2019 COA 48
Colo. Ct. App.2019Background
- During a traffic stop in February 2014, officers contacted Marcus Perez as a passenger; he supplied a name that produced no records, stepped out, and fled on foot through busy streets and residential/commercial areas.
- Officers chased and apprehended Perez in a backyard; during the struggle he assaulted an officer (broke an officer’s nose) and was handcuffed.
- A search incident to arrest revealed two live shotgun shells in Perez’s pocket; before receiving Miranda warnings, an officer asked where the gun was and Perez said he had thrown it away.
- Officers later searched the vehicle and found a short shotgun between the center console and the passenger seat; timing of the vehicle search relative to the statement was unclear in the suppression hearing record.
- Perez was charged with second-degree assault on a peace officer and multiple counts of possession of a dangerous weapon by a previous offender (POWPO); he was convicted of one assault count and four POWPO counts (related to a dangerous-weapon enhancement), sentenced to 24 years, and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officer’s pre‑Miranda question about a gun fell within the public safety exception | People: questioning was justified by safety concerns after finding shotgun shells; exception applies | Perez: shells alone did not create an objectively reasonable, immediate danger to justify unwarned interrogation | Court: public safety exception did not apply on these facts; suppression of the statement should have been granted, but error was harmless beyond a reasonable doubt |
| Whether the firearm found should be suppressed as fruit of the unwarned statement | People: even if statement was unwarned, fruit‑of‑the‑poisonous‑tree does not apply to Miranda violations; vehicle search not established at suppression hearing | Perez: sought suppression of evidence flowing from the statement | Court: trial court did not err — fruit doctrine inapplicable to Miranda violations and search testimony was not part of suppression hearing record |
| Whether multiple POWPO convictions based on one gun violate double jeopardy/require merger | People: permissibly charged multiple counts tied to different prior felonies | Perez: multiple POWPO convictions for a single weapon in one incident must be merged | Court: convictions should have been merged; reversed as plain error for counts four, five, and six and remanded to vacate those convictions/sentences |
| Whether police conduct amounted to outrageous governmental conduct violating due process | People: stop, pursuit, and arrest were lawful given evasive behavior and false ID; no outrageous behavior | Perez: detention/chase and alleged beating after surrender violated due process | Court: no authority supports outrageous‑conduct relief here; no plain error shown; claim denied |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (establishes custodial‑interrogation warning requirement)
- New York v. Quarles, 467 U.S. 649 (U.S. 1984) (recognizes public safety exception to Miranda for questions about weapons)
- People v. Ingram, 984 P.2d 597 (Colo. 1999) (discusses application of public safety exception in Colorado)
- People v. Requejo, 919 P.2d 874 (Colo. App. 1996) (public safety exception applied where officers responded to stabbing and asked about weapon)
- People v. Bradshaw, 156 P.3d 452 (Colo. 2007) (Miranda violations do not trigger fruit‑of‑the‑poisonous‑tree suppression)
- People v. DeWitt, 275 P.3d 728 (Colo. App. 2011) (multiple POWPO convictions based on a single firearm in one incident must be merged)