People v. Tallent

• Decision Date: 27 September 2021
• Docket Number: Supreme Court Case No. 20SC205
• Citation: 495 P.3d 944
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Randy D. TALLENT, Respondent.
• Court: Colorado Supreme Court

495 P.3d 944

The PEOPLE of the State of Colorado, Petitioner,

v.Randy D. TALLENT, Respondent.

Supreme Court Case No. 20SC205

Supreme Court of Colorado.

September 27, 2021

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, L. Andrew Cooper, Senior Assistant Attorney General, Denver, Colorado

Attorney for Respondent: Joseph T. Goodner, Englewood, Colorado

En Banc

JUSTICE HART delivered the Opinion of the Court.

¶1 Two years ago, in People v. Morehead , 2019 CO 48, 442 P.3d 413, we recognized that when a suppression ruling is reversed on appeal, the trial court has discretion on remand to entertain new arguments and evidence from either party in its resolution of any remaining suppression-related issues not foreclosed by the decision of the appellate court. In this case, a division of the court of appeals, purporting to apply Morehead , announced a new two-step, multifactor test that trial courts would be required to apply when exercising that discretion. See People v. Tallent , 2020 COA 14, ¶¶ 18–20, 490 P.3d 557, 562 (" Tallent III " ). Because the trial court relied on new arguments without explicitly applying that novel test, the division reversed Joseph Tallent's conviction and remanded for the trial court to apply the test retroactively. Id. at ¶¶ 25–26, 28, 490 P.3d at 563.

¶2 We reject the division's approach, which strays from our decision in Morehead and imposes unnecessary constraints on trial courts. Further, based on the existing record in Tallent's case, we conclude that the trial court did not err in considering the People's new arguments on remand. We therefore reverse the division's judgment and remand for consideration of Tallent's remaining arguments on appeal.

I. Facts and Procedural History

¶3 In January 2007, police arrested Tallent after he spontaneously ran when he saw nearby police officers, eluded the officers in a chase through several backyards, and hid on a covered porch. After the arrest, police discovered an outstanding felony warrant for Tallent. Subsequent searches of his person, his car, and an unlocked garage where he was first sighted uncovered a variety of stolen and unlawful items. Police also monitored Tallent's phone calls in jail over the following months, which led them to more stolen property.

¶4 Before trial, Tallent moved to suppress all evidence and statements obtained as a result of his arrest, his interactions with police, and the various searches they had conducted. The court held an evidentiary hearing, during which the parties and the court engaged in colloquy as to whether the initial interaction between Tallent and the police was in fact an arrest or whether it was better characterized as an investigatory stop, for which the police would need only reasonable suspicion. During that hearing, the People began to discuss the doctrines of inevitable discovery and independent source—both exceptions to the exclusionary rule—but the court said "[c]ome back with other doctrines." On July 18, 2007, the trial court issued an oral ruling that the police had lacked probable cause for the arrest. At that hearing, the court acknowledged that "perhaps you would want to make additional comments in light of the actual ruling as to the arrest." The People indicated that they might want to take an interlocutory appeal of the ruling. On July 20, 2007, however, the court, "upon further analysis," issued a written order concluding that Tallent's arrest was in fact constitutional. The court thus admitted the evidence at trial.¹ Tallent was convicted as charged.

¶5 On direct appeal, a division of the court of appeals reversed Tallent's conviction and remanded for a new trial. People v. Tallent , No. 09CA0981, 2012 WL 3537006 (Aug. 16, 2012) (" Tallent I "). The division concluded that "[b]ecause Tallent was arrested without probable cause, evidence obtained as a result of that arrest should not have been admitted at trial." Id. at 21.

¶6 On remand, the People argued that even though the arrest was unconstitutional, the evidence they found could still be admitted under various exceptions to the exclusionary rule because the police had the reasonable suspicion necessary to justify their initial stop as an investigatory stop. Tallent disputed the exceptions’ applicability and argued that all of the evidence should be suppressed. After reviewing the parties’ briefing, the record of the prior suppression proceedings, and additional evidence presented by the parties on remand, the trial court issued a written order analyzing which post-arrest evidence could be admitted on retrial and which should be excluded. The court rejected the People's claim that no evidence should be suppressed because the outstanding felony warrant discovered after Tallent's arrest attenuated the link between the illegal arrest and the subsequent searches. However, the court agreed that certain evidence (such as Tallent's phone calls in jail and some of his statements to police) could be admitted under the attenuation and inevitable discovery exceptions to the exclusionary rule. Accordingly, the court admitted that evidence at retrial, suppressed the remaining post-arrest evidence, and dismissed the charges supported only by the latter. In this second trial, Tallent was otherwise convicted as charged.

¶7 Tallent appealed this conviction, challenging (1) the admission of post-arrest evidence on retrial, (2) the court's denial of his request for a continuance, and (3) the constitutionality of the habitual criminal statute. A division of the court of appeals reversed and remanded for a new trial. People v. Tallent , No. 15CA0040, 2018 WL 2356230 (May 24, 2018), vacated , (Colo. No. 18SC483, 2019 WL 2746936, July 1, 2019) (unpublished order) (" Tallent II ") . The division agreed that the post-arrest evidence was improperly admitted. Id. at ¶ 24. In doing so, it did not consider the arguments Tallent raised to challenge the admission of the evidence. Id. at ¶ 10. Instead, it relied on the reasoning of another division in People v. Morehead , 2015 COA 131, ¶ 42, 450 P.3d 733, 741, rev'd in part , 2019 CO 48, 442 P.3d 413, to conclude that "the People were ‘precluded from arguing on remand that any of the evidence derived from the unconstitutional [arrest] should still be admitted under ... exceptions to the exclusionary rule’ because they had not raised such arguments in the initial suppression hearing." Tallent II, ¶ 14 (quoting Morehead , ¶ 42, 450 P.3d at 741 ). Shortly thereafter, however, we disapproved of the court of appeals Morehead decision, granted the People's petition for certiorari, vacated the Tallent II division's opinion, and remanded to the court of appeals for reconsideration in light of our opinion in Morehead .

¶8 In a published opinion, the same division then announced a new test governing trial courts’ authority to consider new arguments. The division declared that " Morehead ... provided limited guidance as to how a trial court should exercise its discretion in determining whether to hear new arguments on remand." Tallent III , ¶ 17, 490 P.3d at 562. According to the division, a trial court presented with new arguments must weigh three factors—(1) whether allowing new arguments would "unfairly prejudice one or more of the parties," (2) whether "the party proposing a new argument [is] at fault for having failed to preserve it in an earlier proceeding," and (3) "any other factor [the court] deems relevant"—when engaging in the following two-step analysis:

First, applying the factors listed above, the court must exercise its discretion to determine whether it will allow the prosecution to advance new arguments on remand. If the court determines that new arguments against suppression are proper on remand, it may proceed to the second step by ruling on the substance of the new arguments.

Id. at ¶¶ 18–19, 490 P.3d at 562. The division also opined that a trial court must explicitly articulate its reasoning for allowing or disallowing new arguments. Id. at ¶¶ 20, 26, 490 P.3d at 562–63. Accordingly, without addressing Tallent's remaining arguments, the division reversed Tallent's conviction and remanded "to allow the trial court to make further findings consistent with [its] opinion." Id. at ¶ 21, 490 P.3d at 562.

¶9 The People again petitioned for certiorari review, which we granted.²

II. Analysis

¶10 We begin by considering the appropriate standard of review. Although this case comes to us on a petition for certiorari filed by the People, it began as an appeal from the trial court filed by Tallent. Because Tallent did not advance his current argument in the trial court, we conclude that it is subject to plain error review. We then set out the legal principles that govern a trial court's decision to consider new arguments and evidence after the reversal of its prior suppression ruling. These principles lead us to reject the division's approach. And from the existing record, we conclude that the trial court did not err—let alone, plainly err—in exercising its discretion to consider the People's new arguments in this case. Accordingly, we reverse the division's judgment and remand for consideration of Tallent's remaining arguments on appeal.

A. Standard of Review

¶11 The division seems to have assumed (and the parties do not dispute) that Tallent preserved this issue in the trial court. See Tallent III , ¶ 14, 490 P.3d at 561 ; see also Tallent II , ¶ 12. However, an appellate court has an independent, affirmative duty to determine whether a claim is preserved and what standard of review should apply, regardless of the positions taken by the parties. People v. Carter , 2021 COA 29, ¶ 13, 486 P.3d 473, 477 ; see C.A.R. 28(a)(7)(A) ; In re Marriage of Hogsett & Neale , 2018 COA 176, ¶ 32 n.3, 480 P.3d 696, 703 n.3, aff'd , 2021 CO 1, 478 P.3d 713.³ Therefore, before considering whether the trial court erred, we must address whether Tallent's claim is...