         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
                                                            October 17, 2019

                                   2019COA156

    No. 17CA2134, People v. Harmon — Constitutional Law —
Fourth Amendment — Searches and Seizures — Motor Vehicles

     A division of the court of appeals concludes that Brendlin v.

California, 551 U.S. 249, 263 (2007), abrogated only the holding in

People v. Fines, 127 P.3d 79, 81 (Colo. 2006), that passengers in a

lawfully stopped vehicle are not seized for Fourth Amendment

purposes as a result of the traffic stop alone. The division also

concludes, however, that Brendlin did not further abrogate Fines.

Thus, it is still good law that there may be instances when an officer

effects a Fourth Amendment seizure beyond the initial traffic stop

by separating a passenger from the car and the car’s other

occupants and questioning the passenger about matters unrelated

to the traffic stop.
COLORADO COURT OF APPEALS                                         2019COA156


Court of Appeals No. 17CA2134
Mesa County District Court No. 16CR6299
Honorable Valerie J. Robison, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sarah Jean Harmon,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division VI
                         Opinion by JUDGE BERGER
                       Welling and Martinez*, JJ., concur

                         Announced October 17, 2019


Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    Is a passenger in a vehicle that is lawfully stopped for a traffic

 infraction seized within the meaning of the Fourth Amendment?

¶2    In People v. Fines, 127 P.3d 79, 81 (Colo. 2006), and People v.

 Jackson, 39 P.3d 1174, 1185 (Colo. 2002), the Colorado Supreme

 Court held that such a passenger is not seized when the vehicle is

 lawfully stopped. But after these opinions were announced, the

 United States Supreme Court reached a different conclusion. In

 Brendlin v. California, 551 U.S. 249, 263 (2007), the Supreme Court

 held that a passenger in a car is “seized from the moment [the] car

 c[o]me[s] to a halt on the side of the road.”

¶3    The Colorado Supreme Court has recognized that Brendlin

 overruled or abrogated the contrary Fourth Amendment holding in

 Jackson but has not explicitly done the same with respect to Fines.

 Tate v. People, 2012 CO 75, ¶ 8; People v. Marujo, 192 P.3d 1003,

 1006 (Colo. 2008). We conclude that Brendlin also abrogated the

 contrary holding in Fines, as Fines is expressly predicated on

 Jackson. 1


 1 Ordinarily, of course, we are bound by holdings of the Colorado
 Supreme Court and must follow those holdings unless and until
 they are overruled by that court. In re Estate of Ramstetter, 2016
 COA 81, ¶ 40. But when, as here, the United States Supreme

                                    1
¶4    The continued viability of Fines matters in this case because

 defendant, Sarah Jean Harmon, was a passenger in a vehicle that

 was lawfully stopped by the police. Under the Supreme Court’s

 holding in Brendlin, because the traffic stop was lawful, Harmon

 was seized “from the moment [the] car came to a halt.” 551 U.S. at

 263. Because it is uncontested that the stop was lawful under the

 Fourth Amendment, there was no basis to suppress the fruits of the

 seizure unless some other unconstitutional seizure was effected by

 the police.2

¶5    Recognizing this problem, Harmon contends that when the

 police directed her to a spot away from the car, separating her from

 the driver and the other passenger, a separate Fourth Amendment

 seizure occurred. She argues that because that seizure was




 Court decides a question of federal constitutional law, that decision
 constitutes the supreme law of the land, and we must follow it
 notwithstanding contrary Colorado Supreme Court precedent.
 People v. Schaufele, 2014 CO 43, ¶ 33.
 2 Harmon does not contend that article II, section 7 of the Colorado

 Constitution affords her more protection than the Fourth
 Amendment to the United States Constitution. The two provisions
 are “generally co-extensive.” People v. Stock, 2017 CO 80, ¶ 14. We
 treat them as co-extensive here.

                                   2
 supported by neither probable cause nor reasonable suspicion, all

 fruits of that seizure must be suppressed.

¶6    We reject Harmon’s argument not because it is legally

 unsound under the facts she posits, but because those alleged facts

 are not supported by the record. Because there was no separate

 seizure, there was no basis to suppress the fruits of the seizure,

 and the trial court correctly denied Harmon’s motion to suppress. 3

 We also reject Harmon’s other claims of error and affirm the

 judgment of conviction.

                             I. Background

¶7    While on patrol, a police officer drove past a vehicle with a

 cracked windshield and a broken headlight. The officer followed the

 car and saw that it also had an expired license plate. The officer

 initiated a traffic stop, and the car stopped in or adjacent to an alley



 3In a separate order, the trial court ruled that the Fifth Amendment
 and Miranda v. Arizona, 384 U.S. 436 (1966), did not bar admission
 of Harmon’s statement that she had a “hot rail tube” in her purse or
 her explanation of what that term meant, namely, drug
 paraphernalia. In the same order, the trial court suppressed on
 Miranda and Fifth Amendment grounds a separate inculpatory
 statement made by Harmon after the search of her purse. Neither
 party appealed that order. Therefore, those rulings are not before
 us.

                                    3
 on the side of the roadway. During the stop, the officer recognized

 Harmon, who was one of the passengers, from previous law

 enforcement contacts involving illegal drugs. After collecting the

 driver’s registration, license, and insurance information, the officer

 began filling out a citation. The officer simultaneously called for a

 canine unit to conduct a drug sniff of the exterior of the vehicle.

¶8    When the canine unit arrived, the officer directed the

 occupants of the car to get out of the vehicle while the dog

 performed the sniff. The passengers got out of the car and

 remained nearby. According to the officer, he directed Harmon to a

 spot five to ten feet behind the car. He stood with Harmon there,

 while the driver and a second passenger stood some distance away

 with the other officer.

¶9    The officer standing with Harmon “asked all [of the] occupants

 if they had any guns, knives, drugs, [or] drug paraphernalia on

 them.” Because the officer had known Harmon to have needles on

 her person during their previous encounters, and in anticipation of

 asking for consent to search her, he specifically asked Harmon

 what was in her purse. She answered that she had a “hot rail




                                    4
  tube,” which she explained was an item used to snort

  methamphetamine.

¶ 10   Meanwhile, the dog alerted to the odor of a controlled

  substance in the vehicle, but a search of the vehicle turned up

  nothing. The traffic officer then searched Harmon’s purse based on

  her admission about the hot rail tube. Inside her purse, the officer

  found the hot rail tube and a plastic container containing a Xanax

  pill and methamphetamine.

¶ 11   Before trial, Harmon sought to suppress the evidence found in

  her purse. She conceded that the traffic stop was lawful and that

  the officer was entitled to order her to get out of the vehicle. She

  asserted, however, that the patrol officer violated her constitutional

  right to be free from unreasonable seizure when he “separated her”

  from the other occupants of the car and asked her about the

  contents of her purse. In particular, she argued that these actions

  elevated the initial encounter to a “Terry stop” that was

  unsupported by reasonable suspicion. 4


  4“Under Terry, a police officer can briefly stop a suspicious person
  and make reasonable inquiries to confirm or dispel his suspicions.”
  People v. Corpany, 859 P.2d 865, 868 (Colo. 1993) (citing Terry v.
  Ohio, 392 U.S. 1, 30-31 (1968)). “The officer may also conduct a

                                     5
¶ 12   After a hearing, the trial court denied Harmon’s motion,

  determining that (1) the traffic stop was not unreasonably

  prolonged and (2) the search of Harmon’s purse was supported by

  “specific and articulable facts.” The court did not specifically rule

  on Harmon’s argument that her alleged separation from her

  companions constituted a separate, unconstitutional seizure.

                              II. Discussion

¶ 13   On appeal, Harmon contends that the patrol officer violated

  her right against unreasonable seizure “when, lacking any

  reasonable suspicion, he secluded her in [an] alley and interrogated

  her about drugs.” We disagree.

                A. Preservation and Standard of Review

¶ 14   The Attorney General asserts that Harmon’s claim is

  “unpreserved” because the trial court did not specifically address it

  in denying her suppression motion. In contrast to the cases relied

  on by the Attorney General, however, Harmon sought and received

  a ruling on the matter she urged — namely, the suppression of



  pat-down search of the individual to determine whether the person
  is carrying a weapon, as long as the officer is justified in believing
  that the person may be armed and presently dangerous.” Id. at
  868-69.

                                     6
  evidence.5 People v. Boulden, 2016 COA 109, ¶ 5. That the trial

  court did not analyze her motion in the way she presented it does

  not mean that she failed to preserve the issue.

¶ 15   We review a trial court’s decision on a motion to suppress as a

  mixed question of fact and law. People v. King, 16 P.3d 807, 812

  (Colo. 2001). While we defer to the trial court’s findings of historical

  fact when they are supported by competent evidence in the record,

  we review conclusions of law de novo. Id.

                               B. Analysis

¶ 16   The Fourth Amendment to the United States Constitution and

  article II, section 7 of the Colorado Constitution protect persons and

  their homes from unreasonable searches and seizures. People v.

  Mendoza-Balderama, 981 P.2d 150, 156 (Colo. 1999).




  5 In Feldstein v. People, 159 Colo. 107, 111, 410 P.2d 188, 191
  (1966), abrogated on other grounds by Deeds v. People, 747 P.2d
  1266 (Colo. 1987), relied upon by the Attorney General, the court
  held that the defendant failed to preserve an issue where the court
  and counsel “completely forgot about [a] request concerning the
  transcription of oral arguments to the jury” and the court never
  ruled on the request. In People v. Zamora, 220 P.3d 996, 1001
  (Colo. App. 2009), also relied on by the Attorney General, the
  division refrained from reaching the defendant’s appellate
  contentions because they were not raised in the trial court.

                                     7
¶ 17   A person is seized “when an officer, by means of physical force

  or show of authority, terminates or restrains his [or her] freedom of

  movement through means intentionally applied.” Tate, ¶ 7 (citing

  Brendlin, 551 U.S. at 254). A traffic stop effectuates a seizure not

  only of the driver, but also his passengers, for the duration of the

  stop. Brendlin, 551 U.S. at 255, 257.

¶ 18   At a suppression hearing, a defendant has the burden of

  presenting evidence of an unconstitutional seizure. People v.

  Cunningham, 2013 CO 71, ¶ 14; Outlaw v. People, 17 P.3d 150, 155

  (Colo. 2001). The defendant must show that (1) a Fourth

  Amendment seizure occurred and (2) the seizure was

  unconstitutional. Outlaw, 17 P.3d at 155.

¶ 19   Harmon concedes that, as a passenger in the vehicle, she was

  lawfully seized by the traffic stop. Likewise, she does not dispute

  that she could be ordered out of the car during the traffic stop.

  Rather, she argues that her seizure became unconstitutional when

  the police officer “brought her to an alley alone” to “interrogate her

  about drugs.” That is, she asserts, the officer’s actions of

  “abandoning the vehicle, the driver, and the other passengers to




                                     8
  move [her] to the alley for an interrogation based on a hunch she

  might have drugs” effectuated a separate, unlawful seizure.

¶ 20   To support this contention, Harmon relies on Fines, 127 P.3d

  79. In Fines, police recognized the defendant during a traffic stop

  as “a drug user who had been in and out of jail.” Id. at 80. Police

  asked her to step out of the car, “escorted [her] to a particular

  location behind the stopped vehicle and in front of the first of two

  police cars, with overhead lights on,” and “questioned her about

  drug activity.” Id. The court concluded that, while the defendant

  was not subject to seizure as a result of the traffic stop, she was

  unconstitutionally seized when she was “directed by the police to a

  particular location, separated from the driver, and questioned about

  her own possession of illegal drugs” without any particularized

  suspicion. Id. at 81.

¶ 21   However, Fines predates Brendlin and Arizona v. Johnson, 555

  U.S. 323 (2009), which together hold that for Fourth Amendment

  purposes a passenger is seized from the moment the vehicle stops,

  Brendlin, 551 U.S. at 263, until “the police have no further need to

  control the scene, and inform the driver and passengers they are

  free to leave,” Johnson, 555 U.S. at 333. Thus, Brendlin abrogated


                                     9
  Fines’ holding that passengers in a lawfully stopped vehicle are not

  seized as a result of the traffic stop alone.

¶ 22   Brendlin, however, did not abrogate Fines’ related holding that,

  under certain circumstances, separating a passenger in a vehicle

  from the vehicle’s other occupants during a traffic stop and

  questioning that passenger about matters not related to the traffic

  stop “after [the passenger’s] removal from the stopped vehicle” can

  constitute a Fourth Amendment seizure. Fines, 127 P.3d at 81.

¶ 23   For safety purposes, police may order the occupants of a

  stopped vehicle to get out of the vehicle, Maryland v. Wilson, 519

  U.S. 408, 413, 415 (1997), or may order them to remain in the

  vehicle with their hands up, United States v. Moorefield, 111 F.3d

  10, 11 (3d Cir. 1997), without effecting a secondary seizure.

  Similarly, police may subject drivers and passengers to questioning

  (subject, of course, to the Fifth Amendment rights of the persons

  questioned) not related to the purpose of the stop so long as the

  questioning does not measurably extend the stop. Johnson, 555

  U.S. at 333. However, police may only conduct a pat-down of a

  person during a traffic stop if they “have an articulable and

  objectively reasonable belief that [the] person in the car may be


                                     10
  armed and dangerous.” People v. Brant, 252 P.3d 459, 462 (Colo.

  2011).

¶ 24   In short, police may constitutionally exert some level of control

  over the driver and passengers in a lawfully stopped vehicle under

  the justification for the stop, but beyond a certain point, police

  action may constitute a second, distinct Fourth Amendment

  seizure. For instance, in United States v. Saavedra, 549 F. App’x

  739, 743 (10th Cir. 2013), police handcuffed a passenger and

  placed him in the back of a police car during a traffic stop; this

  constituted a second, distinct seizure.

¶ 25   It follows that there may be instances when an officer effects a

  secondary seizure beyond the initial traffic stop by separating a

  passenger from the car and the car’s other occupants and

  questioning the passenger about matters unrelated to the traffic

  stop. Fines, 127 P.3d at 81. But that is not the case here.

¶ 26   Harmon’s characterization of the officer’s actions as taking,

  moving, isolating, or secluding her in an alley away from her

  companions is not supported by the record. As noted, the vehicle in

  which Harmon was a passenger stopped in or adjacent to the alley,

  and everyone remained nearby during the stop. According to the


                                    11
  officer’s hearing testimony, which was unrebutted, Harmon was

  within five to ten feet of the vehicle at all times. Though the officer

  testified that Harmon’s companions stood with another officer

  separated from Harmon, Harmon did not elicit any testimony about,

  or otherwise challenge, the distance between her and her

  companions.

¶ 27   Harmon further contends that her physical separation from

  the other passengers constituted a separate seizure because, like

  the defendant in Fines, she reasonably believed she had to follow

  the officer’s instruction to “step over here.” However, since Fines,

  the United States Supreme Court has recognized that the

  circumstances of a stop itself communicate to reasonable

  passengers that they are not “free to leave, or to terminate the . . .

  encounter any other way, without advance permission.” Brendlin,

  551 U.S. at 258.

¶ 28   By extension, the nature of an ongoing traffic stop would

  communicate to a reasonable passenger in Harmon’s position that

  she was not free to disregard the officer’s instruction as to where to

  stand during the stop. So, under these circumstances, Harmon’s

  reasonable belief that she was not free to ignore the instruction was


                                     12
  the result of the ongoing lawful seizure and is not, standing alone,

  sufficient to demonstrate that a secondary seizure occurred.

¶ 29   Actions that would themselves support the conclusion that a

  seizure occurred could, in instances when a lawful seizure is

  already underway, be simply incidental to the lawful seizure. Under

  these circumstances, the officer’s direction to “step over here,”

  regardless of its subjective motivation, was merely incidental to the

  ongoing lawful seizure.

¶ 30   Accordingly, Harmon has not demonstrated that her physical

  separation from the other occupants of the vehicle rises to the level

  of a separate seizure. Cunningham, ¶ 14; Outlaw, 17 P.3d at 155.

¶ 31   Finally, the officer’s questions about drugs, weapons, and the

  contents of Harmon’s purse did not render the ongoing seizure

  unlawful or constitute a separate seizure. 6 “An officer’s inquiries

  into matters unrelated to the justification for the traffic stop . . . do

  not convert the encounter into something other than a lawful

  seizure, so long as those inquiries do not measurably extend the


  6 Harmon makes no contention on appeal that the officer asked
  these questions while she was in custody, so her responses do not
  implicate her rights under the Fifth Amendment and Miranda, 384
  U.S. 436.

                                      13
  duration of the stop.” Johnson, 555 U.S. at 333. In this case, there

  is no evidence that the officer’s questions of Harmon prolonged the

  traffic stop. The record reflects that the officer asked the group if

  anyone had weapons or drugs and asked Harmon what was in her

  purse shortly after all of the occupants of the car got out so the dog

  could perform its sniff. Accordingly, the record does not permit a

  conclusion that the officer’s questions measurably extended the

  stop. Nor did the officer’s “brief off-topic questions . . . transform

  the traffic stop into a seizure of unreasonable duration.” People v.

  Chavez-Barragan, 2016 CO 66, ¶ 26.

¶ 32   For these reasons, we conclude that the record does not

  support Harmon’s allegations that a secondary seizure occurred

  beyond the one already in effect as a result of the traffic stop.

  Because the police conduct did not violate Harmon’s Fourth

  Amendment rights, the trial court correctly denied her motion to

  suppress.

                             III. Other Issues

¶ 33   Harmon also contends that reversal is required because the

  trial court (1) clearly erred in finding that the dog alerted to her

  rather than the vehicle and (2) “analyzed the wrong Fourth


                                     14
  Amendment event” — namely, the search of her purse. We agree

  that the record does not support a finding that the dog directly

  alerted to Harmon. However, neither this erroneous finding nor the

  court’s analysis of the lawfulness of the search of her purse affects

  our analysis on appeal. Accordingly, reversal is not warranted on

  these bases.

                             IV. Conclusion

¶ 34   The judgment of conviction is affirmed.

       JUDGE WELLING and JUSTICE MARTINEZ concur.




                                    15
