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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
JUSTICE
SAMOUR
[¶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) Phillipss 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
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statements, but not the police-station statements or the gun.
The jury found Phillips guilty as charged. On appeal,
Phillips challenged the trial courts 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in an unpublished opinion, ruling that he had waived the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 divisions
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 divisions
judgment, albeit on other grounds.[1]
I. Facts and Procedural History
[¶3]
Detective Christopher Fish conducted a traffic stop of
Phillipss car based on information that Phillips was driving
with a suspended license. After Phillips admitted that he did
not have a valid drivers license, the detective ordered him
out of the car. Phillipss 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 drivers 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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically, the
detective asked Phillips about the suspension of his drivers
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 Phillipss car, which was conducted
by another officer, yielded a gun underneath the drivers
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 drivers
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
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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 Phillipss 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 divisions
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 defendants
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 ...