v. Harmon

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
October 17, 2019

2019COA156

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

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

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

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

lawfully stopped vehicle are not seized for Fourth Amendment

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

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

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

effects a Fourth Amendment seizure beyond the initial traffic stop

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

occupants and questioning the passenger about matters unrelated

to the traffic stop.
COLORADO COURT OF APPEALS 2019COA156

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

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sarah Jean Harmon,

Defendant-Appellant.

JUDGMENT AFFIRMED

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

Announced October 17, 2019

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

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

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

infraction seized within the meaning of the Fourth Amendment?

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

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

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

lawfully stopped. But after these opinions were announced, the

United States Supreme Court reached a different conclusion. In

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

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

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

¶3 The Colorado Supreme Court has recognized that Brendlin

overruled or abrogated the contrary Fourth Amendment holding in

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

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

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

contrary holding in Fines, as Fines is expressly predicated on

Jackson. 1

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

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

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

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

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

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

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

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

seizure unless some other unconstitutional seizure was effected by

the police.2

¶5 Recognizing this problem, Harmon contends that when the

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

the driver and the other passenger, a separate Fourth Amendment

seizure occurred. She argues that because that seizure was

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

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

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supported by neither probable cause nor reasonable suspicion, all

fruits of that seizure must be suppressed.

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

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

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

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

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

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

judgment of conviction.

I. Background

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

cracked windshield and a broken headlight. The officer followed the

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

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

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

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

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

enforcement contacts involving illegal drugs. After collecting the

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

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

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

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

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

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

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

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

while the driver and a second passenger stood some distance away

with the other officer.

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

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

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

her person during their previous encounters, and in anticipation of

asking for consent to search her, he specifically asked Harmon

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

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

methamphetamine.

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

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

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

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

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

pill and methamphetamine.

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

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

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

asserted, however, that the patrol officer violated her constitutional

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

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

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

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

unsupported by reasonable suspicion. 4

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

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

determining that (1) the traffic stop was not unreasonably

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

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

on Harmon’s argument that her alleged separation from her

companions constituted a separate, unconstitutional seizure.

II. Discussion

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

her right against unreasonable seizure “when, lacking any

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

her about drugs.” We disagree.

A. Preservation and Standard of Review

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

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

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

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

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

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

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

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

not mean that she failed to preserve the issue.

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

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

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

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

we review conclusions of law de novo. Id.

B. Analysis

¶ 16 The Fourth Amendment to the United States Constitution and

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

their homes from unreasonable searches and seizures. People v.

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

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

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

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

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

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

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

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

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

presenting evidence of an unconstitutional seizure. People v.

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

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

Amendment seizure occurred and (2) the seizure was

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

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

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

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

Rather, she argues that her seizure became unconstitutional when

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

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

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

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

might have drugs” effectuated a separate, unlawful seizure.

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

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

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

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

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

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

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

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

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

particular location, separated from the driver, and questioned about

her own possession of illegal drugs” without any particularized

suspicion. Id. at 81.

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

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

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

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

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

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

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

seized as a result of the traffic stop alone.

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

under certain circumstances, separating a passenger in a vehicle

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

questioning that passenger about matters not related to the traffic

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

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

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

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

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

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

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

Similarly, police may subject drivers and passengers to questioning

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

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

questioning does not measurably extend the stop. Johnson, 555

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

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

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

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

2011).

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

over the driver and passengers in a lawfully stopped vehicle under

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

action may constitute a second, distinct Fourth Amendment

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

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

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

constituted a second, distinct seizure.

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

secondary seizure beyond the initial traffic stop by separating a

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

questioning the passenger about matters unrelated to the traffic

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

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

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

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

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

and everyone remained nearby during the stop. According to the

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

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

testified that Harmon’s companions stood with another officer

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

or otherwise challenge, the distance between her and her

companions.

¶ 27 Harmon further contends that her physical separation from

the other passengers constituted a separate seizure because, like

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

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

the United States Supreme Court has recognized that the

circumstances of a stop itself communicate to reasonable

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

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

551 U.S. at 258.

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

communicate to a reasonable passenger in Harmon’s position that

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

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

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

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

sufficient to demonstrate that a secondary seizure occurred.

¶ 29 Actions that would themselves support the conclusion that a

seizure occurred could, in instances when a lawful seizure is

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

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

regardless of its subjective motivation, was merely incidental to the

ongoing lawful seizure.

¶ 30 Accordingly, Harmon has not demonstrated that her physical

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

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

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

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

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

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

not convert the encounter into something other than a lawful

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

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

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

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

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

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

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

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

conclusion that the officer’s questions measurably extended the

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

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

Chavez-Barragan, 2016 CO 66, ¶ 26.

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

support Harmon’s allegations that a secondary seizure occurred

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

Because the police conduct did not violate Harmon’s Fourth

Amendment rights, the trial court correctly denied her motion to

suppress.

III. Other Issues

¶ 33 Harmon also contends that reversal is required because the

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

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

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

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

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

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

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

these bases.

IV. Conclusion

¶ 34 The judgment of conviction is affirmed.

JUDGE WELLING and JUSTICE MARTINEZ concur.

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