v. Kessler
436 P.3d 550
Colo. Ct. App.2018Background
- Daniel Kessler was stopped for speeding and exhibited signs of intoxication (bloodshot/watery eyes, slurred speech, odor of alcohol); a PBT read .154 and he admitted drinking from a half‑empty 375 ml bottle of schnapps. He was arrested for DUI and placed in a patrol car.
- After arrest, two officers searched the vehicle’s passenger compartment and, under the center‑console armrest, found a bag of white powder later identified as cocaine.
- Kessler was tried and convicted by a jury of cocaine possession, DUI, open container, driving without a license, and speeding. He contested (1) suppression of the cocaine as an unlawful Gant search incident to arrest; (2) sufficiency of evidence of possession; (3) admissibility/instruction regarding a delayed breath test; and (4) prosecutor questioning that asked whether an officer had “made up” testimony.
- The trial court denied the suppression motion and admitted the cocaine and the breath test (with an instruction that testing outside two hours affects weight). Defense counsel expressly agreed the breath test was admissible and reserved challenge to its weight.
- The Court of Appeals affirmed: it held officers had reasonable, articulable suspicion to search the passenger compartment for additional alcohol evidence after observing Kessler’s intoxication and the open bottle, and that the defense had waived the breath‑test admissibility claim; it reviewed the prosecutor’s veracity question for plain error and found any error not prejudicial. Judge Dailey concurred in part and dissented as to the vehicle search, arguing the search exceeded Gant.
Issues
| Issue | People’s Argument | Kessler’s Argument | Held |
|---|---|---|---|
| Validity of search of vehicle incident to arrest (Gant) | Officers had PC to arrest for DUI and, given intoxication, open bottle in plain view, and officers’ training/experience, they reasonably suspected the car contained additional evidence of DUI (alcohol), justifying search | Once officers seized the half‑empty schnapps bottle, any reasonable suspicion that more alcohol was present evaporated; no particularized facts supported searching further | Search upheld: totality (intoxication signs + open bottle + officers’ reasonable inferences) supplied reasonable, articulable suspicion that vehicle contained evidence of DUI; finding of some alcohol did not terminate the search under Gant (majority) |
| Sufficiency of evidence for cocaine possession | Location of cocaine (in plain view under armrest in console near driver), Kessler’s exclusive control of vehicle at stop, and jury credibility determinations support knowing possession | Cocaine could belong to others who used the vehicle earlier; Kessler denied knowledge | Conviction affirmed: evidence sufficient for a reasonable juror to infer knowing possession |
| Admissibility of breath test (timeliness/weight) | Test admissible; delay affects weight — instruction appropriate | Test taken outside two‑hour window rendered it inadmissible | Claim waived: defense counsel explicitly accepted admissibility at trial and limited challenge to weight; appellate claim unreviewable |
| Prosecutor asking whether officer “made up” testimony (veracity) | Question was permissible because Kessler opened the door by disputing amount of alcohol | Such questions improperly ask a witness to comment on another witness’s veracity (Liggett) | No reversal: trial court would have erred if objected, but plain error review fails because the error was not sufficiently prejudicial given the limited and cumulative nature of the question and strong evidence of guilt |
Key Cases Cited
- Arizona v. Gant, 556 U.S. 332 (search incident to arrest limited to arrestee within reach or reasonable belief vehicle contains evidence of the offense)
- United States v. Arvizu, 534 U.S. 266 (officers may draw reasonable inferences from training and experience in reasonable suspicion analysis)
- Liggett v. People, 135 P.3d 725 (Colo. 2006) (improper to ask a witness to comment on another witness’s veracity)
- Olano v. United States, 507 U.S. 725 (plain‑error and waiver doctrines)
- People v. McCarty, 229 P.3d 1041 (Colo. App. 2010) (reasonable‑suspicion requirement for vehicle search incident to arrest under Gant)
- People v. Coates, 266 P.3d 397 (Colo. 2011) (vehicle search incident to arrest exception discussed)