v. Cattaneo

     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
                                                              March 12, 2020

                                

No. 17CA1138, People v. Cattaneo— Constitutional Law —
Fourth Amendment — Searches and Seizures

     A division of the court of appeals considers whether police

agents’ efforts to obtain a parked car’s vehicle identification number

(VIN) violated the defendant’s Fourth Amendment rights. The

agents reasonably suspected that the car was stolen but could not

confirm or dispel that suspicion by reading the VIN on the

dashboard because it was obscured. The agents then directed the

defendant to unlock the car so they could open the door to view the

VIN on the doorjamb. The division concludes that, under these

circumstances, probable cause to search the car was not required.

Because the agents’ actions did not exceed the bounds of an

investigatory stop, and because the defendant did not have a
reasonable expectation of privacy in the VIN, the division holds that

the agents’ actions were justified.

     The division also concludes that the trial court’s belated

imposition of a drug surcharge did not violate the defendant’s

double jeopardy rights because the initial sentence that omitted the

surcharge was illegal. Therefore, correcting the initial sentence to

add the surcharge was proper.

     Judge Dailey concurs as to the Fourth Amendment issue but

dissents on the double jeopardy issue. He concludes that, because

the trial court did not impose the surcharge at sentencing, and the

absence of the surcharge did not render the sentence illegal, the

court’s later imposition of the surcharge violated the defendant’s

double jeopardy rights.
COLORADO COURT OF APPEALS                                           

Court of Appeals No. 17CA1138
Jefferson County District Court No. 16CR30
Honorable Christopher C. Zenisek, Judge
Honorable Philip J. McNulty, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Nicholas Trenton Cattaneo,

Defendant-Appellant.


                       JUDGMENT AFFIRMED AND CASE
                        REMANDED WITH DIRECTIONS

                                     Division I
                          Opinion by JUDGE NAVARRO
                                Miller*, J., concurs
                 Dailey, J., concurs in part and dissents in part

                          Announced March 12, 2020


Philip J. Weiser, Attorney General, Elizabeth Ford Milani, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith Rose, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    In this appeal, we consider whether police agents’ actions to

 obtain a parked car’s vehicle identification number (VIN) based on

 reasonable suspicion that the car had been stolen violated the

 Fourth Amendment right of defendant, Nicholas Trenton Cattaneo,

 to be free from unreasonable searches and seizures. We conclude

 that, under the circumstances, probable cause to search the car

 was not required and the agents’ actions were justified. Therefore,

 the trial court properly denied Cattaneo’s motion to suppress

 evidence discovered upon his subsequent arrest for motor vehicle

 theft.

¶2    We also consider whether the trial court’s imposition of a drug

 surcharge after the sentencing hearing violated Cattaneo’s double

 jeopardy rights. We find no double jeopardy violation, but we

 remand to provide Cattaneo an opportunity to prove his inability to

 pay the surcharge. In sum, we affirm the judgment and remand for

 further proceedings.

                 I.     Factual and Procedural History

¶3    Police Agent Rob Albrets responded to a call that employees of

 a Walmart store had detained Cattaneo on suspicion of shoplifting.

 When Agent Albrets arrived at the store’s loss prevention office, he


                                   1
 arrested Cattaneo. A subsequent search revealed keys to a Lincoln

 sedan and over $2000 in cash, but no personal identification (ID).

¶4    Per his department’s procedures, Agent Albrets planned to

 release Cattaneo on a summons, but that was possible only if

 Cattaneo had ID. Cattaneo said his ID was in the car, and he gave

 Agent Albrets permission to use his key fob to enter the car and

 retrieve the ID from the center console.

¶5    Agent Albrets found the Lincoln backed into a parking spot

 against a fence. It had a temporary tag in place of the rear license

 plate and no front plate. The agent’s call to police dispatch revealed

 that the temporary tag was associated with a dealership but not a

 specific vehicle. The agent unlocked the car, opened the center

 console, found the ID, and closed up and locked the car.

¶6    Suspecting that the car might have been stolen, Agent Albrets

 called for assistance to determine whether it was stolen, and he

 returned to the loss prevention office. In response, Agent Sean

 Radke arrived at the parking lot and attempted to find the car’s VIN

 by looking at the dashboard through the windows. The VIN was

 obscured, however, by a crumpled paper that Agent Radke believed

 had been intentionally shoved into the dashboard to hide the VIN.


                                   2
¶7    Meanwhile, Agent Albrets released Cattaneo from the loss

 prevention office but followed him (at a distance) to his car, where

 Agent Radke was waiting. As Agent Radke approached, Cattaneo

 walked quickly to the car’s passenger side, removed a backpack

 from the car, and locked the car. Fearing that Cattaneo might be

 grabbing a weapon, and wishing to investigate if the car had been

 stolen, Agent Radke “separated” Cattaneo from the backpack.1

 Agent Radke explained that he wanted to find the VIN. Because

 Cattaneo had the keys, Agent Radke asked him to open the door so

 the agent could see the VIN on the car door. Apparently, the agent

 also said that he had the right to call a locksmith to open the car to

 access the VIN, although the record is less than clear on this point.

 Agent Radke did not inform Cattaneo that he could refuse a request

 to search the car. See § 16-3-310, C.R.S. 2019.

¶8    Cattaneo used his key fob to unlock the car. Agent Radke

 opened the door, located the VIN on the doorjamb, and closed the

 door without entering the passenger compartment. Agent Radke

 asked dispatch to check the VIN. Within two minutes, dispatch


 1 The record does not make clear whether Agent Radke physically
 took the backpack or simply directed Cattaneo to put it down.

                                   3
  responded that the car had been reported stolen. The agents

  arrested Cattaneo on suspicion of motor vehicle theft and searched

  the backpack, where they found a large number of OxyContin and

  Oxycodone pills.

¶9     The prosecution charged Cattaneo with aggravated motor

  vehicle theft, possession with intent to manufacture or distribute a

  controlled substance, possession of a controlled substance, and

  theft of less than fifty dollars.

¶ 10   Before trial, Cattaneo moved to suppress the pills as fruit of an

  unlawful search. He contended that the agents did not have

  probable cause to search the car and did not obtain his voluntary

  consent to open the car door to access the VIN, without which they

  would not have had probable cause to arrest him and search the

  backpack. The prosecution countered that the agents suspected

  that the vehicle was stolen, the search was limited in scope, and

  Cattaneo’s consent was voluntary even absent the statutory

  advisement.

¶ 11   The trial court denied the motion to suppress. It found that

  the agents had reasonable suspicion that the vehicle was stolen and

  that they obtained the VIN through a reasonable and limited


                                      4
  search. Moreover, the trial court found that Cattaneo had

  voluntarily consented to a search of the car to obtain the VIN. The

  court concluded that, once the VIN showed the car to be stolen, the

  agents had probable cause to arrest Cattaneo and the pills were

  admissible as the result of a valid search incident to arrest, an

  inventory search, or inevitable discovery.

¶ 12   The case proceeded to trial. The prosecution ultimately

  dismissed the motor vehicle theft charge, and the jury convicted

  Cattaneo of the remaining charges. The trial court sentenced him

  to a term of imprisonment and parole. Additionally, the mittimus

  appears to require him to pay a drug surcharge.

                        II.   Suppression Order

¶ 13   Everyone agrees that Cattaneo’s arrest on suspicion of stealing

  the car, and the subsequent discovery of illicit drugs in his

  backpack, resulted from the police agents’ obtaining the VIN from

  the car’s doorjamb. Cattaneo contends, as he did in the trial court,

  that the agents could not search his car without probable cause or

  his voluntary consent to search. According to him, the agents had

  neither. Alternatively, Cattaneo also argues, for the first time on

  appeal, that the seizure of the car and his person in the parking lot


                                    5
  was illegal because it was not supported by probable cause. On

  this latter theory, he concludes that the backpack’s contents were

  the ultimate fruit of an illegal seizure.

¶ 14   We disagree because the police agents’ actions were

  reasonable under the totality of the circumstances. Specifically, the

  limited intrusion into the car to view the VIN and the earlier seizure

  of Cattaneo and the vehicle were within the permissible scope of an

  investigatory stop justified by reasonable suspicion that the car was

  stolen.

             A.   Standard of Review and General Principles

¶ 15   Appellate courts apply a mixed standard of review to

  suppression issues. People v. Chavez-Barragan, 

.

  “Under this standard, we review the trial court’s findings of historic

  fact deferentially, accepting them if they are supported by

  competent record evidence . . . .” 

 But we review de novo the

  legal effect of those facts. Williams v. People, 

.

¶ 16   Where a defendant failed to preserve his suppression

  arguments in the trial court, we may reverse based on those

  arguments only if plain error occurred. See Phillips v. People, 

. “[P]lain error occurs when there is (1) an error,


                                      6
  (2) that is obvious, and (3) that so undermines the fundamental

  fairness of the trial itself as to cast serious doubt on the reliability

  of the judgment of conviction.” Id. at ¶ 39.

¶ 17   Both the Fourth Amendment of the United States Constitution

  and article II, section 7 of the Colorado Constitution prohibit

  unreasonable searches and seizures. People v. Allen, 

. A warrantless search or seizure is presumptively

  unreasonable and therefore unconstitutional. 

 Because “the

  ultimate touchstone of the Fourth Amendment is ‘reasonableness,’”

  however, the warrant requirement is subject to exceptions.

  Brigham City v. Stuart, 

 (2006). The prosecution

  bears the burden to establish that a warrantless search falls within

  an exception to the warrant requirement. Allen, ¶ 16.

¶ 18   One such exception is an investigatory stop based on less than

  probable cause. People v. Rodriguez, 

 (Colo.

  1997). “An officer may engage in an investigatory stop of a car and

  then question the driver without running afoul of the Fourth

  Amendment’s prohibition against unreasonable searches and

  seizures provided three conditions exist:” (1) the officer has

  reasonable suspicion that criminal activity has occurred, is taking


                                      7
  place, or is about to take place; (2) the officer has a reasonable

  objective for the stop; and (3) the scope and character of the

  intrusion is reasonably connected to its objective. 

                  B.    Seizure of Cattaneo and the Car

¶ 19   The parties here do not dispute that the agents had reasonable

  suspicion to believe the car was stolen. Cattaneo had just been

  detained for shoplifting. He had the keys to a vehicle that lacked a

  front license plate. The temporary tag in the rear was associated

  only with a dealership, and the car was parked in manner that

  obscured the rear plate. The VIN on the dashboard appeared

  purposefully obscured. Agent Radke testified that, in his

  experience, the combination of these facts indicated that the car

  was stolen. We therefore agree with the parties and the trial court

  that the agents reasonably suspected that the vehicle had been

  stolen. 

 (The pertinent question is “whether, under the totality of

  the circumstances, the ‘specific and articulable facts’ known to the

  officer at the time of the encounter and the rational inferences from

  these facts create a ‘reasonable suspicion of criminal activity . . . .’”

  (quoting People v. Thomas, 

 (Colo. 1983))).




                                      8
¶ 20      To confirm or dispel their suspicion, the agents detained the

  car and Cattaneo for the purpose of checking the VIN to determine

  if the vehicle had been reported stolen. Because one function of the

  VIN is to “to assist law enforcement officers in recovering stolen

  vehicles,” we conclude that the agents’ objective to obtain the VIN

  was reasonable. 

.

¶ 21      Turning to the scope of the stop, courts consider a

  nonexhaustive list of factors, including the following: (1) the length

  of the detention; (2) whether the officer diligently pursued the basis

  for the initial stop; (3) whether the suspect was required to move

  from one location to another; and (4) whether there were

  alternative, less intrusive means available. Chavez-Barragan, ¶ 22.

  In addition, courts often consider the degree of force used. Id. at

  ¶ 23.

¶ 22      For purposes of analysis, we accept Cattaneo’s view that the

  stop — the seizure of Cattaneo and his car — began when the

  agents separated him from his backpack and his car for the

  purpose of checking the VIN. We also assume that Agent Radke

  asked Cattaneo to unlock the car so the agent could obtain the VIN

  but also told him that, if he did not, a locksmith would do so.


                                      9
  Agent Radke also asked Agent Albrets to watch Cattaneo while

  Agent Radke obtained the VIN. Altogether, such conduct amounted

  to a seizure because a reasonable person would not feel free to

  terminate the encounter with the agents. See People v. Fines, 

 (Colo. 2006) (a reasonable person would not feel free to

  terminate an encounter where officers separated her from her

  vehicle and remained in control of her purse).

¶ 23   The length of the stop was merely the amount of time the

  agents needed to find and run the VIN, which was only a few

  minutes. Cf. Rodriguez, 

 (ninety minutes to

  obtain VIN during traffic stop was unreasonable). During that short

  time, the agents diligently pursued their objective. They did not

  require Cattaneo to relocate himself or the car. Cf. 

 (requiring

  driver to travel ten miles to police station was unreasonable).

¶ 24   As for possible alternatives, the officers employed the least

  intrusive means available to obtain the VIN. The officers attempted

  to investigate whether the car was stolen by first checking the rear

  license plate, which indicated that it was not associated with a

  particular person. They then attempted to obtain a VIN with a plain

  view investigation, only to discover that the dashboard VIN was


                                    10
  obstructed. When those measures did not assuage their suspicion,

  they did not forcibly enter the vehicle. Rather, they waited for

  Cattaneo to return to the car and asked him to unlock it so they

  could inspect the VIN.2 After Cattaneo unlocked the car, Agent

  Radke opened the door and remained outside the car while he

  found the VIN on the exposed doorjamb. He did not intrude into

  the passenger compartment.

¶ 25   Overall, then, the scope and character of the agents’ actions

  were reasonably connected to the stop’s objective. We thus reject

  Cattaneo’s view that the seizure of the car required probable cause.

  Where the seizure of property is minimally intrusive, police may

  temporarily seize it for purposes of investigation based on less than

  probable cause. People v. Tallent, 

 (Colo. 2008).

¶ 26   We likewise disagree with Cattaneo that he was essentially

  placed under arrest. A seizure that occurs within the bounds of an

  investigatory stop is not an arrest. Terry v. Ohio, 

, 27

  2 Cattaneo relies on the United States Supreme Court’s statement
  that, if property is temporarily detained for an investigative purpose
  that “is itself a search requiring probable cause,” the initial seizure
  must be justified by probable cause. United States v. Place, 

 (1983). As we will explain, however, the agents’
  action to obtain the VIN was not itself a search requiring probable
  cause under the circumstances of this case.

                                    11
  (1968). As noted, the detention was brief. Agent Radke did no

  more than necessary to ensure the agents’ safety during the

  investigation. Based on Cattaneo’s quick pace to the car and

  sudden grabbing of the backpack from the car, Agent Radke was

  reasonably concerned that the backpack might contain a weapon.

  Separating him from the backpack was a minimally intrusive

  measure given the concern for officer safety. People v. Smith, 

 (Colo. 2000) (“[D]uring an investigatory stop, an

  officer may take steps to ensure his own safety.”). And, because

  Cattaneo was not restrained, Agent Radke’s instruction to Agent

  Albrets to “watch” Cattaneo (and thus to keep him separated from

  the backpack and car) was a reasonable precaution. The detention

  did not involve physical restraints, and the entire investigation took

  place in public. These measures were certainly less intrusive than,

  for instance, handcuffing him in the police cruiser for the duration

  of the stop. Cf. 

 (where officers had legitimate safety

  concerns, handcuffing a suspect and ordering him to lay prone did

  not exceed the scope of an investigatory stop).

¶ 27   Under these circumstances, a reasonable person would expect

  that the brief encounter would end as soon as the agents ran the


                                    12
  VIN. Cf. People v. Cervantes-Arredondo, 

 (Colo.

  2001) (“A seizure is an arrest if a reasonable person in the suspect’s

  position would have understood the situation to constitute a

  restraint on freedom of movement to the degree associated with

  formal arrest.”). Because “a prudent officer acting with sufficient

  reasonable suspicion to believe criminal activity is afoot may

  temporarily detain persons or property without probable cause,” we

  conclude that the seizure here did not escalate to an arrest. Tallent,

  

.

¶ 28   In any event, the trial court surely did not commit obvious

  error by failing to rule, sua sponte, that the detention of Cattaneo or

  the car was illegal. Hence, the court did not commit plain error.

  See Scott v. People, 

 (“To qualify as plain error, an

  error must generally be so obvious that a trial judge should be able

  to avoid it without the benefit of an objection.”).

                        C.    Inspection of the VIN

¶ 29   Furthermore, under the facts in this case, we are not

  persuaded that the police agent needed probable cause to (1) ask

  Cattaneo to unlock the car and then (2) open the door for the sole

  purpose of inspecting the VIN in the doorjamb.


                                     13
¶ 30   The United States Supreme Court has explained that “[t]he

  VIN is a significant thread in the web of regulation of the

  automobile.” New York v. Class, 

 (1986). The VIN

  allows the easy identification of a particular vehicle, which assists

  governments in many ways. 

 For instance, “[b]y making

  automobile theft more difficult, the VIN safeguards not only

  property but also life and limb.” 

 In light of the important

  interests served by the VIN, “the Federal and State Governments are

  amply justified in making it a part of the web of pervasive regulation

  that surrounds the automobile.” 

. As relevant here, the

  VIN is required by law to be placed in the doorjamb and on the

  dashboard where it is readable by an observer located outside the

  vehicle. See Rodriguez, 

; 

 (2019);

  

(f) (2019). An express legislative purpose of this

  requirement is to assist law enforcement officers in recovering

  stolen vehicles. See Rodriguez, 

.

¶ 31   Because of the extensive regulation of vehicles, a person “must

  surely expect that such regulation will on occasion require the State

  to determine the VIN of his or her vehicle, and the individual’s

  reasonable expectation of privacy in the VIN is thereby diminished.”


                                    14
  Class, 

. Indeed, “it is unreasonable to have an

  expectation of privacy in an object required by law” to be placed “in

  plain view from the exterior of the automobile.” 

.

  Therefore, the Supreme Court has held that there is no reasonable

  expectation of privacy in a VIN located “either inside the doorjamb,

  or atop the dashboard.” 

 (distinguishing between

  checking the doorjamb and intruding into the vehicle’s interior).

¶ 32   Even so, Cattaneo argues that the warrantless inspection of

  the VIN in the doorjamb was a search requiring probable cause or

  his consent. The People, noting that Cattaneo had no reasonable

  expectation of privacy in the VIN in the doorjamb, contend that

  inspecting the VIN was not a search under the Fourth Amendment.

  As a result, the People continue, the police agents needed no cause

  at all to inspect the VIN. We need not, and do not, go so far

  because we are persuaded by the People’s alternative argument.

  Assuming, without deciding, that the agent’s opening the car door

  to inspect the VIN in the doorjamb (after asking Cattaneo to unlock

  the door) constituted a search, we conclude that the search was

  justified by reasonable suspicion that the car was stolen, did not




                                   15
  exceed the bounds of an investigatory stop, and was therefore

  reasonable.

¶ 33   We draw further guidance from the Class decision. There, an

  officer conducted a traffic stop of the defendant, who then

  spontaneously exited the vehicle. Without asking the defendant’s

  permission, a second officer opened the car door to look for the VIN

  in the doorjamb. Unable to find it there, he reached into the car’s

  interior to move papers obscuring the area of the dashboard where

  the VIN was required to be. When reaching in, he noticed a gun

  protruding from under the driver’s seat. On that basis, he arrested

  the defendant. See Class, 

.

¶ 34   After finding that the defendant did not have a reasonable

  expectation of privacy in the VIN, the Court concluded that “[t]he

  mere viewing of the formerly obscured VIN” on the dashboard was

  not a search and did not violate the Fourth Amendment. 

 at 113-

  14. The Court decided, however, that the officer’s reaching into the

  car’s interior to move the papers on the dashboard constituted a

  search. 

.

¶ 35   The Court then considered whether the officer’s actions were

  reasonable. 

. In doing so, it did not ask whether the


                                   16
officer had probable cause to search the vehicle. Instead, the Court

balanced the “nature and quality” of the intrusion against the

importance of the governmental interest justifying the intrusion. 

at 118-19 (quoting Place, 

). The Court

acknowledged that the police had no reason to suspect that the

defendant’s car was stolen. Id. at 108. Nonetheless, the Court

concluded that the search for the VIN was reasonable given that the

police had observed the defendant commit two traffic violations and

given the typical circumstances of a traffic stop (including an

officer’s authority to remove the driver from the vehicle for safety

purposes). Id. at 117-18. Also critical to the Court’s decision was

the fact that the officer’s actions were minimally intrusive. The

officer looked for the VIN only in the doorjamb and on the

dashboard; “[n]either of those locations is subject to a reasonable

expectation of privacy.” Id. at 118. The officer did not root around

in the car’s interior or reach into any compartments. Considering

all the circumstances, the Court found no Fourth Amendment

violation. Id. at 118-19.3


3The Court noted that its holding did not authorize police officers to
enter a vehicle’s passenger compartment to obtain a dashboard-

                                  17
¶ 36   The inspection here was less intrusive than the search in

  Class. Agent Radke did not intrude into the car’s interior but only

  checked the doorjamb for the VIN. Cf. id. Given his reasonable

  suspicion that the car was stolen, and given that Cattaneo did not

  have a reasonable expectation of privacy in the doorjamb VIN, this

  very limited intrusion was reasonable under Class.

¶ 37   Indeed, Cattaneo does not argue that the Class Court required

  probable cause to justify the search in that case. Instead, he says

  that Class does not apply because the car here was not stopped due

  to a traffic violation; it was parked in a lot. See United States v.

  $277,000.00 U.S. Currency, 

 (9th Cir. 1991)

  (holding that removing an opaque car cover to inspect a parked

  car’s dashboard VIN was a search requiring probable cause).

  Cattaneo warns against applying Class to permit a search of any

  parked car without probable cause simply because the dashboard

  VIN is obscured in some way. Our holding, however, does not

  sweep so broadly.




  mounted VIN when the VIN is visible from outside the vehicle. New
  York v. Class, 

 (1986).

                                     18
¶ 38   We hold merely that the agent’s reasonable suspicion that the

  car was stolen in this case provided sufficient justification for the

  momentary inspection of the VIN in the doorjamb. While we

  recognize that the Class Court analyzed the circumstances of the

  traffic stop in that case, we do not read Class as applying only to

  traffic stops. The Court discussed the police’s authority to check a

  VIN during traffic stops only after the Court noted that the police

  there had no reason to suspect the car was stolen. In contrast, the

  agent here had such a reasonable suspicion and conducted a lawful

  investigatory stop. Given the VIN’s importance in assisting police to

  recover stolen vehicles, we see no reason to limit Class’s rationale to

  traffic stops and to refuse to apply Class to other lawful seizures of

  vehicles. After all, the government’s interests in regulating vehicles

  do not disappear altogether once a vehicle is parked. Officers

  maintain an interest in returning stolen vehicles to their owners

  and conducting their investigations in a safe manner. Cf. 1 Wayne

  R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment

  § 2.5(d) (5th ed. 2019) (“Whether there must always be an observed

  traffic violation on which to ‘piggy-back’ the VIN search is unclear,

  though the Court’s statements [in Class] about the importance of


                                    19
  the VIN and the consequent lack of an expectation of privacy as to

  the VIN would lend support to the conclusion . . . that checking in a

  vehicle for a VIN is a lesser intrusion than the usual search and

  thus may be undertaken upon a lesser quantum of evidence.”)

  (footnotes omitted).

¶ 39   To sum up, in all Fourth Amendment inquiries, the ultimate

  question is reasonableness. Brigham City, 

. If a

  Fourth Amendment search or seizure is a “lesser intrusion,” it may

  be justified by something less than probable cause. See Delaware

  v. Prouse, 

 (1979); see also People v. Brown, 

 (permitting warrantless search and seizure of vehicles in

  furtherance of community caretaking functions, without regard to

  probable cause); People v. Delacruz, 

 (permitting

  protective sweep of passenger compartment based on reasonable

  suspicion that motorist is armed and dangerous). One such lesser

  intrusion is an investigatory stop, and the agent’s brief inspection of

  the VIN in the doorjamb fell within the scope of a valid investigatory

  stop. Accordingly, the inspection of the VIN did not violate

  Cattaneo’s Fourth Amendment rights.




                                    20
¶ 40   Because the Fourth Amendment did not require the agent to

  have probable cause or to obtain Cattaneo’s consent before

  inspecting the VIN in the doorjamb, we need not address whether

  his consent to the agent’s opening the door was voluntary. See

  United States v. Knights, 

 (2001) (declining to

  address consent where a search was reasonable). Neither his

  subsequent arrest for motor vehicle theft nor the search of his

  backpack was tainted by illegality. The trial court, therefore,

  properly denied his motion to suppress.

                         III.   Double Jeopardy

¶ 41   Cattaneo next contends that the trial court impermissibly

  increased his sentence when it imposed a drug surcharge on the

  mittimus without first announcing it in open court at the

  sentencing hearing.4 Reviewing de novo whether the court violated

  Cattaneo’s rights against double jeopardy, see People v. Tillery, 

 (Colo. App. 2009), aff’d sub nom. People v. Simon, 

 (Colo. 2011), we see no double jeopardy violation.


  4The drug surcharge is not specifically enumerated on the
  mittimus, which mentions only an aggregate amount of money
  assessed against Cattaneo. But both parties agree that the drug
  surcharge is included.

                                    21
¶ 42   The Double Jeopardy Clauses of the United States and

  Colorado Constitutions protect a defendant from being twice

  punished for the same offense. U.S. Const. amends. V, XIV; Colo.

  Const. art. II, § 18. As Cattaneo correctly argues, “increasing a

  lawful sentence after it has been imposed and the defendant has

  begun serving it may, in certain circumstances, violate this aspect

  of double jeopardy protection.” People v. McQuarrie, 

 (Colo. App. 2002). But when a sentence is illegal, it may be

  corrected “at any time” without violating double jeopardy — even if

  the correction increases the sentence — because a defendant has

  no legitimate expectation of finality in an illegal sentence. People v.

  Wiseman, 

, ¶ 28 (quoting Crim. P. 35(a)); see also

  Romero v. People, 

 (Colo. 2007) (“[D]ouble

  jeopardy does not bar the imposition of an increased sentence if the

  defendant lacked a legitimate expectation of finality in the

  sentence.”).

¶ 43   Thus, the question is whether the initial sentence imposed in

  open court, which omitted the drug surcharge, was lawful. We

  review the legality of a sentence de novo. People v. Bassford, 

. “Sentences that are inconsistent with the statutory


                                    22
  scheme outlined by the legislature are illegal.” People v. Rockwell,

  

, 414 (Colo. 2005).

¶ 44   Cattaneo was convicted of two drug felonies, which subjected

  him to incarceration, parole, and a drug offender surcharge for each

  conviction. See § 18-1.3-401.5, C.R.S. 2019; § 18-18-405(2)(a),

  C.R.S. 2019; § 18-19-103(1), C.R.S. 2019. The drug offender

  surcharge was imposed by section 18-19-103(1), which provides

  that “each drug offender who is convicted . . . shall be required to

  pay a surcharge.” The statute further provides:

            (a) The court may not waive any portion of the
            surcharge required by this section unless the
            court first finds that the drug offender is
            financially unable to pay any portion of said
            surcharge.

            ....

            (c) The court shall waive only that portion of
            the surcharge which the court has found the
            drug offender is financially unable to pay.

  § 18-19-103(6).

¶ 45   Relying on the waiver provision, Cattaneo argues that,

  “because the drug surcharge is punishment and is not mandatory

  in all cases,” his original sentence imposed in open court was legal.

  As a result, he concludes that the Double Jeopardy Clause


                                    23
  precluded the court from later imposing the drug surcharge on the

  mittimus. His conclusion finds support in the division’s decision in

  McQuarrie, 

. Contrary to Cattaneo’s view, however,

  simply because it is legal not to impose the surcharge in some cases

  does not necessarily mean that the failure to impose it in his case

  was legal (i.e., consistent with the statutory scheme). See People v.

  Yeadon, 

, ¶¶ 47-51 (disagreeing with McQuarrie) (cert.

  granted Mar. 25, 2019).

¶ 46   The imposition of restitution, for example, is not mandatory in

  every criminal conviction, yet its omission may render a sentence

  illegal in some cases. See, e.g., People v. Dunlap, 

  (Colo. App. 2009); People v. Smith, 

 (Colo. App.

  2005). Specifically, where the trial court’s sentence does not

  impose restitution but fails to include a specific finding that the

  victim suffered no pecuniary loss, the sentence is illegal. See Smith,

  

; see also Dunlap, 

. In that

  scenario, the sentence may be corrected to impose restitution

  without offending double jeopardy principles. See Smith, 

.




                                    24
¶ 47   Likewise, the legality of Cattaneo’s sentence depends not on

  whether the drug surcharge may be legally omitted in some cases

  but on whether the trial court legally omitted the surcharge in this

  case. The drug offender surcharge statute provides that it “shall”

  be imposed in “each” drug conviction. § 18-19-103(1), (6); see also

  Yeadon, ¶¶ 50-51. Section 18-19-103(6) provides a mechanism for

  waiver that is also couched in mandatory language. The trial court

  “may not” waive the surcharge “unless the court first finds” that the

  offender is financially unable to pay it. § 18-19-103(6)(a) (emphasis

  added). In other words, a trial court’s authority to reduce the

  surcharge is predicated upon the inability-to-pay finding. Absent

  such an express finding, the statute requires the trial court to

  impose the full surcharge. And, even if the court makes that

  finding, the statute imposes a further restriction: the court “shall

  waive only that portion of the surcharge which the court has found

  the drug offender is financially unable to pay.” § 18-19-103(6)(c)

  (emphasis added).

¶ 48   Reading the statute as a whole and giving sensible effect to all

  its parts, we conclude that a trial court has the authority to reduce

  or eliminate the surcharge only to the extent the offender is unable


                                    25
  to pay it. See § 18-19-103(6)(c); People v. Thames, 

 (discussing analogous waiver provisions). This authority does

  not exist unless the court makes an express finding that the

  offender is unable to pay all or part of the surcharge. Cf. Smith,

  

. Nowhere does the statute authorize a court to

  omit the surcharge without the required finding.

¶ 49   Accordingly, where a drug conviction is involved, a sentence is

  legal only where the trial court (1) makes a specific finding that the

  offender is unable to pay the full surcharge and waives the

  surcharge to the extent necessary or (2) imposes the full surcharge.

  Yeadon, ¶¶ 50-51; see also Thames, ¶¶ 76-78. Because Cattaneo’s

  original sentence announced in open court omitted the surcharge

  without a finding that he was unable to pay it, the sentence was

  contrary to section 18-19-103 and, thus, illegal. Yeadon, ¶¶ 50-51;

  see also Thames, ¶¶ 77-78. So, the sentence could be corrected

  without violating Cattaneo’s rights against double jeopardy.

  Rockwell, 125 P.3d at 414; Wiseman, ¶¶ 26-28.

¶ 50   In the event we disagree with his double jeopardy argument,

  Cattaneo requests a remand to give him an opportunity to present

  evidence of his inability to pay the surcharge. See § 18-19-103(6)(b)


                                    26
  (permitting a hearing regarding the offender’s financial ability to pay

  the surcharge). The People do not object to this relief. We therefore

  remand to the trial court to give Cattaneo an opportunity to show

  his inability to pay the surcharge. See Thames, ¶ 78.

                            IV.   Conclusion

¶ 51   The judgment is affirmed, but the case is remanded to the trial

  court to provide Cattaneo the opportunity to prove his inability to

  pay the drug surcharge.

       JUDGE MILLER concurs.

       JUDGE DAILEY concurs in part and dissents in part.




                                    27
       JUDGE DAILEY, concurring in part and dissenting in part.

¶ 52   I concur in all parts of the opinion except Part III, where the

  majority concludes, based on People v. Yeadon, 

  (cert. granted Mar. 25, 2019), that the court was allowed to

  belatedly impose a drug surcharge and, consequently, did not

  violate Cattaneo’s double jeopardy rights.

¶ 53   Section 18-19-103(1), C.R.S. 2019, provides that “each drug

  offender who is convicted . . . shall be required to pay a surcharge.”

  The statute also states that “[t]he court may not waive any portion

  of the surcharge required by this section unless the court first finds

  that the drug offender is financially unable to pay any portion of

  said surcharge.” § 18-19-103(6)(a).

¶ 54   In People v. McQuarrie, 

 (Colo. App. 2002), a

  division of this court concluded that “because the drug offender

  surcharge is considered punishment and is not mandatory in all

  cases, the Double Jeopardy Clause required the trial court to

  impose such a fine at the time that it imposed [the] defendant’s

  sentence in open court,” and not later.

¶ 55   I served on the division that decided McQuarrie, and I’m

  sticking with the position I took in that case. In my view, a statute


                                    28
  that, as here, essentially says “a surcharge shall be imposed

  unless . . . ” is not mandatory, and, consequently, the absence of

  that surcharge does not make a sentence illegal. Cf. 

 (The

  surcharge “differs from . . . nonwaivable costs, the subsequent

  imposition of which does not violate double jeopardy principles.”).

¶ 56   Because the trial court did not impose the surcharge at

  sentencing, and the absence of the surcharge did not render the

  sentence illegal, the court’s later imposition of the surcharge

  violated Cattaneo’s double jeopardy rights.




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