The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY January 30, 2020
2020COA14
No. 15CA0040, People v. Tallent — Constitutional Law — Searches and Seizures — Exclusionary Rule — Exceptions
After the Colorado Supreme Court’s decision in People v.
Morehead, 2019 CO 48, 442 P.3d 413, stating that the trial court
should exercise its discretion in allowing or disallowing the
prosecution to argue new theories opposing a motion to suppress
evidence on remand, a division of the court of appeals establishes a
two-prong test intended to aid the trial court’s decision. The
division concludes that (1) the trial court should consider three
factors — whether entertaining new arguments would unfairly
prejudice any party to the case, whether the party proposing the
new argument is at fault for not preserving it in an earlier
proceeding, and any other factor the court deems relevant — in
exercising its discretion to determine whether it will allow the prosecution to advance new arguments on remand; and (2) if the
court determines that new arguments opposing suppression may be
raised for the first time on remand, it should proceed to the second
step by ruling on the substance of the new arguments. COLORADO COURT OF APPEALS 2020COA14
Court of Appeals No. 15CA0040 Larimer County District Court No. 07CR68 Honorable Julie Kunce Field, Judge Honorable Stephen E. Howard, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Randy D. Tallent,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE TAUBMAN Bernard, C.J., and Welling, J., concur
Announced January 30, 2020
Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Esteban A. Martinez, Alternate Defense Counsel, Longmont, Colorado; Joseph T. Goodner, Englewood, Colorado, for Defendant-Appellant ¶1 Defendant, Randy D. Tallent, appeals his judgment of
conviction entered on a jury verdict finding him guilty of theft,
second degree burglary, second degree criminal trespass, and theft
by receiving. He also appeals his adjudication as a habitual
criminal and his sentence. Our division previously reversed the
trial court’s judgment, People v. Tallent, (Colo. App. No. 15CA0040,
May 24, 2018) (not published pursuant to C.A.R. 35(e)), relying on
People v. Morehead, 2015 COA 131, ¶ 52, 450 P.3d 733, 742
(Morehead I), aff’d in part and rev’d in part, 2019 CO 48, 442 P.3d
413 (Morehead II), to conclude that the trial court may not hear new
arguments on remand in opposition to a defendant’s motion to
suppress. Following its decision in Morehead II, concluding that the
trial court has discretion to hear on remand new arguments
opposing a defendant’s motion to suppress, the supreme court
vacated our decision and remanded the present case. People v.
Tallent, (Colo. No. 18SC483, July 1, 2019) (unpublished order). We
now reverse and remand for further findings.
¶2 Because the supreme court vacated our opinion, we restate
the background and some of the legal principles below.
1 I. Background
¶3 Around midnight one night in January 2007, a police officer
was in his patrol car in an alley watching for a vehicle that had
been illegally parking in a handicapped space. The officer saw
Tallent near a garage in the alley. When Tallent saw the patrol car,
he turned and ran, ignoring the officer’s orders to stop. The officer
saw Tallent pass through a fenced backyard, but then lost sight of
Tallent and called for backup.
¶4 The responding officers followed footprints in the snow and
found Tallent hiding on the front porch of a nearby building. He
was arrested at gunpoint, handcuffed, and searched. The officers
found a set of keys with a remote entry fob in Tallent’s pocket.
Using the fob, the officers located Tallent’s car, which they
impounded and eventually searched pursuant to a warrant.
¶5 After Tallent’s arrest, officers again tracked his footprints, first
to a screwdriver dropped in the snow and then to a garage where
they found tools that had recently been reported stolen from a
nearby construction site, as well as other stolen property. In the
meantime, the officers discovered that Tallent had an outstanding
warrant for his arrest on a parole violation.
2 ¶6 Over the course of the next few months, the police continued
investigating leads stemming from property found in the garage.
The police also monitored phone calls Tallent placed while in jail.
These investigative efforts led the police to additional evidence and
witnesses.
¶7 Before trial, Tallent moved to suppress the evidence and
statements obtained as a result of his arrest. Specifically, he urged
the trial court to suppress
everything learned or obtained including but not limited to any statements reportedly made by Mr. Tallent following and as a result of his unlawful seizure, detention and arrest; resulting from his unlawful custodial interrogation; resulting from the unlawful entry and search of the garage where he was storing his personal property; and resulting from the unlawful seizures and searches of his personal property and motor vehicle, as well as any evidence which is fruit thereof.
¶8 After a hearing, the trial court initially granted Tallent’s
motion in a bench ruling. Then, in a written order, the trial court
reconsidered and partially denied the motion to suppress.1 After a
1 The trial court suppressed evidence seized from Tallent’s car. The People brought an interlocutory appeal, and the supreme court reversed. See People v. Tallent, 174 P.3d 310 (Colo. 2008).
3 jury trial, Tallent appealed, and a division of this court reversed the
denial of his motion to suppress. People v. Tallent, slip op. at 2
(Colo. App. No. 09CA0981, Aug. 16, 2012) (not published pursuant
to C.A.R. 35(f)). The division determined that Tallent was arrested
without probable cause. Id. at 21. The division concluded that
“[b]ecause Tallent was arrested without probable cause, evidence
obtained as a result of that arrest should not have been admitted at
trial. Accordingly, we reverse the judgment of conviction and
remand for a new trial.” Id.
¶9 On remand, the People filed a “motion to preserve evidence,”
arguing that evidence obtained after Tallent’s illegal arrest was
admissible under three exceptions to the exclusionary rule:
inevitable discovery, independent source, and attenuation. During
a hearing on the People’s motion, the trial court heard testimony
from the officers involved in the arrest and investigation. The trial
court stated that it would also consider the transcripts from the
original 2007 suppression hearing and related proceedings.
¶ 10 In two written orders, the trial court concluded that some
evidence obtained after Tallent’s arrest was admissible either
because the People proved that it was sufficiently attenuated from
4 the illegal arrest or officers would have inevitably discovered the
evidence through lawful means. The trial court concluded that the
People could introduce: (1) evidence of where Tallent’s footprints in
the snow led, the screwdriver, and all evidence found in the garage;
(2) Tallent’s name and other identifying information obtained after
his arrest; (3) all evidence obtained as a result of monitoring
Tallent’s phone calls from jail; and (4) statements Tallent made after
being advised of his rights under Miranda v. Arizona, 384 U.S. 436
(1966). However, the trial court suppressed: (1) evidence obtained
during the search of Tallent incident to his arrest; (2) evidence
found during the search of Tallent’s car; and (3) statements Tallent
made before being advised of his rights under Miranda. A jury
convicted Tallent of all charges. He was later adjudicated a
habitual criminal by the trial court and sentenced to forty-eight
years in the custody of the Department of Corrections.
¶ 11 Tallent appealed, and this division reversed, relying on
Morehead I, ¶ 52, 450 P.3d at 742, and the supreme court vacated
that decision, in light of Morehead II.
5 II. Discussion
¶ 12 On appeal, Tallent contends that the trial court erred in
permitting the People to make new arguments on remand regarding
the admissibility of the evidence obtained after his illegal arrest. He
bases this argument primarily on the law of the case doctrine,
relying on People v. Roybal, 672 P.2d 1003, 1005 (Colo. 1983). We
do not reach the question of whether the trial court erred; instead,
we remand for further findings in light of the supreme court’s
decision in Morehead II.
A. Standard of Review
¶ 13 We review a trial court decision to hear new arguments on
remand in a suppression hearing for an abuse of discretion. See
Morehead II, ¶ 13, 442 P.3d at 418. As a general rule, we review the
substance of a trial court’s decision on a motion to suppress as a
mixed question of fact and law. People v. King, 16 P.3d 807, 812
(Colo. 2001). While we defer to the trial court’s findings of fact
when they are supported by sufficient competent evidence in the
record, we review conclusions of law de novo. Id.
¶ 14 We review preserved errors of a constitutional dimension for
constitutional harmless error. Hagos v. People, 2012 CO 63, ¶ 11,
6 288 P.3d 116, 119. Under that standard, we will reverse unless the
People prove any error was harmless beyond a reasonable doubt.
Id.
B. Applicable Law
¶ 15 The United States and the Colorado Constitutions prohibit
unreasonable searches and seizures. See U.S. Const. amends. IV,
XIV; Colo. Const. art. II, § 7. Evidence obtained as a result of an
unconstitutional search or seizure must be suppressed. See King,
16 P.3d at 813. This exclusionary rule “applies both to the illegally
obtained evidence itself and to the ‘fruit of the poisonous tree’ —
any other evidence derived from the primary evidence.” People v.
Schoondermark, 759 P.2d 715, 718 (Colo. 1988). However, there
are exceptions to the exclusionary rule that “justify admission of
evidence even though it is derived from information obtained”
through unconstitutional means. Id. These exceptions “have been
labeled independent source, attenuation, and inevitable discovery.”
Id. (summarizing these doctrines).
¶ 16 If an appellate court holds that a trial court erred in denying a
defendant’s motion to suppress, can the prosecution argue for the
first time on remand that illegally obtained evidence is nonetheless
7 admissible under an exception to the exclusionary rule? That
question was left open by the supreme court in People v. Briggs,
709 P.2d 911, 924 n.17 (Colo. 1985). In Morehead I, a division of
this court concluded that a search of the defendant’s home was
unconstitutional and that the trial court’s erroneous denial of the
defendant’s motion to suppress was not harmless. Morehead I,
¶¶ 33, 40, 450 P.3d at 739, 741. Further, the Morehead I division
concluded that the prosecution could not present a “previously
unargued theory of admissibility on remand.” Id. at ¶ 47, 450 P.3d
at 741. Thus, the People were “precluded from arguing on remand
that any of the evidence derived from the unconstitutional search
should still be admitted under the attenuation doctrine or one of
the exceptions to the exclusionary rule” because they had not
raised such arguments in the initial suppression hearing. Id. at
¶ 42, 450 P.3d at 741. However, the supreme court reversed the
judgment of the court of appeals, concluding that the trial court is
best positioned to decide whether to entertain new arguments on
remand. Morehead II, ¶ 13, 442 P.3d at 418. In so doing, it
announced that the trial court may, in its discretion, allow the
prosecution a second bite at the apple on remand.
8 ¶ 17 However, in multiple decisions since Briggs, the supreme court
has recognized that, in certain situations where the People fail to
present an argument for admissibility at an initial suppression
hearing, they cannot later raise that argument on remand. See
People v. Null, 233 P.3d 670, 681 (Colo. 2010) (declining to give the
prosecution “a second bite at the apple” when it failed to carry its
evidentiary burden on statutory suppression issue (quoting Burks v.
United States, 437 U.S. 1, 17 (1978))); Moody v. People, 159 P.3d
611, 617 (Colo. 2007) (declining to remand for further findings on
standing argument not raised by the People in the trial court or on
appeal); People v. Syrie, 101 P.3d 219, 223 (Colo. 2004) (holding
that the People “surrender[ed]” an alternative theory of admissibility
by not raising it in the trial court); People v. Quintero, 657 P.2d 948,
951 (Colo. 1983) (declining to remand on an inevitable discovery
issue when the “prosecution did not rely upon that rule in
[op]posing the initial suppression motion, nor did it raise the rule in
its brief” and, based on the record, the claim would have been
futile); Morehead I, ¶¶ 44-46, 450 P.3d at 741 (discussing Null,
Moody, Syrie, and Quintero); see also People v. Schaufele, 2014 CO
43, ¶ 43, 325 P.3d 1060, 1068 (Boatright, J., concurring in the
9 judgment) (declining to review the merits of a suppression order
when “the entirety of the People’s argument on appeal rests on a
claim that they failed to raise until filing a motion for
reconsideration”); People v. Crippen, 223 P.3d 114, 116-17 (Colo.
2010) (“Because the record . . . contains no indication that the
applicability of the good faith exception was either alleged by the
prosecution or resolved by the district court, we decline to address
it on appeal.”); People v. Salazar, 964 P.2d 502, 507 (Colo. 1998)
(“Because the issue of consensual encounter was not raised by the
prosecution below, we decline to resolve the issue in this appeal.”);
People v. Titus, 880 P.2d 148, 152 (Colo. 1994) (“The issue of
whether the evidence should be admitted under the good-faith
exception to the exclusionary rule was not raised in the trial court,
and therefore is not appropriately before us.”). In Morehead II, the
supreme court clarified that “[w]hile [Moody, Null, Syrie, and
Quintero] may demonstrate this court’s reluctance to consider or
initiate further proceedings concerning arguments not adequately
developed below, none purports to control the arguments that can
be heard by a trial court upon retrial.” Morehead II, ¶ 15, 442 P.3d
at 419. However, the Morehead II court provided limited guidance
10 as to how a trial court should exercise its discretion in determining
whether to hear new arguments on remand.
¶ 18 The Morehead II court suggested at least two factors: (1) Will
the allowance of new arguments unfairly prejudice one or more of
the parties? (2) Is the party proposing a new argument at fault for
having failed to preserve it in an earlier proceeding? Morehead II,
¶ 13, 442 P.3d at 418. We further conclude that a trial court may
consider any other factor it deems relevant. See, e.g., People v.
Brown, 2014 CO 25, ¶ 24, 322 P.3d 214, 221 (in considering
whether to grant a continuance to substitute defense counsel, trial
court must consider multiple factors, including any other “case-
specific factors”).
¶ 19 Accordingly, a trial court should engage in a two-step analysis
when the prosecution seeks to argue new theories to oppose a
defendant’s motion to suppress on remand. First, applying the
factors listed above, the court must exercise its discretion to
determine whether it will allow the prosecution to advance new
arguments on remand. If the court determines that new arguments
against suppression are proper on remand, it may proceed to the
second step by ruling on the substance of the new arguments.
11 ¶ 20 In announcing this two-step analysis, we emphasize the
distinction between usurping the trial court’s discretion to hear new
theories on remand and requiring the trial court to articulate the
reasons why it is exercising its discretion to hear new theories on
remand. This approach harmonizes the decisions in Morehead II
and previous decisions denying the prosecution “a second bite at
the apple.” See Morehead II, ¶ 13, 442 P.3d at 418; Null, 233 P.3d
at 681.
C. Analysis
¶ 21 Tallent contends that the People were precluded from arguing
on remand that the fruit of his unlawful arrest was admissible
under the inevitable discovery and attenuation doctrines. In light of
Morehead II, we remand to allow the trial court to make further
findings consistent with this opinion.
¶ 22 The People do not allege that the prosecution raised the
inevitable discovery or attenuation arguments during the 2007
suppression hearing. Indeed, they point to nothing in the record to
demonstrate that these arguments were presented to the trial court
12 at any point before the previous appeal to this court. 2 Instead, they
argue that, because the trial court ruled in their favor, “there was
no need for the People to contend the evidence was admissible
under any exception to the exclusionary rule, and their failure to do
so should not constitute waiver.” 3
¶ 23 We note that this argument assumes that the People knew
they would prevail at the suppression hearing. However, during the
suppression hearing, the People did not know that there was “no
2 The People apparently did not raise any inevitable discovery or attenuation argument in the prior appeal, either. See generally People v. Tallent, (Colo. App. No. 09CA0981, Aug. 16, 2012) (not published pursuant to C.A.R. 35(f)). 3 Although Tallent does not argue that the People waived their
arguments regarding inevitable discovery and attenuation, the People assert that they did not waive the claim. We recognize that the Colorado Supreme Court addressed the doctrine of waiver in People v. Rediger, 2018 CO 32, 416 P.3d 893, and People v. Smith, 2018 CO 33, 416 P.3d 886. In Rediger, the court stated that waiver requires the “intentional relinquishment of a known right or privilege.” Rediger, ¶ 40, 416 P.3d at 902. Thus, the court concluded that the defendant there did not waive his objection to an erroneous jury instruction when there was no evidence that he intended to relinquish the relevant right or that he knew of the error. Id. at ¶¶ 42-43, 416 P.3d at 902-03. It is unclear whether this waiver analysis even applies in the present case because, unlike the criminal defendant in Rediger, the People here had no right or privilege to present evidence supporting the evidence’s admissibility.
13 need” to make alternative arguments as to the admissibility of the
challenged evidence.
¶ 24 This leads to a second consideration regarding the People’s
argument: it fails to appreciate the prosecution’s burden of proof.
At a suppression hearing, the People bear the burden of proving
either that a warrantless search or seizure was constitutional or, if
the search or seizure was illegal, that one of the exceptions to the
exclusionary rule applies. See Schoondermark, 759 P.2d at 719;
see also Outlaw v. People, 17 P.3d 150, 155 (Colo. 2001), as
modified on denial of reh’g (Feb. 5, 2001). “The amount of the
available evidence that the prosecution elects to present at a
suppression hearing is left to the district attorney’s discretion.”
Roybal, 672 P.2d at 1006. Thus, “the prosecution must be
prepared to abide the consequences of an adverse ruling when it
elects not to offer available probative evidence.” Id. As a result, the
prosecution has the opportunity to make all relevant arguments for
admissibility at the initial suppression hearing. Accordingly,
prosecutors regularly make alternative admissibility arguments
during suppression proceedings. See, e.g., People v. Hyde, 2017 CO
24, ¶ 38, 393 P.3d 962, 971 (Eid, J., concurring in the judgment)
14 (noting that, in trial court, the prosecution advanced alternative
arguments that warrantless search was permissible as search
incident to arrest or that the defendant consented).
¶ 25 Allowing the People to raise new admissibility arguments on
remand may give the prosecution “a second bite at the apple” that it
would not otherwise receive. Null, 233 P.3d at 681 (quoting Burks,
437 U.S. at 17). According to the People, they are permitted to
identify one ground for admissibility in the initial hearing. If on
appeal the denial of a motion to suppress is reversed, they may
make alternative arguments on remand. The Morehead II court
held that the trial court must exercise its discretion to determine
whether the People should be allowed to do so, based on the
particular circumstances of each case. Thus, on remand, the trial
court should weigh the three factors noted above.
¶ 26 Accordingly, the trial court must articulate its exercise of
discretion in permitting or disallowing the prosecution to present
new arguments on remand.
III. Conclusion
¶ 27 We note that Tallent raised additional contentions on appeal
concerning the trial court’s application of the inevitable discovery
15 doctrine, the trial court’s denial of his motion for a continuance,
and the constitutionality of the habitual offender sentencing
scheme. Because these contentions are unlikely to arise on
remand, we decline to address them.
¶ 28 Accordingly, the judgment is reversed, and the case is
remanded for further proceedings consistent with this opinion.
Once the trial court rules, the adversely affected party or parties
may appeal that decision.
CHIEF JUDGE BERNARD and JUDGE WELLING concur.