CO: Cell phone SW’s lack of particularity here not cured by second warrant; independent source state’s burden and not proved

The state obtained a search warrant for defendant’s cell phone which they later conceded lacked particularity. They sought a second warrant to attempt to cure, but they failed to put on proof at the hearing that the independent source rule applied. The trial court’s suppression order is affirmed. People v. Thompson, 2021 CO 15, 2021 Colo. LEXIS 121 (Feb. 22, 2021):

[*P27] Nor are we persuaded by the People’s apparent contention that after obtaining evidence based on a defective warrant, they may cure the defect simply by procuring a new warrant and “obtaining” the evidence a second time (notwithstanding the fact that they had the evidence in their possession the entire time), without showing that the later seizure was genuinely independent of the earlier, tainted one. Such an argument ignores the independent source doctrine’s requirement of a subsequent search independent of an earlier, unlawful one, and 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. The independent source doctrine does not extend that far. Nor do the cases on which the People rely support their position.

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