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Certiorari to the Colorado Court of Appeals, Court
of Appeals Case No. 12CA715
Attorneys
for Petitioner: Philip J. Weiser, Attorney General, L. Andrew
Cooper, Deputy Attorney General, Elizabeth Rohrbough, Senior
Assistant Attorney General, Denver, Colorado
Attorneys for Respondent: Megan A. Ring, Public Defender,
Meghan M. Morris, Deputy Public Defender, Denver, Colorado
OPINION
CHIEF
JUSTICE COATS
[¶1]
The People petitioned for review of the court of appeals
judgment reversing Moreheads convictions for possession and
possession with intent to distribute a controlled substance,
as well as seven gambling-related charges. See
People v. Morehead, 2015 COA 131, ¶ 52, __ P.3d __.
As pertinent to the issue before this court, the trial court
denied the defendants motion to suppress evidence discovered
in his home, ruling that the officers initial entry of the
home with the permission of the defendants former girlfriend
was lawful and that the evidence seized in a subsequent
search was conducted pursuant to a warrant that was supported
by probable cause and was not misleading. By contrast, the
intermediate appellate court found that the defendants
former girlfriend lacked either actual or apparent authority
to consent to the officers initial entry of the defendants
home, during which they observed gambling machines. It also
declined, however, to either entertain arguments on appeal
that the evidence seized in the subsequent warranted search
was not the fruit of the initial entry or that its seizure at
least came within an exception to the exclusionary rule, or
to remand for findings concerning those issues, reasoning
that the prosecution was barred from raising any such
arguments for not having asserted them at any of the numerous
suppression hearings. Instead, the appellate court ordered
all the evidence seized from the defendants residence
suppressed, and it reversed his convictions; but in addition,
after supplemental briefing, it mandated that the trial court
be barred from considering new arguments for admission of
that evidence on retrial.
[¶2]
Because the court of appeals erred in restricting the trial
courts discretion to entertain additional evidence or
consider additional arguments concerning the seizure of this
evidence on retrial, that portion of the judgment of the
court of appeals is reversed.
I.
[¶3]
Mikel Morehead was convicted of possession of a controlled
substance, possession with intent to distribute a controlled
substance, and seven gambling-related charges. Prior to
trial, he moved to suppress all evidence derived from
searches of his residence by the police. Following several
evidentiary hearings on his motion, the trial court made
lengthy written findings of fact and conclusions of law and
denied it.
[¶4]
The courts findings of fact indicated that after arresting
the defendant for domestic violence, the police were
informed, in great detail, of gambling and drug distribution
being conducted by the defendant, by a woman with whom he had
a twelve-year intimate relationship and who had until
recently resided with him. Earlier on the day of the arrest,
she had come back to recover her property. After hearing the
former girlfriends accusations but before returning to the
residence with her, the police conducted surveillance of the
residence and observed what they considered to be suspicious
behavior by a person whom the girlfriend described
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as a former customer. With her permission but without a
warrant, the officers entered the residence with her and
observed gambling devices. Before proceeding further, they
obtained a warrant, relying only on information and
observations other than what they observed inside the
residence, and upon a subsequent search, discovered and
seized methamphetamine and other evidence of the unlawful
distribution of drugs and of illegal gambling.
[¶5]
Indicating that the issues raised by the defendant were
whether the girlfriends consent was valid, whether the
search warrant was supported by probable cause, and whether
in any event the affidavit was misleading by material
omission, the trial court addressed each in turn and denied
the motion to suppress. More specifically, in its lengthy
written analysis and conclusions, it found both actual and
apparent authority for the girlfriends consent, probable
cause for the affidavit based on the girlfriends statements,
as corroborated by police surveillance, and the absence of
any material omission, despite the affidavits failure to
reference the fact that the police had already entered the
defendants residence or that the defendant was in jail at
the time of the surveillance. In the absence of finding any
Fourth Amendment violation at all, the trial court did not
turn to the applicability of, or exceptions to, the
exclusionary remedy for a constitutional violation.
[¶6]
On appeal of the defendants convictions, the court of
appeals reversed. Characterizing the case as one presenting
several novel questions in the law of third-party consent, it
ultimately determined that the trial court erred in finding
the prosecution had proved either actual or apparent
authority, and it concluded that the warrantless entry of the
defendants house therefore violated the Fourth Amendment.
Without commenting on the trial courts ruling that the
subsequent search pursuant to a warrant was itself valid, or
specifying the relationship between the seized evidence and
the earlier unlawful entry of the residence, the court of
appeals declined to entertain the prosecutions assertion
that the evidence seized pursuant to this valid warrant was
not the fruit of the earlier entry at all and if it were,
that it would nevertheless have been admissible under an
exception to the exclusionary rule. The appellate court
reasoned that these arguments could not be entertained on
appeal because the prosecution had not made either of these
assertions before the trial court.
[¶7]
The appellate court did, however, find that the prosecution
failed to prove the erroneous admission of the evidence in
question was harmless beyond a reasonable doubt and that,
although an appellate court would be permitted to affirm a
trial courts order denying suppression on any grounds
supported by the record below, the record in this case
contained no evidence that the officers would have sought a
warrant but for being prompted by what they observed on their
first unlawful entry. In addition, the court of appeals
requested supplemental briefing on the question whether the
prosecution should be permitted on retrial to raise
arguments regarding what the court referred to as
"attenuation and exclusionary rule exceptions," and
it concluded that the prior jurisprudence of this court
barred the prosecution from doing so. In remanding for a new
trial, the court of appeals therefore mandated that the trial
court not consider new arguments for admission of the
evidence seized from the defendants residence.
[¶8]
We granted the Peoples petition for a writ of certiorari
solely on the question whether the court of appeals properly
limited the trial courts authority upon retrial to consider
additional arguments concerning suppression of this evidence.
II.
[¶9]
It has long been established that jeopardy does not bar
retrial after reversal of a defendants conviction for legal
error, for the reason that the defendant is held to be in
"continuing jeopardy" throughout this process,
reflecting the reality that until a final judgment on
retrial, the "criminal proceedings against an accused
have not run their full course." Bravo-Fernandez v.
United States, 580 U.S. __, __, 137 S.Ct. 352, 363, 196
L.Ed.2d 242 (2016). For largely ...