August 21, 2019

Colorado Court of Appeals: Law of the Case Doctrine Does Not Prohibit Officer from Requesting Warrant for Previously Illegally Obtained Evidence

The Colorado Court of Appeals issued its opinion in People v. George on Thursday, June 1, 2017.

Sexual Contact—Minor—Search—Suppression—Warrant—Independent Source Doctrine—Law of the Case Doctrine—Joinder—CRE 404(b)—C.R.S. § 16-10-301(3).

George was arrested on charges related to sexual encounters with underage girls A.R. and G.D. Following George’s arrest and inability to post bond, he was evicted from his apartment. The landlord had George’s car towed from the premises to an impound lot. The lead investigator obtained the towing company’s consent to search the car and instead of seeking a warrant, obtained the company’s consent to examine the GPS device in the vehicle. Data obtained from a forensic examination of the GPS device showed that George’s movements were generally consistent with the victims’ testimony about their meetings with him. George moved to suppress, challenging the car search and the examination of the GPS device. The court suppressed evidence obtained from examination of the device. Rather than appealing the suppression order, the prosecution directed the investigator to seek a search warrant for the GPS device from a different magistrate. When applying for the warrant, the investigator did not specifically refer to data obtained from examination of the GPS device nor disclose the suppression ruling. The warrant was issued and the GPS device was reexamined. George again moved to suppress. The court denied the motion to suppress based on the independent source doctrine. The court found that that the decision to seek the warrant had not been based on the fruits of the initial unlawful search and information from the search had not been presented to the magistrate as a basis for seeking the warrant. A jury convicted George of multiple offenses arising from his sexual contact with two young girls.

On appeal, the Attorney General argued that the data obtained from the initial warrantless search of George’s GPS device in his vehicle should not have been suppressed because the search was conducted in good faith. Because the Attorney General did not challenge the trial court’s consent ruling based on a question of law, the validity of the initial search was not properly before the court of appeals.

George argued on appeal that the trial court should have suppressed data obtained from the second examination of the GPS device because the first suppression order was the law of the case and an unchallenged order that applied the exclusionary rule. Here, had the towing company not asserted ownership of the GPS device and given its consent to examination, the investigator would have sought a warrant to search the device. Therefore, the investigator did not later seek a warrant based on the fruits of the warrantless search. Additionally, the investigator did not specifically refer to any data obtained from examination of the GPS device in the warrant application. Thus, the warrant at issue in the second suppression hearing raised a different issue—independent source—that was not and could not have been raised at the first suppression hearing, and the law of the case doctrine does not apply.

George also argued that the trial court erred in joining the cases involving A.R. and G.D. over his objection. Here, evidence related to A.R. and G.D. was sufficiently similar to establish a common plan or scheme under CRE 404(b) and C.R.S. § 16-10-301(3). Therefore, evidence from each case would be admissible in the other. Because George did not show prejudice, the trial court properly joined the trials involving A.R. and G.D.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

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