CO: One prescription pill in pocket is not PC for search of car

The finding of one pill and a small bindle of drugs for personal use on defendant’s person during a traffic stop did not justify a search of his car under search incident or the automobile exception. There was no probable cause as to the car under Gant and Thornton because what was possessed here suggests nothing about the car. People v. Coates, 266 P.3d 397 (Colo. 2011):

The People offer no specific evidential hypothesis from which a fair probability of more contraband could be inferred, and we can discern none. While being wrapped in a piece of paper might suggest that the driver’s lone pill was not lawfully prescribed for him by a practitioner, see § 18-18-302(3)(c), C.R.S. (2011), the pill itself was clearly a prescription medication rather than contraband by its very nature. And whether lawful or not, possession of the single prescription pill in this case implied that the driver was the ultimate user and nothing more. Cf. Wimberly v. Superior Court, 16 Cal. 3d 557, 128 Cal. Rptr. 641, 547 P.2d 417, 427 (Cal. 1976) (small quantity of marijuana found in car indicative of personal use rather than distribution). As the People seem to acknowledge, nothing in the driver’s possession of a single prescription pill of Xanax, standing alone, created a fair probability that he had more of the same, and even if so, that he would be transporting it in the vehicle he was illegally driving rather than carrying any other pills he might have in his pocket, along with the sole pill discovered by the police.

Even assuming some degree of articulable suspicion, however, it is difficult to explain how the nervousness of an underage driver, stopped while unlawfully possessing a prescription drug, and his claim to have had a prescription for that drug, could in any way strengthen the inference, much less elevate suspicion to a “fair probability,” that more contraband would be found in the defendant’s vehicle. The reactions of the driver in this case would have been just as naturally explained simply by his having been stopped while driving illegally, in unlawful possession. See People v. Goessl, 526 P.2d 664, 665, 186 Colo. 208, 211 (1974). Nothing suggested the passengers were aware that the driver was carrying contraband, much less that they themselves were also in possession or acting as his suppliers. In fact, the testifying officer conceded that he had no other reason to believe more drugs would be found in the vehicle.