Peo v. McRae

23CA0012 Peo v McRae 08-14-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0012
Adams County District Court No. 22CR198
Honorable Robert W. Kiesnowski, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Clifton E. McRae,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE LUM
Lipinsky and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 14, 2025

Philip J. Weiser, Attorney General, Yaried E. Hailu, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John Plimpton, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Clifton E. McRae, appeals his convictions entered

on a jury verdict for possession with intent to distribute

methamphetamine and fentanyl. We reverse and remand for a new

trial.

I. Background

¶2 While on patrol one night, police officer Adam Schroeder

observed a white sedan in a 7-Eleven parking lot. A few seconds

later, a silver pickup truck, driven by McRae, pulled up beside the

sedan. Schroeder then saw a woman step out of the sedan, enter

the pickup truck, and return to her vehicle a few minutes later.

Although the pickup truck’s dome light turned on, Schroeder

couldn’t see what was happening inside the truck.

¶3 McRae and the woman left the parking lot in their respective

vehicles and began driving in the same direction. Believing a drug

exchange had occurred, Schroeder followed them. After observing

both vehicles changing lanes a few times, Schroeder saw McRae’s

truck make an illegal right turn and the woman drive in the

opposite direction. Schroeder initiated a traffic stop of McRae’s

truck and approached the vehicle at 9:15 p.m.

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¶4 Schroeder advised McRae of the traffic violation, requested

identification and car insurance documents, and asked if McRae

had any drugs or weapons. McRae presented his documentation

and denied having drugs or weapons in the vehicle. When asked

what he was doing at the 7-Eleven with the woman, McRae said

that he was meeting her to get gas. Schroeder later said he found

McRae’s story “odd” because there were no gas pumps at the 7-

Eleven. Schroeder told McRae to “hang tight” and returned to his

patrol vehicle. Schroeder ran McRae’s information through a

database and learned he was a parolee, although Schroeder didn’t

have any information about the underlying offense. In light of this

information and his observations at the parking lot, Schroeder

decided to ask for McRae’s consent to search the pickup truck and

at 9:18 p.m. called for a “cover” officer to ensure officer safety

during the search. Schroeder remained in his patrol vehicle while

he waited for the cover officer, Darren Burton, to arrive. It’s unclear

from the record whether Schroeder was performing any tasks

related to the traffic stop while waiting for Burton; the record

doesn’t show what Schroeder was doing during that time.

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¶5 Burton arrived at 9:24 p.m. — about six minutes after

Schroeder called for a cover officer. Burton and Schroeder talked

for around one minute — Burton was standing on the passenger

side of the patrol vehicle and Schroeder was seated inside.

Schroeder apprised Burton of his observations before he pulled

McRae over, McRae’s explanation of what he was doing at the 7-

Eleven, and McRae’s parolee status. Schroeder told Burton that he

suspected drug dealing and asked whether a dog sniff was

appropriate. Burton advised that they should talk to McRae.

Finally, Schroeder said that he had contemplated looking up

McRae’s criminal history “to see if [McRae’s prior convictions

involved] dangerous drugs or anything.” Burton replied, “[L]et’s go

talk to him.”

¶6 At 9:26 p.m., about eleven minutes after the initial stop, the

two officers approached McRae’s truck, requested that McRae roll

down his window because it was dark, and asked whether they

could search his car. McRae declined to give consent. Seconds

later, Burton saw a plastic bag sticking out of a backpack located

on the front seat and asked, “What’s in the Ziploc baggie right here?

That wouldn’t happen to be drug paraphernalia, would it?” McRae

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responded that it was his pills, became irritated, and declined to

show the contents of the bag upon the officers’ request.

¶7 The officers asked McRae to exit the vehicle. After further

questioning by the officers, McRae consented to a vehicle search.

The officers discovered methamphetamine and fentanyl in multiple

plastic bags in McRae’s backpack and arrested him.

¶8 McRae was charged with possession with intent to distribute

methamphetamine and fentanyl. §§ 18-18-405(1), -405(2)(a)(I)(B),

-405(2)(b)(I)(A), C.R.S. 2024. The district court denied his pretrial

motion to suppress the drug evidence that the officers had

obtained. McRae was convicted as charged and sentenced to

twenty-five years in the custody of the Department of Corrections.

He appeals.

II. Suppression of Evidence

¶9 McRae doesn’t contest the validity of the initial traffic stop.

Instead, he argues that the district court erred by denying his

motion to suppress the drug evidence because the officers

unconstitutionally prolonged the stop. We agree.

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A. Standard of Review and Applicable Law

¶ 10 “A trial court’s suppression order presents a mixed question of

fact and law.” People v. Gamboa-Jimenez, 2022 COA 10, ¶ 35. “We

defer to the court’s factual findings if they are supported by

competent evidence in the record, but we assess the legal

significance of those facts de novo.” Id. However, we may also rely

on undisputed facts in the record, and we may independently

review any portion of the challenged incident that was audio- or

video-recorded. People v. Willoughby, 2023 CO 10, ¶ 18; see also

People v. Taylor, 2018 CO 35, ¶ 7.

¶ 11 “The Fourth Amendment to the United States Constitution

guards citizens against ‘unreasonable searches and seizures’ by the

police.” People v. Johnson, 2024 CO 47, ¶ 23 (quoting U.S. Const.

amend. IV); see also U.S. Const. amend. XIV. “Absent an exception,

a warrantless search or seizure of a person is presumed

unreasonable and in violation of the Fourth Amendment.” Johnson,

¶ 23.

¶ 12 “When police obtain evidence in violation of the Fourth

Amendment, the exclusionary rule ordinarily bars the prosecution

from introducing that evidence against the defendant in a criminal

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case.” People v. Vaughn, 2014 CO 71, ¶ 10. One exception to the

warrant requirement is an investigatory stop that is “supported by

reasonable suspicion.” People v. Chavez-Barragan, 2016 CO 66,

¶ 19; see also People v. Funez-Paiagua, 2012 CO 37, ¶ 7.

¶ 13 A traffic stop is a “limited, investigatory intrusion[]” regarding

a suspected traffic violation. Chavez-Barragan, ¶ 19. A traffic stop

prompted by reasonable suspicion of a traffic violation “can become

unreasonable if it is ‘prolonged beyond the time reasonably required

to complete’ the purpose of the stop.” Johnson, ¶ 26 (quoting

Chavez-Barragan, ¶ 20); see also Rodriguez v. United States, 575

U.S. 348, 354 (2015); United States v. Frazier, 30 F.4th 1165, 1173

(10th Cir. 2022). Law enforcement may not conduct an on-scene

investigation of ordinary criminal activity “in a way that prolongs

the [traffic] stop, absent the reasonable suspicion ordinarily

demanded to justify detaining an individual.” Rodriguez, 575 U.S.

at 355.

¶ 14 We determine whether an officer had reasonable suspicion by

looking for specific facts “‘known to the officer,’ which ‘taken

together with rational inferences from those facts,’ gave rise to ‘a

reasonable and articulable suspicion of criminal activity’ justifying

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the intrusion into the defendant’s personal privacy.” People v.

Wheeler, 2020 CO 65, ¶ 13 (quoting Funez-Paiagua, ¶ 9). “This is

an objective inquiry that requires us to consider the totality of the

circumstances at the time of the intrusion.” Gamboa-Jimenez, ¶ 40.

B. Analysis

¶ 15 In its suppression order, the district court concluded that the

traffic stop was prolonged but that the prolongation was justified by

reasonable suspicion based on “the events in the 7-[Eleven] parking

lot and Officer Burton seeing the Ziploc baggies in plain view.”

¶ 16 To determine whether the court erred, we must answer two

questions. First, did the officers prolong the traffic stop by diverting

from their traffic-based mission to investigate other criminal activity

in a way that added time to the stop? Rodriguez, 575 U.S. at 355.

And second, if so, did the officers have reasonable suspicion to

justify detaining McRae for the non-traffic investigation at the time

the stop was diverted? Id.; see also Frazier, 30 F.4th at 1174, 1179

(when assessing reasonable suspicion, the court should consider

only the facts known to the officer at the moment the officer

extended the traffic stop).

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¶ 17 Although the district court concluded that the stop was

prolonged, it didn’t identify precisely when the prolongation

occurred. We discern a clear “detour” from the traffic stop’s

mission at the time Burton arrived on the scene.1 Rodriguez, 575

U.S. at 356. The record shows that Schroeder planned to ask for

consent to search the vehicle because he suspected McRae had

drugs, and he called for assistance to provide “cover” when he

performed the search. Id. (“On-scene investigation into other

crimes . . . detours from [the traffic stop’s] mission. So too do safety

precautions taken in order to facilitate such detours.”) (emphasis

added). And when Burton arrived, the officers spent about a

minute discussing only their suspicion that McRae had drugs in his

truck and how they could obtain more information about the

suspected drugs. Therefore, this interaction detoured from the

1 McRae argues that the diversion occurred earlier, when Schoeder

called for a cover officer and waited for the officer to arrive.
However, the district court didn’t make findings about whether
Schroeder conducted other traffic-stop-related tasks while waiting,
and it’s not clear from Schroeder’s body camera footage or other
parts of the record what he was doing in his patrol vehicle during
that time. Because we nevertheless conclude that an unjustified
prolongation occurred, we need not resolve this issue.

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traffic-based mission to investigate suspected drug possession in a

way that added time to the stop. Id. at 356-57.

¶ 18 Next, we must determine whether the officers had reasonable

suspicion of other criminal activity at the point of the detour —

when Burton arrived on the scene, but before the officers spotted

the plastic bag in McRae’s car. See Frazier, 30 F.4th at 1174, 1179.

Though it’s a close call, we conclude that the answer is “no.”

¶ 19 At the time Burton arrived, Schroeder knew (1) McRae and a

woman had a brief interaction at the 7-Eleven; (2) McRae said that

he and the woman were meeting to get gas; and (3) McRae was a

parolee. We conclude that these observations — individually or

collectively — don’t rise to the level of reasonable suspicion of

criminal activity.

¶ 20 From what he observed in the 7-Eleven parking lot, Schroeder

knew that (1) a woman entered and exited Schroeder’s truck; (2)

McRae and the woman seemed to be traveling somewhere together

after leaving the parking lot; and (3) the woman drove off in a

different direction from McRae right before Schroeder pulled McRae

over. Schoeder testified that he couldn’t see what was happening

inside the truck other than the dome light being switched on, he

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didn’t see McRae and the woman touch each other at any point,

and he didn’t see any exchange of objects. He also testified that

McRae’s explanation of the meeting struck him as “odd,” given that

the 7-Eleven didn’t have gas pumps.

¶ 21 Although Schroeder stated that his training informed his

suspicion that he had observed a drug deal, we can’t say that these

facts, without more, give rise to reasonable suspicion. See People v.

Greer, 860 P.2d 528, 529-32 (Colo. 1993) (concluding that a police

officer lacked reasonable suspicion when the officer observed two

individuals talking closely in an area known for narcotics sales, but

the officer didn’t see the suspects’ hands or the exchange of

objects); Outlaw v. People, 17 P.3d 150, 158 (Colo. 2001)

(concluding that no reasonable suspicion existed when the officer,

on patrol in a neighborhood known for drug transactions, didn’t see

any drug transaction and couldn’t ascertain the conversation taking

place between the suspects). The 7-Eleven wasn’t in an area known

for drug trafficking, Schroeder didn’t see an exchange of objects or

money, he didn’t hear any conversation between McRae and the

woman, and neither participant was a known drug dealer. Cf.

People v. Ratcliff, 778 P.2d 1371, 1378-79 (Colo. 1989) (holding that

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reasonable suspicion existed when an officer observed a known

drug supplier walk up to another individual in a known drug area

and simultaneously exchange objects while trying to conceal their

behavior); People v. Canton, 951 P.2d 907, 910-11 (Colo. 1998)

(determining that an officer had reasonable suspicion when the

officer received an anonymous tip of drug dealing, observed a large

group of males gathered in a known drug area, and saw the

defendant holding a large amount of cash).

¶ 22 We also conclude that McRae’s status as a parolee didn’t

elevate Schoeder’s observations to reasonable suspicion because

Schoeder didn’t know the nature of McRae’s underlying offense. Cf.

Ratcliff, 778 P.2d at 1378-79 (one party’s status as a known drug

dealer, coupled with other factors, fostered reasonable suspicion of

a drug exchange); United States v. Sandoval, 29 F.3d 537, 542 (10th

Cir. 1994) (past criminal conduct does not, by itself, give rise to

reasonable suspicion of present criminal behavior).

¶ 23 For the above reasons, we conclude that the district court

erred by denying McRae’s motion to suppress.

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C. Warrantless Search of Parolees

¶ 24 Nevertheless, the People contend that the officers could search

McRae’s vehicle regardless of reasonable suspicion because of his

parolee status. We disagree.

¶ 25 To support their argument, the People rely on a “totality-of-

the-circumstances” exception, which “authorizes warrantless

searches [of parolees or probationers] without probable cause (or

even reasonable suspicion) by police officers with no responsibility

for parolees or probationers when the totality of the circumstances

renders the search reasonable.” United States v. Mathews, 928

F.3d 968, 976 (10th Cir. 2019) (quoting United States v. Warren,

566 F.3d 1211, 1216 (10th Cir. 2009)).

¶ 26 Mathews notes that a search of a parolee or probationer

satisfies the totality-of-the-circumstances exception if authorized by

state law. Id. The search in that case satisfied the exception

because it was conducted pursuant to a search provision in the

defendant’s parole agreement. Id. at 975-76; see also Samson v.

California, 547 U.S. 843, 846, 852-57 (2006) (suspicionless search

of parolee by police officer was constitutional when California

statute required every prisoner eligible for release on state parole to

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“agree in writing to be subject to search or seizure by a parole

officer or other peace officer . . . , with or without a search warrant

and with or without cause”).

¶ 27 Here, however, there isn’t any evidence that McRae signed a

parole agreement consenting to suspicionless searches, and no

state law authorized Schroeder and Burton to search McRae’s

property based on his parolee status. Section 17-2-201(5)(f)(I)(D),

C.R.S. 2024, requires parolees to submit to suspicionless vehicle

searches by “the community parole officer,” but Schroeder and

Burton weren’t parole officers. We therefore decline to apply the

totality-of-the-circumstances exception in this case.

III. Disposition

¶ 28 The judgment of conviction is reversed, and the case is

remanded for a new trial consistent with this opinion.

JUDGE LIPINSKY and JUDGE PAWAR concur.

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