Paso County District Court No. 11CR1307. Honorable William B.
JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN
PART, AND CASE REMANDED WITH DIRECTIONS.
H. Coffman, Attorney General, Erin K. Grundy, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
K. Wilson, Colorado State Public Defender, Nathaniel E.
Deakins, Deputy State Public Defender, Denver, Colorado, for
by JUDGE GABRIEL. Richman and Navarro, JJ., concur.
[¶1] Defendant, Gejuan Levar Lancaster,
appeals the judgment of conviction and sentence on a jury
verdict finding him guilty of kidnapping, two counts of
sexual assault, menacing, and third degree assault. We
conclude that the trial court did not err in (1) denying
Lancaster's motion to suppress a DNA profile that he
contends resulted from a violation of his rights under the
United States and Colorado Constitutions and (2) denying
without an evidentiary hearing his motion to allow evidence
that the victim had a history of making false allegations of
sexual assault. We further conclude that the record is not
sufficiently developed for us to determine whether the trial
court misperceived the applicable sentencing range for
Lancaster's sexual assault counts. Accordingly, we affirm
the judgment, vacate the sentences on the sexual assault
counts, and remand for resentencing on those counts.
[¶2] Late one evening in November 2009, a
man approached the victim on a street after the victim had
left a friend's apartment. After following her for a
time, the man walked up to the victim, wrapped his arm around
her neck, and said, " Come here girl." She
screamed, and he told her that he had a gun and that if she
did not stop screaming, he would shoot her in the head. He
then forced her into a field and sexually assaulted her.
During the assault, she felt what she thought was a gun in
the man's jacket pocket. After the man left, the victim
went to a nearby home, and the residents let her in and
called 911. A DNA swab was subsequently taken from the
victim, and the resulting DNA profile was uploaded to both a
Colorado database and the Combined DNA Index System (CODIS)
national DNA database.
[¶3] As a result of the above-described
assault, the People charged Lancaster with numerous counts of
kidnapping, sexual assault, menacing, and third degree
assault. The case proceeded to trial, where Lancaster
presented a misidentification defense. The jury convicted him
as charged, and the trial court sentenced him, as pertinent
here, to an indeterminate prison term of twenty-five years to
life on the sexual assault counts, both of which were class
[¶4] Lancaster now appeals.
[¶5] Lancaster contends that the trial court
erred in denying his motion to suppress DNA evidence that he
asserts was developed as a result of violations of his
federal and state constitutional rights. We perceive no basis
[¶6] Although the record is not entirely
clear, it appears that in October 2010, approximately one
year after the sexual assault at issue, Lancaster was
arrested on a warrant for the revocation of his deferred
sentence on a prior misdemeanor harassment charge. That
deferred sentence had been imposed as part of a plea bargain
in a case in which Lancaster was initially facing felony
charges. Apparently because Lancaster's criminal history
erroneously indicated that he had been convicted of a felony
in that case, the police took a buccal swab of
[¶7] Several months later, Lancaster was
again arrested, this time in connection with apparent traffic
violations. The police took another buccal swab at that time.
[¶8] Two days after the police took this
swab, Lancaster was arrested on a felony robbery charge.
[¶9] Subsequently, the above-described
buccal swabs were tested, and the analysis of at least the
first sample resulted in a match with the DNA profile of the
man who had sexually assaulted the victim in this case. Based
on this initial match, the police obtained an order pursuant
to Crim. P. 41.1 to collect another DNA sample from
Lancaster. They did so, and the analysis of this sample also
resulted in a match with the DNA profile of the man who had
sexually assaulted the victim.
[¶10] Prior to trial, Lancaster filed a
motion to suppress the DNA profile developed after the police
had obtained the Crim. P. 41.1 order and collected the third
DNA sample from him. He asserted that the ultimate match
resulted from a DNA sample taken in violation of (1)
Katie's Law, § § 16-23-101 to -105, C.R.S.
2014; (2) the Fourth Amendment of the United States
Constitution; and (3) article II, section 7 of the Colorado
[¶11] After a hearing, the trial court
denied this motion. Although the court found that the police
had violated Katie's Law when they took the first two
samples, it found no evidence of bad faith or malice and
further concluded that the warrantless collection of
Lancaster's DNA fell within the " special
needs" exception to the warrant requirements of the
United States and Colorado Constitutions.
[¶12] When reviewing a trial court's
order on a motion to suppress, we defer to the court's
factual findings but review de novo its ultimate legal
conclusion as to whether the defendant's constitutional
rights were violated. People v. Brunsting, 2013 CO
55, ¶ 15, 307 P.3d 1073, 1078.
[¶13] Section 16-23-103(1)(a) provides that
an arresting law enforcement agency shall, as part of its
booking process, collect a biological sample from any adult
arrested on or after September 30, 2010 for a felony offense
or for the investigation of a felony offense.
[¶14] In addition, " [t]he Fourth
Amendment to the United States Constitution and article II,
§ 7 of the Colorado Constitution protect against
unreasonable searches and seizures." People v.
Rossman, 140 P.3d 172, 174 (Colo.App. 2006). A cheek
swab to obtain a DNA sample is a search, and a search without
a warrant supported by probable cause is presumptively
unreasonable unless it falls within one of the established
exceptions to the warrant requirement. People v.
Casillas, 2015 COA 15, ¶ 23, P.3d, , *8.
[¶15] The so-called " special
needs" exception is one such exception.
Rossman, 140 P.3d at 174.
Under that exception, a warrant, probable cause, or even
individualized suspicion of wrongdoing need not be shown
where " special needs, beyond the normal need for law
enforcement" exist, and the search or seizure is found
to be " reasonable" after balancing the
government's special need ...