Court Opinions: Colorado Supreme Court Opinions for Sept. 26

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.


People v. Barrera

The Colorado Supreme Court en banc unanimously affirmed an order connected to a case involving reasonable suspicion and a traffic stop.

The interlocutory appeal focused on a suppression order and the high court considered whether a police officer had reasonable suspicion to conduct a traffic stop. The Supreme Court held, given the totality of the circumstances, the officer didn’t have reasonable suspicion. It affirmed a trial court’s order suppressing evidence obtained from a search.

Eduardo Barrera was driving an SUV with Isaiah Deaner as the passenger on Interstate 70 when Trooper Bollen saw the SUV go by and noticed it was an apparent rental vehicle with Arizona plates. Bollen later testified I-70 is a drug corridor where traffickers use rental vehicles to smuggle items like narcotics. Bollen also testified he noticed the Arizona plates because Arizona borders Mexico, which is a main source of narcotics. 

Bollen followed the SUV and eventually, the driver activated a left turn signal and moved in front of the patrol car because there was an emergency vehicle on the shoulder with its lights on. Dashcam footage indicates the SUV was less than three seconds ahead of the patrol car at that point, but then quickly went to a four-second gap. Bollen then pulled the SUV over because Barrera allegedly needed to leave more space and cut the patrol car off. 

Bollen then asked multiple questions of Barrera. At that time, a second officer spoke with Deaner and asked similar questions. Records say the two men were traveling from Phoenix to Denver and didn’t give matching answers. Bollen determined he had probable cause to search the vehicle where he found a significant amount of illegal drugs and both men were arrested.

Deaner and Barrera were charged with possession of a controlled substance with the intent to distribute. Deaner argued Bollen violated his constitutional rights believing Bollen didn’t have a reasonable suspicion to conduct the traffic stop, filing a motion to suppress evidence from the stop. Barrera filed a motion to adopt the ruling in Deaner’s case; both motions were granted

At a motion hearing, Bollen testified he believed Barrera made an unsafe lane change. Bollen stated this because there was less than a three-second gap between the vehicle and the patrol car. The three-second rule is part of the Colorado Driver’s Handbook.

The trial court granted the motion to suppress, finding the prosecution didn’t show Barrera performed an unsafe lane change. It suppressed all evidence obtained in the search of the SUV. The Supreme Court held Bollen lacked reasonable suspicion to stop the vehicle.

The high court wrote, under section 42-4-1007(1)(a), state law requires a driver to ascertain the specific circumstances of the road ensuring a lane change doesn’t cause danger. Given the totality of the circumstances, the Supreme Court concluded Barrera didn’t change lanes until he determined it was safe to do so.

The high court further surmised the three-second rule isn’t included in the lane-change statute, and said the handbook is regulatory material that doesn’t interpret statute. The Supreme Court also noted as the patrol car and SUV approached the stationary emergency vehicle, Bollen tapped his brakes twice to slow down; then Barrera activated his left blinker and moved in front of the patrol car. Once the SUV activated its blinker and the SUV began to change lanes, Bollen didn’t apply his brakes again according to court records. The trial court thus found Bollen was not forced to apply his brakes to avoid the SUV.

The Supreme Court affirmed the trial court’s order and remanded for further proceedings consistent with the opinion.

People v. Deaner

Following its ruling in People v. Barrera, the Colorado Supreme Court affirmed the trial court’s order suppressing evidence obtained from a search during a traffic stop. It ruled the officer in this case didn’t have reasonable suspicion to conduct the search.

Plemmons v. People

The high court unanimously en banc affirmed in part and reversed in part a case involving jury instructions.

Cheryl Plemmons is accused of spitting on two sheriff’s deputies when they were determining if she was suicidal. The alleged incidents happened in Plemmons’ home and a patrol car. 

Plemmons was charged and found guilty on three counts of second-degree assault. Two counts were under section 18-3-203(1)(h) for inside her home, while the charge for spitting in the patrol car was under a different section, 18-3-203(1)(f.5). The (1)(h) section is meant to cover intent to infect, injure or harm someone engaging as a police officer causing them to come into contact with saliva. 

Under (1)(f.5), second-degree assault is associated with someone being confined to a detention facility where someone intends to infect, harm, harass, threaten, etc. an employee in a detention center and cause them to come into contact with saliva.

The defense claimed the (1)(h) provision is unconstitutionally vague and overbroad, and while the trial court did find “harm” is ambiguous, it denied Plemmons’ motion dismissing the (1)(h) charges.. The court turned to interpretive aids and found the term means something different than “infect” or “injure” and it’s limited to psychological and emotional trauma from unwanted contact with bodily fluids or dangerous substances.

The trial court instructed the jury to treat that “harm” as psychological or emotional harm, which includes fear, anxiety and other distress. The court added the defendant didn’t need to have acted with intent to cause harm that is permanent, but the defendant must have intended to cause psychological or emotional harm that’s not fleeting. Plemmons was found guilty.

On appeal, Plemmons argued the trial court incorrectly instructed the jury on the definition of harm for the three convictions. An appeals court affirmed the conviction.

The Supreme Court disagreed in part with the appellate ruling, recalling the trial court defining harm to include psychological or emotional harm that could include fear, anxiety and other types of distress that is based on the danger of injury or infection when coming into contact with bodily fluids.

“Critically, this instruction provided that psychological or emotional harm can, but (presumably) need not, be based on fear of infection or injury,” wrote Justice William Hood. “So it could have led a reasonable juror to believe that ‘harm’ encompasses any type of significant distress and that harm based on the fear of disease was merely one example of such distress. In this context however, ‘harm’ must flow from a very particular form of significant distress; namely, the fear of disease because of uninvited exposure to another’s bodily fluids. The trial court erred in allowing the jury to infer otherwise.”

As for the alleged incident in the vehicle, the prosecution wasn’t constrained in proving the intention to harm an officer, the high court stated. It determined an instructional error in that situation was harmless.

The Supreme Court concluded Plemmons should get a new trial on the two charges related to (1)(h) and affirmed the conviction connected to (1)(f.5).

State of Colorado v. JUUL Labs, Inc. et al.

In a case involving e-cigarette company JUUL Labs, the Colorado Supreme Court made a rule to show cause absolute.

In the original proceedings, the high court reviewed a district court’s order denying Adam Bowen, James Monsees, Nicholas Pritzker and Riaz Valani’s motion to dismiss for a lack of personal jurisdiction. Those defendants are California residents who served in various roles for JUUL or its predecessor companies. 

Colorado Attorney General Phil Weiser filed an amended complaint alleging the defendants in their individual capacities, along with JUUL as a company, violated multiple provisions of the Colorado Consumer Protection Act and are subject to personal jurisdiction in Colorado. 

The defendants believe they don’t have the minimum contacts with Colorado and the exercise of personal jurisdiction is unreasonable given the current circumstances. JUUL didn’t argue the district lacks personal jurisdiction over it.

The high court ruled the district court based its determination on allegations aimed at JUUL and the defendants as a whole, rather than assessments of each defendant’s actions individually. The Supreme Court noted the state didn’t have sufficient facts to maintain the defendants were primary participants in alleged wrongful conduct directed at Colorado or that the injuries alleged were related to the defendants’ activities in Colorado.

The case was remanded for further proceedings.

People v. A.S.M.

The Supreme Court en banc unanimously made a rule absolute in a case involving a juvenile court and a preliminary hearing.

A.S.M., then 16 years old, was accused of committing multiple delinquent acts and the prosecution filed a five-count delinquency petition against him. A.S.M. was accused of two offenses qualifying as class 6 felonies in adult court and since he was in custody, a preliminary hearing could be held on those offenses.

A magistrate conducted the preliminary hearing. A detective was called as the only witness for the prosecution. A.S.M. argued the prosecution failed to establish probable cause in the two counts in question, but the magistrate found probable cause existed. A.S.M. filed a petition for a juvenile court to review the magistrate’s probable cause determination. The juvenile court concluded it lacked subject matter jurisdiction.

The question before the high court is whether A.S.M. can have a juvenile court judge review a preliminary hearing finding made by a juvenile court magistrate. The Supreme Court answered yes.

The high court made the rule absolute, surmising only a district court magistrate’s final order or judgment, namely ones resolving an issue or claim, are reviewable under C.R.M. 7(a)(3). It ruled the preliminary hearing statute in the Children’s Code permits the review of a magistrate’s preliminary hearing finding. 

On remand, the juvenile court needs to review the magistrate’s probable cause determination.

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