People v. Perez , 2019 COA 48 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
April 4, 2019
2019COA48
No. 15CA0546, People v. Perez — Criminal Law — Search and
Seizure — Custodial Interrogations — Miranda — Public Safety
Exception; Constitutional Law — Fifth Amendment — Right
Against Self-Incrimination
A division of the court of appeals considers whether the public
safety exception to Miranda applies when an officer found shotgun
shells but no shotgun on the defendant, who had fled from another
officer, and then asked the defendant where the gun was. Here,
there was no information that the defendant was armed or that the
officer was responding to a report of a crime involving a weapon.
Based on the facts of this case, a majority of the division concludes
that there was an insufficient basis to inquire about a weapon
before the Miranda advisement was given, and the defendant’s
motion to suppress should have been granted. Nonetheless, the
division ultimately finds that the error was harmless beyond a
reasonable doubt. The special concurrence would conclude that
the officer’s inquiry fell within the public safety exception.
COLORADO COURT OF APPEALS 2019COA48
Court of Appeals No. 15CA0546
City and County of Denver District Court No. 14CR781
Honorable Ann B. Frick, Judge
Honorable Elizabeth A. Starrs, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Marcus Perez,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TOW
Taubman, J., concurs
Berger, J., specially concurs
Announced April 4, 2019
Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Laura E. Schwartz, Alternate Defense Counsel, Esteban A. Martinez, Alternate
Defense Counsel, Longmont, Colorado, for Defendant-Appellant
¶1 Defendant, Marcus Perez, appeals the judgment of conviction
entered on a jury verdict finding him guilty of second degree assault
on a peace officer and four counts of possession of a dangerous
weapon by a previous offender. We affirm in part, reverse in part,
and remand with directions.
I. Background
¶2 In February 2014, police officers conducted a traffic stop of an
SUV for various traffic infractions. The officers noticed that the
occupants were acting suspiciously, appeared more nervous than
the officers would have expected, and may have been attempting to
conceal something. An officer contacted the passenger (later
identified as Perez), who provided a name and date of birth. When
the officer found no record of such an individual, he asked Perez to
step out of the car. Perez complied, but immediately started
running.
¶3 Perez ran across a very busy street through rush-hour traffic,
and through residential and commercial areas, while the officers
pursued him. Eventually, officers caught up to him in a residential
backyard. At this point, additional police officers arrived to assist.
Perez took a fighting stance and began to resist the officers’ efforts
1
to take him into custody. During the fracas, Perez broke an officer’s
nose. Another officer injured himself during the chase.
¶4 After handcuffing Perez, an officer frisked him and found two
shotgun shells in his pocket. Before advising him of his Miranda
rights, the officer asked Perez where the gun was. Perez responded
that he had thrown it away. When asked where he had thrown it,
Perez’s response was unintelligible. The officer did not pursue the
inquiry further.
¶5 At some point, other officers searched the car, though it is
unclear from the record when the search occurred in relation to
Perez’s statement. During the search, the officers found a short
shotgun1 between the center console and the passenger seat.
¶6 The prosecution later charged Perez with two counts of second
degree assault on a peace officer and eight counts of possession of a
weapon by a previous offender (POWPO). All eight POWPO charges
involved the same short shotgun; there were two separate charges
(one alleging possession of a firearm, and one alleging possession of
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1 A short shotgun is “a shotgun having a barrel or barrels less than
eighteen inches long or an overall length of less than twenty-six
inches.” § 18-12-101(1)(i), C.R.S. 2018.
2
a “dangerous weapon” 2) connected to each of four prior felony
convictions. Before trial, the prosecution dismissed one of the
second degree assault charges.
¶7 A jury convicted Perez of the remaining assault charge and the
four POWPO charges involving a dangerous weapon. At sentencing,
Perez admitted that he had three prior felony convictions, and the
parties stipulated that Perez would receive a twenty-four-year
prison sentence in this case, a concurrent six-year prison sentence
in a separate case, and a third case would be dismissed in its
entirety. At the sentencing hearing, the court sentenced Perez to
twenty-four years in prison for second degree assault and four years
in prison for each of Perez’s four POWPO counts. The remaining
POWPO charges were dismissed. The court ordered that all of the
sentences would run concurrently.
———————————————————————
2 “[T]he term ‘dangerous weapon’ means a firearm silencer, machine
gun, short shotgun, short rifle, or ballistic knife.” § 18-12-102(1),
C.R.S. 2018. If the weapon possessed by a previously convicted
felon is a dangerous weapon, the POWPO charge is elevated from a
class 6 felony to a class 5 felony. § 18-12-108(2)(a), (b), C.R.S.
2018.
3
II. Miranda Violation
¶8 Perez first contends that the trial court erred by denying his
motion to suppress incriminating statements he made after his
arrest and before police advised him of his Miranda rights. We
conclude that, although admission of the statement was erroneous,
reversal is not required.
A. Standard of Review
¶9 Whether custodial interrogation has occurred in violation of
Miranda is a mixed question of fact and law. People v. Barraza,
2013 CO 20, ¶ 15. We defer to the trial court’s findings of historical
fact and will not overturn them if they are supported by competent
evidence in the record. Id. We then review de novo the ultimate
legal effect of those facts, such as whether the defendant was in
custody, People v. Matheny, 46 P.3d 453, 459 (Colo. 2002), or
whether a particular inquiry constituted interrogation, People v.
Gonzales, 987 P.2d 239, 242 (Colo. 1999). Although no Colorado
appellate court has clearly stated that whether the public safety
exception applies is a legal determination, other courts have done
so. See United States v. Liddell, 517 F.3d 1007, 1009 (8th Cir.
2008). We agree and review the issue de novo.
4
¶ 10 “When reviewing a trial court’s suppression ruling, appellate
courts must only consider evidence presented at the suppression
hearing.” People v. Bryant, 2018 COA 53, ¶ 19.
B. Applicable Law
¶ 11 The Fifth Amendment of the United States Constitution
provides that no person shall be compelled to be a witness against
himself in a criminal case. Police must warn a person of his rights
against self-incrimination when he is subjected to custodial
interrogation. See Miranda v. Arizona, 384 U.S. 436, 478 (1966);
People v. Theander, 2013 CO 15, ¶ 20. Absent such warnings, the
prosecution generally cannot introduce in its case-in-chief any
statement obtained from a suspect as a result of custodial
interrogation. Matheny, 46 P.3d at 462.
¶ 12 However, in some circumstances, police may question a
suspect in custody who has not yet received a Miranda warning
about the presence of weapons that could immediately endanger
them or members of the public. See New York v. Quarles, 467 U.S.
649, 657-58 (1984); see also People v. Mullins, 188 Colo. 23, 27,
532 P.2d 733, 735 (1975). This exception to Miranda, called the
public safety exception, applies most readily in the context of
5
immediate, on-scene investigations of a crime. See People v.
Requejo, 919 P.2d 874, 879 (Colo. App. 1996). The determinative
question is whether the officer’s questioning related to an
objectively reasonable need to protect the police or the public from
immediate danger associated with a weapon. See Quarles, 467 U.S.
at 655; People v. Ingram, 984 P.2d 597, 605 (Colo. 1999).
¶ 13 In Quarles, for example, a police officer pursued a rape
suspect who had been described by the victim as carrying a gun.
467 U.S. at 651-52. The officer chased the suspect through a
grocery store, ultimately apprehending him in the rear of the store.
Id. at 652. When the officer frisked the suspect, he discovered that
the defendant was wearing an empty shoulder holster. Id. After
handcuffing him, but before advising him of his Miranda rights, the
officer asked the suspect where the gun was located, and the
suspect told him. Id.
¶ 14 The defendant’s statements about the gun were excluded at
trial because they were elicited before he had received a Miranda
warning. The Supreme Court ultimately held that the initial
statement indicating the location of the gun was admissible under a
public safety exception, despite the officer failing to advise the
6
defendant of his Miranda rights. Id. at 657-58. It explained, “the
need for answers to questions in a situation posing a threat to the
public safety outweighs the need for the prophylactic rule protecting
the Fifth Amendment’s privilege against self-incrimination.” Id. at
657.
C. Application
¶ 15 Here, there is no dispute that Perez was in custody when the
officer asked about the gun. Nor do the People argue that the
inquiry about the gun was not interrogation. We thus turn to the
applicability of the public safety exception.
¶ 16 The public safety exception has been discussed sparingly in
Colorado case law. In Requejo, officers were responding to a bar
fight during which someone had been stabbed. 919 P.2d at 878.
Within two minutes of receiving the dispatch and a description of
the suspect’s vehicle leaving the scene, officers located and stopped
the vehicle. Id. An officer approached the vehicle and asked where
the knife was. Id. A division of this court held that because the
officer had a legitimate concern for her safety, the inquiry was
within the scope of the public safety exception. Id.
7
¶ 17 In People v. Janis, a division of this court held that the public
safety exception applied when officers responded to a report of a
stabbing, encountered the defendant shortly thereafter near the
location of the stabbing, had reason to believe that the defendant
was involved in the crime, and then asked the defendant, “Do you
have any weapons on you?” 2016 COA 69, ¶ 56, rev’d on other
grounds, 2018 CO 89.
¶ 18 In People v. Wakefield, a division of this court held that the
public safety exception applied when officers responded to a report
of a shooting, found the defendant at the scene of the crime, and
asked the defendant about the extent of his injuries and whether
there was anyone else in the residence. 2018 COA 37, ¶ 57. There,
“the officers, having just arrived on the scene, had a legitimate
concern that there could be other armed suspects or injured victims
in the vicinity.” Id.
¶ 19 In Quarles, Requejo, Janis, and Wakefield, the very nature of
the dispatch informed the officers that a weapon might be present;
in each case, someone had already reported to the police that a
weapon was involved. Here, in contrast, when the officer first
contacted Perez, he had no information suggesting that Perez was
8
armed. Nor was the officer responding to a report of a crime
involving a weapon. Only after the officer found shotgun shells in
Perez’s pocket did the officer become concerned that Perez may
have disposed of a shotgun while being chased through residential
and commercial areas.
¶ 20 Although bullets may suggest possession of a gun, the
suggestion in this case was not so strong as to give the officer “every
reason to believe” that Perez had just discarded a shotgun while
being chased. Quarles, 467 U.S. at 657. Moreover, it is notable
that the record does not reflect any other observation by the officers
during their contact with or pursuit of Perez that would suggest he
discarded or abandoned a shotgun. For example, there is no
evidence that as he fled he appeared to be concealing anything. No
officer testified that he appeared to discard anything during his
flight. And nothing in the record would indicate that his clothes
were capable of hiding a weapon of that size.
¶ 21 We do not suggest that purely circumstantial evidence that a
weapon may be present will never be enough to justify such an
inquiry. Nor do we suggest that the possible presence of a weapon
must always be known to the officers before contacting the suspect.
9
We only hold that, on the facts of this case, where the sole
suggestion that Perez may have discarded or abandoned a shotgun
was two shotgun shells in his pocket, there was an insufficient
basis to inquire about a weapon before the Miranda advisement was
given. Because the officer’s question was not required to protect
the police or public from immediate danger associated with a
weapon, the public safety exception did not apply, and the trial
court erred in denying the motion to suppress the incriminating
statement. 3
¶ 22 In the motion to suppress, Perez also sought suppression of
“all evidence flowing from that statement.” To the extent Perez is
arguing that the gun itself should have been suppressed as a result
of the Miranda violation, we disagree.
¶ 23 First, the search of the car was not testified to at the
suppression hearing. Therefore, whether the search of the car
derived from Perez’s statement is unclear. Second, even if it did,
———————————————————————
3 We are, of course, mindful of the importance of officer safety.
Further, we do not mean to suggest that the officer in this case
acted in bad faith or with any other improper motive. However, the
fact that the officer did not inquire any further into the location of
the gun would appear to demonstrate that the officers did not
consider themselves in substantial danger.
10
the fruit of the poisonous tree doctrine does not apply to Miranda
violations. People v. Bradshaw, 156 P.3d 452, 459 (Colo. 2007)
(“[B]ecause Miranda violations do not rise to actual coercion in
violation of the Fifth Amendment, the fruit of the poisonous tree
doctrine does not apply.”). For both of these reasons, the trial court
did not err in denying the motion to suppress all evidence flowing
from the statement.
¶ 24 Having concluded that admitting Perez’s statement that he
discarded the gun was error, we turn to whether the error warrants
reversal. We review preserved trial errors of constitutional
dimension for constitutional harmless error. Hagos v. People, 2012
CO 63, ¶ 11. Under this standard, we must reverse unless the
error was harmless beyond a reasonable doubt, meaning there is no
reasonable possibility that the error might have contributed to the
conviction. Id. We conclude the error was harmless beyond a
reasonable doubt.
¶ 25 The shotgun was located in the car; thus, Perez had not
thrown it away. The evidence of Perez’s possession of the weapon
was overwhelming without regard to the statement. He possessed
ammunition for the gun, the gun was closest to where he was
11
seated in the car, and he fled from the police upon contact.
Significantly, the prosecution did not even mention Perez’s
statement during closing argument. There is no reasonable
possibility that the statement contributed to the verdict. Therefore,
we conclude that the error was harmless beyond a reasonable
doubt.
III. Double Jeopardy
¶ 26 Perez also contends that the trial court erred in allowing the
jury to convict him of four counts of POWPO when the charges
derived from the same weapon. We agree.
A. Standard of Review
¶ 27 Unpreserved double jeopardy claims may be raised for the first
time on appeal, and we review such claims for plain error. Reyna-
Abarca v. People, 2017 CO 15, ¶ 2. Plain error is error that is
obvious and substantial, and that casts serious doubt on the
reliability of the judgment of conviction. Hagos v. People, 2012 CO
63, ¶ 14. Because whether merger applies to specific criminal
offenses presents an issue of statutory interpretation, we review the
matter de novo. People v. Zweygardt, 2012 COA 119, ¶ 10.
12
B. Applicable Law
¶ 28 In Colorado, a person commits the crime of POWPO if he or
she knowingly possesses a firearm subsequent to a felony
conviction. § 18-12-108, C.R.S. 2018. A person with multiple prior
felony convictions may not be convicted of multiple POWPO counts
for possession of a single gun during a single incident. People v.
DeWitt, 275 P.3d 728, 736-37 (Colo. App. 2011).
C. Application
¶ 29 Because the necessity of merging these convictions is
established in case law, the error was obvious. And because double
jeopardy prohibits more than one conviction for the same offense,
the error was substantial. Finally, the reliability of the judgment of
conviction is clearly in doubt because the trial court failed to merge
the convictions appropriately. The error here was plain.
¶ 30 We therefore reverse this portion of the judgment and remand
the case to the trial court to vacate Perez’s POWPO convictions and
sentences on counts four, five, and six.
IV. Due Process Challenge
¶ 31 Perez lastly contends that the trial court erred by allowing the
prosecution to proceed when law enforcement’s outrageous conduct
13
violated his federal and state rights to due process. Specifically,
Perez alleges that (1) the traffic stop should have ended once the
officer “cleared the driver”; (2) the officers had no basis for detaining
and chasing him; and (3) the officers beat Perez after he put his
hands up, “a universal sign of surrender.”
A. Standard of Review
¶ 32 We review a trial court’s dismissal of a case based on a finding
of outrageous governmental conduct for an abuse of discretion.
People v. McDowell, 219 P.3d 332, 336 (Colo. App. 2009). But see
People v. Burlingame, 2019 COA 17, ¶¶ 28-34 (Tow, J., specially
concurring) (positing that the proper standard of review should be
de novo). However, this claim is also raised for the first time on
appeal. Because this claim was not preserved, we review for plain
error. People v. Rediger, 2018 CO 32, ¶ 40.
B. Law and Application
¶ 33 The Supreme Court has recognized certain circumstances in
which the conduct of police officers may be so outrageous as to
violate a defendant’s right to due process. United States v. Russell,
411 U.S. 423 (1973). “Outrageous governmental conduct is
conduct that violates fundamental fairness and is shocking to the
14
universal sense of justice.” People v. Medina, 51 P.3d 1006, 1011
(Colo. App. 2001), aff’d sub nom. Mata-Medina v. People, 71 P.3d
973 (Colo. 2003).
¶ 34 However, instances in which trial courts have found
outrageous governmental conduct in Colorado are rare. Compare
People v. Auld, 815 P.2d 956, 959 (Colo. App. 1991) (finding
outrageous governmental conduct and affirming the dismissal of a
case based on a fictitious complaint filed against a fictitious
defendant in order to investigate a later-retained defense attorney),
with People in Interest of M.N., 761 P.2d 1124, 1129 (Colo. 1988)
(finding no outrageous governmental conduct when an undercover
officer convinced a minor to steal tires and obtain marijuana for
him and then shared the marijuana with the minor), and People v.
Morley, 725 P.2d 510, 515 (Colo. 1986) (finding no outrageous
governmental conduct when an undercover operation discovered
evidence linking an attorney with prostitution-related activity).
¶ 35 Perez has not cited to any authority, nor have we found any,
suggesting the conduct that occurred here was outrageous. The
due process claim of outrageous governmental conduct is
“interwoven with the entrapment defense.” M.N., 761 P.2d at 1131
15
(quoting United States v. Szycher, 585 F.2d 443, 445 (10th Cir.
1978)). Nothing in Perez’s allegations indicates the police
encouraged or participated in Perez’s commission of the crimes for
which he was prosecuted. Perez gave what appeared to the officer
to be a false name, then fled. Officers pursued him and eventually
apprehended him. Upon apprehension, Perez fought the officers,
assaulting one of them. Perez chose to flee by running across a
major thoroughfare in busy traffic and elected to fight the arresting
officers; these were decisions entirely of his own making.
¶ 36 Perez has not shown any error, let alone plain error.
V. Conclusion
¶ 37 The judgment is reversed in part and remanded with
directions to vacate Perez’s POWPO convictions and sentences in
counts four, five, and six and to correct the mittimus accordingly.
The judgment is affirmed in all other respects.
JUDGE TAUBMAN concurs.
JUDGE BERGER specially concurs.
16
JUDGE BERGER, specially concurring.
¶ 38 In New York v. Quarles, 467 U.S. 649 (1984), the United States
Supreme Court recognized the “public safety exception” to the rule
of Miranda v. Arizona, 384 U.S. 436 (1966). Reasoning that the
“need for answers to questions in a situation posing a threat to the
public safety outweighs the need for the prophylactic rule protecting
the Fifth Amendment’s privilege against self-incrimination,” the
Court held that a suspect’s answers to questions concerning the
location of an abandoned weapon were admissible even though the
suspect was not given Miranda warnings. Quarles, 467 U.S. at 657;
see also People v. Ingram, 984 P.2d 597 (Colo. 1999); People v.
Allen, 199 P.3d 33 (Colo. App. 2007).
¶ 39 Quarles has spawned many perplexing questions for courts —
the permissible timing of unwarned interrogations, the permissible
length of such interrogations, the permissible subjects of such
inquiries, and the effect of the suspect’s invocation of the right to
counsel. See Brian Gallini, The Languishing Public Safety Doctrine,
68 Rutgers U. L. Rev. 957 (2016).
17
¶ 40 But this is not such a case. This case, instead, presents a
straightforward application of Quarles, and I am convinced that the
majority incorrectly applies it.
¶ 41 When the police discovered live shotgun shells in Perez’s
pockets, any reasonable police officer (or other person) would have
inferred from that discovery that there was a strong likelihood that
Perez had access to a gun during the criminal episode. Once the
officer drew that entirely reasonable inference, the officer was
entitled, under the public safety exception, to ask Perez where the
gun was, and neither Miranda nor the Fifth Amendment protections
against self-incrimination were impediments to the admission of
Perez’s response at his criminal trial. Quarles, 467 U.S. at 658-60.
Unlike in either Ingram, 984 P.2d 597, or Allen, 199 P.3d 33, the
officer did nothing more than ask about the location of the weapon.
¶ 42 As I read the majority opinion, it concludes that the public
safety exception was inapplicable for two reasons. First, the
majority correctly notes that the police did not know before
discovering the shotgun shells that Perez had, or might have had, a
gun. Second, the majority evidently reasons that finding two live
shotgun shells in the suspect’s pockets is insufficient to raise a
18
reasonable inference that Perez had, or recently had access to, a
gun.
¶ 43 With respect to the majority’s first point, I agree with its
factual observation, but I believe it is irrelevant to the application of
the public safety exception. I have not found, and the majority has
not cited, a single case that turns on whether the police discover
that the suspect might have access to a gun before or after the
suspect’s apprehension. More important than the absence of such
a case is the underlying rationale for the public safety doctrine. As
the name of the exception well illustrates, the purpose of the
exception is to protect both officers and public safety. When the
police discover that the person they have apprehended has or had
access to a gun is completely irrelevant to whether such a weapon
is a danger to the police or to the public. 1
———————————————————————
1
The cases are clear that the fact that the suspect is in custody and
handcuffed does not prevent the application of the public safety
doctrine. New York v. Quarles, 467 U.S. 649, 655 (1984); United
States v. DeJear, 552 F.3d 1196, 1201 (10th Cir. 2009); People v.
Janis, 2016 COA 69, ¶¶ 52-53, rev’d on other grounds, 2018 CO 89.
Moreover, as illustrated here, the fact that the suspect is in custody
does not eliminate danger to the police. Here, the shotgun was
found in the vehicle in which Perez had been a passenger. That
shotgun continued to be a danger to the police or anyone else who
had access to the vehicle.
19
¶ 44 Regarding the majority’s second point, in my view (based on
logic, not experience), when a person carries live shotgun shells in
his pockets, the chances are pretty good that the person has, or
had relatively immediate possession of or access to, a firearm that
is capable of firing those shells. I am not aware, nor is it logical to
assume, that most people carry live shotgun shells in their pockets
for no reason. This does not mean that, in every case, a person
carrying live shotgun shells will have immediate access to a gun.
¶ 45 The undisputed evidence established that Perez led the officers
on a lengthy foot chase across a busy highway and onto both
commercial and residential properties. Indeed, he finally was
apprehended in a residential backyard. The secretion of a shotgun
in any of those locations could seriously impact the safety of both
investigating officers and members of the public. Had Perez
secreted the gun in a residential backyard, such as the place where
he was apprehended, the real possibility of a child discovering the
gun and the tragedy that might follow is unmistakable and
unacceptable.
¶ 46 Under these circumstances, the officer properly asked Perez
where the gun was before giving him Miranda warnings, and Perez’s
20
answer was not barred by Miranda or the Fifth Amendment.
Quarles, 467 U.S. at 658-60.
¶ 47 For these reasons, and with respect, I disagree with the
majority’s contrary determination. I agree entirely with the balance
of the majority’s opinion and disposition.
21