Larimer County District Court No. 11CR995. Honorable Stephen J. Schapanski, Judge.
John W. Suthers, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
The Joffe Law Firm, Danyel S. Joffe, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE RICHMAN. Booras and Roy[*] JJ., concur.
[¶1] Defendant, Robert Omondi Omwanda, appeals the judgment of conviction entered after a jury found him guilty of possession of a controlled substance. We remand the case for further proceedings.
[¶2] Before trial, defendant sought to suppress evidence that police recovered from his cell phone. At the suppression hearing, an officer testified that he stopped a car carrying six people, including defendant. With the driver's permission, the officer searched the car, finding electronic scales and a pill bottle containing cocaine on the floor. Two of the passengers said that the pill bottle belonged to defendant.
[¶3] The officer arrested and searched defendant. The search revealed another pill bottle and a cell phone. The second pill bottle contained a white residue, which the officer suspected was cocaine. Defendant asked the officer to give the cell phone to one of the other passengers, but the officer refused, telling defendant that he would keep the phone as evidence. The officer then read three text messages on the phone. One was sent from the phone about thirty minutes before defendant's apprehension: " I waz breakin a line of coke then lil piece went in to my eye." Another was received by the phone about fifteen minutes later: " It was aite [alright] but that shit i got from u before when u was up on riverside was sum fire." The third message was received the day before: " baby how much will u charge me for two grams."
[¶4] The officer later applied for, and received, a warrant to search the phone. His warrant application quoted the three text messages that he had read during his initial search. The search of the phone pursuant to the warrant revealed additional communications and information indicative of drug dealing.
[¶5] The trial court denied defendant's motion to suppress both the three text messages found in the initial search and the other communications, which defendant claimed to be " fruit of the poisonous tree." The court concluded that the officer's initial search of the phone was valid incident to defendant's arrest.
[¶6] The case proceeded to trial on two counts: possession with intent to distribute a controlled substance and possession of more than four grams of a controlled substance. The evidence at trial included the officer's testimony, which generally mirrored his testimony at the motions hearing. The People also presented photographs, call logs, and text messages that police extracted from defendant's phone pursuant to the search warrant. The officer also testified about the text messages quoted above.
[¶7] A forensic scientist testified that the bottle found on the floor contained 15.45 grams of cocaine. She testified that the pill bottle recovered from defendant contained only " a very, very tiny residue," which she did not weigh. But, she testified, the residue tested positive for cocaine.
[¶8] The jury acquitted defendant of possession with intent to distribute. It convicted him of possession of a controlled substance, while concluding that the prosecution had
failed to prove that he possessed more than four grams.
[¶9] Defendant now appeals. He contends the trial court erred in (1) denying his motion to suppress evidence obtained from his cell phone; and (2) omitting a portion of his tendered theory of defense instruction. We conclude that a remand is necessary to resolve his first contention, and we reject his second.
II. Motion to Suppress
[¶10] Defendant argues that the officer's initial search of his phone violated the Fourth Amendment. Based on the rule announced by the United States Supreme Court in Riley v. California, __ U.S. __, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), we agree.
[¶11] The People argue that the information on the phone was nevertheless admissible under the independent source doctrine. We conclude that the record does not allow us to fully address the People's argument. Because we cannot say that the evidence taken from the phone was harmless beyond a reasonable doubt, we conclude that a remand is necessary.
A. Search Incident to Arrest
[¶12] Reviewing a suppression ruling presents a mixed question of law and fact. People v. Alameno, 193 P.3d 830, 834 (Colo. 2008). We review de novo the trial court's legal conclusions, but we defer to the trial court's factual findings if competent evidence in the record supports them. Id.
[¶13] Warrantless searches are per se unreasonable under the Fourth Amendment; evidence obtained pursuant to such a search is inadmissible unless an established exception to the warrant applies. People v. Marshall, 289 P.3d 27, 2012 CO 72, ¶ 9; see also ...