j. - co courts · table of contents argument i. the district court erred by denying mr. erb's...
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COURT OF APPEALS, STATE OF COLORADO
Ralph L. Carr Judicial Center 2 East 14th Ave. Denver, CO 80203 Weld District Court Honorable Julie C. Hoskins Case Number 09CR351
THE PEOPLE OF THE STATE OF COLORADO
Plaintiff-Appellee
v.
CEClL J. ERR • COURT USE ONLY •
Defendant-Appellant Douglas K. Wilson, Case Number: 10CA1221 Colorado State Public Defender RYANN S. HARDMAN, #37922 1300 Broadway, Suite 300 Denver, Colorado 80203
[email protected] (303) 764-1400 (Telephone)
REPLY BRIEF
DATE FILED: September 15, 2014 3:44 PM
COURT OF APPEALS, STATE OF COLORADO
Ralph L. Carr Judicial Center 2 East 14th Ave. Denver, CO 80203 Weld District Court Honorable Julie C. Hoskins Case Number 09CR351
THE PEOPLE OF THE STATE OF COLORADO
Plaintiff-Appellee
v.
CECIL]. ERB + COURT USE ONLY +
Defendant-Appellant Dougla, K. Wilson, Case Number: 10CA1221 Colorado State Public Defender RYANN S. HARDMAN, #37922 1300 Broadway, Suite 300 Denver, CO 80203
[email protected] (303) 764-1400 (Telephone)
CERTIFICATE OF COMPLIANCE
I hereby certify that this Reply Brief complies with tlus Court's order dated June 23, 2014. Specifically, the undersigned certifies that:
~t contains 8,954 words.
/D~jJJ~~ Signature of att011ley or party
TABLE OF CONTENTS
ARGUMENT
I. The District Court Erred by Denying Mr. Erb's Motions to Suppress the Fruit of (A) the Warrantless Search of Mr. Erb's Cell Phone, (6) the Warrantless Arrest of Mr. Erb and Warrantless Search of
~d ~~~~u~d~~n1~~a~~~ .. ~~~~.~.~~~~.~~ .~~~~~~~ .. ~~~~~:~~~.~~ .. ~~~.~~~ ......... 1
1. Mr. Erb has standing to challenge tlle search of his cell phone ..................................................................................................... 1
Arguments under both the Colorado and federal constitutions are preserved ................................................................. 3
2.
Und~r Colorado law, Mr. Erb had areasonable expectation of privacy 10 Ius cell phone location 1Oformation ............................ 5
3.
4. Under the Fourtll Amendment Mr. Erb had a reasonable expectation of privacy in his cell phone location data ................... 12
The len~th of time and timeframe in which ~he police used Mr. Erb s phone to track him are not deterrrunative ..................... 18
5.
The exigent circumstances exception to the warrant requirement does not apply in this case .......................................... 21
6.
a. ~~~~h hl~s c~ll plhr~~:.~~~ .. ~~.~~.~ .. ~~ ... ~~~~~.: .. ~~: .. ~~~ ... ~.~ ....... 21
Even if tllere was probable cause (which there was not), there was no ongoing emergency ................................ 24
b.
7. Because there was no probable cause to arrest or search, no other exception to the warrant requirement or exclusionary lule applies ........................................................................................... 26
8. This Court should suppress all evidence obtained as a result of the warrantless search of Mr. Erb's cell phone .......................... 29
II. The District Court Erred by Excluding Evidence of Mr. Watson's Prior Acts, Which Were Relevant to Mr. Erb's Defense and the Requisite Mental State ............................................................................................... 31
III. The District Court Violated Mr. Erb's Constitutional RiJShts and Erred by Admitting Irrelevant and Highly Prejudicial Cnaracter Evidence Painting Mr. Erb as a Person to Be Feared and Generally as a Person of UndeSirable Character ............................................................................. 34
CONCLUSION ........................................................................................................ 37
CERTIFICATE OF SERVICE .............................................................................. 38
TABLE OF CASES
Arizona v. Gant, 556 U.S. 332 (2009) ..................................................................... 27
Barfield v. State, 416 S.W.3d 743 (Tex. App. 2013) .............................................. 13
Charnes v. DiGiacomo, 612 P.2d 1117 (Colo. 1980) ........................................ 5,21
Commonwealth v. Augustine, 4 N.E.3d 846 (Mass. 2014) ............... 9,10,14,15,18
Commonwealth v. Rousseau, 990 N.E.2d 543 (Mass. 2013) ................................. 9
Commonwealth v. Rushing, 71 A.3d 939 (Fa. Super. Ct. 2013) .......... 10,15,20,26
Crane v. Kentucky, 476 U.S. 683 (1986) ................................................................ 34
Hoffman v. People, 780 P.2d 471 (Colo. 1989) .................................................... 11
Holmes v. South Carolina, 547 U.S. 319 (2006) .................................................... 34
In re Application for an Order Authorizing the Release of Historical Cell-Site Information, 809 F.Supp.2d 113 (E.D. N.Y. 2011) ......................... 15,18
In re Application for an Order for Disclosure of Telecommunications Records, 405 F.Supp.2d 435 (S.D.N.Y. 2005) ............................................................ 13
In re Application for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013)15,18
In re Application for Pen Register and Trap/Trace Device, 396 F.Supp.2d 747 (S.D. Texas 2005) ............................................... 15,19,21
ii
Katz v. United States, 389 U.S. 347 (1967) ...................................................... 3,4,13
Kyllo v. United States, 533 U.S. 27 (2001) ............................................. 17,18,19,20
Mendez v. People, 986 P.2d 275 (Colo. 1999) ........................................... :.16,21,24
Minnesota v. Dickerson, 508 U.S. 366 (1993) ....................................................... 27
Murray v. United States, 487 U.S. 533 (1988) ................................................... 28,30
People v. Beckstrom, 843 P.2d 34 (Colo. App. 1992) ..................................... 11,12
People v. Borrelli, 624 P.2d 900 (Colo. App. 1980) .............................................. 36
People v. Bueno, 626 P.2d 1167 (Colo. App. 1981) ....................................... 32,34
Peoplev. Burress, 515 P.2d 460 (Colo. 1973) ....................................................... 33
People v. Butler, 251 P .3d 519 (Colo. App. 2010) ................................................ 11
Peoplev. Crawford, 891 P.2d 255 (Colo. 1995) .................................................... 25
People v. Curtis, 959 P.2d 434 (Colo. 1998) ............................................................ 1
People v. Diaz, 53 P.3d 1171 (Colo. 2002) ............................................................ 27
People v. Drake, 785 P.2d 1257 (Colo. 1990) ........................................................ 25
People v. Dunkin, 888 P.2d 305 (Colo. App. 1994) ........................................ 11,12
People v. Flowers, 644 P.2d 916 (Colo. 1982) ....................................................... 32
People v. Garcia, 964 P.2d 619 (Colo. App. 1998) ............................................... 35
People v. Grenier, 200 P.3d 1062 (Colo. App. 2008) ........................................... 27
People v. Harris, 43 P.3d 221 (Colo. 2002) ............................................................ 31
11l
People v. Hillman, 834 P.2d 1271 (Colo. 1992) .................................................... 10
People v. Inman, 765 P.2d 577 (Colo. 1988) ........................................................... 5
People v. Lewis, 975 P.2d 160 (Colo. 1999) .......................................................... 24
Peoplev. Madson, 638 P.2d 18 (Colo. 1981) ......................................................... 36
People v. McCarty, 229 P.3d 1041 (Colo. 2010) .................................................... 16
People v. Oates, 698 P.2d 811 (Colo. 1985) ................................................ en passim
People v. Orozco, 210 P.3d 472 (Colo. App. 2009) ............................................. 30
People v. Pahl, 169 P.3d 169 (Colo. App. 2006) ................................................... 28
People v. Rincon, 140 P.3d 976 (Colo. App. 2005) .............................................. 35
People v. Salazar; 272 P.3d 1067 (Colo. 2012) ...................................................... 32
People v. Sporleder, 666 P.2d 135 (Colo. 1983) .......................................... en passim
People v. Tmsty, 53 P.3d 668 (Colo. App. 2001) .................................................. 16
People v. Vasquez, 148 P.3d 326 (Colo. App. 2006) ............................................ 33
People v. Wieser, 796 P .2d 982 (Colo. 1990) ......................................................... 10
Rakas v. Illinois, 439 U.S. 128 (1978) ...................................................................... 1
Rileyv. California, 134 S.Ct. 2473 (2014) ..................................................... enpassim
Smith v. Maryland, 442 U.S. 735 (1979) ................................................... 3,4,8,13,14
State v. Earls, 70 A.3d 630 (N.J. 2013) ......................................................... ell passim
State v. Hunt, 450 A.2d 952 (1982) ........................................................................... 7
lV
United States v. Caraballo, 963 F.Supp.2d 341 (D. Vt. 2013) ............................. 26
United States v. Dickerson, 195 F.3d 1183 (10th Cir. 1999) ............................... 25
United States v. Gilliam, 2012 WL 4044632 (SD.N.Y. Sept. 12,2012) ............. 26
United States v. Graham, 846 F.Supp.2d 384 (D. Md. 2012) .............................. 13
United States v. Herron, _F. Supp. 2d_, 2014 WL 524291, *7-8 (E.D.N.Y. Mar. 3,2014) ......................................... 2
United States v. Jones, 132 S.Ct. 945 (2012) ................................................ en passim
United States v. Karo, 468 U.S. 707 (1984) ................................................. 17,19,20
United States v. Knotts, 460 U.S. 276 (1983) .................................................. 4,6,17
United States v. Miller, 425 U.S. 435 (1976) ....................................................... 6,14
United States v. Skinner, 690 F.3d 772 (6th Cir. 2012) ........................................ 17
United States v. Wilson, 2013WL1129199 (N.D. Ga. Feb. 20,2013) .................. 1
U.S. v. Santana, 427 U.S. 38 (1976) ......................................................................... 24
Welsh v. Wisconsin, 466 U.S. 740 (1984) ............................................................... 24
Wong Sun v. United States, 371 U.S. 471 (1963) .......................................... 3,29,30
v
TABLE OF STATUTES AND RULES
Colorado Revised Statutes Section 16-3-303.5, c.R.S. 2014 ..................................................................... 7
Colorado Rules of Evidence Rule 401 .......................................................................................... 32,35,36,37 Rule 402 ..................................................................................................... 32,37 Rule 403 ................................................................................................ 32,35,37 Rule 404~a) ............................................................................................ 33,36,37 Rule 404 a)(1) ................................................................................................. 35 Rule 404 b) ............................... , ................................................................. 32,36
CONSTITUTIONAL AUTHORITIES
United States Constitution Amendment IV .............................................................................................. 31 Amendment V ........................................................................................... 34,37 Amendment VI ......................................................................................... 34,37 Amendment XIV ................................................................................. 31,34,37
Colorado Constitution Article II, Section 7 ........................................................................................ 31 Article II, Section 16 ................................................................................. 34,37 Article II, Section 23 ................................................................................. 34,37 Article II, Section 25 ................................................................................. 34,37
vi
In response to matters raised in the Attorney General's Answer Brief, and in
addition to the arguments and authorities presented in the Opening Brief, Cecil J. Erb,
Defendant-Appellant, submits the following Reply Brief.
ARGUMENT
I. The District Court Erred by Denying Mr. Erb's Motions to Suppress the Fruit of (A) the Warrantless Search of Mr. Erb's Cell Phone, (B) the Warrantless Arrest of Mr. Erb and Warrantless Search of Mr. Erb's Car, and (C) the Invalid Search Warrant Subsequently Sought and Executed on the Car.
The Fruit of the Warrantless Cell Phone Pings Should Be Suppressed.
1. Mr. Erb has standing to challenge the search of his cell phone.
A defendant establishes standing by demonstrating a reasonable expectation of
privacy in the areas searched or the items seized. Rakas v. Illinois, 439 U.S. 128, 143
(1978). The court should consider whether tlle defendant has a possessoty or
proprietary interest in the subject of ilie search. People v. Curtis, 959 P .2d 434, 437
(Colo. 1998).
The State cites an unreported decision, United States v. Wilson,2013\X7L1129199
(N.D. Ga. Feb. 20,2013). In that unpublished case, the magistrate concluded that the
defendant lacked standing to challenge the search of another person's cell phone. The
defendant just used ilie cell phone once. The owner did not give or loan him the
1
phone. The court found that the defendant was not an authorized user. See id. at *1,
*4.
In United States v. Herron, _F. Supp. 2d_, 2014 WL 524291, *7-8 (ED.N.Y.
Mar. 3,2014), the court considered a defendant's standing to challenge the search of a
cell phone that was issued under a fake name. The court found that "[olne need not
be the owner of the property for his privacy interest to be one that the Fourth
Amendment protects, so long as he has the right to exclude others from dealing with
the property." Id. The court stated, "[fjor example, one who, with permission of the
owner, is in possession of and control over a residence that is not his own home, and
can exclude others from it, can have a legally sufficient interest to establish Fourth
Amendment standing to challenge a search of such premises." Id. Because the
defendant was the sole and exclusive user of the phone, the court concluded that the
defendant had a legitimate expectation of privacy in the targeted cell phone. Id.
This case is more like Herron. At the titne of the "pings," the police knew that
Mr. Erb was in sole possession and control of the phone. They knew that Georgia
had given the phone to Mr. Erb so that she could communicate with him. Mr. Erb
had Georgia's permission to have the phone. And Mr. Erb had the right to exclude
others from the phone. (2/8/10, p21, 29) Thus, Mr. Erb had a legititnate expectation
of privacy in the cell phone and has standing to challenge the search. See also People v.
2
Oates, 698 P.2d 811, 814 (Colo. 1985)("the owner or possessor of a sealed container
possesses a legitimate expectation of privacy in its contents").
2. Arguments under both the Colorado and federal constitutions are preserved.
Mr. Erb's argument that the search violated the Colorado Constitution is well
preserved. In his written motion, defense counsel cited and quoted the Colorado
Constitution, as well as People v. Oates, 698 P.2d 811, and Peoplev. Sporleder, 666 P.2d
135, 141-44 (Colo. 1983). The motion was tailored to the law and facts of this case.
(CF, p319-21) In oral argument, defense counsel discussed Oates and Sporleder at
length and asserted that the search violated the Colorado Constitution. (2/8/10, p44-
47)
Defense counsel also cited the United States Constitution and Supreme Court
case law in his written motion and oral argument. In the motion, defense counsel
cited Smith v. Maryland, 442 U.S. 735 (1979), and referred to the Katz expectation of
privacy test1 and the Fourth Amendment. And he cited Wong Sun v. United States, 371
U.S. 471, 484-85 (1963). In his oral argument, he recognized that, at that time, federal
1 Katz v. United States, 389 U.S. 347 (1967).
3
law was generally against his argument. However, he argued that the Supreme Court
has not decided this issue of first impression. (2/8/10, p45)2
The court's order does not cite what authority it relied on for its decision. (CF,
p351-52) However, the language that the court uses in finding an expectation of
privacy implicitly rejects the "public roads" reasoning of United States v. Knotts, 460
U.S. 276 (1983), and, instead, relies on the rationale of Oates. (CF, p351, '\13) Had tlle
court relied solely on federal case law at the time of the order, which was pre-Jones and
pre-Rilry, the court could not have reached the conclusion that Mr. Erb held an
expectation of privacy in his cellphone. See Knotts, 460 U.S. at 281 (a person traveling
on public roads has no reasonable expectation of privacy in his movements); Smith,
442 U.S. at 743-45 (a person has no reasonable expectation of privacy in information
he voluntarily discloses to third party); if. Rilry v. California, 134 S.Ct. 2473, 2485-95
(2014)(warrant is generally required to search digital information on a cell phone
seized from a person who has been arrested); United States I). Jones, 132 S.Ct. 945,954-
64 (2012) (Sotomayor, J., and Alito, J., concurring)(discussing Katz expectation of
privacy test in context of government's GPS monitoring of suspect's movements in
his vehicle). Moreover, it is unclear to what extent the appellants in the cases cited by
2 Moreover, the motion was filed as a supplement to Motions 39 and 47, which cited both federal and state constitutions, as well as applicable federal and state case law. (See 1/5/10, p137-38; CF, p148-49, 167-69)
4
the State relied on the Colorado Constitution, beyond a mere citation. Cf People v.
Inman, 765 P.2d 577, 578 (Colo. 1988). Here, defense counsel cited and argued both
federal and state law. It is sufficiendy clear that the court was considering and relying
on state and federal law in reaching its decision.
3. Under Colorado law, Mr. Erb had a reasonable expectation of privacy in his cell phone location information.
Mr. Erb had a reasonable expectation of privacy in his cell phone location
information under the Colorado Constitution. The Colorado Constitution protects a
greater range of information disclosed to third parties than does the federal
constitution. In People v. Sporleder, our supreme court held that, under the Colorado
Constitution, there is a reasonable expectation of privacy in telephone numbers dialed
from home phones. 666 P.2d at 141-44. The court's reasoning foreshadowed many
of the concerns expressed by the Supreme Court in Jones and Rill!)'. The court noted
that telephones are a necessary part of modem life, and disclosure to the telephone
company of certain information is an "unavoidable consequence" of the use of the
telephone. Information revealed by use of the telephone (the number, date, and time
of the call) yields inferential knowledge of dle content of the conversation and gives
the Government the capacity to convert that information into "a virtual mosaic of a
person's life." !d. at 141-42. See also Charnes v. DiGiacomo, 612 P.2d 1117, 1120-21
(Colo. 1980)(in Colorado, bank customer has a reasonable expectation of privacy in
5
his bank records); cf United States v. Miller, 425 U.S. 435 (1976)(customer forfeits
expectation of privacy in information disclosed to bank).
Similarly, under the Colorado Constitution, there is a reasonable expectation of
privacy in commercially-purchased goods to be free of Government sU1veillance
devices. Oates, 698 F.2d at 815-16. Our supreme court observed that a tracking
device that allows the Government to search the location of an item and its possessor
permits the Government to reconstruct that person's "habits, habitats, and
associates." The court rejected the "public roads" rationale of United States v. Knotts,
460 U.S. 276, stating "[aJ beeper has utility to law enforcement officials only to the
extent that it performs functions that visual obsetvers cannot perform." Oates, 698
F.2d at 817.
The State asserts that there is no expectation of privacy in cell phone location
information because the ability to track a cell phone is "well-known in popular
culture." Although people may know that their cell phones could be tracked, people
should not expect that the Government will use their phones to track them without
6
gomg through the proper legal process.3 A cell phone user has an actual and
reasonable expectation that their cell phone use will be free from governmental
intrusion and that their cell phone company will not transfer information to the
Government for use against the user without legal process. Sporleder, 666 P.2d at 141,
142. "Although individuals may be generally aware that their phones can be tracked,
most people do not realize the extent of modern tracking capabilities and reasonably
do not expect law enforcement to convert their phones into precise, possibly
continuous tracking tools." State v. Earls, 70 A.3d 630, 643 (N.J. 2013); see also Jones,
132 S.Ct. at 956 (2012)(Sotomayor,J., concurring).
The State cites State v. Earls, 70 A.3d 630 (N.J. 2013). New Jersey's
interpretation of its constitutional prohibition against unlawful searches is similar to
Colorado's. See id. at 641 ("an individual's privacy interest under New Jersey law does
not turn on whether he or she is required to disclose infonnation to third-party
providers to obtain selYice."); see also Sporleder, 666 P.2d at 142 (relying on a New
Jersey case called State v. Hunt, 450 A.2d 952 (1982), which Earls also cites). In
3 Indeed, in 2014, dle Colorado legislature adopted section 16-3-303.5, c.R.S. 2014, entided "Location information - search warrant required - definitions." Subsection (2) states, "a government entity shall not obtain the location information of an electronic device widlout a search warrant issued by a court." In subsection (3), dle statute allows for "any ... judicially recognized exception to the search warrant requirement." See also Jones, 132 S.Ct. at 964 (Alito, J., concurring)("A legislative body is well situated to gauge changing public attitude ... and to balance privacy and public safety .... ").
7
rejecting the third-party doct11ne in the cell phone location context, the Earls court
observed, "cell-phone users have no choice but to reveal certain information to their
cellular provider. That is not a voluntary disclosure in a typical sense; it can only be
avoided at the price of not using a cell phone." 70 A.3d at 641.
In Earls, the New Jersey Supreme Court held that individuals have a reasonable
expectation of privacy in their cell phone's location data. Id. at 644. The court
observed that a cell phone's location data can reveal very personal information and
function as a tracking device: "Location information gleaned from a cell-phone
provider can reveal not just where people go -- which doctors, religious senrices, and
stores they visit -- but also the people and groups they choose to affiliate with and
when dley actually do so. . .. In odler words, details about dle location of a cell
phone can provide an intimate picture of one's daily life." !d. at 642. Moreover, "cell
phones also blur the historical distinction between public and private areas because
cell phones emit signals from both places." !d.
Contrary to the State's assertion, Earls did not recog111ze that "numerous"
federal cases would not require a warrant here. It recognized that Jones, which relied
on a trespass theory, and Smitb, which applied the third-party doctrine to telephone
records under the federal constitution, would not require a warrant under the facts of
Earls. Id. at 644.
8
The State also cites Commonwealth v. Augustine, 4 N.E.3d 846 (Mass. 2014). In
Augustine, the Massachusetts Supreme Court found a reasonable expectation of
privacy in cell phone location data under its state constitution. Id. at 859-66. The
court rejected the third-party disclosure doctrine in this context, observing that cell
phone location data is not voluntarily conveyed in the same way, for example,
telephone numbers are dialed. Rather, the generation of cell phone location data is a
function of the phone technology, created by the system network, independent of the
user. Id. at 862. Further, dle court observed that, because cell phone users carry dleir
phones everywhere, cell phone location information "may yield a treasure trove of
vet!' detailed and extensive information about the individual's 'comings and goings' in
both public and private places." Id. at 863.
Augustine does not stand for the proposition, as the State contends, that only
historic and/or long-term surveillance violates the expectation of privacy. For
example, on page 39, the State asserts that Augustine stressed that a warrant is
necessaq for "extended" and "cumulative" tracking. However, in dut discussion, the
court was discussing GPS vehicle tracking, not cell phone tracking. See id. at 864. The
court observed dlat, while duration could be a factor in the privacy analysis, it did not
have to determine the boundaries in that case. Id. at 865. The facts before the court
involved historic data spanning two weeks. See id. at 865 fn.36; see also Commonwealth 1).
9
Rousseau, 990 N.E.2d 543, 553 (Mass. 2013)(discussing a thirty-one day vehicle GPS
surveillance and determining "the government's contemporaneous electronic
monitoring of one's comings and goings in public places invades one's reasonable
expectation of privacy'').
Moreover, contrary to the State's assertion that Augustine is only concerned with
historic location data, the court observed that real-time (or prospective) data and
historical data "implicate the same constitutionally protected interest-a person's
reasonable expectation of privacy-in the same manner-by tracking the person's
movements." Id. at 865. And the court observed that whenever police seek to obtain
location data, they have "no way of knowing in advance whether the [cell site location
information] will have originated form a private or public location." Id. at 864.
Like New Jersey and Massachusetts, in Commonwealth v. Rushing, 71 A.3d 939,
962-63 (Pa. Super. Ct. 2013), overmled on other grounds lry 2014WIA064296 (Fa. Aug. 18,
2014), the Pennsylvania intermediate appellate court found a reasonable expectation
of privacy in cell phone location data under its state constitution. This court
considered real-time location information, and it appears the police "pinged" the
defendant's phone only one time. Id. at 946.
The State cites several Colorado cases which are wholly inapplicable. Cf People
v. Hillman, 834 P.2d 1271 (Colo. 1992)(garbage on public sidewalk); People v. Wieser,
10
796 P.2d 982 (Colo. 1990)(dog sniff in public right of way next to a public storage
locker); Hoffman v. People, 780 P.2d 471 (Colo. 1989)(officers observed marijuana
plants within curtilage but while standing in public alley). And, contrary to the State's
assertion, this Court has not "recendy indicated that Colorado now aligns itself widl
U.S. Supreme Court rulings on Fourth Amendment issues." In People v. Butler, 251
P.3d 519, 521-22 (Colo. App. 2010), the defendant raised only a Fourth Amendment
claim, not a claim under the state constitution. A division of this Court observed that
a Supreme Court case had overruled an older Colorado case dlat had interpreted dle
federal constitution. The "inconsistency" was in the interpretation of federal law.
The State also cites People v. Dunkin, 888 P.2d 305 (Colo. App. 1994), and People
v. Beckstrom, 843 P.2d 34 (Colo. App. 1992). In Dunkin, a division of this Court
determined there is no expectation of privacy in utility records. The court noted dut
the records did not reveal any activities of the consumer or any details of the
consumer's life. Moreover, dle records were available to odler members of the
public. 888 P.2d at 308. In Beckstrom, the division determined there is no expectation
of privacy in UPS records of shipments from a store. The division concluded that the
defendant did not have standing to assert rights belonging to UPS. However, the
division went on to conclude that the defendant had no expectation of privacy in the
records because they were not "of the same personal, private, or confidential
11
character" as bank or telephone records. 843 P.2d at 36. This case, involving the
Government's use of information from Mr. Erb's cell phone to track Mr. Erb is more
like Sporleder and Oates than Beckstrom or Dunkin.
4. Under the Fourth Amendment. Mr. Erb had a reasonable expectation of privacy in his cell phone location data.
Contrary to the State's argument, Mr. Erb had a reasonable expectation of
privacy in his cell phone location information under the Fourth Amendment. As
noted in the Opening Brief, the Supreme Court's treatment of new technologies
reflects a deep concern for privacy implications. Recent cases have made this
increasingly clear.
In Rilry v. California, 134 S.Ct. 2473 (2014), the Court recently recognized that
digital inf01mation is different from other types of information previously considered
by the Court and tllat cell phones are an integral part of our culture: "Prior to the
digital age, people did not typically carry a cache of sensitive personal information
with them as they went about their day. Now it is the person who is not carrying a
cell phone, with all that it contains, who is the exception." Id. at 2490. The Court
noted that cell phones are more than "just another technological convenience" and
that tlley hold "the privacies of life." Id. at 2494-95. Although Rilry addresses
searches of cell phones incident to arrest, tlle Court obse1ved tllat cell phone location
data is "qualitatively different" from information in physical records. Id. at 2490.
12
As explained in the Opening Brief, in United States v. Jones, 132 S.Ct. 945 (2012),
the Supreme Court, employing a pre-Katz trespass approach, held that the
Government's installation of a GPS device on a suspect's car and the use of the
device to monitor the car's movements constituted a "search." Id. at 949. However,
the majority stated, "[s]ituations involving merely the transmission of electronic
signals without trespass would remain subject to Katz analysis." Id. at 953. The
concurring justices discussed the Katz expectation of privacy test and expressed a
particular concern for surveillance techniques that do not necessarily involve trespass.
!d. at 954-56, 962-63 (Sotomayor,]., and Alito, J., concurring). Justice Sotomayor
wrote:
I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more 01' less at will, dleir political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques.
Id. at 956 (Sotomayor,]., concurring).
The State and many of the cases that the State cites rely on the third-party
disclosure doctrine of Smith v. Maryland, 442 U.S. 735 (1979), to find that there is no
reasonable expectation of privacy in cell phone location inf01mation. E.g., United
States v. Graham, 846 F.Supp.2d 384, 389 (D. Md. 2012); In re Application for an Order for
Disclosure of Telecommunications Records, 405 F.Supp.2d 435 (S.D.N.Y. 2005); Baifield v.
13
State, 416 S.W.3d 743 (Tex. App. 2013). Smith held that a telephone user has no
reasonable expectation of privacy in the phone numbers he dials because he has no
reasonable expectation of privacy in the information he voluntarily turns over to third
parties. Id. at 743-45; see also Miller, 425 U.S. at 442-44 (applying the doctrine to bank
records).
Cases released pre-Jones and pre-Rilry do not take into account current Fourth
Amendment jurisprudence in the digital context. As the Rilry and Jones concurrences
recognize, digital information is different. The third-party disclosure doctrine is
inapplicable in this context. In Jones, Justice Sotomayor questioned the continuing
applicability of the third-party disclosure doctrine. She wrote, "it may be necessary to
reconsider the premise that an individual has no reasonable expectation of privacy in
information voluntarily disclosed to third parties. This approach is ill suited to the
digital age, in which people reveal a great deal of information about themselves to
third parties in the course of carrying out mundane tasks." 132 S.Ct. at 957 (citing
Smith, 442 U.S. at 742, and Miller, 425 U.S. at 443); see also Rilry, 134 S.Ct. at 2492-93
(distinguishing Smith, finding that the police searched the defendant's cell phone when
they looked at the telephone's call log, and obseiVing that cell phone call logs "contain
more than just phone numbers"); Augustine, 4 N.E.3d at 863 (cell phone location data
14
"is substantively different from the types of information and records contemplated by
Smith and Millet").
As discussed in the preceding subsection,the disclosure of location data is not
"voluntaty," in the typical sense. Cell phones are "such a pervasive and insistent part
of daily life that the proverbial visitor from Mars might conclude they were an
important feature of human anatomy." Rilry, 134 S.Ct. at 2484. Cell phone users
have no choice but to reveal certain information to their cellular provider, which can
"only be avoided at the price of not using a cell phone." Earls, 70 A.3d at 641. And
cell phone location data is generated automatically, without any action by the user. In
re Application for Pen RBgister and Trap/Trace Device, 396 F.Supp.2d 747, 756 (S.D. Texas
2005); Augustine, 4 N.E.3d at 862; Rm·hing, 71 A.3d at 962.
The State cites In re Application for Historical Cell Site Data, 724 F.3d 600 (5th Cir.
2013), to argue that there is no expectation of privacy in cell phone location
information because, under the third-party doctrine, such information is voluntarily
conveyed to the phone company. See also In re Application for an Order Authori::;jng the
RBlease of Historical Cell-Site Information, 809 F.Supp.2d 113 (ED. N.Y. 2011). This strict
application of the third-party doctrine ignores that, although people may know that
their cell phones could be tracked, people should not expect that the Government will
15
use their phones to track them without going through the proper legal process. See,
e.g.,jones, 132 S.Ct. at 956 (Sotomayor,]., concurring).
The State's reliance on People v. Trusty, 53 P.3d 668, 672-73 (Colo. App. 2001), is
misplaced. That case involved consent of a third-party with apparent common
authority to search a home. Here, if that case has any application at all, the facts
available to the police would not warrant a man of reasonable caution to believe that
AT&T had common authority to consent to the release of Mr. Erb's cell phone
location information. Detective Kinne had sought warrants for similar information in
tile past and only did not do so here because it would have taken a few extra hours.
(2/8/10, p15-17) He could not have believed the search was lega1.4
4 The State refers to the good faith exception in a footnote. The good faith exception is inapplicable. As explained in People v. McCarty, tile Supreme Court has only created an exception for objective good-faith reliance on judicially-issued warrants and a few other narrow circumstances. "It has thus far not, however, recognized a good-faith exception to the exclusionary rule for reliance on prior holdings of its own from which it has subsequentiy departed, much less for reliance on the erroneous interpretations of its prior holdings by lower courts." 229 P.3d 1041, 1044 (Colo. 2010) (rejecting application of the good-faitil exception in the search incident to arrest context). Our supreme court is "reluctant to expand the good-faith exception to tile Supreme Court's exclusionary rule beyond the limits set by tilat Court itself." Id. at 1046. Moreover, Detective Kinne's decision not to seek a warrant was based on a misapplication of the exigent circumstances exception, a well-established exception to the warrant requirement, and because Mr. Erb had a reasonable expectation of privacy under a straightforward application of existing Colorado law. See, e.g., Mendez v. People, 986 P.2d 275, 279 (Colo. 1999); Oates, 698 P.2d at 815-16; Sporleder, 666 P.2d at 141-44.
16
The State and several cases that it cites also apply the "public roads" doctrine
of United States v. Knotts and United States v. Karo, 468 U.S. 707 (1984). E.g., United States
v. Skinner, 690 F.3d 772 (6th Cir. 2012). Together, Knotts and Karo stand for the
proposition that there is no reasonable expectation of privacy in a person's
movements on public roads, as opposed to in private areas. l(aro, 468 U.S. at 707;
Knotts, 460 U.S. at 281-82. However, cell phones blur the distinction between public
and private areas because cell phones emit signals from both places. Earls, 70 A.3d at
462. And most cell phone users carry their phones near their bodies at all times. See
Rilry, 134 S.Ct. at 2490 ("According to one poll, nearly three-quarters of smart phone
users report being within five feet of their phones most of the time, with 12%
admitting that they even use their phones in the shower."). The phone and its user
could be located on a public road, in a home, or in any other place. It is impossible
for police to know, in advance, where the cell phone will be located at the time the
police requests location information. See F;yllo v. United States, 533 U.S. 27, 39 (2001).
Moreover, the ability to locate a person by his cell phone location information
does not "augment the sensory faculties." Knotts, 460 U.S. at 282. Instead, cell phone
tracking constitutes the "dragnet type law enforcement practices" that the Court
reserved addressing in Knotts. ld. at 283-84. Where the Government uses a device
dlat is not in general public use, to potentially track a person in their home or other
17
private locations that would previously have been unknowable without physical
intrusion, the sUiveillance is a "search" and is presumptively unreasonable widl0ut a
warrant. See l<;yllo, 533 U.S. at 40. Accordingly, dle "public roads" doctrine does not
apply in the cell phone location context.
5. The length of time and timeframe in which the police used Mr. Erb's phone to track him are not determinative.
The core of the State's argument is that, because the police used Mr. Erb's cell
phone location information to track his movements over two hours and fifteen
minutes in real time, he had no expectation of privacy. (See 2/8/10, p21-22) The case
law does not support such a conclusion.
Many of the cases that the State cites involve historical cell phone location
information or long-term tracking efforts. E.g., In re Application for Historical Cell Site
Data, 724 F.3d 600 (5th Cir. 2013); In re Application For an Order A14thori'lfng the Release of
Historical Cell-Site ltzjormation, 736 F.Supp.2d 578 (E.D.N.Y. 2010); A14g14stim, 4 N.E.3d
at 865. These cases do not create a rule that only historical or long-term information
is protected, as the State proposes. These cases merely decide whedler, under the
facts of dlose cases, the suspects had a reasonable expectation of privacy.
Other cases, however, illustrate that people have a reasonable expectation of
privacy in their cell phone location data, no matter how brief the search and no matter
if dle search is for historic or prospective information. It is impossible for police to
18
know, in advance, where the cell phone will be located at the time the police requests
location information. See Kyllo, 533 U.S. at 39. Indeed, this may even be harder to
predict for real-time information. The cell phone and its user could be in his home or
some other private location as equally as he could be on a public road. And even a
brief contact could reveal private information about that person. See Karo, 468 U.S. at
714-15. In Jones, Justice Sotomayor cautioned that short-term tracking equally requires
special attention:
In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. . .. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: "limited police resources and community hostility."
Awareness that the Government may be watching chills associational and expressive freedoms.
Jones, 132 S.Ct. at 955-56 (2012) (Sotomayor, J., concurringWnternal citations omitted);
see also In re Application for Pen Register and Trap/Trace Device, 396 F.Supp.2d at 757
(considering prospective cell phone location information and noting that it is
impossible to know in advance whether the requested phone monitoring will invade a
suspect's constitutional rights); Earls, 70 A.3d at 642 (finding state constitutional
19
violation where police used real-time information to trade suspect for three hours);
Rushing, 71 A.3d at 946 (finding state constitutional violation where police used real
time information to "ping" suspect's phone only one time).
Here, the police tracked Mr. Erb, "pinging" his cell phone nine times over two
hours and fifteen minutes. (2/8/10, p19) While dle duration is shorter than in some
cases, it was enough to violate Mr. Erb's state and federal constitutional rights. See)
e.g., RilO', 134 S.Ct. at 2490, 2494-95; Jones, 132 S.Ct. at 954-64 (Sotomayor, J., and
Alito,]., concurring); See 10110,533 U.S. at 39-40; ](aro, 468 U.S. at 707; Oates, 698 P.2d
at 815-17; Sporleder, 666 F.2d at 141-44. The police did not know iliat Mr. Erb was on
a public highway when they first targeted his phone, and they could not know
wheilier, over ilie next two hours and fifteen minutes, what private locations he may
have entered. Two hours is enough time to follow a person into private locations and
to violate ilie expectation of privacy a person has in his cell phone location. Mr. Erb
did not dial any calls or make any oilier affirmative disclosure to his telephone
company. Mr. Erb simply possessed a cell phone, which dle police surreptitiously
converted into a tracking device to be used against him.
Finding a reasonable expectation of privacy in cell phone location data, under
the Colorado or federal constitution, does not immunize that information from
search. It merely requires iliat the Government first obtain a warrant. The warrant
20
requirement is "an important working part of our machinety of government," not
merely "an inconvenience to be somehow 'weighed' against the claims of police
efficiency." Riley, 134 S.Ct. at 2493. Such a finding would have "no dire
consequences for law enforcement." In re Application for Pen Register and Trap/Trace
Device with Cell Site Location Authoriry, 396 F.Supp.2d at 765. The answer to the
question of what police must do before searching cell phone location information is
simple-get a warrant. See Riley, 134 S.Ct. at 2495; see also Oates, 698 P.2d at 818;
DiGiacomo, 612 P.2d at 1121; Earls, 70 A.3d at 569.
6. The exigent circumstances exception to the warrant requirement does not apply in this case.
The exigent circumstances exception to the warrant requirement applies in this
context. See, e.g., Sporleder, 666 P.2d at 144; Earls, 70 A.3d at 569. However, it does
not apply in this case.
a. There was no probable cause to arrest Mr. Erb or search his cell phone.
The exigent circumstances exception requires that police first have probable
cause. Mende~ 986 P.2d at 279. "In the case of a search, probable cause requires
police to establish that reasonable grounds existed to believe that contraband or
evidence of criminal activity is located in the area to be searched." !d. at 280.
Here, police did not have probable cause to believe that evidence of criminal
activity was located in Mr. Erb's phone. The police had no evidence that Mr. Erb
21
committed an offense. The police knew that Mr. Watson had been shot. (12/18/09,
p32) Police located shells that were consistent with eidler an SKS or AK47 rifle.
(12/18/09, p32) Aliliough witnesses observed a silver or white Cadillac-type car
"driving by" Mr. Watson's house, iliey did not see ilie shooting or the shooter or
associate ilie car direcdy widl the shooting. (12/18/09, p32) Several days before the
shooting, a witness observed a van owned by one of Mr. Erb's friends in front of Mr.
Watson's house. (12/18/09, p33) Officers knew that ilie Watsons had a difficult
divorce. (12/18/09, p33) Officers had spoken wiili Georgia. She told them dlat she
was currendy dating Mr. Erb. (12/18/09, p36) She was ilie beneficiary of Mr.
Watson's life insurance policy. (12/18/09, p36) Georgia told police that Mr. Erb had
gone to California to look for work and that she had given him her cell phone.
(12/18/09, p35) Aliliough Mr. Erb previously owned a rifle, she believed he had sold
it. (12/18/09, p36; 2/8/10, p30)
Police received info11nation iliat a person of Mr. Erb's "size and stature" was
suspected of burglalY in Nebraska and that police in Iowa had obselved a
"suspicious" person in a Lincoln who would not make eye contact with police.
(12/18/09, p37) However, there was no information about the type of weapon used
in the Nebraska burglary or any odler info11nation that might have tied Mr. Erb to
that offense. Moreover, the car involved in the alleged burglary was maroon and did
22
not match the description of Mr. Erb's car. Nebraska police said a woman may have
been involved. And Mr. Erb was never implicated in the burglary. (12/18/09, p37-
38; 2/8/10, p33)
The following problems exist as to the State's facts on page 54 of the Answer
Brief: The assertion that Mr. Erb and Brunner had "repeatedly conducted
surveillance" on Mr. Watson's house does not appear in the suppression hearings.
The witnesses who saw a car similar to Mr. Erb's driving by Mr. Watson's house did
not see the shooting or shooter and did not link the car to the shooting. The police
did not know when in relation to the shooting Mr. Erb had left for California, much
less that he "immediately fled." The police did not know, at that time, that Georgia
had lied about Mr. Erb's location. The State omits the fact that Georgia had told
police that Mr. Erb no longer owned a rifle. As explained, the police did not even
have reasonable suspicion to believe Mr. Erb was involved in the burglary in
Nebraska. And the fact that Iowa police saw a man in a Lincoln avoiding eye contact,
who at the time they did not know was Mr. Erb, establishes nothing. The remaining
facts that the State relies on, the fact that Mr. Erb was dating Georgia and that
Georgia was the beneficiary to a life insurance policy, do not establish probable cause.
23
As the trial court correctly found, this information may establish reasonable
suspicion, but it does not establish probable cause to believe that Mr. Erb had
committed an offense.
b. Even if there was probable cause (which there was not). there was no ong0111g emergency.
Even if there was probable cause, which Mr. Erb does not concede, there was
no ongoing emergency to support a warrantless search. Exigent circumstances exist
where police action is immediately necessary. Colorado has applied the exigent
circumstances exception in tlle following three situations: (1) the bona fide "hot
pursuit" of a fleeing suspect; (2) the risk of immediate destruction of evidence; or (3) a
colorable clainl of an emergency which threatens the life or safety of anodler. Mende:v
986 P.2d at 279.
"Hot pursuit" of a fleeing suspect applies where there is an immediate or
continuous pursuit of a suspect from the scene of a crime. Welsh v. Wisconsin, 466 U.S.
740, 753 (1984). "Hot pursuit" means some sort of chase. U.S. v. Santana, 427 U.S.
38,42-43 (1976). Although Mr. Erb had left the state, the hot pursuit circumstance
does not apply here. There was not an immediate or continuous pursuit from the
crime scene. There was no chase. The crime occurred thirty-six hours before the
police decided to start pinging Mr. Erb's cell phone. (2/8/10, p19) They could have
sought a warrant during that time. Cf People v. Lewis, 975 P.2d 160, 168-69 (Colo.
24
1999) (finding no hot pursuit where police did not follow the suspect or see him enter
the motel room); People v. Drake, 785 P.2d 1257, 1264-65 (Colo. 1990)(finding hot
pursuit applied where the police had located the suspect and had evidence that he
might flee again).
Moreover, there was no immediate risk of destruction of evidence. As noted,
the shooting occurred a day and a half before the cell phone pings. (See 2/8/10, p19)
If there was a risk immediately following the shooting, the risk was no longer
"immediate" "thirty-six or thirty-seven hours" after the shooting. (See 2/8/10, p19)
Moreover, the evidence that the police believed to be missing was the rifle. A rifle
cannot be destroyed like drugs or other evidence typically at issue in destruction of
evidence cases. Cj People v. Crawford, 891 P.2d 255, 259 (Colo. 1995) (the razor blades
and the victirn's unde1wear could have been flushed down the toilet, thrown away, or
hidden, and the bed sheets could have been washed); United States v. Dickerson, 195
F.3d 1183, 1187 (10th Cir. 1999) (police had reasonable suspicion that any remaining
occupants were aware of the officers' presence and reasonable belief that they might
attempt to immediately destroy any drugs in the house).
Finally, there was no colorable claim of an emergency which threatened the life
or safety of another. There was one victim, who the police believed was killed over a
discrete financial motive. (See 12/18/09, p36) No one else had been harmed. There
25
was no evidence that the shooter was on a rampage or crime spree. Cf Rushing, 71
A.3d at 946 (defendant was on a rampage and told a victim that his killing spree was
not yet complete). There was no evidence that there were any other victims with the
shooter or that any other person's life was currendy in danger. Cf United States v.
Caraballo, 963 F.Supp.2d 341, 362 (D. Vt. 2013)(in a drug case, after dle defendant
killed an informant, police feared he had a motive to harm other informants; police
believed it would take six hours to get a warrant, plus additional days or weeks to
selve the warrant and receive information from the company);5 Earls, 70 A.3d at 633
(police believed that dle suspect had taken his girlfriend and that she was in danger
because he knew that she had acted as an informant against him and he had
threatened to harm her). The Nebraska police officer's information about a past
burglary committed by an unidentified man, driving a different colored car, with an
unidentified weapon similarly did not provide a colorable clainl of an inllnediate
emergency. (See 12/18/09, p37-38; 2/8/10, p33)
7. Because there was no probable cause to arrest or search, no other exception to the warrant requirement or exclusionary rule applies.
The State discusses various exceptions to the warrant requirement, including
the automobile exception, search incident to arrest, plain view, and inventory search.
5 The State also cites an unreported decision, United States v. Gilliam, 2012 WL 4044632 (S.D.N.Y. Sept. 12, 2012). In that case, the police believed the defendant had kidnapped a child for the purpose of sexual exploitation and had the child with him.
26
None of these exceptions applies. All of these exceptions require that the police have
acted lawfully in gaining access to the thing to be searched. See Arizona v. Gant, 556
U.S. 332, 351 (2009) (police may search a vehicle incident to a recent occupant's lawful
arrest only if the arrestee is within reaching distance of the passenger compartment at
the time of the search or it is reasonable to believe the vehicle contains evidence of
the offense of arrest); Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)( if police are
lawfully in a position from which they view an object, if its incriminating character is
immediately apparent, and if the officers have a lawful right of access to the object,
they may seize it without a warrant); People v. Grenier, 200 P.3d 1062, 1069 (Colo. App.
2008)(an inventoty search of a vehicle lawfully impounded by law enforcenlent
officials is a recognized exception to the warrant requirement if the search is
conducted pursuant to routine procedures). Moreover, there was no inventoty search
conducted in this case. (1/5/10, p130)
Neither the independent source nor the inevitable discovery exception to the
exclusionaty rule applies. The inevitable discovery doctrine requires that, at the time
the illegal search occurred, the police be pursuing other lawful avenues which would
have uncovered the evidence. People v. DiaiJ 53 P.3d 1171, 1176 (Colo. 2002). The
ability to subsequendy obtain a lawful search warrant, after the illegal search has
occurred, does not satisfy the inevitable discovety exception requirements. !d. Here,
27
Detective I<inne testified that he made no effort to obtain a search warrant for the cell
phone because it would have taken four to five extra hours. (2/8/10, p15-16, 21)
The independent source exception focuses on whether a search pursuant to a
warrant, following an illegal search, was based upon information independent from
what was observed during the illegal search. People v. Pahi, 169 P.3d 169, 175 (Colo.
App. 2006); see also Murray v. United States, 487 U.S. 533 (1988). The final paragraph of
the affidavit for the search warrant contained information obtained only during the
unlawful, warrantless search of Mr. Erb's car. (See exhibits 12/18/09, p21) This
information was tlle only information in the affidavit tllat tied Mr. Erb to the shooting
or that would warrant a person of reasonable caution to believe that evidence of
criminal activity was located in Mr. Erb's car. The information in the final paragraph
of the affidavit does not have a source independent from what was obselved during
the illegal search. (See exhibits 12.18.09, p21) Contrary to tlle State's assertion,Justin
Brunner's statements are irrelevant to this analysis. The focus is on whether tlle
search pursuant to the subsequent warrant, following the illegal search, was based
upon information independent from what was obsetved during the illegal search. It
was not.
28
8. This Court should suppress all evidence obtained as a result of the warrandess search of Mr. Erb's cell phone.
In dle Opening Brief, Mr. Erb requested dlat this Court suppress all evidence
derived from me illegal search, including all evidence derived from Mr. Erb' s
warrandess arrest, all searches of Mr. Erb's car, and dle arrest warrant. See Wong Sun,
371 U.S. at 484-85. This evidence includes, but is not limited to, the rifle, the shells,
the clip, Mr. Erb's journal, dle maps, and the ski mask. (12/18/09, p40; 1/5/10, p80;
4/26/10, p146-47, 201-02)
The Fruit of Mr. Erb's Warrandess Arrest and Search of His Car Should Be Suppressed.
Mr. Erb relies on the arguments and audlorities presented in the Opening
Brief. As me court properly found, me police did not have probable cause to arrest
Mr. Erb at me time of this seizure, and no warrant exception applies. (CF, p348)
Accordingly, his warrandess arrest violated constitutional protections against
unreasonable seizures. Under the "fruit of the poisonous tree" doctrine, all evidence
derived from the illegal seizure - including dle contemporaneous search, all
subsequent searches of Mr. Erb's car, and the arrest warrant - should be suppressed.
See Wong Sun, 371 U.S. at 484-85.
29
Evidence Seized Pursuant to the Invalid Search Warrant Should Be Suppressed.
Mr. Erb relies on the arguments and authorities presented in the Opening
Brief. Without the illegally-obtained information, the warrant is not supported by
probable cause. Accordingly, all evidence derived from the illegal search - including
all subsequent searches of Mr. Erb's car - should be suppressed. See Murrqy, 487 U.S.
at 536-37; Wong Sun, 371 U.S. at 484-85.
Conclusion
The error here is not harmless beyond a reasonable doubt. "If there is a
reasonable possibility that the defendant could have been prejudiced, the error cannot
be harmless beyond a reasonable doubt." People v. Orozco, 210 P.3d 472, 476 (Colo.
App.2009).
The primary issues in the case were whether Mr. Erb acted in self-defense and
whether he possessed the applicable mental state. These issues were disputed. Mr.
Erb testified that, on the morning of the shooting, Mr. Watson came to his house and
shot at him in a dispute between the Watsons over the allocation of certain property.
(4/29/10, p56-58) Mr. Watson left, and Mr. Erb went to Mr. Watson's house to
discuss the dispute. (4/29/10, p56-58) Mr. Watson wallced up to Mr. Erb's car,
punched him in the eye, said "you are a dead motherfucker," and went for his truck
where Mr. Erb thought Mr. Watson still had a gun. (4/29/10, p59-60)
30
The State's argument for harmlessness hinges on the testimony of a co-
defendant, alleged confessions to jailhouse informants, and the illegally-obtained
evidence that is the subject of this error. Mr. Erb's alleged inculpatory statements to
co-conspirators and jailhouse informers, who all had a motive to provide testimony
against Mr. Erb, were conflicting evidence which called for a credibility determination
by dle jury. This was not overwhelming evidence. (See, e.g., 4/27/10, p33-34, 41-42,
62,65-67,217-20; 4/28/10, p46)
It cannot be said iliat the guilty verdict rendered in this trial was surely
unattributable to the error. See People v. Harris, 43 P.3d 221, 230 (Colo. 2002). The
unlawful searches and arrest violated Mr. Erb's constitutional rights. See U.S. Const.
amends. IV, XIV; Colo. Const. art. II, §7. The trial court erred by denying the
motions to suppress dle fruit of dle unlawful searches and arrest. This Court should
reverse ilie trial court's rulings, vacate Mr. Erb's convictions, and remand ilie case
with orders to suppress all evidence derived from the illegal searches and seizure.
II. The District Court Erred by Excluding Evidence of Mr. Watson's Prior Acts, Which Were Relevant to Mr. Erb's Defense and the Requisite Mental State.
Evidence of Mr. Watson's two alleged prior burglaries of Georgia Watson's
home was relevant (a) to explain why Mr. Erb believed that it was Mr. Watson who
was outside of his home and had shot at him on the morning in question and (b) to
31
explain why Mr. Erb went to Mr. Watson's home. Georgia accused Mr. Watson of
burglarizing her home twice approximately two years before the offense. (See CF,
p402) Although the police ultimately "inactivated" the two cases because tilere was
no physical evidence implicating Mr. Watson, they did investigate the accusations and
interview Mr. Watson. (CF, p403) Georgia "did not waiver from her claim that her
ex-husband had burglarized the residence." (CF, p404)
The State analyzes this evidence under a standard CRE 404(b) analysis.
However, when a defendant offers a witness's prior acts for defensive purposes, the
admissibility of that evidence "is decided on a cases-by-case basis, according to
general relevancy considerations." People v. Salazar, 272 P.3d 1067, 1072 (Colo. 2012).
Although this question often arises in the alternate suspect context, the analysis is not
limited to those circumstances, as the State contends. Our supreme court and a
division of this Court have held that, subject to general rules of admissibility, "when
offered by the defendant, evidence of similar transactions is admissible as long as it is
relevant to the guilt or innocence of tile accused." People v. Bueno, 626 P.2d 1167,
1169-70 (Colo. App. 1981); see also Salazar, 272 P.3d at 1072; People v. Howers, 644 P.2d
916,918-19 (Colo. 1982).
Under CRE 401, 402, and 403, this evidence was relevant and not substantially
outweighed by the danger of unfair prejudice. This evidence supported Mr. Erb's
32
defense of self-defense by explaining why Mr. Erb believed Mr. Watson was armed
and served to negate the mens rea of first-degree murder by explaining why Mr. Erb
went to Mr. Watson's house. It is irrelevant whether Mr. Watson actually committed
the burglaries. The evidence was not offered for its truth. It was offered to explain
why Mr. Erb, who knew about the burglary allegations, acted as he did. Cf People v.
Burress, 515 P.2d 460, 464 (Colo. 1973); People v. VasquBi, 148 P.3d 326, 331 (Colo.
App.2006).
In the Answer Brief, the State analyzes this evidence under CRE 404(a).
However, the evidence was not offered pursuant to CRE 404(a) as a prior violent act
by the victim. The prior acts were not violent. Nonetheless, this relevant evidence
supported Mr. Erb's defense of self-defense by explaining why Mr. Erb believed Mr.
Watson was outside of his house, armed with a gun, and served to negate the mens
rea of first-degree murder by explaining why Mr. Erb went to Mr. Watson's house.
This error was not harmless under any standard. For the reasons set forth in
tile preceding argument, the evidence in this case, which included testimony from Mr.
Erb that he acted in self-defense, was conflicting, but it was not ove1whelming.
Evidence of the alleged burglaries was highly relevant to Mr. Erb's defense of
self-defense and Mr. Erb's mental state. Although Mr. Erb was able to briefly
mention tiut he had heard "rumors" of Mr. Watson being on Georgia's property,
33
Georgia's actual allegations of burglary against Mr. Watson would have been much
more concrete and powerful evidence. And although Mr. Erb testified regarding the
circumstances of the shooting, this evidence would have explained his actions and
supported his testimony. The evidence would have supported Mr. Erb's defense and
would have negated the requisite mens rea of intent and after deliberation. The
court's exclusion of this evidence violated Mr. Erb's rights to due process, to a fair
trial, and to present a complete defense and warrants reversal of his convictions. See
U.S. Const. amends. V, VI, XIV; Colo. Const. art. II, §§16, 23, 25; Holmes v. SOHlh
Carolina, 547 U.S. 319,324 (2006); Crane v. KentHcky, 476 U.S. 683,690 (1986); BHeno,
626 P.2d at 1169.
III. The District Court Violated Mr. Erb's Constitutional Rights and Erred by Admitting Irrelevant and Highly Prejudicial Character Evidence Painting Mr. Erb as a Person to Be Feared and Generally as a Person of Undesirable Character.
The court erred by allowing, over objection, irrelevant, improper, and highly prejudicial character evidence from Mr. Erb's co-defendant, Brunner, and prosecution witness Palmer.
Contrary to the State's assertion, the defense did not open the door to
Brunner's and Palmer's statements that they were afraid of being killed by Mr. Erb.
Defense counsel's questions to those witnesses addressed only their beliefs about
whedler Mr. Erb would kill Mr. Watson. (4/27/10, p181-82, 189; 4/28/10, pSi)
Their statements did not respond to that issue and were irrelevant, improper, and
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highly prejudicial character evidence. And, in any event, application of the "opening
the door" doctrine is subject to the considerations of relevance and prejudice under
CRE 401 and 403. People v. Rincon, 140 P.3d 976, 979 (Colo. App. 2005).
CRE 404(a)(1) allows the prosecution to rebut a pertinent trait of character
presented by the defense. Here, Brunner's and Palmer's statements that they were
afraid of being killed by Mr. Erb were made in response to questions posed by jurors.
In any event, during cross-examination of Brunner and Pahner, the defense did not
present Mr. Erb as a person of peaceful character. Defense counsel asked specifically
whether they believed Mr. Erb would kill Mr. Watson. (4/27/10, p181-82, 189;
4/28/10, p51) Brunner's and Palmer's statements in response to jury questions that
they were afraid that Mr. Erb would lcill them did not rebut their testimony about Mr.
Watson. Accordingly, contrary to the State's argument, CRE 404(a)(1) is inapplicable.
Cj People v. Garcia, 964 P.2d 619, 627 (Colo. App. 1998)(testimony that defendantlost
her temper when her car would not start rebutted testimony that she had never lost her
temper in front of the witnesses), overruled on other grounds l:J 997 P.2d 1 (Colo. 2000).
The State argues that Brunner's and Palmer's statements explained dleir
involvement in the alleged conspiracy or contextualized their relationship with Mr.
Erb. Contrary to this argument, the statements were made in response to a series of
unrelated jury questions and were asked out of any context whatsoever. (See 4/27/10,
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p254; 4/28/10, p65) This improper character evidence was irrelevant, and only
selved the improper purpose of implying that Mr. Erb acted in conformity with that
character. See CRE 401, 404(a),(b).
Finally the State contends that People v. Borrelli, 624 P.2d 900, 903 (Colo. App.
1980), and People v. Madson, 638 P.2d 18, 28-29 (Colo. 1981), are inapplicable. In
Madson, our supreme court determined dlat the admission of a victim's hearsay
assertions of fear of the defendant resulted in reversible error where, even if they
satisfied a hearsay exception, "the jUlY could not avoid considering the same
assertions for what dley clearly depicted about the defendant-his intent to kill, the
likelihood of his doing so, and his prior homicidal conduct." 638 P.2d at 29-31.
Similarly, Borrelli addressed hearsay statements that the victim was afraid of dle
defendant. A division of this Court held that, where the state of mind of the victim is
not a material issue in the case, the prejudicial effect of extra-judicial declarations of
fear of defendant outweighs any probative value of the evidence. 624 P.2d at 903.
Here, the statements are even more prejudicial where the witnesses' fear was
completely irrelevant. As noted, they were not asked in dle context of the witnesses'
involvement in the alleged conspiracy.
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Conclusion
The error was not harmless under any standard. As previously explained, the
evidence was conflicting, but not ove1whelming. (See, e.g., 4/27/10, p33-34, 41-42,62,
65-67, 217-20; 4/28/10, p46) The witnesses' opinions of Mr. Erb's character were
irrelevant, unfairly prejudicial, and only served to portray Mr. Erb as a person of bad
character and to suggest that he acted in conformity with that character on the
morning in question. See CRE 401, 402, 403, 404(a). This testimony improperly
undercut Mr. Erb's defense that he acted in self-defense and did not intend to kill Mr.
Watson after deliberation. For the foregoing reasons, the court erred and violated Mr.
Erb's constitutional rights to due process, to a fair trial, to an impartial jury, and to the
presumption of innocence by allowing this evidence. See U.S. Const. amends. V, VI,
XIV; Colo. Const. art. II, §§16, 23, 25. This error warrants reversal of Mr. Erb's
convictions.
CONCLUSION
For the reasons stated herein and in the Opening Brief, Mr. Erb requests that
this Court vacate his convictions and sentences and remand his case to the district
court for a new trial.
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DOUGLAS K. WILSON Colorado State Public Defender
(/~ ~ h 1J~dL ~"---RYANN S. HARDMAN, #37922 Deputy State Public Defender Attorneys for Cecil J. Erb 1300 Broadway, Suite 300 Denver, CO 80203 303-764-1400
CERTIFICATE OF SERVICE
I certify that, on September 15, 2014, a copy of tlus Reply Brief was electronically served tllrough ICCES on Joseph G. Michaels of the Attorney General's office.
~~M.lr I.
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