22CA1730 Peo v Torres 10-23-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1730 City and County of Denver District Court No. 21CR3373 Honorable Jay S. Grant, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Matthew Torres,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE PAWAR Freyre, J., concurs Yun, J., concurs in part and dissents in part
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 23, 2025
Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Julieanne Farchione, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Matthew Torres, appeals his conviction of two
counts of possession of a weapon by a previous offender (POWPO).
We agree with him that his convictions must merge but conclude
that he is not entitled to any additional relief.
I. Background
¶2 Police were surveilling an RV they believed was involved in
illegal drug sales. Torres and his friend walked past the RV and
then returned to talk to the RV’s occupant through the driver’s side
window. Torres and his friend appeared to argue with the person
inside the RV when Torres’ friend reached through the open window
and appeared to attack the person inside. Torres and his friend
then walked away from the RV with Torres appearing to try to calm
his friend down.
¶3 Having observed these events, police decided to approach
Torres and his friend. Officer Hillers detained Torres while Officer
Hart detained his friend. A third officer detained the person in the
RV. During this interaction, officers discovered a gun on Torres’
hip.
¶4 Torres was charged with two counts of POWPO based on two
previous felony convictions. Before trial, he moved to suppress the
1 gun, arguing that police lacked reasonable suspicion to support
either an investigatory stop or a pat-down for weapons. The trial
court denied the motion and admitted the gun evidence at trial.
The jury found Torres guilty of both POWPO counts, and he was
convicted and sentenced accordingly.
¶5 Torres appeals. He argues that the trial court erred by
(1) failing to suppress the gun; (2) denying a challenge for cause to a
juror who served on the jury; (3) refusing to compel the prosecution
to discover certain documents; and (4) failing to merge the two
POWPO convictions. We conclude that only the last argument
warrants relief.
II. Suppression
¶6 Torres argues that the trial court erred by (1) denying his
motion to suppress at the pretrial suppression hearing and
(2) refusing to reverse that ruling at trial based on new evidence.
We disagree with both arguments.
A. Governing Law
¶7 We review a trial court’s suppression ruling as a mixed
question of fact and law. People v. Deaner, 2022 CO 43, ¶ 10. We
defer to the court’s factual findings if they are supported by
2 competent evidence in the record and review the legal effect of those
facts de novo. Id.
¶8 Under the Fourth Amendment, an investigatory stop like the
one at issue here must be supported by a reasonable articulable
suspicion that the suspect is involved in criminal activity
(reasonable suspicion). People v. Dacus, 2024 CO 51, ¶ 26.
¶9 A legal investigatory stop does not, in and of itself, justify a
pat-down search for weapons. People v. Martinez, 801 P.2d 542,
544-45 (Colo. 1990). Instead, even during a legal investigatory
stop, officers may conduct a pat-down search for weapons only if
there is also reasonable suspicion that the suspect is armed and
dangerous. Id. at 545.
¶ 10 It is initially the defendant’s burden to establish the point at
which a Fourth Amendment seizure occurred. See Outlaw v.
People, 17 P.3d 150, 155 (Colo. 2001). If the defendant establishes
a Fourth Amendment seizure and the police acted without a
warrant, as they did here, the burden shifts to the prosecution to
prove that it was legal. Id.
3 B. Pretrial Ruling
¶ 11 In reviewing a pretrial suppression ruling, we consider only
the record created at the suppression hearing. Dacus, ¶ 24. Torres
argues that, based on the suppression hearing evidence, police had
neither reasonable suspicion for an investigatory stop nor
reasonable suspicion to believe that he was armed and dangerous
when the gun was discovered.
¶ 12 We conclude these arguments are effectively irrelevant. Based
on our review of the suppression hearing evidence, we conclude
that Torres failed to establish that he was seized at the moment
police discovered the gun.
¶ 13 A Fourth Amendment seizure requires either (1) the
application of physical force to restrain movement or (2) in the
absence of physical force, a suspect’s submission to an officer’s
show of authority. California v. Hodari D., 499 U.S. 621, 626
(1991). If there is no application of physical force and a suspect
refuses to submit to an officer’s show of authority, there is no
seizure. This is what the evidence at the suppression hearing
showed.
4 ¶ 14 Officer Hillers, Torres’ arresting officer, did not testify at the
suppression hearing because he had COVID-19. But Officer Hart,
who detained Torres’ friend, did testify. He testified that Officer
Hillers approached Torres, saying he wanted to speak with Torres
and pat him down for weapons. But Torres said no. Officer Hart
further testified that he saw the holstered gun under Torres’ shirt
before Officer Hillers made physical contact with Torres and before
Torres acquiesced to Officer Hillers’ show of authority. In other
words, Officer Hart saw the gun before Torres was seized and
certainly before any search occurred.
¶ 15 No contrary evidence was presented at the suppression
hearing. We therefore must reject Torres’ argument that the trial
court should have granted his suppression motion at the
suppression hearing. Because the evidence at the hearing showed
that police discovered the gun before any stop or search took place,
whether reasonable suspicion existed for either was irrelevant.
C. Renewed Motion at Trial
¶ 16 Torres also argues that the trial court should have revisited its
suppression ruling at trial when Officer Hillers testified for the first
5 time because his testimony suggested Torres was seized at the
moment the officers discovered the gun.
¶ 17 Officer Hillers testified at trial that he had already applied
physical force to Torres when Officer Hart discovered the gun. He
testified that he heard Officer Hart say “gun” — indicating that
Torres had a gun — after he (Officer Hillers) had grabbed Torres’
arm. Torres argued to the trial court that this testimony suggested
he was seized before the officers discovered the gun, thereby
contradicting the suppression hearing evidence and undermining
the court’s pretrial suppression ruling. The court declined to revisit
its pretrial suppression ruling, saying that ruling was the law of the
case and observing that “[t]he Defense could have called Officer
Hillers [at the suppression hearing] to provide a second
perspective.”
¶ 18 Generally, motions to suppress must be filed and ruled upon
before trial. Crim. P. 41(e). But a trial court retains discretion to
entertain a motion to suppress at trial. Id. A trial court acts within
its discretion by denying a during-trial suppression motion “if the
grounds therefor were known or by due diligence were reasonably
6 discernible prior to trial.” People v. Tyler, 874 P.2d 1037, 1039
(Colo. 1994).
¶ 19 Torres’ renewal of his suppression motion based on Officer
Hillers’ testimony was effectively a late suppression motion that the
trial court had the discretion to consider under Crim. P. 41(e). We
conclude that the court acted within its discretion by denying it
because its grounds (Officer Hillers’ testimony) were reasonably
discernible prior to trial through due diligence.
¶ 20 We recognize that it was not defense counsel’s fault that
Officer Hillers could not testify at the suppression hearing (he had
COVID-19). We also recognize that defense counsel likely did not
know how Officer Hillers would describe the events at issue. But
Officer Hillers was the arresting officer, and, before trial, it was
clear that the fate of any suppression motion would turn on what
Officers Hillers and Hart knew at the moment one of them first saw
the gun. Under these circumstances, due diligence required
defense counsel to present Officer Hillers’ testimony before the
court ruled on the suppression motion.
¶ 21 Upon learning that Officer Hillers was sick and unavailable for
the suppression hearing, defense counsel could have asked for a
7 continuance or proceeded with the suppression hearing and
requested an additional hearing date before trial at which Officer
Hillers could testify. Had defense counsel done so, the conflict
between the two officers’ testimony would have been obvious and
allowed the trial court to rule on the suppression issue before trial.
Put in the language of the governing legal standard, had defense
counsel exercised due diligence, the grounds for the suppression
motion would have been reasonably discernible. We therefore
conclude that the trial court did not abuse its discretion by denying
the during-trial suppression motion.
¶ 22 This result may seem troubling and unfair given that Officer
Hillers’ testimony, the substance of which was revealed only at trial,
could have benefitted Torres’ suppression argument. But avoiding
this situation is why Crim. P. 41(e) “require[es] the parties to . . .
pursue discovery vigorously prior to trial.” Tyler, 874 P.2d at 1039.
And our holding is not without precedent. See People v. Hastings,
983 P.2d 78, 82-83 (Colo. App. 1998) (holding that during-trial
suppression motion was untimely even though primary witness of
alleged illegal search was unavailable before trial because defendant
8 knew that the potentially illegal search had occurred), aff’d on other
grounds sub nom., Gorman v. People, 19 P.3d 662 (Colo. 2000).
¶ 23 We therefore disagree with Torres’ arguments that the trial
court erred by failing to suppress the gun evidence.
III. Challenge for Cause
¶ 24 Torres next argues that the trial court erred by denying his
challenge for cause to a juror who ended up serving on the jury.
We review a court’s denial of a challenge for cause to a juror for an
abuse of discretion. Marko v. People, 2018 CO 97, ¶ 22. We
perceive none here.
¶ 25 A juror’s initial expression of bias does not necessarily require
their exclusion for cause. Id. at ¶ 21. Even if a juror initially
expresses bias or a misunderstanding of the law, the juror should
not be excused for cause if the court believes they can set that bias
aside and impartially follow the law. See § 16-10-103(1)(j), C.R.S.
2025; Marko, ¶ 21.
¶ 26 Here, the juror initially indicated that evidence of Torres’ prior
felony convictions would make her think it was more likely he
committed the charged offenses. Defense counsel asked the juror a
9 series of questions about this belief that ultimately demonstrated
the juror could follow the law:
Defense counsel: So if you were read a rule that said that a person who comes into this courtroom and sits at the defense table is presumed innocent, and that a prior felony conviction can not be held against them for the purposes of determining if they are guilty in this case, how do you fall on that rule?
Juror: I am a rule follower, so I would follow the rule. But it is in the back of my head.
Defense counsel: We don’t expect you to forget the things you believe or change who you are to come into this courtroom to be a juror. When you say that you would follow the rule, are you 100 percent confident you can follow that rule in every case, or is it something you would try to do?
Juror: Try to do.
Defense counsel: Okay. I want to dig in a little bit on the word “try.”
So I try to wake up early and work out every day. I don’t work out every day. That does not happen, but I try. I set the alarm.
When I say that I try to wake up and work out every morning, is that the same kind of try that you would apply in this case?
Juror: I think I would follow the rule. Having heard the “prior,” it just — I will follow the rule, but — I don’t know how to describe what
10 kind of “try” that would be. It’s just in the back of my head.
¶ 27 Based on this record, we conclude that the trial court acted
within its discretion by denying the challenge for cause. The juror
repeatedly stated that she would follow the rule despite her initial
belief about prior felony convictions. We therefore disagree with
Torres’ argument that the trial court erred.
IV. Motion to Compel
¶ 28 Torres next argues that the trial court erred by refusing to
compel the prosecution to discover a particular piece of evidence
relevant to his prior felonies as a discovery sanction. Torres claims
that this error violated his constitutional right to due process and
therefore argues that we must reverse unless the error was
harmless beyond a reasonable doubt. See Hagos v. People, 2012
CO 63, ¶ 11. Even if we assume the trial court erred, and further
assume that the error was constitutional, we conclude that it was
harmless beyond a reasonable doubt because there is no
reasonable possibility that it contributed to Torres’ conviction. See
id.
11 ¶ 29 About six months before trial, the prosecution sent the defense
a photocopy of a packet of information, certified by another trial
court, that contained records of Torres’ prior felony convictions.
But that’s not all it contained. The other trial court mistakenly
included in the certified packet records from an unrelated case
against an unrelated defendant.
¶ 30 Six months later, and less than a week before trial, the
prosecution sent the defense a second version of the packet, again
certified by the other trial court. This second packet contained the
same records of Torres’ prior felonies, included additional records of
Torres’ prior felonies, and omitted the records from the unrelated
case. Because of a long holiday weekend right before trial, defense
counsel did not become aware of the second packet until the
prosecution sought to introduce it midway through trial. Defense
counsel objected to its admission, and the trial court overruled the
objection and admitted it.
¶ 31 Defense counsel then sought to compel the prosecution to
discover the original version of the first packet (not the photocopy
sent six months before trial) so that defense counsel could
introduce it to attack the reliability of the information in the second
12 packet.1 Defense counsel argued that this was an appropriate
discovery sanction for the prosecution providing the second packet
less than a week before trial.
¶ 32 Torres does not dispute that the second packet (the one
admitted at trial) contained overwhelming evidence of his prior
felonies. The first packet did too — it contained court records
showing that a person with Torres’ identical name and date of birth
had been convicted of two felonies. Nevertheless, Torres claims
there is a reasonable possibility that had he been able to introduce
the first packet with its extraneous records, the jury would have
doubted the reliability of all the records to the point that it would
have found the records insufficient to prove Torres’ prior felonies
beyond a reasonable doubt.
¶ 33 We disagree. Initially, we note that no ruling prevented Torres
from introducing the photocopy of the first packet he already had in
1 Defense counsel sought the original version of the first packet so
that it could be introduced as a self-authenticating document.
13 his possession.2 Although the photocopy may not have been self-
authenticating, Torres chose to forego laying foundation that could
have allowed him to introduce the photocopy.
¶ 34 Furthermore, had the first packet been introduced, the jury
would have certainly understood that the other trial court
mistakenly certified the extraneous records. But the jury would
have also understood that the other trial court certified the same
records of Torres’ felonies twice, thereby bolstering the credibility of
those records and strengthening the prosecution’s case that he had
been convicted of two prior felonies. We therefore see no reasonable
possibility that introducing the second packet without the first
contributed to Torres’ conviction.
¶ 35 Torres also argues that he was prejudiced by not being able to
introduce the first packet with the extraneous records because it
2 We recognize that in denying defense counsel’s objection to
admitting the second packet, the trial court said that the first packet “would cause incredible confusion to the jury.” We doubt that this constituted a ruling that any version of the first packet (original or photocopy) was inadmissible under CRE 403 for confusing the issues. But if it was a ruling excluding the first packet under CRE 403, Torres does not challenge that ruling. And that ruling would have rendered the original first packet inadmissible, thereby mooting the trial court’s alleged in error in refusing to compel its discovery.
14 destroyed the defense’s credibility with the jury. According to
Torres, defense counsel made a promise to the jury in her opening
statement that she was unable to fulfill because the first packet was
never introduced. We presume that Torres is referring to this
passage from defense counsel’s opening statement:
Finally, the People are going to talk about a prior case. They’ve already talked about a prior case where they allege that Mr. Torres was convicted of some crimes. We’re going to ask you to question the evidence that they show you about that prior case. We’re going to ask you to consider whether that evidence is reliable, whether that evidence is reliable enough to convict Mr. Torres and to find him guilty beyond a reasonable doubt. We’re going to ask you to look very closely at that evidence and consider whether you should believe that that is true.
¶ 36 As this record shows, defense counsel made no promise
during opening statement. She merely asked the jury to scrutinize
the reliability of the prosecution’s evidence. Consequently, we
conclude that the exclusion of the first packet had no impact on the
15 defense’s credibility with the jury and did not prejudice the defense
as Torres suggests.3
V. Merger
¶ 37 Finally, Torres contends that his possession of a single gun
during a single incident cannot support two POWPO convictions.
The prosecution agrees, and so do we. See People v. Perez, 2019
COA 48, ¶ 28 (“A person with multiple prior felony convictions may
not be convicted of multiple POWPO counts for possession of a
single gun during a single incident.”), affirmed on other grounds and
vacated in part on other grounds, 2021 CO 5M. We therefore vacate
one of Torres’ POWPO convictions.
VI. Disposition
¶ 38 One of Torres’ POWPO convictions is vacated. The judgment is
otherwise affirmed. The case is remanded to the trial court with
directions to correct the mittimus.
JUDGE FREYRE concurs.
3 In so holding, we do not suggest that it was Torres’ burden to
establish prejudice for this assumed constitutional error. It is the prosecution’s burden to establish harmlessness beyond a reasonable doubt, Hagos v. People, 2012 CO 63, ¶ 11, a burden we conclude the prosecution has carried.
16 JUDGE YUN concurs in part and dissents in part.
17 JUDGE YUN, concurring in part and dissenting in part.
¶ 39 I concur with most of the majority’s opinion. But I part ways
with the majority’s conclusion that the trial court did not abuse its
discretion by declining to reconsider its suppression ruling after
Officer Hillers testified at trial. Because Officer Hillers was absent
from the suppression hearing due to illness from COVID-19 and his
trial testimony directly contradicted, in part, the factual basis for
the trial court’s suppression decision, I believe the trial court
abused its discretion by refusing to reconsider its earlier ruling.
Accordingly, I respectfully concur in part and dissent in part and
would remand the case for the trial court to reconsider its
suppression ruling in light of Officer Hillers’s trial testimony.
¶ 40 Matthew Torres was charged with two counts of possession of
a weapon by a previous offender. Before trial, he moved to
suppress evidence of the gun, contending that the police lacked
reasonable suspicion to justify either an investigatory stop or a pat-
down for weapons under the Fourth Amendment.
¶ 41 At the suppression hearing, Officer Hart testified that Officer
Hillers approached Torres and stated that he wanted to pat Torres
down for weapons and speak with him. Torres responded, “No, you
18 can’t pat me down, you can’t search me, you have no right to
search me.” As Officer Hillers reached to control Torres, Officer
Hart observed Torres pulling away and noticed a gun in a holster on
Torres’s hip. Officer Hart testified that he saw the gun before
Officer Hillers made any physical contact with Torres and before
Torres submitted to Officer Hillers’s authority. Upon seeing the
gun, Officer Hart assisted Officer Hillers in handcuffing and
arresting Torres.
¶ 42 Based largely on Officer Hart’s testimony, the trial court made
the following findings:
And I think here, based on the totality and universal knowledge — knowledge that the officer and detectives had, they had reason to go up and to question the individuals in the alley. And before even Mr. Torres was detained is when Detective Hart saw the gun. And regardless of whether he can legally carry a gun on your person, concealed, or whatever, for officer safety purposes he had reason to detain and secure the handgun in the alley.
....
For those reasons, I find that I deny the Defense motion to suppress the evidence, and there’s reasonable suspicion to approach the individuals and do a Terry pat-down for officer safety. Again, Mr. Torres turned away when Detective Hart saw the gun, then I think they
19 had reason to be able to detain him and secure him. So with that being said, we need to set a trial.
¶ 43 At trial, Officer Hillers testified that he informed Torres he
intended to pat him down. Torres responded defiantly and began to
walk away. As Torres attempted to leave, Officer Hillers grabbed his
wrist, then reached for his belt and suspender area to prevent him
from escaping. “[W]hen I grabbed onto the suspender . . . and belt
area,” Officer Hillers continued, “apparently that moved [Torres’s
shirt] or showed [Torres’s] waistband, which [Officer] Hart could
see,” and “[t]hat was when [Officer Hart] . . . said ‘gun.’” He further
clarified:
Q. Okay. And so you contacted Mr. Torres physically before you knew that there was a gun —or that there was likely a gun?
A. Yes.
Q. And it was after that that you heard Sergeant Hart announce “gun”?
A. Correct.
¶ 44 Torres’s counsel moved the trial court to reconsider its
suppression ruling, arguing that Officer Hillers’s testimony
contradicted Officer Hart’s suppression hearing testimony, which
20 formed the basis for the court’s decision. The trial court denied the
motion, reasoning as follows:
So I guess my position is that there was a motions hearing where officers were called, officers testified, and I made a ruling on the evidence that was presented. I think it’s the law of the case. I don’t think I’m going to reopen it.
The Defense could have called Officer Hillers to provide a second perspective. Both officers have a different perspective on, like, what I think [the prosecutor] is saying that, you know, one is very close and one is not.
I don’t think it warrants, from what I — from my ruling and from what this detective has testified, I don’t think that warrants a relitigation of the motion nor a change of my order.
¶ 45 In criminal cases, motions to suppress evidence should be
filed and resolved before trial when the defendant is aware of the
grounds for such a motion. Crim. P. 41(e), (g); People v. Tyler,
874 P.2d 1037, 1039 (Colo. 1994). This process promotes efficiency
by encouraging parties to conduct thorough discovery prior to trial.
Tyler, 874 P.2d at 1039. It also allows both the prosecution and the
defense to prepare for trial with a clearer understanding of what
evidence will be admitted or excluded. Id.
21 ¶ 46 However, under Crim. P. 41(e), a trial court retains discretion
to consider a motion to suppress during trial. The court may deny
such a motion at trial “if the grounds therefor were known or by
due diligence were reasonably discernible prior to trial.” Tyler,
874 P.2d at 1039. However, “if the defendant could not by the
exercise of reasonable diligence discover the grounds for such a
motion in advance of trial, the defendant should not be deemed to
have forfeited his or her right to seek suppression of evidence
arguably obtained by constitutionally prohibited means.” Id.
Otherwise, a contrary ruling would result in a postconviction claim
of ineffective assistance of counsel if the defendant is convicted. Id.
Further, when the justification for late filing is a close call, the court
may exercise its discretion to rule on the merits of an arguably
untimely motion as a precaution, recognizing that a future reversal
of its timeliness determination would likely necessitate a new trial.
Id. at 1039-40.
¶ 47 In my view, the trial court abused its discretion by refusing to
reconsider its suppression ruling based on Officer Hillers’s trial
testimony for several reasons.
22 ¶ 48 First, the law of the case doctrine permits a court to reconsider
its rulings when presented with new evidence. The law of the case
doctrine is merely a “discretionary rule of practice” when applied to
a trial court’s power to reconsider its own prior rulings. People v.
Morehead, 2019 CO 48, ¶ 10 (citation omitted). It “provides that
prior relevant rulings made in the same case are to be followed
unless such application would result in error or unless the ruling is
no longer sound due to changed conditions.” Stockdale v.
Ellsworth, 2017 CO 109, ¶ 37 (quoting People v. Dunlap, 975 P.2d
723, 758 (Colo. 1999)). But “a trial court is not inexorably bound
by its own precedents.” Id. at ¶ 37 (quoting Brodeur v. Am. Home
Assurance Co., 169 P.3d 139, 149 (Colo. 2007)). The doctrine
allows a trial court to clarify or even revisit its prior rulings. Id.
Because the trial court in this case was presented with new
evidence that appeared to contradict the factual basis for the
court’s earlier ruling, the law of the case doctrine did not preclude
the court from reconsidering it. See Moore v. 1600 Downing St.,
Ltd., 668 P.2d 16, 19 (Colo. App. 1983) (the law of the case doctrine
is generally inapplicable when there is new evidence before the
court).
23 ¶ 49 Second, the trial court erred by finding that the defense “could
have called Officer Hillers to provide a second perspective” at the
suppression hearing. Although Officer Hillers was under subpoena,
he was unable to appear at the hearing because he was sick with
COVID-19. Thus, the trial court was incorrect in finding that the
defense could have called Officer Hillers at the hearing. While the
majority says that “defense counsel could have asked for a
continuance or proceeded with the suppression hearing and
requested an additional hearing date before trial at which Officer
Hillers could testify,” supra ¶ 21, the trial court made no such
findings in its ruling. The court said nothing about whether the
defense had the option to continue the suppression hearing or
could have secured his testimony on another date. Instead, it
appears the trial court mistakenly believed Officer Hillers was
available to testify, but the defense chose not to call him at the
hearing.
¶ 50 Finally, I disagree with the majority’s view that Torres’s
counsel failed to exercise reasonable diligence because she could
have asked for a continuance and obtained Officers Hillers’s
testimony on another date before trial. See supra ¶ 21. After
24 Officer Hart testified at the suppression hearing about what he
observed, there was no reason to suspect that Officer Hillers’s
testimony would contradict Officer Hart’s own observation. No
police report or any other document in the record suggested that
Officer Hillers would provide a different version of how the gun
became visible — namely, that his physical contact caused Torres’s
shirt to rise and expose the gun. While it would have been prudent
to secure Officer Hillers’s testimony before the court’s suppression
ruling, I do not believe that reasonable diligence required the
defense to request a continuance of the suppression hearing under
these circumstances. This is precisely the type of situation that
Crim. P. 41(e) was designed to address — when new evidence comes
to light at trial that could not have been reasonably anticipated.
¶ 51 Indeed, a review of reported Colorado decisions shows that
appellate courts have upheld the trial court’s denial of untimely
suppression motions only when the defense knew the supporting
facts well before trial. See Tyler, 874 P.2d at 1040 (concluding that,
because the defendant’s “attorney conceded that he had knowledge
of the [United States Army Investigation Command’s] involvement in
[the defendant’s] arrest from the onset of the criminal proceedings,”
25 the applicability of the Posse Comitatus Act could have been
identified through reasonable diligence soon after the case was
filed); Morgan v. People, 444 P.2d 386, 387 (Colo. 1968) (affirming
the trial court’s decision not to hear a motion to suppress, which
was filed on the afternoon before trial, because all the factual
grounds raised were apparent from the time defense counsel first
appeared); People v. Hastings, 983 P.2d 78, 83 (Colo. App. 1998)
(affirming the denial of a motion to suppress, made during trial, as
untimely because the defendant had been awakened by her son
claiming that “a detective just tried to come through my window”
and was therefore “on notice of the police conduct nearly from the
moment it occurred”), aff’d on other grounds sub nom., Gorman v.
People, 19 P.3d 662 (Colo. 2000); People v. Hinchman, 574 P.2d
866, 868 (Colo. App. 1977) (when the “defendant possessed prior to
trial all pertinent information relative to the seizure of the container
and its possible suppression,” the trial court did not abuse its
discretion by ruling that the motion to suppress, made during trial,
was untimely), aff’d in part and rev’d in part on other grounds,
589 P.2d 917 (Colo. 1978); see also Crim. P. 41(e) (“The motion
shall be made and heard before trial unless opportunity therefor did
26 not exist or the defendant was not aware of the grounds for the
motion . . . .”). Unlike these cases, the record here does not show
that, prior to trial, the defense was aware of Officer Hillers’s
testimony or had any reason to suspect he would contradict Officer
Hart’s account.
¶ 52 I therefore respectfully dissent in part. I would remand the
case for the trial court to reconsider its suppression ruling in light
of Officer Hillers’s trial testimony. See Morehead, ¶ 16; People v.
Mack, 895 P.2d 530, 537 (Colo. 1995) (reversing the suppression
ruling in part and remanding for additional findings). I otherwise
concur with the rest of the majority’s opinion.