The People of the State of Colorado, Petitioner-Appellee, In the Interest of A.B., Juvenile-Appellant.
and County of Denver Juvenile Court Nos. 15JD668 &
15JD699 Honorable D. Brett Woods, Judge
Cynthia H. Coffman, Attorney General, Joseph G. Michaels,
Assistant Attorney General, Denver, Colorado, for
Michael S. Juba, Alternate Defense Counsel, Denver, Colorado,
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
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
8 The Attorney General agrees that all of the issues A.B.
raises in this appeal were preserved.
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.
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,
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 ...