Interlocutory Appeal from the District Court, Jefferson County, District Court Case No. 12CR556, Honorable Dennis Hall, Judge.
Attorneys for the Plaintiff-Appellant: Peter A. Weir, District Attorney, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, Colorado.
Attorneys for Defendant-Appellee: Springer and Steinberg, P.C., Harvey A. Steinberg, Andrew B. Reid, Denver, Colorado.
¶ 1 Pursuant to C.A.R. 4.1, the prosecution challenges the trial court's suppression of evidence seized from the defendant's home when the police executed a search warrant. The trial court ruled that Defendant Jesse Lee Cunningham's motion to suppress under Crim. P. 41 required the prosecution to initially go forward with evidence that the seizure was performed pursuant to a facially valid warrant and the warrant was legally executed. Commenting on the warrant, the trial court reasoned that " the description of the items to be seized was unconstitutionally broad so [the trial court] would need to know how it was that this warrant was executed and what was seized pursuant to the warrant."
¶ 2 Ruling that the prosecution failed to initially go forward with evidence that the search has been authorized by a facially valid warrant and the warrant was legally executed, the trial court granted Cunningham's motion to suppress. Rejecting the prosecution's contentions on its motion for reconsideration, the trial court made the following statements about the prosecution's duty of going forward:
It seems to the court that it is the district attorney, who is the ultimate proponent of the physical evidence seized pursuant to the warrant, who bears the burden of going forward at the suppression hearing with the requisite threshold evidence.... Absent testimony establishing that the manner in which the search was conducted did not take advantage of the warrant's facial invalidity, the court would have little choice but to grant defendant's motion on that ground alone.
¶ 3 We disagree. As the moving party seeking suppression of the evidence, the defendant has the burden of alleging and showing that a search or seizure violated the defendant's right to privacy under the Fourth Amendment. We hold that the trial court erred in assigning the initial burden of going forward to the prosecution and reverse the suppression order.
¶ 4 On February 21, 2012, the Jefferson County Court issued a warrant authorizing the police to search Cunningham's home, based on the affidavit of Detective Shawna Gilbert. The warrant authorized the police to search for the following property:
• " Photographs of the entire inside and outside of the residence" ;
• " Yellow and black plaid pajama pants worn by Jesse Cunningham" ;
• " White tank top worn by Jesse Cunningham" ;
• " A notebook containing [the alleged victim's] ...