CO: Law of the case doesn’t bar consideration of undecided arguments to support a search

Law of the case isn’t always completely binding but usually is, and it certainly permits the trial court to consider other issues not decided in the original appeal against suppression of the evidence. People v. Morehead, 2019 CO 48, 2019 Colo. LEXIS 515 (June 11, 2019):

[*P17] It is clear from the record below that the evidence in question was seized pursuant to a warrant supported by the statements of the defendant’s former girlfriend and police surveillance of the defendant’s house alone, without reference to any observations made inside the defendant’s residence. Because the intermediate appellate court did not reverse the trial court’s finding that the affidavit for search was supported by probable cause and was otherwise valid, the evidence in question would be suppressible only to the extent it was first discovered during the officers’ unlawful entry into the defendant’s residence and its later seizure pursuant to the valid warrant was not wholly independent of that earlier unlawful entry. See Murray v. United States, 487 U.S. 533, 542, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988); People v. Schoondermark, 759 P.2d 715, 718-19 (Colo. 1988). Although no observations from the earlier entry were relied on to establish probable cause for the warrant, the subsequent search could nevertheless be considered wholly independent of the unlawful entry only upon a specific finding that it was not in fact prompted by what the officers had seen during that initial entry. Murray, 487 U.S. at 542; Schoondermark, 759 P.2d at 719. Because the trial court found the earlier entry to be lawful, it was never faced with the question whether the officers would have pursued a warrant but for their initial entry and observations.

[*P18] Unlike prior cases in which it has been apparent that the argument raised on appeal was clearly at issue but not advanced at the suppression hearing, or in which the record of the suppression hearing adequately disposed of the new argument despite its never having been explicitly asserted, the question whether the officers would have pursued a warrant to search the defendant’s residence without being prompted to do so by what they observed during the initial, unlawful entry is very much a distinct and live issue. Faced with virtually the identical question, the Supreme Court in Murray and this court in Schoondermark remanded to give the trial court an opportunity to make a specific finding on that question. Murray, 487 U.S. at 543-44; Schoondermark, 759 P.2d at 719-20.

[*P19] Where the question before the appellate court is not whether a limited remand should be ordered in lieu of reversal but rather whether the question of officer motivation may be entertained on retrial, the law of the case doctrine places that determination squarely within the discretion of the trial court. Especially where its ruling on the suppression motion at the first trial has been disapproved, it is for the trial court, except where bound by the ruling of a higher court, to determine the appropriateness of entertaining new and different motions, evidence, arguments, or theories by either party.

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