v. Cattaneo , 2020 COA 40 ( 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
March 12, 2020
2020COA40
No. 17CA1138, People v. Cattaneo— Constitutional Law —
Fourth Amendment — Searches and Seizures
A division of the court of appeals considers whether police
agents’ efforts to obtain a parked car’s vehicle identification number
(VIN) violated the defendant’s Fourth Amendment rights. The
agents reasonably suspected that the car was stolen but could not
confirm or dispel that suspicion by reading the VIN on the
dashboard because it was obscured. The agents then directed the
defendant to unlock the car so they could open the door to view the
VIN on the doorjamb. The division concludes that, under these
circumstances, probable cause to search the car was not required.
Because the agents’ actions did not exceed the bounds of an
investigatory stop, and because the defendant did not have a
reasonable expectation of privacy in the VIN, the division holds that
the agents’ actions were justified.
The division also concludes that the trial court’s belated
imposition of a drug surcharge did not violate the defendant’s
double jeopardy rights because the initial sentence that omitted the
surcharge was illegal. Therefore, correcting the initial sentence to
add the surcharge was proper.
Judge Dailey concurs as to the Fourth Amendment issue but
dissents on the double jeopardy issue. He concludes that, because
the trial court did not impose the surcharge at sentencing, and the
absence of the surcharge did not render the sentence illegal, the
court’s later imposition of the surcharge violated the defendant’s
double jeopardy rights.
COLORADO COURT OF APPEALS 2020COA40
Court of Appeals No. 17CA1138
Jefferson County District Court No. 16CR30
Honorable Christopher C. Zenisek, Judge
Honorable Philip J. McNulty, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Nicholas Trenton Cattaneo,
Defendant-Appellant.
JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE NAVARRO
Miller*, J., concurs
Dailey, J., concurs in part and dissents in part
Announced March 12, 2020
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
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶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
1
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.
2
¶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
1 The record does not make clear whether Agent Radke physically
took the backpack or simply directed Cattaneo to put it down.
3
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
4
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
5
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.
“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.
¶ 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. “[P]lain error occurs when there is (1) an error,
6
(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. 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 (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
7
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 the
officer at the time of the encounter and the rational inferences from
these facts create a ‘reasonable suspicion of criminal activity . . . .’”
(quoting People v. Thomas, 660 P.2d 1272, 1274 (Colo. 1983))).
8
¶ 20 To confirm or dispel their suspicion, the agents detained the
car and Cattaneo for the purpose of checking the VIN to determine
if the vehicle had been reported stolen. Because one function of the
VIN is to “to assist law enforcement officers in recovering stolen
vehicles,” we conclude that the agents’ objective to obtain the VIN
was reasonable. Id. at 1361.
¶ 21 Turning to the scope of the stop, courts consider a
nonexhaustive list of factors, including the following: (1) the length
of the detention; (2) whether the officer diligently pursued the basis
for the initial stop; (3) whether the suspect was required to move
from one location to another; and (4) whether there were
alternative, less intrusive means available. Chavez-Barragan, ¶ 22.
In addition, courts often consider the degree of force used. Id. at
¶ 23.
¶ 22 For purposes of analysis, we accept Cattaneo’s view that the
stop — the seizure of Cattaneo and his car — began when the
agents separated him from his backpack and his car for the
purpose of checking the VIN. We also assume that Agent Radke
asked Cattaneo to unlock the car so the agent could obtain the VIN
but also told him that, if he did not, a locksmith would do so.
9
Agent Radke also asked Agent Albrets to watch Cattaneo while
Agent Radke obtained the VIN. Altogether, such conduct amounted
to a seizure because a reasonable person would not feel free to
terminate the encounter with the agents. See People v. Fines, 127
P.3d 79, 81 (Colo. 2006) (a reasonable person would not feel free to
terminate an encounter where officers separated her from her
vehicle and remained in control of her purse).
¶ 23 The length of the stop was merely the amount of time the
agents needed to find and run the VIN, which was only a few
minutes. Cf. Rodriguez, 945 P.2d at 1362-63 (ninety minutes to
obtain VIN during traffic stop was unreasonable). During that short
time, the agents diligently pursued their objective. They did not
require Cattaneo to relocate himself or the car. Cf. id. (requiring
driver to travel ten miles to police station was unreasonable).
¶ 24 As for possible alternatives, the officers employed the least
intrusive means available to obtain the VIN. The officers attempted
to investigate whether the car was stolen by first checking the rear
license plate, which indicated that it was not associated with a
particular person. They then attempted to obtain a VIN with a plain
view investigation, only to discover that the dashboard VIN was
10
obstructed. When those measures did not assuage their suspicion,
they did not forcibly enter the vehicle. Rather, they waited for
Cattaneo to return to the car and asked him to unlock it so they
could inspect the VIN.2 After Cattaneo unlocked the car, Agent
Radke opened the door and remained outside the car while he
found the VIN on the exposed doorjamb. He did not intrude into
the passenger compartment.
¶ 25 Overall, then, the scope and character of the agents’ actions
were reasonably connected to the stop’s objective. We thus reject
Cattaneo’s view that the seizure of the car required probable cause.
Where the seizure of property is minimally intrusive, police may
temporarily seize it for purposes of investigation based on less than
probable cause. People v. Tallent, 174 P.3d 310, 313 (Colo. 2008).
¶ 26 We likewise disagree with Cattaneo that he was essentially
placed under arrest. A seizure that occurs within the bounds of an
investigatory stop is not an arrest. Terry v. Ohio, 392 U.S. 1, 27
2 Cattaneo relies on the United States Supreme Court’s statement
that, if property is temporarily detained for an investigative purpose
that “is itself a search requiring probable cause,” the initial seizure
must be justified by probable cause. United States v. Place, 462
U.S. 696, 706 (1983). As we will explain, however, the agents’
action to obtain the VIN was not itself a search requiring probable
cause under the circumstances of this case.
11
(1968). As noted, the detention was brief. Agent Radke did no
more than necessary to ensure the agents’ safety during the
investigation. Based on Cattaneo’s quick pace to the car and
sudden grabbing of the backpack from the car, Agent Radke was
reasonably concerned that the backpack might contain a weapon.
Separating him from the backpack was a minimally intrusive
measure given the concern for officer safety. People v. Smith, 13
P.3d 300, 305 (Colo. 2000) (“[D]uring an investigatory stop, an
officer may take steps to ensure his own safety.”). And, because
Cattaneo was not restrained, Agent Radke’s instruction to Agent
Albrets to “watch” Cattaneo (and thus to keep him separated from
the backpack and car) was a reasonable precaution. The detention
did not involve physical restraints, and the entire investigation took
place in public. These measures were certainly less intrusive than,
for instance, handcuffing him in the police cruiser for the duration
of the stop. Cf. id. at 305-06 (where officers had legitimate safety
concerns, handcuffing a suspect and ordering him to lay prone did
not exceed the scope of an investigatory stop).
¶ 27 Under these circumstances, a reasonable person would expect
that the brief encounter would end as soon as the agents ran the
12
VIN. Cf. People v. Cervantes-Arredondo, 17 P.3d 141, 146 (Colo.
2001) (“A seizure is an arrest if a reasonable person in the suspect’s
position would have understood the situation to constitute a
restraint on freedom of movement to the degree associated with
formal arrest.”). Because “a prudent officer acting with sufficient
reasonable suspicion to believe criminal activity is afoot may
temporarily detain persons or property without probable cause,” we
conclude that the seizure here did not escalate to an arrest. Tallent,
174 P.3d at 314.
¶ 28 In any event, the trial court surely did not commit obvious
error by failing to rule, sua sponte, that the detention of Cattaneo or
the car was illegal. Hence, the court did not commit plain error.
See Scott v. People, 2017 CO 16, ¶ 16 (“To qualify as plain error, an
error must generally be so obvious that a trial judge should be able
to avoid it without the benefit of an objection.”).
C. Inspection of the VIN
¶ 29 Furthermore, under the facts in this case, we are not
persuaded that the police agent needed probable cause to (1) ask
Cattaneo to unlock the car and then (2) open the door for the sole
purpose of inspecting the VIN in the doorjamb.
13
¶ 30 The United States Supreme Court has explained that “[t]he
VIN is a significant thread in the web of regulation of the
automobile.” New York v. Class, 475 U.S. 106, 111 (1986). The VIN
allows the easy identification of a particular vehicle, which assists
governments in many ways. Id. For instance, “[b]y making
automobile theft more difficult, the VIN safeguards not only
property but also life and limb.” Id. In light of the important
interests served by the VIN, “the Federal and State Governments are
amply justified in making it a part of the web of pervasive regulation
that surrounds the automobile.” Id. at 112. As relevant here, the
VIN is required by law to be placed in the doorjamb and on the
dashboard where it is readable by an observer located outside the
vehicle. See Rodriguez, 945 P.2d at 1361; 49 C.F.R. § 541.5 (2019);
49 C.F.R. § 565.13(f) (2019). An express legislative purpose of this
requirement is to assist law enforcement officers in recovering
stolen vehicles. See Rodriguez, 945 P.2d at 1361.
¶ 31 Because of the extensive regulation of vehicles, a person “must
surely expect that such regulation will on occasion require the State
to determine the VIN of his or her vehicle, and the individual’s
reasonable expectation of privacy in the VIN is thereby diminished.”
14
Class, 475 U.S. at 113. Indeed, “it is unreasonable to have an
expectation of privacy in an object required by law” to be placed “in
plain view from the exterior of the automobile.” Id. at 114.
Therefore, the Supreme Court has held that there is no reasonable
expectation of privacy in a VIN located “either inside the doorjamb,
or atop the dashboard.” Id. at 118-19 (distinguishing between
checking the doorjamb and intruding into the vehicle’s interior).
¶ 32 Even so, Cattaneo argues that the warrantless inspection of
the VIN in the doorjamb was a search requiring probable cause or
his consent. The People, noting that Cattaneo had no reasonable
expectation of privacy in the VIN in the doorjamb, contend that
inspecting the VIN was not a search under the Fourth Amendment.
As a result, the People continue, the police agents needed no cause
at all to inspect the VIN. We need not, and do not, go so far
because we are persuaded by the People’s alternative argument.
Assuming, without deciding, that the agent’s opening the car door
to inspect the VIN in the doorjamb (after asking Cattaneo to unlock
the door) constituted a search, we conclude that the search was
justified by reasonable suspicion that the car was stolen, did not
15
exceed the bounds of an investigatory stop, and was therefore
reasonable.
¶ 33 We draw further guidance from the Class decision. There, an
officer conducted a traffic stop of the defendant, who then
spontaneously exited the vehicle. Without asking the defendant’s
permission, a second officer opened the car door to look for the VIN
in the doorjamb. Unable to find it there, he reached into the car’s
interior to move papers obscuring the area of the dashboard where
the VIN was required to be. When reaching in, he noticed a gun
protruding from under the driver’s seat. On that basis, he arrested
the defendant. See Class, 475 U.S. at 108.
¶ 34 After finding that the defendant did not have a reasonable
expectation of privacy in the VIN, the Court concluded that “[t]he
mere viewing of the formerly obscured VIN” on the dashboard was
not a search and did not violate the Fourth Amendment. Id. at 113-
14. The Court decided, however, that the officer’s reaching into the
car’s interior to move the papers on the dashboard constituted a
search. Id. at 114-15.
¶ 35 The Court then considered whether the officer’s actions were
reasonable. Id. at 118-19. In doing so, it did not ask whether the
16
officer had probable cause to search the vehicle. Instead, the Court
balanced the “nature and quality” of the intrusion against the
importance of the governmental interest justifying the intrusion. Id.
at 118-19 (quoting Place, 462 U.S. at 703). The Court
acknowledged that the police had no reason to suspect that the
defendant’s car was stolen. Id. at 108. Nonetheless, the Court
concluded that the search for the VIN was reasonable given that the
police had observed the defendant commit two traffic violations and
given the typical circumstances of a traffic stop (including an
officer’s authority to remove the driver from the vehicle for safety
purposes). Id. at 117-18. Also critical to the Court’s decision was
the fact that the officer’s actions were minimally intrusive. The
officer looked for the VIN only in the doorjamb and on the
dashboard; “[n]either of those locations is subject to a reasonable
expectation of privacy.” Id. at 118. The officer did not root around
in the car’s interior or reach into any compartments. Considering
all the circumstances, the Court found no Fourth Amendment
violation. Id. at 118-19.3
3The Court noted that its holding did not authorize police officers to
enter a vehicle’s passenger compartment to obtain a dashboard-
17
¶ 36 The inspection here was less intrusive than the search in
Class. Agent Radke did not intrude into the car’s interior but only
checked the doorjamb for the VIN. Cf. id. Given his reasonable
suspicion that the car was stolen, and given that Cattaneo did not
have a reasonable expectation of privacy in the doorjamb VIN, this
very limited intrusion was reasonable under Class.
¶ 37 Indeed, Cattaneo does not argue that the Class Court required
probable cause to justify the search in that case. Instead, he says
that Class does not apply because the car here was not stopped due
to a traffic violation; it was parked in a lot. See United States v.
$277,000.00 U.S. Currency, 941 F.2d 898, 902 (9th Cir. 1991)
(holding that removing an opaque car cover to inspect a parked
car’s dashboard VIN was a search requiring probable cause).
Cattaneo warns against applying Class to permit a search of any
parked car without probable cause simply because the dashboard
VIN is obscured in some way. Our holding, however, does not
sweep so broadly.
mounted VIN when the VIN is visible from outside the vehicle. New
York v. Class, 475 U.S. 106, 119 (1986).
18
¶ 38 We hold merely that the agent’s reasonable suspicion that the
car was stolen in this case provided sufficient justification for the
momentary inspection of the VIN in the doorjamb. While we
recognize that the Class Court analyzed the circumstances of the
traffic stop in that case, we do not read Class as applying only to
traffic stops. The Court discussed the police’s authority to check a
VIN during traffic stops only after the Court noted that the police
there had no reason to suspect the car was stolen. In contrast, the
agent here had such a reasonable suspicion and conducted a lawful
investigatory stop. Given the VIN’s importance in assisting police to
recover stolen vehicles, we see no reason to limit Class’s rationale to
traffic stops and to refuse to apply Class to other lawful seizures of
vehicles. After all, the government’s interests in regulating vehicles
do not disappear altogether once a vehicle is parked. Officers
maintain an interest in returning stolen vehicles to their owners
and conducting their investigations in a safe manner. Cf. 1 Wayne
R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
§ 2.5(d) (5th ed. 2019) (“Whether there must always be an observed
traffic violation on which to ‘piggy-back’ the VIN search is unclear,
though the Court’s statements [in Class] about the importance of
19
the VIN and the consequent lack of an expectation of privacy as to
the VIN would lend support to the conclusion . . . that checking in a
vehicle for a VIN is a lesser intrusion than the usual search and
thus may be undertaken upon a lesser quantum of evidence.”)
(footnotes omitted).
¶ 39 To sum up, in all Fourth Amendment inquiries, the ultimate
question is reasonableness. Brigham City, 547 U.S. at 403. If a
Fourth Amendment search or seizure is a “lesser intrusion,” it may
be justified by something less than probable cause. See Delaware
v. Prouse, 440 U.S. 648, 656 (1979); see also People v. Brown, 2018
CO 27, ¶ 8 (permitting warrantless search and seizure of vehicles in
furtherance of community caretaking functions, without regard to
probable cause); People v. Delacruz, 2016 CO 76, ¶ 14 (permitting
protective sweep of passenger compartment based on reasonable
suspicion that motorist is armed and dangerous). One such lesser
intrusion is an investigatory stop, and the agent’s brief inspection of
the VIN in the doorjamb fell within the scope of a valid investigatory
stop. Accordingly, the inspection of the VIN did not violate
Cattaneo’s Fourth Amendment rights.
20
¶ 40 Because the Fourth Amendment did not require the agent to
have probable cause or to obtain Cattaneo’s consent before
inspecting the VIN in the doorjamb, we need not address whether
his consent to the agent’s opening the door was voluntary. See
United States v. Knights, 534 U.S. 112, 118 (2001) (declining to
address consent where a search was reasonable). Neither his
subsequent arrest for motor vehicle theft nor the search of his
backpack was tainted by illegality. The trial court, therefore,
properly denied his motion to suppress.
III. Double Jeopardy
¶ 41 Cattaneo next contends that the trial court impermissibly
increased his sentence when it imposed a drug surcharge on the
mittimus without first announcing it in open court at the
sentencing hearing.4 Reviewing de novo whether the court violated
Cattaneo’s rights against double jeopardy, see People v. Tillery, 231
P.3d 36, 48 (Colo. App. 2009), aff’d sub nom. People v. Simon, 266
P.3d 1099 (Colo. 2011), we see no double jeopardy violation.
4The drug surcharge is not specifically enumerated on the
mittimus, which mentions only an aggregate amount of money
assessed against Cattaneo. But both parties agree that the drug
surcharge is included.
21
¶ 42 The Double Jeopardy Clauses of the United States and
Colorado Constitutions protect a defendant from being twice
punished for the same offense. U.S. Const. amends. V, XIV; Colo.
Const. art. II, § 18. As Cattaneo correctly argues, “increasing a
lawful sentence after it has been imposed and the defendant has
begun serving it may, in certain circumstances, violate this aspect
of double jeopardy protection.” People v. McQuarrie, 66 P.3d 181,
182 (Colo. App. 2002). But when a sentence is illegal, it may be
corrected “at any time” without violating double jeopardy — even if
the correction increases the sentence — because a defendant has
no legitimate expectation of finality in an illegal sentence. People v.
Wiseman, 2017 COA 49M, ¶ 28 (quoting Crim. P. 35(a)); see also
Romero v. People, 179 P.3d 984, 989 (Colo. 2007) (“[D]ouble
jeopardy does not bar the imposition of an increased sentence if the
defendant lacked a legitimate expectation of finality in the
sentence.”).
¶ 43 Thus, the question is whether the initial sentence imposed in
open court, which omitted the drug surcharge, was lawful. We
review the legality of a sentence de novo. People v. Bassford, 2014
COA 15, ¶ 20. “Sentences that are inconsistent with the statutory
22
scheme outlined by the legislature are illegal.” People v. Rockwell,
125 P.3d 410, 414 (Colo. 2005).
¶ 44 Cattaneo was convicted of two drug felonies, which subjected
him to incarceration, parole, and a drug offender surcharge for each
conviction. See § 18-1.3-401.5, C.R.S. 2019; § 18-18-405(2)(a),
C.R.S. 2019; § 18-19-103(1), C.R.S. 2019. The drug offender
surcharge was imposed by section 18-19-103(1), which provides
that “each drug offender who is convicted . . . shall be required to
pay a surcharge.” The statute further provides:
(a) The court may not waive any portion of the
surcharge required by this section unless the
court first finds that the drug offender is
financially unable to pay any portion of said
surcharge.
....
(c) The court shall waive only that portion of
the surcharge which the court has found the
drug offender is financially unable to pay.
§ 18-19-103(6).
¶ 45 Relying on the waiver provision, Cattaneo argues that,
“because the drug surcharge is punishment and is not mandatory
in all cases,” his original sentence imposed in open court was legal.
As a result, he concludes that the Double Jeopardy Clause
23
precluded the court from later imposing the drug surcharge on the
mittimus. His conclusion finds support in the division’s decision in
McQuarrie, 66 P.3d at 183. Contrary to Cattaneo’s view, however,
simply because it is legal not to impose the surcharge in some cases
does not necessarily mean that the failure to impose it in his case
was legal (i.e., consistent with the statutory scheme). See People v.
Yeadon, 2018 COA 104, ¶¶ 47-51 (disagreeing with McQuarrie) (cert.
granted Mar. 25, 2019).
¶ 46 The imposition of restitution, for example, is not mandatory in
every criminal conviction, yet its omission may render a sentence
illegal in some cases. See, e.g., People v. Dunlap, 222 P.3d 364, 368
(Colo. App. 2009); People v. Smith, 121 P.3d 243, 251 (Colo. App.
2005). Specifically, where the trial court’s sentence does not
impose restitution but fails to include a specific finding that the
victim suffered no pecuniary loss, the sentence is illegal. See Smith,
121 P.3d at 251; see also Dunlap, 222 P.3d at 368. In that
scenario, the sentence may be corrected to impose restitution
without offending double jeopardy principles. See Smith, 121 P.3d
at 251.
24
¶ 47 Likewise, the legality of Cattaneo’s sentence depends not on
whether the drug surcharge may be legally omitted in some cases
but on whether the trial court legally omitted the surcharge in this
case. The drug offender surcharge statute provides that it “shall”
be imposed in “each” drug conviction. § 18-19-103(1), (6); see also
Yeadon, ¶¶ 50-51. Section 18-19-103(6) provides a mechanism for
waiver that is also couched in mandatory language. The trial court
“may not” waive the surcharge “unless the court first finds” that the
offender is financially unable to pay it. § 18-19-103(6)(a) (emphasis
added). In other words, a trial court’s authority to reduce the
surcharge is predicated upon the inability-to-pay finding. Absent
such an express finding, the statute requires the trial court to
impose the full surcharge. And, even if the court makes that
finding, the statute imposes a further restriction: the court “shall
waive only that portion of the surcharge which the court has found
the drug offender is financially unable to pay.” § 18-19-103(6)(c)
(emphasis added).
¶ 48 Reading the statute as a whole and giving sensible effect to all
its parts, we conclude that a trial court has the authority to reduce
or eliminate the surcharge only to the extent the offender is unable
25
to pay it. See § 18-19-103(6)(c); People v. Thames, 2019 COA 124,
¶ 76 (discussing analogous waiver provisions). This authority does
not exist unless the court makes an express finding that the
offender is unable to pay all or part of the surcharge. Cf. Smith,
121 P.3d at 251. Nowhere does the statute authorize a court to
omit the surcharge without the required finding.
¶ 49 Accordingly, where a drug conviction is involved, a sentence is
legal only where the trial court (1) makes a specific finding that the
offender is unable to pay the full surcharge and waives the
surcharge to the extent necessary or (2) imposes the full surcharge.
Yeadon, ¶¶ 50-51; see also Thames, ¶¶ 76-78. Because Cattaneo’s
original sentence announced in open court omitted the surcharge
without a finding that he was unable to pay it, the sentence was
contrary to section 18-19-103 and, thus, illegal. Yeadon, ¶¶ 50-51;
see also Thames, ¶¶ 77-78. So, the sentence could be corrected
without violating Cattaneo’s rights against double jeopardy.
Rockwell, 125 P.3d at 414; Wiseman, ¶¶ 26-28.
¶ 50 In the event we disagree with his double jeopardy argument,
Cattaneo requests a remand to give him an opportunity to present
evidence of his inability to pay the surcharge. See § 18-19-103(6)(b)
26
(permitting a hearing regarding the offender’s financial ability to pay
the surcharge). The People do not object to this relief. We therefore
remand to the trial court to give Cattaneo an opportunity to show
his inability to pay the surcharge. See Thames, ¶ 78.
IV. Conclusion
¶ 51 The judgment is affirmed, but the case is remanded to the trial
court to provide Cattaneo the opportunity to prove his inability to
pay the drug surcharge.
JUDGE MILLER concurs.
JUDGE DAILEY concurs in part and dissents in part.
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JUDGE DAILEY, concurring in part and dissenting in part.
¶ 52 I concur in all parts of the opinion except Part III, where the
majority concludes, based on People v. Yeadon, 2018 COA 104
(cert. granted Mar. 25, 2019), that the court was allowed to
belatedly impose a drug surcharge and, consequently, did not
violate Cattaneo’s double jeopardy rights.
¶ 53 Section 18-19-103(1), C.R.S. 2019, provides that “each drug
offender who is convicted . . . shall be required to pay a surcharge.”
The statute also states that “[t]he court may not waive any portion
of the surcharge required by this section unless the court first finds
that the drug offender is financially unable to pay any portion of
said surcharge.” § 18-19-103(6)(a).
¶ 54 In People v. McQuarrie, 66 P.3d 181, 183 (Colo. App. 2002), a
division of this court concluded that “because the drug offender
surcharge is considered punishment and is not mandatory in all
cases, the Double Jeopardy Clause required the trial court to
impose such a fine at the time that it imposed [the] defendant’s
sentence in open court,” and not later.
¶ 55 I served on the division that decided McQuarrie, and I’m
sticking with the position I took in that case. In my view, a statute
28
that, as here, essentially says “a surcharge shall be imposed
unless . . . ” is not mandatory, and, consequently, the absence of
that surcharge does not make a sentence illegal. Cf. id. (The
surcharge “differs from . . . nonwaivable costs, the subsequent
imposition of which does not violate double jeopardy principles.”).
¶ 56 Because the trial court did not impose the surcharge at
sentencing, and the absence of the surcharge did not render the
sentence illegal, the court’s later imposition of the surcharge
violated Cattaneo’s double jeopardy rights.
29