Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
A division of the Colorado Court of Appeals ruled that failure to register as a sex offender is a sentence enhancer rather than an element of a subsequent crime.
In 1997, Charles Dorsey pleaded guilty to a Class 5 felony for attempted second-degree sexual assault. The presiding Arapahoe County District Court sentenced him to two years in custody and required him to register as a sex offender and re-register every year within five days of his birthday. Dorsey pleaded guilty in 2010 in Denver County Court for failing to re-register, a Class 1 misdemeanor. In 2017 the Denver Police Department found Dorsey had not re-registered anywhere in Colorado that year and he was charged with a Class 5 felony for a second offense failure to register as a sex offender. In district court, Dorsey was convicted of the charge by a jury.
On appeal, Dorsey argued that the 2010 offense was an element of the crime and prosecutors failed to prove the element beyond a reasonable doubt. He also argued a report from the national crime database was erroneously admitted as evidence during the trial.
Looking at two cases — Linnebur v. People from the state Supreme Court and People v. Caswell from the Court of Appeals — the court found that legislators intended prior convictions to be sentence enhancers in failure to register as a sex offender. The court found that since section 18-3-412.5 of the Colorado Revised Statutes doesn’t require prior offenses to be written in the charging document, it’s not an element of the crime.
The Court of Appeals dismissed Dorsey’s other arguments and affirmed the lower court’s ruling.
People in the Interest of C.C-S.
For the first time, a division of the Colorado Court of Appeals examined the standard applied in school officials’ searches, seizures or detentions of students.
A Denver Public Schools security officer received an anonymous tip that a juvenile student — named in court documents as C.C-S. — was recorded on a Snapchat video firing a gun. By the time the tip was received in February 2018, the video was over a month old and school officials couldn’t review it since Snapchat videos automatically delete after 24-hours unless saved.
The school dean told the officer that C.C-S. had a history of bringing “things to school that he shouldn’t” and the officer pulled C.C-S. aside for questioning and to search his backpack. The student said he didn’t consent to a search and attempted to leave, but the officers continued. Although no weapons were found, the school officials found marijuana and marijuana paraphernalia. C.C-S. was charged in a delinquency petition with possession of marijuana by a minor and possession with intent to distribute.
In a bench trial, C.C-S. was found guilty of both charges and was adjudicated delinquent. At trial, C.C-S. moved to suppress the marijuana and paraphernalia found in his backpack, arguing that it was found during an unconstitutional detention and search and seizure. The juvenile court denied the motion, finding that the anonymous tip and comments by the school dean justified the backpack search.
On appeal, C.C-S. argued that the anonymous tip was stale and the dean’s comments were not enough to justify the search and seizure. Although he admitted to officers that his backpack contained drugs, C.C-S. held that the admission did not justify the search since he made it while illegally detained.
While schools have a lower reasonable standard for searches, the court’s division looked at the event’s context and traditional Fourth Amendment principles. The court applied the two-fold inquiry set by the U.S. Supreme Court in New Jersey v. T.L.O that the search must be justified in its inception and conducted in a manner that is “reasonably related in scope to the circumstances which justified the interference in the first place.” While T.L.O. didn’t look at the standards applied to seizures and detentions of students by school officials, the Colorado Court of Appeals opted to apply the same standard in line with other states.
Applying the T.L.O. standard, the division found the student’s Fourth Amendment rights were violated by the detention and search based on an anonymous, stale and uncorroborated tip.
The People argued that even if the search and seizure was illegal, the exclusionary rule — that illegal search and seizures are not admissible in criminal proceedings — shouldn’t apply to school official searches of students and thus C.C-S. should still be found delinquent. The court held that since school security officers perform “quasi-law enforcement functions,” applying the exclusionary rule to school officials deters Fourth Amendment violations by school officials.
The juvenile court’s judgment was reversed and the case was remanded for a new trial.
Jerome D. Silvernagel and Dan Wu v. US Bank
Married couple Jerome Silvernagel and Dan Wu asked the Colorado Court of Appeals for declaratory relief after a district court dismissed their case against US Bank.
In 2004, Sivernagel and Wu bought a home in Highlands Ranch. Two years later, the couple took out a $62,400 second mortgage with New Century Mortgage Corporation that agreed to pay off the underlying loan monthly until 2036. In 2012, a bankruptcy court discharged Silvernagel’s personal liability on the note — he was the only one to sign the promissory note — and after that, he stopped making note payments.
In June 2019, the couple filed for declaratory relief against US Bank claiming that the organization began demanding payment on the underlying debt and threatening to foreclose on Silvernagel even though it could not prove it was the owner of the deed of trust and could not start foreclosure because of statutes of limitations and the doctrine of laches. Silvernagel also requested a declaratory judgment that he and Wu owned the property in fee simple unencumbered by the deed of trust and US Bank had “no further rights” to it.
The district court dismissed the complaint after US Bank provided a copy of the MERS milestone report showing it was the current trustee. It also accepted the bank’s arguments that because the deed of trust extended to 2036, a final limitations period had not yet commenced and Wu could have the deed of trust enforced against him since he signed to grant “an enforceable interest in the Property to the Trustee [US Bank] under the terms of the Deed of Trust.”
Silvernagle appealed the dismissal, arguing that US Bank didn’t have standing to enforce the deed and that the lower court erred in dismissing the claim based on US Bank’s claim that a new cause of action opened every month Silvernagle didn’t make payment and that the statute of limitations extended to at least 2036.
The court dismissed the first appeal claim but agreed with the second one regarding the statute of limitations. It held that Silvernagle’s 2012 discharge in bankruptcy meant that he didn’t have personal liability for the monthly non-payments afterward. The court applied reasoning used in a similar case from Washington’s Court of Appeals to find that the correct statute of limitations was six years from the bankruptcy discharge in 2012.
The Colorado Court of Appeals reversed the lower court’s judgement and remanded it with directions to reinstate the complaint and conduct further proceedings.