The Colorado Supreme Court In Denver

The Ralph L. Carr Colorado Judicial Center in downtown Denver, home of the Colorado Supreme Court.

Jefferson County prosecutors may not use evidence obtained from a murder suspect’s cell phone because they failed to prove it was exempt from the constitutional ban on unreasonable searches and seizures, the Colorado Supreme Court decided by 5-2.

Courts generally exclude from evidence illegally-obtained materials pursuant to the Fourth Amendment. There are exceptions, including  evidence that is discovered independently of any illegal conduct by investigators. The majority of justices determined on Monday that a second warrant to search the suspect’s cell phone did not appear to operate separately from an initial, unlawful warrant.

On Oct. 18, 2019, Lakewood police responded to the Blue Sky Motel where they found 32-year-old Brittany Guern unresponsive and with a gunshot wound to the head. She died shortly thereafter.

A witness identified Asha Thompson, then 32, as the shooter, and police arrested him at a different motel. Officers obtained a warrant authorizing them to seize cell phones and other electronic devices. The warrant allowed law enforcement to download and examine any cell phones seized.

However, after police sent Thompson’s phone to a laboratory, the Supreme Court issued a decision in April 2020 for a different case barring the contents of a woman’s cell phone from being used in her trial, in which she stood accused of sexually assaulting a 15-year-old boy. The warrant in that instance, the justices determined, was overly broad and not tailored to the contours of the assault case.

Two months after the Supreme Court’s ruling, the forensic laboratory completed its data download of Thompson’s cell phone.

The defense moved to suppress the information at trial, arguing the warrant failed to comply with the High Court’s requirement that it be tailored to the criminal case at hand. Jefferson County District Court Judge Laura A. Tighe sided with Thompson, saying the warrant did not “even come close” to being tailored. 

She also rejected prosecutors’ contentions that police had acted in good faith and that a second, more specific warrant officers had obtained provided lawful evidence independent of the first data download. A second warrant, after prosecutors had already found useful information by executing the first, was still improper, the judge said.

The First Judicial District Attorney’s Office appealed directly to the Supreme Court, where a majority of justices agreed that prosecutors failed to show the data downloaded after the second warrant was wholly unrelated to what they learned from the first download.

“Specifically, nothing in the record before us indicates that the second warrant was sought or obtained independently of the prior, defective warrant,” wrote Justice Richard L. Gabriel. Prosecutors could not fix the problem of the first warrant “simply by procuring a new warrant and ‘obtaining’ the evidence a second time (notwithstanding the fact that they had the evidence in their possession the entire time), without showing that the later seizure was genuinely independent of the earlier, tainted one.”

The district attorney's office declined to comment on the decision.

Justice Monica M. Márquez and Chief Justice Brian D. Boatright both authored their own dissenting opinions. Márquez slammed the prosecution for its “failure to clear what is an admittedly low bar” by not explaining how the evidence was an integral part of the case against Thompson. Because state law requires such a narrative, she believed the court had to dismiss the appeal.

Boatright, by contrast, blamed the district court judge for blocking the prosecution's effort to justify the data collected from the second warrant, saying Tighe had misunderstood the legal standard.

“To be clear, while discussing the second warrant at the hearing, the trial court insisted that the information obtained from the second warrant must be different from what was obtained in the first. In fact, the judge stated, ‘[T]hose are my terms,’” Boatright wrote. “But no such requirement exists.”

Boatright also was concerned that both the majority and Márquez had given Supreme Court justices the task of judging the criticality of evidence in similar situations going forward, which he emphasized was a departure from previous practice.

The case is People v. Thompson.

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