Jefferson County District Court No. 14CR559 Honorable Jeffrey
R. Pilkington, Judge.
J. Weiser, Attorney General, Carmen Moraleda, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Kamela Maktabi,
Deputy State Public Defender, Denver, Colorado, for
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
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.
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
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.
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
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.
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
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, but omitted any reference to the Facebook
message or any other information learned during the prior
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
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.
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.
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.
the Independent Source Doctrine Apply to Serial Search
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);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.
Application of the Independent Source Doctrine
32 We now consider whether the second warrant in this case
was in fact ...