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                                                         ADVANCE SHEET HEADNOTE
                                                                       June 17, 2019

                                        2019 CO 52

No. 19SA13, People v. Haack—Search and Seizure—Exclusionary Rule—Independent
Source.

       The People brought an interlocutory appeal, as authorized by section 16-12-102(2),

C.R.S. (2018), and C.A.R. 4.1, from an order of the district court partially granting Haack’s

motion and suppressing evidence acquired after officers made a warrantless entry into

his residence. The district court found that the officers had unlawfully followed the

defendant into his home and, as a result, all relevant evidence they acquired either inside

the home or after the defendant and officers went back outside should be suppressed.

The court did not, however, offer any rationale for suppressing the evidence acquired

after leaving the defendant’s residence beyond the fact that the acquisition followed in

time the unlawful entry.

       The supreme court holds that because the district court failed to address the

question whether the evidence it suppressed was independent of the earlier unlawful

entry, the portion of its order suppressing this evidence was not adequately supported

by its findings and is therefore vacated. The case is remanded with directions to

determine whether the evidence acquired after leaving the defendant’s home was in fact
derivative of the unlawful entry at all and if so whether the subsequent searches in which

that evidence was discovered were genuinely independent sources of that evidence.
                      The Supreme Court of the State of Colorado
                      2 East 14th Avenue • Denver, Colorado 80203

                                       2019 CO 52

                         Supreme Court Case No. 19SA13
                     Interlocutory Appeal from the District Court
                  Moffat County District Court Case No. 18CR146
                          Honorable Shelley A. Hill, Judge
______________________________________________________________________________

                                   Plaintiff-Appellant:

                           The People of the State of Colorado,

                                            v.

                                  Defendant-Appellee:

                                 Keith Haack.
______________________________________________________________________________

            Order Vacated in Part and Case Remanded With Directions
                                      en banc
                                   June 17, 2019
______________________________________________________________________________

Attorneys for Plaintiff-Appellant:
Brett D. Barkey, District Attorney, Fourteenth Judicial District
Matthew J.W. Tjosvold, Chief Deputy District Attorney
       Craig, Colorado

Attorneys for Defendant-Appellee:
Salky Law, LLC
Randall P. Salky
       Steamboat Springs, Colorado




CHIEF JUSTICE COATS delivered the Opinion of the Court.
¶1     The People brought an interlocutory appeal, as authorized by section 16-12-102(2),

C.R.S. (2018), and C.A.R. 4.1, from an order of the district court partially granting Haack’s

motion and suppressing evidence acquired after officers made a warrantless entry into

his residence. The district court found that the officers, who were investigating the

defendant for driving under the influence, had unlawfully followed the defendant into

his home and, as a result, all relevant evidence they acquired either inside the home or

after the defendant and officers went back outside should be suppressed. The court

expressly found that the defendant was not in custody for purposes of Miranda warnings

until he was ultimately arrested outside the home and that the results of the defendant’s

field sobriety tests, including a horizontal gaze nystagmus test, and subsequent blood

test, both of which were conducted after leaving the residence, would have been

admissible but for the earlier constitutional violation. The court did not, however, offer

any rationale for suppression of these test results beyond the fact that they followed in

time the unlawful entry.

¶2     Because the district court failed to address the question whether the evidence it

suppressed was independent of the earlier unlawful entry, the portion of its order

suppressing this evidence was not adequately supported by its findings and is therefore

vacated. The case is remanded with directions to determine whether the evidence

acquired after leaving the defendant’s home was in fact derivative of the unlawful entry

at all and if so whether the subsequent searches in which that evidence was discovered

were genuinely independent sources of that evidence.


                                             2
                                               I.

¶3       Keith Haack was charged with two felonies: Driving Under the Influence (DUI)—

Fourth or Subsequent Offense and DUI Per Se—Fourth or Subsequent Offense. He

moved to suppress all evidence obtained after police first made contact with him, arguing

that the police had failed to give the required Miranda1 advisement and had illegally

searched his home. After hearing the motion, the district court made written findings of

fact and conclusions of law, partially granting and partially denying the motion.

¶4       As relevant to the suppression order challenged here by the People, the district

court’s findings and other undisputed testimony at the hearing indicated the following.

In the early morning hours of April 12, 2018, the police received a report to the effect that

the defendant had just driven away from the Memorial Hospital at Craig after having

been told by medical personnel that he was unsafe to drive. The reporting party gave the

defendant’s name and a description and license plate number of the truck he was driving.

Within minutes an officer arrived at the defendant’s home and saw the defendant step

down from the driver’s seat of the truck described in the report, which still had its lights

on.

¶5       When questioned by the officer, the defendant responded that friends had driven

him home from the hospital and that he was only in the truck to look for cigarettes. A

second officer who had arrived spoke on the phone directly with the doctor making the




1   Miranda v. Arizona, 384 U.S. 436 (1966).
                                               3
report, who indicated that the defendant had come to the hospital intoxicated and,

despite being told that his blood alcohol content made it unsafe for him to drive before

about noon, was seen by the doctor and a nurse driving away in his truck.               In

conversation with the police on his patio, the defendant confirmed that he had sought

treatment for alcohol withdrawal after having consumed alcohol for two days straight.

Although he claimed that he had stopped drinking around 8 or 9 o’clock the previous

evening, he admitted several times that he was not safe to drive.

¶6     Over the course of his interaction with the police, in which he declined to perform

field sobriety tests or give the names or phone numbers of the friends who drove him

home, the defendant went in and out of his home several times, closing and reopening

the door. Ultimately, the police followed the defendant into his home, preventing him

from closing the door. After the officers repeatedly asked him to step back outside, the

defendant complied, but not before an officer was able to detect an odor of alcohol on

him.

¶7     Once outside the officers continued to request that the defendant submit to field

sobriety tests, including a horizontal gaze nystagmus test. When he ultimately complied

and was adjudged not to have completed the tests as a sober person would, the defendant

was arrested. After being read an express consent form, the defendant chose to take a

blood test and was taken to the hospital where the test was administered.

¶8     The district court concluded that in making a warrantless entry into the

defendant’s home, the police violated his constitutional rights. It nevertheless also found


                                            4
that the defendant was never in custody for purposes of the Miranda requirements until

he was formally placed under arrest, and that the field sobriety test results, including the

results of the horizontal gaze nystagmus test, would have been admissible, subject to the

constitutional violations it had already noted. It therefore granted the motion to suppress

in part and denied it in part, stating that all observations by the officers and all statements

made by the defendant before the officers crossed the threshold of the defendant’s

residence would be admissible in evidence, but that all observations by the officers, all

statements made by the defendant, and all other evidence obtained after the officers

crossed the threshold of the defendant’s residence would be suppressed.

¶9     The People filed an interlocutory appeal, as authorized by section 16-12-102(2),

C.R.S. (2018), and C.A.R. 4.1, asserting in this court that the district court erred in

suppressing the results of the blood and field sobriety tests, as well as statements made

by the defendant after leaving the house, for the reason that this evidence was acquired

from an independent source.

                                              II.

¶10    The exclusionary rule generally prohibits not only the introduction into evidence

of tangible materials seized, and testimony concerning knowledge acquired, during an

unlawful search but also evidence that is either the product of the primary evidence or is

otherwise acquired as an indirect result of the unlawful search, up to the point at which

the connection with the unlawful search becomes so attenuated as to dissipate the taint.

Murray v. United States, 487 U.S. 533, 536–37 (1988). The Supreme Court has also made


                                              5
clear, however, that the purpose of the exclusionary rule—to put the police in the same,

rather than a worse, position than they would have been in if no police error or

misconduct had occurred—would not be served by excluding evidence that has an

independent source. Murray, 487 U.S. at 537.

¶11    As the Court further noted, it has used the concept of “independent source” at

times in a more general sense and at times in a more specific sense. Id. With regard to

the former, the Supreme Court has applied the term to any evidence acquired in a fashion

untainted by prior illegal evidence-gathering activity. Id. at 537–38 (citing as an example

Segura v. United States, 468 U.S. 796, 804–05 (1984)). With regard to the latter, it has

applied the term more specifically to evidence, whether tangible or intangible, that was

actually acquired during or as the result of an unlawful search but was rediscovered

during a lawful search that was genuinely independent of the earlier tainted search. Id.

at 538 (citing as an example Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392

(1920)).

¶12    In the context of a second search of premises pursuant to a search warrant,

following an unlawful earlier search of the same premises, the Supreme Court has,

however, drawn a distinction between the source of the probable cause supporting the

warrant and the question whether the warrant and second search would have been

pursued at all but for what the police observed during the first, unlawful search. Id. at

541–42. Making clear that findings of both were required for the second search and

seizure to be considered genuinely independent of the earlier tainted one, the Supreme


                                            6
Court in Murray remanded for a determination whether, despite the second search being

supported by probable cause from an independent source, the police were prompted to

conduct that search only by what they had already seen. Id. at 542–43. In People v.

Schoondermark, 759 P.2d 715 (Colo. 1988), we followed suit and similarly remanded for a

specific finding concerning the motivation of the police officers in that case to seek a

warrant to search premises, following an earlier unlawful entry of the same premises,

despite clear findings that the affidavit for the warrant was supported only by probable

cause apart from and independent of any observations made during the initial, unlawful

entry. Id. at 716–17, 719.

¶13    While the second search with which the Supreme Court was concerned in Murray

was authorized by warrant, the Court’s reasoning applies equally to searches executed

pursuant to an exception to the warrant requirement. The Court’s holding—that genuine

independence of source requires not only that probable cause for the subsequent search

or seizure be independent of any observations made during, or as the product of, an

unlawful search, but also that the second search may not have been prompted by such

observations—is in no way limited to a subsequent application for a search warrant. See

Murray, 487 U.S. at 542 (stating—without limitation as to the type of potentially

independent source—that as long as the later search or seizure was genuinely

independent of the earlier tainted one, the independent source doctrine would apply).

Whether authorized by warrant or not, a subsequent search can serve as an independent

source only if both conditions have been demonstrated.


                                           7
                                           III.

¶14    On appeal from the district court’s suppression order, the People do not challenge

that court’s finding of an unlawful entry by the police, but rather renew their assertion

that the defendant’s field sobriety and blood test results acquired after leaving his

residence were independent of the earlier unlawful search; and more particularly, that

the police had already acquired probable cause, and intended, to arrest the defendant for

driving under the influence before ever following him into his home.

¶15    The district court expressly found that all observations by the officers and

statements by the defendant made before the police entered his home would be

admissible. It also found that the results of the field sobriety tests performed by the

defendant after leaving his residence would have been admissible, apparently as based

on the defendant’s voluntary consent, but for the constitutional violation of unlawfully

entering the residence. The court did not, however, offer any reason for believing that

the evidence it ordered suppressed was derivative of, or in any way the direct or indirect

result of, observations made during an earlier unlawful search, much less any reason for

not treating these “searches” and the defendant’s arrest as having also been based, in any

event, on probable cause from independent sources.           Whether the district court

envisioned some more specific taint it simply failed to express, or it erroneously believed

a preceding unlawful search was enough, its findings were clearly insufficient to sustain

its order.




                                            8
¶16    It is clear from the court’s factual findings and the undisputed evidence from the

suppression hearing that the officers had probable cause to arrest the defendant, and

therefore to require that he perform field sobriety tests, see People v. Carlson, 677 P.2d 310,

317–18 (Colo. 1984), abrogated on other grounds by People v. Chavez-Barragan, 2016 CO 66,

379 P.3d 330, well before they followed him into his house. Quite apart from the report

of hospital staff concerning his state of intoxication, the defendant admitted to the police

while still outside on his patio that he was in no condition to drive. He simply contested

the fact that he had driven himself home from the hospital. Not only did the police have

the report of a doctor and nurse that they had seen the defendant drive away in his truck,

but one of the officers actually witnessed the defendant, only minutes later, exiting the

driver’s side of the truck, with its lights still on. If there could be any doubt in this case,

the question of probable cause is a mixed question of fact and law, ultimately for a

reviewing court to decide. People v. Coates, 266 P.3d 397, 400 (Colo. 2011).

¶17    Nevertheless, because the district court found as a matter of fact that the officers

were first able to detect the odor of alcohol on the defendant while they were unlawfully

in the defendant’s house, and because they had not placed him in custody before entering

the house, there remains at least some question whether the police had not yet

determined to arrest him and were instead prompted to do so by their observations

during the unlawful search. The question whether the police would have pursued a

second search and arrested the defendant but for what they observed during the earlier

unlawful search is a question of fact. Murray, 487 U.S. at 543; People v. Morley, 4 P.3d 1078,


                                              9
1081 (Colo. 2000). Except in the rare case in which the timing of the second search is such

as to preclude a finding that it was prompted by an earlier unlawful search, see, e.g.,

Morley, 4 P.3d at 1081 (holding that remand was unnecessary when warrant procurement

procedures were initiated well before illegal entry, which occurred only five minutes

before warranted search, and there was no evidence subverting a conclusion of

independence), this question of fact must be resolved by the trial court, Murray, 487 U.S.

at 543; Schoondermark, 759 P.2d at 719.

¶18    Rather than simply reversing the district court’s order of suppression and finding

the evidence in question to be admissible, we therefore vacate the district court’s existing

order and remand for further findings and conclusions regarding the question whether

any evidence acquired after leaving the defendant’s home was in fact derivative of the

unlawful entry and if so whether the defendant’s subsequent test results and arrest were

genuinely independent of the initial unlawful search. On remand, the district court, at

its discretion, may allow the parties to present additional evidence, and the People bear

the burden of establishing such genuine independence by a preponderance of the

evidence. See Schoondermark, 759 P.2d at 719.

                                            IV.

¶19    Because the district court failed to address the question whether the evidence it

suppressed was independent of the earlier unlawful entry, the portion of its order

suppressing this evidence was not adequately supported by its findings and is therefore

vacated. The case is remanded with directions to determine whether the evidence


                                            10
acquired after leaving the defendant’s home was in fact derivative of the unlawful entry

at all and if so whether the subsequent searches in which that evidence was discovered

were genuinely independent sources of that evidence.




                                          11
