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                                                 ADVANCE SHEET HEADNOTE
                                                               June 22, 2020

                                    2020 CO 60

Nos. 20SA126, 20SA127, People v. Gutierrez and People v. Carrillo-Toledo—
Suppression of Evidence—Statutory Interpretation—Traffic Violation—Fourth
Amendment.

      The supreme court holds that section 42-4-903(4), C.R.S. (2019), requires a

driver to activate his or her vehicle’s turn signal before moving left or right to

change lanes. Accordingly, when an officer observes a driver activate the turn

signal once his or her vehicle’s tires are already partially over the dashed line

between lanes, that officer may reasonably conclude that he or she has witnessed

a traffic violation and may lawfully stop the vehicle. Thus here, the trial court

erred when it concluded that the initial traffic stop was unlawful and suppressed

evidence of criminality found during a search of the vehicle as stemming from that

unlawful stop. The supreme court therefore reverses the trial court’s order and

remands the case for further proceedings.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

                 2020 CO 60

     Supreme Court Case No. 20SA126
  Interlocutory Appeal from the District Court
Mesa County District Court Case No. 19CR481
     Honorable Richard T. Gurley, Judge

            Plaintiff–Appellant:
     The People of the State of Colorado,
                      v.
            Defendant–Appellee:
           Aldo Gabriel Gutierrez.

              Order Reversed
                 en banc

                   *****

     Supreme Court Case No. 20SA127
  Interlocutory Appeal from the District Court
Mesa County District Court Case No. 19CR480
     Honorable Richard T. Gurley, Judge

            Plaintiff–Appellant:
     The People of the State of Colorado,
                      v.
            Defendant–Appellee:
         Julio Cesar Carrillo-Toledo.

              Order Reversed
                  en banc
               June 22, 2020
Attorneys for Plaintiff–Appellant:
Daniel Rubenstein, District Attorney, Twenty-First Judicial District
Kraig R. Hamit, Senior Trial Deputy District Attorney
      Grand Junction, Colorado

Attorneys for Defendant–Appellee Aldo Gabriel Gutierrez:
Peters & Nolan, LLC
Andrew J. Nolan
      Grand Junction, Colorado

Attorneys for Defendant–Appellee Julio Cesar Carrillo-Toledo:
Stephen L. Laiche, P.C.
Stephen L. Laiche
      Grand Junction, Colorado




JUSTICE HOOD delivered the Opinion of the Court.


                                        2
¶1    This is an interlocutory appeal from the trial court’s order granting

defendants’ joint motion to suppress several pounds of heroin seized during a

search of defendants’ truck. We reverse the trial court’s order and remand the case

for further proceedings.

                        I. Facts and Procedural History

¶2    Aldo Gabriel Gutierrez was driving a pickup truck, in which Julio Cesar

Carrillo-Toledo was a passenger, on I-70 in Mesa County.1

¶3    Colorado State Patrol Trooper Christian Bollen, who has extensive training

in drug interdiction, noticed the truck. He testified that he took an interest in it

because computer databases informed him that the truck was a rental, registered

out of Nevada, that had recently been spotted in Amarillo, Texas.

¶4    After following the truck for several miles, Trooper Bollen observed what

he believed were two lane-change violations. He later testified, regarding the first

lane change, that the pick-up truck’s tires were on top of the center dividing line

and partially in the next lane when Gutierrez activated the turn signal. Regarding




1We gleaned the facts set forth in this section from the trial court’s written findings
in its suppression order and the seemingly undisputed testimony regarding the
circumstances surrounding the stop at issue.
                                          3
the second lane change, Trooper Bollen testified that the tires were on top of the

center dividing line when Gutierrez activated the turn signal.

¶5    Trooper Bollen pulled the truck over. He asked Gutierrez to step out of the

truck and, with Gutierrez’s consent, patted him down for weapons. He then ran

the truck’s and both men’s information through a computer-aided-dispatch

system and asked Gutierrez about his travel plans. He testified that Gutierrez’s

demeanor and speech changed in response to these questions and that Gutierrez

became very nervous.      Trooper Bollen said that Gutierrez’s answers to his

questions raised his suspicion that the two men might be transporting illegal

drugs. He then asked Gutierrez if he could search the truck, and Gutierrez gave

his consent. Trooper Bollen discovered three to five pounds of heroin in the

tailgate of the truck.

¶6    Both Gutierrez and Carrillo-Toledo were arrested and charged with

possession with intent to distribute a controlled substance. Before trial, Gutierrez

and Carrillo-Toledo filed a joint motion to suppress the evidence discovered in the




                                         4
truck.2 They alleged that Trooper Bollen violated their Fourth Amendment rights

by stopping them without reasonable suspicion of a traffic violation.

¶7    After a hearing, the trial court granted the motion to suppress. It concluded

that Gutierrez had not violated the relevant traffic statute and that Trooper

Bollen’s belief to the contrary was not objectively reasonable. (Based on this

conclusion, the trial court did not address any of defense counsel’s alternative

arguments.) The prosecution now appeals that order.

                                   II. Analysis

¶8    We initially address defense counsel’s contention that the appeal is not

timely and should be dismissed. Concluding that the appeal was timely filed, we

then turn to the merits of the appeal.       After briefly describing the relevant

standards of review, we examine the plain language of section 42-4-903, C.R.S.

(2019), the traffic statute Gutierrez allegedly violated. We hold that the statute’s

plain language requires a driver to signal before changing lanes.




2We note that under Brendlin v. California, 551 U.S. 249, 251 (2007), when a police
officer makes a traffic stop, both the driver and any passengers are considered to
be seized for Fourth Amendment purposes and anyone in the stopped vehicle may
challenge the constitutionality of the stop.
                                         5
                                  A. Timeliness

¶9    This interlocutory appeal was filed pursuant to C.A.R. 4.1, which requires

that certain interlocutory appeals of suppression orders in criminal cases be heard

by this court. Appeals under this rule “must be filed within 14 days after the entry

of the order complained of.” C.A.R. 4.1(b).

¶10   The suppression order was issued on March 26, and the appeal was filed on

April 9, the last day of the fourteen-day period. The appeal, however, was filed

with the court of appeals rather than this court. The court of appeals transferred

it, and thus it was filed with the supreme court on April 16. Although April 16 is

beyond the fourteen-day deadline, the filing is nonetheless timely because, under

section 13-4-110(3), C.R.S. (2019), “[n]o case filed either in the supreme court or the

court of appeals shall be dismissed for having been filed in the wrong court but

shall be transferred and considered properly filed in the court which the supreme

court determines has jurisdiction.” See People v. Greathouse, 742 P.2d 334, 336–37

(Colo. 1987) (concluding that the appeal, which was filed within the statutory

deadline, was timely even though it was erroneously filed with the court of

appeals rather than the supreme court). Thus, we proceed to consider the merits

of this appeal.




                                          6
                           B. Suppression of Evidence

¶11   Review of a trial court’s order granting a motion to suppress evidence

presents a mixed question of fact and law. People v. Berdahl, 2019 CO 29, ¶ 18,

440 P.3d 437, 442. And where “the controlling facts are undisputed . . . the legal

effect of those facts constitutes a question of law.” Turbyne v. People, 151 P.3d 563,

572 (Colo. 2007).

¶12   Review of the trial court’s suppression order requires us to review the

court’s interpretation of section 42-4-903.     Statutory interpretation presents a

question of law that we review de novo. People v. Null, 233 P.3d 670, 679 (Colo.

2010). In interpreting statutes, our primary goal is to give effect to the legislature’s

intent. Id. We do so by first considering the plain language of the statute, reading

the statute as a whole and giving words and phrases their ordinary meaning.

People v. Burnett, 2019 CO 2, ¶ 20, 432 P.3d 617, 622. If the statute is clear and

unambiguous, we apply it as written. People v. Huckabay, 2020 CO 42, ¶ 13, __ P.3d

__.

¶13   The Fourth Amendment to the United States Constitution protects

individuals against unreasonable searches and seizures by law enforcement. U.S.

Const. amend. IV; see also Colo. Const. art. II, § 7. When an individual is subjected

to a constitutionally unreasonable search, any evidence seized during that search



                                           7
may be suppressed, absent certain exceptions not relevant here. See People v.

Morley, 4 P.3d 1078, 1080 (Colo. 2000).

¶14   In Colorado, traffic stops typically constitute investigatory stops that

implicate this Fourth Amendment protection. People v. Chavez-Barragan, 2016 CO

66, ¶ 19, 379 P.3d 330, 335. An officer may conduct an investigatory stop without

violating the Fourth Amendment “when there are specific, articulable facts that

give rise to an officer’s reasonable suspicion of criminal activity . . . i.e., an

objectively reasonable basis to believe that a driver has committed a traffic

offense.” People v. Vaughn, 2014 CO 71, ¶ 11, 334 P.3d 226, 229 (citation omitted).

As long as the officer has an objectively reasonable basis for the stop, the officer’s

subjective motives are irrelevant. Id.

¶15   Trooper Bollen testified at the suppression hearing that he had observed

Gutierrez commit two lane-change violations. Section 42-4-903 governs a driver’s

turning movements and use of signals. Subsection (4) specifically governs lane

changes; it provides that turn signal indicator lights “shall be used to indicate an

intention to turn, change lanes, or start from a parked position.” § 42-4-903(4).

¶16   In resolving the suppression motion, the trial court interpreted this statutory

subsection. It concluded that

      section 42-4-903(4) does not require a driver to activate the turn signal
      before the vehicle’s tires touch the dividing line. It simply states that
      the turn signal must be used “to indicate an intention to . . . change
                                          8
      lanes.” The Court finds that Gutierrez complied with section
      42-4-903(4) by signaling his intent to change lanes just as he began to
      complete the lane changes.

We disagree with the trial court’s legal conclusion that Gutierrez complied with

the statute.

¶17   As a preliminary matter, we address the parties’ arguments regarding

whether the dashed line dividing the lanes is part of the lane the driver is in or

part of the lane he is moving into. Section 42-1-102(46), C.R.S. (2019), defines a

lane as “the portion of a roadway for the movement of a single line of vehicles.”

Regardless of whether this definition includes the dividing line, Trooper Bollen

testified that, at least as to Gutierrez’s first lane change, the tires were “already on

top of the lane line and partially into the other lane” when the trooper saw the turn

signal activate. Therefore, Gutierrez changed lanes at least once before signaling

his intention to do so.

¶18   Section 42-4-903(4) requires a driver to signal his “intention to” change

lanes. The statute contains no definition of “intention,” and we see no reason to

give that phrase any meaning other than its common one.                The dictionary

definition of “intention” is “a determination to act in a certain way.” Merriam-

Webster Dictionary, https://www.merriam-webster.com/dictionary/intention;

[https://perma.cc/NBM4-ZU86];          see       also   Merriam-Webster    Dictionary,

https://www.merriam-webster.com/dictionary/intends;
                                             9
[https://perma.cc/4B6V-5H6J] (defining “intends” as “to have in mind as a

purpose or goal: PLAN” and “to design for a specified use or future”). Thus,

“intention to” connotes a sequence of action: The driver must signal to show that

he plans to change lanes. In short, the signal must precede any movement between

lanes. See Burnett, ¶ 29, 432 P.3d at 624 (“The statute only requires that a driver

use a signal before changing lanes.” (emphasis added)).

¶19   Further, reading the statute as a whole, we note that subsection (1) provides

that “[n]o person shall . . . move right or left upon a roadway unless and until such

movement can be made with reasonable safety and then only after giving an

appropriate signal . . . .” § 42-4-903(1) (emphasis added). The phrase “only after”

unambiguously provides for the same sequence of action: A driver must first

signal and then begin moving right or left to change lanes.

¶20   Put simply, the plain language of section 42-4-903 does not permit a driver

to simultaneously signal and move into another lane.

¶21   Here, Trooper Bollen testified that he observed the truck’s tires partially

over the center dashed line separating the lanes at least once before Gutierrez

activated his signal. In its order, the trial court did not question Trooper Bollen’s

credibility about the facts, nor did it challenge the accuracy or reliability of the

dashcam photographs allegedly depicting the same. As an appellate court we

don’t engage in fact finding, nor do we make credibility determinations. Because
                                         10
those historical facts are supported by the record, we defer to them. See People v.

Minjarez, 81 P.3d 348, 353 (Colo. 2003) (“[W]e will defer to a trial court’s findings

of historical fact and credibility findings so long as they are supported by

competent evidence in the record.”). Thus, based on our interpretation of the plain

language of section 42-4-903 and the factual record, we conclude that the traffic

stop was based on Trooper Bollen’s reasonable suspicion that a traffic violation

had occurred. Accordingly, the trial court erred by concluding otherwise.3

                                 III. Conclusion

¶22   We reverse the trial court’s order and remand the case to the trial court for

further proceedings. On remand, we direct the trial court to consider any issues

that the parties raised in their suppression briefing that remain unresolved.




3 Based on our conclusion, we need not address the prosecution’s alternative
argument that Trooper Bollen’s alleged mistake of law was objectively reasonable.
See Heien v. North Carolina, 574 U.S. 54, 66 (2014).
                                         11
