People v. Morehead

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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 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

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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 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, 196 L.Ed.2d 242 (2016). For largely ...