Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 14CA2482
Attorneys for Petitioner: Megan A. Ring, Public Defender
Shann Jeffery, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
Majid Yazdi, Assistant Attorney General Denver, Colorado
OPINION
SAMOUR, JUSTICE
delivered the Opinion of the Court. JUSTICE
HOOD concurs in the judgment only, and CHIEF
JUSTICE COATS and JUSTICE
MÁRQUEZ join in the concurrence in the
judgment only.
¶1
The prosecution charged Leo Phillips with possession of a
weapon by a previous offender and driving under restraint.
Before trial, defense counsel moved to suppress three pieces
of evidence: (1) Phillips's statements inside a police
car; (2) his subsequent statements at a police station; and
(3) a handgun recovered during a search of his car. The trial
court suppressed the police-car statements, but not the
police-station statements or the gun. The jury found Phillips
guilty as charged. On appeal, Phillips challenged the trial
court's admission of both his police-station statements
and the gun. However, for each claim, he relied on an
argument he had not made to the trial court. A division of
the court of appeals denied him relief in an unpublished
opinion, ruling that he had waived the right to advance the
two claims of error.
¶2
We agree with the division that Phillips failed to preserve
his appellate claims. But we find that no waiver occurred.
Instead, relying on People v. Rediger, 2018 CO 32,
416 P.3d 893, which we announced after the division's
decision, we hold that Phillips forfeited the claims and that
the claims are thus subject to plain error review. Upon
conducting such review, we conclude that the trial court did
not err in admitting the police-station statements and that
the record does not establish that the admission of the gun
was plain error. Accordingly, we affirm the division's
judgment, albeit on other grounds.[1]
I.
Facts and Procedural History
¶3
Detective Christopher Fish conducted a traffic stop of
Phillips's car based on information that Phillips was
driving with a suspended license. After Phillips admitted
that he did not have a valid driver's license, the
detective ordered him out of the car. Phillips's two
passengers, an adult in the front seat and a child in the
back seat, remained inside.
¶4
Following a pat down for weapons, the detective placed
Phillips in the back of his police car. The detective told
Phillips that he was being detained and would be issued
"at least a summons" for the driver's license
violation. Phillips was not handcuffed. Through the sliding
window dividing the front and back seats of the police car,
the detective questioned Phillips without first advising him
of his rights under Miranda v. Arizona, 384 U.S. 436
(1966). Specifically, the detective asked Phillips about the
suspension of his driver's license and his possible
involvement in the sale of narcotics and possession of
firearms. Phillips denied any such involvement, but admitted
he had a felony conviction out of Illinois for possession of
drugs. According to the detective, Phillips then consented to
a search of his vehicle, even though he was advised that he
had the right to refuse permission. The search of
Phillips's car, which was conducted by another officer,
yielded a gun underneath the driver's seat. The detective
informed Phillips at that point that he would be transported
to the police station to discuss his possession of a firearm
as a convicted felon.
¶5
At the police station, the detective advised Phillips of his
Miranda rights, and Phillips waived those rights and
agreed to talk with the detective. During the interrogation,
Phillips said that the gun recovered from his car belonged to
his cousin, though he refused to identify him by name. The
prosecution later charged Phillips with possession of a
weapon by a previous offender and driving under restraint.
¶6
Before trial, Phillips sought to suppress (1) the statements
he made in the police car, (2) his subsequent statements at
the police station, and (3) the gun found in his car. The
trial court suppressed the statements Phillips made in the
police car, finding that they were obtained in violation of
Miranda. But the court admitted into evidence both
the statements Phillips made at the police station (reasoning
that they were obtained after an advisement of his
Miranda rights and his valid waiver of those rights)
and the gun (reasoning that Phillips consented to the search
of his car).
¶7
Phillips argued at trial that, while he was detained, the
adult passenger in his car placed the gun under the
driver's seat. A jury rejected that defense and found
Phillips guilty. The court then sentenced him to probation.
¶8
On appeal, Phillips maintained that the trial court erred in
admitting his police-station statements because they were the
inadmissible fruit of the earlier unconstitutionally obtained
statements in the police car. Additionally, he asserted that
his consent to search his car was tainted and rendered
involuntary by the interrogation in the police car. Although
Phillips had challenged the admission of both the
police-station statements and the gun at the trial court, he
had not previously raised either of these arguments. The
division declined to address Phillips's claims on the
merits, concluding that they were unpreserved and waived.
¶9
Phillips petitioned for certiorari review, and we granted his
petition.[2]
II.
Analysis
¶10
We first address whether Phillips preserved his two appellate
claims. After concluding that he did not, we analyze whether
he waived them. We rule that he did not and that, instead, he
forfeited them, which means that they are subject to plain
error review. As to the unpreserved claim related to the
admission of the police-station statements, we conclude that
the trial court did not err, much less plainly err. As to the
unpreserved claim related to the admission of the gun, we
conclude that the record does not establish that the trial
court plainly erred. Accordingly, we affirm the
division's judgment on other grounds.
A.
Phillips Did Not Preserve His Appellate Claims
¶11
The division ruled that Phillips did not preserve his
appellate claims for review. We agree.
¶12
Motions to suppress "should state with reasonable
specificity the legal grounds upon which [they] are
based" in order "to put the prosecution on notice
of the contentions it must be prepared to meet at a
suppression hearing and to inform the court of the issues to
be decided." People v. Jansen, 713 P.2d 907,
912 n.8 (Colo. 1986). By requiring that the defendant set
forth "the particular grounds for the objection or
motion," courts ensure not only that the prosecution
will have "a full and fair opportunity to present
relevant evidence and argument with regard to it," but
also that the court will have "an opportunity to correct
any error that could otherwise jeopardize the defendant's
right to a fair trial." People v. Cordova, 293
P.3d 114, 120 (Colo.App. 2011). It follows that "[t]o
preserve a claim for review on appeal, the party claiming
error must have supplied the right ground for the
request." Novak v. Craven, 195 P.3d 1115, 1120
(Colo.App. 2008) (quoting Danco, Inc. v. Wal-Mart Stores,
Inc., 178 F.3d 8, 15 (1st Cir. 1999)). For this reason,
simply advancing "conclusory, boilerplate
contention[s]" does not suffice to preserve a
suppression issue for appeal. People v. Samuels, 228
P.3d 229, 238 (Colo.App. 2009). As the U.S. Court of Appeals
for the First Circuit eloquently put it, "[i]t is not
enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work . .
. ." United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
¶13
Here, Phillips argued to the trial court that his statements
at the police station should be suppressed because Detective
Fish's testimony was insufficient to establish that he
received and then waived his Miranda rights. On
appeal, though, Phillips sang a different tune: He maintained
that his police-station statements should be suppressed
because they were tainted and rendered inadmissible by the
earlier unconstitutionally obtained statements in the police
car. True enough, Phillips's motion to suppress
generically alleged that the prosecution bore the burden to
establish "that a derivative statement was not
tainted" and was not "the fruit of a prior
incriminating response resulting from [an] illegal custodial
interrogation." But Phillips did not develop this
boilerplate assertion, let alone apply it to the factual
allegations involved in this case. Nor did he mention it
later at the suppression hearing or ask the trial court to
rule on its merits. Moreover, he did not cite, in his motion
or at the hearing, the two watershed cases on which his
appellate claim rests, Missouri v. Seibert, 542 U.S.
600 (2004), and Oregon v. Elstad, 470 U.S. 298
(1985). Under these circumstances, we agree with the division
that Phillips failed to properly preserve his claim related
to the statements he made at the police station. See
Feldstein v. People, 410 P.2d 188, 191 (Colo. 1966)
("[I]t is incumbent on the moving party to see to it
that the court rules on the matter he urges"; if the
trial court is not "afforded the opportunity to so
rule[, ] . . . the matter will ordinarily not be considered
on writ of error."), abrogated on other grounds by
Deeds v. People, 747 P.2d 1266, 1269-72 (Colo. 1987).
¶14
We also agree with the division that Phillips failed to
properly preserve his claim regarding the admission of the
gun. At the trial court, Phillips maintained that the
prosecution presented insufficient proof of a valid consent
to search his car. But on appeal, he switched horses, arguing
primarily that his consent was tainted because it was given
during a custodial interrogation that violated
Miranda. Thus, Phillips did not present to the trial
court the contention on which he relied on appeal in
challenging the admission of the gun.
¶15
Having determined that Phillips did not properly preserve
either claim of error, we next explore the consequences of
these failures. The question is whether Phillips waived both
claims, thereby foreclosing review on appeal, or whether he
forfeited them, thereby rendering them reviewable for plain
error.
B.
Phillips Forfeited His Claims
¶16
Rights can be waived. The doctrine of waiver is a procedural
bar to appellate review based on "the
intentional relinquishment of a known right
or privilege." Rediger, ¶ 39, 416 P.3d at
902 (quoting Dep't of Health v. Donahue, 690
P.2d 243, 247 (Colo. 1984)). "Whether a particular right
is waivable; whether the defendant must participate
personally in the waiver; whether certain procedures are
required for waiver; and whether the defendant's choice
must be particularly informed or voluntary, all depend on the
right at stake." United States v. Olano, 507
U.S. 725, 733 (1993). Although even fundamental rights can be
waived, see Peretz v. United States, 501 U.S. 923,
936-37 (1991), we "do not presume acquiescence" in
the loss of such rights; to the contrary, we "indulge
every reasonable presumption against waiver,"
Rediger, ¶ 39, 416 P.3d at 902 (quoting
People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)).
Here, we deal with the right to seek to exclude from trial
any evidence obtained in violation of the Fourth or Fifth
Amendments, a nonfundamental right that may be waived by
defense counsel as "captain of the
ship."[3]Curtis, 681 P.2d at 511 (quoting
Steward v. People, 498 P.2d 933, 934 (Colo. 1972)).
ΒΆ17 Rights can also be forfeited. When an intentional
relinquishment of a known right is not present, then
"the failure to make the timely assertion of a
right" is a forfeiture, not a ...