People v. George

COLORADO COURT OF APPEALS 2017COA75

Court of Appeals No. 13CA1516
Arapahoe County District Court Nos. 11CR1503 & 12CR1029
Honorable Kurt A. Horton, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Matthew Wayne George,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE WEBB
Bernard and Dunn, JJ., concur

Announced June 1, 2017

Cynthia H. Coffman, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Karen M. Gerash, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 If a police officer conducts a warrantless search based on

consent — but a court suppresses evidence obtained because the

consent was invalid — does the law of the case doctrine prevent the

officer from lawfully obtaining the same evidence by applying to a

different judge for a search warrant, this time based on grounds

other than consent, and without using the fruits of the earlier

unlawful search in the application? If not, does the officer forfeit

that opportunity by failing to tell the second judge about the earlier

suppression order? These are novel questions in Colorado and have

been addressed infrequently elsewhere.

¶2 A jury convicted Matthew Wayne George of multiple offenses

arising from his sexual contact with two young girls whom he met

on the Internet. On appeal, he asserts two errors:

 data obtained by forensically examining a GPS device police

found in his car after conducting a warrantless search based

on third-party consent should have been suppressed, despite

later issuance of a warrant to search the device; and

 the cases involving the two victims, which had been separately

charged, were improperly joined for trial.

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 The Attorney General concedes that George preserved both issues

for appeal.

¶3 We reject George’s law of the case and forfeiture arguments,

conclude that the GPS evidence was admissible because the

warrant represented an independent source, and further conclude

that the trial court did not abuse its discretion in joining the cases.

Therefore, we affirm.

I. Background

¶4 According to the prosecution’s evidence, George met then

fourteen-year-old A.R. on an Internet dating website. She testified

to several sexual encounters with him at various locations, some of

which involved force. Later that year, then twelve-year-old G.D.

also met George on a dating website. She testified about a sexual

encounter with him in his car. The victims were strangers.

¶5 George admitted having met the victims on the Internet but

challenged their credibility as to any sexual contact having

occurred. He did not testify.

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 II. The Trial Court Did Not Err in Denying George’s Motion to
Suppress the Fruits of a Second Search of his GPS Device

¶6 Following George’s arrest and inability to post bond, he was

evicted from his apartment. Then the landlord had George’s car

towed from the premises. The towing company kept the car at its

impound lot. The lead investigator obtained the towing company’s

consent to search the car.

¶7 In it, he found a GPS device. Instead of seeking a warrant to

search the device, the investigator obtained the company’s consent

to examine it. Data obtained from a forensic examination showed

movements generally consistent with the victims’ testimony about

their meetings with George.

¶8 George moved to suppress, challenging both the search of his

car and the examination of the GPS device. The trial court ruled

that the towing company’s consent to search the car was valid1 but

that its consent to search the GPS device was not. The court also

rejected the prosecution’s argument that the investigator conducted

the search in good faith. It suppressed evidence obtained from

examination of the device.

1 George has not appealed this ruling.

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¶9 But the story does not end here. Rather than appealing the

suppression order under section 16-12-102(1), C.R.S. 2016, the

prosecution directed the investigator to seek a search warrant for

the GPS device — which remained in police custody — from a

different magistrate. The investigator did not specifically refer to

any data obtained from examination of the GPS device in the

warrant application. Nor did he disclose the earlier suppression

ruling. After the warrant was issued, the investigator had the

device forensically reexamined, apparently yielding the same

results.

¶ 10 To no one’s surprise, George again moved to suppress. He

argued that under the law of the case doctrine, the prosecution

could not dodge the prior suppression ruling by belatedly seeking a

search warrant. The prosecution responded that the warrant

triggered the independent source doctrine. The prosecution also

requested the court to reconsider its earlier ruling on consent.

George replied that because the fruits of the unlawful search had

been used in the warrant application — and even if not, had

motivated the investigator to seek the warrant — the second search

was not truly independent.

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¶ 11 The court held a hearing. The investigator testified that had

the towing company not given consent based on asserted ownership

of the car and its contents, including the GPS device, he would have

sought a search warrant. E-mails predating the consent search

corroborated this testimony. He also testified that the warrant

application did not refer to the fruits of the initial examination of

the device, but did include background information from a report

that he had prepared following the consent search.

¶ 12 The trial court declined to reconsider its earlier suppression

ruling. Then the court denied the motion to suppress based on the

independent source doctrine. In doing so, it found that the decision

to seek the warrant had not been based on the fruits of the initial

unlawful search and information from that search had not been

presented to the magistrate as a basis for seeking the warrant.

A. Standard of Review and Law

¶ 13 Four familiar principles provide a legal framework.

¶ 14 First, review of a trial court’s suppression order presents a

mixed question of fact and law. People v. Hyde, 2017 CO 24, ¶ 9. A

reviewing court defers to the trial court’s findings of fact that are

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 supported by the record, but it assesses the ultimate legal effect of

those facts de novo. Id.

¶ 15 Second, the exclusionary rule is a judicially created remedy

designed primarily to deter unlawful searches and seizures by law

enforcement officials. People v. Morley, 4 P.3d 1078, 1080 (Colo.

2000). Under this rule, “evidence obtained in violation of the

Fourth Amendment and article II, section 7 of the Colorado

Constitution” must usually be suppressed. Id.

¶ 16 Third, the independent source doctrine is an exception to the

exclusionary rule. According to this doctrine, “the

unconstitutionally obtained evidence may be admitted if the

prosecution can establish that it was also discovered by means

independent of the illegality.” Id. (quoting People v. Schoondermark,

759 P.2d 715, 718 (Colo. 1988)). It applies “[s]o long as a later,

lawful seizure is genuinely independent of an earlier, tainted one.”

Id. at 1081 (alteration in original) (quoting Schoondermark, 759 P.2d

at 719). Like a suppression order, this doctrine presents a mixed

question of fact and law. See People v. Cruse, 58 P.3d 1114, 1120

(Colo. App. 2002).

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¶ 17 Fourth, another exception may arise “when, despite an

otherwise invalid warrant, a trial court nonetheless admits evidence

because the officer(s) that executed the warrant had a reasonable

good faith belief that the search was in accord with the Fourth

Amendment.” People v. Cooper, 2016 CO 73, ¶ 10. “Colorado

codified the good faith exception to the exclusionary rule at section

16-3-308(4), C.R.S. (2016).” Id. at ¶ 11.

B. Application

1. The Legality of the Initial Search is Not Properly Before Us

¶ 18 We begin with the Attorney General’s argument that the data

obtained from the initial warrantless search of the GPS device

should not have been suppressed because the search was

conducted in good faith. Were we to agree, the validity of the

second search would be moot, ending further analysis.

¶ 19 According to the answer brief, “it was reasonable for the

investigator to believe that the manager of the towing company had

the authority to consent to the search.” The answer brief goes on to

assert that the Attorney General “may defend the trial court’s denial

of a motion to suppress on any ground supported by the record.”

See People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006) (“On

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 appeal, a party may defend the trial court’s judgment on any

ground supported by the record, whether relied upon or even

considered by the trial court.”).

¶ 20 George responds that we should not address this argument

because it was “litigated and rejected” by the trial court in granting

the first suppression motion and the prosecution failed to seek

interlocutory review of that ruling under section 16-12-102(2). We

agree with George, although for a somewhat different reason.

¶ 21 True enough, “even if a consenting third party lacks actual

authority, if a police officer reasonably believes that such third

party has authority to consent to a search, the search is not

unconstitutional.” People v. Upshur, 923 P.2d 284, 287 (Colo. App.

1996). But in the first suppression hearing, the trial court rejected

this very argument:

When it became apparent there was
uncertainty as to . . . legal authority to consent
to a search of the GPS . . . the investigator
could and should have consulted legal counsel
or simply requested a warrant from a
disinterested magistrate.

¶ 22 The prosecution could have appealed this ruling under section

16-12-102(2) and C.A.R. 4.1, which together provide for

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 “interlocutory appeal[s] to challenge certain types of adverse

suppression rulings, including the suppression of evidence obtained

from a search that the trial court deemed unlawful.” People v.

Zuniga, 2016 CO 52, ¶ 11. Review must be sought “within 14 days

after the entry of the order complained of.” C.A.R. 4.1(b). No such

appeal was taken.

¶ 23 “Appeals by the prosecution are permitted in this state

pursuant to . . . [s]ection 16-12-102.” People v. Hinchman, 40 Colo.

App. 9, 13, 574 P.2d 866, 869 (1977), aff’d in part and rev’d in part,

196 Colo. 526, 589 P.2d 917 (1978). And “interlocutory appeals

authorized by statute are permissive rather than mandatory.”

People v. Moore, 226 P.3d 1076, 1091 (Colo. App. 2009) (quoting

People v. Richardson, 58 P.3d 1039, 1047 (Colo. App. 2002)). Thus,

mere failure to file an interlocutory appeal under section 16-12-

102(2) does not automatically preclude an appeal under section 16-

12-102(1), once final judgment has been entered.

¶ 24 But the procedural question before us goes beyond timing.

Because appeals taken by the prosecution “are strictly limited by

law,” People v. Martinez, 22 P.3d 915, 919 (Colo. 2001) (quoting

People v. Tharp, 746 P.2d 1337, 1339 (Colo. 1987)), the

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 requirements of section 16-12-102(1) must still be met. This

section is narrow. It permits the prosecution to appeal “any

decision of a court in a criminal case upon any question of law.”

§ 16-12-102(1). Combining these principles, because an appeal

under this section “is necessarily limited to questions of law only,” it

“does not give the [prosecution] a basis upon which to challenge the

trial court’s assessment of the evidence.” Martinez, 22 P.3d at 919

(dismissing appeal by People that implicated not purely legal

questions, but factual questions whose resolution fell within

province of trial court).

¶ 25 By any fair reading, the trial court rejected the good faith

argument at the first suppression hearing. Thus, the Attorney

General is appealing that ruling, not — as in Aarness, 150 P.3d at

1277 — merely “defend[ing] the trial court’s judgment” to suppress

at the second hearing on a different ground.2 With Aarness beyond

2 No notice of appeal or cross-appeal has been filed. Under C.A.R.
4(b)(2), “[u]nless otherwise provided by statute or Colorado appellate
rule, when an appeal by the state or the people is authorized by
statute, the notice of appeal shall be filed in the Court of Appeals
within 49 days after the entry of judgment or order appealed from.”
In addition, “C.A.R. 4(b) mandates that both parties submit their
notices of appeal during the same . . . period. The rule does not

10
 reach, the Attorney General’s argument can raise only a question of

law. And therein lies the problem.

¶ 26 Unless the parties have stipulated to the facts, a ruling on a

motion to suppress is not a pure question of law under section

16-12-102(1). To the contrary, “[w]hen ruling on a motion to

suppress, a trial court ‘must engage both in factfinding — a specific

inquiry into the historical phenomena of the case — and law

application, which involves the application of the controlling legal

standard to the facts established by the evidence.’” People v. King,

16 P.3d 807, 812 (Colo. 2001) (quoting People v. Quezada, 731 P.2d

730, 732 (Colo. 1987)); see also People v. Gabriesheski, 262 P.3d

653, 658 (Colo. 2011) (“While in limine evidentiary rulings may

involve the construction of statutes or rules, or some similar

question of law, a trial court’s decision to admit or exclude evidence

is not, in and of itself, an appealable question of law . . . .”).

¶ 27 Examining People v. Welsh, 176 P.3d 781, 791 (Colo. App.

2007), sounds the death knell for the Attorney General’s position.

There, the Attorney General had cross-appealed under section

provide for sequential submissions, as is provided for civil cross-
appeals.” People v. Gilmore, 97 P.3d 123, 128 (Colo. App. 2003).

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 16-12-102(1) two trial court evidentiary rulings. In addressing one

of the rulings, the division explained that while “evidentiary rulings

are matters committed to a trial court’s discretion . . . [s]uch rulings

may nevertheless be appealable under [section] 16-12-102(1) if the

trial court made its ruling based on an assertedly erroneous

interpretation of the law.” Id. at 791.

¶ 28 But unlike in Welsh, here the Attorney General does not

challenge the trial court’s consent ruling based on a question of

law. Instead, the answer brief sets forth factual arguments about

consent to explain why the court erred in finding a lack of good

faith. For example, “the officer did make reasonable inquiries and

conducted independent legal research to confirm the towing

company’s authority to consent.”

¶ 29 For these reasons, the validity of the initial search is not

properly before us.

2. The Law of the Case Does Not Apply

¶ 30 Next, we turn to George’s argument that the trial court should

have suppressed data obtained from the second examination of the

GPS device because the first suppression order

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 was not only law of the case; it was an
unchallenged order that applied the
exclusionary rule. The prosecutor did not
appeal the ruling and the trial court did not
reconsider it. An exception to the exclusionary
rule cannot be established by an end-run
around an order finding its applicability.

This argument fares no better than the Attorney General’s attempt

to relitigate the validity of the initial search.

¶ 31 To be sure, under the law of the case doctrine, “[p]rior relevant

rulings made by the trial court in the same case are generally to be

followed.” People v. Roybal, 672 P.2d 1003, 1005 n.5 (Colo. 1983).

This rule makes sense because “courts generally . . . refuse to

reopen what has been decided.” People ex rel. Gallagher v. Dist.

Court, 666 P.2d 550, 553 (Colo. 1983) (quoting Messenger v.

Anderson, 225 U.S. 436, 444 (1912)). And it “protects litigants from

the expenditure of time and money involved in the reargument of

settled issues.” Super Valu Stores, Inc. v. Dist. Court, 906 P.2d 72,

79 (Colo. 1995).

¶ 32 As to appellate rulings, the law of the case doctrine means

that “[t]rial courts have no discretion to disregard” them. McGillis

Inv. Co., LLP v. First Interstate Fin. Utah LLC, 2015 COA 116, ¶ 58

(alteration in original) (quoting Hardesty v. Pino, 222 P.3d 336, 339

13
 (Colo. App. 2009)). Otherwise, this doctrine has been described as

a discretionary rule of practice when applied to a court’s power to

reconsider its own prior rulings. Id. And George seeks to invoke it

based on only the trial court’s earlier ruling.

¶ 33 Still, George relies on Roybal, 672 P.2d 1003, to argue that the

trial court’s initial ruling suppressing the contents of the GPS

device is the law of the case.

¶ 34 In Roybal, on the prosecution’s interlocutory appeal, the

supreme court upheld the suppression of written statements given

by the defendant because probable cause did not exist for his

arrest. Id. at 1004. After that decision, the defendant moved to

suppress the results of a blood alcohol test that also flowed from his

arrest. The trial court held that the prosecution was precluded

from presenting additional evidence on probable cause for the

arrest and suppressed the test results.

¶ 35 On a second interlocutory appeal, the supreme court again

affirmed. The court explained that trial court rulings “logically

necessary to the holding of the appellate court” — such as the

initial probable cause ruling — “become the law of the case.” Id. at

1005. It also cautioned that “the prosecution must be prepared to

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 abide the consequences of an adverse ruling when it elects not to

offer available probative evidence.” Id. at 1006.

¶ 36 Similar to this case, Roybal involved a prior suppression

ruling. But for two reasons, Roybal does not carry the weight that

George places on it.

¶ 37 First, in Roybal the trial court’s suppression ruling was

necessary to the holding of the supreme court, which had to be

followed in later proceedings. Here, no appellate court has ruled on

the suppression issue.

¶ 38 Second, unlike in Roybal, the issues decided in the two

suppression hearings differed. The first hearing involved the

validity of a warrantless search based on consent; the second

hearing turned on whether the second search was valid because the

warrant represented an independent source. See People v.

Washington, 179 P.3d 153, 166 (Colo. App. 2007) (finding that law

of the case did not apply where “the legal issue decided by the trial

court and the factual issue to be resolved by the jury were

different”), aff’d, 186 P.3d 594 (Colo. 2008). In other words, at the

second hearing the prosecution was not seeking to introduce

additional evidence on consent or, for that matter, good faith. And

15
 because the warrant had not yet been sought, the prosecution’s

independent source argument in the second hearing would have

been premature at the first hearing. See United States v. Dexter,

165 F.3d 1120, 1124 (7th Cir. 1999) (“The law of the case doctrine

should not be read so rigidly that it precludes a party from raising

an argument that it had no prior opportunity to raise.” (quoting

Bagola v. Kindt, 131 F.3d 632, 637 (7th Cir. 1997))).3

¶ 39 Comparing the following two cases shows why the law of the

case doctrine provides George no refuge.

¶ 40 In State v. Parry, 390 P.3d 879, 882-86 (Kan. 2017), the

defendant moved to suppress evidence obtained during a

3 Nor does collateral estoppel help George. See State v. Johnson,
191 Wash. App. 1008 (2015), 2015 WL 6873473, at *2, *3
(unpublished opinion) (The court addressed whether a trial court
ruling “on the validity of the first warrant was binding on any
subsequent application for a warrant to search the same records.”
In declining to apply collateral estoppel, the court explained that
“the warrant the court determined to be invalid was a different
warrant from the warrant that later authorized the search of the cell
phone and seizure of the data.”); see also State v. Seager, 571
N.W.2d 204, 207 (Iowa 1997) (considering situation where the
prosecution had dismissed murder charges against the defendant
based on an invalid search warrant, and after a second warrant was
obtained, new charges were filed; on appeal, the supreme court
declined to apply collateral estoppel to the warrant issue because
the latter case involved the validity of the second warrant, whereas
the issue decided in the earlier proceeding was the validity of the
first warrant).

16
 warrantless search. The trial court rejected the prosecution’s

consent argument. On the prosecution’s interlocutory appeal, the

suppression ruling was upheld.

¶ 41 The prosecution then dismissed the first case without

prejudice and refiled the charges. Again, the defendant moved to

suppress. This time, the prosecution argued that exigent

circumstances existed or, alternatively, that the evidence inevitably

would have been discovered. Id. at 881. But the trial court still

sided with the defendant.

¶ 42 Undaunted, the prosecution took another interlocutory appeal.

The Kansas Court of Appeals upheld the second suppression ruling

based on law of the case, and the supreme court affirmed. It agreed

with the court of appeals that “[t]he State wanted a do-over on the

issue of the constitutionality of the police search of [the defendant’s]

residence . . . so it could assert arguments it failed to raise during

the first hearing.” Id. at 885 (quoting State v. Parry, 358 P.3d 101,

104 (Kan. Ct. App. 2015)). The supreme court further agreed that

“[t]he State wants to garner another hearing in the [trial] court to

make additional arguments on the issue. Law of the case aims to

prevent precisely that sort of repetitive airing of points already

17
 decided in the [trial] court and reviewed on appeal.” Id. (quoting

Parry, 358 P.3d at 104).

¶ 43 In contrast, the court in United States v. Hanhardt, 155 F.

Supp. 2d 840, 845-53 (N.D. Ill. 2001), declined to apply the law of

the case doctrine. There, the police conducted a warrantless search

of the defendant’s briefcase, and a trial court granted his motion to

suppress all evidence obtained from the briefcase. This ruling was

upheld on appeal. Then the police sought and obtained a warrant

to search the briefcase, which had remained in police custody.

Again, the defendant argued that the evidence must be suppressed

— this time because the appellate court ruling upholding the first

suppression order was law of the case.

¶ 44 Applying the independent source doctrine, the Hanhardt court

held that evidence discovered in the second search of the

defendant’s briefcase based on the warrant was admissible, despite

suppression of the same evidence in the earlier case. Id. at 849.

The court declined to apply law of the case because “the issues in

this motion are not the same matters that were presented to the

[appellate court].” Id. at 855. Specifically, the appellate decision

“decided the admissibility of evidence obtained from [the

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 defendant’s] briefcase during the warrantless . . . search,” whereas

“[t]he issues here are . . . the applicability of the independent source

doctrine and the admissibility of the same evidence found during

the search executed pursuant to . . . [a] warrant. Id. at 853.

¶ 45 Returning to the case before us, had the prosecution

attempted to relitigate consent, or to advance new reasons to

support the warrantless search — as in Parry — the question would

be closer. But our case is more like Hanhardt. The warrant at

issue in the second suppression hearing raised a different issue —

independent source — that was not and could not have been raised

at the first suppression hearing.

¶ 46 In sum, we decline George’s invitation to apply the law of the

case doctrine. Our conclusion leaves George with only the

argument that the warrant was not an independent source of the

evidence. This argument also falls short.

3. The Warrant Was Based On an Independent Source

¶ 47 The independent source doctrine raises two questions. First,

was “the decision to seek the warrant . . . prompted by what was

observed during the initial entry”? Schoondermark, 759 P.2d at

719. Second, was “information obtained during that entry . . .

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 relied upon by the magistrate in issuing the warrant”? Id.

Addressing each question in turn, we answer both “no.”

a. The Decision to Seek the Warrant Was Independent of the Fruits
of the Earlier Unlawful Search

¶ 48 The first inquiry focuses on whether law enforcement “would

have sought the warrant even if they had not” obtained useful

information from the earlier unlawful search. Id.

¶ 49 The trial court found, with record support, that had the towing

company not asserted ownership of the GPS device and given its

consent to examination, the investigator would have sought a

warrant to search the device. This finding supports the court’s

conclusion that the investigator did not later seek a warrant based

on the fruits of the warrantless search. Also, it avoids the need for

a remand to address whether “the officers would have sought the

warrant even absent the information gained by the initial illegal

entry.” Id.

¶ 50 Still persisting, George asserts that the investigator was not

motivated by an independent source because the warrant was

“intended [as a] curative measure to circumvent a valid court

order”; and in any event, the warrant application “was deceptive to

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 the issuing judge to whom the fact of the suppression order was not

disclosed.”

i. Motive

¶ 51 Somewhat attractive at first blush, George’s motive argument

ultimately misses the mark because it misapprehends the

independent source doctrine. See People v. Pahl, 169 P.3d 169, 175

(Colo. App. 2006) (The independent source doctrine focuses on

whether the warrant “was based upon information independent

from what was observed during the illegal search.”).

¶ 52 True, absent the suppression order, the investigator would

have had no reason to seek a warrant. After all, until the evidence

was suppressed, the investigator had relied on the towing

company’s consent. But this observation only gets George half way.

¶ 53 While the suppression order prompted the investigator to seek

a warrant, the objective of avoiding the consequences of that order

does not equate to an improper motive arising from the fruits of the

unlawful search. Otherwise, mere existence of such an order would

invariably swallow the independent source exception. This is so

because if an earlier — and unlawful — search bore no fruit, a

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 defendant would never move to suppress, and law enforcement

would never seek to develop an independent source.

¶ 54 A similar assertion was rejected in Hanhardt, 155 F. Supp. 2d.

at 852. The court explained that the “proffered reason for seeking a

warrant, the outcome of the suppression litigation . . . , is a valid

reason to seek a warrant, and is not based on anything learned

from the [unlawful] search.” Id.; see also United States v. Johnson,

994 F.2d 980, 987 (2d Cir. 1993) (Applying the independent source

doctrine to illegally seized tapes where “[o]nce the district court

expressed reservations about the legality of the review of the tapes,

the government realized that a warrant was necessary.”).

¶ 55 We agree with this reasoning and decline to hold that the

decision to seek a warrant because of a prior suppression order

alone precludes the warrant from being an independent source.

ii. Deception

¶ 56 As to George’s second argument, everyone would agree that

the investigator did not tell the magistrate who issued the warrant

about the prior unlawful search or the suppression order. Although

the record does not tell us why, does the investigator’s failure to do

22
 so vitiate the second search? This question is closer and the few

courts to have addressed it are divided.

¶ 57 On the one hand, State v. Krukowski, 100 P.3d 1222, 1223

(Utah 2004), addressed “whether police officers seeking a search

warrant are obligated to disclose to the magistrate a prior illegal

entry onto the premises to be searched.” There, the defendant

successfully “moved to suppress th[e] evidence on the ground that

the police officers had not informed the magistrate of the prior

illegal entry when seeking the warrant.” Id. The supreme court

reversed, holding:

[P]olice officers are not required to disclose
prior illegal entries when seeking a search
warrant; such entries are simply not material
to a magistrate’s determination of probable
cause, and the potentially prejudicial effect of
disclosing to the magistrate a prior illegal entry
outweighs any conceivable benefit to be
obtained from it.

Id. at 1225. It noted the “importance of candor in the search

warrant process,” but explained that a

[p]olice officers’ duty to be candid to
magistrates when seeking warrants does not
impose an affirmative duty on them to disclose
matters immaterial to a determination of
probable cause. Here, the prior illegal entry
does not bear upon probable cause, which

23
 must be established on the basis of
circumstances existing and evidence observed
independent of the illegal entry.

Id. at 1226.

¶ 58 On the other hand, in United States v. Whitworth, 856 F.2d

1268, 1281-82 (9th Cir. 1988), the court held:

We do not believe it is proper for law
enforcement officials to withhold information
regarding prior searches of the same premises
from magistrates considering warrant
applications. If “taint” is feared, the better
practice is to advise the magistrate that an
earlier consent search had been conducted and
provide the reasons why a warrant is still
required. The affiant could affirmatively state
that nothing obtained in the first search is
being relied on in seeking the warrant. At that
point, the magistrate can properly evaluate the
situation and determine whether probable
cause still exists.

(Emphasis added.) Still, the court concluded “[o]n these facts, the

failure to disclose the limited consent search could not have

affected the decision to issue the warrant. The government’s

application was extensive and did not rely on any of the evidence

seized earlier.” Id. at 1282.4

4 See also Cruse v. State, 584 P.2d 1141, 1145-46 (Alaska 1978)
(“Although we hold that the second search was not tainted by the
assumed illegality of the first intrusion, we believe it is necessary to

24
¶ 59 By any reckoning, the better practice would be for the

requesting officer to tell the issuing magistrate about a prior

unlawful search or suppression order. Even so, the failure to do so

does not necessarily mean that the fruits of the earlier unlawful

search impermissibly motivated law enforcement. And the

independent source doctrine looks no deeper into motive.

¶ 60 In issuing the warrant, the magistrate was unaware of the

prior unlawful search or suppression order. Of course with such

knowledge, the magistrate might well have examined the warrant

application more rigorously. See Krukowski, 100 P.3d at 1227

(“[P]rior illegal entry . . . is material to a trial court’s assessment of

the officer’s credibility and the independent source doctrine in the

context of a motion to suppress.”).

¶ 61 When conducting the suppression hearing, however, the trial

court knew the whole story. One might wonder whether

address the investigator’s failure to inform the district court that a
search had already been conducted. Appellant argues that if prior
police misconduct can be concealed from the court, and thereby
protect evidence which might otherwise be inadmissible, there will
be no deterrent against illegal searches. We agree that the
concealment of relevant material from the judge issuing the warrant
cannot be condoned. However, we cannot find that such
concealment vitiated the validity of the warrant in this case.”).

25
 concealment from the magistrate suggests broader mendacity of the

investigator. Even if so, the court could have considered

concealment in assessing the investigator’s testimony that the fruits

of the unlawful search had not motivated him to seek the warrant.

Indeed, defense counsel argued during the second hearing that the

investigator was intentionally circumventing the trial court by

submitting the warrant to the uninformed magistrate.

¶ 62 Despite all of this, George argues that allowing law

enforcement to seek a warrant after an adverse suppression ruling

“promotes the very misconduct [the independent source doctrine] is

designed to discourage.” But the independent source doctrine does

not discourage police misconduct. Rather, looming large over this

issue is the objective of the independent source doctrine. It has

been described as follows:

[T]he interest of society in deterring unlawful
police conduct and the public interest in
having juries receive all probative evidence of a
crime are properly balanced by putting the
police in the same, not a worse, position than
they would have been in if no police error or
misconduct had occurred . . . . When the
challenged evidence has an independent
source, exclusion of such evidence would put
the police in a worse position than they would
have been in absent any error or violation.

26
 Murray v. United States, 487 U.S. 533, 537 (1988) (alteration in

original) (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)).

¶ 63 Still, some may see following the independent source doctrine

as at odds with the deterrence that results from applying the

exclusionary rule. After all, were the Fourth Amendment to

categorically deny law enforcement a second bite at the apple,

officers might be more cautious; here, the investigator might have

sought a warrant rather than relying on the consent of a third party

who did not share George’s privacy interest. But in Murray, the

Supreme Court struck the balance differently. And the Supreme

Court rejected the argument that the independent source doctrine

“applies only to evidence obtained for the first time during an

independent lawful search.” Id.

¶ 64 Nor should one hastily conclude that falling back on the

independent source doctrine comes without a price. Law

enforcement agents relying on the independent source doctrine risk

suppression of evidence, and they increase their burden from one of

probable cause to the “much more onerous burden of convincing a

trial court that no information gained from the illegal entry affected

either the law enforcement officers’ decision to seek a warrant or

27
 the magistrate’s decision to grant it.” Id. at 540. So, the availability

of this do-over does not necessarily immunize law enforcement from

the consequences of earlier incautious action.

¶ 65 In the end, before the towing company gave its consent to

examine the GPS device, the investigator was prepared to seek a

warrant. Treating his mistaken belief in consent and the resulting

suppression order as forever barring the investigator from doing so

would place him in a worse position. Under binding Supreme Court

precedent, that we cannot do.

¶ 66 Instead, we turn to whether anything in the warrant

application was derived from the fruits of the prior unlawful search.

b. The Warrant Application Did Not Include Information from the
Fruits of the Unlawful Search

¶ 67 George fails to identify anything specific in the warrant

application to show that the investigator improperly presented the

magistrate with information derived from the initial examination of

the GPS device. To the contrary, the investigator’s affidavit

included the following information, which was wholly independent

of the unlawful search:

This Affiant is aware that GPS units are used
to assist in driving directions when traveling

28
 across country as well as to assist in finding
locations when moving to a new town. Based
on this Affiant’s training and experience, as
well [as] the knowledge this Affiant has
regarding the investigations involving both
victims . . . it is likely that [defendant] used
this vehicle to travel to meet with each victim.
[Defendant] could have used the . . . GPS
device . . . to assist him in finding those
locations.

¶ 68 The affidavit also explained that “while data [from GPS devices]

can be deleted[,] a forensic examination can often recover

information previously stored/searched which could be of

evidentiary value in the investigation of this case.” This description

is generic, unique to neither George’s device nor its contents.

¶ 69 Not easily deterred, George argues that the warrant

application was not independent because the investigator “directly

cop[ied] the information . . . from his first report.” He is correct, but

only to a point.

¶ 70 This report was prepared after the initial unlawful search. But

including in the affidavit information from the first report is

unsurprising because the report contained background from the

entire investigation. As the investigator explained during the

second suppression hearing:

29
 Q: That warrant did it include any information
that you had gained from the first search of
the GPS unit?

A: . . . [I]t’s very difficult to write something
. . . when you have other knowledge, so I tried
my best not to include things that were based
on the first search. I did use cut and paste
because the words are going to be the same.
Dates are going to be the same. The time
frames are going to be the same. My e-mails
are going to be the same. Nothing has
changed there. What I tried to avoid was any
knowledge I gained from the search itself.

See Morley, 4 P.3d at 1081 (applying independent source doctrine

where “the affidavit supporting the warrant relied only on facts

obtained during the undercover operation”).5

¶ 71 Instead, the proper question is whether the affidavit included

information from the report that related to the fruits of the unlawful

search. This question is one of law, which we answer by examining

the affidavit to determine whether any information derived from the

unlawful search was included, and if it was, whether by

5 See Schaffer, 739 P.2d at 327-28 (“Since the prior search warrant
was the subject of a suppression motion which was granted,
appellants assert that . . . [the officer’s] knowledge as to the location
of appellants’ residence . . . should not be used as a basis for
securing a later search warrant. We disagree. Appellants have
cited no authority for the proposition that an officer cannot
participate in a second search warrant if the officer engaged in a
prior invalid search warrant.”).

30
 disregarding the unlawfully obtained information, the remaining

lawfully obtained information establishes probable cause. People v.

Sprowl, 790 P.2d 848, 849 (Colo. App. 1989); see Cruse, 58 P.3d at

1121 (“[T]he question whether illegally obtained information

included in a warrant affidavit affected the issuing court’s decision

is a question of law.”).

¶ 72 Doing so, we do not reach the second tier of this analysis

because we are unable to identify any information from the

unlawful search in the affidavit. Nor, as indicted above, does

George direct us to any such information. As a result, we

necessarily conclude that none of the “information obtained during

[the unlawful search] was relied upon by the magistrate in issuing

the warrant.” People v. Diaz, 53 P.3d 1171, 1177 (Colo. 2002)

(quoting Schoondermark, 759 P.2d at 719).

¶ 73 Therefore, we uphold the trial court’s decision not to suppress

evidence from the GPS device.

31
 III. The Trial Court Did Not Abuse Its Discretion in Joining the
Cases for Trial

¶ 74 Before trial, the prosecution moved to join the cases involving

A.R. and G.D. George objected. After a hearing, the trial court

granted the motion.

¶ 75 The court found that evidence from each case would be

admissible in the other under section 16-10-301, C.R.S. 2016, and

CRE 404(b) because “the other act evidence indicates more than

bad character, namely common plan or scheme; intent/mental

state; identity; motive/absence of mistake; and lack of recent

fabrication.” It also found “no persuasive showing that the evidence

in one case is substantially stronger than in the other case so as to

preclude consolidation,” and “no persuasive showing that a jury will

be unable to separate the facts and legal theories applicable to each

offense or that consolidation prevents [George] from testifying in one

separate case and not the other.”

¶ 76 On the first day of trial, George renewed his objection and

moved to sever the cases. He argued that because A.R. had

“admitted to the prosecution that she had lied to law enforcement

regarding the sexual encounter with [George] in the public park,”

32
 joining the cases would cause the jury to “overlook the significant

credibility issues with A.R.” Again, the court denied the motion. At

the end of the trial, it instructed the jury to consider each charge

separately from all other charges.

A. Standard of Review and Law

¶ 77 “Subject to the relief afforded in Crim. P. 14, a trial court may

order two or more criminal complaints to be tried together if the

offenses could have been joined in a single complaint.” People v.

Gregg, 298 P.3d 983, 985 (Colo. App. 2011) (citing Crim. P. 13).

Two or more offenses may be joined in a single complaint if, among

other things, they are part of a common scheme or plan. Id. (citing

Crim. P. 8(a)(2)); see also People v. Williams, 899 P.2d 306, 313

(Colo. App. 1995).

¶ 78 A trial court’s decision to join separate charges for trial is

reviewed for an abuse of discretion. Gregg, 298 P.3d at 985. The

trial court does not abuse its discretion unless the consolidation

causes actual prejudice to the defendant. Id.

¶ 79 As relevant here, the defendant cannot show prejudice where

evidence of each offense would have been admissible in separate

trials. Id. at 986; see People v. Curtis, 2014 COA 100, ¶ 16 (“Sexual

33
 assault offenses may be joined if the evidence of each offense would

be admissible in separate trials.”). Under CRE 404(b) and section

16-10-301(3), the trial court may admit evidence of other acts to

establish, for example, motive, opportunity, intent, preparation,

common plan or scheme, knowledge, identity, or absence of mistake

or accident.

B. Application

¶ 80 George argues that evidence related to A.R. and G.D. “was not

sufficiently similar” to be admissible in separate trials to establish a

common plan or scheme under CRE 404(b) and section

16-10-301(3).6 But the trial court rejected this very argument,

finding that

[George] contacts young females over the
internet, requests personal information about
them, offers to date or establish a relationship
with them, then meets with them in a
semi-public area near the child’s home at

6 George also disputes admissibility to show intent, identity,
absence of mistake, or fabrication. However, because we uphold
the trial court’s ruling on common plan or scheme, we need not
address these arguments. See People v. Copeland, 976 P.2d 334,
337 (Colo. App. 1998) (“Because the trial court’s ruling concerning
admissibility to prove motive is not manifestly arbitrary,
unreasonable, or unfair . . . we need not determine whether the
evidence was admissible for [opportunity, plan, or identity].”), aff’d,
2 P.3d 1283 (Colo. 2000).

34
 which time he moves quickly to isolate them
and establish a sexual relationship.

The court created a chart (see infra Appendix) that set forth the

many similarities and few differences between the two victims.

¶ 81 Then the court explained that “although there are some

differences between the way the alleged sexual contacts occurred

with regard to A.R. and G.D. the acts are such that they are

naturally to be explained as individual manifestations of a general

plan or course of conduct.” It further held that the evidence was

“logically relevant to show [George’s] tendency to commit an act in a

particular way, as opposed to his general character, and the

evidence makes it at least somewhat more probable that [George]

committed the crimes alleged.”

¶ 82 George does not dispute the similarities found by the trial

court. Instead, to argue against common plan, he emphasizes the

dissimilarities between the victims noted by the trial court. But this

emphasis ignores the larger point: “[C]ommon plan evidence does

not depend entirely on the similarity between the charged and

uncharged acts to be admissible.” People v. Williams, 2016 COA 48,

¶ 31.

35
¶ 83 Examples of permissible dissimilarity abound. In “sexual

assault cases, such evidence is admissible even when the other

misconduct involved different victims.” Williams, 899 P.2d at 312.

Nor need common plan evidence “be part of one ongoing

transaction.” People v. Casper, 641 P.2d 274, 275 (Colo. 1982).

Rather, “[i]n order for two or more acts to constitute a scheme, they

must have a nexus with each other from which a continuous

scheme or common design can be discerned.” People v. Close, 867

P.2d 82, 87 (Colo. App. 1993), disapproved of on other grounds by

Bogdanov v. People, 941 P.2d 247 (Colo. 1997), amended, 955 P.2d

997 (Colo. 1997).

¶ 84 The trial court acted well within its discretion in finding that

evidence related to A.R. and G.D. met this broader standard.7 As

the chart shows, the victims were nearly the same age when George

contacted them, he met them in the same way and near the same

time, and he initiated personal contact with them for the same

purpose. See People v. Jones, 2013 CO 59, ¶ 27 (“[T]he evidence

7 George argues “the trial court did not find that evidence of one
case was necessary to prove a material issue in the other.” But he
cites no authority adopting this standard. Rather, the test is
whether the evidence would have been admissible in the separate
trials.

36
 could lead to the inference that Jones had a common plan, scheme,

or design to have sexual relations with white women who had been

drinking without their consent late at night while holding their

mouths closed.”); People v. Janes, 942 P.2d 1331, 1336 (Colo. App.

1997) (finding evidence of prior sexual assault convictions

admissible to show common plan despite seven-year time difference

because of the level of similarity); People v. Delgado, 890 P.2d 141,

143-44 (Colo. App. 1994) (noting that while evidence of common

plan typically requires “a nexus or relationship . . . a series of acts

of sufficient similarity” may also allow such an inference).

¶ 85 Because George has not shown prejudice, we conclude that

the trial court properly joined the trials involving A.R. and G.D.

IV. Conclusion

¶ 86 The judgment is affirmed.

JUDGE BERNARD and JUDGE DUNN concur.

37
 Appendix

Similarity 11CR1503 12CR1029
Child’s sex Female Female
Child’s age 14 12
Source of contact On-line Mocospace On-line INVU.com
Child’s age promptly Yes Yes
disclosed to
perpetrator
Adjustment Yes Yes
problems in child’s
family
Proximity in time of February/March Approximately
first contact 2011 March-June 2011
Perpetrator Yes Yes
communicated with
the child over the
internet
Perpetrator Yes Yes
communicated with
the alleged victim by
text
Perpetrator Yes Yes
identified himself as
“Matthew George”
Perpetrator Yes Yes
requested the
alleged victim “go
out with him” or be
his girlfriend
Perpetrator Yes Yes
requested photos or
“naughty” – type
photos from the
alleged victim
Perpetrator Yes Yes
requested
information on
child’s physical

38
attributes
Proximity in time of April 3, 2011 Sometime in March-
first meetings June 2011
Perpetrator arranged Yes (park) Yes (cemetery and
for first meeting at a elementary school
semi-public area after school hours)
near the alleged
victim home
Perpetrator arranged Yes Yes
for meeting with no
other persons
present
Encounter quickly Yes Yes
becomes sexual
Nature of sexual Included fondling of Included fondling of
contact breasts and kissing breasts and kissing
Perpetrator inquired Yes Yes
about going to
perpetrator’s home
or the alleged
victim’s home

Dissimilarity 11CR1503 12CR1029
Perpetrator provided Yes No
the alleged victim a
cell phone to use to
contact him
Number of sexual Multiple One
contacts
Nature of sexual Included sexual Included digital
contacts intercourse and oral penetration and
sex forced masturbation
of the perpetrator
Perpetrator took Yes No
photos of the alleged
victim

39