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People v. George

Court of Appeals of Colorado, Third Division

June 1, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Matthew Wayne George, Defendant-Appellant.

         Arapahoe 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 Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Karen M. Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          WEBB JUDGE.

         ¶ 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 infrequently elsewhere.

         ¶ 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.

         The Attorney General concedes that George preserved both issues for appeal.

         ¶ 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.

         I. Background

         ¶ 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.

         II. The 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 George.

         ¶ 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[1] 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 the device.

         ¶ 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 independent.

         ¶ 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.

         A. 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.

         B. Application

         1. The 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 argument:

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 trial court).

         ¶ 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.[2] 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 ...

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