Peo in Interest of KDW , 2020 COA 110 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 23, 2020
2020COA110
No. 17CA1122, Peo in Interest of KDW — Constitutional Law —
Fourth Amendment — Searches and Seizures — Investigatory
Stops — Grounds for Stop or Investigation — Reasonable
Suspicion
A division of the court of appeals considers whether the
district court erroneously denied K.D.W.’s motion to suppress. The
district court denied the motion to suppress on the grounds that an
investigatory stop was supported by reasonable suspicion and a
search of K.D.W.’s backpack was a search incident to lawful arrest.
However, the division concludes that the investigatory stop was not
supported by reasonable suspicion and, therefore, the evidence
found in the backpack that was seized in the course of the
investigatory stop should have been suppressed. Accordingly, the
division reverses K.D.W.’s adjudications for possession of a
handgun by a juvenile, attempt to carry a concealed weapon, and
possession of marijuana, and remands for further proceedings.
The division also considers whether K.D.W.’s actions in the
course of the illegal stop — namely, trespass and obstruction of
peace officers— rendered the search of his pockets sufficiently
attenuated from the police misconduct. The division concludes that
the attenuation exception to the exclusionary rule applies.
Therefore, the division concludes that the motion to suppress was
properly denied as to the search of K.D.W.’s pockets and the
statements he made to the officer after his arrest, and affirms
K.D.W.’s adjudications for obstruction and trespass.
OKCOLORADO COURT OF APPEALS 2020COA110
Court of Appeals No. 17CA1122
Arapahoe County District Court No. 16JD174
Honorable Ben L. Leutwyler, Judge
Honorable Christina Apostoli, Magistrate
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of K.D.W.,
Juvenile-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE ROMÁN
Tow and Pawar, JJ., concur
Announced July 23, 2020
Philip J. Weiser, Attorney General, Gabriel Olivares, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee
Megan A. Ring, Colorado State Public Defender, Ryann S. Hardman, Deputy
State Public Defender, Denver, Colorado, for Juvenile-Appellant
¶1 K.D.W., a juvenile, appeals the district court’s affirmance of
his adjudication of delinquency. We affirm in part, reverse in part,
and remand for further proceedings consistent with this opinion.
I. Background
¶2 Police officers in an unmarked vehicle were investigating a
series of recent residential burglaries when they observed a black
male speaking with the driver of a large, green van in a park. The
officers followed the van as it drove away and observed a white
vehicle following the van. The white vehicle later evaded police
when they attempted to conduct a traffic stop.
¶3 The officers returned to the area and saw K.D.W., whom they
believed to be the male they saw speaking with the driver of the
green van. K.D.W. was observed with a backpack and a trash bag.
Nearby uniformed officers were instructed to contact K.D.W., who
was sitting on a park bench.
¶4 As one officer approached K.D.W. in her patrol vehicle, he
began to walk away. The officer got out of the vehicle and said,
“[H]ey, I need to talk to you.” K.D.W. stopped. The officer requested
K.D.W. take his hand out of his pocket and put down his backpack
and bag. K.D.W. complied. However, K.D.W. twice refused to allow
1
the officer to pat him down. By that time, another officer had
arrived and was standing nearby.
¶5 Both officers attempted to grab K.D.W. but failed, and he fled
the area. One officer pursued K.D.W. in her vehicle, and the other
stayed behind with the bags. Several officers and a detective
responded to a call for assistance in stopping K.D.W., who climbed
over a fence and ran through a residential backyard. A detective
observed K.D.W. in an alley, crouched down and appearing to
change his shirt. Officers eventually stopped him in the front yard
of another property. Once K.D.W. was detained, officers radioed
that they “had found ammunition on his person,” so other officers
in the area began canvassing for a firearm, as they were “worried
that maybe a gun had been dropped . . .or thrown away in the
area.” The officer who initially pursued K.D.W. took him into
custody.
¶6 Once the officer that stayed near the park received word that
K.D.W. was detained, he opened the backpack K.D.W. had left
behind. It contained a box of .22 caliber ammunition, a Ruger .22
semi-automatic pistol, a green baggie and a white plastic container
2
that the officer believed contained marijuana, and loose marijuana
at the bottom of the bag.
¶7 K.D.W. was taken to the local jail, where he made
incriminating statements about the incident to an officer relating to
his possession of a handgun.
¶8 The People filed a delinquency petition charging K.D.W. with
(1) possession of a handgun by a juvenile; (2) obstructing a peace
officer; (3) attempt to carry a concealed weapon; (4) second degree
trespass; and (5) possession of marijuana by an underage person.
¶9 After a bench trial, a magistrate adjudicated K.D.W. a
delinquent on all counts and sentenced him to one year of
probation. K.D.W. sought district court review of the magistrate’s
determinations. The district court denied his petition in a written
order and adopted the magistrate’s adjudication order.
II. Analysis
¶ 10 On appeal, K.D.W. contends that (A) the district court erred
when it denied his motions to suppress because the police did not
have reasonable suspicion to conduct an investigatory stop and (B)
the evidence is insufficient to support his adjudication for
obstructing a peace officer.
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A. Motions to Suppress
¶ 11 K.D.W. contends that the district court erred by denying his
motions to suppress because the officers did not have the requisite
reasonable suspicion “that criminal activity has occurred, is taking
place, or is about to take place” when they stopped K.D.W. People
v. Revoal, 2012 CO 8, ¶ 10 (quoting People v. Padgett, 932 P.2d 810,
814-15 (Colo. 1997)). We agree. We further conclude that, while
the attenuation exception to the exclusionary rule applies to the
search of K.D.W.’s pockets and the statements he made to officers
after his arrest, it does not apply to the search of his backpack
because the backpack was seized during the improper investigatory
stop. Therefore, we affirm K.D.W.’s adjudications for obstruction
and trespass, reverse his adjudications for possession of a handgun
by a juvenile, attempt to carry a concealed weapon, and possession
of marijuana, and remand for further proceedings.
1. Standard of Review and Applicable Law
¶ 12 A magistrate’s or district court’s “ruling on a suppression
motion presents a mixed question of fact and law.” People v.
Tomaske, 2019 CO 35, ¶ 7. We defer to the district court’s findings
4
of fact if they are supported by competent evidence in the record.
Id. We review the district court’s conclusions of law de novo. Id.
¶ 13 Under the Fourth Amendment to the United States
Constitution, “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.”
¶ 14 “There are three categories of encounters between police and
citizens: (1) arrests; (2) investigatory stops; and (3) consensual
interviews.” People v. Scheffer, 224 P.3d 279, 284 (Colo. App.
2009). Only arrests and investigatory stops implicate the search
and seizure protections of the Fourth Amendment and article II,
section 7 of the Colorado Constitution. Id. As relevant here, “[a]n
investigatory stop is an encounter in which an officer briefly stops a
suspicious person and makes reasonable inquiries to confirm or
dispel these suspicions, such as determining an individual’s
identity or obtaining an explanation of a person’s behavior.” People
v. Funez-Paiagua, 2012 CO 37, ¶ 7. The parties do not challenge
the district court’s finding that K.D.W. was “seized” and that the
encounter here constituted an investigatory stop.
5
¶ 15 For an investigatory stop to be constitutionally valid, (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. Revoal, ¶ 10. At issue in this case is whether the officer
had reasonable suspicion to make an investigatory stop.
¶ 16 To determine whether an officer had reasonable suspicion to
make an investigatory stop, we must consider the facts and
circumstances known to the officer at the time of the intrusion. Id.
at ¶ 11. This may include the officer’s own observations as well as
information supplied by a fellow officer. People v. Threlkel, 2019 CO
18, ¶ 21. To justify an investigatory stop, an officer must be able to
point to “specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that
intrusion.” Revoal, ¶ 11 (quoting Terry v. Ohio, 392 U.S. 1, 21
(1968)). Whether reasonable suspicion exists is based on an
objective (not subjective) standard and depends on the totality of
the circumstances. People v. Reyes-Valenzuela, 2017 CO 31, ¶ 12.
6
¶ 17 Evidence of a crime that is derived from evidence discovered
through illegal police activity may be suppressed under the fruit-of-
the-poisonous-tree doctrine. Wong Sun v. United States, 371 U.S.
471, 485 (1963); Perez v. People, 231 P.3d 957, 962 (Colo. 2010).
Absent narrow exceptions not applicable here, if evidence was
obtained as a direct result of an illegal search or seizure, it must be
suppressed. See People v. Rodriguez, 945 P.2d 1351, 1363 (Colo.
1997). Whether evidence was obtained as a direct result of an
illegal search or seizure depends on whether the evidence was
obtained by exploiting the illegality or instead by “means sufficiently
distinguishable to be purged of the primary taint” of the illegality.
Id. at 1363-64 (quoting Wong Sun, 371 U.S. at 488).
¶ 18 “If a trial court erroneously admits evidence in violation of the
Fourth Amendment and the exclusionary rule, we must reverse
unless the error was harmless beyond a reasonable doubt.” People
v. Dyer, 2019 COA 161, ¶ 17. This standard requires the People to
prove the error does not require reversal. Id.
2. Additional Facts
¶ 19 Before trial, K.D.W. filed a “Motion to Suppress Evidence,
Observations and Statements Stemming from the Illegal and
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Unsupported Search of [K.D.W.]’s Pockets and Backpack” and a
“Motion to Suppress Evidence, Observations, and Statements from
the Unsupported and Illegal Arrest of [K.D.W.].”
¶ 20 At the motions hearing, the police officers and detectives
involved with the investigation, attempted stop, and pursuit of
K.D.W. testified. As relevant here, the court issued the following
findings of fact:
 Officers were investigating a recent string of local,
residential, daytime burglaries.
 The morning of the events at issue, officers saw a black
male talking to the driver of a green van at a park known
known for “gangs, assaults, drug activity, and weapons.”
 Officers observed the van pull out of the parking lot, and,
as they were following the van, they noticed a white car
that also appeared to be following the van.
 The white car then eluded police after an attempted
traffic stop.
 Because the officers were concerned about potential
connections between the vehicles and what they saw at
the park, they returned to the park.
8
 Officers saw K.D.W. at the park and believed he was the
same male that they had seen speaking with the driver of
the van based on his clothing.
 Although there was a discrepancy in the specific
descriptions of the clothing, the descriptions in general
were similar.
 The officers observed K.D.W. wearing a backpack and
holding a trash bag.
 The officers observed that K.D.W. appeared to be school-
age, and it was the morning of a weekday while school
was in session.
 As the patrol vehicle approached K.D.W., officers saw
him look at the vehicle and walk away.
 As the officer approached him, she said, “[H]ey, I need to
talk to you.”
 When the officer stopped him, he reached toward his
pocket.
 The officer asked him to take his hand out of his pocket
and put down his backpack.
9
 When the officer asked if she could pat him down for
safety, K.D.W. refused twice.
 K.D.W. then fled the area, leaving his backpack and bag
behind.
 Officers observed K.D.W. trespassing through private
residential property as he fled.
The court found, under the totality of the circumstances, that the
officers had reasonable suspicion to conduct a proper investigatory
stop and, therefore, denied K.D.W.’s motions.
3. Reasonable Suspicion
¶ 21 The district court acknowledged that this is a “very close call”
as to whether the officers had reasonable suspicion that criminal
activity had occurred or was taking place. We agree that this issue
is close, but we disagree with the district court’s legal conclusion.
¶ 22 In our view, the officer conducting the investigatory stop did
not have reasonable suspicion sufficient to justify seizing K.D.W. A
comparison of two Colorado Supreme Court cases informs our
analysis.
10
¶ 23 In Revoal, the supreme court concluded that reasonable
suspicion did not exist where the facts known to the investigating
officer prior to the intrusion were:
(1) it was 11:30 p.m.; (2) robberies had
recently occurred in the area; (3) [the
defendant] was standing on the side of a closed
Subway, looking left to right; (4) [the
defendant] walked to the side of an open liquor
store, continued looking left to right, then
walked toward the back of the liquor store,
where it was dark; and (5) [the defendant]
turned and walked away from [the
investigating officer] when he observed the
patrol vehicle.
Revoal, ¶¶ 12-20.
¶ 24 On the other hand, in Funez-Paiagua, the court concluded
that reasonable suspicion did exist where the facts known to the
investigating officer prior to the stop were:
(1) it was 1:15 a.m.; (2) criminal activity had
recently increased in the area; (3) [the
defendant] was standing on the private
property of an auto body shop; (4) the shop
was closed; (5) no other businesses in the area
were open; (6) no other people were nearby; (7)
the officer heard a loud crash; (8) [the
defendant] fled; and (9) [the defendant] was
carrying bags.
Funez-Paiagua, ¶¶ 10-14.
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¶ 25 In this case, the only facts and circumstances known to the
officer as she approached K.D.W. were: (1) it was the morning of a
school day, and K.D.W. appeared school-age; (2) the police were
investigating a recent string of local, daytime burglaries (though
none had occurred that day); (3) K.D.W. was carrying a backpack
and garbage bag; (4) K.D.W. somewhat matched a description of a
black male with black and white clothing who had been speaking to
the occupant of a van the officers deemed suspicious;1 and (5)
K.D.W. and the van were in a park known for gangs, drugs, assault,
and weapons.
¶ 26 Analyzing these factual findings, we agree with K.D.W. that the
fact that there had previously been criminal activity in the area and
his action of walking away from police officers were not, by
themselves or in combination, sufficient to create reasonable
suspicion. Revoal, ¶ 18; Outlaw v. People, 17 P.3d 150, 157 (Colo.
2001). We recognize that a high-crime area can “provide one
element of support for an investigatory stop.” People v. Archuleta,
1 Notably, at the hearing on the motions to suppress, the officers
described the individual at the van to be wearing “darker pants” or
“black pants,” while K.D.W.’s pants were described as “black and
white” by one officer and “white” by another officer.
12
980 P.2d 509, 515 (Colo. 1999). Indeed, “[f]actors which are not by
themselves proof of illegal conduct may give a police officer
reasonable suspicion.” People v. Rahming, 795 P.2d 1338, 1341
(Colo. 1990); see also People v. Pacheco, 182 P.3d 1180 (Colo. 2008)
(determining investigatory stop was proper where the officer
suspected burglary because it was late, the location of the vehicle
behind a business was suspicious, the business was closed, and
the vehicle’s lights were off). But the mere description of an area as
“high-crime” does not create reasonable suspicion of every young
person of color in that neighborhood. See United States v. Montero-
Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000) (“The citing of an
area as ‘high-crime’ requires careful examination by the court,
because such a description, unless properly limited and factually
based, can easily serve as a proxy for race or ethnicity.”); see also
United States v. Clay, 640 F.2d 157, 159 (8th Cir. 1981) (“Police
cannot have grounds for suspicion based solely on the race of the
suspect.”).
¶ 27 Moreover, unlike the defendant in Funez-Paiagua, who was
present on business property, after hours, where the police heard a
loud crash, K.D.W. was not observed on private property or
13
associated with a burglary in progress — he was sitting in a public
park with a bag and a backpack, and the officers were not aware of
any crime having just occurred. While the officers testified about a
possible connection between the white car that evaded police and
the occupant of the van the officers believed K.D.W. spoke to, there
was no testimony that the white car was linked to K.D.W., that the
white car was idling in the park K.D.W. was sitting in, or that the
white car and K.D.W. were linked to any criminal activity. In other
words, the officers did not articulate more than an inchoate hunch
that K.D.W. was involved in recent or ongoing criminal activity. See
Revoal, ¶ 11 (“The officer’s ‘unarticulated hunch’ that a criminal act
has occurred is not sufficient.” (quoting People v. Greer, 860 P.2d
528, 530 (Colo. 1993))).
¶ 28 Under these circumstances, we conclude that reasonable
suspicion to justify seizing K.D.W. did not exist. But, because of
K.D.W.’s subsequent actions, our analysis does not end there.
4. Attenuation
¶ 29 We agree with the People that the search of K.D.W.’s pockets
was attenuated from the illegal seizure because K.D.W.’s
independent and willful criminal actions of trespass and
14
obstructing a peace officer broke the causal chain between the
police officers’ misconduct and their discovery of the evidence of
K.D.W.’s criminal conduct. The backpack, on the other hand, was
seized during the course of the illegal investigatory stop before
K.D.W. fled. Therefore, the seizure and search of the backpack was
a fruit of the improper investigatory stop, and its contents must be
suppressed.
¶ 30 “The attenuation doctrine applies in situations where ‘the
connection between unconstitutional police conduct and the
evidence is remote or has been interrupted by some intervening
circumstance.’” Tomaske, ¶ 12 (quoting Utah v. Strieff, 579 U.S.
___, ___, 136 S. Ct. 2056, 2061 (2016)).
When defendants have responded to Fourth
Amendment violations with willful criminal
acts against police officers, courts have applied
the attenuation doctrine and held that
evidence of the criminal act is admissible.
“[A]n independent and willful criminal act
against a law enforcement officer” is sufficient
to break the causal chain between the police
misconduct and the evidence of the new crime,
such that the attenuation doctrine applies.
This is so for two reasons: (1) admission of the
contested evidence does not incentivize illegal
searches by the police; and (2) a contrary
approach would “effectively give the victim of
15
police misconduct carte blanche to respond
with any means, however violent.”
Id. at ¶ 13 (citations omitted).
¶ 31 In Tomaske, police entered the defendant’s property and
chased him into his house in violation of the Fourth Amendment.
Id. at ¶ 1. The defendant “responded by resisting and allegedly
assaulting a police officer.” Id. The court concluded that the
exclusionary rule did not apply because the defendant’s “decision to
resist ‘br[oke] the causal connection between the police illegality
and the evidence of the new crime.’” Id. at ¶ 17 (quoting People v.
Doke, 171 P.3d 237, 240 (Colo. 2007)).
¶ 32 Here, the district court found that K.D.W. trespassed and
obstructed a peace officer after he fled from police. The record
supports these findings. Thus, K.D.W.’s trespass and obstruction
gave police probable cause to arrest him. This in turn broke the
causal chain between the unlawful investigatory stop and the later
arrest, the search of K.D.W.’s pockets, and the statements he made
to officers after his arrest. Accordingly, the district court properly
denied K.D.W.’s motion to suppress as to the search of K.D.W.’s
pockets and the statements he made to officers while he was in
16
custody. Moody v. People, 159 P.3d 611, 615 (Colo. 2007)
(“[A]ppellate courts have the discretion to affirm decisions,
particularly denial of suppression motions, on any basis for which
there is a record sufficient to permit conclusions of law, even
though they may be on grounds other than those relied upon by the
trial court.”).
¶ 33 However, attenuation cannot justify the officers’ seizure and
later search of K.D.W.’s backpack. Contrary to the People’s
argument, K.D.W. did not abandon the backpack when he fled. The
officers ordered K.D.W. to place the backpack on the ground during
the illegal stop and maintained control over it when K.D.W. fled,
effectively seizing it. Thus, K.D.W.’s subsequent trespass and
obstruction did not break any “causal connection between the
police illegality and the evidence of the new crime.” Tomaske,
¶¶ 17-18 (quoting Doke, 171 P.3d at 240) (“[U]nlike the scenario
where police officers’ misconduct leads to their discovery of evidence
of a completed crime (e.g., finding contraband), this case involves
police misconduct that led to the commission of a new crime. The
exclusionary rule applies to the former situation, not the latter.”).
17
¶ 34 Accordingly, the evidence obtained as a result of the illegal
seizure and later search of the backpack must be suppressed. See
People v. Martinez, 200 P.3d 1053, 1054 (Colo. 2009) (affirming trial
court’s grant of a motion to suppress evidence where investigatory
stop was not supported by reasonable suspicion).
¶ 35 Further, because the People failed to present any argument
that the admission of the evidence in K.D.W.’s backpack — the
handgun and marijuana — was harmless beyond a reasonable
doubt, we are required to reverse K.D.W.’s adjudication for
possession of a handgun by a juvenile, attempt to carry a concealed
weapon, and possession of marijuana, and remand for further
proceedings. See Dyer, ¶ 43; see also Hagos v. People, 2012 CO 63,
¶ 11 (preserved constitutional errors require reversal unless they
are harmless beyond a reasonable doubt).
B. Sufficiency of the Evidence
¶ 36 Finally, K.D.W. argues that the magistrate erred in denying his
motion for judgment of acquittal on the obstruction charge, alleging
there was insufficient evidence to support his adjudication for
obstructing a peace officer. We disagree.
18
1. Standard of Review and Applicable Law
¶ 37 We review sufficiency of the evidence de novo regardless of
whether the issue was preserved. McCoy v. People, 2019 CO 44,
¶ 70; People in Interest of J.R., 216 P.3d 1220, 1221 (Colo. App.
2009) (“When reviewing the sufficiency of the evidence supporting
an adjudication of juvenile delinquency, the standards are the same
as those used in a criminal case.”).
¶ 38 In doing so, we must determine whether any rational trier of
fact could accept the evidence, taken as a whole and in the light
most favorable to the prosecution, as sufficient to support a finding
of guilt beyond a reasonable doubt. People v. Sprouse, 983 P.2d
771, 777 (Colo. 1999). We give the prosecution the benefit of every
reasonable inference to be drawn from the evidence, both direct and
circumstantial. People v. Vecellio, 2012 COA 40, ¶ 12; see People v.
Johnson, 2015 COA 54, ¶ 32. And we may not set aside a verdict
merely because we might have drawn a different conclusion had we
been the trier of fact. People v. Arzabala, 2012 COA 99, ¶ 13. Nor
may we assess the credibility of witnesses or resolve conflicts,
inconsistencies, or disputes in the evidence. See id.
19
¶ 39 In determining whether sufficient evidence exists to support a
conviction for obstructing a peace officer, we look at the totality of
the circumstances. Dempsey v. People, 117 P.3d 800, 812 (Colo.
2005).
¶ 40 A person commits the crime of obstructing a police officer
when, “by using or threatening to use violence, force, physical
interference, or an obstacle, such person knowingly obstructs,
impairs, or hinders the enforcement of the penal law or the
preservation of the peace by a peace officer, acting under the color
of his or her official authority.” § 18-8-104(1)(a), C.R.S. 2019. The
threat or use of an obstacle or physical interference “requires
conduct of sufficient magnitude to ‘obstruct, impair or hinder’” a
police officer. Dempsey, 117 P.3d at 810.
¶ 41 Because the obstruction statute punishes threats, as well as
use, of physical interference and obstacles, neither “physical
contact” nor actual physical interference is necessarily required to
commit the crime. Id. at 811. Thus, although mere verbal
opposition to an officer may not suffice, a combination of
statements and acts by the defendant can form the crime of
obstruction. Id.
20
2. Discussion
¶ 42 In Dempsey, the Colorado Supreme Court explained that an
act clearly indicating an intent by the accused to prevent the officer
from performing his or her duty amounts to obstruction. 117 P.3d
at 811-12. The court went on to hold that the evidence in that case
was sufficient to support a conviction for obstruction of a police
officer where the defendant was contacted by police, refused to
provide identification, walked away from officers, and reached into
his pocket in a manner that appeared threatening to the officers.
Id.
¶ 43 In this case, the officers testified that K.D.W. led them on a
four-block chase, jumped over a fence, committed trespass, and
crouched in an alley and appeared to attempt to change his shirt.
Based on this evidence, we conclude that the totality of the
circumstances supports the conclusion that K.D.W.’s conduct was
“of sufficient magnitude to ‘obstruct, impair, or hinder’” the police.
Id. at 810.
¶ 44 K.D.W. argues that the fact that he “simply ran away” is
insufficient evidence to support his conviction, citing to footnote
fourteen in Dempsey. While that footnote notes that “such minor
21
acts as running from a policeman or trying to shake free of his
grasp” may not be conduct sufficient to constitute obstruction,
K.D.W.’s conduct was not limited to running away from the police.
Id. at 811 n.14. Rather, in addition to fleeing, K.D.W. placed a
physical obstacle between himself and the officers when he jumped
over a fence onto private property. We therefore do not consider
whether flight, alone, is sufficient to constitute the crime of
obstructing a peace officer.
¶ 45 We also reject K.D.W.’s assertion that the officers were not
“enforcing the penal law” or acting “under color of official authority”
pursuant to section 18-8-104(1)(a) because they lacked reasonable
suspicion to stop K.D.W. We acknowledge that Dempsey required
the investigatory stop in that case to be lawful pursuant to section
16-3-103(1), C.R.S. 2004. Dempsey, 117 P.3d at 812 (“Thus, the
officer’s command must be attached to performance of an official
function such as an investigatory stop that is justified by
articulable basis in fact.”). However, the General Assembly has
since modified the obstruction statute to read,
It is not a defense to a prosecution under this
section that the peace officer was acting in an
illegal manner, if he or she was acting under
22
color of his or her official authority. A peace
officer acts ‘under color of his or her official
authority’ if, in the regular course of assigned
duties, he or she makes a judgment in good
faith based on surrounding facts and
circumstances that he or she must act to
enforce the law or preserve the peace.
§ 18-8-104(2); see Ch. 268, sec. 15, § 18-8-104(2), 2012 Colo. Sess.
Laws 1398. “[A] law enforcement officer is ‘engaged in the
performance of his duties’ while making in good faith an arrest or
stop which may be later adjudged to be invalid, unless he is on a
personal frolic or resorts to unreasonable or excessive force.”
People v. Johnson, 677 P.2d 424, 425 (Colo. App. 1983). We discern
nothing from the record to indicate the officers involved acted in
bad faith, were on a “personal frolic,” or resorted to “unreasonable
or excessive force.”
¶ 46 Because there was sufficient evidence to support K.D.W.’s
adjudication on the obstruction charge, the magistrate did not err
in denying the judgment of acquittal on the obstruction charge.
III. Conclusion
¶ 47 The judgment is affirmed in part, reversed in part, and
remanded for further proceedings consistent with this opinion.
JUDGE TOW and JUDGE PAWAR concur.
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