People ex rel. A.B., Court of Appeals No. 15CA2015

Citation411 P.3d 1116
Case DateNovember 17, 2016
CourtCourt of Appeals of Colorado

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

Michael S. Juba, Alternate Defense Counsel, Denver, Colorado, for Juvenile-Appellant

Opinion by JUDGE WEBB

¶ 1 The Denver Juvenile Court found A.B., a juvenile, guilty of possession of a weapon by a previous offender (POWPO), adjudicated him a delinquent, and imposed a sentence of one to two years in the Division of Youth Corrections. On appeal, A.B. contends the court erred in denying his motion to suppress the weapon as the fruit of an unlawful seizure; in treating a pending deferred adjudication as a prior adjudication for purposes of POWPO; and in finding him a repeat juvenile offender—based on the same deferred adjudication—for sentencing. Both of the deferred adjudication contentions raise novel questions in Colorado.

¶ 2 We affirm the denial of A.B.'s motion to suppress because even assuming that a seizure of A.B. occurred when the police contacted him, they had a reasonable suspicion that he had violated Denver Revised Municipal Code 38-39, entitled "Disturbance of the peace." But because we conclude that a prior deferred adjudication does not satisfy the prior adjudication element of POWPO, we reverse A.B.'s adjudication.1

I. Background and Procedural History

¶ 3 On May 6, 2015, the Adams County District Court accepted A.B.'s agreement to a deferred adjudication on a charge of aggravated motor vehicle theft in the first degree, a felony, and deferred entry of adjudication for one year. Based on the county of A.B.'s residence, the case was transferred to the Denver Juvenile Court as 15JD668.

¶ 4 Less than four months later, Denver police officers arrested A.B. on the POWPO charge at issue.

¶ 5 The juvenile court held an evidentiary hearing on A.B.'s motion to suppress the weapon. One of the officers testified to how he had found a handgun in the back seat of a car in which A.B. was a passenger, as discussed fully in Part II below. The court denied the motion. Then the court proceeded to trial, with the officer presenting the same testimony. The prosecution's evidence included the deferred adjudication in 15JD668.

¶ 6 When the prosecution rested, A.B. moved for judgment of acquittal. He conceded the deferred adjudication involved a felony, but he argued that it did not constitute proof of a prior adjudication for purposes of POWPO. As to juveniles, POWPO prohibits possessing a firearm "subsequent to the person's adjudication for an act which, if committed by an adult, would constitute a felony." § 18–12–108(3), C.R.S. 2016 (emphasis added). The court denied the motion, A.B. declined to present any evidence, and the court found him guilty.

¶ 7 At sentencing, the prosecutor urged the court to find A.B. a repeat juvenile offender, again based on the deferred adjudication. The court revoked the deferred adjudication, on that basis found A.B. a repeat juvenile offender, and imposed a sentence of one to two years in the Division of Youth Corrections.

¶ 8 The Attorney General agrees that all of the issues A.B. raises in this appeal were preserved.

II. Motion to Suppress

¶ 9 A.B. first contends the trial court erred by denying his motion to suppress the handgun. A.B. asserts that the search was unconstitutional because when police officers ordered him to get back in the car, they seized him but lacked reasonable suspicion to do so. We conclude that the trial court properly denied A.B.'s motion.

A. Standard of Review

¶ 10 A trial court's ruling on a motion to suppress presents a mixed question of fact and law. People v. Martinez , 165 P.3d 907, 909 (Colo. App. 2007). We defer to the trial court's findings of fact if they are supported by competent evidence in the record, but we review its conclusions of law de novo. Id. Of course, "[w]e review de novo the trial court's ultimate legal conclusion of whether a seizure violated constitutional prohibitions against unreasonable searches and seizures." People v. Funez–Paiagua , 2012 CO 37, ¶ 6, 276 P.3d 576.

B. Additional Background

¶ 11 A.B. did not testify at the suppression hearing. One of the police officers testified that around 9 p.m. on the night of A.B.'s arrest, he heard "loud music coming from [a parked] vehicle ... around 100 feet" away in an alley. The officer and his partner decided to contact the occupants of the vehicle "solely to investigate the noise violation," although they were not "responding to any citizen complaints." They pulled their patrol car behind the suspect vehicle, parking at a forty-five-degree angle. Immediately, all three occupants in the suspect vehicle "exit[ed] at the same time." A.B. got out of the "driver's side rear door."

¶ 12 As the officers left the patrol car, they "order[ed] everybody back into the [suspect] vehicle." Both officers were "yelling." A.B. then "turned his back to [the officer] and [that officer] saw him reach towards his waistband with his right hand." The officer "observed a gun leaving his hand as he threw it into ... the vehicle."

¶ 13 As to the noise violation, the officer explained that the loud music "was coming from a radio ... [i]n the vehicle," although the officer did not see A.B. "operating the radio." Nor did the "vehicle have a permit for sound amplification."

¶ 14 A.B.'s counsel argued that the officers' actions in blocking the suspect vehicle and then ordering the occupants back inside constituted a seizure, which required "reasonable articulable suspicion of criminal activity." But according to counsel, the officers lacked such suspicion as to A.B. because as "a rear passenger in [the] vehicle," he could not "possibly violate [Denver Rev. Mun. Code 38-89] where the noise is coming from the car radio being operated from the front by a driver or possibly from the front passenger."

¶ 15 In denying A.B.'s motion, the trial court found:

"The evidence is that [the officers heard] the loud noise coming from the car."
"The officers pulled up behind the car. It's unclear as to precisely how they parked, whether they blocked the car or not but the officers had probable cause to be there because of the loud music coming from the car."
"[A]ll three people got out of the car at about the same time, at the same time that [the officer] yelled at them."
"And then [A.B.] turned, and that's when he reached for his waistband, and that's when [the officers] saw the gun."
C. Law

¶ 16 Citizens enjoy a constitutional right to be free from unreasonable seizures. U.S. Const. amend. IV ; Colo. Const. art. II, § 7. Still, "[n]ot every encounter between police and citizens implicates Fourth Amendment concerns because a ‘seizure’ does not occur until a police officer has restrained the liberty of the citizen." People v. Marujo , 192 P.3d 1003, 1005 (Colo. 2008). The "key question in determining whether a person has been ‘seized’ is whether, ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ " Id. at 1006 (citation omitted).

¶ 17 A police officer may "seize" a person and conduct an investigatory stop if three conditions 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. Janis , 2016 COA 69, ¶ 46, ––– P.3d ––––.

¶ 18 "Reasonable suspicion exists when the facts known to the officer, taken together with rational inferences from those facts, create a reasonable and articulable suspicion of criminal activity which justifies an intrusion into the defendant's personal privacy at the time of the stop." Funez–Paiagua , ¶ 9. To determine whether reasonable suspicion exists, "a court must consider the facts and circumstances known to the officer at the time of the intrusion." Id.

D. Analysis

¶ 19 Initially, the parties disagree as to whether the officers seized A.B.

¶ 20 The Attorney General argues that merely telling A.B. to return to the vehicle was an instruction "required for a safe encounter," not a seizure. See People v. Fines , 127 P.3d 79, 81 (Colo. 2006) ("[A] passenger is not seized ... merely because the vehicle in which she is riding is subjected to a traffic stop, nor does her removal from the car for safety reasons, without particularized suspicion, amount to an illegal seizure of her person.") (citation omitted). And according to the Attorney General, the officers' parking behind the vehicle was "a display of authority directed at the car, not A.B."

¶ 21 A.B. responds that a seizure occurred because the "[o]fficers approached the vehicle and parked their fully marked police vehicle at an angle behind the parked vehicle, blocking it into the parking space;" and "[t]wo officers immediately exited their patrol vehicle and yelled at A.B. multiple times to get back into the vehicle." See Marujo , 192 P.3d at 1006 ("Examples of circumstances that would lead a reasonable person to feel that he was not free to leave or terminate the encounter include ‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.’ ") (citation omitted).

¶ 22 The following facts support the Attorney General: the officers did not activate their siren or emergency lights—instead they approached a parked vehicle, see People v. Walters , 249 P.3d 805, 809 (Colo. 2011) ("[W]hen a police officer does not pull over a vehicle, but approaches an individual in a vehicle that is already parked, the encounter does not automatically...

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