Although the Colorado Supreme Court indicated earlier this year that it might intervene in an ongoing Boulder County prosecution implicating a key 2020 police reform law, the justices reversed course last week after realizing the district attorney’s office neglected to follow the correct appellate procedure.

Originally, the prosecution sought the Supreme Court’s immediate guidance on the application of a recent state law, enacted in the wake of George Floyd’s killing in Minneapolis, stating officers should activate their body-worn or dashboard cameras “during any interaction with the public initiated by the peace officer” for the purpose of “investigating possible violations of the law.” Officers who fail to do so run the risk of having their unrecorded observations excluded as evidence.

In the case at hand, Boulder County sheriff’s Deputy Peter Markusen saw a car driving under the speed limit and allegedly swerving in its lane. Markusen, traveling behind the car, activated his radar to measure the speed and found the car was going 15 mph under the limit. He turned on his police lights, at which point his dash cam began to record.

Markusen approached the driver, Victor Quiroz, and saw evidence of marijuana use and impairment. He arrested Quiroz on suspicion of driving under the influence.

Quiroz’s lawyers then moved to exclude a substantial portion of the evidence against him. They reasoned:

• Markusen initiated an “interaction” when he began to follow Quiroz for the purpose of “investigating possible violations of the law”

• He did not activate his dash cam, meaning his unrecorded observations of the swerving should be excluded

• Because the only other detail captured before the start of the recording — that Quiroz was driving under the speed limit — did not establish reasonable suspicion of a crime, Markusen had no basis to pull over the car

• With no basis for a stop, the case must be dismissed

After a hearing in April, County Court Judge Zachary Malkinson agreed with the defense. Malkinson acknowledged officers must be able to observe conduct in order to decide whether to investigate, and should not need to turn on their recording equipment during that window. But in this instance, Markusen’s act of turning on his radar amounted to an investigation, for which he should have activated the camera.

“Without the unrecorded observations made by the deputy, all that the court is left with is Markusen’s observation the car was driving ‘slow,'” Malkinson wrote, adding, “the statutes at issue appear to be untested and there is no case law.”

The district attorney’s office immediately appealed to the Supreme Court. It contended Malkinson’s ruling was problematic, as the law does not require officers to turn on their cameras whenever they simply investigate. Instead, they also need an “interaction” — which did not occur until Markusen activated his lights to pull Quiroz over.

After the Supreme Court agreed to look at the issue, the Colorado Attorney General’s Office, representing Malkinson, pointed to a problem. The Supreme Court only hears cases directly from the trial courts when, among other things, “no other adequate remedy is available.” In this instance, the Boulder County District Attorney’s Office did have another path it could take: appealing the county court judge’s order to the district court within 14 days.

“Instead, the (prosecution) waited over two months before seeking relief from this Court,” wrote First Assistant Attorney General LeeAnn Morrill.

On Sept. 5, the Supreme Court agreed the district attorney’s office should have taken advantage of the normal path to appeal.

“In light of the foregoing, the Court does not reach and expresses no opinion on the merits of the issues raised,” the court wrote in dismissing the appeal.

The case is People v. Quiroz.