CO: Cell phone was searched first without a warrant then with; remanded for determination whether independent source rule applies

Defendant’s cell phone was searched without a warrant, and Riley applies. Whether the later search warrant for the cell phone was valid via the independent source rule has inadequate findings, so the case is remanded for further findings. People v. Omwanda, 2014 Colo. App. LEXIS 1569 (September 25, 2014)*:

[*P27] Here, whether the redacted affidavit supports probable cause is a close question. Yet, we must award warrants a preference “even in doubtful or marginal cases.” Nelson, ¶ 49 (internal quotation marks omitted). Therefore, we conclude that the redacted affidavit established a sufficient link between the phone and criminal activity.

[*P28] Because we have concluded that the redacted affidavit supported probable cause for the issuance of the warrant, the admissibility of the evidence under the independent source doctrine turns on whether the initial search of the three text messages affected the officer’s decision to seek the search warrant. This question, unlike the review of a redacted affidavit, requires factual findings. See Murray v. United States, 487 U.S. 533, 543 (1988). It is the trial court’s function to make such findings; consequently, we must remand the case for further proceedings. Id., see Nelson, ¶ 55.

[*P29] Specifically, the trial court should determine whether the information obtained from the search of the phone before the warrant was issued affected the officer’s decision to obtain a warrant. See Nelson, ¶ 55; see also Schoondermark, 759 P.2d at 719. The court should allow the parties an opportunity to supplement the record with additional evidence. See Nelson, ¶ 55. The People bear the burden of proving by a preponderance of the evidence that the independent source doctrine renders the evidence admissible. See id.

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