v. Morehead , 442 P.3d 413 ( 2019 )

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ADVANCE SHEET HEADNOTE
June 10, 2019
2019 CO 48
No. 15SC935, People v. Morehead—Searches, Seizures, and Arrests—Law of the
Case—Mandate and Proceedings in Lower Court
The People petitioned for review of the court of appeals’ judgment reversing
Morehead’s convictions for possession and possession with intent to distribute a
controlled substance, as well as seven gambling-related charges. The intermediate
appellate court held that the search of the defendant’s residence violated the Fourth
Amendment. The appellate court ordered all the evidence seized from the defendant’s
residence suppressed, and it reversed his convictions; but in addition, it mandated that
the trial court be barred from considering new arguments for admission of that
evidence on retrial.
The supreme court holds that because the scope and conduct of the suppression
hearing are within the sound discretion of the trial court, a trial court on retrial may,
except where bound by the ruling of a higher court, determine the appropriateness of
entertaining new and different motions, evidence, arguments, or theories for or against
suppression of contested evidence.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 48
Supreme Court Case No. 15SC935
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 12CA715
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Mikel Morehead.
Judgment Affirmed in Part and Reversed in Part
en banc
June 10, 2019
Attorneys for Petitioner:
Philip J. Weiser, Attorney General
L. Andrew Cooper, Deputy Attorney General
Elizabeth Rohrbough, Senior Assistant Attorney General
Denver, Colorado
Attorneys for Respondent:
Megan A. Ring, Public Defender
Meghan M. Morris, Deputy Public Defender
Denver, Colorado
CHIEF JUSTICE COATS delivered the Opinion of the Court.
JUSTICE GABRIEL dissents, and JUSTICE HOOD joins in the dissent.
¶1 The People petitioned for review of the court of appeals’ judgment reversing
Morehead’s convictions for possession and possession with intent to distribute a
controlled substance, as well as seven gambling-related charges. See People v. Morehead,
2015 COA 131, ¶ 52, __ P.3d __. As pertinent to the issue before this court, the trial
court denied the defendant’s motion to suppress evidence discovered in his home,
ruling that the officers’ initial entry of the home with the permission of the defendant’s
former girlfriend was lawful and that the evidence seized in a subsequent search was
conducted pursuant to a warrant that was supported by probable cause and was not
misleading. By contrast, the intermediate appellate court found that the defendant’s
former girlfriend lacked either actual or apparent authority to consent to the officers’
initial entry of the defendant’s home, during which they observed gambling machines.
It also declined, however, to either entertain arguments on appeal that the evidence
seized in the subsequent warranted search was not the fruit of the initial entry or that its
seizure at least came within an exception to the exclusionary rule, or to remand for
findings concerning those issues, reasoning that the prosecution was barred from
raising any such arguments for not having asserted them at any of the numerous
suppression hearings. Instead, the appellate court ordered all the evidence seized from
the defendant’s residence suppressed, and it reversed his convictions; but in addition,
after supplemental briefing, it mandated that the trial court be barred from considering
new arguments for admission of that evidence on retrial.
¶2 Because the court of appeals erred in restricting the trial court’s discretion to
entertain additional evidence or consider additional arguments concerning the seizure
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of this evidence on retrial, that portion of the judgment of the court of appeals is
reversed.
I.
¶3 Mikel Morehead was convicted of possession of a controlled substance,
possession with intent to distribute a controlled substance, and seven gambling-related
charges. Prior to trial, he moved to suppress all evidence derived from searches of his
residence by the police. Following several evidentiary hearings on his motion, the trial
court made lengthy written findings of fact and conclusions of law and denied it.
¶4 The court’s findings of fact indicated that after arresting the defendant for
domestic violence, the police were informed, in great detail, of gambling and drug
distribution being conducted by the defendant, by a woman with whom he had a
twelve-year intimate relationship and who had until recently resided with him. Earlier
on the day of the arrest, she had come back to recover her property. After hearing the
former girlfriend’s accusations but before returning to the residence with her, the police
conducted surveillance of the residence and observed what they considered to be
suspicious behavior by a person whom the girlfriend described as a former customer.
With her permission but without a warrant, the officers entered the residence with her
and observed gambling devices. Before proceeding further, they obtained a warrant,
relying only on information and observations other than what they observed inside the
residence, and upon a subsequent search, discovered and seized methamphetamine and
other evidence of the unlawful distribution of drugs and of illegal gambling.
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¶5 Indicating that the issues raised by the defendant were whether the girlfriend’s
consent was valid, whether the search warrant was supported by probable cause, and
whether in any event the affidavit was misleading by material omission, the trial court
addressed each in turn and denied the motion to suppress. More specifically, in its
lengthy written analysis and conclusions, it found both actual and apparent authority
for the girlfriend’s consent, probable cause for the affidavit based on the girlfriend’s
statements, as corroborated by police surveillance, and the absence of any material
omission, despite the affidavit’s failure to reference the fact that the police had already
entered the defendant’s residence or that the defendant was in jail at the time of the
surveillance. In the absence of finding any Fourth Amendment violation at all, the trial
court did not turn to the applicability of, or exceptions to, the exclusionary remedy for a
constitutional violation.
¶6 On appeal of the defendant’s convictions, the court of appeals reversed.
Characterizing the case as one presenting several novel questions in the law of third-
party consent, it ultimately determined that the trial court erred in finding the
prosecution had proved either actual or apparent authority, and it concluded that the
warrantless entry of the defendant’s house therefore violated the Fourth Amendment.
Without commenting on the trial court’s ruling that the subsequent search pursuant to a
warrant was itself valid, or specifying the relationship between the seized evidence and
the earlier unlawful entry of the residence, the court of appeals declined to entertain the
prosecution’s assertion that the evidence seized pursuant to this valid warrant was not
the fruit of the earlier entry at all and if it were, that it would nevertheless have been
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admissible under an exception to the exclusionary rule. The appellate court reasoned
that these arguments could not be entertained on appeal because the prosecution had
not made either of these assertions before the trial court.
¶7 The appellate court did, however, find that the prosecution failed to prove the
erroneous admission of the evidence in question was harmless beyond a reasonable
doubt and that, although an appellate court would be permitted to affirm a trial court’s
order denying suppression on any grounds supported by the record below, the record
in this case contained no evidence that the officers would have sought a warrant but for
being prompted by what they observed on their first unlawful entry. In addition, the
court of appeals requested supplemental briefing on the question whether the
prosecution should be permitted on retrial to raise arguments regarding what the court
referred to as “attenuation and exclusionary rule exceptions,” and it concluded that the
prior jurisprudence of this court barred the prosecution from doing so. In remanding
for a new trial, the court of appeals therefore mandated that the trial court not consider
new arguments for admission of the evidence seized from the defendant’s residence.
¶8 We granted the People’s petition for a writ of certiorari solely on the question
whether the court of appeals properly limited the trial court’s authority upon retrial to
consider additional arguments concerning suppression of this evidence.
II.
¶9 It has long been established that jeopardy does not bar retrial after reversal of a
defendant’s conviction for legal error, for the reason that the defendant is held to be in
“continuing jeopardy” throughout this process, reflecting the reality that until a final
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judgment on retrial, the “criminal proceedings against an accused have not run their
full course.” Bravo-Fernandez v. United States, 580 U.S. __, __, 137 S. Ct. 352, 363 (2016).
For largely the same reasons—that the judgment of the first trial has never become
final—preclusive doctrines related to res judicata and collateral estoppel are similarly
inapplicable to a retrial. See S.O.V. v. People in Interest of M.C., 914 P.2d 355, 359 & n.4
(Colo. 1996) (distinguishing res judicata and collateral estoppel from law of the case).
As a general matter, following the reversal of a criminal conviction and remand for a
new trial, neither the defendant nor the government is precluded from presenting new
evidence. United States v. Shotwell Mfg. Co., 355 U.S. 233, 235–36, 243 (1957) (“It is
undeniable, of course, that upon appellate reversal of a conviction the Government is
not limited at a new trial to the evidence presented at the first trial, but is free to
strengthen its case in any way it can by the introduction of new evidence.”); People v.
Duncan, 500 P.2d 137, 139 (Colo. 1972) (“Had we reversed the case and ordered a new
trial, the additional evidence here complained of would have been admissible on the
same issue.”). To the extent different evidence and legal arguments concerning prior
rulings in the case are not precluded by specific procedural or evidentiary rules, their
allowance is therefore governed by the law of the case doctrine.
¶10 While the so-called “mandate rule” is not without its own nuanced
interpretations, it is at least clear that the pronouncement of an appellate court on issues
presented to it, as well as rulings logically necessary to its holding, become the law of
the case. People v. Roybal, 672 P.2d 1003, 1005 (Colo. 1983). At least in the absence of
certain unusual circumstances, like newly discovered evidence, the law of the case as
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established by an appellate court must be followed in subsequent proceedings before
the trial court. See id. (citing Cache La Poudre Reservoir Co. v. Water Supply & Storage Co.,
62 P. 420 (1900)). By contrast, however, the law of the case doctrine is more flexible in
its application to reconsideration by the trial court making a decision. In this context,
law of the case “merely expresses the practice of courts generally to refuse to reopen
what has been decided,” and has been described as a “discretionary rule of practice.”
People ex rel. Gallagher v. Dist. Court, 666 P.2d 550, 553 (Colo. 1983) (quoting Messenger v.
Anderson, 225 U.S. 436, 444 (1912) and United States v. U.S. Smelting, Ref. & Mining Co.,
339 U.S. 186, 199 (1950), respectively).
¶11 In this case, the court of appeals found that the initial entry by the police into the
defendant’s residence was not justified by the consent of anyone with either actual or
apparent authority, and it therefore found that entry to have been a violation of the
Fourth Amendment. We have not accepted for further review the People’s challenge to
that ruling, and it therefore becomes the law of the case, which under normal
circumstances is binding on the trial court upon retrial.1 We have, however, accepted
for further review the court of appeals’ order that the trial court is barred from
entertaining new arguments for the admission of the evidence seized from the
1 Although not expressly raised or ruled on by the trial court, the prosecution argued in
the alternative in the appellate court that the evidence seized from the defendant’s
residence was seized with his consent. In rejecting that argument, the court of appeals
included in its rationale that any such purported consent was clearly not attenuated
from the officers’ prior illegal entry. To the extent the court of appeals has determined
this question of attenuation, it has similarly become the law of the case.
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defendant’s residence. With regard to this order, the court of appeals does not appear
to dispute the authority of a trial court to reconsider its prior rulings or entertain new
theories, evidence, or arguments upon retrial generally, but simply misconstrues the
rules of criminal procedure and prior holdings of this court to require trial courts to
hear, before denying a motion pursuant to Crim. P. 41, all alternate arguments and
evidence relevant to the motion, including even those concerning exceptions to the
exclusionary remedy for a constitutional violation, whether or not the court believes it
has already heard enough to deny the motion or whether it finds a constitutional
violation at all.
¶12 Motions to suppress evidence discovered or seized in violation of constitutional
protections against unreasonable searches are governed by Rule 41 of the Colorado
Rules of Criminal Procedure. The Rule requires that a motion to suppress be made and
heard before trial unless the defendant lacks the opportunity or knowledge of the
grounds for such a motion or the court discretionarily permits the motion at trial,
reflecting the preference in this jurisdiction for the resolution of constitutional
suppression issues in time for the parties to prepare their respective cases, and in the
event evidence is suppressed, to permit the prosecution an opportunity to appeal the
question prior to jeopardy’s having attached in the case. Whether the challenged search
was authorized by warrant or not, the defendant, as the moving party, bears the burden
of going forward with a showing that: (1) the property was illegally seized without a
warrant; (2) the warrant is insufficient on its face; (3) the property seized is not that
described in the warrant; (4) there was not probable cause for believing the existence of
8
the grounds on which the warrant was issued; or (5) the warrant was illegally executed.
People v. Cunningham, 2013 CO 71, ¶ 11, 314 P.3d 1289, 1291 (characterizing the
requirements of Crim. P. 41). Only if the defendant satisfies this burden is it then upon
the prosecution to rebut the allegations of the motion that would otherwise require
suppression. Id. at ¶ 12, 314 P.3d at 1291.
¶13 Nevertheless, we have made clear that the trial court has great discretion in
managing the suppression hearing, including prescribing the order of evidence and
related matters. The trial court “may determine the most expeditious way to proceed,
based on the motion to suppress, record documents, any stipulation of the parties, the
agreed upon or contested issues identified by the defense and the prosecution, and the
need to take additional evidence not already in the record as long as a party is not
unfairly prejudiced” by the procedure it orders. Id. at ¶ 13, 314 P.3d at 1292. We have
never suggested that a trial court must entertain all evidence and possible arguments
opposing a motion to suppress before ruling on any particular aspect of that motion or,
for that matter, before simply determining that the court is sufficiently apprised
concerning the defendant’s allegations to deny the motion in its entirety. This is
especially true with regard to entertaining argument against the applicability of, or for
exceptions to, the exclusionary remedy for a constitutional violation, when the trial
court considers itself sufficiently apprised to rule that no violation has occurred in the
first place. The scope and conduct of the suppression hearing are within the sound
discretion of the trial court, and the trial court is therefore in the best position to
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determine whether the parties are at fault for having failed to preserve arguments on a
matter the court considered to be at issue before it.
¶14 Our prior decisions declining to entertain particular arguments on appellate
review of suppression rulings or declining to remand for additional evidence or
findings in any particular case are in no way to the contrary. Our holding in Moody v.
People, 159 P.3d 611 (Colo. 2007), upon which the court of appeals heavily relied,
implied virtually nothing about the conduct of suppression hearings, much less about a
trial court’s authority to entertain new arguments or evidence on retrial after the
reversal of a conviction. In Moody we merely precluded appellate courts from
supporting a trial court’s ruling denying a suppression motion with testimony
presented later at the trial itself—evidence which was not and could not have been
considered by the trial court in ruling as it did. Id. at 614. As we indicated there, we
held as we did in that case largely to avoid prejudice to the defendant that would result
from permitting the prosecution to continue, without notice to the defendant, litigating
the suppression issue after it had already been ruled upon. Id.
¶15 Similarly, those of our prior cases relied on by the court of appeals in which we
declined to entertain, or remand for further development, arguments either
insufficiently raised or developed in the trial court, were expressly decided on the basis
of the circumstances of each of those cases and imply little if anything about the
propriety of remanding for further findings by a suppression court generally, much less
about the authority of a trial court on retrial following the defendant’s successful
challenge to an order denying suppression and his subsequent conviction. See People v.
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Null, 233 P.3d 670, 681 (Colo. 2010) (declining in an original proceeding to order that the
state be given another opportunity to attempt to prove extraordinary circumstances
justifying failure to honor Null’s request for blood test where the state failed to meet its
evidentiary burden at the hearing on the matter); People v. Syrie, 101 P.3d 219, 223 (Colo.
2004) (declining to consider on appeal newly raised argument against suppression, as to
which trial court was never given a chance to rule); People v. Quintero, 657 P.2d 948, 951
(Colo. 1983) (declining to remand for hearing on inevitable discovery where existing
record demonstrated, under the correct legal standard, the futility of that claim). While
these cases may demonstrate this court’s reluctance to consider or initiate further
proceedings concerning arguments not adequately developed below, none purports to
control the arguments that can be heard by a trial court upon retrial.
¶16 Both this court and the United States Supreme Court have, when appropriate,
ordered limited remand for further findings or the presentation of additional evidence
against suppression. See, e.g., Shotwell, 355 U.S. at 243, 245–46 (granting limited remand
for further evidence against suppression, in part because prosecution would be
permitted to offer same evidence at retrial if the Court instead reversed defendant’s
conviction); Duncan, 500 P.2d at 139 (upholding trial court’s taking new evidence on
remand for additional findings concerning suppression, noting that same evidence
would have been admissible on retrial); cf. Giordenello v. United States, 357 U.S. 480, 488
(1958) (declining to rule on newly raised argument that search would have been
constitutional even if warrant were defective or to remand for further findings, where
11
doing so would have been unfair to defendant, but expressly leaving open possibility
that the same argument could be raised by prosecution at subsequent new trial).
III.
¶17 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 (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.
¶18 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
12
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.
¶19 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.
IV.
¶20 Because the court of appeals erred in restricting the trial court’s discretion to
entertain additional evidence or consider additional arguments concerning the seizure
of this evidence on retrial, that portion of the judgment of the court of appeals is
reversed.
JUSTICE GABRIEL dissents, and JUSTICE HOOD joins in the dissent.
13
14
JUSTICE GABRIEL, dissenting.
¶21 We granted certiorari to decide whether the division below erred in concluding
that, on remand, the trial court could not consider additional arguments regarding
whether the exclusionary rule requires evidence to be suppressed. The majority now
concludes that the division erred in restricting the trial court’s discretion to entertain
such additional arguments (and also additional evidence). Maj. op. ¶¶ 2, 19–20. In so
ruling, the majority essentially concludes that whenever a court of appeals division
orders a new trial based on an improperly denied defense suppression motion, the
People are entitled to re-open the suppression hearing in order to present new evidence
and arguments that they neglected to raise in the prior hearing. Because I believe that
such a ruling is inconsistent with our settled precedent, and because this ruling will
needlessly open the door to the relitigation of innumerable issues upon any remand for
a new trial, I respectfully dissent.
I. Factual Background
¶22 In this case, the trial court conducted three evidentiary hearings on Morehead’s
motion to suppress and ultimately denied that motion in a lengthy order. In the course
of the evidentiary hearings, the People vigorously contested the motion and were given
a full and fair opportunity to present whatever evidence and to make whatever
arguments they wished to make. Although the People presented a number of
arguments against Morehead’s motion, they did not argue that the evidence discovered
during the execution of the later warrant-based search was admissible under the
attenuation doctrine or because it would have been inevitably discovered, even though
1
the evidence necessary to make these arguments was available and, indeed, was known
to the People.
¶23 As the majority notes, the People prevailed in the trial court, but on appeal, the
division reversed the trial court’s order and remanded the case for a new trial. Now,
having lost the fully and finally litigated suppression motion, the People seek to
relitigate that motion by presenting arguments that they could have advanced—but
chose not to advance—at the prior hearing. Unlike the majority, I do not believe that
our precedent affords the People such a second bite at the apple.
II. Analysis
¶24 I begin by discussing our settled precedent in this area of law, and I then apply
the pertinent legal principles to the facts of this case.
¶25 Under the law of the case doctrine, “prior relevant rulings made in the same case
are to be followed unless such application would result in error or unless the ruling is
no longer sound due to changed conditions.” People v. Dunlap, 975 P.2d 723, 758 (Colo.
1999). Although trial courts have discretion to apply the law of the case doctrine to
their own prior rulings, see id., “[t]he law of the case as established by an appellate court
must be followed in subsequent proceedings before the trial court,” People v. Roybal,
672 P.2d 1003, 1005 (Colo. 1983). This principle “serves the dual purpose of protecting
against the reargument of settled issues and assuring the adherence of lower courts to
the decisions of higher courts.” Id.
¶26 Until today, we have consistently applied these principles in the context of
suppression motions.
2
¶27 For example, in Roybal, 672 P.2d at 1004, the People brought an interlocutory
appeal from a district court order suppressing a blood alcohol test from use as evidence
in the retrial of a defendant on a vehicular assault charge. After the defendant had been
involved in a traffic accident, the police noticed that he smelled of alcohol and placed
him in a police car, where, after being advised of his Miranda rights, he gave a written
statement about the accident. Id. The police then handcuffed and transported the
defendant to the police station, where they administered a blood alcohol test. Id.
¶28 The defendant subsequently moved to suppress the statements that he had
made, arguing, among other things, that they were the products of an illegal arrest. Id.
He also filed two separate motions to suppress the evidence concerning the blood
alcohol test, asserting a due process violation because the blood samples had been
destroyed and contending that the evidence was inadmissible because he had not
consented to that test. Id.
¶29 The trial court granted the defendant’s motion to suppress his statements but
denied the motions to suppress the blood test. Id. The prosecution then filed an
interlocutory appeal in this court, and we held that the prosecution had not carried its
burden of proving probable cause to justify the arrest. Id. We therefore affirmed the
suppression of the defendant’s statements as the products of an invalid arrest and
remanded for further proceedings. Id.
¶30 On remand, the defendant moved to suppress the blood alcohol test as the fruit
of an illegal arrest. Id. at 1005. The prosecution responded by seeking to relitigate the
issue of probable cause, offering to present the testimony of witnesses who had not
3
appeared at the earlier hearing. Id. Based on the law of the case doctrine, the trial court
rejected this effort, and after a second interlocutory appeal, we affirmed. Id. at 1005–06.
In doing so, we rejected the prosecution’s argument—which mirrors one of the
arguments that the People make here—that applying the exclusionary rule and denying
a second hearing on probable cause would corrupt the truth-seeking process. Id. at
1006. We also noted that the prosecution had offered no explanation for why it did not
present probable cause witnesses at the first hearing. Id. We thus concluded, “[U]nless
suppression hearings are to be conducted ‘by installment,’ as the trial court put it, the
prosecution must be prepared to abide the consequences of an adverse ruling when it
elects not to offer available probative evidence.” Id. This was particularly true given
that the evidence that the prosecution subsequently wished to adduce was available at
the time of the first hearing. Id. at 1006 & n.7.
¶31 We noted a similar principle in the more recent case of People v. Crippen, 223 P.3d
114, 116–17 (Colo. 2010). There, the district court had suppressed evidence seized
during the execution of a search warrant at the defendant’s home, finding that the
affidavit in support of the warrant had failed to establish probable cause, and the
People appealed. Id. at 115. Although we ultimately reversed the district court’s order
on the merits, we began by noting that the People initially sought reversal based on the
good-faith exception to the exclusionary rule, an argument that the People had not
made in the district court. Id. at 116-17. We stated, “We have . . . long made clear . . .
that the good faith exception to the exclusionary rule must be asserted by the
prosecution at the suppression hearing or reliance on it will be considered waived.” Id.
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at 116. Noting that the prosecution had not alleged the applicability of the good-faith
exception in the district court and that the district court therefore had not resolved this
issue, we declined to address it on appeal. Id. at 116–17.
¶32 In my view, the principles set forth in these cases apply with equal force here.
The People concede that all of the facts and evidence necessary to advance the
arguments that they now wish to make were available to them at the time of the
previous three-day suppression hearing. Yet, the People chose not to make these
arguments, and they offer no compelling reason for their decision not to do so. In these
circumstances, I would follow the principle that we articulated in Roybal over three
decades ago: “[T]he prosecution must be prepared to abide the consequences of an
adverse ruling when it elects not to offer available probative evidence.” Roybal,
672 P.2d at 1006.
¶33 Allowing the People instead to relitigate the suppression motion at issue by
proffering new evidence and argument would improperly allow suppression hearings
to be conducted by installment, and I do not believe that our precedent countenances
such a result. Id.; see also People v. Null, 233 P.3d 670, 681 (Colo. 2010) (refusing to give
the prosecution “a second bite at the apple” when it failed to carry its burden of
showing extraordinary circumstances to justify the failure to honor a DUI defendant’s
statutory right to receive a blood test).
¶34 To hold otherwise, as the majority does today, needlessly opens the door to the
relitigation of a virtually unlimited range of issues, a result that I fear will impose an
intolerable burden on our trial courts. For example, under the majority’s rule, in any
5
case in which the prosecution prevails in overturning on interlocutory appeal an order
suppressing evidence, the defendant should be permitted to file new and potentially
serial motions to suppress, advancing different arguments in support of suppression in
the hope that one will eventually succeed. And if the defendant prevails on any such
motion, then the People would be able to file further interlocutory appeals, all resulting
in further and inordinate delays in the trial proceedings.
¶35 Likewise, it is not clear to me that the majority’s new rule would be limited to
suppression motions or even to criminal cases. If the granting of a new trial allows the
parties to “start over,” as the majority suggests, then in any case in which a new trial is
ordered, the parties should be permitted to renew every motion that the trial court had
previously decided, perhaps in front of a different district judge, in the hopes of getting
a more favorable ruling.
¶36 Such scenarios strike me as contrary to our long-settled precedent on law of the
case and on claim and issue preclusion. See Foster v. Plock, 2017 CO 39, ¶¶ 12–13,
394 P.3d 1119, 1122–23 (discussing the elements of claim and issue preclusion); Argus
Real Estate, Inc. v. E-470 Pub. Highway Auth., 109 P.3d 604, 608 (Colo. 2005) (noting that
the claim preclusion doctrine precludes the relitigation of matters that have been
decided or that could have been raised in a prior proceeding). As a result, I would not
adopt the broad rule that the majority announces today.
¶37 In reaching this conclusion, I am not persuaded by the People’s contention that a
rule barring them from relitigating on remand a suppression motion that they lost after
being given a full and fair opportunity to litigate will be problematic because it will
6
force them to raise all of their arguments the first time. I perceive no significant or
unfair burden in this. Indeed, such a requirement is fully consistent with the
above-described principles of the law of the case doctrine and of claim and issue
preclusion. Moreover, parties frequently must make strategic choices as to the
arguments that they will present in support of or in opposition to a given motion. As
we have long recognized, however, a party cannot make such strategic choices and then
seek to try an alternative strategy merely because his or her first choice proved
unsuccessful. Roybal, 672 P.2d at 1006.
III. Conclusion
¶38 The People had a full and fair opportunity to litigate Morehead’s suppression
motion, and they have not shown either changed circumstances or any evidence that
they did not know and reasonably could not have discovered prior to the suppression
hearing. In these circumstances, our settled precedent leads me to conclude that the
People should not be permitted to relitigate the suppression motion at issue in order to
present arguments that they could have presented when the matter was previously and
fully heard.
¶39 Accordingly, I would affirm the judgment of the division below, albeit on
different grounds, and therefore respectfully dissent.
I am authorized to state that JUSTICE HOOD joins in this dissent.
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