SUMMARY 

May 3, 2018 

2018COA60

No. 14CA1390, People v. Kessler — Constitutional Law — 

Searches and Seizures — Warrantless Search — Search Incident 

to Arrest — Motor Vehicles 

A division of the court of appeals considers whether the trial 

court should have suppressed evidence of cocaine recovered from 

defendant’s car after he was arrested for driving under the influence 

because the police lacked sufficient grounds to search the car once 

they seized a half-empty bottle of schnapps. 

The majority concludes that officers may search the passenger 

compartment of a vehicle where the circumstances give rise to a 

reasonable, articulable suspicion that the vehicle might contain 

evidence of the crime for which they had probable cause to arrest. 

The majority further concludes that the police officers’ reasonable 

suspicion that defendant’s car contained evidence of alcohol did not 

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. 
evaporate once the officers found some alcohol in the car. Thus, it 

affirms the trial court’s denial of the motion to suppress. 

The partial dissent disagrees and concludes that the police 

lacked the requisite reasonable suspicion to further search the car 

for alcohol once they recovered a half-empty bottle of schnapps. 
COLORADO COURT OF APPEALS 2018COA60

Court of Appeals No. 14CA1390 

Grand County District Court No. 13CR58 

Honorable Mary C. Hoak, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Daniel Steven Kessler, 

Defendant-Appellant. 

JUDGMENT AFFIRMED 

Division II 

Opinion by JUDGE MÁRQUEZ* 

Navarro, J., concurs 

Dailey, J., concurs in part and dissents in part 

Announced May 3, 2018 

Cynthia H. Coffman, Attorney General, Paul Koehler, First Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Douglas K. Wilson, Colorado State Public Defender, Jessica A. Pitts, 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. 2017. 
1 

¶ 1 Defendant, Daniel Steven Kessler, appeals the judgment of 

conviction entered on jury verdicts finding him guilty of possession 

of a controlled substance (cocaine), driving under the influence, 

possessing an open container of alcohol in a motor vehicle, 

operating a motor vehicle without a license, and speeding. We 

affirm. 

I. Background 

¶ 2 Kessler, who lived in Fraser, borrowed his father’s car to drive 

to Denver to see his girlfriend. On his return, he was stopped by 

police between Winter Park and Fraser for driving sixty-seven miles 

per hour in a fifty-five mile per hour zone. Upon approaching the 

car with a flashlight, the officer spotted a half-empty 375 milliliter 

bottle1 of schnapps on the floor behind the passenger’s seat. The 

officer asked Kessler for his license, registration, and proof of 

insurance multiple times before Kessler responded by presenting 

only the registration and proof of insurance; Kessler admitted that 

he did not have a valid driver’s license. 

 

1 This is a pint. Glenn E. Rohrer et al., Calculation of Blood Alcohol 

Concentration in Criminal Defendants, 22 Am. J. Trial Advoc. 177, 

184 (1998). 
2 

¶ 3 Noticing that Kessler had watery, bloodshot eyes, slurred 

speech, and an odor of alcohol on his breath, the officer asked him 

to step out of the car. Kessler needed to use the car door for 

support to get out of the car. When the officer asked if he had been 

drinking, Kessler initially told the officer that he had not; 

eventually, though, Kessler told him that he had drunk from the 

bottle of schnapps. The officer then administered a roadside 

sobriety examination of Kessler. After Kessler performed most of 

the maneuvers unsatisfactorily,2 the officer administered a 

preliminary breath test (PBT), which registered .154 g/210L, before 

arresting him for driving under the influence (DUI) and placing him 

in the back of a police car. 

¶ 4 Two other officers searched the vehicle for further evidence of 

alcohol consumption. Upon lifting the armrest over the center 

console in the front seat, they discovered a bag containing a white 

powdery substance that they suspected was, and which turned out 

to be, cocaine. 

 

2 Kessler recited the alphabet satisfactorily but showed signs of 

alcohol impairment in the horizontal gaze nystagmus, walk and 

turn, and one-legged stand parts of the standardized roadside 

maneuvers. 
3 

¶ 5 Approximately three hours after Kessler’s arrest, a deputy 

sheriff at the Grand County Jail administered a breath test as 

Kessler had requested. The test results showed that he had a blood 

alcohol content of 0.097g/210L. 

¶ 6 At trial, Kessler testified that although he had been drinking, 

he was not drunk, and that the cocaine found in his car did not 

belong to him. It could have been put there, he posited, by others 

(i.e., his girlfriend and a panhandler) who had been in the car 

earlier that day. 

¶ 7 The jury found Kessler guilty as charged. 

II. Sufficiency of Evidence: Possession of a Controlled Substance 

¶ 8 Kessler contends that the evidence was insufficient to convict 

him of possessing a controlled substance (cocaine). We disagree. 

¶ 9 As an initial matter, we reject the People’s position that this 

issue was not properly preserved for appeal. Although Kessler did 

not offer a precise argument, he did move for a judgment of 

acquittal on this and all the other counts. In response, the 

prosecution addressed each count in turn, including possessing a 

controlled substance. The trial court then denied Kessler’s motion 

after, like the prosecution, addressing each count and its specific 
4 

evidence. Because the trial court specifically addressed the count 

that Kessler challenges on appeal, the issue is properly preserved. 

People v. McFee, 2016 COA 97, ¶ 31 (“Where, despite imprecision in 

the objection, the trial court actually rules on the claim raised on 

appeal, and makes findings of fact and conclusions of law, the claim 

is sufficiently preserved.”). 

¶ 10 Turning to the merits, we note Kessler was convicted under 

section 18-18-403.5(1), C.R.S. 2017, which provides, “it is unlawful 

for a person knowingly to possess a controlled substance.” Here, 

Kessler asserts that there was insufficient evidence from which a 

jury could find that he possessed, or knowingly possessed, the 

cocaine because he borrowed the car from his father, he was not in 

exclusive control of the car on the date in question, and he denied 

knowing the cocaine was in the car. In support of his assertion, he 

advances two contentions — namely, that (1) where a person is not 

in exclusive control of the area in which drugs are found, the 

inference of possession may not be drawn unless statements or 

other circumstances buttress that inference; and (2) the mere 

presence of a drug does not, in and of itself, prove knowing 

possession of it, see People v. Poe, 2012 COA 166, ¶ 16. 
5 

¶ 11 A flaw in Kessler’s arguments is their premises — that is, that 

he was not in exclusive possession of the car (because others had 

ridden in it that day) and that nothing besides the mere presence of 

the cocaine was presented to show he knowingly possessed it. His 

premises assume that the jury believed his version of events. Such 

an assumption is given no effect, however, in assessing a sufficiency 

of evidence issue. 

When assessing the sufficiency of the evidence 

supporting a conviction, we review the record 

de novo to determine whether the evidence, 

viewed in the light most favorable to the 

prosecution, was both substantial and 

sufficient to support the conclusion by a 

reasonable mind that the defendant was guilty 

beyond a reasonable doubt. 

People v. Griego, 2018 CO 5, ¶ 24. 

¶ 12 In analyzing the sufficiency of the evidence, we recognize that 

(1) it is for the fact finder to determine the difficult questions of 

witness credibility and the weight to be given to conflicting items of 

evidence, see People v. Gibson, 203 P.3d 571, 575 (Colo. App. 2008); 

(2) a fact finder is not required to accept or reject a witness’s 

testimony in its entirety; it may believe all, part, or none of a 

witness’s testimony, Gordon v. Benson, 925 P.2d 775, 778-79 (Colo. 
6 

1996); (3) an actor’s state of mind is normally not subject to direct 

proof and must be inferred from his or her actions and the 

circumstances surrounding the occurrence, People v. Phillips, 219 

P.3d 798, 800 (Colo. App. 2009); (4) the prosecution must be given 

the benefit of every inference that may fairly be drawn from the 

evidence, People v. Heywood, 2014 COA 99, ¶ 1; (5) “[i]f there is 

evidence upon which one may reasonably infer an element of the 

crime, the evidence is sufficient to sustain that element,” People v. 

Chase, 2013 COA 27, ¶ 50; and (6) “[w]here reasonable minds could 

differ, the evidence is sufficient to sustain a conviction,” People v. 

Bondurant, 2012 COA 50, ¶ 58 (quoting People v. Carlson, 72 P.3d 

411, 416 (Colo. App. 2003)); see People v. Arzabala, 2012 COA 99, 

¶ 13 (“An appellate court is not permitted to act as a ‘thirteenth 

juror’ and set aside a verdict because it might have drawn a 

different conclusion had it been the trier of fact.”). 

¶ 13 Initially, we note that the possibility someone else was in the 

car earlier that day does not change the fact that Kessler was in 

exclusive possession of the vehicle when it was stopped and 

searched, making him subject to the inferences that he knowingly 

possessed the cocaine. See People v. Baca, 109 P.3d 1005, 1007 
7 

(Colo. App. 2004) (“[K]nowledge [of drugs] can be inferred from the 

fact that the defendant is the driver and sole occupant of a vehicle, 

irrespective of whether he is also the vehicle’s owner.”); see also 

Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999) (holding that where the 

defendant was the only person in a borrowed car when stopped, his 

exclusive possession of the car was sufficient to raise a reasonable 

inference of knowledge of the presence of contraband). Moreover, 

as noted above, the jury was not bound to accept Kessler’s 

testimony that others had been in the car that day — yet another 

reason why, for sufficiency of evidence purposes, Kessler could be 

considered to have been in exclusive possession of the car. 

¶ 14 Furthermore, one officer testified that the cocaine was, upon 

the simple movement of lifting the armrest, plainly visible — and 

not covered by anything — in the console. This testimony, in 

conjunction with the cocaine’s location just inches from where 

Kessler sat on and off for ten hours that day, and Kessler’s 

testimony that, to his knowledge, no one else had interacted with 

the console, amply supported the inference that Kessler knowingly 

possessed the cocaine. See People v. Warner, 251 P.3d 556, 564 
8 

(Colo. App. 2010) (“A conviction for possession of a controlled 

substance may be predicated on circumstantial evidence.”). 

III. Admission of Evidence Concerning the Cocaine Found in the 

Car 

¶ 15 On appeal, Kessler contends that the trial court should have 

suppressed evidence related to the recovery of cocaine from his car 

because the police lacked sufficient grounds to search the car once 

they seized the half-empty bottle of schnapps. We disagree. 

¶ 16 A district court’s ruling on a motion to suppress evidence 

presents a mixed question of law and fact. People v. Glick, 250 P.3d 

578, 582 (Colo. 2011); People v. Rabes, 258 P.3d 937, 940 (Colo. 

App. 2010). We defer to the court’s findings of fact so long as they 

are supported by competent evidence in the record, but we review 

the court’s legal conclusions de novo. Glick, 250 P.3d at 582. 

¶ 17 The Fourth Amendment to the United States Constitution 

protects against unreasonable searches and seizures. People v. 

D.F., 933 P.2d 9, 11-12 (Colo. 1997). Warrantless searches are 

presumptively invalid unless justified by an established exception to 

the warrant requirement. People v. Prescott, 205 P.3d 416, 419 

(Colo. App. 2008). One such exception is the search of a vehicle 
9 

incident to a lawful arrest. People v. Coates, 266 P.3d 397 (Colo. 

2011).3 

¶ 18 In Arizona v. Gant, 556 U.S. 332 (2009), the United States 

Supreme Court held that “[p]olice may search a vehicle incident to a 

recent occupant’s arrest only if the arrestee is within reaching 

distance of the passenger compartment at the time of the search or 

it is reasonable to believe the vehicle contains evidence of the 

offense of arrest.” Id. at 351. 

¶ 19 Here, because Kessler had been removed from the car and 

taken into custody before the search occurred, we are concerned 

only with the second Gant situation — that is, whether it was 

reasonable for the police to believe that Kessler’s vehicle contained 

evidence of the offense of arrest, DUI. 

¶ 20 Many state and federal courts hold “either ‘that the “nature of 

the charge” is determinative of whether there exists a reasonable 

basis to search for evidence’ or that reasonableness of belief should 

 

3 This is the exception on which the parties and the court focused 

in the trial court. Another exception is the automobile exception. 

See People v. Zuniga, 2016 CO 52, ¶ 14. The applicability of the 

automobile exception was not argued in the trial court or on appeal. 
10 

be determined ‘based upon common sense factors and the totality of 

the circumstances.’” Rebecca A. Fiss, When “It Depends” Isn’t Good 

Enough: The Problems Caused by the Supreme Court of North 

Carolina’s Decision in State v. Mbacke, 91 N.C. L. Rev. 1404, 1435–

36 (2013) (footnote omitted) (first quoting Brown v. State, 24 So. 3d 

671, 678 (Fla. Dist. Ct. App. 2009); then quoting United States v. 

Reagan, 713 F. Supp. 2d 724, 728 (E.D. Tenn. 2010)); see State v. 

Eversole, No. 15-17-03, 2017 WL 5127369, at *4 (Ohio Ct. App. 

Nov. 6, 2017) (“Two primary approaches to Gant’s reason-to-believe 

language have developed — the ‘categorical’ approach and the 

‘reasonableness’ approach.”). 

¶ 21 Some courts, using the categorical approach, have held that 

an arrest for DUI in and of itself supplies the reason for a search 

incident to arrest under Gant. See, e.g., People v. Nottoli, 130 Cal. 

Rptr. 3d 884, 903 (Cal. Ct. App. 2011) (“[T]he search of the Acura 

incident to Reid’s arrest for being under the influence was lawful 

under Gant based on the nature of that offense.”); State v. Cantrell, 

233 P.3d 178, 185 (Idaho 2010) (“In this case, Cantrell was arrested 

for DUI, and the DUI supplied the basis for the search.”). 
11 

¶ 22 Other courts have rejected the categorical approach under 

Gant in DUI situations, looking instead to the totality of the 

circumstances to determine if the officer had a specific, reasonable, 

and articulable suspicion apart from the mere nature of the offense 

to justify a search of a vehicle incident to the arrest. See, e.g., 

United States v. Taylor, 49 A.3d 818, 824 (D.C. 2012); Taylor v. 

State, 137 A.3d 1029, 1033-34 (Md. 2016). 

¶ 23 In People v. Chamberlain, 229 P.3d 1054 (Colo. 2010), the 

supreme court eschewed use of a categorical (or nature of offense) 

approach to determining the validity of a search of a car incident to 

arrest: 

The nature of the offense of arrest is clearly 

intended to have significance, and in some 

cases it may virtually preclude the existence of 

real or documentary evidence, but a broad rule 

automatically authorizing searches incident to 

arrest for all other offenses cannot be 

reconciled with the actual holding of Gant. 

Id. at 1057. 

¶ 24 Consequently, “[u]nder the evidence-gathering rationale set 

forth in [Gant], officers may search the passenger compartment of a 

vehicle where the particular circumstances give rise to a reasonable 

articulable suspicion that the vehicle might contain evidence of the 
12 

crime for which they had probable cause to arrest.” People v. Crum, 

2013 CO 66, ¶ 2 (emphasis added) (citation omitted). 

¶ 25 The reasonable suspicion standard requires “considerably less 

than proof . . . by a preponderance of the evidence and is less 

demanding even than the ‘fair probability’ standard for probable 

cause.” People v. Polander, 41 P.3d 698, 703 (Colo. 2001). It is 

satisfied if the police have specific and articulable facts, greater 

than a mere hunch, to support their belief that evidence of the 

crime for which the defendant was arrested might be in the car. 

See People v. Huynh, 98 P.3d 907, 912 (Colo. App. 2004) 

(discussing “reasonable suspicion” in the investigatory stop 

context); see also People v. McCarty, 229 P.3d 1041, 1046 (Colo. 

2010) (recognizing that, in the search of a vehicle context, 

“reasonable suspicion” must be based on some minimal level of 

objective suspicion, not merely a hunch or intuition, that evidence 

might be found in the arrestee’s vehicle). 

¶ 26 “In considering whether reasonable suspicion exists, the court 

looks at the totality of the circumstances, the specific and 

articulable facts known to the officer at the time of the encounter, 

and the rational inferences to be drawn from those facts,” People v. 
13 

Garcia, 251 P.3d 1152, 1158 (Colo. App. 2010), in light of the 

officer’s special training and experience, People v. Ortega, 34 P.3d 

986, 994 (Colo. 2001); see United States v. Guerrero, 472 F.3d 784, 

787 (10th Cir. 2007) (“[O]fficers [may] draw on their own experience 

and specialized training to make inferences from and deductions 

about the cumulative information available to them that ‘might well 

elude an untrained person.’” (quoting United States v. Arvizu, 534 

U.S. 266, 273 (2002))). 

¶ 27 Here, the trial court determined that the evidence of cocaine 

was admissible because of the following: 

 The officer had probable cause to arrest Kessler for 

driving under the influence based on his failure to 

adequately perform the roadside sobriety tests, his 

bloodshot eyes, the odor of alcohol on his breath, and the 

PBT results. 

 Kessler’s initial untruthfulness with the officer about 

whether or not he had been drinking made it “reasonably 

likely that they could find additional evidence [to support] 

a criminal investigation in the vehicle.” 
14 

 One of the two officers who searched the vehicle stated, 

based on his training and experience, it was “more 

common than not” to find bottles of alcohol in a vehicle of 

someone arrested for driving under the influence. 

 The first officer had seen a half-empty bottle of schnapps 

on the floor behind the passenger seat as he approached 

the vehicle. 

 Kessler’s intoxication, plus the officer’s observation of the 

opened bottle of schnapps, justified the officers’ search of 

the car for more bottles of alcohol. 

¶ 28 We agree that the search that uncovered the cocaine was 

justified. By virtue of the first four items identified above, the police 

had more than ample grounds to reasonably suspect that the 

vehicle would contain evidence (i.e., alcohol) related to the offense 

for which Kessler was arrested. And they found that evidence — 

alcohol, in the form of the half-empty bottle of schnapps — in the 

car. The question, though, is did the officers’ reasonable suspicion 

that the car contained alcohol evaporate once the officers found 

some alcohol? In our view, it did not. 
15 

¶ 29 Our conclusion in this respect is supported by the decision of 

the Wisconsin Court of Appeals in State v. Billips, 807 N.W.2d 32, 

2011 WL 4578555 (Wis. Ct. App. 2011) (unpublished table 

decision), a case that, in all material respects, parallels the 

circumstances of the present case. In Billips, the defendant was 

stopped for speeding. Upon approaching the defendant’s vehicle, 

the officer saw what looked to be an open bottle of alcohol inside 

the vehicle. He removed the opened bottle from the car, had the 

defendant perform roadside sobriety tests, arrested him for 

operating a vehicle while intoxicated (OWI), and searched the car for 

any other open intoxicants. The officer found a marijuana cigar end 

on the center console of the car and more marijuana inside a purse 

on the backseat of the car, and the defendant was charged with 

possession of tetrahydrocannabinols (THC). Unlike in our case, the 

trial court suppressed the evidence of marijuana found in the 

defendant’s vehicle. The State successfully appealed that ruling, 

however. 

¶ 30 In concluding that the search of the vehicle for more open 

containers of alcohol was proper, the Wisconsin appellate court 

rejected an argument identical to the one made by Kessler here — 
16 

that is, that the police had no ground to search the car further once 

they seized the open bottle of alcohol therefrom: 

[The defendant] contends that at the point of 

her arrest, “it was not reasonable to believe 

there would be any further physical evidence 

of OWI in the vehicle. . . . [I]f [the defendant] 

left intoxicants in plain view in her vehicle, it is 

not reasonable to assume there were others 

stashed away out of the deputy’s sight.” In 

other words, [the defendant] argues that 

because [the officer] had already removed some 

evidence from her vehicle, it was not 

reasonable to believe there would be any 

further physical evidence of OWI in the vehicle. 

This same argument was considered by this 

court in State v. Smiter, 2011 WI App 15, ¶ 16, 

331 Wis. 2d 431, 793 N.W.2d 920, and 

rejected as “nonsensical.” There, the court 

observed, “Gant expressly permits searches for 

evidence relevant to the crime of arrest and 

does not require police to stop that search 

once some evidence is found.” Smiter, 331 

Wis. 2d 431, ¶ 16. 

Here, it was reasonable for [the officer] to 

believe that further evidence related to [the 

defendant’s] OWI arrest might be found in the 

vehicle. 

Id. at *2. 

¶ 31 Persuaded by this analysis, we conclude that the search of the 

car and discovery of the cocaine were proper. 
17 

IV. Admissibility of, and the Instruction on, the Breath Test 

Results 

¶ 32 In two related arguments, Kessler contends that the trial court 

erred in (1) not suppressing the results of a breathalyzer test 

performed outside the two-hour time period prescribed in section 

42-4-1301.1, C.R.S. 2017;4 and (2) accordingly, instructing the jury 

that the delay in testing went to the weight of the evidence.5 We 

conclude that Kessler has waived these issues. 

¶ 33 Kessler did not ask the trial court to suppress the results of 

the breath test or otherwise argue to the trial court that they were 

inadmissible. He also did not object to the instruction on the 

ground asserted on appeal — namely, that a delay in testing 

rendered the test results inadmissible.6 

 

4 Section 42-4-1301.1, C.R.S. 2017, which is commonly referred to 

as the “express consent” statute, allows a driver suspected of 

drinking to choose a method of testing for his blood alcohol level: 

breathalyzer or blood test; but the driver must choose one method 

and may not refuse the test. See § 42-4-1301.1(2)(a)(I). 

5 On appeal, Kessler objects to the part of an instruction that said, 

“[a]ccording to the law, two hours is considered a reasonable time. 

A test taken outside of two hours may affect the weight that should 

be given to results of the test.” 

6 To be sure, defense counsel did object to the instruction — but on 

grounds different from those asserted on appeal. In the trial court, 

he objected to the instruction because it included various 
18 

¶ 34 So, Kessler has presented a new, or additional, argument on 

appeal. Sometimes, we review a new or additional argument raised 

for the first time on appeal for plain error. People v. Mares, 263 

P.3d 699, 702 (Colo. App. 2011) (“When, as here, a defendant fails 

to object or asserts on appeal a ground different from the ground 

asserted in the trial court, we review for plain error.”). 

¶ 35 However, in this case, the new ground (i.e., that the delay in 

conducting the breath test rendered its results inadmissible) for 

both of his appellate arguments was explicitly disavowed by defense 

counsel in the trial court. In prefacing the objection he made to the 

instruction, see supra note 6, defense counsel took the position that 

the tests were admissible and that the only question was the weight 

to be given them: “I do not disagree with the Court in terms of the 

admission of the test . . . . So the test was admitted. We can 

certainly argue the weight.” 

¶ 36 By agreeing that the test results were admissible and that the 

delay in conducting the tests affected only their weight, defense 

counsel waived Kessler’s right to argue, as he does here, precisely 

 

presumptions about blood alcohol levels obtained within a 

“reasonable time frame,” which, he said, “we do not have here.” 
19 

the opposite. See, e.g., United States v. Olano, 507 U.S. 725, 733 

(1993) (stating that a waiver occurs when a defendant specifically 

removes claims from the trial court’s consideration by intentionally 

relinquishing or abandoning a known right); United States v. 

Walton, 255 F.3d 437, 441 (7th Cir. 2001) (a “waived” issue is the 

result of an “intentional choice not to assert [a] right” (quoting 

United States v. Cooper, 243 F.3d 411, 416 (7th Cir. 2001))). 

¶ 37 Recently, our supreme court held that defense counsel’s 

general acquiescence to the jury instructions did not waive the 

defendant’s appellate claim that the elemental instruction effected a 

constructive amendment of the charge, at least in the absence of 

other indications that counsel was aware of the defect in the 

elemental instruction. See People v. Rediger, 2018 CO 32, ¶¶ 41-

47. Here, however, an elemental instruction is not at issue, and 

defense counsel did more than generally acquiesce or fail to object. 

Defense counsel explicitly agreed that the specific evidence at issue 

was admissible. So, Kessler, through his counsel, intentionally 

waived the particular point raised on appeal. 

¶ 38 Because defense counsel explicitly waived the very claim 

Kessler makes on appeal, there is no issue of error for us to review. 
20 

See People v. Abeyta, 923 P.2d 318, 321 (Colo. App. 1996) (stating 

that where a defendant has waived a right, there is no error or 

omission by the court, and thus nothing for an appellate court to 

review), superseded by rule, Crim. P. 35(c), on other grounds as 

recognized in People v. Roy, 252 P.3d 24, 27 (Colo. App. 2010); see 

also Olano, 507 U.S. at 733 (distinguishing between a “waived” and 

a “forfeited” claim of error, and noting that a “waived” claim of error 

presents nothing for an appellate court to review); Walton, 255 F.3d 

at 441 (“[A] waived issue is unreviewable because a valid waiver 

leaves no error to correct and extinguishes all appellate review of 

the issue.”). 

V. Questioning Kessler About An Officer’s Veracity 

¶ 39 At trial, the amount of alcohol in the bottle of schnapps when 

the officer discovered it was contested: the officer said it was half 

full, while Kessler testified it was two-thirds full. During crossexamination, the prosecution asked Kessler if the officer “made up” 

the amount of schnapps in the bottle, to which Kessler responded, 

“Yeah. I didn’t say that to him.” 

¶ 40 On appeal, Kessler contends that the prosecution’s question 

was improper under Liggett v. People, 135 P.3d 725 (2006), in which 
21 

the supreme court held that it is improper to ask a witness to 

comment on the veracity of another witness. Significantly, however, 

defense counsel lodged no objection to the question; consequently, 

reversal is not warranted in the absence of a showing of plain error. 

People v. Ujaama, 2012 COA 36, ¶ 38. 

¶ 41 Plain error “provide[s] a basis for relief only on rare occasions,” 

in part because “it is difficult to ‘fault a trial court for failing to rule 

on an issue that had not been presented to it.’” Id. at ¶ 40 (quoting 

United States v. Simmonds, 931 F.2d 685, 688 (10th Cir. 1991)). 

Relief under the plain error doctrine is limited to error that is 

“obvious and substantial.” Hagos v. People, 2012 CO 63, ¶ 14. 

¶ 42 Under Liggett, the prosecutor’s question (i.e., asking Kessler if 

the officer “made up” the amount of schnapps in the bottle) would 

ordinarily be improper because it was, in essence, another way of 

asking Kessler whether the officer was “lying.” See Liggett, 135 P.3d

at 733 (holding questions asking one witness whether another 

witness was “mistaken” are improper). 

¶ 43 But the People argue those questions were not improper in this 

case because Kessler had opened the door to such questioning 

when he initiated the exchange by stating that the officer 
22 

“exaggerated” when he testified that Kessler admitted to having 

drunk half of the bottle. See, e.g., United States v. Schmitz, 634 

F.3d 1247, 1270 (11th Cir. 2011) (The court “recogniz[ed] that werethey-lying questions might be proper ‘if a defendant opened the 

door by testifying on direct that another witness was lying.’” 

(quoting United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006))). 

¶ 44 The problem with the People’s argument, however, is that the 

testimony of Kessler on which they rely was not elicited by him on 

direct examination, but, rather, by them earlier in their crossexamination of him. Because a party cannot open its own door to 

create an opportunity for the admission of otherwise inadmissible 

evidence, see State v. Prine, 200 P.3d 1, 11 (Kan. 2009), we 

conclude that, had a proper objection been made, the trial court 

would have erred in allowing the prosecutor to ask Kessler the 

referenced question. 

¶ 45 But “[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.” Scott v. People, 2017 CO 16, ¶ 16. For an 

error to be “this obvious,” it must ordinarily contravene (1) a clear 
23 

statutory command; (2) a well-settled legal principle; or (3) Colorado 

case law. Id. 

¶ 46 Here, we have neither a clear statutory command nor on-point 

Colorado case authority. We do, however, have a “well-settled legal 

principle” — namely, that witnesses should not be asked to 

comment on the veracity of other witnesses — as well as a twelveyear-old case holding that questions closely analogous to the 

question asked of Kessler (i.e., whether the officer “made up” the 

amount he said was in the bottle of schnapps) are improper. See 

Liggett, 135 P.3d at 733 (holding questions about whether a witness 

was “mistaken” and whether a witness was lying are improper). 

Because the case law establishing and applying the legal principle 

in closely analogous circumstances is well settled, we conclude that 

the error in allowing those two questions should have been 

“obvious” to the trial court. 

¶ 47 However, to obtain relief under the plain error rule, it is not 

enough that “obvious” error occurred when the prosecutor was 

allowed to ask Kessler whether the officer “made up” something. 

The error must also be “substantial.” Hagos, ¶ 14. 
24 

¶ 48 To qualify as “substantial” in this context, an error must be 

“seriously prejudicial” — that is, it must have so undermined the 

fundamental fairness of the trial as to cast serious doubt on the 

reliability of the defendant’s conviction. Ujaama, ¶ 43; see also 

Hagos, ¶ 14. For the following reasons, we conclude that the 

“obvious” error occasioned by the prosecutor’s asking Kessler 

whether the officer “made up” the amount of alcohol was not 

“substantial.” 

¶ 49 First, the question the prosecutor asked was not only a small 

part of the case, it was also a small part of Kessler’s twenty pages of 

testimony. Cf. People v. Herr, 868 P.2d 1121, 1125 (Colo. App. 

1993) (prosecutor’s “improper comments were isolated ones made 

during a very lengthy summation”). 

¶ 50 Second, similar to Liggett — where the court found no plain 

error — an assertion that the officer “made up” things was less 

damaging than a question that would have explicitly asserted that 

the officer was lying. Liggett, 135 P.3d at 735. 

¶ 51 Third, the evidence against Kessler was strong. The 

prosecution presented (1) the officer’s testimony regarding Kessler’s 

appearance and unsatisfactory performance in the roadside 
25 

maneuvers; (2) Kessler’s blood alcohol level results from the 

breathalyzer test; and (3) Kessler’s own admission that he had 

drunk from the bottle of schnapps. See People v. Cordova, 293 P.3d 

114, 122 (Colo. App. 2011) (because “the evidence of [the] 

defendant’s guilt was strong,” prosecutor’s misconduct was not 

plain error). 

¶ 52 In light of these circumstances, we conclude that the 

prosecutor’s question did not cast serious doubt on the reliability of 

Kessler’s conviction. Consequently, the error was not “substantial” 

and does not warrant reversal under the plain error rule. 

VI. Conclusion 

¶ 53 The judgment of conviction is affirmed. 

JUDGE NAVARRO concurs. 

JUDGE DAILEY concurs in part and dissents in part. 

 
26 

JUDGE DAILEY, concurring in part and dissenting in part. 

¶ 54 I agree with all but Part III of the majority’s opinion. Unlike 

the majority, I do not find persuasive the decision in State v. Billips, 

807 N.W.2d 32, 2011 WL 4578555 (Wis. Ct. App. 2011) 

(unpublished table decision). To the contrary, in my view the police 

were required to have a factual basis upon which to support an 

articulable, reasonable suspicion to believe that the vehicle might 

contain one or more bottles of alcohol in addition to the one initially 

observed in and recovered from the car. Accepting that Kessler was 

intoxicated, there is no reason evident in the record to believe that 

he likely consumed more than the observed, half-empty bottle of 

schnapps. 

¶ 55 The People argue, however, that the officers’ experience and 

training supported the search for more bottles of alcohol. But the 

officers did not give any details about their training or experience 

with DUI arrests or provide any particularized reason based on that 

experience or training to believe that Kessler’s vehicle might contain 

evidence of even more consumed alcohol than the already recovered 

half-empty bottle of schnapps. In similar circumstances, the 

District of Columbia Court of Appeals said: 
27 

As we have explained, [the officer’s] experience 

must be considered as part of the totality of 

the circumstances. In this case, however, “we 

know too little about [the officer’s] experience,” 

Duckett v. United States, 886 A.2d 548, 552 

(D.C. 2005), to place much weight upon his 

conclusory statement that “typically someone 

who is driving under the influence also has an 

open container of alcohol or multiple 

containers of alcohol in their vehicle.” Without 

a great deal more detail, we have no basis for 

determining whether such behavior is indeed 

“typical” of someone driving under the 

influence. Moreover, relying uncritically on that 

experience would amount to endorsing a per se 

rule governing DUI cases. See id. at 553 

(“Whatever [the officer’s] experience in traffic 

stops of others, we think that the necessary 

particularized and objective basis for 

suspecting [the defendant] was absent here.”). 

United States v. Taylor, 49 A.3d 818, 827 (D.C. 2012) (emphasis 

added); see United States v. Reagan, 713 F. Supp. 2d 724, 732 (E.D. 

Tenn. 2010) (holding an officer must have something more than 

general prior experience of finding alcoholic beverage containers in 

a DUI arrestee’s vehicle to justify a search of the vehicle); see also 

State v. Eversole, No. 15-17-03, 2017 WL 5127369, at *10 (Ohio Ct. 

App. Nov. 6, 2017) (“[A]lthough a law-enforcement officer’s general 

prior experience is one of the common-sense factors to consider 

when deciding the reasonableness of his or her belief that evidence 
28 

of specific crime is located inside a vehicle’s passenger 

compartment, that general prior experience alone is not enough to 

establish a reasonable belief that evidence of [DUI] is contained in a 

vehicle.”). 

¶ 56 I am persuaded by these authorities. And because the record 

contains no reason particularized to Kessler or the circumstances of 

this case, I would conclude that the police lacked the requisite 

reasonable suspicion to further search the car for alcohol once they 

recovered the half-empty bottle of schnapps. See People v. McCarty, 

229 P.3d 1041, 1046 (Colo. 2010) (“[A]lthough it is perhaps 

conceivable that the arrestee’s vehicle might contain some evidence 

of the possession offense for which the officers had probable cause 

to arrest, nothing peculiar to these circumstances supported a 

reasonable suspicion that any additional evidence existed, much 

less that it would reside in the arrestee’s vehicle, rather than on his 

person or elsewhere.”) (emphasis added); cf. People v. Estrada, No. 

B221094, 2011 WL 212826, at *5-6 (Cal. Ct. App. Jan. 25, 2011) 

(unpublished opinion) (rejecting, under Gant, the validity of a 

search of a vehicle, where, following the defendant’s arrest for 

public intoxication, the officer “‘opened the truck, discovered the 
29 

container that [the defendant] tossed in there,’ which was . . . 

exactly the type of bottle from which [the officer] believed defendant 

had been drinking,” and “continued to look in the car to see if there 

was [sic] any other alcoholic beverages and what not”; and 

concluding, “[t]o allow a search of a vehicle here would be to permit 

general rummaging”). 

¶ 57 Because the search that uncovered the cocaine was illegal, all 

evidence pertaining to the cocaine or its recovery should have been 

suppressed at trial. The error in admitting such evidence could not 

be considered harmless with respect to the count charging Kessler 

with its possession, and Kessler’s conviction on that count should 

be vacated.