argued:

           [The officers] were going to issue a summons
           and release him. You get to at that point
           whether or not they had a right to search his
           car, inventory search his car. And the officer
           had the discretion, pursuant to their manual,
           to leave the car on the scene if they can verify
           the ownership, which they admitted on the
           stand it was, in fact, Mr. Brown’s car. It had
           valid insurance, registration and plates. At
           that point the stop should have been over. No
           further contact should have been conducted.

           ....

           This is an attempt to, in essence, create their
           own reason to inventory search this car in
           order to verify an anonymous tip that they
           were unable to verify earlier.

¶7    Second, after the prosecutor defended the impoundment, the

 trial court ruled against Mr. Brown on the issue. See People v.

 Syrie, 101 P.3d 219, 223 n.7 (Colo. 2004) (An issue is preserved if

 “the trial court [has an] adequate opportunity to make factual

 findings and legal conclusions.”).



                                      3
                         C. Standard of Review

¶8    A trial court’s ruling on a motion to suppress presents a mixed

 question of fact and law. People v. Martinez, 165 P.3d 907, 909

 (Colo. App. 2007). We defer to the trial court’s findings of fact if

 they are supported by competent evidence in the record, but we

 review its conclusions of law de novo. Id. Of course, “[w]e review de

 novo the trial court’s ultimate legal conclusion of whether a seizure

 violated constitutional prohibitions against unreasonable searches

 and seizures.” People v. Funez-Paiagua, 2012 CO 37, ¶ 6.

                                 D. Law

                         1. Inventory Searches

¶9    The Fourth Amendment to the United States Constitution

 prohibits unreasonable searches and seizures. And under the

 Fourth Amendment, searches conducted without a warrant are

 presumptively unreasonable, unless the search comes within an

 exception to the warrant requirement. People v. Vaughn, 2014 CO

 71, ¶ 14. The prosecution bears the burden of overcoming this

 presumption by establishing one of these exceptions. People v.

 Winpigler, 8 P.3d 439, 443 (Colo. 1999).




                                    4
¶ 10   This case concerns the exception that “permits officers to

  conduct an inventory search of a vehicle without a warrant based

  on probable cause when that vehicle is lawfully impounded by law

  enforcement officials.” Vaughn, ¶ 14; see Colorado v. Bertine, 479

  U.S. 367, 371-72 (1987) (Because inventory searches further police

  caretaking procedures, “[t]he policies behind the warrant

  requirement are not implicated in an inventory search, nor is the

  related concept of probable cause.”) (citation omitted). This

  exception exists because an inventory search does not seek to

  obtain evidence but is “designed to protect the owner’s property

  while it is in police custody, to insure against claims concerning lost

  or damaged property, and to protect the police from any danger

  posed by the contents of the vehicle.” Pineda v. People, 230 P.3d

  1181, 1185 (Colo. 2010), disapproved of on other grounds by

  Vaughn, ¶ 11 n.7.

¶ 11   Still, the decision to impound a vehicle and the ensuing

  inventory search are separate processes, both of which “must meet

  the strictures of the Fourth Amendment.” United States v. Duguay,

  93 F.3d 346, 351 (7th Cir. 1996); accord King v. Commonwealth,

  572 S.E.2d 518, 520 (Va. Ct. App. 2002) (“The validity of the


                                    5
  impoundment is a question separate from the validity of the

  subsequent inventory search and must be determined first.”).

  Thus, because the act of impoundment “‘gives rise to the need for

  and justification of the inventory [search],’ the threshold inquiry

  when determining the reasonableness of an inventory search is

  whether the impoundment of the vehicle was proper.” State v.

  Gauster, 752 N.W.2d 496, 502 (Minn. 2008) (alteration in original)

  (quoting State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977)).

¶ 12   Mr. Brown acknowledges — as he must — that “[a]fter validly

  impounding a vehicle, an officer may make an inventory search of

  its contents.” People v. Milligan, 77 P.3d 771, 776 (Colo. App. 2003)

  (emphasis added). Instead, he asserts that because the prosecution

  failed to prove the legality of the impoundment, a threshold Fourth

  Amendment violation occurred, which fatally tainted the inventory

  search.4 Examining this assertion requires us to take a closer look

  at the law of impoundment.




  4At oral argument, the Attorney General conceded that if the
  impoundment fails, it takes the inventory search down as well.


                                     6
                        2. Lawful Impoundment

¶ 13   To begin, everyone would agree that “[t]he impoundment of an

  automobile is a seizure within the meaning of the Fourth

  Amendment.” Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th

  Cir. 2005). Even so, an impoundment by the police without a

  warrant satisfies the Fourth Amendment if it occurs in furtherance

  of “public safety” or “community caretaking functions,” such as

  removing “disabled or damaged vehicles” and “automobiles which

  violate parking ordinances and which thereby jeopardize both the

  public safety and the efficient movement of vehicular traffic.” South

  Dakota v. Opperman, 428 U.S. 364, 368-69 (1976) (citation

  omitted).5 Like the exception for inventory searches, this exception

  to the warrant requirement recognizes that the purpose of the

  impoundment is not to obtain evidence. In every inventory search

  case, then, the dilemma between a seizure and the lack of a warrant

  5 Impoundment may also occur when it is authorized by a state
  statute. See, e.g., United States v. Gillon, 348 F.3d 755 (8th Cir.
  2003) (impoundment lawful here where statute authorized
  impoundment incident to citation for operating vehicle without
  financial liability coverage); United States v. Rios, 88 F.3d 867 (10th
  Cir. 1996) (state statute authorizes impoundment of improperly
  registered vehicle). But the Attorney General does not cite to any
  such Colorado statute.


                                     7
  or other permissive court order must be resolved by determining

  whether “the state [has] an interest in impoundment that outweighs

  the individual’s Fourth Amendment right to be free of unreasonable

  searches and seizures.” Gauster, 752 N.W.2d at 502.

¶ 14   As part of the legal framework for this determination, when

  departmental regulations give police the discretion to impound a

  vehicle, often “decisions to impound will be upheld as long as that

  discretion has been exercised according to standard criteria.”

  Milligan, 77 P.3d at 776; see Bertine, 479 U.S. at 374 (“[R]easonable

  police regulations relating to inventory procedures administered in

  good faith satisfy the Fourth Amendment, even though courts might

  as a matter of hindsight be able to devise equally reasonable rules

  requiring a different procedure.”). But not always.

¶ 15   “[T]he fact that officers may have conducted an inventory

  search in accordance with procedures does not, of itself, necessarily

  mean that the inventory search was reasonable.” People v. Gee, 33

  P.3d 1252, 1254 (Colo. App. 2001); accord People v. Hicks, 197

  Colo. 168, 171, 590 P.2d 967, 969 (1979) (“The words ‘routine

  inventory search’ are not a ‘talisman in whose presence the Fourth

  Amendment fades away.’” (quoting Coolidge v. New Hampshire, 403


                                    8
  U.S. 443, 461 (1971))), overruled by People v. Bannister, 619 P.2d

  71 (Colo. 1980); see also United States v. Sanders, 796 F.3d 1241,

  1250 (10th Cir. 2015) (“Protection against unreasonable

  impoundments, even those conducted pursuant to a standardized

  policy, is part and parcel of the Fourth Amendment’s guarantee

  against unreasonable searches and seizures.”). Thus, by any fair

  account, a decision upholding an inventory search based on a

  policy — but without asking whether the criteria for the underlying

  impoundment satisfy the Fourth Amendment — is like the emperor

  with no clothes.

                              E. Analysis

¶ 16   Although a written copy of the Aurora department policy is not

  in the record, standard policies regulating inventory searches do

  not need to be in writing. Gee, 33 P.3d at 1256-57. Rather,

  “unwritten policies of a police department that are routinely used by

  officers in conducting inventory searches are standards that may be

  considered in determining the reasonableness of an inventory

  search.” Id.

¶ 17   At the suppression hearing, the officer who ordered the

  impoundment testified that when Mr. Brown was pulled over, his


                                    9
  car was “off the roadway” and not blocking traffic. Still, the officer

  said that the car was impounded because “[Mr. Brown’s] license

  was suspended.” He added that “[Mr. Brown] was detained . . .

  [and] [h]e would have been issued a summons and released there

  and the vehicle impounded.”

¶ 18   As to the policy, the officer explained that “[p]art of our

  department policy is we impound vehicles with a suspended

  license” — “Our routine procedure is that if they don’t have a valid

  driver’s license, the vehicle is impounded.” The officer also testified

  that the decision to impound is “up to the officer’s discretion.”

¶ 19   For the prosecutor, so far, so good. But then the following

  cross-examination occurred:

             Q: . . . You have the discretion, correct?

             A: Yes.

             Q: And part of the circumstances around that
             are whether the car is blocking traffic,
             impeding traffic?

             A: Yes.

             Q: Whether the person is the owner of the
             car?

             A: Yes.




                                    10
            Q: Did you give Mr. Brown the option . . . of
            whether he wished his car to remain on scene
            or to be towed?

            A: No.

            Q: Why not?6

            A: He already demonstrated that he is going to
            drive his vehicle on a suspended license.

¶ 20   True enough, as the trial court found, the department’s policy

  gave the officer discretion to impound Mr. Brown’s car because his

  license was suspended. But removing the potential for abuse of

  unbridled discretion moves the Fourth Amendment analysis

  forward only half way. More analysis is required because “strict

  adherence to standard police department procedures . . . does not

  necessarily satisfy the Fourth Amendment reasonableness

  standard.” People v. Hauseman, 900 P.2d 74, 78 (Colo. 1995),

  disapproved of on other grounds by Vaughn, ¶ 11 n.7; see Miranda,

  429 F.3d at 864 (“We begin with the premise . . . that the decision

  to impound pursuant to the authority of a city ordinance and state




  6 For those who read this opinion without the benefit of significant
  trial experience, one of the time-honored rules of cross-examining a
  witness is “never ask why.”


                                   11
  statute does not, in and of itself, determine the reasonableness of

  the seizure under the Fourth Amendment . . . .”).

¶ 21   And herein lies the problem: the prosecutor failed to prove that

  apart from Mr. Brown driving on a suspended license, any other

  fact made the impoundment reasonable. For example, the

  prosecutor did not even ask the officer whether Mr. Brown lacked

  proof of insurance or had produced proper registration. And in

  response to defense counsel’s question, the police officer testified, “I

  don’t recall who the vehicle was registered to.” Nor did the

  prosecution present any evidence that the location of the car

  imperiled other drivers, a criterion under the policy.

¶ 22   Consistent with the prosecutor’s narrow position, the trial

  court found only that Mr. Brown’s license was suspended and the

  officer had relied on the policy, neither of which was disputed. Yet,

  the following evidence — also undisputed — weighs against the

  impoundment having been reasonable, on three levels.

¶ 23   First, consider the officer’s testimony that he had planned to

  release Mr. Brown after issuing him a summons for driving on a

  suspended license, not to arrest him. See People v. Grenier, 200

  P.3d 1062, 1070 (Colo. App. 2008) (Impoundment was reasonable


                                     12
  where “at the time defendant was taken into custody, there was no

  one else available to take the car . . . [and] the car could not be left

  unattended because, considering the area of town, the car would

  likely not be there when defendant returned.”); see also Milligan, 77

  P.3d at 777 (An officer’s impoundment decision was upheld where

  “a vehicle was driven illegally and the driver has been arrested” and

  “the practice is to impound the vehicle, unless a passenger has a

  valid driver’s license and is then allowed to drive the car away.”);

  Gee, 33 P.3d at 1255 (There was no Fourth Amendment violation

  where a “policy permitted an officer to have a vehicle towed when a

  driver was arrested for driving under the influence . . . [and] the

  officer, in deciding to tow the vehicle, considered the remote

  location of the vehicle, the possibility of vandalism, the fact that the

  vehicle was from out of state, and the ‘rationality of the

  defendant.’”).

¶ 24   Unlike such cases where the driver was arrested, because Mr.

  Brown could have remained to safeguard his car, the police




                                     13
caretaking function would not have been implicated.7 For this

reason, “cases in which the driver of a vehicle is arrested are

fundamentally different from cases in which the driver remains

free.” State v. Rohde, 852 N.W.2d 260, 266 (Minn. 2014). As the

court explained in Gauster, 752 N.W.2d at 506, “[w]hile the need for

the police to protect the vehicle and its contents is often present

when police officers arrest a driver,” a driver who is not arrested

“never relinquishe[s] control of his vehicle and ha[s] no need to

leave it unattended.” Cf. People v. Litchfield, 918 P.2d 1099, 1105

(Colo. 1996) (“Because [defendants] would have maintained control

over the car and their belongings within it while the officers checked

with the rental company, there was no need for the officers to

inventory the contents of the car.”). Stated in the simplest terms,


7 The Attorney General relies extensively on People v. Vaughn, 2014
CO 71, where the supreme court found an inventory search to be
valid where the defendant’s vehicle had been lawfully impounded.
Although this case also involved impoundment based on a
suspended license, because the driver was arrested, it is inapposite.
Similarly, United States v. Sanders, 796 F.3d 1241, 1250 (10th Cir.
2015), on which the Attorney General relied at oral argument,
involved the impoundment of a vehicle parked on private property,
after the driver had been arrested. And in any event, the Court of
Appeals held the impoundment unlawful under the Fourth
Amendment.


                                  14
  “[t]he state owes no legal duty to protect things outside its custody

  from private injury.” Duguay, 93 F.3d at 353. Without this

  justification the impoundment may still stand, but its legal

  foundation is weakened.

¶ 25   Second, consider that Mr. Brown’s inability to lawfully drive

  the car does not alone make the impoundment reasonable. See

  Taylor v. State, 842 N.E.2d 327, 333 (Ind. 2006) (“The fact that

  [defendant] was unable to drive his car because his permit was

  suspended does not in this instance support a conclusion that the

  car itself was imperiled or constituted a potential hazard which [the

  police officer] reasonably believed he needed to address.”); see also

  3 Wayne R. LaFave, Search and Seizure § 7.3(c) (5th ed. 2012)

  (When a “driver is only ticketed but cannot himself operate the car

  because of an expired license, impoundment of the vehicle is

  improper unless the driver is ‘unable to provide for its custody or

  removal.’”) (citations omitted).

¶ 26   Jerking Mr. Brown’s inability lawfully to drive out from under

  the already shaky impoundment is appropriate because the

  prosecutor also did not present any evidence of generally accepted

  reasons to impound, such as that the car was in an unsafe location


                                     15
  or impeding traffic. See Miranda, 429 F.3d at 866 (“An officer

  cannot reasonably order an impoundment in situations where the

  location of the vehicle does not create any need for the police to

  protect the vehicle or to avoid a hazard to other drivers.”); see also

  Thompson v. State, 966 S.W.2d 901, 905 (Ark. 1998) (“[I]t is

  permissible for an officer to impound and inventory a vehicle when

  the driver is physically unable to drive the car, and leaving it on the

  side of the road would create a safety hazard.”) (emphasis added);

  cf. People v. Trusty, 183 Colo. 291, 295, 516 P.2d 423, 425 (1973)

  (An inventory search was reasonable where the vehicle “was parked

  in a high-risk area, the parking lot of a tavern; it had out-of-state

  license plates; the whereabouts of its owner were unknown; and

  [defendant], who was intoxicated and subsequently placed under

  arrest, had voluntarily turned over the keys to the auto to the

  officer and invited a search of the vehicle.”).

¶ 27   Third, consider that the suppression hearing record is barren

  of any reason why Mr. Brown could not have called someone else to

  lawfully drive his car or summoned a tow truck himself, options




                                     16
that the officers did not extend to him.8 After all, because the police

did not plan on arresting him, he would have needed to arrange for

his own transportation. Those arrangements could have been as a

passenger in his car, being driven by someone else, or sitting in the

cab of a tow truck that he had summoned. Compare King, 572

S.E.2d at 521 (“[T]he owner of the vehicle[] was not taken into

custody or removed from the scene and, although he could not

personally drive the vehicle, the evidence failed to show he was

unable to arrange for its removal to another location, or to

safeguard his property.”), with Commonwealth v. Daley, 672 N.E.2d

101, 103 (Mass. 1996) (Impoundment of an unregistered and

uninsured vehicle was reasonable because “the officers could not

permit the continued operation of this illegal vehicle on the public

roadways, nor could they leave the vehicle unattended on the


8 We recognize that in Colorado v. Bertine, 479 U.S. 367, 373
(1987), the Supreme Court rejected the argument that the police are
required to give an arrested driver “an opportunity to make
alternative arrangements” before impounding his or her vehicle.
But again, that case involved impoundment after an arrest. See
State v. Rohde, 852 N.W.2d 260, 266 (Minn. 2014) (distinguishing
Bertine because “when the driver is not arrested, it is ‘not necessary
for the police to take [the] vehicle into custody in the first place’”)
(alteration in original) (citation omitted).


                                  17
  shoulder of a busy main road.”). This lack of evidence leaves the

  impoundment teetering.

¶ 28   Given all this, one might well ask whether the impoundment

  can be saved from toppling under its own weight by the police

  officer’s testimony that Mr. Brown had “already demonstrated that

  he is going to drive his vehicle on a suspended license.” At first

  blush, impounding a vehicle to prevent a driver with a suspended

  license from operating it would further public safety.

¶ 29   But the prosecutor did not rely on this testimony below, and

  on appeal, the Attorney General does not do so either. See Syrie,

  101 P.3d at 223 (Where the “prosecut[ion] chose not to argue that

  the search . . . was incident to lawful arrest” at the suppression

  hearing, it “surrender[ed]” that argument and “conceded th[e]

  issue.”); see also Moody v. People, 159 P.3d 611, 614 (Colo. 2007)

  (“Our starting point is the basic principle of appellate jurisprudence

  that arguments not advanced on appeal are generally deemed

  waived.”).

¶ 30   Nor did the trial court find that the officers had impounded the

  car because otherwise Mr. Brown would have driven off, after they

  left. And from the officer’s conclusory statement, we do not know


                                    18
  whether Mr. Brown told the officers that he would drive off as soon

  as they left or if they only inferred that he would do so. See Moody,

  159 P.3d at 616 (Noting “the hazards encountered by the court of

  appeals in navigating sua sponte review: it placed itself in the

  tenuous position of resolving fundamental facts that had not been

  identified during the suppression hearing.”).

¶ 31   True enough, an appellate court “can affirm for any reason

  supported by the record, even reasons not decided by the trial

  court.” Roque v. Allstate Ins. Co., 2012 COA 10, ¶ 7. But applying

  this principle sua sponte runs counter to the teaching of Moody.

  And in any event, without further explanation, this testimony does

  not provide sufficient support for impounding Mr. Brown’s car. See

  Miranda, 429 F.3d at 866 (rejecting argument that “impoundment

  satisfied the ‘caretaking’ function by deterring [defendants] from

  repeating this illegal activity in the future”).

¶ 32   In the end, we agree with the well-reasoned cases holding that

  even where a department policy allows officers to impound a

  vehicle, the decision to impound must still satisfy the requirements

  of the Fourth Amendment. Because the prosecution did not meet

  its burden to show that impounding Mr. Brown’s car was


                                      19
  reasonable, the inventory search was unlawful. And because the

  search was unlawful, any evidence found should have been

  suppressed. See People v. Prescott, 205 P.3d 416, 422 (Colo. App.

  2008) (“[E]vidence obtained by the police through unlawful means

  . . . is inadmissible and must be suppressed.”).9

                             II. Conclusion

¶ 33   The judgment is reversed and the case is remanded for the

  trial court to grant the motion to suppress and for proceedings

  consistent with this opinion.

       JUDGE HAWTHORNE and JUDGE NAVARRO concur.




  9 We recognize that the exclusionary rule is “applicable only where
  its remedial objectives are thought most efficaciously served — that
  is, where its deterrence benefits outweigh its substantial social
  costs.” Hudson v. Michigan, 547 U.S. 586, 591 (2006) (citation
  omitted). However, because the Attorney General did not argue
  against suppression on this basis, we decline to do so sua sponte.


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