v. Hayes , 2020 COA 175 ( 2021 )

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
December 31, 2020
2020COA175
No. 18CA1001, People v. Hayes — Vehicles and Traffic —
Registration, Taxation, and License Plates
A division of the court of appeals considers whether section
42-3-203(3)(d)(1), C.R.S. 2020, requires affixing a temporary license
plate in the same location as a permanent rear license plate as
required by section 42-3-202(2)(a)(II)(A) to -(E), C.R.S. 2020. The
division concludes that it does.
COLORADO COURT OF APPEALS 2020COA175
Court of Appeals No. 18CA1001
Pueblo County District Court No. 17CR2034
Honorable William D. Alexander, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Andrew James Hayes,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE BERGER
J. Jones, J., concurs
Pawar, J., specially concurs
Announced December 31, 2020
Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meredith E. O’Harris, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Andrew James Hayes, appeals his convictions for
possession of a controlled substance and possession of drug
paraphernalia. His only contention on appeal is that the trial court
erred by denying his motion to suppress physical evidence found on
his person during a booking search following a traffic stop.
¶2 As a matter of first impression, we hold that section
42-3-203(3)(d)(I), C.R.S. 2020, read in conjunction with section
42-3-202, C.R.S. 2020, requires affixing a vehicle’s temporary plate1
in the same location as a permanent rear license plate. Because
the car in which Hayes was riding did not have a temporary plate in
the required location, the officer who stopped the car had
reasonable suspicion to make and continue the stop. That holding
requires us to reject Hayes’s Fourth Amendment challenge and
affirm his convictions.
I. Background
¶3 A police officer stopped the car in which Hayes was a
passenger. The initial basis for the stop was that the officer could
1 Section 42-3-203 uses the terms “temporary registration number
plates,” “temporary license plates,” and “temporary plates”
interchangeably. For clarity, we use the term “temporary plate.”
1
not see either a license plate or temporary plate on the car. After he
stopped the car, the officer saw a temporary plate in the rear
window. The officer asked the driver and passengers for their
names and other identifying information.2 A warrant check
disclosed outstanding arrest warrants for Hayes.
¶4 The officer arrested Hayes on the warrants and took him to
jail. During booking, another officer found, in Hayes’s pocket, a
plastic bag containing methamphetamine. As a result of this
discovery, the prosecution charged Hayes with possession of a
controlled substance.3
¶5 Hayes moved to suppress the evidence, claiming that the
officer lacked reasonable suspicion to continue the encounter after
he saw the temporary plate on the car and that the drug evidence
was fruit of the unlawful stop. According to Hayes, the moment the
2 Apart from his claim that the continued stop violated the Fourth
Amendment, Hayes does not challenge on appeal the right of the
officer to request this information.
3 At trial, the defense tendered an instruction on the lesser
nonincluded offense of unlawful possession of drug paraphernalia,
and the jury convicted him of both the greater and lesser
nonincluded offenses. See People v. Wartena, 2012 COA 12, ¶ 36.
2
officer saw the temporary plate, the officer was required to
discontinue the stop.
¶6 After an evidentiary hearing, the trial court ruled that the
officer had reasonable suspicion to continue the stop even after he
saw the temporary plate in the rear window because the temporary
plate was not in the location required by law. Alternatively, the
court denied the suppression motion in reliance on the attenuation
doctrine because of the outstanding arrest warrants.
II. Analysis
A. Standard of Review and Issue Preservation
¶7 Review of a trial court’s suppression order is a mixed question
of law and fact. People v. Tomaske, 2019 CO 35, ¶ 7. We defer to
trial court findings of fact that are supported by competent evidence
in the record and therefore are not clearly erroneous. People v.
Carrion, 2015 CO 13, ¶ 8. We review questions of law de novo.
Tomaske, ¶ 7.
B. Reasonable Suspicion
¶8 The Fourth Amendment to the United States Constitution and
article II, section 7 of the Colorado Constitution prohibit
unreasonable searches and seizures.
3
¶9 “Generally speaking, warrantless searches violate
constitutional guarantees because they are presumptively
unreasonable. When police obtain evidence in violation of the
Fourth Amendment, the exclusionary rule ordinarily bars the
prosecution from introducing that evidence against the defendant in
a criminal case.” People v. Vaughn, 2014 CO 71, ¶ 10 (citations
omitted).
¶ 10 However, there are exceptions to the warrant requirement.
One exception is that an officer may make an investigative stop
when there is reasonable suspicion. Terry v. Ohio, 392 U.S. 1,
21-22 (1968); Stone v. People, 174 Colo. 504, 508, 485 P.2d 495,
497 (1971).
An investigatory stop, including a traffic stop,
does not violate the Fourth Amendment’s
protections when there are specific, articulable
facts that give rise to an officer’s reasonable
suspicion of criminal activity. In the context of
traffic stops, an officer need only have a
reasonable suspicion of a traffic violation —
i.e., an objectively reasonable basis to believe
that a driver has committed a traffic offense —
in order to pull the driver over.
Vaughn, ¶ 11 (citations omitted).
4
¶ 11 Hayes contends that the stop was pretextual and that the
officer made the stop because he thought the odds of finding an
outstanding arrest warrant were high. However, an officer’s
subjective intent is not relevant to the determination of whether
reasonable suspicion exists. People v. Cherry, 119 P.3d 1081, 1083
(Colo. 2005). Rather, reasonable suspicion is determined by looking
at the articulable facts known to the officer. Id.¶ 12 The United States Supreme Court has held that a traffic stop
constitutes a seizure of “everyone in the vehicle, not just the driver.”
Brendlin v. California, 551 U.S. 249, 255 (2007). Hayes, a
passenger in the car, was therefore seized when the officer stopped
the car.
¶ 13 At the suppression hearing, the officer testified that he
stopped the car because he did not see a license plate or temporary
plate on the car. The trial court credited this testimony and
concluded that that the initial stop was supported by reasonable
suspicion. The trial court also found, contrary to some of the
officer’s testimony, that after the stop was made, the officer could
and did see a temporary plate that contained the statutorily
required content. But the trial court concluded that the temporary
5
plate was not affixed on the vehicle in the location required by law.
Accordingly, the court ruled that the officer was justified in
continuing the stop even after he saw a temporary plate. And once
the officer discovered the outstanding arrest warrants, there was
probable cause for Hayes’s arrest. See People v. Gouker, 665 P.2d
113, 116 (Colo. 1983).
¶ 14 Relying on People v. Redinger, 906 P.2d 81, 84 (Colo. 1995),
Hayes contends that the moment the officer saw the temporary
plate any lawful stop ended and the continuing stop violated the
Fourth Amendment. In a case similar to Redinger, the Tenth
Circuit held that once the officer was able to read the temporary
plate, any suspicion that the defendant had violated the license
plate statute dissipated and the stop was no longer supported by
reasonable suspicion. United States v. Edgerton, 438 F.3d 1043,
1051 (10th Cir. 2006).
¶ 15 But in both Redinger and Edgerton, there was no issue
regarding the location of the temporary plate. Indeed, after Redinger
was decided, the General Assembly amended the temporary plate
statute, addressing the required location of temporary plates.
6
¶ 16 The question presented here is whether the law in effect at the
time of the stop required the temporary plate to be affixed in the
same location required for a rear license plate. If, as the trial court
concluded and the Attorney General contends, a temporary plate
must be affixed in the same location as a rear license plate, the
officer was justified in continuing the stop, and the later discovery
of the arrest warrants and the drugs did not violate the Fourth
Amendment.
C. Statutory Interpretation
¶ 17 Statutory interpretation is a legal question that we review de
novo. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189
(Colo. 2010). When interpreting a statute, we first look at its plain
language. Id. When the plain language is clear, our job ends, and
we must apply the statute as written. Id.¶ 18 One of the relevant statutes, section 42-3-203(3)(d)(I),
provides:
By July 1, 2016, the department shall make
temporary registration number plates or
certificates so that each complies with the
requirements of section 42-3-202, including
being fastened, visible, and readable; except
that a temporary plate is affixed only to the
rear of the vehicle. The department shall
7
implement an electronic issuance system for
temporary license plates. The department may
promulgate rules to implement this system.
(Emphasis added.)
¶ 19 This statute requires temporary plates to comply with the
requirements of section 42-3-202. That statute contains specific
requirements for the fastening of a rear license plate:
(A) Horizontal at a height not less than twelve
inches from the ground, measuring from
the bottom of the plate;
(B) In a place and position to be clearly visible;
(C) Maintained free from foreign materials and
clearly legible;
(D) At the approximate center of the vehicle
measured horizontally; and
(E) Mounted on or within eighteen inches of
the rear bumper.
§ 42-3-202(2)(a)(II).
¶ 20 Hayes argued below and renews his argument here that the
words “including being fastened, visible, and readable” in the
temporary plate statute, section 42-3-203(3)(d)(I), implies the
exclusion of all other requirements, such as the required location of
the temporary plate. We reject this argument because the word
“including” is ordinarily used as a word of enlargement rather than
limitation. Cherry Creek Sch. Dist. No. 5 v. Voelker by Voelker, 859
P.2d 805, 813 (Colo. 1993).
8
¶ 21 The express language of section 42-3-203(3)(d)(I) requires that
temporary plates must “compl[y] with the requirements of section
42-3-202,” id., which specifies the location of a rear license plate.
In our view, the only reasonable reading of these statutory
provisions is that temporary plates must be fastened in the same
location as the permanent rear license plate. This includes the
requirements violated here — that the temporary plate be centered
and within eighteen inches of the bumper. § 42-3-202(2)(a)(II)(D),
(E).
¶ 22 While it is true, as the concurring opinion states, that the
initial portion of section 42-3-203(3)(d)(I) appears to require action
only by the Department of Revenue (Department), the language
contained in section 42-3-202(2)(a)(II), regarding the required
location of rear license plates cannot reasonably be read to impose
obligations solely on the Department. The Department does not
affix license plates to vehicles. The two statutes, read together,
specify the required location of rear plates and, by extension,
temporary plates.
¶ 23 Construed together, these statutes impose the obligation on
owners and operators of motor vehicles to affix temporary plates in
9
the manner stated in section 42-3-202(2)(a)(II). To read these
statutes otherwise would require us to ignore substantial portions
of the statutes, which we are not permitted to do. See People v.
Dunaway, 88 P.3d 619, 628 (Colo. 2004). Because this is the only
reasonable construction of these statutes, we are not at liberty to
consider legislative history. Rather, we apply the statute as written.
Smith, 230 P.3d at 1189.
¶ 24 Because the officer did not see either a temporary plate or
permanent license plate, he had reasonable suspicion to stop the
car. The stop continued to be lawful even after the officer saw the
temporary plate because it was not in the location required by law.
Accordingly, the trial court correctly denied the suppression
motion.4
III. Conclusion
¶ 25 The judgment of conviction is affirmed.
JUDGE J. JONES concurs.
JUDGE PAWAR specially concurs.
4 Because we affirm the suppression order based on the plain
language of the statute, we do not address the attenuation doctrine.
See People v. Cousins, 181 P.3d 365, 372 (Colo. App. 2007).
10
JUDGE PAWAR, specially concurring.
¶ 26 I agree with the majority’s ultimate conclusion that the display
requirements for temporary registration number plates are the
same as those for rear license plates. I write separately because I
disagree that the plain language of the relevant statutes
unambiguously compels this conclusion.
¶ 27 The majority concludes that “the express language” of the
temporary registration number plate statute, section 42-3-203,
C.R.S. 2020, requires a vehicle owner to display that number plate
as described in section 42-3-202, C.R.S. 2020. I read section 42-3-
202 differently. In my opinion, the express language of section 42-
3-203 directs the Department of Motor Vehicles (DMV) how to make
temporary registration number plates — it does not require a
vehicle owner to do anything. I therefore conclude that the display
requirements for temporary registration number plates are not
evident from the plain language of either section 42-3-202 or
section 42-3-203. Because the plain language is ambiguous, I
resort to other tools of statutory construction to determine how the
legislature intended temporary registration number plates to be
11
displayed. Based on these other tools, I arrive at the same place as
the majority.
I. Statutory Interpretation
¶ 28 Statutory interpretation is a question of law we review de novo.
People v. Iannicelli, 2019 CO 80, ¶ 19. Our primary task in
construing a statute is to ascertain and give effect to the intent of
the legislature. Id. To determine legislative intent, we look first to
the plain language of the statute. Id. We must read and consider
the statute “as a whole, giving consistent, harmonious, and sensible
effect to all of its parts.” Id. at ¶ 20.
¶ 29 If the statutory language is clear and unambiguous, we must
interpret the statute as written. Id. at ¶ 21. If, however, the statute
is ambiguous, we may employ tools of statutory construction,
including the statute’s legislative history, to discern legislative
intent. Id.
A. Plain Language
¶ 30 Section 42-3-202(2)(a)(I)-(II) contains the display requirements
for rear license plates:
(I) The owner or driver of a motor vehicle shall
securely fasten the license plate to the vehicle
12
to which it is assigned so as to prevent the
plate from swinging.
(II) Except when authorized by this article 3 or
rule of the department, the rear license plate
must be:
(A) Horizontal at a height not less than
twelve inches from the ground,
measuring from the bottom of the plate;
(B) In a place and position to be clearly
visible;
(C) Maintained free from foreign materials
and clearly legible;
(D) At the approximate center of the
vehicle measured horizontally; and
(E) Mounted on or within eighteen inches
of the rear bumper.
(Emphasis added.) These provisions clearly and unambiguously
instruct owners and drivers of motor vehicles as to the proper
location and placement of “rear license plates.”
¶ 31 Separately, section 42-3-203(3)(d)(I) addresses temporary
registration number plates:
By July 1, 2016, the department shall make
temporary registration number plates or
certificates so that each complies with the
requirements of section 42-3-202, including
being fastened, visible, and readable; except
that a temporary plate is affixed only to the
rear of the vehicle. The department shall
implement an electronic issuance system for
temporary license plates. The department may
promulgate rules to implement this system.
13
(Emphasis added.) This provision instructs the DMV on the proper
creation of “temporary registration number plates or certificates.”
Although it mandates that the DMV shall make temporary
registration number plates so that they can be displayed as
described in section 42-3-202 (the rear license plate provision),
nothing in section 42-3-203 instructs vehicle owners that they shall
display temporary registration number plates in a certain way. Put
differently, the plain language of section 42-3-203 tells the DMV
how to make temporary registration number plates; it says nothing
about how or where vehicle owners or drivers must display them.
¶ 32 Moreover, the plain language of the statutory scheme does not
provide that “temporary registration number plates” are a type of
“rear license plate” such that the display requirements for “rear
license plates” would unambiguously apply to “temporary
registration number plates.” There is no statutory definition of
“temporary registration number plates” or “rear license plates.”
¶ 33 The majority states that reading ambiguity in the statutes as I
do “would require us to ignore substantial portions of the statutes.”
But the majority does not identify, and I cannot discern, which
14
parts of the two statutes I am ignoring by reading the statutes as I
do.
¶ 34 I therefore disagree with the majority that the plain language
of the statutes unambiguously instructs vehicle owners and drivers
to display temporary registration number plates in the same
manner as rear license plates. The plain language of the statutes
directs the DMV how to make temporary registration number
plates. And it directs vehicle owners and drivers how to display
rear license plates. But the statutes do not make clear whether
temporary registration number plates are a type of rear license
plate, nor do the statutes separately instruct vehicle owners or
drivers how to display temporary registration number plates.
¶ 35 Because the statutes are ambiguous about how to display
temporary registration number plates, I must look beyond the plain
language of the statutes to determine the legislature’s intent. I look
first to the legislative history and other sections of the statute in an
effort to give “consistent, harmonious, and sensible effect to all of
its parts.” See Iannicelli, ¶¶ 20-21. Lastly, I turn to the General
Assembly’s stated objectives in implementing amendments to the
statutes.
15
B. Legislative History
¶ 36 In 2015, the General Assembly substantially amended the
license plate statutes to address statutory requirements for
temporary registration plates. See Ch. 334, 2015 Colo. Sess. Laws
1358-61.
¶ 37 Before these amendments, section 42-3-202 provided for the
proper placement of “number plates” on motor vehicles. See § 42-3-
202(2)(a), C.R.S. 2014. And the DMV was permitted to “issue
individual temporary registration number plates, tags, or
certificates” to motor vehicle owners. § 42-3-203(3)(a)(I), C.R.S.
2014. Owners and drivers were not instructed by any statutory
provision on where to mount “temporary registration number
plates, tags, or certificates.”
¶ 38 After the 2015 amendments, vehicle owners and drivers were
instructed by section 42-3-202 to mount “the license plate to the
vehicle” and that “each license plate” had to be
(A) Horizontal at a height not less than twelve
inches from the ground, measuring from the
bottom of the plate;
(B) In a place and position to be clearly visible;
(C) Maintained free from foreign materials and
clearly legible; and
16
(D) At the approximate center of the vehicle
measured horizontally.
Ch. 334, sec. 2, § 42-3-202, 2015 Colo. Sess. Laws 1360. The “rear
license plate” specifically had to be “mounted on or within eighteen
inches of the rear bumper.” Id.¶ 39 Simultaneously, the 2015 amendments newly instructed the
DMV to begin creating, on July 1, 2016, “temporary registration
number plates or certificates so that each complies with the
requirements of section 42-3-202, including being fastened, visible,
and readable; except that a temporary plate is affixed only to the
rear of the vehicle.” Ch. 334, sec. 1, § 42-3-203(3)(d)(I), 2015 Colo.
Sess. Laws 1359. Additionally, all references to “temporary
registration number tags” were removed from section 42-3-203. Id.(emphasis added).
¶ 40 In 2018, the General Assembly further refined the
requirements for mounting license plates under section 42-3-202.
See Ch. 85, sec. 1, § 42-3-202, 2018 Colo. Sess. Laws 685-86. The
statutes now provide distinct requirements for “rear license plate”
and “front license plate” mounting. The requirements for rear
license plates remain unchanged from 2015, § 42-3-202(2)(a)(II),
17
and front license plates must now be mounted horizontally on the
front of the vehicle in a location designated by the manufacturer,
§ 42-3-202(2)(a)(III).
¶ 41 Also through the 2015 amendments, the General Assembly
amended section 17-24-109.5, C.R.S. 2014 — the statute that
instills in Colorado’s division of correctional industries the authority
to utilize inmates to create license plates. The statute was amended
to include “temporary registration number plates” among the types
of license plates to be created by Colorado’s division of correctional
industries. 2015 Colo. Sess. Laws at 1359. And “temporary
registration number plates” is included in addition to “motor vehicle
license plates, validating tabs or decals, road signs, markers, and
metal badges.” 2015 Colo. Sess. Laws at 1360-61. But this only
adds ambiguity to the interpretation of sections 42-3-202 and 42-3-
203. The amendment to section 17-24-109.5 indicates that
“temporary registration plate” is distinct from, and not subsumed
within, “license plate.” Consequently, because the General
Assembly did not similarly include “temporary registration number
plate” in addition to “rear license plate” in the amendments to
section 42-3-202, it is reasonable to conclude that the omission was
18
intentional. Zamarripa v. Q & T Food Stores, Inc., 929 P.2d 1332,
1339 (Colo. 1997) (“Under the ordinary rule of statutory
construction requiring us to give effect to the plain meaning of a
statute’s wording . . . [an] omission must be viewed as intentional
and given effect.”). Moreover, in connection with the 2018
amendments, the General Assembly did not add “temporary
registration number plate” in addition to “rear license plate” to
section 42-3-202. The omission could therefore indicate that the
General Assembly did not actually intend to mandate that owners
and drivers affix temporary registration number plates to vehicles in
the same manner as permanent rear license plates.
C. Stated Purpose of the 2015 Amendments
¶ 42 Lacking resolution, I turn finally to the General Assembly’s
stated purpose for the 2015 amendments to these statutes:
The bill directs the department of revenue to
ensure that temporary motor vehicle
registration number plates, tags, or certificates
meet the existing statutory requirements for
attachment, visibility, and readability that
apply to permanent plates. This will result in a
new type of plastic temporary registration plate
that is affixed to the rear of the vehicle where
permanent license plates are placed. Two
additional requirements are added to the
placement of license plates: The plates must be
19
located at the approximate center of the
vehicle measured horizontally and the rear
license plate must be mounted on or within 18
inches of the rear bumper.
S.B. 15-090, 70th Gen. Assemb., First Reg. Sess., Updated Bill
Summary (Colo. 2015), https://perma.cc/ZGY4-QJX3 (emphasis
added); see also Office of Legislative Legal Services, 2015 Digest of
Bills Enacted by the Seventieth General Assembly 113 (June 2015),
https://perma.cc/5EQM-9J9Y (“This will result in a new type of
plastic temporary registration plate that is affixed to the rear of the
vehicle where permanent license plates are placed.”).
¶ 43 Similarly, the summary of the legislation according to the bill’s
fiscal note indicates the following:
The bill, as amended . . . requires that
temporary motor vehicle registration plates
and certificates meet the same statutory
requirements regarding attachment, visibility,
and readability as permanent plates, except
that a temporary plate is only required to be
affixed to the rear of the vehicle.
Legislative Council of the Colo. Gen. Assembly, Fiscal Note on S.B.
15-090, at 1 (Feb. 25, 2015) (emphasis added).
¶ 44 The General Assembly clearly articulated the purpose of the
2015 amendments in both the bill’s summary and fiscal note.
20
Based on the General Assembly’s stated objective, rather than the
plain language of the statutes, it is clear to me that the General
Assembly intended for vehicle owners and drivers to mount
“temporary registration plate[s] . . . to the rear of the vehicle where
permanent license plates are placed.”
II. Conclusion
¶ 45 Accordingly, I conclude — as the majority has — that
temporary registration number plates must comply with the
requirements for rear license plates under section 42-3-202(2)(a)(II),
including that the temporary plate be centered and within eighteen
inches of the bumper.
¶ 46 And consequently, because the car in which Hayes was a
passenger did not display the temporary plate in the correct
location, I agree with the majority’s conclusion that the officer who
stopped the car had reasonable suspicion to make and continue the
stop.
21