People v. Rogers10/5/1987
JUSTICE ERICKSON delivered the Opinion of the Court.
This is an appeal from a district court order dismissing felony charges against the defendant, David Rogers, for possession, cultivation, and conspiracy to cultivate marijuana in violation of sections 18-18-106(4)(b), 18-18-106(8)(a)(I), 18-2-201, 8B C.R.S. (1986). During a search of the defendant's residence pursuant to a search warrant, the police found marijuana, marijuana plants, tools for its cultivation and consumption, and three talons of a protected bird of prey. The defendant was charged by information in district court with the felony drug charges, and by complaint in county court with possession of raptor talons, a misdemeanor in violation of section 33-6-109, 14 C.R.S. (1984). Following the defendant's entry of a guilty plea to the misdemeanor charge, district court ruled that the Colorado compulsory criminal joinder statute, section 18-1-408(2), 8B C.R.S. (1986), required the prosecution to join the felony drug charges with the misdemeanor complaint, and that the defendant's guilty plea to the misdemeanor charge foreclosed subsequent prosecution on the felony information. We reverse and remand with directions.
I.
On September 5, 1985, deputies of the Montezuma County Sheriff's office searched the defendant's residence pursuant to a valid search warrant. During the search, the police discovered a quantity of marijuana in the defendant's home, marijuana plants growing between corn rows in his garden, and implements used for the cultivation, production, and consumption of marijuana. The police also found three large bird claws, which were later identified as raptor talons. One of the talons was found in the defendant's living room, and had an alligator clip containing a marijuana cigarette attached to the upper part of the talon. The other two claws were discovered in a dresser drawer in the master bedroom of the defendant's home.
Because the deputies were not sure whether possession of the talons was a crime, and if so, what steps then should be taken, they contacted the Montezuma County District Attorney's office and advised the district attorney that they inadvertently had discovered three large bird claws in the defendant's home. The district attorney told the police to contact the Colorado Division of Wildlife (Division) and request the Division to send one of its officers to the defendant's home to inspect the claws. The police called the Division and related their discovery to Michael Reid, a district Wildlife manager. Reid went to the defendant's home, examined the claws, and determined that they were raptor talons, possession of which is a misdemeanor punishable by a fine. See § 33-6-109, 14 C.R.S. (1984). The sheriff's deputies gave Reid the two talons found in the bedroom and retained the talon with the alligator clip and marijuana cigarette attached.
On September 16, 1985, a complaint was filed in Montezuma County Court charging the defendant with possession of eight or more ounces of marijuana, a class-five felony in violation of section 18-18-106(4)(b), 8B C.R.S. (1986), cultivation of marijuana, a class-four felony in violation of section 18-18-106(8)(a)(I), 8B C.R.S. (1986), and conspiracy to cultivate marijuana, a class-five felony in violation of section 18-2-201, 8B C.R.S. (1986). The defendant did not request a preliminary hearing, and was bound over to the Montezuma County District Court on October 8, 1985.
On October 10, 1985, Reid served the defendant with a "penalty assessment notice" charging him with unlawful possession of raptor talons in violation of section
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