Peo v. Silva

22CA0105 Peo v Silva 09-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0105
El Paso County District Court No. 21CR335
Honorable Jill M. Brady, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Timothy Lee Silva,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE DUNN
Navarro and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 19, 2024

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Timothy Lee Silva, appeals the judgment of

conviction entered on jury verdicts finding him guilty of two felony

drug charges. We affirm the conviction but remand the case to

allow Silva the opportunity to seek an indigency waiver of the drug

offender surcharge.

I. Background

¶2 Police began investigating Christopher Padilla after receiving

complaints from neighbors that Padilla was selling drugs from his

home. That investigation led to the discovery that Padilla had

multiple active arrest warrants.

¶3 As a result, the police began surveilling Padilla’s house one

evening in 2021. Soon after, they saw Padilla exit the house.

Within a minute or two, officers saw a car stop in front of the

driveway and Padilla get in the passenger seat. Officers

immediately initiated a traffic stop, blocking the car with a police

vehicle. Padilla then got out of the car, and an officer arrested him.

During the arrest, Padilla dropped cash on the ground.

¶4 Roughly simultaneously with Padilla’s arrest, another officer

ordered the driver — later identified as Silva — out of the car,

handcuffed him, and had him sit on the curb. The first officer saw

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a clear bag of drugs, some cash, a wallet, and a cell phone on the

front passenger floorboard of Silva’s car. Officers then arrested

Silva and searched his car.

¶5 Both Padilla and Silva consented to a search of their respective

phones, which showed the following exchange earlier that evening:

[Padilla:] Can i come meet u when u get off i
have some one waiting and i don’t want them
to bail i won’t need it anymore if they do

[Silva:] Pulling up to my house now I’ll call u to
tell u where to meet

[Padilla:] K ty

And Padilla’s phone showed three short calls from a “Timothy”

minutes before Silva arrived at Padilla’s home.

¶6 As relevant here, the prosecution charged Silva with

possession with intent to distribute a controlled substance and

conspiracy to distribute a controlled substance. The jury found

Silva guilty as charged, and the trial court sentenced him to ten

years in community corrections.

¶7 On appeal, Silva contends the trial court erred by (1) denying

his motion to suppress evidence; (2) admitting hearsay statements;

and (3) admitting an unauthenticated cell phone extraction report.

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He also says that the cumulative effect of these errors requires

reversal, and, finally, that the court erred by imposing a drug

offender surcharge outside his presence and without giving him an

opportunity to request an indigency waiver. We address each

contention in turn.

II. Motion to Suppress

¶8 Contending that the officers had no independent probable

cause to detain him or search his car, Silva moved to suppress all

the evidence derived from what, in his view, was an unlawful

seizure.

¶9 At the suppression hearing, the officer who arrested Padilla

testified that at the same time she was arresting Padilla, another

officer told the driver (Silva) to get out of the car, handcuffed him,

and had him sit on the curb. The arresting officer explained that

they detained the driver to identify him and make sure they “knew

who he was before [they] let him go.” The officer stated that Silva

was not under arrest when they detained him and, at that point,

they had no information that he was involved in any criminal

activity.

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¶ 10 After the officer placed Padilla in the back of her patrol car,

she walked toward Silva’s car. As she neared the car, the officer

looked through the front passenger window and saw a clear plastic

bag containing a white crystalline substance, some cash, a wallet,

and a cell phone on the front passenger floorboard. Given her

training and experience, the officer said she “immediately”

recognized the substance as methamphetamine. The officer

testified that no more than one minute elapsed between placing

Padilla in her patrol car and seeing the drugs in Silva’s car, with the

entire encounter lasting no more than two minutes.

¶ 11 The trial court denied the motion to suppress, ruling that

under People v. Taylor, 41 P.3d 681 (Colo. 2002), it was lawful for

the officers to briefly detain Silva while effectuating Padilla’s

arrest. And the court found that after the officer saw the

methamphetamine in plain view, it was reasonable for the officers

to search Silva’s car and seize the drugs and related evidence.

¶ 12 Silva now challenges this ruling. He maintains that he was

unlawfully seized and that the court erred by not suppressing the

evidence derived from that unlawful seizure.

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A. Standard of Review and Applicable Law

¶ 13 The United States and Colorado Constitutions prohibit

unreasonable searches and seizures. U.S. Const. amend. IV; Colo.

Const. art. II, § 7; People v. Allen, 2019 CO 88, ¶ 15. Evidence

derived from an unconstitutional seizure must be excluded at trial

unless an exception to the exclusionary rule applies. See People v.

Thompson, 2021 CO 15, ¶ 20.

¶ 14 A trial court’s suppression ruling presents a mixed question of

fact and law, meaning we defer to the court’s factual findings if

supported by the record but review its legal conclusions de novo.

Allen, ¶ 13.

B. The Suppression Order is Consistent with Taylor

¶ 15 In Taylor, an officer stopped the defendant’s vehicle to arrest a

passenger who had outstanding warrants. 41 P.3d at 683-84. After

arresting the passenger — which took about two minutes — officers

removed the defendant from the vehicle, physically escorted him to

the rear of the car, frisked him, and “essentially pinned” him

against the car. Id. at 684. One officer further restrained the

defendant by extending an arm to prevent the defendant from

moving toward the passenger compartment. Id. While the

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defendant was physically detained, another officer searched the

defendant’s car and found a small case with drug paraphernalia

and cocaine. Id. The officers then arrested the defendant. Id.

About nineteen minutes elapsed between the passenger’s arrest and

the defendant’s arrest. Id.

¶ 16 The supreme court agreed that by stopping the defendant’s

vehicle to arrest the passenger, police seized the defendant. Id. at

687; cf. Arizona v. Johnson, 555 U.S. 323, 333 (2009) (recognizing

that a driver and passengers are seized when police stop a vehicle

to investigate a traffic violation). But it held that the seizure was

“reasonable” and “constitutionally permissible.” Taylor, 41 P.3d at

694. In so holding, the court recognized that probable cause to

arrest the passenger could not constitute probable cause or even

reasonable suspicion with respect to the driver (the defendant). Id.

at 687. Still, where the defendant is in the same car as a known

suspect, the court held that “‘the balance of interests precludes

insistence upon some quantum of individualized suspicion’ that

[the] [d]efendant is engaged in criminal activity to justify a seizure.”

Id. at 688 (quoting Delaware v. Prouse, 440 U.S. 648, 654-55

(1979)). Thus, the court concluded that the need to arrest the

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passenger warranted the “relatively minimal intrusion” on the

defendant’s rights and that “the scope of the intrusion was

reasonably related to the circumstances which justified the

interference in the first place.” Id.

¶ 17 The supreme court further concluded that once the passenger

had been arrested, the officers had no justification to detain the

defendant — until, that is, they found the cocaine. See id. at 688-

89. Even so, the court declined to apply “Fourth Amendment

exclusionary principles” to the cocaine, reasoning that the cocaine

was found during a lawful search incident to the passenger’s arrest

and not because of the defendant’s detention. Id. at 689. Having

so concluded, the court didn’t consider “whether the officers’

actions after stopping the vehicle but prior to finding the cocaine

constituted a seizure of [the] [d]efendant.” Id.

¶ 18 Consistent with Taylor, we conclude that Silva’s brief seizure

was constitutionally reasonable. True, Silva was ordered out of the

car and handcuffed while the officers sought to identity him. But

that alone doesn’t necessarily transform the one-minute detention

into an unconstitutional seizure. Cf. Johnson, 555 U.S. at 331

(explaining that police may order the driver and passengers out of

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the car pending completion of a traffic stop); People v. Oliver, 2020

COA 150, ¶¶ 27-28 (stating that the use of force or restraint, such

as handcuffs, “does not automatically convert an investigatory

detention into an arrest” so long as the “scope and character of the

intrusion are reasonably related to its purpose”). After all, the

defendant in Taylor was subject to a similar level of restraint where

he was “essentially pinned” against a car and for some period also

physically restrained by an officer. 41 P.3d at 684. And the brief

restraint here — roughly one minute between Padilla’s arrest and

the plain view drug discovery — was far shorter than the nineteen-

minute restraint in Taylor. See id. at 684, 689. Because Silva’s

detention occurred almost simultaneously with Padilla’s arrest, we

agree with the trial court that Silva’s detention “was not

unreasonable because it was part and parcel” of Padilla’s arrest.

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We therefore reject Silva’s contention that, under these

circumstances, the officers unconstitutionally seized him.1

¶ 19 But we needn’t even go that far. That’s because — much like

Taylor — the evidence seized from Silva’s car was not the fruit of his

short detention; rather, it was lawfully discovered in plain view

within a minute of Padilla’s arrest. See id. at 689. Indeed, Silva

doesn’t dispute that the officer discovered the drugs in plain view.

See People v. Swietlicki, 2015 CO 67, ¶ 19 (listing the elements for

the plain view exception). Instead, he speculates that but for the

handcuffing, the officer would not have had the opportunity to see

the drugs in his car. But the record doesn’t support that

1 Silva mostly centers his argument on whether there was probable

cause or reasonable suspicion to handcuff him. But these
arguments aren’t helpful because, under Taylor, where officers
initiate a traffic stop to effectuate the lawful arrest of one occupant
of the car and another occupant is incidentally detained, the
supreme court eschewed the “traditional method of ascertaining the
reasonableness of Fourth Amendment seizures” as “too rigid.”
People v. Taylor, 41 P.3d 681, 687 (Colo. 2002). In analyzing the
reasonableness of the defendant’s detention, the Taylor court
categorized it as “neither an arrest nor an investigatory stop” and
didn’t analyze the reasonableness of the detention under traditional
Fourth Amendment principles. See id. at 687-88. To the extent
Silva suggests that Taylor is no longer good law because it
“predated governing case law,” we’re bound to follow supreme court
decisions unless they’re overruled or abrogated. See People v. Kern,
2020 COA 96, ¶ 42.

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hypothesis. Rather, the record supports the court’s finding that the

officer saw the drugs through the car window right after she placed

Padilla in the patrol car. And given the speed and brevity of the

entire incident, no evidence suggests the officers did anything to

extend Silva’s detention. Cf. Johnson, 555 U.S. at 333 (“An officer’s

inquiries into matters unrelated to the justification for the traffic

stop . . . do not convert the encounter into something other than a

lawful seizure, so long as those inquiries do not measurably extend

the duration of the stop.”).

¶ 20 All this said, we conclude that the trial court didn’t err by

denying Silva’s motion to suppress.

III. The Messages Between Silva and Padilla

¶ 21 Over Silva’s hearsay objection, the trial court admitted the text

messages Padilla sent to Silva (described above) as nonhearsay

statements of a co-conspirator.2

¶ 22 Silva maintains that Padilla’s statements were inadmissible

hearsay, not co-conspirator statements.

2 The court admitted Silva’s messages to Padilla as nonhearsay

admissions by a party-opponent. CRE 801(d)(2)(A). Silva doesn’t
challenge that ruling.

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¶ 23 We review evidentiary rulings for an abuse of discretion.

People v. Ambrose, 2021 COA 62, ¶ 53. A trial court abuses its

discretion when its ruling is manifestly arbitrary, unreasonable, or

unfair, or when it misapplies the law. Id.

¶ 24 Although hearsay statements are generally inadmissible, CRE

802, a statement made by a co-conspirator “during the course and

in furtherance of the conspiracy” is not hearsay and, therefore, may

be admissible, CRE 801(d)(2)(E); see also People v. Archer, 2022

COA 71, ¶ 35. To admit such a statement, the court must find that

a conspiracy existed and that the statement was made during the

course of and in furtherance of the conspiracy. Archer, ¶ 36. As to

whether a conspiracy existed, the court may consider the

statements themselves, “but there must also be some independent

evidence establishing that the defendant and the declarant were

members of the conspiracy.” Id. (quoting People v. Villano, 181 P.3d

1225, 1229 (Colo. App. 2008)).

¶ 25 We are unpersuaded by Silva’s argument that the messages

themselves were the only evidence presented to establish a

conspiracy between Padilla and Silva to sell drugs. To the contrary,

the evidence showed that

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• neighbors had reported suspected drug sales at Padilla’s

home, including that “a bunch of cars” were “coming and

going” from Padilla’s home — as many as fifty cars a month

according to one complaint;

• Padilla had three active warrants related to previous drug

convictions;

• while surveilling Padilla’s home, officers watched Silva’s car

pull up to the home and Padilla get in, and after

immediately stopping the car, officers saw Padilla drop

cash; and

• the officers saw methamphetamine, cash, and Padilla’s

wallet and cell phone on the passenger floorboard where he

had been sitting.

¶ 26 Collectively, this is “some independent evidence” of a

conspiracy to sell drugs. Id. Combined with the messages

themselves — which suggested that Silva was selling the drugs to

Padilla who, in turn, wanted to sell them to someone else — the

court could conclude that it was more likely than not that Padilla

and Silva were engaged in a conspiracy to sell drugs and that

Padilla made those statements in furtherance of the conspiracy.

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¶ 27 Because there was some independent evidence showing the

existence of a conspiracy between Silva and Padilla to sell drugs, we

see no abuse of discretion in the admission of the text messages.

IV. The Cell Phone Extraction Report

¶ 28 The officer who arrested Padilla testified that on the night of

the arrest, she took a photo of Padilla’s phone showing messages

between Padilla and “Timothy.” The photo showed that the

messages were exchanged the same evening as the arrest and

included a message from Padilla asking to meet and a response that

Timothy would call Padilla about a meeting. The photo also showed

three short calls from Timothy to Padilla. Silva arrived at Padilla’s

home roughly ten minutes after the last call. The prosecutor

admitted the photo of Padilla’s phone at trial, and the officer

authenticated it. Silva doesn’t challenge the authenticity of this

exhibit.

¶ 29 The corresponding messages from Silva’s phone, however,

were admitted through a Cellebrite extraction report. The officer

who created the extraction report didn’t testify at trial. But the

officer who observed the messages on Padilla’s phone testified that

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she reviewed the messages downloaded from Silva’s phone and that

they were consistent with the messages she saw on Padilla’s phone.

¶ 30 Silva contends that the trial court erred by admitting the

extraction report because it was unauthenticated hearsay. And he

maintains that admission of this hearsay evidence violated his

confrontation rights.

A. Standard of Review

¶ 31 As before, we review evidentiary rulings for an abuse of

discretion. Ambrose, ¶ 53. And we review de novo whether a trial

court violated a defendant’s confrontation rights. Id. at ¶ 65.

¶ 32 We review preserved evidentiary errors for harmless error and

unpreserved ones for plain error. Id. at ¶ 53. Under harmless error

analysis, we will not reverse for a preserved error unless the error

substantially influenced the verdict or impaired the fairness of the

trial. Id. And under plain error analysis, we reverse for an

unpreserved error only where an obvious and substantial error

casts serious doubt on the fundamental fairness of the trial and the

reliability of the conviction. People v. Abad, 2021 COA 6, ¶ 43.

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B. Any Error in Admitting the Extraction Report Was Harmless

¶ 33 The parties agree that Silva objected to the extraction report

on hearsay grounds. But they dispute whether he preserved his

authentication objection.

¶ 34 We needn’t resolve this dispute, however, because even

assuming that Silva preserved this contention and that the trial

court erred by admitting the extraction report, the error was

harmless. The most significant information from the extraction

report — the messages between Silva and Padilla arranging a

meeting the night of the arrest — was cumulative of the photo of

Padilla’s phone showing the same key messages (indeed, defense

counsel objected to the messages in the extraction report as

cumulative). See People v. Faussett, 2016 COA 94M, ¶ 54

(explaining that improperly admitted evidence may be harmless if

cumulative of other properly admitted evidence).

¶ 35 To be sure, Padilla’s phone reflected just the name “Timothy,”

while the extraction report showed the messages were from

“Timothy Silvas-Rosales.” But considerable circumstantial evidence

showed that Silva was the “Timothy” texting Padilla, including that

(1) the messages occurred within half an hour of Silva’s arrival at

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Padilla’s home; (2) Silva’s first name is Timothy; (3) officers saw

Silva arrive at Padilla’s home the evening of the arrest; and (4)

officers found a document in the center console of the car Silva was

driving with the name “Timothy Silva.” From all this, the jury could

easily infer that the “Timothy” that Padilla was texting the night of

the arrest was Silva. See People v. Clay, 644 P.2d 81, 82 (Colo.

App. 1982) (“A jury can draw reasonable inferences that arise from

the facts of the case.”).

¶ 36 Under these circumstances, we can’t conclude that the

extraction report substantially influenced the jury’s verdict or

impaired the fairness of Silva’s trial. Thus, we conclude that any

error in admitting the report was harmless.

¶ 37 Because we conclude that any error in admitting the

extraction report was harmless, it necessarily can’t be substantial.

See Hagos v. People, 2012 CO 63, ¶ 14 (explaining that, because the

plain error standard permits appellate courts to correct

“particularly egregious errors,” unpreserved errors do not warrant

reversal unless they impair the reliability of the conviction to a

greater degree than under harmless error review) (citation omitted).

Thus, we also reject Silva’s unpreserved challenge that the

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admission of the extraction report violated his confrontation rights.3

See id. (we review unpreserved constitutional errors for plain error).

V. Cumulative Error

¶ 38 Silva contends that the alleged errors warrant reversal when

considered together. But “[t]he doctrine of cumulative error

requires that numerous errors be committed, not merely alleged.”

People v. Conyac, 2014 COA 8M, ¶ 152. Because we’ve assumed a

single nonprejudicial error, we reject Silva’s cumulative error claim.

VI. Drug Offender Surcharge

¶ 39 The trial court didn’t impose a drug offender surcharge at

sentencing, but it later added a $6,000 surcharge to the mittimus.

See § 18-19-103(1)(b), C.R.S. 2024 (requiring a convicted drug

offender to pay a surcharge).

¶ 40 The parties agree — as do we — that the trial court erred by

imposing the surcharge “outside [Silva’s] presence and without

3 Because the messages within the extraction report are either

admissions of a party-opponent or statements of a co-conspirator,
they are not hearsay. CRE 801(d)(2)(A), (E). Thus, the
confrontation clause doesn’t apply to the messages in the report.
See People v. Godinez, 2018 COA 170M, ¶ 78 (“[T]he admission of
nonhearsay does not implicate a defendant’s confrontation rights
under either the United States or Colorado Constitutions.”).

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giving him an opportunity to ask for a waiver and receive a

hearing.” Yeadon v. People, 2020 CO 38, ¶ 15; see also § 18-19-

103(6)(a) (allowing the sentencing court to waive the surcharge if it

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

the surcharge).

¶ 41 We therefore must remand the case to the trial court to allow

Silva the opportunity to “request a waiver and ask for a hearing to

show that he is financially unable to pay any portion of” the

surcharge. Yeadon, ¶ 15.

VII. Disposition

¶ 42 We affirm the judgment of conviction and remand the case to

the trial court with directions.

JUDGE NAVARRO and JUDGE GOMEZ concur.

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