by Anthony Accurso

The Supreme Court of Colorado denied the People’s appeal when it determined the prosecution failed to carry its burden in establishing the independent source doctrine applied where police obtained a second legitimate search warrant after the first was invalidated; the evidence in question obtained as a result of the first invalidated warrant remained in the prosecution’s possession; and the prosecution failed to show that the seizure of the evidence in connection with the second valid warrant was genuinely independent of the earlier, tainted search.

Asha Adolphus Thompson was arrested in connection with the shooting death of B.T. at the Blue Sky Motel in Lakewood, Colorado. Police received an anonymous tip claiming Thompson was in a specific room at a different motel, so police obtained an arrest warrant and warrant to search his motel room.

The search warrant authorized the police to seize cellphones and other electronic devices and provided that any seized cellphones “may be downloaded and examined either manually or forensically.”

After the cellphone found in Thompson’s motel room was sent to the forensic lab for examination (but prior to its contents being downloaded), the Colorado Supreme Court decided People v. Coke, 461 P.3d 508 (Colo. 2020). In Coke, the Court announced that warrants allowing police to search all the contents of a cellphone as well as any data indicating ownership or possession are insufficiently “particular” and thus violate the particularity requirement of the Fourth Amendment. Thus, the Court ruled that such warrants are defective. 

Two months later, the forensic lab unlocked the cellphone, downloaded its entire contents, and submitted the materials to Thompson prior to trial. Thompson moved to suppress the materials on the grounds that the initial search warrant lacked the necessary particularity under the Fourth Amendment and Coke. In response, the police obtained a second search warrant, which complied with the particularity requirements outlined in Coke.

At the suppression hearing, the prosecution conceded that the first warrant was deficient. However, the prosecution asked the trial court to apply both the good faith doctrine and the independent source doctrine to the exclusionary rule. The court rejected the prosecution’s arguments because (1) the initial warrant lacked the necessary particularity even compared to pre-Coke standards, and (2) the prosecution failed to establish the second warrant was sufficiently independent of the first.

The People filed an interlocutory appeal under C.A.R. 41, asking the Colorado Supreme Court to overturn the trial court’s ruling on the suppression motion.

Under the Fourth Amendment to the U.S. Constitution, generally, any search or seizure by law enforcement must be justified by a search warrant. Searches, and especially searches of cellphones, must “particularly describe the place to be searches.” Carpenter v. United States, 138 S. Ct. 2206 (2018). “General warrants which permit general, exploratory searches through a person’s belongings, are prohibited.” Andresen v. Maryland, 427 U.S. 463 (1976).

In general, materials seized in violation of the Fourth Amendment are subject to exclusion from evidence. People v. Morley, 4 P.3d 1078 (Colo. 2000). The purpose of the exclusionary rule is to deter unlawful searches and seizures by law enforcement. Id. Because exclusion is a remedy fashioned by the U.S. Supreme Court, it has also created some exceptions. Brigham City v. Stuart, 547 U.S. 398 (2006).

The independent source doctrine is one such exception where “unconstitutionally obtained evidence may be admitted if the prosecution can establish that it was also discovered by means independent of the illegality.” People v. Countermark, 759 P.2d 715 (Colo. 1988). As long as “a later, lawful seizure is genuinely independent of an earlier, tainted one (which may well be difficult to establish where the seized goods are kept in the police’s possession) there is no reason why the independent source doctrine should not apply.” Murray v. United States, 487 U.S. 533 (1988). And “[t]his would not be the case if the agents’ decision to seek the warrant was prompted by what they had seen during the initial [search], or if information obtained during that [search] was presented to the Magistrate and affected his decision to issue the warrant.” Id. The prosecution bears the burden of proving by a preponderance of the evidence that the independent source doctrine applies. People v. Schoondermark, 759 P.2d 715 (Colo. 1988).

The Court noted that in its opposition to Thompson’s suppression motion the prosecution said law enforcement sought to “refresh the prior warrant” after the first was invalidated by Coke. Yet the prosecution gave no legal authority supporting this action. Further, the prosecution provided no evidence to establish the independence of the second warrant from the first – other than parroting the legal requirement from Murray, the Court stated. The Court approvingly cited the trial court’s statement that “the People cannot cure a defective warrant merely by obtaining a new warrant after the People had found what they considered to be helpful information.”

In upholding the trial court’s ruling, the Court stated “were we to adopt the People’s position, we would render meaningless the exclusionary rule in a case like this one because the People could always just seek a second warrant.” Thus, the Court held that the People failed to carry its burden to establish application of any exemption to the exclusionary rule.

Accordingly, the Court affirmed the trial court’s grant of Thompson’s suppression motion. See: People v. Thompson, 2021 Colo. LEXIS 121 (2021). 

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