     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
                                                            January 30, 2020

                                2020COA14

No. 15CA0040, People v. Tallent — Constitutional Law —
Searches and Seizures — Exclusionary Rule — Exceptions

     After the Colorado Supreme Court’s decision in People v.

Morehead, 2019 CO 48, 442 P.3d 413, stating that the trial court

should exercise its discretion in allowing or disallowing the

prosecution to argue new theories opposing a motion to suppress

evidence on remand, a division of the court of appeals establishes a

two-prong test intended to aid the trial court’s decision. The

division concludes that (1) the trial court should consider three

factors — whether entertaining new arguments would unfairly

prejudice any party to the case, whether the party proposing the

new argument is at fault for not preserving it in an earlier

proceeding, and any other factor the court deems relevant — in

exercising its discretion to determine whether it will allow the
prosecution to advance new arguments on remand; and (2) if the

court determines that new arguments opposing suppression may be

raised for the first time on remand, it should proceed to the second

step by ruling on the substance of the new arguments.
COLORADO COURT OF APPEALS                                        2020COA14


Court of Appeals No. 15CA0040
Larimer County District Court No. 07CR68
Honorable Julie Kunce Field, Judge
Honorable Stephen E. Howard, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Randy D. Tallent,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                    Division I
                         Opinion by JUDGE TAUBMAN
                      Bernard, C.J., and Welling, J., concur

                          Announced January 30, 2020


Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Esteban A. Martinez, Alternate Defense Counsel, Longmont, Colorado; Joseph
T. Goodner, Englewood, Colorado, for Defendant-Appellant
¶1    Defendant, Randy D. Tallent, appeals his judgment of

 conviction entered on a jury verdict finding him guilty of theft,

 second degree burglary, second degree criminal trespass, and theft

 by receiving. He also appeals his adjudication as a habitual

 criminal and his sentence. Our division previously reversed the

 trial court’s judgment, People v. Tallent, (Colo. App. No. 15CA0040,

 May 24, 2018) (not published pursuant to C.A.R. 35(e)), relying on

 People v. Morehead, 2015 COA 131, ¶ 52, 450 P.3d 733, 742

 (Morehead I), aff’d in part and rev’d in part, 2019 CO 48, 442 P.3d

 413 (Morehead II), to conclude that the trial court may not hear new

 arguments on remand in opposition to a defendant’s motion to

 suppress. Following its decision in Morehead II, concluding that the

 trial court has discretion to hear on remand new arguments

 opposing a defendant’s motion to suppress, the supreme court

 vacated our decision and remanded the present case. People v.

 Tallent, (Colo. No. 18SC483, July 1, 2019) (unpublished order). We

 now reverse and remand for further findings.

¶2    Because the supreme court vacated our opinion, we restate

 the background and some of the legal principles below.




                                    1
                             I. Background

¶3    Around midnight one night in January 2007, a police officer

 was in his patrol car in an alley watching for a vehicle that had

 been illegally parking in a handicapped space. The officer saw

 Tallent near a garage in the alley. When Tallent saw the patrol car,

 he turned and ran, ignoring the officer’s orders to stop. The officer

 saw Tallent pass through a fenced backyard, but then lost sight of

 Tallent and called for backup.

¶4    The responding officers followed footprints in the snow and

 found Tallent hiding on the front porch of a nearby building. He

 was arrested at gunpoint, handcuffed, and searched. The officers

 found a set of keys with a remote entry fob in Tallent’s pocket.

 Using the fob, the officers located Tallent’s car, which they

 impounded and eventually searched pursuant to a warrant.

¶5    After Tallent’s arrest, officers again tracked his footprints, first

 to a screwdriver dropped in the snow and then to a garage where

 they found tools that had recently been reported stolen from a

 nearby construction site, as well as other stolen property. In the

 meantime, the officers discovered that Tallent had an outstanding

 warrant for his arrest on a parole violation.


                                    2
¶6    Over the course of the next few months, the police continued

 investigating leads stemming from property found in the garage.

 The police also monitored phone calls Tallent placed while in jail.

 These investigative efforts led the police to additional evidence and

 witnesses.

¶7    Before trial, Tallent moved to suppress the evidence and

 statements obtained as a result of his arrest. Specifically, he urged

 the trial court to suppress

              everything learned or obtained including but
              not limited to any statements reportedly made
              by Mr. Tallent following and as a result of his
              unlawful seizure, detention and arrest;
              resulting from his unlawful custodial
              interrogation; resulting from the unlawful
              entry and search of the garage where he was
              storing his personal property; and resulting
              from the unlawful seizures and searches of his
              personal property and motor vehicle, as well as
              any evidence which is fruit thereof.

¶8    After a hearing, the trial court initially granted Tallent’s

 motion in a bench ruling. Then, in a written order, the trial court

 reconsidered and partially denied the motion to suppress.1 After a




 1 The trial court suppressed evidence seized from Tallent’s car. The
 People brought an interlocutory appeal, and the supreme court
 reversed. See People v. Tallent, 174 P.3d 310 (Colo. 2008).

                                     3
  jury trial, Tallent appealed, and a division of this court reversed the

  denial of his motion to suppress. People v. Tallent, slip op. at 2

  (Colo. App. No. 09CA0981, Aug. 16, 2012) (not published pursuant

  to C.A.R. 35(f)). The division determined that Tallent was arrested

  without probable cause. Id. at 21. The division concluded that

  “[b]ecause Tallent was arrested without probable cause, evidence

  obtained as a result of that arrest should not have been admitted at

  trial. Accordingly, we reverse the judgment of conviction and

  remand for a new trial.” Id.

¶9     On remand, the People filed a “motion to preserve evidence,”

  arguing that evidence obtained after Tallent’s illegal arrest was

  admissible under three exceptions to the exclusionary rule:

  inevitable discovery, independent source, and attenuation. During

  a hearing on the People’s motion, the trial court heard testimony

  from the officers involved in the arrest and investigation. The trial

  court stated that it would also consider the transcripts from the

  original 2007 suppression hearing and related proceedings.

¶ 10   In two written orders, the trial court concluded that some

  evidence obtained after Tallent’s arrest was admissible either

  because the People proved that it was sufficiently attenuated from


                                     4
  the illegal arrest or officers would have inevitably discovered the

  evidence through lawful means. The trial court concluded that the

  People could introduce: (1) evidence of where Tallent’s footprints in

  the snow led, the screwdriver, and all evidence found in the garage;

  (2) Tallent’s name and other identifying information obtained after

  his arrest; (3) all evidence obtained as a result of monitoring

  Tallent’s phone calls from jail; and (4) statements Tallent made after

  being advised of his rights under Miranda v. Arizona, 384 U.S. 436

  (1966). However, the trial court suppressed: (1) evidence obtained

  during the search of Tallent incident to his arrest; (2) evidence

  found during the search of Tallent’s car; and (3) statements Tallent

  made before being advised of his rights under Miranda. A jury

  convicted Tallent of all charges. He was later adjudicated a

  habitual criminal by the trial court and sentenced to forty-eight

  years in the custody of the Department of Corrections.

¶ 11   Tallent appealed, and this division reversed, relying on

  Morehead I, ¶ 52, 450 P.3d at 742, and the supreme court vacated

  that decision, in light of Morehead II.




                                     5
                              II. Discussion

¶ 12   On appeal, Tallent contends that the trial court erred in

  permitting the People to make new arguments on remand regarding

  the admissibility of the evidence obtained after his illegal arrest. He

  bases this argument primarily on the law of the case doctrine,

  relying on People v. Roybal, 672 P.2d 1003, 1005 (Colo. 1983). We

  do not reach the question of whether the trial court erred; instead,

  we remand for further findings in light of the supreme court’s

  decision in Morehead II.

                          A. Standard of Review

¶ 13   We review a trial court decision to hear new arguments on

  remand in a suppression hearing for an abuse of discretion. See

  Morehead II, ¶ 13, 442 P.3d at 418. As a general rule, we review the

  substance of a trial court’s decision on a motion to suppress as a

  mixed question of fact and law. People v. King, 16 P.3d 807, 812

  (Colo. 2001). While we defer to the trial court’s findings of fact

  when they are supported by sufficient competent evidence in the

  record, we review conclusions of law de novo. Id.

¶ 14   We review preserved errors of a constitutional dimension for

  constitutional harmless error. Hagos v. People, 2012 CO 63, ¶ 11,


                                     6
  288 P.3d 116, 119. Under that standard, we will reverse unless the

  People prove any error was harmless beyond a reasonable doubt.

  Id.

                            B. Applicable Law

¶ 15    The United States and the Colorado Constitutions prohibit

  unreasonable searches and seizures. See U.S. Const. amends. IV,

  XIV; Colo. Const. art. II, § 7. Evidence obtained as a result of an

  unconstitutional search or seizure must be suppressed. See King,

  16 P.3d at 813. This exclusionary rule “applies both to the illegally

  obtained evidence itself and to the ‘fruit of the poisonous tree’ —

  any other evidence derived from the primary evidence.” People v.

  Schoondermark, 759 P.2d 715, 718 (Colo. 1988). However, there

  are exceptions to the exclusionary rule that “justify admission of

  evidence even though it is derived from information obtained”

  through unconstitutional means. Id. These exceptions “have been

  labeled independent source, attenuation, and inevitable discovery.”

  Id. (summarizing these doctrines).

¶ 16    If an appellate court holds that a trial court erred in denying a

  defendant’s motion to suppress, can the prosecution argue for the

  first time on remand that illegally obtained evidence is nonetheless


                                     7
admissible under an exception to the exclusionary rule? That

question was left open by the supreme court in People v. Briggs,

709 P.2d 911, 924 n.17 (Colo. 1985). In Morehead I, a division of

this court concluded that a search of the defendant’s home was

unconstitutional and that the trial court’s erroneous denial of the

defendant’s motion to suppress was not harmless. Morehead I,

¶¶ 33, 40, 450 P.3d at 739, 741. Further, the Morehead I division

concluded that the prosecution could not present a “previously

unargued theory of admissibility on remand.” Id. at ¶ 47, 450 P.3d

at 741. Thus, the People were “precluded from arguing on remand

that any of the evidence derived from the unconstitutional search

should still be admitted under the attenuation doctrine or one of

the exceptions to the exclusionary rule” because they had not

raised such arguments in the initial suppression hearing. Id. at

¶ 42, 450 P.3d at 741. However, the supreme court reversed the

judgment of the court of appeals, concluding that the trial court is

best positioned to decide whether to entertain new arguments on

remand. Morehead II, ¶ 13, 442 P.3d at 418. In so doing, it

announced that the trial court may, in its discretion, allow the

prosecution a second bite at the apple on remand.


                                  8
¶ 17   However, in multiple decisions since Briggs, the supreme court

  has recognized that, in certain situations where the People fail to

  present an argument for admissibility at an initial suppression

  hearing, they cannot later raise that argument on remand. See

  People v. Null, 233 P.3d 670, 681 (Colo. 2010) (declining to give the

  prosecution “a second bite at the apple” when it failed to carry its

  evidentiary burden on statutory suppression issue (quoting Burks v.

  United States, 437 U.S. 1, 17 (1978))); Moody v. People, 159 P.3d

  611, 617 (Colo. 2007) (declining to remand for further findings on

  standing argument not raised by the People in the trial court or on

  appeal); People v. Syrie, 101 P.3d 219, 223 (Colo. 2004) (holding

  that the People “surrender[ed]” an alternative theory of admissibility

  by not raising it in the trial court); People v. Quintero, 657 P.2d 948,

  951 (Colo. 1983) (declining to remand on an inevitable discovery

  issue when the “prosecution did not rely upon that rule in

  [op]posing the initial suppression motion, nor did it raise the rule in

  its brief” and, based on the record, the claim would have been

  futile); Morehead I, ¶¶ 44-46, 450 P.3d at 741 (discussing Null,

  Moody, Syrie, and Quintero); see also People v. Schaufele, 2014 CO

  43, ¶ 43, 325 P.3d 1060, 1068 (Boatright, J., concurring in the


                                     9
judgment) (declining to review the merits of a suppression order

when “the entirety of the People’s argument on appeal rests on a

claim that they failed to raise until filing a motion for

reconsideration”); People v. Crippen, 223 P.3d 114, 116-17 (Colo.

2010) (“Because the record . . . contains no indication that the

applicability of the good faith exception was either alleged by the

prosecution or resolved by the district court, we decline to address

it on appeal.”); People v. Salazar, 964 P.2d 502, 507 (Colo. 1998)

(“Because the issue of consensual encounter was not raised by the

prosecution below, we decline to resolve the issue in this appeal.”);

People v. Titus, 880 P.2d 148, 152 (Colo. 1994) (“The issue of

whether the evidence should be admitted under the good-faith

exception to the exclusionary rule was not raised in the trial court,

and therefore is not appropriately before us.”). In Morehead II, the

supreme court clarified that “[w]hile [Moody, Null, Syrie, and

Quintero] may demonstrate this court’s reluctance to consider or

initiate further proceedings concerning arguments not adequately

developed below, none purports to control the arguments that can

be heard by a trial court upon retrial.” Morehead II, ¶ 15, 442 P.3d

at 419. However, the Morehead II court provided limited guidance


                                   10
  as to how a trial court should exercise its discretion in determining

  whether to hear new arguments on remand.

¶ 18   The Morehead II court suggested at least two factors: (1) Will

  the allowance of new arguments unfairly prejudice one or more of

  the parties? (2) Is the party proposing a new argument at fault for

  having failed to preserve it in an earlier proceeding? Morehead II,

  ¶ 13, 442 P.3d at 418. We further conclude that a trial court may

  consider any other factor it deems relevant. See, e.g., People v.

  Brown, 2014 CO 25, ¶ 24, 322 P.3d 214, 221 (in considering

  whether to grant a continuance to substitute defense counsel, trial

  court must consider multiple factors, including any other “case-

  specific factors”).

¶ 19   Accordingly, a trial court should engage in a two-step analysis

  when the prosecution seeks to argue new theories to oppose a

  defendant’s motion to suppress on remand. First, applying the

  factors listed above, the court must exercise its discretion to

  determine whether it will allow the prosecution to advance new

  arguments on remand. If the court determines that new arguments

  against suppression are proper on remand, it may proceed to the

  second step by ruling on the substance of the new arguments.


                                    11
¶ 20   In announcing this two-step analysis, we emphasize the

  distinction between usurping the trial court’s discretion to hear new

  theories on remand and requiring the trial court to articulate the

  reasons why it is exercising its discretion to hear new theories on

  remand. This approach harmonizes the decisions in Morehead II

  and previous decisions denying the prosecution “a second bite at

  the apple.” See Morehead II, ¶ 13, 442 P.3d at 418; Null, 233 P.3d

  at 681.

                                 C. Analysis

¶ 21   Tallent contends that the People were precluded from arguing

  on remand that the fruit of his unlawful arrest was admissible

  under the inevitable discovery and attenuation doctrines. In light of

  Morehead II, we remand to allow the trial court to make further

  findings consistent with this opinion.

¶ 22   The People do not allege that the prosecution raised the

  inevitable discovery or attenuation arguments during the 2007

  suppression hearing. Indeed, they point to nothing in the record to

  demonstrate that these arguments were presented to the trial court




                                   12
  at any point before the previous appeal to this court. 2 Instead, they

  argue that, because the trial court ruled in their favor, “there was

  no need for the People to contend the evidence was admissible

  under any exception to the exclusionary rule, and their failure to do

  so should not constitute waiver.” 3

¶ 23   We note that this argument assumes that the People knew

  they would prevail at the suppression hearing. However, during the

  suppression hearing, the People did not know that there was “no




  2 The People apparently did not raise any inevitable discovery or
  attenuation argument in the prior appeal, either. See generally
  People v. Tallent, (Colo. App. No. 09CA0981, Aug. 16, 2012) (not
  published pursuant to C.A.R. 35(f)).
  3 Although Tallent does not argue that the People waived their

  arguments regarding inevitable discovery and attenuation, the
  People assert that they did not waive the claim. We recognize that
  the Colorado Supreme Court addressed the doctrine of waiver in
  People v. Rediger, 2018 CO 32, 416 P.3d 893, and People v. Smith,
  2018 CO 33, 416 P.3d 886. In Rediger, the court stated that waiver
  requires the “intentional relinquishment of a known right or
  privilege.” Rediger, ¶ 40, 416 P.3d at 902. Thus, the court
  concluded that the defendant there did not waive his objection to an
  erroneous jury instruction when there was no evidence that he
  intended to relinquish the relevant right or that he knew of the
  error. Id. at ¶¶ 42-43, 416 P.3d at 902-03. It is unclear whether
  this waiver analysis even applies in the present case because,
  unlike the criminal defendant in Rediger, the People here had no
  right or privilege to present evidence supporting the evidence’s
  admissibility.

                                    13
  need” to make alternative arguments as to the admissibility of the

  challenged evidence.

¶ 24   This leads to a second consideration regarding the People’s

  argument: it fails to appreciate the prosecution’s burden of proof.

  At a suppression hearing, the People bear the burden of proving

  either that a warrantless search or seizure was constitutional or, if

  the search or seizure was illegal, that one of the exceptions to the

  exclusionary rule applies. See Schoondermark, 759 P.2d at 719;

  see also Outlaw v. People, 17 P.3d 150, 155 (Colo. 2001), as

  modified on denial of reh’g (Feb. 5, 2001). “The amount of the

  available evidence that the prosecution elects to present at a

  suppression hearing is left to the district attorney’s discretion.”

  Roybal, 672 P.2d at 1006. Thus, “the prosecution must be

  prepared to abide the consequences of an adverse ruling when it

  elects not to offer available probative evidence.” Id. As a result, the

  prosecution has the opportunity to make all relevant arguments for

  admissibility at the initial suppression hearing. Accordingly,

  prosecutors regularly make alternative admissibility arguments

  during suppression proceedings. See, e.g., People v. Hyde, 2017 CO

  24, ¶ 38, 393 P.3d 962, 971 (Eid, J., concurring in the judgment)


                                     14
  (noting that, in trial court, the prosecution advanced alternative

  arguments that warrantless search was permissible as search

  incident to arrest or that the defendant consented).

¶ 25   Allowing the People to raise new admissibility arguments on

  remand may give the prosecution “a second bite at the apple” that it

  would not otherwise receive. Null, 233 P.3d at 681 (quoting Burks,

  437 U.S. at 17). According to the People, they are permitted to

  identify one ground for admissibility in the initial hearing. If on

  appeal the denial of a motion to suppress is reversed, they may

  make alternative arguments on remand. The Morehead II court

  held that the trial court must exercise its discretion to determine

  whether the People should be allowed to do so, based on the

  particular circumstances of each case. Thus, on remand, the trial

  court should weigh the three factors noted above.

¶ 26   Accordingly, the trial court must articulate its exercise of

  discretion in permitting or disallowing the prosecution to present

  new arguments on remand.

                             III. Conclusion

¶ 27   We note that Tallent raised additional contentions on appeal

  concerning the trial court’s application of the inevitable discovery


                                    15
  doctrine, the trial court’s denial of his motion for a continuance,

  and the constitutionality of the habitual offender sentencing

  scheme. Because these contentions are unlikely to arise on

  remand, we decline to address them.

¶ 28   Accordingly, the judgment is reversed, and the case is

  remanded for further proceedings consistent with this opinion.

  Once the trial court rules, the adversely affected party or parties

  may appeal that decision.

       CHIEF JUDGE BERNARD and JUDGE WELLING concur.




                                    16
