CO: Prior illegal third party consent search of GPS in car unbeknownst to def wasn’t law of the case barring subsequent SW on independent evidence

Defendant was arrested for a sex offense, and, while in jail, his landlord kicked him out and his car was towed away and impounded by the police. The police used the towing company’s consent to search the GPS in his vehicle which corroborated the victims. Defendant moved to suppress the search of the GPS and prevailed. The state then got a search warrant for the GPS from a different judge without mentioning the prior suppression order and basing the request on independent evidence. The search warrant was issued and defendant moved to suppress again. This one was denied. The first suppression order based on a consent was not law of the case to the second search warrant based on an independent showing of probable cause. Yes, it would have been better to have told the issuing magistrate about the prior suppression order, but it isn’t fatal here. People v. George, 2017 COA 75, 2017 Colo. App. LEXIS 698 (June 1, 2017):

[*59] By any reckoning, the better practice would be for the requesting officer to tell the issuing magistrate about a prior unlawful search or suppression order. Even so, the failure to do so does not necessarily mean that the fruits of the earlier unlawful search impermissibly motivated law enforcement. And the independent source doctrine looks no deeper into motive.

[*60] In issuing the warrant, the magistrate was unaware of the prior unlawful search or suppression order. Of course with such knowledge, the magistrate might well have examined the warrant application more rigorously. See Krukowski, 100 P.3d at 1227 (“[P]rior illegal entry . . . is material to a trial court’s assessment of the officer’s credibility and the independent source doctrine in the context of a motion to suppress.”).

[*61] When conducting the suppression hearing, however, the trial court knew the whole story. One might wonder whether concealment from the magistrate suggests broader mendacity of the investigator. Even if so, the court could have considered concealment in assessing the investigator’s testimony that the fruits of the unlawful search had not motivated him to seek the warrant. Indeed, defense counsel argued during the second hearing that the investigator was intentionally circumventing the trial court by submitting the warrant to the uninformed magistrate.

[*62] Despite all of this, George argues that allowing law enforcement to seek a warrant after an adverse suppression ruling “promotes the very misconduct [the independent source doctrine] is designed to discourage.” But the independent source doctrine does not discourage police misconduct. Rather, looming large over this issue is the objective of the independent source doctrine. It has been described as follows: Murray v. United States, 487 U.S. 533, 537, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988) (alteration in original) (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984)).

[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred …. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.

[*63] Still, some may see following the independent source doctrine as at odds with the deterrence that results from applying the exclusionary rule. After all, were the Fourth Amendment to categorically deny law enforcement a second bite at the apple, officers might be more cautious; here, the investigator might have sought a warrant rather than relying on the consent of a third party who did not share George’s privacy interest. But in Murray, the Supreme Court struck the balance differently. And the Supreme Court rejected the argument that the independent source doctrine “applies only to evidence obtained for the first time during an independent lawful search.” Id.

[*64] Nor should one hastily conclude that falling back on the independent source doctrine comes without a price. Law enforcement agents relying on the independent source doctrine risk suppression of evidence, and they increase their burden from one of probable cause to the “much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it.” Id. at 540. So, the availability of this do-over does not necessarily immunize law enforcement from the consequences of earlier incautious action.

[*65] In the end, before the towing company gave its consent to examine the GPS device, the investigator was prepared to seek a warrant. Treating his mistaken belief in consent and the resulting suppression order as forever barring the investigator from doing so would place him in a worse position. Under binding Supreme Court precedent, that we cannot do.

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