In re A.B
2016 COA 170
| Colo. Ct. App. | 2016Background
- Juvenile A.B. had a deferred adjudication (one-year) for first-degree aggravated motor vehicle theft entered in Adams County; case transferred to Denver juvenile court.
- About four months later, Denver officers approached a parked car playing loud music; they parked behind it and ordered occupants back into the vehicle. A.B. was a rear-seat passenger.
- An officer observed A.B. reach toward his waistband and throw a handgun into the car; police recovered the gun and charged A.B. with possession of a weapon by a previous offender (POWPO) under § 18-12-108(3).
- A.B. moved to suppress the gun as fruit of an unlawful seizure and moved for judgment of acquittal arguing his pending deferred adjudication did not constitute the "adjudication" required by POWPO; both motions were denied and he was convicted.
- At sentencing the court revoked the deferred adjudication, found A.B. a repeat juvenile offender, and imposed 1–2 years DYC; A.B. appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether police "seized" A.B. when they parked behind the car and ordered occupants back in | A.B.: parking behind, two officers yelling orders, and blocking path amounted to a seizure requiring reasonable suspicion | AG: directing occupants back for safety during a lawful noise investigation was not a seizure | Court: assumed seizure for purposes of analysis but resolved on reasonable suspicion grounds (see below) |
| Whether officers had reasonable suspicion to detain A.B. | A.B.: as a rear passenger he could not have violated the noise ordinance because driver/front-seat controlled radio | AG: loud music plainly audible from vehicle justified suspicion as to all occupants | Held: officers had reasonable suspicion of Denver Rev. Mun. Code § 38-89(b) violation based on audible music, so the stop/seizure was lawful |
| Whether § 38-89(b) requires proof that others were actually disturbed | A.B.: Flores requires showing others were disturbed to prove disturbance offenses | AG: § 38-89(b) lacks Flores language requiring actual disturbance; audible at 25 feet suffices | Held: § 38-89(b) does not include a requirement that others be actually disturbed; audible music itself supported suspicion |
| Whether a pending juvenile deferred adjudication qualifies as a prior "adjudication" under POWPO § 18-12-108(3) | A.B.: "adjudication" does not mean deferred adjudication; deferred adjudication is not a conviction and is distinct under Children’s Code | AG: analogous provisions treat deferred adjudications as convictions; "adjudication" should include deferred adjudication for POWPO's purpose | Held: Reversed conviction — "adjudication" in § 18-12-108(3) does not include a pending deferred adjudication; prosecution failed to prove the required prior adjudication |
Key Cases Cited
- Marujo v. People, 192 P.3d 1003 (Colo. 2008) (tests whether a person has been seized for Fourth Amendment purposes)
- Walters v. People, 249 P.3d 805 (Colo. 2011) (approach to parked-vehicle encounters and seizure analysis)
- Grenier v. People, 200 P.3d 1062 (Colo. App. 2008) (reasonable suspicion based on local ordinance violations)
- Flores v. City & County of Denver, 220 P.2d 373 (Colo. 1950) (disturbing the peace requires others be disturbed under that statute)
- Montes-Rodriguez v. People, 241 P.3d 924 (Colo. 2010) (standard of review for denial of judgment of acquittal)
- Allen v. People, 111 P.3d 518 (Colo. App. 2004) (purpose of POWPO: restrict firearm possession by those with disqualifying past conduct)