v. Wambolt , 431 P.3d 681 ( 2018 )

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
June 28, 2018
2018COA88
No. 15CA0352, People v. Wambolt — Crimes — Driving After
Revocation Prohibited — Aggravated Driving After Revocation
Prohibited — DUI — Driving Under Restraint; Constitutional
Law — Fifth Amendment — Double Jeopardy
The defendant was charged with aggravated driving after
revocation prohibited (ADARP), driving under the influence (DUI),
and driving under restraint (DUR). During a first trial, the jury was
instructed on the elements of driving after revocation prohibited
(DARP) and given a special interrogatory verdict form on the ADARP
charge. The jury returned guilty verdicts on DARP and DUR, but
hung on the DUI charge, and thus did not complete the ADARP
special interrogatory. The defendant was then retried in a two-
phase trial. In the first phase, the jury returned a guilty verdict on
driving while ability impaired, a lesser included offense of DUI. In
the second phase, the jury completed a special interrogatory finding
that the prosecution had proved the ADARP charge.
A division of the court of appeals concludes that, under the
circumstances of this case, the defendant was unconstitutionally
tried twice for the same offense. After the first jury returned a
guilty verdict on DARP, the prosecution retried the elements of that
offense during the second trial. As a result, the division vacates the
ADARP conviction and directs the trial court to reinstate the first
DARP verdict.
The division also considers whether the defendant’s DUR and
DARP convictions should have merged. Analyzing the effect of
People v. Rock, 2017 CO 84, 402 P.3d 472, on Zubiate v. People,
2017 CO 17, 390 P.3d 394, the division concludes that DUR is a
lesser included offense of DARP. Thus, the trial court erred in
entering both convictions. However, the division further concludes
that the error here was not plain because it was not obvious.
Finally, the division rejects the defendant’s contention that the
trial court erred in denying his motion to suppress.
Accordingly, the division affirms in part, vacates in part, and
remands the case with directions.
COLORADO COURT OF APPEALS 2018COA88
Court of Appeals No. 15CA0352
Elbert County District Court No. 13CR66
Honorable Jeffrey K. Holmes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jason Lee Wambolt,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TAUBMAN
Bernard and Welling, JJ., concur
Announced June 28, 2018
Cynthia H. Coffman, Attorney General, Joseph G. Michaels, 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 What happens when someone repeatedly drinks, drives, and,
as a result, loses his or her driver’s license, and then drinks and
drives again? This case presents two novel issues that call on us to
answer this question. The issues are not novel because they have
not arisen before; they are novel because they have arisen in a new
context. In recent years the General Assembly has twice amended
one applicable statute, and our appellate courts have issued
multiple, sometimes inconsistent, decisions.
¶2 Addressing the issues presented here is more challenging
because of the unusual procedures followed by the trial court.
Defendant, Jason Lee Wambolt, was tried twice for multiple
offenses, and the second trial was divided into two parts.
Consequently, the two principal issues in this appeal concern
Wambolt’s right to be free from double jeopardy and whether two
convictions merge. In a third issue, Wambolt challenges the trial
court’s denial of his motion to suppress certain evidence used
against him.
¶3 We affirm in part, vacate in part, and remand with directions.
1
I. Background
¶4 In November 2013, police in Agate, Colorado, were dispatched
to respond to a potential menacing incident. The reporting party
communicated that a man riding a motorcycle had chased him and
threatened him, possibly with a weapon. When police arrived at the
scene, Wambolt admitted that he had been the man riding the
motorcycle. The officers observed that Wambolt appeared
intoxicated, and he confessed that he had been drinking prior to
riding the motorcycle.
¶5 Wambolt was eventually charged with aggravated driving after
revocation prohibited (ADARP), driving under the influence (DUI),
driving under restraint (DUR), and two counts of violating a civil
protection order. He did not dispute that his driver’s license had
been revoked or that he had been deemed a habitual traffic
offender. However, the defense’s theories of the case were that
Wambolt did not know that his driver’s license had been previously
revoked and, as to the DUI charge, that he drank only after he
drove his motorcycle. At the first trial, the jury was instructed on
the elements of driving after revocation prohibited (DARP) and given
a special interrogatory verdict form on the ADARP charge. The jury
2
returned guilty verdicts on DARP and DUR, but hung on the DUI
charge, and thus did not complete the ADARP special interrogatory.
At the second trial, Wambolt was convicted of driving while ability
impaired (DWAI), and the second jury completed an interrogatory
finding the People had proved ADARP. Ultimately, the trial court
entered convictions on ADARP, DUR, and DWAI, and Wambolt later
pleaded guilty to the protection order violations.
¶6 Wambolt appeals the judgment of conviction entered on the
jury verdicts finding him guilty of ADARP, DUR, and DWAI.
Specifically, he contends that (1) he was tried twice for the same
offense in violation of double jeopardy protections; (2) the trial court
plainly erred in entering convictions for DUR and DARP because
those convictions should have merged; and (3) the trial court’s
erroneous denial of his motion to suppress requires reversal. We
agree with his first contention and therefore vacate the conviction
for ADARP. However, we disagree with his final two contentions
and thus affirm in all other respects.
II. Double Jeopardy
¶7 Wambolt contends that he was unconstitutionally tried twice
for the same offense when, after the first jury did not complete the
3
ADARP special interrogatory, the People retried him on that charge.
We agree that the second prosecution was in violation of the Double
Jeopardy Clauses of the United States and Colorado Constitutions
and therefore vacate the ADARP conviction and remand for the trial
court to reinstate the first jury’s verdict.
¶8 The Double Jeopardy Clauses of the United States and
Colorado Constitutions protect an accused against being twice
placed in jeopardy for the same crime. U.S. Const. amends. V, XIV;
Colo. Const. art. II, § 18. Axiomatically, the federal Double
Jeopardy Clause “protects against a second prosecution for the
same offense after conviction. And it protects against multiple
punishments for the same offense.” Brown v. Ohio, 432 U.S. 161,
165 (1977) (quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969)). Wambolt invokes both of these protections. We review
double jeopardy claims de novo. People v. Frye, 2014 COA 141, ¶
30, 356 P.3d 1000, 1006.
¶9 As we noted at the outset, this case presents a unique set of
circumstances, both because of the unusual way in which the
prosecution proceeded and because the relevant statutes and case
law have changed over the course of the last few years. We will
4
therefore set forth the facts in some detail, as well as the evolution
of the law.
A. The Trials
¶ 10 As noted, Wambolt was charged with ADARP under section
42-2-206(1)(b), C.R.S. 2013, along with DUI and DUR. Wambolt
was first tried on these charges in July 2014.
¶ 11 At the beginning of voir dire, the trial court instructed the jury
that the People had charged Wambolt with ADARP. However, in the
final jury instructions, the jury was instructed that Wambolt was
charged with DARP, not ADARP. The jury also received an
elemental instruction on DARP, not ADARP.
¶ 12 Additionally, the jury was given a special interrogatory stating
that it was to be completed only if the jury found Wambolt guilty of
DARP and either DUI or DWAI.1 There were then two possible
1 The Model Criminal Jury Instructions in effect at the time of
Wambolt’s first trial in July 2014 did not separately address DARP
and ADARP. Instead, the pattern instruction on “driving after
judgment prohibited” contained a note stating the following:
For cases in which the defendant is alleged to
have committed aggravated driving while
judgment prohibited . . . there must be a
determination beyond a reasonable doubt that
5
options: first, “We, the jury, find that it has been proven beyond a
reasonable doubt that the defendant committed the crimes of
[DARP] AND either [DUI] or the lesser offense of [DWAI] as part of
the same criminal episode”; and, second, “We, the jury, do not so
find.”
¶ 13 After deliberating for almost seven hours, the jury sent a note
to the trial court stating that it had reached a verdict on the DARP
and DUR charges, but could not reach a verdict as to the DUI
he or she committed [one of the crimes
enumerated in section 42-2-206(1)(b)(I), C.R.S.
2013]. Additionally, with respect to the felony
offense, actual knowledge of the revocation as
a habitual offender is an essential
element . . . .
COLJI-Crim. 42:03 (2008). The prosecutor read this note during a
jury instructions conference in support of his position that the
“actual knowledge” element should be included in the DARP
instruction. The trial court asked the prosecutor if the aggravating
DUI offense should also be listed as an element in the jury
instruction, to which the prosecutor responded that it “was just
cleaner to do it with an interrogatory.” The defense did not object to
the use of the special interrogatory. However, no discussion
occurred as to whether ADARP was a sentence enhancer or a
separate offense. But see COLJI-Crim. A (2008) (stating, under
heading “Elements and Sentence Enhancers,” that, “[i]n general,
sentence enhancers are presented by way of interrogatory . . . and
elements are presented in the instruction defining the offense”).
6
charge. The jury did not complete the special interrogatory. The
court declared a mistrial on the DUI offense.
¶ 14 After the jury was dismissed, the prosecutor argued that the
jury had returned “only . . . half of one of the verdicts” because the
jury had found Wambolt guilty of DARP, but not ADARP. The trial
court asked the parties to address whether Wambolt could be
retried on the ADARP charge. After a hearing, the trial court asked
that the parties brief the issue.
¶ 15 In response, the People submitted a “Memorandum regarding
operation of the same criminal episode penalty enhancer under
C.R.S. § 42-2-206(1)(b)(I)(A) and (B).” The People argued that the
aggravated portion of ADARP was a sentence enhancer, not a
substantive element of the offense, and thus resubmitting the
ADARP charge to the jury would not violate the Double Jeopardy
Clauses. The People concluded, “There is only one offense: [DARP].”
However, in the alternative, the People argued that even assuming
DARP was a lesser included offense of ADARP, retrial on the ADARP
charge was permissible because the jury hung on that count.
¶ 16 In reply, Wambolt argued that DARP was a lesser included
offense of ADARP and that section 18-1-301(1)(a), C.R.S. 2017,
7
precluded retrial on a greater offense after conviction of a lesser
offense. However, Wambolt argued in the alternative that if the trial
court permitted the People to retry the ADARP count, the second
jury should be required to decide every element of the offense to
protect his right to have a single tribunal decide that charge. See
People v. Segovia, 196 P.3d 1126, 1133 (Colo. 2008) (“Double
jeopardy prevents the government from repeatedly trying to obtain a
conviction against an accused, but also protects a defendant’s right
to have a verdict returned by a particular jury.”).
¶ 17 In a thorough bench ruling issued before the second trial, the
trial court concluded that the enumerated aggravating offenses in
section 42-2-206(1)(b)(I), C.R.S. 2013, established a sentence
enhancer of DARP. It determined that Wambolt could be
constitutionally retried on ADARP and announced that the second
trial would be conducted in two phases. First, the jury would
decide only the DUI charge. If it returned a guilty verdict, the same
jury would then consider the ADARP charge, again via a special
interrogatory. The trial court stated:
[T]he jury will not be asked to find guilt or not
guilt as to DARP, but, rather, to make a
finding with regard to the interrogatory. So
8
they will be given the elements. They will be
told that they must find beyond a reasonable
doubt that the elements have been established
for purposes of a determination that -- of a
“yes” decision regarding the interrogatory, that
is, there has been proof beyond a reasonable
doubt the elements of DARP, of DUI, and that
they were part of the same criminal
proceeding. But the jury will not be asked to
return a verdict, again, regarding the offense of
DARP.
¶ 18 In October 2014, the second trial proceeded according to that
bench ruling. During the first “phase,” the jury found Wambolt
guilty of DWAI, a lesser included offense of DUI. Then, the trial
court revealed to the jury that it would consider a second charge,
which the trial court described as “the offense of driving after
revocation prohibited and driving with ability impaired as part of
the same criminal episode.”
¶ 19 Once again, the jury was not given an ADARP instruction.
Instead, the jury was given an instruction listing the elements of
DARP.2 Additionally, the jury was given an interrogatory, again
2 On September 1, 2014, — after Wambolt’s first trial was
completed — the Colorado Supreme Court’s Model Criminal Jury
Instructions Committee issued updated pattern instructions.
Relying on Griego v. People, 19 P.3d 1, 6 n.6 (Colo. 2001), and
People v. Wilson, 114 P.3d 19, 26 (Colo. App. 2004), the 2014 model
9
with two possible choices: first, “We, the jury, unanimously find
that the prosecution has proven beyond a reasonable doubt that
defendant committed all the elements of [DARP], as defined in [the
elemental instruction], and that the prosecution has proven beyond
a reasonable doubt that defendant committed [DARP] and [DWAI] as
a part of the same criminal episode”; and, second, “We, the jury, do
not so find.” The jury checked the first line of the special
interrogatory.
instructions stated that ADARP “is not a sentence enhancement
provision for the offense of [DARP]; it is a separate crime.” COLJI-
Crim. 42:06 cmt. 4 (2014); see also COLJI-Crim. 42:06 cmt. 4
(2017) (same). Thus, since September 2014, separate pattern
instructions have existed for DARP, COLJI-Crim. 42:05 (2017), and
ADARP, COLJI-Crim. 42:06.
During the first phase of Wambolt’s second trial, the parties
and the trial court discussed the 2014 model instructions. Defense
counsel noted that the instructions initially tendered by the
prosecutor were outdated, and several of the tendered instructions
had been replaced. However, the parties did not specifically discuss
the change in the DARP and ADARP pattern instructions. Neither
the parties nor the trial court addressed whether the jury for the
second trial should be given the new pattern ADARP instruction.
Further, near the close of the second phase of the second trial, the
trial court asked the parties whether they wanted to tender any
instructions in addition to the DARP instruction; in response,
neither party suggested, or even mentioned, the new ADARP pattern
instruction.
10
¶ 20 As a result, the trial court entered convictions for ADARP,
DUR, and DWAI.
B. Section 42-2-206
¶ 21 Section 42-2-206, the statute establishing DARP and ADARP,
has been amended since Wambolt was charged and tried.
¶ 22 The definition of DARP has not changed: “Any person found to
be an habitual offender, who operates a motor vehicle in this state
while the revocation of the department prohibiting such operation is
in effect, commits a class 1 misdemeanor.” § 42-2-206(1)(a)(I),
C.R.S. 2017; see also § 42-2-206(1)(a)(I), C.R.S. 2013.
¶ 23 In contrast, the definition of ADARP has been amended. Prior
to legislative amendments in 2015, the statute stated that a person
committed ADARP “if he or she is found to be an habitual offender
and thereafter operates a motor vehicle in this state while the
revocation of the department prohibiting such operation is in effect
and, as a part of the same criminal episode, also commits . . . DUI
or DUI per se; [or] DWAI.” § 42-2-206(1)(b)(I)(A)-(B), C.R.S. 2013.
Under that version of the statute, ADARP was a class 6 felony. §
42-2-206(1)(b)(II), C.R.S. 2013.
11
¶ 24 However, subsections 206(1)(b)(I)(A) and (B) were repealed in
2015. See Ch. 262, sec. 4, § 42-2-206(1)(b), 2015 Colo. Sess. Laws
996. Thus, under the statute in effect today, Wambolt could not
have been convicted of ADARP on the basis of the aggravating DWAI
offense. ADARP is now a class 1 misdemeanor. § 42-2-206(1)(b)(II),
C.R.S. 2017.
¶ 25 Additionally, a 2010 amendment to section 42-2-206 clarified
that, if a defendant was convicted of both ADARP and the
aggravating offense of DUI, DUI per se, or DWAI, the convictions
should not merge. Ch. 258, sec. 3, § 42-2-206(1)(b), 2010 Colo.
Sess. Laws 1158; see § 42-2-206(1)(b)(III), C.R.S. 2017. That
provision superseded several decisions from divisions of this court
that had held that the underlying aggravating offense should merge
into an ADARP conviction. See People v. Valdez, 2014 COA 125,
¶¶ 28-32, 411 P.3d 94, 100-01 (summarizing cases). This provision
was also amended in 2015 to address the repeal of section 42-2-
206(1)(b)(I)(A) and (B). Ch. 262, sec. 4, § 42-2-206(1)(b)(III), 2015
Colo. Sess. Laws 996; see § 42-2-206(1)(b)(III)(A) (“If a defendant is
convicted of [ADARP] based upon the commission of DUI, DUI per
se, or DWAI . . . as that crime existed before August 5, 2015 . . .
12
[t]he court shall convict and sentence the offender for each offense
separately . . . .”).
C. Case Law
¶ 26 Just as the relevant statutory law has changed, so too has the
relevant case law.
¶ 27 First, our appellate courts have disagreed whether the
aggravating offenses set forth in ADARP are sentence enhancers to
the offense of DARP or, in the alternative, whether they are
elements of the offense of ADARP.
¶ 28 In People v. Wilson, a division of this court rejected the
People’s contention that the aggravating offenses establishing
ADARP are “merely sentence enhancers” to the offense of DARP and
instead held that section 42-2-206(1)(b) sets forth the elements of
the separate crime of ADARP, which includes six enumerated
aggravating offenses. 114 P.3d 19, 26 (Colo. App. 2004). Thus, the
Wilson division concluded that the aggravating offenses listed in
that subsection are essential elements of the crime of ADARP. Id.
¶ 29 In contrast, another division agreed with the People that the
aggravating offenses were sentence enhancers of DARP. People v.
Zubiate, 2013 COA 69, ¶ 40, 411 P.3d 757, 765, aff’d, 2017 CO 17,
13
390 P.3d 394. Specifically, in Zubiate, the division held that,
because under the pre-2015 version of section 42-2-206 “the other
driving offenses listed in section 42–2–206(1)(b)(I) raise[d] DARP’s
offense level, they [we]re sentence enhancers.” Id. at ¶ 40, 411 P.3d
at 765. The supreme court affirmed the Zubiate division’s holding,
but did not address whether DARP and ADARP were distinct
offenses.3
¶ 30 Second, apart from the specific issue of whether DARP is a
lesser included offense of ADARP, the case law has changed with
regard to the test for whether one offense is a lesser included of
another. In 2017, the supreme court decided a series of cases,
including Zubiate, in an effort to clarify the statutory elements test.
The test, as stated in Reyna-Abarca v. People, is as follows: “[A]n
offense is a lesser included offense of another offense if the
elements of the lesser offense are a subset of the elements of the
3 In Griego, the supreme court noted in dicta that a 1999
amendment to section 42-2-206 created “the new offense” of
ADARP. 19 P.3d at 6 n.6. As described above, the model jury
instructions cite Griego for the proposition that DARP and ADARP
are separate offenses. However, aside from that footnote, the
supreme court did not address the relationship between DARP and
ADARP in Griego.
14
greater offense, such that the lesser offense contains only elements
that are also included in the elements of the greater offense.” 2017
CO 15, ¶ 3, 390 P.3d 816, 818; see also People v. Rock, 2017 CO
84, ¶ 16, 402 P.3d 472, 478 (clarifying the meaning of “contains” as
used in Reyna-Abarca), reh’g denied (Oct. 2, 2017).
¶ 31 Third, double jeopardy analysis from divisions of this court
has also seen recent change. Two decisions are of particular
relevance here. In People v. Aguilar, a division of this court held, as
a matter of first impression, that the Double Jeopardy Clauses do
“not bar retrial of a greater offense when a jury deadlocks on that
charge but convicts on a lesser included offense.” 2012 COA 181,
¶ 17, 317 P.3d 1255, 1259. More recently, in People v. Beller, the
division concluded that the Double Jeopardy Clauses did not bar
retrying a defendant on a felony murder charge when a first jury
acquitted him of the predicate offenses of aggravated robbery, but
hung on the felony murder count. 2016 COA 184, ¶ 2, 411 P.3d
1145, 1148. The Beller division relied on a “continuing jeopardy”
theory, reasoning that “the greater and lesser included offenses
were tried together under the same indictment, jeopardy terminated
as to one of the offenses, but did not end on the charge sought to be
15
retried.” Id. at ¶ 24, 411 P.3d at 1151 (quoting United States v.
Jose, 425 F.3d 1237, 1245 (9th Cir. 2005)). In so holding, the
Beller division rejected contrary federal case law that “a criminal
defendant may not be retried for a crime following an acquittal or
conviction on a lesser included or greater inclusive offense.” Id. at
¶ 20, 411 P.3d at 1150 (quoting Wilson v. Czerniak, 355 F.3d 1151,
1154 (9th Cir. 2004)).
D. Analysis
¶ 32 Wambolt contends that his right to be free from being twice
placed in jeopardy for the same offense was violated when the
People were permitted to retry him on the ADARP charge after the
first jury had convicted him of DARP. We agree. However, our
conclusion stems from the unusual circumstances of this case.
¶ 33 As they did in the trial court, both Wambolt and the People
focus their arguments on whether the aggravating offenses in
section 42-2-206(1)(b)(I) constitute a sentence enhancement of
DARP or whether DARP is a lesser included offense of ADARP.
¶ 34 Contrary to his argument in the trial court, Wambolt now
contends that the aggravated aspect of ADARP is a sentence
enhancer. “[A] sentence enhancement provision is not an element
16
of the offense charged.” Armintrout v. People, 864 P.2d 576, 580
(Colo. 1993). Thus, Wambolt argues, he was first convicted and
then retried for DARP because the aggravated aspect of ADARP is
not an element and thus there is no separate ADARP offense.
¶ 35 For their part, the People have also reversed course, and now
argue that DARP is a lesser included offense of ADARP. Relying on
Aguilar and Beller, the People contend that jeopardy did not
terminate on the greater offense of ADARP despite the first jury’s
guilty verdict on DARP. Thus, under their argument, retrial on
ADARP was permissible because the jury hung on that count.
¶ 36 We conclude that we need not enter that legal thicket because,
under the circumstances here, Wambolt was effectively tried for
DARP, not ADARP, during both trials. The parties’ arguments on
appeal are premised on the assumption that Wambolt was tried for
ADARP during both trials. However, a review of the record reveals
that Wambolt was effectively tried for DARP twice, and he was not
properly tried for ADARP.
¶ 37 Because of the way the case was presented during the first
trial, the first jury returned a verdict only on DARP. Although
Wambolt had ostensibly been charged with ADARP, not DARP, the
17
trial court told the jury that he had been charged with DARP. See
COLJI-Crim. E:02 (2017) (“The defendant is charged with
committing the crime[s] of [ ] . . . .”). Further, the jury was given
an elemental instruction on DARP. As noted, the jury was not given
an elemental instruction on ADARP.
¶ 38 It is well established that “the trial court has a duty to instruct
the jury properly on all of the elements of the offenses charged.”
People v. Bastin, 937 P.2d 761, 764 (Colo. App. 1996) (emphasis
added). Here, the trial court did not instruct the jury on the
elements of the charged offense: ADARP. The only “instruction”
even indicating that Wambolt had been charged with ADARP was
the special interrogatory, and even the interrogatory did not refer to
the offense as ADARP. The jury cannot decide a charge on which it
was not instructed. See Sanchez v. People, 2014 CO 29, ¶ 14, 325
P.3d 553, 558 (“While the precise format and wording chosen for an
elemental instruction and accompanying verdict form have never
been mandated as a matter of positive law, the model instructions
and verdict forms were developed for the specific purpose of
evidencing not only unanimous jury agreement concerning the
elements of the criminal offense in question, as a factual matter,
18
but also a unanimous decision to find the defendant guilty of that
particular offense.”).4
¶ 39 As a result, when the second phase of the second trial
repeated the same special interrogatory procedure, Wambolt was
again tried for DARP. Once again, the jury was instructed on the
elements of DARP, not ADARP. Because Wambolt stood convicted
4 The supreme court’s recent decision in In Re People v.
Stackhouse, 2018 CO 60, ___ P.3d ___, does not change our
analysis. There, the first jury had convicted the defendant of two
counts of sexual assault on a child (which were later vacated after a
Crim. P. 35(c) postconviction challenge), but did not find a pattern-
of-abuse sentence enhancer because the jury could not
unanimously agree that at least two out of five enumerated alleged
contacts had occurred. Id. at ¶ 2, ___ P.3d at ___. Before his
second trial, the defendant argued that the first jury had
necessarily determined that he did not commit two or more
incidents of sexual contact by virtue of its “no” response to the
sentence enhancer special interrogatory. See id. at ¶ 4, ___ P.3d at
___. Thus, the defendant contended, he could not be retried for
more than a single assault. Id. at ¶ 1, ___ P.3d at ___. The supreme
court disagreed and concluded that the defendant could
constitutionally be retried on charges of sexual assault on a child
based on several alleged incidents of sexual contact. See id. at ¶
13, ___ P.3d at ___.
Stackhouse is inapposite to our conclusion here because our
analysis does not hinge on interpreting the first jury’s failure to
complete the ADARP special interrogatory. We do not read the first,
uncompleted special interrogatory as impliedly acquitting Wambolt
of ADARP or as necessarily determining any fact. The special
interrogatories submitted to the juries in this case are relevant only
insofar as they demonstrate that the jury was effectively instructed
on, and returned guilty verdicts for, DARP at both trials.
19
of DARP at the time of the second trial, the second prosecution for
that same offense violated his rights under the Double Jeopardy
Clauses.
E. Plain Error
¶ 40 Having concluded that the trial court violated Wambolt’s right
to be free from being placed in jeopardy twice for the same offense,
we turn to whether that error requires us to vacate the ADARP
conviction entered after the second trial.
¶ 41 We “review trial errors of constitutional dimension that were
preserved by objection for constitutional harmless error.” Hagos v.
People, 2012 CO 63, ¶ 11, 288 P.3d 116, 119. In contrast, we
review unpreserved errors, both constitutional and
nonconstitutional, for plain error. Id. at ¶ 14, 288 P.3d at 120. In
Reyna-Abarca, the supreme court held that unpreserved double
jeopardy claims are subject to plain error review. ¶ 47, 390 P.3d at
823. In so holding, the Reyna-Abarca court rejected the defendants’
contentions that their double jeopardy claims fell within the narrow
class of structural errors. Id. at ¶ 46, 390 P.3d at 823.
¶ 42 In their briefing, neither Wambolt nor the People offer a
standard of reversal. Wambolt contends that this contention was
20
preserved, thus implying that we should review the error under the
constitutional harmless error standard. In their statement of the
standard of review, the People agree that Wambolt preserved this
claim.5
¶ 43 There is no dispute that in the trial court Wambolt vigorously
opposed retrial on the ADARP charge following the guilty verdict on
DARP. However, as noted above, Wambolt has adopted on appeal
an argument that is diametrically contrary to the argument he
made in the trial court. Thus, we will consider his argument
5 In a footnote in their answer brief, the People contend that to the
extent Wambolt argues it was error to resubmit the DARP elements
to the second jury, Wambolt either waived this claim or invited any
error because he requested that, in the event the trial court
permitted retrial on the ADARP charge, the second jury be
instructed on all of the ADARP elements. We reject the People’s
contentions. First, we conclude that Wambolt did not waive the
double jeopardy claim by asking for all of the ADARP elements to be
submitted to the second jury because, rather than relinquishing a
known right, Wambolt attempted to invoke his right to have a single
tribunal decide guilt. Cf. People v. Rediger, 2018 CO 32, ¶ 40, 416
P.3d 893, 902 (defining “waiver” as involving “intentional
relinquishment of a known right or privilege”). Similarly, we
conclude the error was not invited because Wambolt’s request was
an attempt to mitigate any harm in the event the trial court
permitted the People to retry the ADARP charge. See People v.
Pollard, 2013 COA 31M, ¶ 35, 307 P.3d 1124, 1132 (“[A] party does
not invite error when it responds to an error committed by the
opposing party.”) (citation omitted).
21
unpreserved and review for plain error. See Martinez v. People,
2015 CO 16, ¶ 14, 344 P.3d 862, 868 (“Plain error review is . . .
applicable when a party alters the grounds for his objection on
appeal.”).
¶ 44 We note that there is an apparent inconsistency between the
supreme court’s application of the plain error standard in Reyna-
Abarca, see ¶ 81, 390 P.3d at 828, and its application of that
standard in Scott v. People, 2017 CO 16, 390 P.3d 832. We discuss
the discrepancy in greater detail in our analysis below. Here, we
conclude that even under the stricter analysis applied in Scott, the
error was plain.
¶ 45 Under plain error review, we reverse only if the error is
“obvious and substantial,” Hagos, ¶ 14, 288 P.3d at 120, and “so
undermined the fundamental fairness of the trial itself so as to cast
serious doubt on the reliability of the judgment of conviction,” id.
(quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).
¶ 46 First, we conclude the error was obvious. An error is obvious
if it violates “a well-settled legal principle.” See People v. Pollard,
2013 COA 31M, ¶ 40, 307 P.3d 1124, 1133. We acknowledge that
the law on whether DARP was a lesser included offense of ADARP
22
has changed over the course of the last several years. Nevertheless,
we conclude the error here ran afoul of an established legal
principle, namely, that the Double Jeopardy Clauses “protect[]
against a second prosecution for the same offense after conviction.”
Brown, 432 U.S. at 165 (quoting Pearce, 395 U.S. at 717). Under
the unusual circumstances of this case, the trial court violated that
established principle by allowing the People to retry Wambolt —
ostensibly for ADARP but effectively for DARP — after the first jury
had returned a guilty verdict on the DARP charge. Thus, we
consider the error obvious.
¶ 47 Further, we conclude the error was substantial. “[T]he
prohibition against double jeopardy is a substantial right
guaranteed by the United States and Colorado Constitutions.”
People v. Friend, 2014 COA 123M, ¶ 75, ___ P.3d ___, ___ (cert.
granted in part Feb. 8, 2016). Thus, the double jeopardy violation
here constituted a substantial error. We similarly conclude that the
error significantly undermines the reliability of Wambolt’s ADARP
conviction. See id. at ¶ 76, ___ P.3d at ___.
¶ 48 As a result, we vacate the conviction for ADARP entered after
the second trial. Wambolt acknowledges that the proper remedy is
23
to reinstate the first jury’s verdict. See Morris v. Mathews, 475 U.S.
237, 247 (1986). Thus, we remand to the trial court to reinstate the
first jury’s judgment of conviction on DARP.
III. Merger
¶ 49 Wambolt contends that the trial court erred in entering
convictions for both DUR and DARP.6 We agree because we
conclude, based on our understanding of the most recent supreme
court jurisprudence, that DUR is a lesser included offense of DARP.
However, we conclude that the error here was not obvious, and
therefore we affirm both convictions.
A. Standard of Review
¶ 50 We review de novo whether merger applies to criminal
offenses. People v. Zweygardt, 2012 COA 119, ¶ 40, 298 P.3d 1018,
1026. An unpreserved double jeopardy claim is reviewable for plain
error. Reyna-Abarca, ¶¶ 45-46, 390 P.3d at 823. Plain errors are
“obvious and substantial,” Hagos, ¶ 14, 288 P.3d at 120, and “cast
6In a footnote in their answer brief, the People contend that
Wambolt’s merger claim would “evaporate[]” if Wambolt were
convicted of DARP rather than ADARP. We disagree, and therefore
address whether DUR merges with DARP.
24
serious doubt on the reliability of the judgment of conviction,” id.
(quoting Miller, 113 P.3d at 750).
B. Applicable Law
1. Merger
¶ 51 Unless a statute expressly authorizes multiple punishments
for the same criminal offense, the Double Jeopardy Clauses of the
United States and Colorado Constitutions prohibit “the imposition
of multiple punishments for the same criminal conduct.” Woellhaf
v. People, 105 P.3d 209, 214 (Colo. 2005); see U.S. Const. amends.
V, XIV; Colo. Const. art. II, § 18. Thus, absent express
authorization from the legislature, a defendant may not be
convicted of two offenses for the same conduct if the lesser offense
is included in the greater. § 18-1-408(1)(a), C.R.S. 2017.
2. DUR
¶ 52 A person commits the offense of DUR if he or she “drives a
motor vehicle or off-highway vehicle upon any highway of this state
with knowledge that the person’s license or privilege to drive, either
as a resident or a nonresident, is under restraint.” § 42-2-138(1)(a),
C.R.S. 2017. The punishment for the offense is greater if the
defendant’s license is under restraint “solely or partially because of
25
a conviction of DUI, DUI per se, DWAI, or [underage drinking and
driving].” § 42-2-138(1)(d)(I).
“Highway” means the entire width between the
boundary lines of every way publicly
maintained when any part thereof is open to
the use of the public for purposes of vehicular
travel or the entire width of every way declared
to be a public highway by any law of this state.
§ 42-1-102(43), C.R.S. 2017. As relevant here, “‘[m]otor vehicle’
means any self-propelled vehicle that is designed primarily for travel
on the public highways and that is generally and commonly used to
transport persons and property over the public highways.” § 42-1-
102(58). “‘Off-highway vehicle’ means any self-propelled vehicle . . .
which is designed primarily for use off of the public highways, and
which is generally and commonly used to transport persons for
recreational purposes.” § 33-14.5-101(3), C.R.S. 2017; see also
§ 42-1-102(63).
3. DARP
¶ 53 A person commits the offense of DARP if he or she is “found to
be an habitual offender, who operates a motor vehicle in this state
while the revocation of the department prohibiting such operation is
26
in effect.” § 42-2-206(1)(a)(I); see also § 42-2-202, C.R.S. 2017
(defining “habitual offender” as used in DARP statute).
4. DUR as Lesser Included Offense of DARP
¶ 54 As with Wambolt’s first double jeopardy claim, the relevant law
in this area has undergone significant recent change.
¶ 55 In People v. Rodriguez, a division of this court held that DUR is
a lesser included offense of DARP. 849 P.2d 799, 801 (Colo. App.
1992). The division there reasoned that DARP includes all of the
elements required by DUR, plus the additional element requiring
that the offense “was committed by a person whose privilege to
drive had been revoked as an habitual offender.” Id.
¶ 56 Rodriguez apparently governed this issue until another
division of this court held to the contrary in 2013. Zubiate, ¶ 49,
411 P.3d at 766. In Zubiate, the division concluded that the
offenses did not merge “because proving the DARP elements does
not necessarily establish DUR.” Id. The division based its
conclusion on two distinct grounds. First, DUR requires that the
defendant drive on “any highway” whereas DARP “is not limited to
the highway and applies to private ways as well.” Id. at ¶ 50, 411
P.3d at 767. Second, DUR requires proof that a defendant was
27
driving a motor vehicle, whereas DARP requires that the defendant
was operating a motor vehicle, and “one could operate a vehicle
without necessarily driving it.” Id. at ¶ 51, 411 P.3d at 767.
¶ 57 Then, in 2017, the supreme court decided a series of cases
refining the test for determining whether one offense is a lesser
included offense of another. First, in Reyna-Abarca, the supreme
court clarified the statutory elements test, holding that “an offense
is a lesser included offense of another offense if the elements of the
lesser offense are a subset of the elements of the greater offense,
such that the lesser offense contains only elements that are also
included in the elements of the greater offense.” ¶ 64, 390 P.3d at
826. In so holding, the supreme court “disavow[ed]” its prior
conclusion in Meads v. People, 78 P.3d 290 (Colo. 2003), and its
“strict elements test” under which one offense is a lesser included of
another only “if proof of facts establishing the statutory elements of
the greater offense necessarily establishes all of the elements of the
lesser offense.” Reyna-Abarca, ¶¶ 65-67, 390 P.3d at 826-27
(quoting Meads, 78 P.3d at 294).
¶ 58 Next, in Zubiate (which was decided on the same day as
Reyna-Abarca), the supreme court affirmed the conclusion of the
28
court of appeals that DUR is not a lesser included offense of
ADARP. Zubiate, ¶ 15, 390 P.3d at 397. We note that in Zubiate,
the supreme court analyzed whether DUR merged with ADARP, not
DARP. Id. at ¶ 13, 390 P.3d at 397. However, the supreme court’s
analysis did not hinge on — or even mention — the aggravated
aspect of ADARP. Thus, this distinction does not affect our analysis
of the case. The court reasoned:
DUR (the purported lesser included offense)
contains as an element “driving a motor
vehicle or off-highway vehicle.” In contrast,
aggravated DARP (the purported greater
offense) contains as an element “operating a
motor vehicle.”
....
Accordingly, the offense of DUR contains more
elements than the offense of aggravated DARP
(i.e., “motor vehicle or off-highway vehicle,” as
opposed to just “motor vehicle”). As a result,
by definition, DUR is not a subset of
aggravated DARP.
Id. at ¶¶ 18-20, 390 P.3d at 398. Thus, the supreme court’s
analysis did not rely on either of the two grounds on which the
division of this court based its opinion.
¶ 59 A few months later, the supreme court again revisited the
statutory elements test in Rock, ¶ 16, 402 P.3d at 478. The Rock
29
court clarified that, “[t]o the extent that a lesser offense is
statutorily defined in disjunctive terms, effectively providing
alternative ways of being committed, any set of elements sufficient
for commission of that lesser offense that is necessarily established
by establishing the statutory elements of a greater offense
constitutes an included offense.” Id.; see also Page v. People, 2017
CO 88, ¶ 11, 402 P.3d 468, 470 (“An offense can . . . be included in
another under the statutory elements test when there are multiple
ways to commit the lesser, not all of which are included within the
greater.”).
¶ 60 Applying that rule, the Rock court held that second degree
trespass was a lesser included offense of second degree burglary as
those offenses were charged in that case. ¶ 20, 402 P.3d at 479.
The supreme court reached that conclusion despite the fact that
“second degree criminal trespass may be committed in ways other
than unlawfully entering or remaining in or upon the premises of
another and, in fact, the premises at issue in criminal trespass
need not even be a building, much less a dwelling.” Id. at ¶ 20, 402
P.3d at 479. The court acknowledged that this analysis was at odds
with its reasoning in Zubiate, but did not expressly overrule that
30
opinion. Significantly, the Rock court held, “To the extent our
rationale in Zubiate . . . does not reflect the limitation that we adopt
today, it is disapproved.” ¶ 16 n.4, 402 P.3d 478 n.4
C. Analysis
¶ 61 Wambolt contends that DUR is a lesser included offense of
DARP and, as a result, the trial court erred in entering both
convictions. We agree.
¶ 62 In deciding whether DUR is a lesser included offense of DARP,
we must grapple with the effect of Rock on Zubiate. As discussed,
Zubiate relied on the inclusion of the “off-highway vehicle” language
in the DUR statute. § 42-2-138(1)(a). Based on that distinction, a
person could commit DUR, but not DARP, while driving an off-
highway vehicle; according to the Zubiate court, DUR was therefore
not a lesser included offense of DARP. See Zubiate, ¶ 19, 390 P.3d
at 398.
¶ 63 However, we conclude that the supreme court’s holding in
Zubiate is no longer good law after the Rock court disapproved its
rationale. As the Rock court clarified, “it is enough that any
particular set of elements sufficient for conviction of th[e lesser]
offense be . . . contained [in the statutory definition of the greater
31
offense].” ¶ 16, 402 P.3d at 478. One particular set of DUR
elements — a set including driving a motor vehicle — is contained in
DARP. Under Rock, it does not matter that an alternative set of
DUR elements — a set including driving an off-highway vehicle — is
not contained in DARP.
¶ 64 We apply the same analysis to the People’s argument that
DUR is not a lesser included offense of DARP because DUR requires
that the defendant drive on a “highway” whereas DARP is not so
limited.7 As the People state, a person could commit DARP by
7 The People cite section 42-2-206(1)(b)(III)(A), C.R.S. 2017, in
support of their related argument that the legislature has “made
clear” that alcohol-related offenses should not merge with ADARP.
While that provision expressly authorizes a court to enter a
conviction for DUI, DUI per se, or DWAI in addition to a conviction
for ADARP, it is inapposite in determining whether DUR merges
with ADARP or DARP. See People v. Zubiate, 2013 COA 69, ¶ 46,
411 P.3d 757, 766, aff’d, 2017 CO 17, 390 P.3d 394 (“The People
argue that defendant’s convictions do not merge because DUR
requires proof that the existing revocation be for a previous alcohol-
related offense. We are not persuaded . . . .”). Further, the People
concede that “the alcohol-related aspect of DUR is only a sentence-
enhancer.” Thus, to the extent they nevertheless argue that DUR
should not merge with ADARP because DUR is sometimes premised
on prior alcohol-related offenses, this concession undermines their
own argument. See Armintrout v. People, 864 P.2d 576, 580 (Colo.
1993) (“[W]e do not consider sentence enhancement provisions
when determining whether one offense is the lesser included of
another.”).
32
operating a motor vehicle on a private roadway and, in that
scenario, the defendant would not have committed DUR. However,
we conclude the People’s argument is foreclosed by Rock. Again, a
particular set of DUR elements — a set including driving on any
highway — is contained in DARP. Although a person could commit
DARP without committing DUR, he or she could not commit DUR
without committing DARP if the offense occurred on a “highway.”
¶ 65 Finally, Wambolt contends, the People concede, and we agree
that the “drive” element of DUR is included within the “operate”
element of DARP because a person who drives a car necessarily
operates it. See People v. Stewart, 55 P.3d 107, 115 (Colo. 2002),
as modified on denial of reh’g (Oct. 15, 2002) (noting, in reference to
different statutes, that “[t]he term ‘operate’ is somewhat broader”
than “drive”).
¶ 66 In sum, we conclude that DUR is a “subset” of DARP such that
a “set of elements sufficient for commission of that lesser offense
. . . is necessarily established by establishing the statutory elements
of” DARP, the greater offense. Rock, ¶ 16, 402 P.3d at 478.
33
D. Plain Error
¶ 67 Having determined that DUR is a lesser included offense of
DARP, we turn to whether the trial court plainly erred in this case
by entering both convictions based on the same criminal conduct
by Wambolt. We conclude that the error was not plain.
¶ 68 As noted, the supreme court in Reyna-Abarca held that an
unpreserved double jeopardy claim can be raised for the first time
on appeal. ¶¶ 45-46, 390 P.3d at 823. Further, the court
determined that such claims are ordinarily subject to plain error
review. Id. at ¶ 47, 390 P.3d at 823; see also id. at ¶ 98, 390 P.3d
at 832 (Coats, J., concurring in part and dissenting in part)
(agreeing with “the majority’s plain error analysis”).
¶ 69 However, in applying that standard of review, the Reyna-
Abarca court did not address the requirement, discussed below,
that a plain error be obvious. Instead, the supreme court majority
stated that “courts have invariably concluded that when a
defendant’s double jeopardy rights are violated for failure to merge a
lesser included offense into a greater offense, such a violation
requires a remedy.” Id. at ¶ 81, 390 P.3d at 828 (majority opinion).
In contrast, in Scott v. People — also decided the same day as
34
Reyna-Abarca — the supreme court held that, even assuming the
trial court had erred in entering convictions for both menacing and
aggravated robbery - menaced victim, any error was not plain.
Scott, ¶ 14, 390 P.3d at 835.
¶ 70 Thus, as we noted above, there is some tension between the
supreme court’s plain error review in these cases. To the extent
that Reyna-Abarca and Scott conflict in their application of the plain
error standard, we elect to follow the more traditional analysis in
Scott. As stated in Scott,
[t]o qualify as plain error, an error must
generally be so obvious that a trial judge
should be able to avoid it without the benefit of
an objection. For an error to be this obvious,
the action challenged on appeal ordinarily
“must contravene (1) a clear statutory
command; (2) a well-settled legal principle; or
(3) Colorado case law.”
¶ 16, 390 P.3d at 835 (citation omitted) (quoting Pollard, ¶ 40, 307
P.3d at 1133). In contrast, an error is not obvious when “either [the
supreme] court or a division of the court of appeals has previously
rejected an argument being advanced by a subsequent party who is
asserting plain error.” Id. at ¶ 17, 390 P.3d at 835.
35
¶ 71 Under that standard, we conclude that the error here was not
plain because it was not obvious. Wambolt was sentenced in
January 2015. At that time, the state of the law was unclear, not
only as to whether DUR merged with DARP, but even as to the
general test to apply in determining whether one offense was a
lesser included of another.
¶ 72 Moreover, as we have discussed, the law in this area has
changed even since Wambolt filed his opening brief in this court.
Given the Rock court’s footnote “disapprov[ing]” of Zubiate, the law
remains somewhat unsettled. Rock, ¶ 16 n.4, 402 P.3d at 478 n.4.
Thus, Wambolt’s reliance on Henderson v. United States, 568 U.S.
266 (2013), is unavailing. In Henderson, a substantive legal
question was unsettled at the time the trial court acted, but
“[b]efore the case was final and at the time of direct appellate
review, . . . the question had become settled in the defendant’s
favor, making the trial court’s error ‘plain’ — but not until that later
time.” Id. at 269; see also Romero v. People, 2017 CO 37, ¶ 1 n.1,
393 P.3d 973, 975 n.1 (noting that supreme court granted certiorari
to review whether court of appeals had misapplied Henderson;
36
however, the supreme court did not address that issue). Those are
clearly not the circumstances here.
¶ 73 In light of the conflicting decisions addressing the issue of
merger in this context, the trial court did not plainly err in entering
the DUR and DARP convictions.
IV. Motion to Suppress
¶ 74 Wambolt finally contends that the trial court erred in denying
his motion to suppress statements he made after being detained.
We disagree.
A. Additional Facts
¶ 75 Police officers were dispatched to Agate in response to a report
of a man who, while driving a motorcycle, had chased the reporting
party for a few blocks and possibly brandished a firearm. The
responding officers, one sergeant and one deputy, were in a
neighboring town and did not arrive in Agate until approximately
twenty-five to forty minutes later. While the officers were en route,
the 911 dispatcher communicated that the reporting party had
called back to clarify that the suspect might not have been armed.
¶ 76 The sergeant saw a motorcycle parked in front of a house
about a block away from where the reporting party lived. A man
37
was leaning into a car parked by the motorcycle. The sergeant drew
his weapon, ordered the man to put his hands out, handcuffed him,
and put him in the back of the patrol car. The deputy was acting as
cover and had his rifle in low ready position.
¶ 77 Meanwhile, Wambolt and a woman started to come out of the
house and attempted to tell the officers that they had arrested the
wrong person, but the sergeant ordered them to go back inside.
They initially complied, but left the house again after a few minutes
and came into the front yard. The sergeant ordered Wambolt to
stop and asked his consent to pat him down. Wambolt consented.
The sergeant frisked Wambolt and found no weapons.
¶ 78 The sergeant then told Wambolt that the officers were
investigating a “possible brandishing” of a weapon that involved a
motorcycle, and Wambolt said that he had been the one riding the
motorcycle. Although the sergeant found Wambolt compliant and
“very easy to get along with,” he handcuffed him and placed him in
the back of the deputy’s patrol car.
¶ 79 After Wambolt spent approximately eleven minutes alone in
the patrol car, the officers took him out of the vehicle and removed
the handcuffs. The deputy then advised Wambolt of his rights
38
under Miranda v. Arizona, 384 U.S. 436 (1966), which Wambolt
waived. In response to the deputy’s questions, Wambolt admitted
that he had been “drinking heavily,” but said he had stopped
drinking about an hour before he had driven the motorcycle. Both
officers observed that Wambolt was slurring his speech, had red
eyes, and smelled of alcohol.
¶ 80 Before trial, Wambolt moved to suppress the statements he
made on the night of his arrest. He argued that his statements
were the fruit of an unlawful detention and, as a result, should
have been suppressed. He also argued that his statements were
taken in violation of his Miranda rights. After a hearing, the trial
court denied the motion, concluding that the officers had conducted
a constitutional investigatory stop and that Wambolt voluntarily,
knowingly, and intelligently waived his Miranda rights and made
the statements voluntarily.
B. Standard of Review
¶ 81 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 fact
39
when they are supported by sufficient competent evidence in the
record, we review conclusions of law de novo. Id.
C. Applicable Law
¶ 82 The United States and Colorado Constitutions prohibit
unreasonable searches and seizures. U.S. Const. amends. IV, XIV;
Colo. Const. art. II, § 7. “The determination of whether a search or
seizure is reasonable depends upon the reason for and the extent of
the intrusion.” People v. Archuleta, 980 P.2d 509, 512 (Colo. 1999).
¶ 83 Thus, a police officer can lawfully conduct an investigatory
detention if three criteria are met: “(1) the officer must have a
reasonable suspicion that criminal activity has occurred, is taking
place, or is about to take place; (2) the purpose of the intrusion
must be reasonable; and (3) the scope and character of the
intrusion must be reasonably related to its purpose.” People v.
Padgett, 932 P.2d 810, 814-15 (Colo. 1997) (quoting People v.
Sutherland, 886 P.2d 681, 686 (Colo. 1994)).
¶ 84 However,
when officers use force typically associated
with an arrest — such as the drawing of
weapons, physical restraint, and the use of
handcuffs — the prosecution may not
characterize the encounter as an investigatory
40
stop unless specific facts or circumstances
exist that render the use of such force a
reasonable precaution for the protection and
safety of the officers.
King, 16 P.3d at 810. If the People fail to prove that the use of force
was necessary for officer safety, the encounter must be
characterized as an arrest and, thus, must be supported by
probable cause. See id. at 817.
¶ 85 Evidence obtained as a result of an illegal arrest must
generally be suppressed. Id. at 813. However, exceptions to the
exclusionary rule “justify admission of evidence even though it is
derived from information obtained” through unconstitutional
means. People v. Schoondermark, 759 P.2d 715, 718 (Colo. 1988).
One such exception is attenuation. Id. Under that doctrine, the
People must prove that “the connection between the initial illegality
and the evidence has become so attenuated as to dissipate the
taint.” Id.; see Brown v. Illinois, 422 U.S. 590, 604 (1975). Three
primary factors are relevant in determining whether evidence is
sufficiently attenuated: “[t]he temporal proximity of the arrest and
the confession, the presence of intervening circumstances, and,
particularly, the purpose and flagrancy of the official misconduct.”
41
People v. Lewis, 975 P.2d 160, 173 (Colo. 1999) (quoting Brown,
422 U.S. at 603-04).
D. Analysis
¶ 86 Wambolt contends that the statements he made after being
advised of his Miranda rights should have been suppressed because
they were the fruit of his unconstitutional seizure.8 Although we
agree that Wambolt was unconstitutionally arrested, we
nevertheless conclude that the statements were admissible because
they were sufficiently attenuated from the unlawful arrest.
¶ 87 When the officers put Wambolt in handcuffs at gunpoint and
placed him in the back of the patrol car, they had already frisked
both men on the scene and determined that neither had a weapon.
Moreover, both men had been compliant and the sergeant said that
Wambolt was “very easy to get along with.” At that point, no
specific facts supported a reasonable belief that a threat to officer
safety required the use of handcuffs and weapons. See King, 16
8 On appeal, Wambolt does not challenge the admission of his
statement that he was the man riding the motorcycle. That
statement was voluntarily made to the sergeant before Wambolt was
seized. Rather, he challenges only his post-Miranda statements
concerning his drinking before riding the motorcycle.
42
P.3d at 810. Thus, in our view, the seizure constituted an arrest.
Because the People do not argue that the officers had probable
cause to arrest Wambolt, we conclude that his arrest was
unconstitutional.
¶ 88 However, we further conclude that Wambolt’s statements were
attenuated from his illegal arrest and thus admissible.9 Although
the time between the illegal arrest and the interrogation was
relatively brief — approximately eleven minutes — Wambolt was
alone during that time and not subjected to questioning. See
Lewis, 975 P.2d at 174 (“The first factor, temporal proximity, is the
least determinative factor involved.”). Further, intervening
circumstances significantly attenuated the taint of the illegal arrest.
Before interrogating Wambolt, the officers removed him from the
9 We note that the People invoke the inevitable discovery doctrine,
arguing that the officers would have inevitably discovered and
talked to Wambolt because he was on the scene and because they
would have eventually realized they had first arrested the wrong
man. We do not believe that doctrine is applicable here. “The
inevitable discovery exception does not invite speculation about
possible series of events under which the evidence may have been
discovered, but requires an affirmative showing of a reasonable
probability that the evidence would inevitably be discovered through
lawful means already initiated when the seizure was made.” People
v. Syrie, 101 P.3d 219, 223 (Colo. 2004) (emphasis added). There
was no such showing here.
43
patrol car and removed his handcuffs. The officers had also
holstered their weapons at that point. Moreover, Wambolt was
advised of his rights under Miranda and voluntarily waived them.
Finally, we acknowledge that the officers’ actions were aimed at
investigating a possible weapons offense and any misconduct was
not flagrant.
¶ 89 Thus, we conclude that Wambolt’s statements were
admissible, and therefore we affirm the trial court’s denial of the
motion to suppress.
V. Conclusion
¶ 90 We affirm the judgment of conviction for DWAI and DUR,
vacate the conviction for ADARP, and remand for the trial court to
reinstate the DARP conviction and for correction of the mittimus
accordingly.
JUDGE BERNARD and JUDGE WELLING concur.
44