County District Court Nos. 11CR1503 & 12CR1029 Honorable
Kurt A. Horton, Judge
Cynthia H. Coffman, Attorney General, Rebecca A. Adams,
Senior Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Karen M.
Gerash, Deputy State Public Defender, Denver, Colorado, for
1 If a police officer conducts a warrantless search based on
consent - but a court suppresses evidence obtained because
the consent was invalid - does the law of the case doctrine
prevent the officer from lawfully obtaining the same evidence
by applying to a different judge for a search warrant, this
time based on grounds other than consent, and without using
the fruits of the earlier unlawful search in the application?
If not, does the officer forfeit that opportunity by failing
to tell the second judge about the earlier suppression order?
These are novel questions in Colorado and have been addressed
2 A jury convicted Matthew Wayne George of multiple offenses
arising from his sexual contact with two young girls whom he
met on the Internet. On appeal, he asserts two errors:
• data obtained by forensically examining a GPS device
police found in his car after conducting a warrantless search
based on third-party consent should have been suppressed,
despite later issuance of a warrant to search the device; and
• the cases involving the two victims, which had been
separately charged, were improperly joined for trial.
Attorney General concedes that George preserved both issues
3 We reject George's law of the case and forfeiture
arguments, conclude that the GPS evidence was admissible
because the warrant represented an independent source, and
further conclude that the trial court did not abuse its
discretion in joining the cases. Therefore, we affirm.
4 According to the prosecution's evidence, George met
then fourteen-year-old A.R. on an Internet dating website.
She testified to several sexual encounters with him at
various locations, some of which involved force. Later that
year, then twelve-year-old G.D. also met George on a dating
website. She testified about a sexual encounter with him in
his car. The victims were strangers.
5 George admitted having met the victims on the Internet but
challenged their credibility as to any sexual contact having
occurred. He did not testify.
Trial Court Did Not Err in Denying George's Motion to
Suppress the Fruits of a Second Search of his GPS Device
6 Following George's arrest and inability to post bond,
he was evicted from his apartment. Then the landlord had
George's car towed from the premises. The towing company
kept the car at its impound lot. The lead investigator
obtained the towing company's consent to search the car.
7 In it, he found a GPS device. Instead of seeking a warrant
to search the device, the investigator obtained the
company's consent to examine it. Data obtained from a
forensic examination showed movements generally consistent
with the victims' testimony about their meetings with
8 George moved to suppress, challenging both the search of
his car and the examination of the GPS device. The trial
court ruled that the towing company's consent to search
the car was valid but that its consent to search the GPS
device was not. The court also rejected the prosecution's
argument that the investigator conducted the search in good
faith. It suppressed evidence obtained from examination of
9 But the story does not end here. Rather than appealing the
suppression order under section 16-12-102(1), C.R.S. 2016,
the prosecution directed the investigator to seek a search
warrant for the GPS device - which remained in police custody
- from a different magistrate. The investigator did not
specifically refer to any data obtained from examination of
the GPS device in the warrant application. Nor did he
disclose the earlier suppression ruling. After the warrant
was issued, the investigator had the device forensically
reexamined, apparently yielding the same results.
10 To no one's surprise, George again moved to suppress.
He argued that under the law of the case doctrine, the
prosecution could not dodge the prior suppression ruling by
belatedly seeking a search warrant. The prosecution responded
that the warrant triggered the independent source doctrine.
The prosecution also requested the court to reconsider its
earlier ruling on consent. George replied that because the
fruits of the unlawful search had been used in the warrant
application - and even if not, had motivated the investigator
to seek the warrant - the second search was not truly
11 The court held a hearing. The investigator testified that
had the towing company not given consent based on asserted
ownership of the car and its contents, including the GPS
device, he would have sought a search warrant. E-mails
predating the consent search corroborated this testimony. He
also testified that the warrant application did not refer to
the fruits of the initial examination of the device, but did
include background information from a report that he had
prepared following the consent search.
12 The trial court declined to reconsider its earlier
suppression ruling. Then the court denied the motion to
suppress based on the independent source doctrine. In doing
so, it found that the decision to seek the warrant had not
been based on the fruits of the initial unlawful search and
information from that search had not been presented to the
magistrate as a basis for seeking the warrant.
Standard of Review and Law
13 Four familiar principles provide a legal framework.
14 First, review of a trial court's suppression order
presents a mixed question of fact and law. People v.
Hyde, 2017 CO 24, ¶ 9. A reviewing court defers to
the trial court's findings of fact that are supported by
the record, but it assesses the ultimate legal effect of
those facts de novo. Id.
15 Second, the exclusionary rule is a judicially created
remedy designed primarily to deter unlawful searches and
seizures by law enforcement officials. People v.
Morley, 4 P.3d 1078, 1080 (Colo. 2000). Under this rule,
"evidence obtained in violation of the Fourth Amendment
and article II, section 7 of the Colorado Constitution"
must usually be suppressed. Id.
16 Third, the independent source doctrine is an exception to
the exclusionary rule. According to this doctrine, "the
unconstitutionally obtained evidence may be admitted if the
prosecution can establish that it was also discovered by
means independent of the illegality." Id.
(quoting People v. Schoondermark, 759 P.2d 715, 718
(Colo. 1988)). It applies "[s]o long as a later, lawful
seizure is genuinely independent of an earlier, tainted
one." Id. at 1081 (alteration in original)
(quoting Schoondermark, 759 P.2d at 719). Like a
suppression order, this doctrine presents a mixed question of
fact and law. See People v. Cruse, 58 P.3d 1114,
1120 (Colo.App. 2002).
17 Fourth, another exception may arise "when, despite an
otherwise invalid warrant, a trial court nonetheless admits
evidence because the officer(s) that executed the warrant had
a reasonable good faith belief that the search was in accord
with the Fourth Amendment." People v. Cooper,
2016 CO 73, ¶ 10. "Colorado codified the good faith
exception to the exclusionary rule at section 16-3-308(4),
C.R.S. (2016)." Id. at ¶ 11.
Legality of the Initial Search is Not Properly Before Us
18 We begin with the Attorney General's argument that the
data obtained from the initial warrantless search of the GPS
device should not have been suppressed because the search was
conducted in good faith. Were we to agree, the validity of
the second search would be moot, ending further analysis.
19 According to the answer brief, "it was reasonable for
the investigator to believe that the manager of the towing
company had the authority to consent to the search." The
answer brief goes on to assert that the Attorney General
"may defend the trial court's denial of a motion to
suppress on any ground supported by the record." See
People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)
("On appeal, a party may defend the trial court's
judgment on any ground supported by the record, whether
relied upon or even considered by the trial court.").
20 George responds that we should not address this argument
because it was "litigated and rejected" by the
trial court in granting the first suppression motion and the
prosecution failed to seek interlocutory review of that
ruling under section 16-12-102(2). We agree with George,
although for a somewhat different reason.
21 True enough, "even if a consenting third party lacks
actual authority, if a police officer reasonably believes
that such third party has authority to consent to a search,
the search is not unconstitutional." People v.
Upshur, 923 P.2d 284, 287 (Colo.App. 1996). But in the
first suppression hearing, the trial court rejected this very
When it became apparent there was uncertainty as to . . .
legal authority to consent to a search of the GPS . . . the
investigator could and should have consulted legal counsel or
simply requested a warrant from a disinterested magistrate.
22 The prosecution could have appealed this ruling under
section 16-12-102(2) and C.A.R. 4.1, which together provide
for "interlocutory appeal[s] to challenge certain types
of adverse suppression rulings, including the suppression of
evidence obtained from a search that the trial court deemed
unlawful." People v. Zuniga, 2016 CO 52, ¶
11. Review must be sought "within 14 days after the
entry of the order complained of." C.A.R. 4.1(b). No
such appeal was taken.
23 "Appeals by the prosecution are permitted in this
state pursuant to . . . [s]ection 16-12-102." People
v. Hinchman, 40 Colo.App. 9, 13, 574 P.2d 866, 869
(1977), aff'd in part and rev'd in part, 196
Colo. 526, 589 P.2d 917 (1978). And "interlocutory
appeals authorized by statute are permissive rather than
mandatory." People v. Moore, 226 P.3d 1076,
1091 (Colo.App. 2009) (quoting People v. Richardson,
58 P.3d 1039, 1047 (Colo.App. 2002)). Thus, mere failure to
file an interlocutory appeal under section 16-12-102(2) does
not automatically preclude an appeal under section
16-12-102(1), once final judgment has been entered.
24 But the procedural question before us goes beyond timing.
Because appeals taken by the prosecution "are strictly
limited by law, " People v. Martinez, 22 P.3d
915, 919 (Colo. 2001) (quoting People v. Tharp, 746
P.2d 1337, 1339 (Colo. 1987)), the requirements of section
16-12-102(1) must still be met. This section is narrow. It
permits the prosecution to appeal "any decision of a
court in a criminal case upon any question of law."
§ 16-12-102(1). Combining these principles, because an
appeal under this section "is necessarily limited to
questions of law only, " it "does not give the
[prosecution] a basis upon which to challenge the trial
court's assessment of the evidence."
Martinez, 22 P.3d at 919 (dismissing appeal by
People that implicated not purely legal questions, but
factual questions whose resolution fell within province of
25 By any fair reading, the trial court rejected the good
faith argument at the first suppression hearing. Thus, the
Attorney General is appealing that ruling, not - as in
Aarness, 150 P.3d at 1277 - merely "defend[ing]
the trial court's judgment" to suppress at the
second hearing on a different ground. With Aarness beyond reach,
the Attorney General's argument can raise only a question
of law. And therein lies the problem.
26 Unless the parties have stipulated to the facts, a ruling
on a motion to suppress is not a pure question of law under
section 16-12-102(1). To the contrary, "[w]hen ruling on
a motion to suppress, a trial court 'must engage both in
factfinding - a specific inquiry into the historical
phenomena of the case - and law application, which involves
the application of the controlling legal standard to the
facts established by the evidence.'" People v.
King, 16 P.3d 807, 812 (Colo. 2001) (quoting People
v. Quezada, 731 P.2d 730, 732 (Colo. 1987)); see
also People v. Gabriesheski, 262 P.3d 653, 658 (Colo.
2011) ("While in limine evidentiary rulings may involve
the construction of statutes or rules, or some similar
question of law, a trial court's decision to admit or
exclude evidence is not, in and of itself, an appealable
question of law . . . .").
27 Examining People v. Welsh, 176 P.3d 781, 791
(Colo.App. 2007), sounds the death knell for the Attorney
General's position. There, the Attorney General had
cross-appealed under section 16-12-102(1) two trial court
evidentiary rulings. In addressing one of the rulings, the
division explained that while "evidentiary rulings are
matters committed to a trial court's discretion . . .
[s]uch rulings may nevertheless be appealable under [section]
16-12-102(1) if the trial court made its ruling based on an
assertedly erroneous interpretation of the law."
Id. at 791.
28 But unlike in Welsh, here the Attorney General
does not challenge the trial court's consent ruling based
on a question of law. Instead, the answer brief sets forth
factual arguments about consent to explain why the court
erred in finding a lack of good faith. For example, "the
officer did make reasonable inquiries and conducted