People v. Cattaneo

Citation471 P.3d 1186
Decision Date12 March 2020
Docket NumberCourt of Appeals No. 17CA1138
Parties The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nicholas Trenton CATTANEO, Defendant-Appellant.
CourtCourt of Appeals of Colorado

Philip J. Weiser, Attorney General, Elizabeth Ford Milani, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith Rose, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE NAVARRO

¶1 In this appeal, we consider whether police agents’ actions to obtain a parked car's vehicle identification number (VIN) based on reasonable suspicion that the car had been stolen violated the Fourth Amendment right of defendant, Nicholas Trenton Cattaneo, to be free from unreasonable searches and seizures. We conclude that, under the circumstances, probable cause to search the car was not required and the agents’ actions were justified. Therefore, the trial court properly denied Cattaneo's motion to suppress evidence discovered upon his subsequent arrest for motor vehicle theft.

¶2 We also consider whether the trial court's imposition of a drug surcharge after the sentencing hearing violated Cattaneo's double jeopardy rights. We find no double jeopardy violation, but we remand to provide Cattaneo an opportunity to prove his inability to pay the surcharge. In sum, we affirm the judgment and remand for further proceedings.

I. Factual and Procedural History

¶3 Police Agent Rob Albrets responded to a call that employees of a Walmart store had detained Cattaneo on suspicion of shoplifting. When Agent Albrets arrived at the store's loss prevention office, he arrested Cattaneo. A subsequent search revealed keys to a Lincoln sedan and over $2000 in cash, but no personal identification (ID).

¶4 Per his department's procedures, Agent Albrets planned to release Cattaneo on a summons, but that was possible only if Cattaneo had ID. Cattaneo said his ID was in the car, and he gave Agent Albrets permission to use his key fob to enter the car and retrieve the ID from the center console.

¶5 Agent Albrets found the Lincoln backed into a parking spot against a fence. It had a temporary tag in place of the rear license plate and no front plate. The agent's call to police dispatch revealed that the temporary tag was associated with a dealership but not a specific vehicle. The agent unlocked the car, opened the center console, found the ID, and closed up and locked the car.

¶6 Suspecting that the car might have been stolen, Agent Albrets called for assistance to determine whether it was stolen, and he returned to the loss prevention office. In response, Agent Sean Radke arrived at the parking lot and attempted to find the car's VIN by looking at the dashboard through the windows. The VIN was obscured, however, by a crumpled paper that Agent Radke believed had been intentionally shoved into the dashboard to hide the VIN.

¶7 Meanwhile, Agent Albrets released Cattaneo from the loss prevention office but followed him (at a distance) to his car, where Agent Radke was waiting. As Agent Radke approached, Cattaneo walked quickly to the car's passenger side, removed a backpack from the car, and locked the car. Fearing that Cattaneo might be grabbing a weapon, and wishing to investigate if the car had been stolen, Agent Radke "separated" Cattaneo from the backpack.1 Agent Radke explained that he wanted to find the VIN. Because Cattaneo had the keys, Agent Radke asked him to open the door so the agent could see the VIN on the car door. Apparently, the agent also said that he had the right to call a locksmith to open the car to access the VIN, although the record is less than clear on this point. Agent Radke did not inform Cattaneo that he could refuse a request to search the car. See § 16-3-310, C.R.S. 2019.

¶8 Cattaneo used his key fob to unlock the car. Agent Radke opened the door, located the VIN on the doorjamb, and closed the door without entering the passenger compartment. Agent Radke asked dispatch to check the VIN. Within two minutes, dispatch responded that the car had been reported stolen. The agents arrested Cattaneo on suspicion of motor vehicle theft and searched the backpack, where they found a large number of OxyContin and Oxycodone pills.

¶9 The prosecution charged Cattaneo with aggravated motor vehicle theft, possession with intent to manufacture or distribute a controlled substance, possession of a controlled substance, and theft of less than fifty dollars.

¶10 Before trial, Cattaneo moved to suppress the pills as fruit of an unlawful search. He contended that the agents did not have probable cause to search the car and did not obtain his voluntary consent to open the car door to access the VIN, without which they would not have had probable cause to arrest him and search the backpack. The prosecution countered that the agents suspected that the vehicle was stolen, the search was limited in scope, and Cattaneo's consent was voluntary even absent the statutory advisement.

¶11 The trial court denied the motion to suppress. It found that the agents had reasonable suspicion that the vehicle was stolen and that they obtained the VIN through a reasonable and limited search. Moreover, the trial court found that Cattaneo had voluntarily consented to a search of the car to obtain the VIN. The court concluded that, once the VIN showed the car to be stolen, the agents had probable cause to arrest Cattaneo and the pills were admissible as the result of a valid search incident to arrest, an inventory search, or inevitable discovery.

¶12 The case proceeded to trial. The prosecution ultimately dismissed the motor vehicle theft charge, and the jury convicted Cattaneo of the remaining charges. The trial court sentenced him to a term of imprisonment and parole. Additionally, the mittimus appears to require him to pay a drug surcharge.

II. Suppression Order

¶13 Everyone agrees that Cattaneo's arrest on suspicion of stealing the car, and the subsequent discovery of illicit drugs in his backpack, resulted from the police agents’ obtaining the VIN from the car's doorjamb. Cattaneo contends, as he did in the trial court, that the agents could not search his car without probable cause or his voluntary consent to search. According to him, the agents had neither. Alternatively, Cattaneo also argues, for the first time on appeal, that the seizure of the car and his person in the parking lot was illegal because it was not supported by probable cause. On this latter theory, he concludes that the backpack's contents were the ultimate fruit of an illegal seizure.

¶14 We disagree because the police agents’ actions were reasonable under the totality of the circumstances. Specifically, the limited intrusion into the car to view the VIN and the earlier seizure of Cattaneo and the vehicle were within the permissible scope of an investigatory stop justified by reasonable suspicion that the car was stolen.

A. Standard of Review and General Principles

¶15 Appellate courts apply a mixed standard of review to suppression issues. People v. Chavez-Barragan , 2016 CO 66, ¶ 34, 379 P.3d 330. "Under this standard, we review the trial court's findings of historic fact deferentially, accepting them if they are supported by competent record evidence ...." Id. But we review de novo the legal effect of those facts. Williams v. People , 2019 CO 108, ¶ 14, 455 P.3d 347.

¶16 Where a defendant failed to preserve his suppression arguments in the trial court, we may reverse based on those arguments only if plain error occurred. See Phillips v. People , 2019 CO 72, ¶¶ 22-38, 443 P.3d 1016. "[P]lain error occurs when there is (1) an error, (2) that is obvious, and (3) that so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." Id. at ¶ 39.

¶17 Both the Fourth Amendment of the United States Constitution and article II, section 7 of the Colorado Constitution prohibit unreasonable searches and seizures. People v. Allen , 2019 CO 88, ¶ 15, 450 P.3d 724. A warrantless search or seizure is presumptively unreasonable and therefore unconstitutional. Id. Because "the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ " however, the warrant requirement is subject to exceptions.

Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). The prosecution bears the burden to establish that a warrantless search falls within an exception to the warrant requirement. Allen , ¶ 16.

¶18 One such exception is an investigatory stop based on less than probable cause. People v. Rodriguez , 945 P.2d 1351, 1359 (Colo. 1997). "An officer may engage in an investigatory stop of a car and then question the driver without running afoul of the Fourth Amendment's prohibition against unreasonable searches and seizures provided three conditions exist:" (1) the officer has reasonable suspicion that criminal activity has occurred, is taking place, or is about to take place; (2) the officer has a reasonable objective for the stop; and (3) the scope and character of the intrusion is reasonably connected to its objective. Id.

B. Seizure of Cattaneo and the Car

¶19 The parties here do not dispute that the agents had reasonable suspicion to believe the car was stolen. Cattaneo had just been detained for shoplifting. He had the keys to a vehicle that lacked a front license plate. The temporary tag in the rear was associated only with a dealership, and the car was parked in manner that obscured the rear plate. The VIN on the dashboard appeared purposefully obscured. Agent Radke testified that, in his experience, the combination of these facts indicated that the car was stolen. We therefore agree with the parties and the trial court that the agents reasonably suspected that the vehicle had been stolen. Id. (The pertinent question is "whether, under the totality of the circumstances, the ‘specific and articulable facts’ known to...

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3 cases
  • People v. Alemayehu
    • United States
    • Colorado Court of Appeals
    • 20 Mayo 2021
    ...invalid unless justified by one of the established exceptions to the warrant requirement. People v. Cattaneo , 2020 COA 40, ¶ 17, 471 P.3d 1186.¶ 30 The People rely on the "plain view" exception, see People v. Swietlicki , 2015 CO 67, ¶ 18, 361 P.3d 411, combined (in the case of the pill bo......
  • People v. Magana
    • United States
    • Colorado Court of Appeals
    • 22 Octubre 2020
    ...at any time, even if challenged for the first time on appeal. See id. at ¶ 21 ; see also People v. Cattaneo , 2020 COA 40, ¶ 42, 471 P.3d 1186. Because resolving the People's contention requires us to interpret the criminal code to determine whether the use of fire can be a deadly weapon fo......
  • People v. Thomas
    • United States
    • Colorado Court of Appeals
    • 25 Febrero 2021
    ...is reasonableness, however, the warrant requirement is subject to several exceptions. Id. ; People v. Cattaneo , 2020 COA 40, ¶ 17, 471 P.3d 1186. The prosecution bears the burden to prove that an exception to the warrant requirement applies. Allen , ¶ 15. ¶ 12 When an officer obtains evide......

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