v. Wambolt

     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
                                                                June 28, 2018

                                

No. 15CA0352, People v. Wambolt — Crimes — Driving After
Revocation Prohibited — Aggravated Driving After Revocation
Prohibited — DUI — Driving Under Restraint; Constitutional
Law — Fifth Amendment — Double Jeopardy

     The defendant was charged with aggravated driving after

revocation prohibited (ADARP), driving under the influence (DUI),

and driving under restraint (DUR). During a first trial, the jury was

instructed on the elements of driving after revocation prohibited

(DARP) and given a special interrogatory verdict form on the ADARP

charge. The jury returned guilty verdicts on DARP and DUR, but

hung on the DUI charge, and thus did not complete the ADARP

special interrogatory. The defendant was then retried in a two-

phase trial. In the first phase, the jury returned a guilty verdict on

driving while ability impaired, a lesser included offense of DUI. In
the second phase, the jury completed a special interrogatory finding

that the prosecution had proved the ADARP charge.

     A division of the court of appeals concludes that, under the

circumstances of this case, the defendant was unconstitutionally

tried twice for the same offense. After the first jury returned a

guilty verdict on DARP, the prosecution retried the elements of that

offense during the second trial. As a result, the division vacates the

ADARP conviction and directs the trial court to reinstate the first

DARP verdict.

     The division also considers whether the defendant’s DUR and

DARP convictions should have merged. Analyzing the effect of

People v. Rock, 

, 

, on Zubiate v. People,

, 

, the division concludes that DUR is a

lesser included offense of DARP. Thus, the trial court erred in

entering both convictions. However, the division further concludes

that the error here was not plain because it was not obvious.

     Finally, the division rejects the defendant’s contention that the

trial court erred in denying his motion to suppress.

     Accordingly, the division affirms in part, vacates in part, and

remands the case with directions.
COLORADO COURT OF APPEALS                                       

Court of Appeals No. 15CA0352
Elbert County District Court No. 13CR66
Honorable Jeffrey K. Holmes, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jason Lee Wambolt,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, VACATED IN PART,
                AND CASE REMANDED WITH DIRECTIONS
                               Division I
                     Opinion by JUDGE TAUBMAN
                    Bernard and Welling, JJ., concur

                          Announced June 28, 2018


Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Rachel K. Mercer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    What happens when someone repeatedly drinks, drives, and,

 as a result, loses his or her driver’s license, and then drinks and

 drives again? This case presents two novel issues that call on us to

 answer this question. The issues are not novel because they have

 not arisen before; they are novel because they have arisen in a new

 context. In recent years the General Assembly has twice amended

 one applicable statute, and our appellate courts have issued

 multiple, sometimes inconsistent, decisions.

¶2    Addressing the issues presented here is more challenging

 because of the unusual procedures followed by the trial court.

 Defendant, Jason Lee Wambolt, was tried twice for multiple

 offenses, and the second trial was divided into two parts.

 Consequently, the two principal issues in this appeal concern

 Wambolt’s right to be free from double jeopardy and whether two

 convictions merge. In a third issue, Wambolt challenges the trial

 court’s denial of his motion to suppress certain evidence used

 against him.

¶3    We affirm in part, vacate in part, and remand with directions.




                                   1
                            I. Background

¶4    In November 2013, police in Agate, Colorado, were dispatched

 to respond to a potential menacing incident. The reporting party

 communicated that a man riding a motorcycle had chased him and

 threatened him, possibly with a weapon. When police arrived at the

 scene, Wambolt admitted that he had been the man riding the

 motorcycle. The officers observed that Wambolt appeared

 intoxicated, and he confessed that he had been drinking prior to

 riding the motorcycle.

¶5    Wambolt was eventually charged with aggravated driving after

 revocation prohibited (ADARP), driving under the influence (DUI),

 driving under restraint (DUR), and two counts of violating a civil

 protection order. He did not dispute that his driver’s license had

 been revoked or that he had been deemed a habitual traffic

 offender. However, the defense’s theories of the case were that

 Wambolt did not know that his driver’s license had been previously

 revoked and, as to the DUI charge, that he drank only after he

 drove his motorcycle. At the first trial, the jury was instructed on

 the elements of driving after revocation prohibited (DARP) and given

 a special interrogatory verdict form on the ADARP charge. The jury


                                   2
 returned guilty verdicts on DARP and DUR, but hung on the DUI

 charge, and thus did not complete the ADARP special interrogatory.

 At the second trial, Wambolt was convicted of driving while ability

 impaired (DWAI), and the second jury completed an interrogatory

 finding the People had proved ADARP. Ultimately, the trial court

 entered convictions on ADARP, DUR, and DWAI, and Wambolt later

 pleaded guilty to the protection order violations.

¶6    Wambolt appeals the judgment of conviction entered on the

 jury verdicts finding him guilty of ADARP, DUR, and DWAI.

 Specifically, he contends that (1) he was tried twice for the same

 offense in violation of double jeopardy protections; (2) the trial court

 plainly erred in entering convictions for DUR and DARP because

 those convictions should have merged; and (3) the trial court’s

 erroneous denial of his motion to suppress requires reversal. We

 agree with his first contention and therefore vacate the conviction

 for ADARP. However, we disagree with his final two contentions

 and thus affirm in all other respects.

                          II. Double Jeopardy

¶7    Wambolt contends that he was unconstitutionally tried twice

 for the same offense when, after the first jury did not complete the


                                    3
 ADARP special interrogatory, the People retried him on that charge.

 We agree that the second prosecution was in violation of the Double

 Jeopardy Clauses of the United States and Colorado Constitutions

 and therefore vacate the ADARP conviction and remand for the trial

 court to reinstate the first jury’s verdict.

¶8    The Double Jeopardy Clauses of the United States and

 Colorado Constitutions protect an accused against being twice

 placed in jeopardy for the same crime. U.S. Const. amends. V, XIV;

 Colo. Const. art. II, § 18. Axiomatically, the federal Double

 Jeopardy Clause “protects against a second prosecution for the

 same offense after conviction. And it protects against multiple

 punishments for the same offense.” Brown v. Ohio, 

 (1977) (quoting North Carolina v. Pearce, 

 (1969)). Wambolt invokes both of these protections. We review

 double jeopardy claims de novo. People v. Frye, 

, 

.

¶9    As we noted at the outset, this case presents a unique set of

 circumstances, both because of the unusual way in which the

 prosecution proceeded and because the relevant statutes and case

 law have changed over the course of the last few years. We will


                                     4
  therefore set forth the facts in some detail, as well as the evolution

  of the law.

                                A. The Trials

¶ 10   As noted, Wambolt was charged with ADARP under section

  42-2-206(1)(b), C.R.S. 2013, along with DUI and DUR. Wambolt

  was first tried on these charges in July 2014.

¶ 11   At the beginning of voir dire, the trial court instructed the jury

  that the People had charged Wambolt with ADARP. However, in the

  final jury instructions, the jury was instructed that Wambolt was

  charged with DARP, not ADARP. The jury also received an

  elemental instruction on DARP, not ADARP.

¶ 12   Additionally, the jury was given a special interrogatory stating

  that it was to be completed only if the jury found Wambolt guilty of

  DARP and either DUI or DWAI.1 There were then two possible



  1 The Model Criminal Jury Instructions in effect at the time of
  Wambolt’s first trial in July 2014 did not separately address DARP
  and ADARP. Instead, the pattern instruction on “driving after
  judgment prohibited” contained a note stating the following:

                For cases in which the defendant is alleged to
                have committed aggravated driving while
                judgment prohibited . . . there must be a
                determination beyond a reasonable doubt that

                                      5
  options: first, “We, the jury, find that it has been proven beyond a

  reasonable doubt that the defendant committed the crimes of

  [DARP] AND either [DUI] or the lesser offense of [DWAI] as part of

  the same criminal episode”; and, second, “We, the jury, do not so

  find.”

¶ 13   After deliberating for almost seven hours, the jury sent a note

  to the trial court stating that it had reached a verdict on the DARP

  and DUR charges, but could not reach a verdict as to the DUI




            he or she committed [one of the crimes
            enumerated in section 42-2-206(1)(b)(I), C.R.S.
            2013]. Additionally, with respect to the felony
            offense, actual knowledge of the revocation as
            a habitual offender is an essential
            element . . . .

  COLJI-Crim. 42:03 (2008). The prosecutor read this note during a
  jury instructions conference in support of his position that the
  “actual knowledge” element should be included in the DARP
  instruction. The trial court asked the prosecutor if the aggravating
  DUI offense should also be listed as an element in the jury
  instruction, to which the prosecutor responded that it “was just
  cleaner to do it with an interrogatory.” The defense did not object to
  the use of the special interrogatory. However, no discussion
  occurred as to whether ADARP was a sentence enhancer or a
  separate offense. But see COLJI-Crim. A (2008) (stating, under
  heading “Elements and Sentence Enhancers,” that, “[i]n general,
  sentence enhancers are presented by way of interrogatory . . . and
  elements are presented in the instruction defining the offense”).

                                    6
  charge. The jury did not complete the special interrogatory. The

  court declared a mistrial on the DUI offense.

¶ 14   After the jury was dismissed, the prosecutor argued that the

  jury had returned “only . . . half of one of the verdicts” because the

  jury had found Wambolt guilty of DARP, but not ADARP. The trial

  court asked the parties to address whether Wambolt could be

  retried on the ADARP charge. After a hearing, the trial court asked

  that the parties brief the issue.

¶ 15   In response, the People submitted a “Memorandum regarding

  operation of the same criminal episode penalty enhancer under

  C.R.S. § 42-2-206(1)(b)(I)(A) and (B).” The People argued that the

  aggravated portion of ADARP was a sentence enhancer, not a

  substantive element of the offense, and thus resubmitting the

  ADARP charge to the jury would not violate the Double Jeopardy

  Clauses. The People concluded, “There is only one offense: [DARP].”

  However, in the alternative, the People argued that even assuming

  DARP was a lesser included offense of ADARP, retrial on the ADARP

  charge was permissible because the jury hung on that count.

¶ 16   In reply, Wambolt argued that DARP was a lesser included

  offense of ADARP and that section 18-1-301(1)(a), C.R.S. 2017,


                                      7
  precluded retrial on a greater offense after conviction of a lesser

  offense. However, Wambolt argued in the alternative that if the trial

  court permitted the People to retry the ADARP count, the second

  jury should be required to decide every element of the offense to

  protect his right to have a single tribunal decide that charge. See

  People v. Segovia, 

 (Colo. 2008) (“Double

  jeopardy prevents the government from repeatedly trying to obtain a

  conviction against an accused, but also protects a defendant’s right

  to have a verdict returned by a particular jury.”).

¶ 17   In a thorough bench ruling issued before the second trial, the

  trial court concluded that the enumerated aggravating offenses in

  section 42-2-206(1)(b)(I), C.R.S. 2013, established a sentence

  enhancer of DARP. It determined that Wambolt could be

  constitutionally retried on ADARP and announced that the second

  trial would be conducted in two phases. First, the jury would

  decide only the DUI charge. If it returned a guilty verdict, the same

  jury would then consider the ADARP charge, again via a special

  interrogatory. The trial court stated:

             [T]he jury will not be asked to find guilt or not
             guilt as to DARP, but, rather, to make a
             finding with regard to the interrogatory. So


                                     8
            they will be given the elements. They will be
            told that they must find beyond a reasonable
            doubt that the elements have been established
            for purposes of a determination that -- of a
            “yes” decision regarding the interrogatory, that
            is, there has been proof beyond a reasonable
            doubt the elements of DARP, of DUI, and that
            they were part of the same criminal
            proceeding. But the jury will not be asked to
            return a verdict, again, regarding the offense of
            DARP.

¶ 18   In October 2014, the second trial proceeded according to that

  bench ruling. During the first “phase,” the jury found Wambolt

  guilty of DWAI, a lesser included offense of DUI. Then, the trial

  court revealed to the jury that it would consider a second charge,

  which the trial court described as “the offense of driving after

  revocation prohibited and driving with ability impaired as part of

  the same criminal episode.”

¶ 19   Once again, the jury was not given an ADARP instruction.

  Instead, the jury was given an instruction listing the elements of

  DARP.2 Additionally, the jury was given an interrogatory, again




  2 On September 1, 2014, — after Wambolt’s first trial was
  completed — the Colorado Supreme Court’s Model Criminal Jury
  Instructions Committee issued updated pattern instructions.
  Relying on Griego v. People, 

, 6 n.6 (Colo. 2001), and
  People v. Wilson, 

 (Colo. App. 2004), the 2014 model

                                     9
with two possible choices: first, “We, the jury, unanimously find

that the prosecution has proven beyond a reasonable doubt that

defendant committed all the elements of [DARP], as defined in [the

elemental instruction], and that the prosecution has proven beyond

a reasonable doubt that defendant committed [DARP] and [DWAI] as

a part of the same criminal episode”; and, second, “We, the jury, do

not so find.” The jury checked the first line of the special

interrogatory.




instructions stated that ADARP “is not a sentence enhancement
provision for the offense of [DARP]; it is a separate crime.” COLJI-Crim. 42:06 cmt. 4 (2014); see also COLJI-Crim. 42:06 cmt. 4
(2017) (same). Thus, since September 2014, separate pattern
instructions have existed for DARP, COLJI-Crim. 42:05 (2017), and
ADARP, COLJI-Crim. 42:06.
      During the first phase of Wambolt’s second trial, the parties
and the trial court discussed the 2014 model instructions. Defense
counsel noted that the instructions initially tendered by the
prosecutor were outdated, and several of the tendered instructions
had been replaced. However, the parties did not specifically discuss
the change in the DARP and ADARP pattern instructions. Neither
the parties nor the trial court addressed whether the jury for the
second trial should be given the new pattern ADARP instruction.
Further, near the close of the second phase of the second trial, the
trial court asked the parties whether they wanted to tender any
instructions in addition to the DARP instruction; in response,
neither party suggested, or even mentioned, the new ADARP pattern
instruction.

                                  10
¶ 20   As a result, the trial court entered convictions for ADARP,

  DUR, and DWAI.

                          B. Section 42-2-206

¶ 21   Section 42-2-206, the statute establishing DARP and ADARP,

  has been amended since Wambolt was charged and tried.

¶ 22   The definition of DARP has not changed: “Any person found to

  be an habitual offender, who operates a motor vehicle in this state

  while the revocation of the department prohibiting such operation is

  in effect, commits a class 1 misdemeanor.” § 42-2-206(1)(a)(I),

  C.R.S. 2017; see also § 42-2-206(1)(a)(I), C.R.S. 2013.

¶ 23   In contrast, the definition of ADARP has been amended. Prior

  to legislative amendments in 2015, the statute stated that a person

  committed ADARP “if he or she is found to be an habitual offender

  and thereafter operates a motor vehicle in this state while the

  revocation of the department prohibiting such operation is in effect

  and, as a part of the same criminal episode, also commits . . . DUI

  or DUI per se; [or] DWAI.” § 42-2-206(1)(b)(I)(A)-(B), C.R.S. 2013.

  Under that version of the statute, ADARP was a class 6 felony. §

  42-2-206(1)(b)(II), C.R.S. 2013.




                                     11
¶ 24   However, subsections 206(1)(b)(I)(A) and (B) were repealed in

  2015. See Ch. 262, sec. 4, § 42-2-206(1)(b), 

. Thus, under the statute in effect today, Wambolt could not

  have been convicted of ADARP on the basis of the aggravating DWAI

  offense. ADARP is now a class 1 misdemeanor. § 42-2-206(1)(b)(II),

  C.R.S. 2017.

¶ 25   Additionally, a 2010 amendment to section 42-2-206 clarified

  that, if a defendant was convicted of both ADARP and the

  aggravating offense of DUI, DUI per se, or DWAI, the convictions

  should not merge. Ch. 258, sec. 3, § 42-2-206(1)(b), 

; see § 42-2-206(1)(b)(III), C.R.S. 2017. That

  provision superseded several decisions from divisions of this court

  that had held that the underlying aggravating offense should merge

  into an ADARP conviction. See People v. Valdez, 

,

  ¶¶ 28-32, 

 (summarizing cases). This provision

  was also amended in 2015 to address the repeal of section 42-2-

  206(1)(b)(I)(A) and (B). Ch. 262, sec. 4, § 42-2-206(1)(b)(III), 

; see § 42-2-206(1)(b)(III)(A) (“If a defendant is

  convicted of [ADARP] based upon the commission of DUI, DUI per

  se, or DWAI . . . as that crime existed before August 5, 2015 . . .


                                     12
  [t]he court shall convict and sentence the offender for each offense

  separately . . . .”).

                               C. Case Law

¶ 26    Just as the relevant statutory law has changed, so too has the

  relevant case law.

¶ 27    First, our appellate courts have disagreed whether the

  aggravating offenses set forth in ADARP are sentence enhancers to

  the offense of DARP or, in the alternative, whether they are

  elements of the offense of ADARP.

¶ 28    In People v. Wilson, a division of this court rejected the

  People’s contention that the aggravating offenses establishing

  ADARP are “merely sentence enhancers” to the offense of DARP and

  instead held that section 42-2-206(1)(b) sets forth the elements of

  the separate crime of ADARP, which includes six enumerated

  aggravating offenses. 

 (Colo. App. 2004). Thus, the

  Wilson division concluded that the aggravating offenses listed in

  that subsection are essential elements of the crime of ADARP. 

¶ 29    In contrast, another division agreed with the People that the

  aggravating offenses were sentence enhancers of DARP. People v.

  Zubiate, 

, ¶ 40, 

, aff’d, 

,


                                     13
  

. Specifically, in Zubiate, the division held that,

  because under the pre-2015 version of section 42-2-206 “the other

  driving offenses listed in section 42–2–206(1)(b)(I) raise[d] DARP’s

  offense level, they [we]re sentence enhancers.” Id. at ¶ 40, 411 P.3d

  at 765. The supreme court affirmed the Zubiate division’s holding,

  but did not address whether DARP and ADARP were distinct

  offenses.3

¶ 30   Second, apart from the specific issue of whether DARP is a

  lesser included offense of ADARP, the case law has changed with

  regard to the test for whether one offense is a lesser included of

  another. In 2017, the supreme court decided a series of cases,

  including Zubiate, in an effort to clarify the statutory elements test.

  The test, as stated in Reyna-Abarca v. People, is as follows: “[A]n

  offense is a lesser included offense of another offense if the

  elements of the lesser offense are a subset of the elements of the



  3 In Griego, the supreme court noted in dicta that a 1999
  amendment to section 42-2-206 created “the new offense” of
  ADARP. 

 n.6. As described above, the model jury
  instructions cite Griego for the proposition that DARP and ADARP
  are separate offenses. However, aside from that footnote, the
  supreme court did not address the relationship between DARP and
  ADARP in Griego.

                                    14
  greater offense, such that the lesser offense contains only elements

  that are also included in the elements of the greater offense.” 

, 

; see also People v. Rock, 

, 

 (clarifying the meaning of “contains” as

  used in Reyna-Abarca), reh’g denied (Oct. 2, 2017).

¶ 31   Third, double jeopardy analysis from divisions of this court

  has also seen recent change. Two decisions are of particular

  relevance here. In People v. Aguilar, a division of this court held, as

  a matter of first impression, that the Double Jeopardy Clauses do

  “not bar retrial of a greater offense when a jury deadlocks on that

  charge but convicts on a lesser included offense.” 

, 

. More recently, in People v. Beller, the

  division concluded that the Double Jeopardy Clauses did not bar

  retrying a defendant on a felony murder charge when a first jury

  acquitted him of the predicate offenses of aggravated robbery, but

  hung on the felony murder count. 

, 

. The Beller division relied on a “continuing jeopardy”

  theory, reasoning that “the greater and lesser included offenses

  were tried together under the same indictment, jeopardy terminated

  as to one of the offenses, but did not end on the charge sought to be


                                    15
  retried.” Id. at ¶ 24, 411 P.3d at 1151 (quoting United States v.

  Jose, 

 (9th Cir. 2005)). In so holding, the

  Beller division rejected contrary federal case law that “a criminal

  defendant may not be retried for a crime following an acquittal or

  conviction on a lesser included or greater inclusive offense.” Id. at

  ¶ 20, 411 P.3d at 1150 (quoting Wilson v. Czerniak, 

 (9th Cir. 2004)).

                               D. Analysis

¶ 32   Wambolt contends that his right to be free from being twice

  placed in jeopardy for the same offense was violated when the

  People were permitted to retry him on the ADARP charge after the

  first jury had convicted him of DARP. We agree. However, our

  conclusion stems from the unusual circumstances of this case.

¶ 33   As they did in the trial court, both Wambolt and the People

  focus their arguments on whether the aggravating offenses in

  section 42-2-206(1)(b)(I) constitute a sentence enhancement of

  DARP or whether DARP is a lesser included offense of ADARP.

¶ 34   Contrary to his argument in the trial court, Wambolt now

  contends that the aggravated aspect of ADARP is a sentence

  enhancer. “[A] sentence enhancement provision is not an element


                                    16
  of the offense charged.” Armintrout v. People, 

  (Colo. 1993). Thus, Wambolt argues, he was first convicted and

  then retried for DARP because the aggravated aspect of ADARP is

  not an element and thus there is no separate ADARP offense.

¶ 35   For their part, the People have also reversed course, and now

  argue that DARP is a lesser included offense of ADARP. Relying on

  Aguilar and Beller, the People contend that jeopardy did not

  terminate on the greater offense of ADARP despite the first jury’s

  guilty verdict on DARP. Thus, under their argument, retrial on

  ADARP was permissible because the jury hung on that count.

¶ 36   We conclude that we need not enter that legal thicket because,

  under the circumstances here, Wambolt was effectively tried for

  DARP, not ADARP, during both trials. The parties’ arguments on

  appeal are premised on the assumption that Wambolt was tried for

  ADARP during both trials. However, a review of the record reveals

  that Wambolt was effectively tried for DARP twice, and he was not

  properly tried for ADARP.

¶ 37   Because of the way the case was presented during the first

  trial, the first jury returned a verdict only on DARP. Although

  Wambolt had ostensibly been charged with ADARP, not DARP, the


                                   17
  trial court told the jury that he had been charged with DARP. See

  COLJI-Crim. E:02 (2017) (“The defendant is charged with

  committing the crime[s] of [ ] . . . .”). Further, the jury was given

  an elemental instruction on DARP. As noted, the jury was not given

  an elemental instruction on ADARP.

¶ 38   It is well established that “the trial court has a duty to instruct

  the jury properly on all of the elements of the offenses charged.”

  People v. Bastin, 

 (Colo. App. 1996) (emphasis

  added). Here, the trial court did not instruct the jury on the

  elements of the charged offense: ADARP. The only “instruction”

  even indicating that Wambolt had been charged with ADARP was

  the special interrogatory, and even the interrogatory did not refer to

  the offense as ADARP. The jury cannot decide a charge on which it

  was not instructed. See Sanchez v. People, 

, 

 (“While the precise format and wording chosen for an

  elemental instruction and accompanying verdict form have never

  been mandated as a matter of positive law, the model instructions

  and verdict forms were developed for the specific purpose of

  evidencing not only unanimous jury agreement concerning the

  elements of the criminal offense in question, as a factual matter,


                                    18
  but also a unanimous decision to find the defendant guilty of that

  particular offense.”).4

¶ 39   As a result, when the second phase of the second trial

  repeated the same special interrogatory procedure, Wambolt was

  again tried for DARP. Once again, the jury was instructed on the

  elements of DARP, not ADARP. Because Wambolt stood convicted


  4     The supreme court’s recent decision in In Re People v.
  Stackhouse, 

, ___ P.3d ___, does not change our
  analysis. There, the first jury had convicted the defendant of two
  counts of sexual assault on a child (which were later vacated after a
  Crim. P. 35(c) postconviction challenge), but did not find a patternof-abuse sentence enhancer because the jury could not
  unanimously agree that at least two out of five enumerated alleged
  contacts had occurred. Id. at ¶ 2, ___ P.3d at ___. Before his
  second trial, the defendant argued that the first jury had
  necessarily determined that he did not commit two or more
  incidents of sexual contact by virtue of its “no” response to the
  sentence enhancer special interrogatory. See id. at ¶ 4, ___ P.3d at
  ___. Thus, the defendant contended, he could not be retried for
  more than a single assault. Id. at ¶ 1, ___ P.3d at ___. The supreme
  court disagreed and concluded that the defendant could
  constitutionally be retried on charges of sexual assault on a child
  based on several alleged incidents of sexual contact. See id. at ¶
  13, ___ P.3d at ___.
        Stackhouse is inapposite to our conclusion here because our
  analysis does not hinge on interpreting the first jury’s failure to
  complete the ADARP special interrogatory. We do not read the first,
  uncompleted special interrogatory as impliedly acquitting Wambolt
  of ADARP or as necessarily determining any fact. The special
  interrogatories submitted to the juries in this case are relevant only
  insofar as they demonstrate that the jury was effectively instructed
  on, and returned guilty verdicts for, DARP at both trials.

                                   19
  of DARP at the time of the second trial, the second prosecution for

  that same offense violated his rights under the Double Jeopardy

  Clauses.

                              E. Plain Error

¶ 40   Having concluded that the trial court violated Wambolt’s right

  to be free from being placed in jeopardy twice for the same offense,

  we turn to whether that error requires us to vacate the ADARP

  conviction entered after the second trial.

¶ 41   We “review trial errors of constitutional dimension that were

  preserved by objection for constitutional harmless error.” Hagos v.

  People, 

, 

. In contrast, we

  review unpreserved errors, both constitutional and

  nonconstitutional, for plain error. Id. at ¶ 14, 

. In

  Reyna-Abarca, the supreme court held that unpreserved double

  jeopardy claims are subject to plain error review. ¶ 47, 390 P.3d at

  823. In so holding, the Reyna-Abarca court rejected the defendants’

  contentions that their double jeopardy claims fell within the narrow

  class of structural errors. Id. at ¶ 46, 390 P.3d at 823.

¶ 42   In their briefing, neither Wambolt nor the People offer a

  standard of reversal. Wambolt contends that this contention was


                                    20
  preserved, thus implying that we should review the error under the

  constitutional harmless error standard. In their statement of the

  standard of review, the People agree that Wambolt preserved this

  claim.5

¶ 43   There is no dispute that in the trial court Wambolt vigorously

  opposed retrial on the ADARP charge following the guilty verdict on

  DARP. However, as noted above, Wambolt has adopted on appeal

  an argument that is diametrically contrary to the argument he

  made in the trial court. Thus, we will consider his argument



  5 In a footnote in their answer brief, the People contend that to the
  extent Wambolt argues it was error to resubmit the DARP elements
  to the second jury, Wambolt either waived this claim or invited any
  error because he requested that, in the event the trial court
  permitted retrial on the ADARP charge, the second jury be
  instructed on all of the ADARP elements. We reject the People’s
  contentions. First, we conclude that Wambolt did not waive the
  double jeopardy claim by asking for all of the ADARP elements to be
  submitted to the second jury because, rather than relinquishing a
  known right, Wambolt attempted to invoke his right to have a single
  tribunal decide guilt. Cf. People v. Rediger, 

, 

 (defining “waiver” as involving “intentional
  relinquishment of a known right or privilege”). Similarly, we
  conclude the error was not invited because Wambolt’s request was
  an attempt to mitigate any harm in the event the trial court
  permitted the People to retry the ADARP charge. See People v.
  Pollard, 

, ¶ 35, 

 (“[A] party does
  not invite error when it responds to an error committed by the
  opposing party.”) (citation omitted).

                                   21
  unpreserved and review for plain error. See Martinez v. People,

  

, 

 (“Plain error review is . . .

  applicable when a party alters the grounds for his objection on

  appeal.”).

¶ 44   We note that there is an apparent inconsistency between the

  supreme court’s application of the plain error standard in Reyna-

  Abarca, see ¶ 81, 390 P.3d at 828, and its application of that

  standard in Scott v. People, 

, 

. We discuss

  the discrepancy in greater detail in our analysis below. Here, we

  conclude that even under the stricter analysis applied in Scott, the

  error was plain.

¶ 45   Under plain error review, we reverse only if the error is

  “obvious and substantial,” Hagos, ¶ 14, 

, and “so

  undermined the fundamental fairness of the trial itself so as to cast

  serious doubt on the reliability of the judgment of conviction,” 

  (quoting People v. Miller, 

 (Colo. 2005)).

¶ 46   First, we conclude the error was obvious. An error is obvious

  if it violates “a well-settled legal principle.” See People v. Pollard,

  

, ¶ 40, 

. We acknowledge that

  the law on whether DARP was a lesser included offense of ADARP


                                      22
  has changed over the course of the last several years. Nevertheless,

  we conclude the error here ran afoul of an established legal

  principle, namely, that the Double Jeopardy Clauses “protect[]

  against a second prosecution for the same offense after conviction.”

  Brown, 

 (quoting Pearce, 

). Under

  the unusual circumstances of this case, the trial court violated that

  established principle by allowing the People to retry Wambolt —

  ostensibly for ADARP but effectively for DARP — after the first jury

  had returned a guilty verdict on the DARP charge. Thus, we

  consider the error obvious.

¶ 47   Further, we conclude the error was substantial. “[T]he

  prohibition against double jeopardy is a substantial right

  guaranteed by the United States and Colorado Constitutions.”

  People v. Friend, 

, ¶ 75, ___ P.3d ___, ___ (cert.

  granted in part Feb. 8, 2016). Thus, the double jeopardy violation

  here constituted a substantial error. We similarly conclude that the

  error significantly undermines the reliability of Wambolt’s ADARP

  conviction. See id. at ¶ 76, ___ P.3d at ___.

¶ 48   As a result, we vacate the conviction for ADARP entered after

  the second trial. Wambolt acknowledges that the proper remedy is


                                    23
  to reinstate the first jury’s verdict. See Morris v. Mathews, 

 (1986). Thus, we remand to the trial court to reinstate the

  first jury’s judgment of conviction on DARP.

                               III. Merger

¶ 49   Wambolt contends that the trial court erred in entering

  convictions for both DUR and DARP.6 We agree because we

  conclude, based on our understanding of the most recent supreme

  court jurisprudence, that DUR is a lesser included offense of DARP.

  However, we conclude that the error here was not obvious, and

  therefore we affirm both convictions.

                         A. Standard of Review

¶ 50   We review de novo whether merger applies to criminal

  offenses. People v. Zweygardt, 

, 

. An unpreserved double jeopardy claim is reviewable for plain

  error. Reyna-Abarca, ¶¶ 45-46, 390 P.3d at 823. Plain errors are

  “obvious and substantial,” Hagos, ¶ 14, 

, and “cast




  6In a footnote in their answer brief, the People contend that
  Wambolt’s merger claim would “evaporate[]” if Wambolt were
  convicted of DARP rather than ADARP. We disagree, and therefore
  address whether DUR merges with DARP.

                                    24
  serious doubt on the reliability of the judgment of conviction,” 

  (quoting Miller, 

).

                            B. Applicable Law

                                1. Merger

¶ 51   Unless a statute expressly authorizes multiple punishments

  for the same criminal offense, the Double Jeopardy Clauses of the

  United States and Colorado Constitutions prohibit “the imposition

  of multiple punishments for the same criminal conduct.” Woellhaf

  v. People, 

 (Colo. 2005); see U.S. Const. amends.

  V, XIV; Colo. Const. art. II, § 18. Thus, absent express

  authorization from the legislature, a defendant may not be

  convicted of two offenses for the same conduct if the lesser offense

  is included in the greater. § 18-1-408(1)(a), C.R.S. 2017.

                                 2. DUR

¶ 52   A person commits the offense of DUR if he or she “drives a

  motor vehicle or off-highway vehicle upon any highway of this state

  with knowledge that the person’s license or privilege to drive, either

  as a resident or a nonresident, is under restraint.” § 42-2-138(1)(a),

  C.R.S. 2017. The punishment for the offense is greater if the

  defendant’s license is under restraint “solely or partially because of


                                       25
  a conviction of DUI, DUI per se, DWAI, or [underage drinking and

  driving].” § 42-2-138(1)(d)(I).

             “Highway” means the entire width between the
             boundary lines of every way publicly
             maintained when any part thereof is open to
             the use of the public for purposes of vehicular
             travel or the entire width of every way declared
             to be a public highway by any law of this state.

  § 42-1-102(43), C.R.S. 2017. As relevant here, “‘[m]otor vehicle’

  means any self-propelled vehicle that is designed primarily for travel

  on the public highways and that is generally and commonly used to

  transport persons and property over the public highways.” § 42-1-

  102(58). “‘Off-highway vehicle’ means any self-propelled vehicle . . .

  which is designed primarily for use off of the public highways, and

  which is generally and commonly used to transport persons for

  recreational purposes.” § 33-14.5-101(3), C.R.S. 2017; see also

  § 42-1-102(63).

                                    3. DARP

¶ 53   A person commits the offense of DARP if he or she is “found to

  be an habitual offender, who operates a motor vehicle in this state

  while the revocation of the department prohibiting such operation is




                                      26
  in effect.” § 42-2-206(1)(a)(I); see also § 42-2-202, C.R.S. 2017

  (defining “habitual offender” as used in DARP statute).

              4. DUR as Lesser Included Offense of DARP

¶ 54   As with Wambolt’s first double jeopardy claim, the relevant law

  in this area has undergone significant recent change.

¶ 55   In People v. Rodriguez, a division of this court held that DUR is

  a lesser included offense of DARP. 

 (Colo. App.

  1992). The division there reasoned that DARP includes all of the

  elements required by DUR, plus the additional element requiring

  that the offense “was committed by a person whose privilege to

  drive had been revoked as an habitual offender.” 

¶ 56   Rodriguez apparently governed this issue until another

  division of this court held to the contrary in 2013. Zubiate, ¶ 49,

  411 P.3d at 766. In Zubiate, the division concluded that the

  offenses did not merge “because proving the DARP elements does

  not necessarily establish DUR.” Id. The division based its

  conclusion on two distinct grounds. First, DUR requires that the

  defendant drive on “any highway” whereas DARP “is not limited to

  the highway and applies to private ways as well.” Id. at ¶ 50, 411

  P.3d at 767. Second, DUR requires proof that a defendant was


                                    27
  driving a motor vehicle, whereas DARP requires that the defendant

  was operating a motor vehicle, and “one could operate a vehicle

  without necessarily driving it.” Id. at ¶ 51, 411 P.3d at 767.

¶ 57   Then, in 2017, the supreme court decided a series of cases

  refining the test for determining whether one offense is a lesser

  included offense of another. First, in Reyna-Abarca, the supreme

  court clarified the statutory elements test, holding that “an offense

  is a lesser included offense of another offense if the elements of the

  lesser offense are a subset of the elements of the greater offense,

  such that the lesser offense contains only elements that are also

  included in the elements of the greater offense.” ¶ 64, 390 P.3d at

  826. In so holding, the supreme court “disavow[ed]” its prior

  conclusion in Meads v. People, 

 (Colo. 2003), and its

  “strict elements test” under which one offense is a lesser included of

  another only “if proof of facts establishing the statutory elements of

  the greater offense necessarily establishes all of the elements of the

  lesser offense.” Reyna-Abarca, ¶¶ 65-67, 390 P.3d at 826-27

  (quoting Meads, 

).

¶ 58   Next, in Zubiate (which was decided on the same day as

  Reyna-Abarca), the supreme court affirmed the conclusion of the


                                     28
  court of appeals that DUR is not a lesser included offense of

  ADARP. Zubiate, ¶ 15, 390 P.3d at 397. We note that in Zubiate,

  the supreme court analyzed whether DUR merged with ADARP, not

  DARP. Id. at ¶ 13, 390 P.3d at 397. However, the supreme court’s

  analysis did not hinge on — or even mention — the aggravated

  aspect of ADARP. Thus, this distinction does not affect our analysis

  of the case. The court reasoned:

             DUR (the purported lesser included offense)
             contains as an element “driving a motor
             vehicle or off-highway vehicle.” In contrast,
             aggravated DARP (the purported greater
             offense) contains as an element “operating a
             motor vehicle.”

             ....

             Accordingly, the offense of DUR contains more
             elements than the offense of aggravated DARP
             (i.e., “motor vehicle or off-highway vehicle,” as
             opposed to just “motor vehicle”). As a result,
             by definition, DUR is not a subset of
             aggravated DARP.

  Id. at ¶¶ 18-20, 390 P.3d at 398. Thus, the supreme court’s

  analysis did not rely on either of the two grounds on which the

  division of this court based its opinion.

¶ 59   A few months later, the supreme court again revisited the

  statutory elements test in Rock, ¶ 16, 

. The Rock


                                     29
  court clarified that, “[t]o the extent that a lesser offense is

  statutorily defined in disjunctive terms, effectively providing

  alternative ways of being committed, any set of elements sufficient

  for commission of that lesser offense that is necessarily established

  by establishing the statutory elements of a greater offense

  constitutes an included offense.” Id.; see also Page v. People, 

, 

 (“An offense can . . . be included in

  another under the statutory elements test when there are multiple

  ways to commit the lesser, not all of which are included within the

  greater.”).

¶ 60   Applying that rule, the Rock court held that second degree

  trespass was a lesser included offense of second degree burglary as

  those offenses were charged in that case. ¶ 20, 402 P.3d at 479.

  The supreme court reached that conclusion despite the fact that

  “second degree criminal trespass may be committed in ways other

  than unlawfully entering or remaining in or upon the premises of

  another and, in fact, the premises at issue in criminal trespass

  need not even be a building, much less a dwelling.” Id. at ¶ 20, 402

  P.3d at 479. The court acknowledged that this analysis was at odds

  with its reasoning in Zubiate, but did not expressly overrule that


                                      30
  opinion. Significantly, the Rock court held, “To the extent our

  rationale in Zubiate . . . does not reflect the limitation that we adopt

  today, it is disapproved.” ¶ 16 n.4, 

 n.4

                                C. Analysis

¶ 61   Wambolt contends that DUR is a lesser included offense of

  DARP and, as a result, the trial court erred in entering both

  convictions. We agree.

¶ 62   In deciding whether DUR is a lesser included offense of DARP,

  we must grapple with the effect of Rock on Zubiate. As discussed,

  Zubiate relied on the inclusion of the “off-highway vehicle” language

  in the DUR statute. § 42-2-138(1)(a). Based on that distinction, a

  person could commit DUR, but not DARP, while driving an off-

  highway vehicle; according to the Zubiate court, DUR was therefore

  not a lesser included offense of DARP. See Zubiate, ¶ 19, 390 P.3d

  at 398.

¶ 63   However, we conclude that the supreme court’s holding in

  Zubiate is no longer good law after the Rock court disapproved its

  rationale. As the Rock court clarified, “it is enough that any

  particular set of elements sufficient for conviction of th[e lesser]

  offense be . . . contained [in the statutory definition of the greater


                                     31
  offense].” ¶ 16, 402 P.3d at 478. One particular set of DUR

  elements — a set including driving a motor vehicle — is contained in

  DARP. Under Rock, it does not matter that an alternative set of

  DUR elements — a set including driving an off-highway vehicle — is

  not contained in DARP.

¶ 64   We apply the same analysis to the People’s argument that

  DUR is not a lesser included offense of DARP because DUR requires

  that the defendant drive on a “highway” whereas DARP is not so

  limited.7 As the People state, a person could commit DARP by



  7 The People cite section 42-2-206(1)(b)(III)(A), C.R.S. 2017, in
  support of their related argument that the legislature has “made
  clear” that alcohol-related offenses should not merge with ADARP.
  While that provision expressly authorizes a court to enter a
  conviction for DUI, DUI per se, or DWAI in addition to a conviction
  for ADARP, it is inapposite in determining whether DUR merges
  with ADARP or DARP. See People v. Zubiate, 

, ¶ 46,
  

, aff’d, 

, 

 (“The People
  argue that defendant’s convictions do not merge because DUR
  requires proof that the existing revocation be for a previous alcohol-related offense. We are not persuaded . . . .”). Further, the People
  concede that “the alcohol-related aspect of DUR is only a sentenceenhancer.” Thus, to the extent they nevertheless argue that DUR
  should not merge with ADARP because DUR is sometimes premised
  on prior alcohol-related offenses, this concession undermines their
  own argument. See Armintrout v. People, 

 (Colo.
  1993) (“[W]e do not consider sentence enhancement provisions
  when determining whether one offense is the lesser included of
  another.”).

                                    32
  operating a motor vehicle on a private roadway and, in that

  scenario, the defendant would not have committed DUR. However,

  we conclude the People’s argument is foreclosed by Rock. Again, a

  particular set of DUR elements — a set including driving on any

  highway — is contained in DARP. Although a person could commit

  DARP without committing DUR, he or she could not commit DUR

  without committing DARP if the offense occurred on a “highway.”

¶ 65   Finally, Wambolt contends, the People concede, and we agree

  that the “drive” element of DUR is included within the “operate”

  element of DARP because a person who drives a car necessarily

  operates it. See People v. Stewart, 

 (Colo. 2002),

  as modified on denial of reh’g (Oct. 15, 2002) (noting, in reference to

  different statutes, that “[t]he term ‘operate’ is somewhat broader”

  than “drive”).

¶ 66   In sum, we conclude that DUR is a “subset” of DARP such that

  a “set of elements sufficient for commission of that lesser offense

  . . . is necessarily established by establishing the statutory elements

  of” DARP, the greater offense. Rock, ¶ 16, 402 P.3d at 478.




                                    33
                              D. Plain Error

¶ 67   Having determined that DUR is a lesser included offense of

  DARP, we turn to whether the trial court plainly erred in this case

  by entering both convictions based on the same criminal conduct

  by Wambolt. We conclude that the error was not plain.

¶ 68   As noted, the supreme court in Reyna-Abarca held that an

  unpreserved double jeopardy claim can be raised for the first time

  on appeal. ¶¶ 45-46, 390 P.3d at 823. Further, the court

  determined that such claims are ordinarily subject to plain error

  review. Id. at ¶ 47, 390 P.3d at 823; see also id. at ¶ 98, 390 P.3d

  at 832 (Coats, J., concurring in part and dissenting in part)

  (agreeing with “the majority’s plain error analysis”).

¶ 69   However, in applying that standard of review, the Reyna-

  Abarca court did not address the requirement, discussed below,

  that a plain error be obvious. Instead, the supreme court majority

  stated that “courts have invariably concluded that when a

  defendant’s double jeopardy rights are violated for failure to merge a

  lesser included offense into a greater offense, such a violation

  requires a remedy.” Id. at ¶ 81, 390 P.3d at 828 (majority opinion).

  In contrast, in Scott v. People — also decided the same day as


                                    34
  Reyna-Abarca — the supreme court held that, even assuming the

  trial court had erred in entering convictions for both menacing and

  aggravated robbery - menaced victim, any error was not plain.

  Scott, ¶ 14, 390 P.3d at 835.

¶ 70   Thus, as we noted above, there is some tension between the

  supreme court’s plain error review in these cases. To the extent

  that Reyna-Abarca and Scott conflict in their application of the plain

  error standard, we elect to follow the more traditional analysis in

  Scott. As stated in Scott,

             [t]o qualify as plain error, an error must
             generally be so obvious that a trial judge
             should be able to avoid it without the benefit of
             an objection. For an error to be this obvious,
             the action challenged on appeal ordinarily
             “must contravene (1) a clear statutory
             command; (2) a well-settled legal principle; or
             (3) Colorado case law.”

  ¶ 16, 390 P.3d at 835 (citation omitted) (quoting Pollard, ¶ 40, 

). In contrast, an error is not obvious when “either [the

  supreme] court or a division of the court of appeals has previously

  rejected an argument being advanced by a subsequent party who is

  asserting plain error.” Id. at ¶ 17, 390 P.3d at 835.




                                    35
¶ 71   Under that standard, we conclude that the error here was not

  plain because it was not obvious. Wambolt was sentenced in

  January 2015. At that time, the state of the law was unclear, not

  only as to whether DUR merged with DARP, but even as to the

  general test to apply in determining whether one offense was a

  lesser included of another.

¶ 72   Moreover, as we have discussed, the law in this area has

  changed even since Wambolt filed his opening brief in this court.

  Given the Rock court’s footnote “disapprov[ing]” of Zubiate, the law

  remains somewhat unsettled. Rock, ¶ 16 n.4, 402 P.3d at 478 n.4.

  Thus, Wambolt’s reliance on Henderson v. United States, 

 (2013), is unavailing. In Henderson, a substantive legal

  question was unsettled at the time the trial court acted, but

  “[b]efore the case was final and at the time of direct appellate

  review, . . . the question had become settled in the defendant’s

  favor, making the trial court’s error ‘plain’ — but not until that later

  time.” 

; see also Romero v. People, 

, ¶ 1 n.1,

  

, 975 n.1 (noting that supreme court granted certiorari

  to review whether court of appeals had misapplied Henderson;




                                     36
  however, the supreme court did not address that issue). Those are

  clearly not the circumstances here.

¶ 73   In light of the conflicting decisions addressing the issue of

  merger in this context, the trial court did not plainly err in entering

  the DUR and DARP convictions.

                         IV. Motion to Suppress

¶ 74   Wambolt finally contends that the trial court erred in denying

  his motion to suppress statements he made after being detained.

  We disagree.

                           A. Additional Facts

¶ 75   Police officers were dispatched to Agate in response to a report

  of a man who, while driving a motorcycle, had chased the reporting

  party for a few blocks and possibly brandished a firearm. The

  responding officers, one sergeant and one deputy, were in a

  neighboring town and did not arrive in Agate until approximately

  twenty-five to forty minutes later. While the officers were en route,

  the 911 dispatcher communicated that the reporting party had

  called back to clarify that the suspect might not have been armed.

¶ 76   The sergeant saw a motorcycle parked in front of a house

  about a block away from where the reporting party lived. A man


                                    37
  was leaning into a car parked by the motorcycle. The sergeant drew

  his weapon, ordered the man to put his hands out, handcuffed him,

  and put him in the back of the patrol car. The deputy was acting as

  cover and had his rifle in low ready position.

¶ 77   Meanwhile, Wambolt and a woman started to come out of the

  house and attempted to tell the officers that they had arrested the

  wrong person, but the sergeant ordered them to go back inside.

  They initially complied, but left the house again after a few minutes

  and came into the front yard. The sergeant ordered Wambolt to

  stop and asked his consent to pat him down. Wambolt consented.

  The sergeant frisked Wambolt and found no weapons.

¶ 78   The sergeant then told Wambolt that the officers were

  investigating a “possible brandishing” of a weapon that involved a

  motorcycle, and Wambolt said that he had been the one riding the

  motorcycle. Although the sergeant found Wambolt compliant and

  “very easy to get along with,” he handcuffed him and placed him in

  the back of the deputy’s patrol car.

¶ 79   After Wambolt spent approximately eleven minutes alone in

  the patrol car, the officers took him out of the vehicle and removed

  the handcuffs. The deputy then advised Wambolt of his rights


                                    38
  under Miranda v. Arizona, 

 (1966), which Wambolt

  waived. In response to the deputy’s questions, Wambolt admitted

  that he had been “drinking heavily,” but said he had stopped

  drinking about an hour before he had driven the motorcycle. Both

  officers observed that Wambolt was slurring his speech, had red

  eyes, and smelled of alcohol.

¶ 80   Before trial, Wambolt moved to suppress the statements he

  made on the night of his arrest. He argued that his statements

  were the fruit of an unlawful detention and, as a result, should

  have been suppressed. He also argued that his statements were

  taken in violation of his Miranda rights. After a hearing, the trial

  court denied the motion, concluding that the officers had conducted

  a constitutional investigatory stop and that Wambolt voluntarily,

  knowingly, and intelligently waived his Miranda rights and made

  the statements voluntarily.

                          B. Standard of Review

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

  mixed question of fact and law. People v. King, 

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




                                    39
  when they are supported by sufficient competent evidence in the

  record, we review conclusions of law de novo. 

                            C. Applicable Law

¶ 82   The United States and Colorado Constitutions prohibit

  unreasonable searches and seizures. U.S. Const. amends. IV, XIV;

  Colo. Const. art. II, § 7. “The determination of whether a search or

  seizure is reasonable depends upon the reason for and the extent of

  the intrusion.” People v. Archuleta, 

 (Colo. 1999).

¶ 83   Thus, a police officer can lawfully conduct an investigatory

  detention if three criteria are met: “(1) the officer must have a

  reasonable suspicion that criminal activity has occurred, is taking

  place, or is about to take place; (2) the purpose of the intrusion

  must be reasonable; and (3) the scope and character of the

  intrusion must be reasonably related to its purpose.” People v.

  Padgett, 

 (Colo. 1997) (quoting People v.

  Sutherland, 

 (Colo. 1994)).

¶ 84   However,

             when officers use force typically associated
             with an arrest — such as the drawing of
             weapons, physical restraint, and the use of
             handcuffs — the prosecution may not
             characterize the encounter as an investigatory


                                     40
             stop unless specific facts or circumstances
             exist that render the use of such force a
             reasonable precaution for the protection and
             safety of the officers.

  King, 

. If the People fail to prove that the use of force

  was necessary for officer safety, the encounter must be

  characterized as an arrest and, thus, must be supported by

  probable cause. See 

.

¶ 85   Evidence obtained as a result of an illegal arrest must

  generally be suppressed. 

. However, exceptions to the

  exclusionary rule “justify admission of evidence even though it is

  derived from information obtained” through unconstitutional

  means. People v. Schoondermark, 

 (Colo. 1988).

  One such exception is attenuation. 

 Under that doctrine, the

  People must prove that “the connection between the initial illegality

  and the evidence has become so attenuated as to dissipate the

  taint.” Id.; see Brown v. Illinois, 

 (1975). Three

  primary factors are relevant in determining whether evidence is

  sufficiently attenuated: “[t]he temporal proximity of the arrest and

  the confession, the presence of intervening circumstances, and,

  particularly, the purpose and flagrancy of the official misconduct.”



                                    41
  People v. Lewis, 

 (Colo. 1999) (quoting Brown,

  

).

                               D. Analysis

¶ 86   Wambolt contends that the statements he made after being

  advised of his Miranda rights should have been suppressed because

  they were the fruit of his unconstitutional seizure.8 Although we

  agree that Wambolt was unconstitutionally arrested, we

  nevertheless conclude that the statements were admissible because

  they were sufficiently attenuated from the unlawful arrest.

¶ 87   When the officers put Wambolt in handcuffs at gunpoint and

  placed him in the back of the patrol car, they had already frisked

  both men on the scene and determined that neither had a weapon.

  Moreover, both men had been compliant and the sergeant said that

  Wambolt was “very easy to get along with.” At that point, no

  specific facts supported a reasonable belief that a threat to officer

  safety required the use of handcuffs and weapons. See King, 16



  8 On appeal, Wambolt does not challenge the admission of his
  statement that he was the man riding the motorcycle. That
  statement was voluntarily made to the sergeant before Wambolt was
  seized. Rather, he challenges only his post-Miranda statements
  concerning his drinking before riding the motorcycle.

                                    42
  P.3d at 810. Thus, in our view, the seizure constituted an arrest.

  Because the People do not argue that the officers had probable

  cause to arrest Wambolt, we conclude that his arrest was

  unconstitutional.

¶ 88   However, we further conclude that Wambolt’s statements were

  attenuated from his illegal arrest and thus admissible.9 Although

  the time between the illegal arrest and the interrogation was

  relatively brief — approximately eleven minutes — Wambolt was

  alone during that time and not subjected to questioning. See

  Lewis, 

 (“The first factor, temporal proximity, is the

  least determinative factor involved.”). Further, intervening

  circumstances significantly attenuated the taint of the illegal arrest.

  Before interrogating Wambolt, the officers removed him from the


  9 We note that the People invoke the inevitable discovery doctrine,
  arguing that the officers would have inevitably discovered and
  talked to Wambolt because he was on the scene and because they
  would have eventually realized they had first arrested the wrong
  man. We do not believe that doctrine is applicable here. “The
  inevitable discovery exception does not invite speculation about
  possible series of events under which the evidence may have been
  discovered, but requires an affirmative showing of a reasonable
  probability that the evidence would inevitably be discovered through
  lawful means already initiated when the seizure was made.” People
  v. Syrie, 

 (Colo. 2004) (emphasis added). There
  was no such showing here.

                                    43
  patrol car and removed his handcuffs. The officers had also

  holstered their weapons at that point. Moreover, Wambolt was

  advised of his rights under Miranda and voluntarily waived them.

  Finally, we acknowledge that the officers’ actions were aimed at

  investigating a possible weapons offense and any misconduct was

  not flagrant.

¶ 89   Thus, we conclude that Wambolt’s statements were

  admissible, and therefore we affirm the trial court’s denial of the

  motion to suppress.

                             V. Conclusion

¶ 90   We affirm the judgment of conviction for DWAI and DUR,

  vacate the conviction for ADARP, and remand for the trial court to

  reinstate the DARP conviction and for correction of the mittimus

  accordingly.

       JUDGE BERNARD and JUDGE WELLING concur.




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