COLORADO COURT OF APPEALS                                      2017COA75


Court of Appeals No. 13CA1516
Arapahoe County District Court Nos. 11CR1503 & 12CR1029
Honorable Kurt A. Horton, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Matthew Wayne George,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                 Division III
                          Opinion by JUDGE WEBB
                        Bernard and Dunn, JJ., concur

                           Announced June 1, 2017


Cynthia H. Coffman, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Karen M. Gerash, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1     If a police officer conducts a warrantless search based on

 consent — but a court suppresses evidence obtained because the

 consent was invalid — does the law of the case doctrine prevent the

 officer from lawfully obtaining the same evidence by applying to a

 different judge for a search warrant, this time based on grounds

 other than consent, and without using the fruits of the earlier

 unlawful search in the application? If not, does the officer forfeit

 that opportunity by failing to tell the second judge about the earlier

 suppression order? These are novel questions in Colorado and have

 been addressed infrequently elsewhere.

¶2     A jury convicted Matthew Wayne George of multiple offenses

 arising from his sexual contact with two young girls whom he met

 on the Internet. On appeal, he asserts two errors:

      data obtained by forensically examining a GPS device police

       found in his car after conducting a warrantless search based

       on third-party consent should have been suppressed, despite

       later issuance of a warrant to search the device; and

      the cases involving the two victims, which had been separately

       charged, were improperly joined for trial.




                                  1
 The Attorney General concedes that George preserved both issues

 for appeal.

¶3    We reject George’s law of the case and forfeiture arguments,

 conclude that the GPS evidence was admissible because the

 warrant represented an independent source, and further conclude

 that the trial court did not abuse its discretion in joining the cases.

 Therefore, we affirm.

                             I. Background

¶4    According to the prosecution’s evidence, George met then

 fourteen-year-old A.R. on an Internet dating website. She testified

 to several sexual encounters with him at various locations, some of

 which involved force. Later that year, then twelve-year-old G.D.

 also met George on a dating website. She testified about a sexual

 encounter with him in his car. The victims were strangers.

¶5    George admitted having met the victims on the Internet but

 challenged their credibility as to any sexual contact having

 occurred. He did not testify.




                                  2
      II. The Trial Court Did Not Err in Denying George’s Motion to
         Suppress the Fruits of a Second Search of his GPS Device

¶6      Following George’s arrest and inability to post bond, he was

 evicted from his apartment. Then the landlord had George’s car

 towed from the premises. The towing company kept the car at its

 impound lot. The lead investigator obtained the towing company’s

 consent to search the car.

¶7      In it, he found a GPS device. Instead of seeking a warrant to

 search the device, the investigator obtained the company’s consent

 to examine it. Data obtained from a forensic examination showed

 movements generally consistent with the victims’ testimony about

 their meetings with George.

¶8      George moved to suppress, challenging both the search of his

 car and the examination of the GPS device. The trial court ruled

 that the towing company’s consent to search the car was valid1 but

 that its consent to search the GPS device was not. The court also

 rejected the prosecution’s argument that the investigator conducted

 the search in good faith. It suppressed evidence obtained from

 examination of the device.


 1   George has not appealed this ruling.

                                  3
¶9     But the story does not end here. Rather than appealing the

  suppression order under section 16-12-102(1), C.R.S. 2016, the

  prosecution directed the investigator to seek a search warrant for

  the GPS device — which remained in police custody — from a

  different magistrate. The investigator did not specifically refer to

  any data obtained from examination of the GPS device in the

  warrant application. Nor did he disclose the earlier suppression

  ruling. After the warrant was issued, the investigator had the

  device forensically reexamined, apparently yielding the same

  results.

¶ 10   To no one’s surprise, George again moved to suppress. He

  argued that under the law of the case doctrine, the prosecution

  could not dodge the prior suppression ruling by belatedly seeking a

  search warrant. The prosecution responded that the warrant

  triggered the independent source doctrine. The prosecution also

  requested the court to reconsider its earlier ruling on consent.

  George replied that because the fruits of the unlawful search had

  been used in the warrant application — and even if not, had

  motivated the investigator to seek the warrant — the second search

  was not truly independent.


                                   4
¶ 11   The court held a hearing. The investigator testified that had

  the towing company not given consent based on asserted ownership

  of the car and its contents, including the GPS device, he would have

  sought a search warrant. E-mails predating the consent search

  corroborated this testimony. He also testified that the warrant

  application did not refer to the fruits of the initial examination of

  the device, but did include background information from a report

  that he had prepared following the consent search.

¶ 12   The trial court declined to reconsider its earlier suppression

  ruling. Then the court denied the motion to suppress based on the

  independent source doctrine. In doing so, it found that the decision

  to seek the warrant had not been based on the fruits of the initial

  unlawful search and information from that search had not been

  presented to the magistrate as a basis for seeking the warrant.

                     A. Standard of Review and Law

¶ 13   Four familiar principles provide a legal framework.

¶ 14   First, review of a trial court’s suppression order presents a

  mixed question of fact and law. People v. Hyde, 2017 CO 24, ¶ 9. A

  reviewing court defers to the trial court’s findings of fact that are




                                   5
  supported by the record, but it assesses the ultimate legal effect of

  those facts de novo. Id.

¶ 15   Second, the exclusionary rule is a judicially created remedy

  designed primarily to deter unlawful searches and seizures by law

  enforcement officials. People v. Morley, 4 P.3d 1078, 1080 (Colo.

  2000). Under this rule, “evidence obtained in violation of the

  Fourth Amendment and article II, section 7 of the Colorado

  Constitution” must usually be suppressed. Id.

¶ 16   Third, the independent source doctrine is an exception to the

  exclusionary rule. According to this doctrine, “the

  unconstitutionally obtained evidence may be admitted if the

  prosecution can establish that it was also discovered by means

  independent of the illegality.” Id. (quoting People v. Schoondermark,

  759 P.2d 715, 718 (Colo. 1988)). It applies “[s]o long as a later,

  lawful seizure is genuinely independent of an earlier, tainted one.”

  Id. at 1081 (alteration in original) (quoting Schoondermark, 759 P.2d

  at 719). Like a suppression order, this doctrine presents a mixed

  question of fact and law. See People v. Cruse, 58 P.3d 1114, 1120

  (Colo. App. 2002).




                                  6
¶ 17    Fourth, another exception may arise “when, despite an

  otherwise invalid warrant, a trial court nonetheless admits evidence

  because the officer(s) that executed the warrant had a reasonable

  good faith belief that the search was in accord with the Fourth

  Amendment.” People v. Cooper, 2016 CO 73, ¶ 10. “Colorado

  codified the good faith exception to the exclusionary rule at section

  16-3-308(4), C.R.S. (2016).” Id. at ¶ 11.

                              B. Application

       1. The Legality of the Initial Search is Not Properly Before Us

¶ 18    We begin with the Attorney General’s argument that the data

  obtained from the initial warrantless search of the GPS device

  should not have been suppressed because the search was

  conducted in good faith. Were we to agree, the validity of the

  second search would be moot, ending further analysis.

¶ 19    According to the answer brief, “it was reasonable for the

  investigator to believe that the manager of the towing company had

  the authority to consent to the search.” The answer brief goes on to

  assert that the Attorney General “may defend the trial court’s denial

  of a motion to suppress on any ground supported by the record.”

  See People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006) (“On


                                   7
  appeal, a party may defend the trial court’s judgment on any

  ground supported by the record, whether relied upon or even

  considered by the trial court.”).

¶ 20   George responds that we should not address this argument

  because it was “litigated and rejected” by the trial court in granting

  the first suppression motion and the prosecution failed to seek

  interlocutory review of that ruling under section 16-12-102(2). We

  agree with George, although for a somewhat different reason.

¶ 21   True enough, “even if a consenting third party lacks actual

  authority, if a police officer reasonably believes that such third

  party has authority to consent to a search, the search is not

  unconstitutional.” People v. Upshur, 923 P.2d 284, 287 (Colo. App.

  1996). But in the first suppression hearing, the trial court rejected

  this very argument:

             When it became apparent there was
             uncertainty as to . . . legal authority to consent
             to a search of the GPS . . . the investigator
             could and should have consulted legal counsel
             or simply requested a warrant from a
             disinterested magistrate.

¶ 22   The prosecution could have appealed this ruling under section

  16-12-102(2) and C.A.R. 4.1, which together provide for



                                      8
  “interlocutory appeal[s] to challenge certain types of adverse

  suppression rulings, including the suppression of evidence obtained

  from a search that the trial court deemed unlawful.” People v.

  Zuniga, 2016 CO 52, ¶ 11. Review must be sought “within 14 days

  after the entry of the order complained of.” C.A.R. 4.1(b). No such

  appeal was taken.

¶ 23   “Appeals by the prosecution are permitted in this state

  pursuant to . . . [s]ection 16-12-102.” People v. Hinchman, 40 Colo.

  App. 9, 13, 574 P.2d 866, 869 (1977), aff’d in part and rev’d in part,

  196 Colo. 526, 589 P.2d 917 (1978). And “interlocutory appeals

  authorized by statute are permissive rather than mandatory.”

  People v. Moore, 226 P.3d 1076, 1091 (Colo. App. 2009) (quoting

  People v. Richardson, 58 P.3d 1039, 1047 (Colo. App. 2002)). Thus,

  mere failure to file an interlocutory appeal under section 16-12-

  102(2) does not automatically preclude an appeal under section 16-

  12-102(1), once final judgment has been entered.

¶ 24   But the procedural question before us goes beyond timing.

  Because appeals taken by the prosecution “are strictly limited by

  law,” People v. Martinez, 22 P.3d 915, 919 (Colo. 2001) (quoting

  People v. Tharp, 746 P.2d 1337, 1339 (Colo. 1987)), the


                                  9
  requirements of section 16-12-102(1) must still be met. This

  section is narrow. It permits the prosecution to appeal “any

  decision of a court in a criminal case upon any question of law.”

  § 16-12-102(1). Combining these principles, because an appeal

  under this section “is necessarily limited to questions of law only,” it

  “does not give the [prosecution] a basis upon which to challenge the

  trial court’s assessment of the evidence.” Martinez, 22 P.3d at 919

  (dismissing appeal by People that implicated not purely legal

  questions, but factual questions whose resolution fell within

  province of trial court).

¶ 25   By any fair reading, the trial court rejected the good faith

  argument at the first suppression hearing. Thus, the Attorney

  General is appealing that ruling, not — as in Aarness, 150 P.3d at

  1277 — merely “defend[ing] the trial court’s judgment” to suppress

  at the second hearing on a different ground.2 With Aarness beyond



  2 No notice of appeal or cross-appeal has been filed. Under C.A.R.
  4(b)(2), “[u]nless otherwise provided by statute or Colorado appellate
  rule, when an appeal by the state or the people is authorized by
  statute, the notice of appeal shall be filed in the Court of Appeals
  within 49 days after the entry of judgment or order appealed from.”
  In addition, “C.A.R. 4(b) mandates that both parties submit their
  notices of appeal during the same . . . period. The rule does not

                                   10
  reach, the Attorney General’s argument can raise only a question of

  law. And therein lies the problem.

¶ 26   Unless the parties have stipulated to the facts, a ruling on a

  motion to suppress is not a pure question of law under section

  16-12-102(1). To the contrary, “[w]hen ruling on a motion to

  suppress, a trial court ‘must engage both in factfinding — a specific

  inquiry into the historical phenomena of the case — and law

  application, which involves the application of the controlling legal

  standard to the facts established by the evidence.’” People v. King,

  16 P.3d 807, 812 (Colo. 2001) (quoting People v. Quezada, 731 P.2d

  730, 732 (Colo. 1987)); see also People v. Gabriesheski, 262 P.3d

  653, 658 (Colo. 2011) (“While in limine evidentiary rulings may

  involve the construction of statutes or rules, or some similar

  question of law, a trial court’s decision to admit or exclude evidence

  is not, in and of itself, an appealable question of law . . . .”).

¶ 27   Examining People v. Welsh, 176 P.3d 781, 791 (Colo. App.

  2007), sounds the death knell for the Attorney General’s position.

  There, the Attorney General had cross-appealed under section



  provide for sequential submissions, as is provided for civil cross-
  appeals.” People v. Gilmore, 97 P.3d 123, 128 (Colo. App. 2003).

                                    11
  16-12-102(1) two trial court evidentiary rulings. In addressing one

  of the rulings, the division explained that while “evidentiary rulings

  are matters committed to a trial court’s discretion . . . [s]uch rulings

  may nevertheless be appealable under [section] 16-12-102(1) if the

  trial court made its ruling based on an assertedly erroneous

  interpretation of the law.” Id. at 791.

¶ 28   But unlike in Welsh, here the Attorney General does not

  challenge the trial court’s consent ruling based on a question of

  law. Instead, the answer brief sets forth factual arguments about

  consent to explain why the court erred in finding a lack of good

  faith. For example, “the officer did make reasonable inquiries and

  conducted independent legal research to confirm the towing

  company’s authority to consent.”

¶ 29   For these reasons, the validity of the initial search is not

  properly before us.

                 2. The Law of the Case Does Not Apply

¶ 30   Next, we turn to George’s argument that the trial court should

  have suppressed data obtained from the second examination of the

  GPS device because the first suppression order




                                   12
             was not only law of the case; it was an
             unchallenged order that applied the
             exclusionary rule. The prosecutor did not
             appeal the ruling and the trial court did not
             reconsider it. An exception to the exclusionary
             rule cannot be established by an end-run
             around an order finding its applicability.

  This argument fares no better than the Attorney General’s attempt

  to relitigate the validity of the initial search.

¶ 31   To be sure, under the law of the case doctrine, “[p]rior relevant

  rulings made by the trial court in the same case are generally to be

  followed.” People v. Roybal, 672 P.2d 1003, 1005 n.5 (Colo. 1983).

  This rule makes sense because “courts generally . . . refuse to

  reopen what has been decided.” 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 it “protects litigants from

  the expenditure of time and money involved in the reargument of

  settled issues.” Super Valu Stores, Inc. v. Dist. Court, 906 P.2d 72,

  79 (Colo. 1995).

¶ 32   As to appellate rulings, the law of the case doctrine means

  that “[t]rial courts have no discretion to disregard” them. McGillis

  Inv. Co., LLP v. First Interstate Fin. Utah LLC, 2015 COA 116, ¶ 58

  (alteration in original) (quoting Hardesty v. Pino, 222 P.3d 336, 339


                                     13
  (Colo. App. 2009)). Otherwise, this doctrine has been described as

  a discretionary rule of practice when applied to a court’s power to

  reconsider its own prior rulings. Id. And George seeks to invoke it

  based on only the trial court’s earlier ruling.

¶ 33   Still, George relies on Roybal, 672 P.2d 1003, to argue that the

  trial court’s initial ruling suppressing the contents of the GPS

  device is the law of the case.

¶ 34   In Roybal, on the prosecution’s interlocutory appeal, the

  supreme court upheld the suppression of written statements given

  by the defendant because probable cause did not exist for his

  arrest. Id. at 1004. After that decision, the defendant moved to

  suppress the results of a blood alcohol test that also flowed from his

  arrest. The trial court held that the prosecution was precluded

  from presenting additional evidence on probable cause for the

  arrest and suppressed the test results.

¶ 35   On a second interlocutory appeal, the supreme court again

  affirmed. The court explained that trial court rulings “logically

  necessary to the holding of the appellate court” — such as the

  initial probable cause ruling — “become the law of the case.” Id. at

  1005. It also cautioned that “the prosecution must be prepared to


                                   14
  abide the consequences of an adverse ruling when it elects not to

  offer available probative evidence.” Id. at 1006.

¶ 36   Similar to this case, Roybal involved a prior suppression

  ruling. But for two reasons, Roybal does not carry the weight that

  George places on it.

¶ 37   First, in Roybal the trial court’s suppression ruling was

  necessary to the holding of the supreme court, which had to be

  followed in later proceedings. Here, no appellate court has ruled on

  the suppression issue.

¶ 38   Second, unlike in Roybal, the issues decided in the two

  suppression hearings differed. The first hearing involved the

  validity of a warrantless search based on consent; the second

  hearing turned on whether the second search was valid because the

  warrant represented an independent source. See People v.

  Washington, 179 P.3d 153, 166 (Colo. App. 2007) (finding that law

  of the case did not apply where “the legal issue decided by the trial

  court and the factual issue to be resolved by the jury were

  different”), aff’d, 186 P.3d 594 (Colo. 2008). In other words, at the

  second hearing the prosecution was not seeking to introduce

  additional evidence on consent or, for that matter, good faith. And


                                  15
  because the warrant had not yet been sought, the prosecution’s

  independent source argument in the second hearing would have

  been premature at the first hearing. See United States v. Dexter,

  165 F.3d 1120, 1124 (7th Cir. 1999) (“The law of the case doctrine

  should not be read so rigidly that it precludes a party from raising

  an argument that it had no prior opportunity to raise.” (quoting

  Bagola v. Kindt, 131 F.3d 632, 637 (7th Cir. 1997))).3

¶ 39   Comparing the following two cases shows why the law of the

  case doctrine provides George no refuge.

¶ 40   In State v. Parry, 390 P.3d 879, 882-86 (Kan. 2017), the

  defendant moved to suppress evidence obtained during a

  3 Nor does collateral estoppel help George. See State v. Johnson,
  191 Wash. App. 1008 (2015), 2015 WL 6873473, at *2, *3
  (unpublished opinion) (The court addressed whether a trial court
  ruling “on the validity of the first warrant was binding on any
  subsequent application for a warrant to search the same records.”
  In declining to apply collateral estoppel, the court explained that
  “the warrant the court determined to be invalid was a different
  warrant from the warrant that later authorized the search of the cell
  phone and seizure of the data.”); see also State v. Seager, 571
  N.W.2d 204, 207 (Iowa 1997) (considering situation where the
  prosecution had dismissed murder charges against the defendant
  based on an invalid search warrant, and after a second warrant was
  obtained, new charges were filed; on appeal, the supreme court
  declined to apply collateral estoppel to the warrant issue because
  the latter case involved the validity of the second warrant, whereas
  the issue decided in the earlier proceeding was the validity of the
  first warrant).

                                  16
  warrantless search. The trial court rejected the prosecution’s

  consent argument. On the prosecution’s interlocutory appeal, the

  suppression ruling was upheld.

¶ 41   The prosecution then dismissed the first case without

  prejudice and refiled the charges. Again, the defendant moved to

  suppress. This time, the prosecution argued that exigent

  circumstances existed or, alternatively, that the evidence inevitably

  would have been discovered. Id. at 881. But the trial court still

  sided with the defendant.

¶ 42   Undaunted, the prosecution took another interlocutory appeal.

  The Kansas Court of Appeals upheld the second suppression ruling

  based on law of the case, and the supreme court affirmed. It agreed

  with the court of appeals that “[t]he State wanted a do-over on the

  issue of the constitutionality of the police search of [the defendant’s]

  residence . . . so it could assert arguments it failed to raise during

  the first hearing.” Id. at 885 (quoting State v. Parry, 358 P.3d 101,

  104 (Kan. Ct. App. 2015)). The supreme court further agreed that

  “[t]he State wants to garner another hearing in the [trial] court to

  make additional arguments on the issue. Law of the case aims to

  prevent precisely that sort of repetitive airing of points already


                                   17
  decided in the [trial] court and reviewed on appeal.” Id. (quoting

  Parry, 358 P.3d at 104).

¶ 43   In contrast, the court in United States v. Hanhardt, 155 F.

  Supp. 2d 840, 845-53 (N.D. Ill. 2001), declined to apply the law of

  the case doctrine. There, the police conducted a warrantless search

  of the defendant’s briefcase, and a trial court granted his motion to

  suppress all evidence obtained from the briefcase. This ruling was

  upheld on appeal. Then the police sought and obtained a warrant

  to search the briefcase, which had remained in police custody.

  Again, the defendant argued that the evidence must be suppressed

  — this time because the appellate court ruling upholding the first

  suppression order was law of the case.

¶ 44   Applying the independent source doctrine, the Hanhardt court

  held that evidence discovered in the second search of the

  defendant’s briefcase based on the warrant was admissible, despite

  suppression of the same evidence in the earlier case. Id. at 849.

  The court declined to apply law of the case because “the issues in

  this motion are not the same matters that were presented to the

  [appellate court].” Id. at 855. Specifically, the appellate decision

  “decided the admissibility of evidence obtained from [the


                                   18
  defendant’s] briefcase during the warrantless . . . search,” whereas

  “[t]he issues here are . . . the applicability of the independent source

  doctrine and the admissibility of the same evidence found during

  the search executed pursuant to . . . [a] warrant. Id. at 853.

¶ 45   Returning to the case before us, had the prosecution

  attempted to relitigate consent, or to advance new reasons to

  support the warrantless search — as in Parry — the question would

  be closer. But our case is more like Hanhardt. The warrant at

  issue in the second suppression hearing raised a different issue —

  independent source — that was not and could not have been raised

  at the first suppression hearing.

¶ 46   In sum, we decline George’s invitation to apply the law of the

  case doctrine. Our conclusion leaves George with only the

  argument that the warrant was not an independent source of the

  evidence. This argument also falls short.

         3. The Warrant Was Based On an Independent Source

¶ 47   The independent source doctrine raises two questions. First,

  was “the decision to seek the warrant . . . prompted by what was

  observed during the initial entry”? Schoondermark, 759 P.2d at

  719. Second, was “information obtained during that entry . . .


                                   19
  relied upon by the magistrate in issuing the warrant”? Id.

  Addressing each question in turn, we answer both “no.”

  a. The Decision to Seek the Warrant Was Independent of the Fruits
                    of the Earlier Unlawful Search

¶ 48   The first inquiry focuses on whether law enforcement “would

  have sought the warrant even if they had not” obtained useful

  information from the earlier unlawful search. Id.

¶ 49   The trial court found, with record support, that had the towing

  company not asserted ownership of the GPS device and given its

  consent to examination, the investigator would have sought a

  warrant to search the device. This finding supports the court’s

  conclusion that the investigator did not later seek a warrant based

  on the fruits of the warrantless search. Also, it avoids the need for

  a remand to address whether “the officers would have sought the

  warrant even absent the information gained by the initial illegal

  entry.” Id.

¶ 50   Still persisting, George asserts that the investigator was not

  motivated by an independent source because the warrant was

  “intended [as a] curative measure to circumvent a valid court

  order”; and in any event, the warrant application “was deceptive to



                                  20
  the issuing judge to whom the fact of the suppression order was not

  disclosed.”

                               i. Motive

¶ 51   Somewhat attractive at first blush, George’s motive argument

  ultimately misses the mark because it misapprehends the

  independent source doctrine. See People v. Pahl, 169 P.3d 169, 175

  (Colo. App. 2006) (The independent source doctrine focuses on

  whether the warrant “was based upon information independent

  from what was observed during the illegal search.”).

¶ 52   True, absent the suppression order, the investigator would

  have had no reason to seek a warrant. After all, until the evidence

  was suppressed, the investigator had relied on the towing

  company’s consent. But this observation only gets George half way.

¶ 53   While the suppression order prompted the investigator to seek

  a warrant, the objective of avoiding the consequences of that order

  does not equate to an improper motive arising from the fruits of the

  unlawful search. Otherwise, mere existence of such an order would

  invariably swallow the independent source exception. This is so

  because if an earlier — and unlawful — search bore no fruit, a




                                 21
  defendant would never move to suppress, and law enforcement

  would never seek to develop an independent source.

¶ 54   A similar assertion was rejected in Hanhardt, 155 F. Supp. 2d.

  at 852. The court explained that the “proffered reason for seeking a

  warrant, the outcome of the suppression litigation . . . , is a valid

  reason to seek a warrant, and is not based on anything learned

  from the [unlawful] search.” Id.; see also United States v. Johnson,

  994 F.2d 980, 987 (2d Cir. 1993) (Applying the independent source

  doctrine to illegally seized tapes where “[o]nce the district court

  expressed reservations about the legality of the review of the tapes,

  the government realized that a warrant was necessary.”).

¶ 55   We agree with this reasoning and decline to hold that the

  decision to seek a warrant because of a prior suppression order

  alone precludes the warrant from being an independent source.

                               ii. Deception

¶ 56   As to George’s second argument, everyone would agree that

  the investigator did not tell the magistrate who issued the warrant

  about the prior unlawful search or the suppression order. Although

  the record does not tell us why, does the investigator’s failure to do




                                   22
  so vitiate the second search? This question is closer and the few

  courts to have addressed it are divided.

¶ 57   On the one hand, State v. Krukowski, 100 P.3d 1222, 1223

  (Utah 2004), addressed “whether police officers seeking a search

  warrant are obligated to disclose to the magistrate a prior illegal

  entry onto the premises to be searched.” There, the defendant

  successfully “moved to suppress th[e] evidence on the ground that

  the police officers had not informed the magistrate of the prior

  illegal entry when seeking the warrant.” Id. The supreme court

  reversed, holding:

             [P]olice officers are not required to disclose
             prior illegal entries when seeking a search
             warrant; such entries are simply not material
             to a magistrate’s determination of probable
             cause, and the potentially prejudicial effect of
             disclosing to the magistrate a prior illegal entry
             outweighs any conceivable benefit to be
             obtained from it.

  Id. at 1225. It noted the “importance of candor in the search

  warrant process,” but explained that a

             [p]olice officers’ duty to be candid to
             magistrates when seeking warrants does not
             impose an affirmative duty on them to disclose
             matters immaterial to a determination of
             probable cause. Here, the prior illegal entry
             does not bear upon probable cause, which


                                   23
             must be established on the basis of
             circumstances existing and evidence observed
             independent of the illegal entry.

  Id. at 1226.

¶ 58   On the other hand, in United States v. Whitworth, 856 F.2d

  1268, 1281-82 (9th Cir. 1988), the court held:

             We do not believe it is proper for law
             enforcement officials to withhold information
             regarding prior searches of the same premises
             from magistrates considering warrant
             applications. If “taint” is feared, the better
             practice is to advise the magistrate that an
             earlier consent search had been conducted and
             provide the reasons why a warrant is still
             required. The affiant could affirmatively state
             that nothing obtained in the first search is
             being relied on in seeking the warrant. At that
             point, the magistrate can properly evaluate the
             situation and determine whether probable
             cause still exists.

  (Emphasis added.) Still, the court concluded “[o]n these facts, the

  failure to disclose the limited consent search could not have

  affected the decision to issue the warrant. The government’s

  application was extensive and did not rely on any of the evidence

  seized earlier.” Id. at 1282.4



  4 See also Cruse v. State, 584 P.2d 1141, 1145-46 (Alaska 1978)
  (“Although we hold that the second search was not tainted by the
  assumed illegality of the first intrusion, we believe it is necessary to

                                   24
¶ 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



  address the investigator’s failure to inform the district court that a
  search had already been conducted. Appellant argues that if prior
  police misconduct can be concealed from the court, and thereby
  protect evidence which might otherwise be inadmissible, there will
  be no deterrent against illegal searches. We agree that the
  concealment of relevant material from the judge issuing the warrant
  cannot be condoned. However, we cannot find that such
  concealment vitiated the validity of the warrant in this case.”).

                                     25
  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:

            [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.


                                  26
  Murray v. United States, 487 U.S. 533, 537 (1988) (alteration in

  original) (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)).

¶ 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


                                  27
  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.

¶ 66   Instead, we turn to whether anything in the warrant

  application was derived from the fruits of the prior unlawful search.

   b. The Warrant Application Did Not Include Information from the
                   Fruits of the Unlawful Search

¶ 67   George fails to identify anything specific in the warrant

  application to show that the investigator improperly presented the

  magistrate with information derived from the initial examination of

  the GPS device. To the contrary, the investigator’s affidavit

  included the following information, which was wholly independent

  of the unlawful search:

             This Affiant is aware that GPS units are used
             to assist in driving directions when traveling


                                   28
             across country as well as to assist in finding
             locations when moving to a new town. Based
             on this Affiant’s training and experience, as
             well [as] the knowledge this Affiant has
             regarding the investigations involving both
             victims . . . it is likely that [defendant] used
             this vehicle to travel to meet with each victim.
             [Defendant] could have used the . . . GPS
             device . . . to assist him in finding those
             locations.

¶ 68   The affidavit also explained that “while data [from GPS devices]

  can be deleted[,] a forensic examination can often recover

  information previously stored/searched which could be of

  evidentiary value in the investigation of this case.” This description

  is generic, unique to neither George’s device nor its contents.

¶ 69   Not easily deterred, George argues that the warrant

  application was not independent because the investigator “directly

  cop[ied] the information . . . from his first report.” He is correct, but

  only to a point.

¶ 70   This report was prepared after the initial unlawful search. But

  including in the affidavit information from the first report is

  unsurprising because the report contained background from the

  entire investigation. As the investigator explained during the

  second suppression hearing:



                                   29
             Q: That warrant did it include any information
             that you had gained from the first search of
             the GPS unit?

             A: . . . [I]t’s very difficult to write something
             . . . when you have other knowledge, so I tried
             my best not to include things that were based
             on the first search. I did use cut and paste
             because the words are going to be the same.
             Dates are going to be the same. The time
             frames are going to be the same. My e-mails
             are going to be the same. Nothing has
             changed there. What I tried to avoid was any
             knowledge I gained from the search itself.

  See Morley, 4 P.3d at 1081 (applying independent source doctrine

  where “the affidavit supporting the warrant relied only on facts

  obtained during the undercover operation”).5

¶ 71   Instead, the proper question is whether the affidavit included

  information from the report that related to the fruits of the unlawful

  search. This question is one of law, which we answer by examining

  the affidavit to determine whether any information derived from the

  unlawful search was included, and if it was, whether by

  5 See Schaffer, 739 P.2d at 327-28 (“Since the prior search warrant
  was the subject of a suppression motion which was granted,
  appellants assert that . . . [the officer’s] knowledge as to the location
  of appellants’ residence . . . should not be used as a basis for
  securing a later search warrant. We disagree. Appellants have
  cited no authority for the proposition that an officer cannot
  participate in a second search warrant if the officer engaged in a
  prior invalid search warrant.”).

                                   30
  disregarding the unlawfully obtained information, the remaining

  lawfully obtained information establishes probable cause. People v.

  Sprowl, 790 P.2d 848, 849 (Colo. App. 1989); see Cruse, 58 P.3d at

  1121 (“[T]he question whether illegally obtained information

  included in a warrant affidavit affected the issuing court’s decision

  is a question of law.”).

¶ 72   Doing so, we do not reach the second tier of this analysis

  because we are unable to identify any information from the

  unlawful search in the affidavit. Nor, as indicted above, does

  George direct us to any such information. As a result, we

  necessarily conclude that none of the “information obtained during

  [the unlawful search] was relied upon by the magistrate in issuing

  the warrant.” People v. Diaz, 53 P.3d 1171, 1177 (Colo. 2002)

  (quoting Schoondermark, 759 P.2d at 719).

¶ 73   Therefore, we uphold the trial court’s decision not to suppress

  evidence from the GPS device.




                                  31
       III. The Trial Court Did Not Abuse Its Discretion in Joining the
                                Cases for Trial

¶ 74     Before trial, the prosecution moved to join the cases involving

  A.R. and G.D. George objected. After a hearing, the trial court

  granted the motion.

¶ 75     The court found that evidence from each case would be

  admissible in the other under section 16-10-301, C.R.S. 2016, and

  CRE 404(b) because “the other act evidence indicates more than

  bad character, namely common plan or scheme; intent/mental

  state; identity; motive/absence of mistake; and lack of recent

  fabrication.” It also found “no persuasive showing that the evidence

  in one case is substantially stronger than in the other case so as to

  preclude consolidation,” and “no persuasive showing that a jury will

  be unable to separate the facts and legal theories applicable to each

  offense or that consolidation prevents [George] from testifying in one

  separate case and not the other.”

¶ 76     On the first day of trial, George renewed his objection and

  moved to sever the cases. He argued that because A.R. had

  “admitted to the prosecution that she had lied to law enforcement

  regarding the sexual encounter with [George] in the public park,”



                                    32
  joining the cases would cause the jury to “overlook the significant

  credibility issues with A.R.” Again, the court denied the motion. At

  the end of the trial, it instructed the jury to consider each charge

  separately from all other charges.

                       A. Standard of Review and Law

¶ 77   “Subject to the relief afforded in Crim. P. 14, a trial court may

  order two or more criminal complaints to be tried together if the

  offenses could have been joined in a single complaint.” People v.

  Gregg, 298 P.3d 983, 985 (Colo. App. 2011) (citing Crim. P. 13).

  Two or more offenses may be joined in a single complaint if, among

  other things, they are part of a common scheme or plan. Id. (citing

  Crim. P. 8(a)(2)); see also People v. Williams, 899 P.2d 306, 313

  (Colo. App. 1995).

¶ 78   A trial court’s decision to join separate charges for trial is

  reviewed for an abuse of discretion. Gregg, 298 P.3d at 985. The

  trial court does not abuse its discretion unless the consolidation

  causes actual prejudice to the defendant. Id.

¶ 79   As relevant here, the defendant cannot show prejudice where

  evidence of each offense would have been admissible in separate

  trials. Id. at 986; see People v. Curtis, 2014 COA 100, ¶ 16 (“Sexual


                                   33
  assault offenses may be joined if the evidence of each offense would

  be admissible in separate trials.”). Under CRE 404(b) and section

  16-10-301(3), the trial court may admit evidence of other acts to

  establish, for example, motive, opportunity, intent, preparation,

  common plan or scheme, knowledge, identity, or absence of mistake

  or accident.

                              B. Application

¶ 80   George argues that evidence related to A.R. and G.D. “was not

  sufficiently similar” to be admissible in separate trials to establish a

  common plan or scheme under CRE 404(b) and section

  16-10-301(3).6 But the trial court rejected this very argument,

  finding that

             [George] contacts young females over the
             internet, requests personal information about
             them, offers to date or establish a relationship
             with them, then meets with them in a
             semi-public area near the child’s home at

  6 George also disputes admissibility to show intent, identity,
  absence of mistake, or fabrication. However, because we uphold
  the trial court’s ruling on common plan or scheme, we need not
  address these arguments. See People v. Copeland, 976 P.2d 334,
  337 (Colo. App. 1998) (“Because the trial court’s ruling concerning
  admissibility to prove motive is not manifestly arbitrary,
  unreasonable, or unfair . . . we need not determine whether the
  evidence was admissible for [opportunity, plan, or identity].”), aff’d,
  2 P.3d 1283 (Colo. 2000).

                                   34
               which time he moves quickly to isolate them
               and establish a sexual relationship.

  The court created a chart (see infra Appendix) that set forth the

  many similarities and few differences between the two victims.

¶ 81      Then the court explained that “although there are some

  differences between the way the alleged sexual contacts occurred

  with regard to A.R. and G.D. the acts are such that they are

  naturally to be explained as individual manifestations of a general

  plan or course of conduct.” It further held that the evidence was

  “logically relevant to show [George’s] tendency to commit an act in a

  particular way, as opposed to his general character, and the

  evidence makes it at least somewhat more probable that [George]

  committed the crimes alleged.”

¶ 82      George does not dispute the similarities found by the trial

  court. Instead, to argue against common plan, he emphasizes the

  dissimilarities between the victims noted by the trial court. But this

  emphasis ignores the larger point: “[C]ommon plan evidence does

  not depend entirely on the similarity between the charged and

  uncharged acts to be admissible.” People v. Williams, 2016 COA 48,

  ¶ 31.



                                    35
¶ 83   Examples of permissible dissimilarity abound. In “sexual

  assault cases, such evidence is admissible even when the other

  misconduct involved different victims.” Williams, 899 P.2d at 312.

  Nor need common plan evidence “be part of one ongoing

  transaction.” People v. Casper, 641 P.2d 274, 275 (Colo. 1982).

  Rather, “[i]n order for two or more acts to constitute a scheme, they

  must have a nexus with each other from which a continuous

  scheme or common design can be discerned.” People v. Close, 867

  P.2d 82, 87 (Colo. App. 1993), disapproved of on other grounds by

  Bogdanov v. People, 941 P.2d 247 (Colo. 1997), amended, 955 P.2d

  997 (Colo. 1997).

¶ 84   The trial court acted well within its discretion in finding that

  evidence related to A.R. and G.D. met this broader standard.7 As

  the chart shows, the victims were nearly the same age when George

  contacted them, he met them in the same way and near the same

  time, and he initiated personal contact with them for the same

  purpose. See People v. Jones, 2013 CO 59, ¶ 27 (“[T]he evidence

  7 George argues “the trial court did not find that evidence of one
  case was necessary to prove a material issue in the other.” But he
  cites no authority adopting this standard. Rather, the test is
  whether the evidence would have been admissible in the separate
  trials.

                                  36
  could lead to the inference that Jones had a common plan, scheme,

  or design to have sexual relations with white women who had been

  drinking without their consent late at night while holding their

  mouths closed.”); People v. Janes, 942 P.2d 1331, 1336 (Colo. App.

  1997) (finding evidence of prior sexual assault convictions

  admissible to show common plan despite seven-year time difference

  because of the level of similarity); People v. Delgado, 890 P.2d 141,

  143-44 (Colo. App. 1994) (noting that while evidence of common

  plan typically requires “a nexus or relationship . . . a series of acts

  of sufficient similarity” may also allow such an inference).

¶ 85   Because George has not shown prejudice, we conclude that

  the trial court properly joined the trials involving A.R. and G.D.

                              IV. Conclusion

¶ 86   The judgment is affirmed.

       JUDGE BERNARD and JUDGE DUNN concur.




                                   37
                              Appendix

Similarity              11CR1503            12CR1029
Child’s sex             Female              Female
Child’s age             14                  12
Source of contact       On-line Mocospace   On-line INVU.com
Child’s age promptly    Yes                 Yes
disclosed to
perpetrator
Adjustment              Yes                 Yes
problems in child’s
family
Proximity in time of    February/March      Approximately
first contact           2011                March-June 2011
Perpetrator             Yes                 Yes
communicated with
the child over the
internet
Perpetrator             Yes                 Yes
communicated with
the alleged victim by
text
Perpetrator             Yes                 Yes
identified himself as
“Matthew George”
Perpetrator             Yes                 Yes
requested the
alleged victim “go
out with him” or be
his girlfriend
Perpetrator             Yes                 Yes
requested photos or
“naughty” – type
photos from the
alleged victim
Perpetrator             Yes                 Yes
requested
information on
child’s physical

                               38
attributes
Proximity in time of     April 3, 2011          Sometime in March-
first meetings                                  June 2011
Perpetrator arranged     Yes (park)             Yes (cemetery and
for first meeting at a                          elementary school
semi-public area                                after school hours)
near the alleged
victim home
Perpetrator arranged     Yes                    Yes
for meeting with no
other persons
present
Encounter quickly        Yes                    Yes
becomes sexual
Nature of sexual         Included fondling of   Included fondling of
contact                  breasts and kissing    breasts and kissing
Perpetrator inquired     Yes                    Yes
about going to
perpetrator’s home
or the alleged
victim’s home


Dissimilarity            11CR1503               12CR1029
Perpetrator provided     Yes                    No
the alleged victim a
cell phone to use to
contact him
Number of sexual         Multiple               One
contacts
Nature of sexual         Included sexual        Included digital
contacts                 intercourse and oral   penetration and
                         sex                    forced masturbation
                                                of the perpetrator
Perpetrator took         Yes                    No
photos of the alleged
victim




                                    39
