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People v. Dominguez-Castor

Court of Appeals of Colorado, Fourth Division

January 2, 2020

The People of the State of Colorado, Plaintiff-Appellee,
James Dominguez-Castor, Defendant-Appellant.

          Jefferson County District Court No. 14CR559 Honorable Jeffrey R. Pilkington, Judge.

          Philip J. Weiser, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          NAVARRO JUDGE.

         ¶ 1 The exclusionary rule generally bars admission of evidence obtained in violation of the Fourth Amendment. Applying that rule, the trial court here suppressed evidence derived from a defective search warrant. The police then obtained a second warrant to search the same property. The court declined to suppress the product of the second warrant, which was the same evidence found under the first warrant. This case thus presents the novel question whether the evidence procured under the second warrant was admissible under the independent source exception to the exclusionary rule. We conclude that it was.

         ¶ 2 Because we also reject the other challenges to his convictions and sentence raised by the defendant, James Dominguez-Castor, we affirm the judgment and sentence.

         I. Factual and Procedural History

         ¶ 3 On March 1, 2014, Robert Phippen was found dead inside his home. He was seventy-nine years old. Someone had stabbed him approximately sixty times, strangled him, and ransacked his trailer. The police discovered an empty box of checks, bloody latex gloves in the toilet bowl, two knives in the kitchen, and a black glove under his body.

         ¶ 4 Investigators suspected Dominguez-Castor and Stephvon Atencio. In police interviews following his arrest, Atencio acknowledged having a sexual relationship with the victim and living with him shortly before his death. Atencio implicated Dominguez-Castor in the crimes. The prosecution ultimately charged both men in the victim's death. Atencio later agreed to testify against Dominguez-Castor and pleaded guilty to second degree murder.

         ¶ 5 At Dominguez-Castor's trial, Atencio testified that Dominguez-Castor texted him the night of February 24, 2014, asking for marijuana. They decided to smoke it at the victim's trailer. The victim allowed them in, and he joined them while they smoked and drank. After the victim retired for the evening, Atencio and Dominguez-Castor wanted more marijuana but had no money. Atencio proposed stealing the money from the victim.

         ¶ 6 Atencio attempted to steal the money from the victim's pocket as he slept, but Atencio abandoned that plan when the victim moved in his sleep. Dominguez-Castor said he could get the wallet; then he put on gloves, grabbed a knife, and went into the bedroom. Atencio heard a struggle lasting several minutes. When he returned to the bedroom, he saw the bloodied victim lying on the floor. Dominguez-Castor flushed the gloves down the toilet before stealing the victim's money and checks.

         ¶ 7 The prosecution presented evidence showing that (1) Dominguez-Castor confessed the murder to a jailhouse informant and to a girl on Facebook; and (2) his DNA was on the latex gloves found in the toilet. Dominguez-Castor denied any involvement, denied being at the trailer, and denied making any confessions.

         ¶ 8 The jury convicted Dominguez-Castor of first degree murder (both after deliberation and felony murder), aggravated robbery, and related crimes. The trial court adjudicated him a habitual criminal and sentenced him accordingly.

         II. Serial Search Warrants

         ¶ 9 We first address, and reject, Dominguez-Castor's contention that the trial court erred by denying his motion to suppress a Facebook message as the fruit of an unlawful search.

         A. Additional Background

         ¶ 10 Police seized two cell phones discovered during a search incident to Dominguez-Castor's arrest. Following witness interviews - including with Atencio and Dominguez-Castor - the lead detective (Detective Karen Turnbull) directed another detective to draft an affidavit for a warrant to search the phones. Based on that affidavit, a magistrate issued the warrant, and law enforcement officers attempted to download the phones' contents. The information on one phone could not be downloaded, but the other phone revealed an incriminating message in which Dominguez-Castor appeared to confess to murder.[1]

         ¶ 11 The incriminating message was sent via a social media application called Facebook Messenger. Upon discovering the message, Detective Turnbull prepared affidavits for a search warrant to Facebook and for orders for production of records to three cell phone providers. Per department policy, she copied and pasted information from the first affidavit when applying for the new warrant and orders. The warrant and orders were issued, but records from Facebook and the cell phone providers did not reveal any new incriminating information.

         ¶ 12 Dominguez-Castor moved to suppress the Facebook message recovered pursuant to the search warrant for the phones as well as evidence seized under the subsequent search warrant and orders. The trial court granted his motion. The court found that the detective who prepared the original affidavit included false information that a witness had identified Dominguez-Castor in a photo lineup. In fact, the witness had identified Atencio in one lineup but had failed to identify Dominguez-Castor in another.

         ¶ 13 The court found that the detective did not intentionally make false statements but made them with reckless disregard for the truth. After redacting the false information in all the affidavits and any references to the Facebook message, the court decided that the remaining information did not establish probable cause to search. The court thus suppressed the evidence seized pursuant to the search warrants and orders for production.

         ¶ 14 After the suppression ruling, Detective Turnbull drafted a new affidavit and applied for a second warrant to search the phones. The new affidavit included much more information than the first, [2]but omitted any reference to the Facebook message or any other information learned during the prior searches.

         ¶ 15 A magistrate issued the new warrant, and law enforcement officers re-downloaded information from the phone - including the Facebook message. Dominguez-Castor again moved to suppress the evidence. At the second suppression hearing, Detective Turnbull testified that she followed the "same pattern" of the investigation as before. In other words, her first step was to obtain a warrant to download the phones. She testified that nothing found in the initial search of the phones was used to obtain the second warrant for the phones. The detective did not, however, seek new warrants to Facebook or the cell phone providers. She explained that she had been unaware that evidence seized from those entities had been suppressed. She also noted that "in hindsight" she knew those searches would reveal nothing valuable.

         ¶ 16 The trial court denied the suppression motion on the ground that the second warrant to search the phones satisfied the independent source doctrine. The court found that the new affidavit in support of the second warrant referenced no information obtained from the illegal search, Detective Turnbull's motive to secure a warrant was independent of the prior unlawful search, and the affidavit established probable cause to search.

         B. Standard of Review

         ¶ 17 A trial court's suppression order presents a mixed question of fact and law. People v. Hyde, 2017 CO 24, ¶ 9; People v. Cruse, 58 P.3d 1114, 1120 (Colo.App. 2002). We review the court's findings of fact deferentially and accept them if they are supported by competent record evidence. People v. Chavez-Barragan, 2016 CO 66, ¶ 34. Because the ultimate conclusions of constitutional law are ours to draw, however, we review them de novo. Id.

         C. Analysis

         ¶ 18 Dominguez-Castor contends that the trial court erroneously applied the independent source doctrine to allow the prosecution to "circumvent" the first suppression order. He says that, when a trial court suppresses evidence because of a defective warrant, the exclusionary rule forbids law enforcement officers from seeking a new warrant to search for the same evidence. He further argues that, "[e]ven if the independent source doctrine permitted repeat warrants," the doctrine should not apply here because the prosecution did not establish that the second warrant was independent of the first. We disagree with both arguments.

         1. May the Independent Source Doctrine Apply to Serial Search Warrants?

         ¶ 19 The exclusionary rule is a judicially created remedy designed to deter unlawful police conduct by suppressing evidence obtained in violation of the Fourth Amendment. People v. Schoondermark, 759 P.2d 715, 718 (Colo. 1988). It applies both to illegally obtained evidence and to derivative evidence - often called "fruit of the poisonous tree." Id. (quoting Nardone v. United States, 308 U.S. 338, 340-41 (1939)).

         ¶ 20 One exception to the exclusionary rule is the independent source doctrine, under which "unconstitutionally obtained evidence may be admitted if the prosecution can establish that it was also discovered by means independent of the illegality." People v. Arapu, 2012 CO 42, ¶ 32 (quoting People v. Morley, 4 P.3d 1078, 180 (Colo. 2000)). Among other circumstances, the doctrine may apply where evidence was initially discovered during an unlawful warrantless entry or search but later seized (or re-seized) when the police executed a valid search warrant. See, e.g., Murray v. United States, 487 U.S. 533, 540-42 (1988); Arapu, ¶ 32; Schoondermark, 759 P.2d at 716; People v. George, 2017 COA 75, ¶¶ 6-9, 47-55.

         ¶ 21 To show that the warrant was genuinely an independent source of the evidence, the prosecution must prove that (1) the decision to seek the warrant was not prompted by what was observed during the initial unlawful search, and (2) no information obtained during the initial search was relied upon by the magistrate in issuing the warrant. George, ¶ 47.

         ¶ 22 This case raises the question whether the independent source doctrine can apply to evidence seized under a valid warrant issued after the evidence was first discovered during execution of an invalid warrant. No published Colorado case has answered this question. We conclude that the independent source doctrine may apply to such facts if the prosecution shows that the second warrant was truly independent of information obtained from the initial search.

         ¶ 23 Driving our decision is the reason for the independent source doctrine. The United States Supreme Court has explained that the public interest "in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred." Murray, 487 U.S. at 537 (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)) (emphasis added). If the challenged evidence has an independent source, excluding such evidence would put the police in a worse position than they would have been in absent any error or violation. Id.

         ¶ 24 This rationale applies with equal force to a second warrant that is independent of evidence discovered under an initial defective warrant. Where the second warrant would have been sought and issued even absent the first warrant, "[i]nvoking the exclusionary rule would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one." Id. at 541.

         ¶ 25 Contrary to Dominguez-Castor's view, permitting subsequent warrant applications would not eviscerate the exclusionary rule's deterrence function by encouraging reckless applications for a first warrant. If the initial warrant was defective, the prosecution must satisfy "the much more onerous burden of convincing a trial court" that no information gained from the illegal search affected either the law enforcement officers' decision to seek a second warrant or the magistrate's decision to grant it. George, ¶ 64 (quoting Murray, 487 U.S. at 540). Reasonable officers would wish to avoid this burden and its heightened risk that evidence crucial to their investigation will be suppressed. See id.

         ¶ 26 Moreover, we decline to hold that, although the independent source doctrine may apply to evidence initially discovered during an unlawful warrantless search and later seized under a valid warrant, the doctrine may not apply to evidence initially discovered under a defective warrant and later seized under a valid warrant. Such a rule could create unwelcome incentives for law enforcement officers by discouraging them from seeking a warrant before an initial search. Cf. People v. Marko, 2015 COA 139, ¶ 145 ("To comply with the reasonableness requirement, the United States and Colorado Constitutions generally require a police officer to obtain a warrant before conducting a search."), affd, 2018 CO 97.

         ¶ 27 Consistent with our view, courts in other jurisdictions have recognized that the independent source doctrine may apply to evidence seized under a second warrant even though the evidence was initially discovered under a defective warrant. See United States v. Terry, 41 F.Supp.2d 859, 863-66 (C.D. Ill. 1999); Commonwealth v. Henderson, 47 A.3d 797, 800-05 (Pa. 2012);[3]State v. Dasen, 155 P.3d 1282, 1285-87 (Mont. 2007); State v. Betancourth, 413 P.3d 566, 572-73 (Wash. 2018). We have not found any contrary authority.

         ¶ 28 Further, we disagree with Dominguez-Castor that applying the independent source doctrine to the second warrant would allow the police to "circumvent" the first suppression order. As the trial court explained, "the People may seek multiple warrants for the same evidence," and they can "redraft and resubmit affidavits and search warrants where the Court [initially] refuses to issue the warrant." Hence, it is neither improper nor unusual to resubmit a warrant application with an improved affidavit after a court has ruled that the first affidavit was insufficient to show probable cause. This practice does not thwart the court's first probable cause ruling; it accepts and appropriately responds to that ruling.

         ¶ 29 Finally, we are not convinced that the analysis must differ where the first warrant was defective due to an officer's recklessly including false information in the first affidavit. We see no reason why the independent source doctrine should not apply so long as the prosecution proves that the second warrant was genuinely independent of the evidence found under the first. See Murray, 487 U.S. at 542 (holding that the independent source doctrine should apply "[s]o long as a later, lawful seizure is genuinely independent of an earlier, tainted one"). To conclude otherwise would put the police not in the same position they would have occupied if no violation had occurred, but in a worse one. Id. at 541.

         ¶ 30 Dominguez-Castor cites cases requiring suppression of evidence if the affidavit underlying the warrant does not show probable cause after false statements have been excised. See, e.g., Franks v. Delaware, 438 U.S. 154, 156 (1978). In that situation, it does not matter whether additional facts supporting probable cause could have been alleged if they were not actually alleged in the affidavit. See State v. Thompson, 358 S.E.2d 815, 817 ( W.Va. 1987). Consistent with this authority, the trial court here suppressed the results of the first warrant after excising the false statement from the first affidavit. But Dominguez-Castor cites no authority holding that the first suppression ruling precludes the police from submitting a second warrant application supported by a second affidavit without false statements.

         ¶ 31 We therefore hold that the independent source doctrine may apply to a search warrant sought after a court suppresses evidence seized under a prior warrant.

         2. Application of the Independent Source Doctrine

         ¶ 32 We now consider whether the second warrant in this case was in fact ...

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