     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                              March 26, 2020

                                2020COA46

No. 16CA1319, People v. Pettigrew — Constitutional Law —
Fourth Amendment — Searches and Seizures — Exclusionary
Rule — Independent Source Exception

     A division of the court of appeals considers what identifying

information must be included in a search warrant authorizing the

search of a cell phone to meet the Fourth Amendment’s

particularity requirement. The division concludes that the search

warrant in this case — identifying one phone that was registered to

a known phone number and that belonged to a known person —

was sufficiently particular under the Fourth Amendment.
COLORADO COURT OF APPEALS                                      2020COA46


Court of Appeals No. 16CA1319
Adams County District Court No. 14CR234
Honorable Francis C. Wasserman, Judge
Honorable Donald S. Quick, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

William Scott Pettigrew,

Defendant-Appellant.


                             JUDGMENT AFFIRMED

                                   Division VII
                           Opinion by JUDGE BERGER
                           Fox and Lipinsky, JJ., concur

                           Announced March 26, 2020


Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Casey J. Mulligan, Alternate Defense Counsel, Boulder, Colorado, for
Defendant-Appellant
¶1    William Scott Pettigrew appeals his convictions for pandering

 of a child and tampering with a witness or victim. He contends that

 two errors require reversal of his convictions. First, he claims that

 the trial court’s statements made to the jury during voir dire

 regarding reasonable doubt lowered the prosecution’s burden of

 proof. Second, he asserts that evidence of the contents of his cell

 phone was admitted in violation of the Fourth Amendment. This

 second claim raises a question of first impression in Colorado:

 What identifying information must be included in a search warrant

 authorizing the search of a cell phone to meet the Fourth

 Amendment’s particularity requirement?

¶2    We conclude that none the statements made by the trial court

 lowered the prosecution’s burden of proof. We also conclude that

 the independent source exception to the Fourth Amendment

 exclusionary rule applied to the evidence found in Pettigrew’s phone

 and that the search warrant sufficiently identified the phone to be

 searched. Thus, we affirm the judgment.

                           I.   Background

¶3    Pettigrew met the seventeen-year-old victim in 2013. After

 interacting in person, over the phone, and by text, they began a


                                   1
 relationship. Text messages that Pettigrew sent to the victim

 supported the prosecution’s theory that Pettigrew encouraged the

 victim to become a prostitute. The victim’s mother contacted the

 police after seeing sexually explicit photographs on the victim’s

 phone.

¶4    After obtaining information from the victim, her cell phone,

 and her mother, the police arrested Pettigrew inside his house

 without a warrant.

¶5    The police interrogated Pettigrew after they transported him to

 the police station.1 During the interrogation, Pettigrew showed the

 police certain text messages on his cell phone. The police already

 had possession of the phone; they had seized it after arresting

 Pettigrew. Later that day, the police released Pettigrew because of

 concerns by the arresting officers’ superiors that the arrest might

 have been unlawful because it was effected without a warrant.

 Although the police released Pettigrew, they kept his phone.

¶6    The next day, on the detective’s application, a magistrate

 issued a warrant for Pettigrew’s arrest, and he was rearrested.


 1Pettigrew does not raise any Fifth Amendment challenges on
 appeal.

                                   2
  Approximately a week later, the magistrate issued a search warrant

  for the cell phone, which, as noted, had remained in police custody.

¶7     Pettigrew was charged with soliciting for child prostitution,

  pandering of a child, sexual exploitation of a child, attempted

  inducement of child prostitution, and tampering with a witness or

  victim.

¶8     Pettigrew moved to suppress all of the information obtained

  from his cell phone. He argued that the officers unlawfully arrested

  him when they entered his home without a warrant and that the

  seizure and later forensic examination of his cell phone were fruits

  of the unlawful arrest. The trial court denied the motion,

  concluding that exigent circumstances justified Pettigrew’s arrest.

¶9     The jury convicted Pettigrew of pandering of a child and

  tampering with a witness or victim but acquitted him of the other

  charges.

¶ 10   On appeal, in an unpublished remand order, a different

  division of this court rejected the trial court’s conclusion that

  exigent circumstances justified Pettigrew’s warrantless arrest.

  People v. Pettigrew, (Colo. App. No. 16CA1319, Feb. 27, 2019)

  (unpublished order). That division remanded to the trial court to


                                     3
  determine whether the independent source exception to the

  exclusionary rule justified the admission of the evidence found on

  the phone.2

¶ 11   The prior division identified two questions that governed

  whether the independent source doctrine applied. First, was the

  decision to seek the search warrant prompted by information

  learned as a result of the unlawful arrest? Second, did any

  information gained from the illegal search affect the magistrate’s

  decision to issue the search warrant? The division answered the

  second question in the negative. To do so, the division redacted

  from the warrant affidavit all of the information that it believed was

  discovered as a result of the unlawful arrest, and then concluded

  that the warrant affidavit still established probable cause for the

  issuance of the warrant. As to the first question, because issues of


  2 Neither the prior division nor the trial court determined whether
  the police searched Pettigrew’s phone, within the meaning of the
  Fourth Amendment, when he showed the police certain text
  messages during custodial questioning. Even if a consensual
  search occurred, it remains true that the arrest was unlawful and
  the examination of the phone by the police, consensual or not,
  flowed directly from the unlawful arrest. Similarly, neither the prior
  division nor the trial court evaluated whether the seizure of the
  phone, as opposed to Pettigrew’s warrantless arrest, was justified by
  exigent circumstances. Because of our disposition, neither do we.

                                    4
  fact remained, the division remanded the case to the trial court to

  determine if the information obtained from the search of the phone

  before the warrant was issued affected the detective’s decision to

  seek the search warrant.

¶ 12     On remand, the trial court (with a different judge presiding)

  found that the detective’s decision to seek the search warrant was

  not prompted or impacted by the evidence gathered as a result of

  the illegal arrest. The court therefore concluded that the evidence

  was admissible under the independent source exception. The

  appeal was then recertified to this court.

                                II.   Analysis

             A.   The Trial Court’s Statements and Instructions
                              on Reasonable Doubt

¶ 13     Pettigrew asserts that five statements made by the trial court

  to the jury during voir dire constituted reversible error.3 Pettigrew

  did not preserve any of these claims of error.

¶ 14     A jury “instruction that lowers the prosecution’s burden of

  proof below reasonable doubt constitutes structural error and

  requires automatic reversal.” Johnson v. People, 2019 CO 17, ¶ 8.



  3   The prior division did not address the voir dire claims.

                                       5
  But not every statement made by a trial court to a jury constitutes

  an instruction. See Deleon v. People, 2019 CO 85, ¶ 15; People v.

  Knobee, 2020 COA 7, ¶¶ 72-76 (Dailey, J., concurring in part and

  dissenting in part). Thus, if we determine that the court made an

  improper statement that lowered the burden of proof during voir

  dire, we must then determine if it constituted an instruction. If so,

  reversal is required. Johnson, ¶ 8.

¶ 15   However, if the statements were not instructions, we evaluate

  under the plain error standard because Pettigrew did not preserve

  these claims. See Cardman v. People, 2019 CO 73, ¶ 18; Knobee,

  ¶¶ 72-76 (Dailey, J., concurring in part and dissenting in part).

  “[P]lain error occurs when there is (1) an error, (2) that is obvious,

  and (3) that so undermines the fundamental fairness of the trial

  itself as to cast serious doubt on the reliability of the judgment of

  conviction.” Cardman, ¶ 19.

                    1.    “Innocent” and “Not Guilty”

¶ 16   During voir dire, the court told prospective jurors:

             Innocent would mean that the defendant didn’t
             do anything, all right? He was in China at the
             time of this event okay? He just – he’s
             innocent, all right? But that’s not how we look
             at trials in this country. It’s – trials in this


                                     6
              country are a test of the prosecution’s
              evidence. So even if you listen to the evidence
              and you start to think about it, you say, well,
              you know, he might have done it, or he could
              have done it, there’s some evidence there that
              would suggest he’s involved in this, if it doesn’t
              convince you beyond a reasonable doubt, then
              you have to find him not guilty.

¶ 17   These statements did not lower the prosecution’s burden of

  proof, so we need not determine if they were instructions. Nothing

  in the court’s statements directed or even suggested that the jury

  could convict Pettigrew on anything less than proof beyond a

  reasonable doubt. Despite any possible confusion, the court

  correctly informed prospective jurors that they had to find Pettigrew

  not guilty if they were not convinced of his guilt beyond a

  reasonable doubt. And immediately prior to the quoted statements,

  the court correctly told the jury that guilty “means that the

  prosecution’s evidence has convinced you beyond a reasonable

  doubt that the defendant committed one or all of the offenses

  charged.”

¶ 18   Also, it is uncontested that the jury was correctly instructed

  on the burden of proof, under the pattern jury instructions.

  Pettigrew does not contend that those instructions were defective in



                                      7
  any way. Courts have repeatedly recognized that the risk of

  lowering the burden of proof is mitigated when the jury is otherwise

  correctly instructed. People v. Estes, 2012 COA 41, ¶ 12.

                  2.    “Beyond a Shadow of a Doubt”

¶ 19   Next, the trial court explained to the venire that legal concepts

  are not the same as they appear on television:

            [B]eyond a shadow of doubt. Sounds really
            good, doesn’t it? There’s no such thing. In
            law, there is no such thing as a burden of
            proof beyond a shadow of doubt. There’s no
            proof beyond all doubt, every doubt or any
            doubt. And that’s because, as [prospective
            juror] pointed out, you can have vague,
            speculative or imaginary doubts about all
            kinds of things, but they aren’t reasonable,
            okay?

            So we don’t – the burden is not an impossible
            burden on the prosecution, but it’s a very, very
            high burden.

¶ 20   There is no need to determine whether these statements

  constituted instructions because they did not misstate the law or

  lower the prosecution’s burden of proof. It is not reversible error for

  a court to distinguish the fictional “beyond a shadow of a doubt”

  standard from the constitutionally mandated beyond a reasonable

  doubt standard. Knobee, ¶ 37.



                                     8
                        3.    Perry Mason and CSI

¶ 21   After crediting the television show “Perry Mason” for the

  popularity and origin of the “beyond a shadow of a doubt” phrase,

  the court summarized an episode of the show “CSI” and made the

  following comments:

             And the reason I emphasize that is because,
             you know, that’s television. That’s great for
             TV, but it’s not real life, okay? And I am
             always concerned that when jurors go back
             into the jury room after they’ve heard all the
             evidence and they start to deliberate on a case
             and somebody says, well, you know, I saw on
             television where the police were able to do this.
             And that’s not – that’s bad, okay? Because
             this isn’t television. This is real life, all right?
             And we don’t rely on what we saw on TV to
             decide cases in a live courtroom.

¶ 22   These statements, whether instructions or not, did not affect

  the prosecution’s burden of proof. They accurately informed the

  prospective jurors that they were required to apply the law given to

  them by the court, not by television shows.

                        4.   Birthday Hypothetical

¶ 23   The court continued its attempt to explain reasonable doubt to

  potential jurors:

             THE COURT: I can throw out maybe your birth
             certificate is wrong, maybe your mother wasn’t


                                      9
            aware of the date. But I would suggest to you,
            [prospective juror], on November 18, you are
            going to recognize that as your birthday, aren’t
            you?

            PROSPECTIVE JUROR: Yes, sir.

            THE COURT: Because I haven’t created a
            reasonable doubt, have I?

            THE PROSPECTIVE JUROR: No, sir.

            THE COURT: That’s the important thing. It’s
            not to remove all doubt, every doubt, every
            vague or imaginative doubt. The burden is on
            the prosecution to remove all reasonable
            doubt.

¶ 24   Even if portions of these statements were potentially

  confusing, they did not lower the burden of proof because the last

  quoted sentence was a correct statement of the law: it is the

  prosecution’s burden to prove the defendant’s guilt beyond a

  reasonable doubt.

       5.   “We Try People When There’s Evidence to Support the
                                Charges”

¶ 25   During voir dire, the court had the following colloquy with a

  prospective juror:

            PROSPECTIVE JUROR: I’m wondering why
            there’s no child pornography charges.

            THE COURT: Well, you will just have to listen.
            Maybe there’s not enough evidence to charge


                                   10
            him with that. I don’t know what the evidence
            is going to be.

            ....

            THE COURT: I understand. But, first of all,
            you know, we try people when there’s evidence
            to support the charges, okay?

            THE PROSPECTIVE JUROR: Right.

            THE COURT: You know, and right now he’s
            presumed innocent because there’s no
            evidence against him, so I can’t speak to why
            he’s not being charged with other offenses.

¶ 26   This colloquy is more problematic than the preceding

  statements because the court aligned itself with the prosecutor by

  using the pronoun “we.” Estes, ¶ 10. The court also improperly

  implied that there was at least some evidence to support the

  charges against Pettigrew when it said that “we try people when

  there’s evidence to support the charges.” See id.

¶ 27   But any improper inferences as to Pettigrew’s guilt were

  corrected by the court’s last statement — “right now he’s presumed

  innocent because there’s no evidence against him.” Even if these

  statements were instructions, they must be analyzed in context, not

  isolation. Johnson, ¶ 14. And accurate written instructions on

  reasonable doubt and the presumption of innocence mitigated the


                                   11
  potential for any misunderstanding. Estes, ¶ 12. Thus, these

  statements did not lower the prosecution’s burden of proof.

¶ 28   Our conclusion that none of the trial court’s statements

  require reversal does not constitute approval of them. Indeed, this

  court, the Colorado Supreme Court, and the United States Supreme

  Court have repeatedly disapproved of similar voir dire statements

  made by trial courts because they jeopardize otherwise valid

  convictions and almost never bring additional clarity to the difficult

  concept of reasonable doubt. See People v. Vialpando, 2020 COA

  42, ¶¶ 85–87 (collecting cases).

                    B.   Independent Source Exception

¶ 29   Pettigrew next contends that the trial court on remand erred

  when it found that the independent source exception to the

  exclusionary rule authorized admission of the evidence obtained

  from his cell phone.

                              1.     The Law

¶ 30   The United States and Colorado Constitutions prohibit

  unreasonable searches and seizures. U.S. Const. amend. IV; Colo.

  Const. art. II, § 7.




                                     12
¶ 31      “[E]vidence derived from or acquired by the police through

  unlawful means, such as an illegal search, is inadmissible in

  criminal prosecutions” under the fruit of the poisonous tree

  doctrine. People v. Triplett, 2016 COA 87, ¶ 55; see also Wong Sun

  v. United States, 371 U.S. 471, 484 (1963). Even so, illegally seized

  evidence may be admissible if an exception to the exclusionary rule

  applies.

¶ 32      One exception is the independent source rule, which permits

  “the unconstitutionally obtained evidence [to] be admitted if the

  prosecution can establish that it was also discovered by means

  independent of the illegality.” People v. Nelson, 2012 COA 37, ¶ 54

  (quoting People v. Schoondermark, 759 P.2d 715, 718 (Colo. 1988)).

  The prosecution bears the burden of proving by a preponderance of

  the evidence that the independent source exception applies. Id. at

  ¶ 55.

¶ 33      This exception raises two questions. First, was the decision to

  seek the search warrant prompted by evidence obtained during the

  initial illegal arrest? Schoondermark, 759 P.2d at 719. Second, did

  any information gained from the illegal arrest affect the magistrate’s




                                      13
  decision to issue the search warrant? People v. George, 2017 COA

  75, ¶ 47.

¶ 34   A warrant must be supported by probable cause, and it must

  describe with particularity “the place to be searched, and the

  persons or things to be seized.” Groh v. Ramirez, 540 U.S. 551, 557

  (2004) (quoting U.S. Const. amend. IV). “The requirement that

  warrants shall particularly describe the things to be seized . . .

  prevents the seizure of one thing under a warrant describing

  another.” Marron v. United States, 275 U.S. 192, 196 (1927).

¶ 35   A trial court’s ruling on a motion to suppress presents a mixed

  question of fact and law. People v. Hyde, 2017 CO 24, ¶ 9. “We

  defer to the trial court’s findings of fact that are supported by the

  record, but we assess the legal effect of those facts de novo.” Id.

                   2.    Decision to Seek the Warrant

¶ 36   Pettigrew argues that the trial court erred on remand in

  concluding that the police’s decision to obtain a search warrant was

  not tainted by any of the illegally obtained information. Specifically,

  he argues that the detective’s testimony indicated that his decision

  to seek the warrant was tainted by information obtained from the




                                    14
  illegal arrest and seizure of the phone. But the record supports the

  trial court’s findings and conclusion.

¶ 37   The record demonstrates that the police knew that Pettigrew

  was texting the victim about child prostitution before the unlawful

  arrest and seizure of Pettigrew’s phone. Before the police ever

  contacted or arrested Pettigrew, they knew it was highly likely that

  Pettigrew’s phone contained evidence of criminal conduct because

  the detective had examined the victim’s phone, which contained

  text messages between her and Pettigrew. This was more than

  sufficient probable cause to believe that Pettigrew had engaged in

  criminal conduct, completely independent of information obtained

  from the unlawful arrest.

¶ 38   Pettigrew also argues that the detective only learned the

  physical description of the cell phone during Pettigrew’s

  interrogation following his unlawful arrest, and that this

  information influenced the detective’s decision to seek a warrant.

¶ 39   On these facts, this argument is meritless. The detective knew

  to a practical certainty that Pettigrew had a phone that he was

  using to text a minor about illegal activity. Because the police knew

  this before the illegal arrest and interrogation, whatever information


                                    15
  they learned from the interrogation did not influence their decision

  to obtain a search warrant.

                      3.    Validity of the Warrant

¶ 40   Pettigrew’s argument about the physical description of the

  phone has more force when analyzing whether the magistrate’s

  decision to issue the warrant was affected by illegally obtained

  information. Pettigrew argues that if the phone’s physical

  description was redacted from the warrant affidavit, the magistrate

  would not have issued the warrant because it would have lacked

  particularity as to the place to be searched — the phone.4 This is

  so, according to Pettigrew, because a physical description of the

  phone is necessary to satisfy the Fourth Amendment’s particularity

  requirement.

¶ 41   This issue is outside the scope of the limited remand order,

  which concerned only the question of whether the detective’s

  decision to seek the warrant was tainted by the illegal search. The




  4Pettigrew does not argue that the warrant was deficient for lack of
  particularity as to the things to be seized within the phone (for
  example, files, data, or other information on the phone).

                                   16
  prior division has already determined that the magistrate’s decision

  to issue the warrant was not tainted.

¶ 42   So, we face two questions. First, should the prior division

  have redacted the physical description of Pettigrew’s cell phone in

  addition to the other information obtained from the unlawful arrest

  and seizure before determining whether the magistrate’s decision to

  issue the warrant was impacted? Second, if the physical

  description of the phone is redacted from the warrant, is it invalid

  for lack of particularity? We answer the second question “no,” so it

  is not necessary to consider the first.

¶ 43   Even if the physical description of the phone is redacted, the

  warrant sufficiently describes the “place” to be searched —

  Pettigrew’s phone. Specifically, the warrant authorized the search

  of Pettigrew’s cell phone that was tied to one specific phone

  number. This is sufficient particularity under the Fourth

  Amendment.

¶ 44   We have found no authority supporting Pettigrew’s contention

  that a warrant to search a cell phone must describe the phone’s

  make, model, and color to meet the Fourth Amendment’s

  particularity requirement. Pettigrew relies on United States v.


                                    17
  Russian, 848 F.3d 1239, 1246 (10th Cir. 2017), but that case is

  different. There, the warrant authorized the search of the

  defendant’s apartment and any cell phones found inside. Id. The

  United States Court of Appeals for the Tenth Circuit held that the

  warrant was invalid for lack of particularity.5 Id.

¶ 45   This case — where the police wanted to search one phone,

  belonging to a known person, registered to a known phone number

  — is fundamentally different from Russian. Here, the police did not

  seek a warrant for any electronic device that Pettigrew could have

  been using to communicate with the victim; they sought a warrant

  for one cell phone used by Pettigrew that already was in the police’s

  possession. One federal court has concluded that a warrant that



  5 It is unclear whether the warrant in Russian lacked particularity
  because it authorized the search of any cell phones found in the
  defendant’s apartment, or because that authorization failed to
  describe the two phones that the police had already seized, or both.
  See United States v. Russian, 848 F.3d 1239, 1246 (10th Cir. 2017)
  (“Although the application requested authorization to search the
  two Samsung cell phones law enforcement had seized at the time of
  Russian's arrest and certain data that might be found on them, the
  warrant itself merely authorized a search of Russian's residence
  and seizure of any cell phones found inside.”). Regardless, Russian
  does not support Pettigrew’s contention that a warrant to search a
  cell phone must describe the phone’s make, model, and color to be
  sufficiently particular.

                                    18
  “expressly identified [a] cell phone number associated with an

  active” criminal investigation has “sufficiently identified the cell

  phone” for Fourth Amendment purposes. United States v. Cook, No.

  CRIM. 14-221 ADM/JJK, 2015 WL 224721, at *11 (D. Minn. Jan.

  15, 2015), aff’d, 842 F.3d 597 (8th Cir. 2016). While that case is

  not binding on us, it is well reasoned, and we follow it here.

¶ 46   For all these reasons, the evidence seized from Pettigrew’s

  phone was admissible at trial under the independent source

  exception.

                             III.   Conclusion

¶ 47   The judgment of conviction is affirmed.

       JUDGE FOX and JUDGE LIPINSKY concur.




                                     19
