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
COATS
CHIEF JUSTICE
¶1
The People petitioned for review of the court of appeals'
judgment reversing Morehead's 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 defendant's motion to suppress evidence
discovered in his home, ruling that the officers' initial
entry of the home with the permission of the defendant's
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
defendant's former girlfriend lacked either actual or
apparent authority to consent to the officers' initial
entry of the defendant's 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 defendant's 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
court's 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 court's 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 girlfriend's 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 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 girlfriend's 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 girlfriend's consent, probable
cause for the affidavit based on the girlfriend's
statements, as corroborated by police surveillance, and the
absence of any material omission, despite the affidavit's
failure to reference the fact that the police had already
entered the defendant's 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 defendant's 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
defendant's house therefore violated the Fourth
Amendment. Without commenting on the trial court's 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 prosecution's
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 court's 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 defendant's residence.
¶8
We granted the People's petition for a writ of certiorari
solely on the question whether the court of appeals properly
limited the trial court's 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 defendant's 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 (2016). For
largely the same reasons-that the judgment of the first trial
has never become final-preclusive doctrines related to res
judicata and collateral estoppel are similarly inapplicable
to a retrial. See S.O.V. v. People in Interest of
M.C., 914 P.2d 355, 359 & n.4 (Colo. 1996)
(distinguishing res judicata and collateral estoppel from law
of the case). As a general matter, following the reversal of
a criminal conviction and remand for a new trial, neither the
defendant nor the government is precluded from presenting new
evidence. United States v. Shotwell Mfg. Co., 355
U.S. 233, 235-36, 243 (1957) ("It is undeniable, of
course, that upon appellate reversal of a conviction the
Government is not limited at a new trial to the evidence
presented at the first trial, but is free to strengthen its
case in any way it can by the introduction of new
evidence."); People v. Duncan, 500 P.2d 137,
139 (Colo. 1972) ("Had we reversed the case and ordered
a new trial, the additional evidence here complained of would
have been admissible on the same issue."). To the extent
different evidence and legal arguments concerning prior
rulings in the case are not precluded by specific procedural
or evidentiary rules, their allowance is therefore governed
by the law of the case doctrine.
¶10
While the so-called "mandate rule" is not without
its own nuanced interpretations, it is at least clear that
the pronouncement of an appellate court on issues presented
to it, as well as rulings logically necessary to its holding,
become the law of the case. People v. Roybal, 672
P.2d 1003, 1005 (Colo. 1983). At least in the absence of
certain unusual circumstances, like newly discovered
evidence, the law of the case as established by an appellate
court must be followed in subsequent proceedings before the
trial court. See id. (citing Cache La Poudre
Reservoir Co. v. Water Supply & Storage Co., 62 P.
420 (1900)). By contrast, however, the law of the case
doctrine is more flexible in its application to
reconsideration by the trial court making a decision. In this
context, law of the case "merely expresses the practice
of courts generally to refuse to reopen what has been
decided," and has been described as a
"discretionary rule of practice." People ...