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Phillips v. People

Supreme Court of Colorado, En Banc

July 1, 2019

Leo Phillips, Petitioner
The People of the State of Colorado. Respondent

          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



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 A division of the court of appeals denied him relief in an unpublished opinion, ruling that he had waived the right to advance the two claims of error.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 ...

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