Mosley v. Daves

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
October 2, 2025

2025COA80

No. 24CA0079, Mosley v. Daves — Civil Action for Deprivation
of Rights; Constitutional Law — Fourth Amendment —
Searches and Seizures — Warrantless Search; Civil Jury
Instructions — Affirmative Defenses

In a case of first impression, a division of the court of appeals

holds that legal justification for a warrantless search is an

affirmative defense that the defendant must prove in a civil action

under section 13-21-131, C.R.S. 2025. The division also holds that

the trial court properly limited expert testimony and properly

excluded evidence of a gun found during the protective sweep.

Finally, the division holds that the trial court’s award of attorney

fees and costs to the plaintiff was reasonable, and it remands the

case for the trial court to determine the plaintiff’s reasonable

appellate attorney fees.
COLORADO COURT OF APPEALS 2025COA80

Court of Appeals No. 24CA0079
Arapahoe County District Court No. 22CV31471
Honorable Elizabeth Beebe Volz, Judge

Christopher Mosley,

Plaintiff-Appellee,

v.

Brendan Daves,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE MEIRINK
Gomez and Bernard*, JJ., concur

Announced October 2, 2025

Frank Law Office LLC, Adam Frank, Denver, Colorado, for Plaintiff-Appellee

Peter A. Schulte, City Attorney, Gillian Fahlsing, Assistant City Attorney,
Gregory R. Bueno, Assistant City Attorney, Aurora, Colorado, for Defendant-
Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 After defendant, Aurora Police Department Officer Brendan

Daves, searched the vehicle of plaintiff, Christopher Mosley, without

a warrant, Mosley filed a lawsuit under section 13-21-131, C.R.S.

2025, asserting a violation of his constitutional rights. The jury

returned a verdict in Mosley’s favor, and the trial court granted

Mosley’s motion for attorney fees and costs and entered judgment

accordingly.

¶2 As an issue of first impression, Daves argues that the trial

court erred by instructing the jury that, in Mosley’s section 13-21-

131 action challenging a warrantless search, Daves had the burden

of proving the affirmative defense that the search was reasonable.

We disagree with Daves and conclude that the trial court properly

instructed the jury that Daves had the burden of proving that

affirmative defense.

¶3 We therefore affirm the judgment and remand the case to the

trial court to determine Mosley’s reasonable appellate attorney fees

and costs.

I. Factual Background

¶4 In April 2021, Daves pulled Mosley over because the vehicle

Mosley was driving did not have a license plate. Daves ordered

1
Mosley to exit the vehicle and patted him down. Daves did not find

a weapon during the pat-down. Daves ordered Mosley to sit on the

bumper of the police vehicle while Daves ran a brief search of his

driver’s license and continued to observe his demeanor. Daves

testified that, after running the search, he was going to let Mosley

go and “write him a summons or issue him a warning” for the

license plate violation. Before doing so, however, Daves searched

Mosley’s vehicle. Daves did not have a warrant to conduct the

search.

¶5 Mosley sued Daves under section 13-21-131, alleging that

Daves’s warrantless search violated article II, section 7, of the

Colorado Constitution, which prohibits unreasonable searches and

seizures.

¶6 Following the jury’s verdict in favor of Mosley, the court

awarded Mosley attorney fees and costs as the prevailing party

under section 13-21-131(3) and C.R.C.P. 54(b). Daves appeals.

II. Analysis

¶7 Daves contends that the trial court erred by (1) incorrectly

stating the law in its jury instructions with respect to the Fourth

Amendment, thereby impermissibly shifting the burden of proof to

2
him; (2) precluding Daves’s expert from testifying about how officers

are trained to determine if there is reasonable suspicion to conduct

a protective sweep; (3) excluding evidence obtained from Daves’s

protective sweep of Mosley’s vehicle; and (4) awarding Mosley

$130,987 in attorney fees and $3,405 in costs. We disagree with

each contention.

A. The Trial Court Properly Instructed the Jury that the
Reasonableness of a Warrantless Search is an Affirmative
Defense

¶8 Daves first contends that the trial court erroneously instructed

the jury that, once Mosley met his burden of proving that Daves

searched his vehicle without a warrant, the burden shifted to Daves

to prove, as an affirmative defense, that the search was reasonable.

We disagree.

1. Additional Applicable Facts

¶9 At trial, Daves argued that he had a reasonable suspicion to

expand Mosley’s traffic stop and that Daves’s protective sweep of

the vehicle was legal under the circumstances. The court ruled that

Daves’s proffered legal justification was an affirmative defense and

thus Daves had the burden of proving the elements of that defense.

3
¶ 10 Both Mosley and Daves submitted proposed jury instructions.

The court reviewed them, provided the parties with a preliminary

draft, and held a jury instruction conference. The final jury

instructions provided that Daves’s claim of legal justification was an

affirmative defense that he had to prove by a preponderance of the

evidence. Although Daves proposed an instruction that placed the

burden of proof on Mosley and argued during the instruction

conference that the burden should be Mosley’s, Daves did not object

to the final draft of the instructions.

¶ 11 In relevant part, the trial court gave the following jury

instructions:

Instruction No. 1

The plaintiff Christopher Mosley claims that on
April 25, 2021, the defendant Brendan Daves,
a police officer, violated Mr. Mosley’s
constitutional right to be free from
unreasonable searches, by unjustifiably
searching Mr. Mosley’s automobile without a
warrant.

The defendant, Brendan Daves, does not
dispute that he is a police officer, nor does he
dispute that he searched plaintiff’s vehicle
without a warrant. However, as an affirmative
defense, defendant asserts that he was
justified in conducting a protective sweep of

4
the vehicle, an exception to the warrant
requirement.

....

Instruction No. 7

For the plaintiff, Christopher Mosley, to
recover from the defendant, Brendan Daves,
on his claim of violation of a constitutional
right, you must find that all of the following
have been proved by a preponderance of the
evidence:

1. Defendant Brendan Daves is a “Peace
Officer.”

2. On or about April 25, 2021, Defendant
Brendan Daves, acting in his capacity as a
Peace Officer, searched Plaintiff Christopher
Mosley’s vehicle.

3. At the time of the search Defendant
Brendan Daves did not have a warrant for
such search.

If you find that any one or more of these three
statements has not been proved, then your
verdict must be for the defendant.

On the other hand, if you find that all of these
three statements have been proved, then you
must consider the affirmative defense of an
exception to the constitutional warrant
requirement allowing for a “protective sweep”
of a vehicle.

If you find that this affirmative defense has
been proved by a preponderance of the

5
evidence, then your verdict must be for the
defendant.

However, if you find that this affirmative
defense has not been proved, then your verdict
must be for the plaintiff.

The court also provided jury instructions regarding the warrant

requirement and the protective sweep exception to the warrant

requirement.

2. Standard of Review and Applicable Law

¶ 12 We review de novo whether a trial court’s jury instructions

correctly informed the jury of the law. Day v. Johnson, 255 P.3d

1064, 1067 (Colo. 2011). If the trial court’s instructions were an

accurate statement of the law, “we review [the] court’s decision to

give a particular jury instruction for an abuse of discretion.”

Wolven v. Velez, 2024 COA 8, ¶ 10 (quoting Day, 255 P.3d at 1067).

Trial courts have broad discretion to determine the form and style

of jury instructions. Day, 255 P.3d at 1067. Thus, a court abuses

its discretion when deciding whether to provide a particular jury

instruction only when the ruling is “manifestly arbitrary,

unreasonable, or unfair.” Id.

6
a. Warrantless Searches

¶ 13 Section 13-21-131(1) “authorizes a private right of action

against a peace officer ‘who, under color of law, subjects or causes

to be subjected . . . any other person to the deprivation of any

individual rights . . . secured by the bill of rights, article II of the

state constitution.’” Woodall v. Godfrey, 2024 COA 42, ¶ 11

(quoting § 13-21-131(1)). Article II, section 7, of the Colorado

Constitution guarantees the right to be free from unreasonable

searches and seizures. Id. at ¶ 12. A warrantless search is

presumptively unreasonable under the Fourth Amendment of the

United States Constitution and article II, section 7, of the Colorado

Constitution, subject to only a few narrowly delineated exceptions.1

People v. Berdahl, 2012 COA 179, ¶ 16.

¶ 14 In criminal cases, the prosecution bears the burden of

establishing that a warrantless search falls within one of the

exceptions to the warrant requirement. People v. Pate, 71 P.3d

1005, 1010 (Colo. 2003). The protective sweep doctrine is one such

1 “[T]he Fourth Amendment of the United States Constitution is

‘almost identical’ to article II, section 7 of the Colorado
Constitution.” Woodall v. Godfrey, 2024 COA 42, ¶ 13 (quoting
People v. Rister, 803 P.2d 483, 489 (Colo. 1990)).

7
exception that allows police to search a vehicle without a warrant

when they have a reasonable suspicion that there are weapons in

the vehicle. See People v. Allen, 2019 CO 88, ¶ 16 (permitting “an

officer who has an articulable and objectively reasonable belief that

a motorist is armed and dangerous to conduct a protective search

for weapons”).

b. Affirmative Defenses in Civil Cases

¶ 15 An affirmative defense in a civil case is a defense that justifies

or negates liability for conduct that would otherwise result in

liability.2 See State v. Nieto, 993 P.2d 493, 507 (Colo. 2000). An

affirmative defense does not merely deny an element of the

plaintiff’s claim; rather, an affirmative defense is “a legal argument

that a defendant . . . may assert to require the dismissal of a claim

or to prevail at trial.” Id.; see also Soicher v. State Farm Mut. Auto.

Ins. Co., 2015 COA 46, ¶ 18 (“An affirmative defense is ‘[a]

2 Affirmative defenses are typically asserted in an answer. See
C.R.C.P. 8(c); Marso v. Homeowners Realty, Inc., 2018 COA 15M, ¶¶
9-10, 13 (affirming district court’s decision allowing defendant to
amend answer to include affirmative defense of setoff shortly before
trial). Over Mosley’s objection, the court allowed Daves to amend
his answer shortly before trial to include the protective sweep
exception as an affirmative defense. This amendment, however, is
not at issue on appeal.

8
defendant’s assertion of facts and arguments that, if true, will

defeat the plaintiff’s . . . claim even if all the allegations in the

complaint are true.’” (quoting Black’s Law Dictionary 509 (10th ed.

2014))).

¶ 16 The burden of proving an affirmative defense in a civil case

rests upon the defendant asserting the defense, and the defendant

bears the burden of proving any affirmative defense by a

preponderance of the evidence. W. Distrib. Co. v. Diodosio, 841 P.2d

1053, 1057 (Colo. 1992). It is not a plaintiff’s burden to produce

the evidence on which the affirmative defense is predicated; rather,

the affirmative defense must be pleaded by the defendant, and “the

burden of proving the same is also on [the defendant].” Comfort

Homes, Inc. v. Peterson, 549 P.2d 1087, 1090 (Colo. App. 1976).

¶ 17 The Colorado Pattern Civil Jury Instructions also indicate that

the defendant has the burden of proving an affirmative defense:

1. The plaintiff has the burden of proving . . .
claim(s) by a preponderance of the evidence.

2. The defendant has the burden of
proving . . . affirmative defense(s) by a
preponderance of the evidence.

9
3. To prove something by a “preponderance of
the evidence” means to prove that it is more
probably true than not.

4. “Burden of proof” means the obligation a
party has to prove . . . claim(s) or defense(s) by
a preponderance of the evidence. The party
with the burden of proof can use evidence
produced by any party to persuade you.

CJI-Civ. 3:1 (2025) (defining burden of proof and preponderance of

evidence).

¶ 18 Colorado courts have long recognized that a defendant’s claim

of legal justification is an affirmative defense in certain civil cases

concerning constitutional rights. See, e.g., Crews-Beggs Dry Goods

Co. v. Bayle, 51 P.2d 1026, 1028 (Colo. 1935) (treating legal

justification as an affirmative defense and holding that, without a

showing of justification for detaining a suspected shoplifter, “any

restraint, either by force or fear, is unlawful and constitutes a false

imprisonment”); White v. Pierson, 533 P.2d 514, 516 (Colo. App.

1974) (“In an action for false arrest, the issue of probable cause, or

legal justification to arrest, is a substantive matter of affirmative

10
defense, which, if proven, constitutes a complete bar to [a] plaintiff’s

claim for relief.”).3

3. Discussion

¶ 19 Daves contends that the trial court erred by instructing the

jury that the reasonableness of a warrantless search was an

affirmative defense that the defendant must prove by a

preponderance of the evidence in a section 13-21-131 action.

¶ 20 As an initial matter, Mosley claims this issue was unpreserved

and should not be considered on appeal because Daves did not

object to the trial court’s final instructions. See Madalena v. Zurich

Am. Ins. Co., 2023 COA 32, ¶ 50 (“It is axiomatic that in civil cases,

issues not raised in or decided by the trial court generally will not

be addressed for the first time on appeal.” (citation omitted)).

3 The Colorado Pattern Civil Jury Instructions also treat claims of

legal justification raised by a defendant as an affirmative defense in
certain contexts. See, e.g., CJI-Civ. 21:11 (2025) (recognizing that
the privilege of a peace officer to arrest without a warrant is an
affirmative defense). Similarly, the pattern instruction on the
elements of liability for a false imprisonment or arrest claim state
that “legal justification is treated as a matter of affirmative defense.”
CJI-Civ. 21:1 source and authority (2025) (citing Crews-Beggs Dry
Goods Co. v. Bayle, 51 P.2d 1026, 1028 (Colo. 1935)); accord
Goodboe v. Gabriella, 663 P.2d 1051, 1057 (Colo. App. 1983) (noting
that legal justification is treated as an affirmative defense).

11
¶ 21 We disagree. While Daves may not have used the words

“affirmative defense,” he submitted a proposed instruction that

placed the burden on Mosley, and he argued at the instruction

conference that the burden should be placed on Mosley. See People

v. Melendez, 102 P.3d 315, 322 (Colo. 2004) (noting that parties are

not required to use “talismanic language” to preserve a particular

argument on appeal and that a claim is preserved if the trial court

was presented with an “adequate opportunity to make findings of

fact and conclusions of law” on the issue).

¶ 22 While no published Colorado case has addressed this precise

issue, we hold, for several reasons, that justification for a

warrantless search is an affirmative defense that the defendant

must prove in a section 13-21-131 action. We therefore conclude

that the trial court properly instructed the jury.

¶ 23 First, Daves’s argument is, at its core, an affirmative defense.

Daves does not deny any element of Mosley’s claim. Likewise,

Daves does not deny or argue that Mosley failed to meet an element

of the claim. Daves concedes that he searched Mosley’s vehicle

without a warrant in his capacity as a peace officer but argues that

the protective sweep was justified under the circumstances, thereby

12
excusing him from any liability under the statute. An affirmative

defense is distinguishable from a general denial because it provides

the defendant with the opportunity to offer legal justification for

committing the act in question without incurring liability. See

Soicher, ¶ 18. This is precisely what Daves attempted to do at trial.

¶ 24 Second, the jury instructions the trial court provided are

consistent with case law and the pattern civil instructions, which

place the burden on the defendant to prove an affirmative defense

by a preponderance of the evidence. See, e.g., W. Distrib., 841 P.2d

at 1058-59 (“[T]he defendant bears the burden of proving by a

preponderance of the evidence any affirmative defense to the

plaintiff’s . . . claim.”).

¶ 25 Third, the trial court’s instructions also align with the existing

case law that says a protective sweep is a legal justification or

exception to the warrant requirement the People must prove. See

People v. Brant, 252 P.3d 459, 462 (Colo. 2011); People v. Altman,

938 P.2d 142, 146 (Colo. 1997); People v. Litchfield, 918 P.2d 1099,

1103 (Colo. 1996).

¶ 26 Finally, though ample state law supports characterizing an

officer’s claim of legal justification as an affirmative defense, most

13
federal circuits that have analyzed the issue in the context of a civil

rights claim filed under 42 U.S.C. § 19834 — including the Tenth

Circuit Court of Appeals — have done the same. See, e.g., Armijo ex

rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1070 (10th Cir.

2010) (concluding that, in a § 1983 case, the officer bears the

burden of establishing a warrant exception existed to justify a

warrantless entry); Mascorro v. Billings, 656 F.3d 1198, 1205 (10th

Cir. 2011) (In a § 1983 action, “[t]he burden is on the government to

demonstrate the existence of exigent circumstances” justifying a

warrantless entry.).

¶ 27 The Second, Third, Sixth, and Ninth Circuit Courts of Appeals

also follow the majority view that, in the context of a § 1983 claim,

the burden shifts to the government to prove the affirmative defense

of exigent circumstances justifying a warrantless search or seizure.

See McCardle v. Haddad, 131 F.3d 43, 48 (2d Cir. 1997) (“If it is

established that the place or object subjected to the warrantless

4 Section 13-21-131(1), C.R.S. 2025, is like, but not identical to, 42

U.S.C. § 1983, which authorizes a private right of action against a
person “who, under color of any statute . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution
and laws.” Woodall, ¶ 13 (quoting § 1983).

14
search is one in which the plaintiff has a reasonable expectation of

privacy, the defendant has the burden of showing that the search

was valid because it fell within one of the exceptions to the warrant

requirement.”); Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996)

(“To excuse the absence of a warrant, the burden rests on the State

to show the existence of . . . exceptional situations.”); Hardesty v.

Hamburg Township, 461 F.3d 646, 655 (6th Cir. 2006) (“The

government bears the burden of proving that exigent circumstances

such as a medical emergency existed to justify a warrantless

search.”), abrogated on other grounds by, Florida v. Jardines, 569

U.S. 1 (2013); Hopkins v. Bonvicino, 573 F.3d 752, 764 (9th Cir.

2009) (recognizing that, “as with other exceptions to the warrant

requirement, the [g]overnment bears the burden of demonstrating

that the search at issue meets the[] parameters” of the emergency

exception (citation omitted)).

¶ 28 We therefore conclude that the court correctly stated the law

by instructing the jury that the reasonableness of a warrantless

search in a section 13-21-131 action is an affirmative defense that

the defendant has the burden of proving by a preponderance of the

evidence.

15
B. The Trial Court Properly Limited Daves’s Expert’s Testimony

¶ 29 Daves argues that the trial court abused its discretion by

precluding Daves’s expert from testifying about how the Aurora

Police Department (APD) trains its officers to determine whether

reasonable suspicion exists. We disagree.

1. Additional Applicable Facts

¶ 30 Daves endorsed Kevin Smyth, a sergeant with the APD, as a

nonretained expert in police practices and training in the use of

force, arrest control techniques, and officer safety procedures.

Smyth was a training manager for the APD and served as an expert

witness in civil litigation cases. He reviewed the body camera video,

police reports, and deposition transcripts to prepare his testimony.

Smyth intended to testify about the APD’s training procedures for

protective sweeps. Based on his review of the traffic stop, Smyth

also planned to testify that Daves made a “reasonable decision to

conduct a protective sweep of the vehicle” before Mosley was

permitted to return to it.

¶ 31 Mosley moved to strike Daves’s endorsement of Smyth on the

grounds that Smyth’s job status as an in-house expert and his

proposed testimony concerning the legality of Daves’s conduct were

16
that of a retained expert, and Daves had not made the necessary

disclosures. Mosley also filed a motion under CRE 702, 703, and

704 to preclude Smyth from testifying that, in his opinion, the

search complied with the APD’s procedures and was justified

because such testimony would infringe on the jury’s role of

determining whether the search was reasonable.

¶ 32 The trial court concluded that, as a nonretained expert, Smyth

could provide testimony on the standards for training and

supervising patrol officers on traffic stops because such testimony

fell “under the umbrella of a non-retained expert,” but Smyth could

not testify that, based on his review of the case, Daves’s conduct

“complied with or was reasonable pursuant to the department’s

practices and procedures” because such testimony would usurp the

jury’s role.

¶ 33 Similarly, the trial court ruled that it would be unhelpful for

the jury to allow Smyth to define the term “reasonable suspicion” or

to discuss how the term was explained to APD trainees because the

proffered testimony was too close to the ultimate question to be

determined by the jury. Accordingly, the court precluded Smyth

from defining the term “reasonable suspicion.”

17
2. Standard of Review and Applicable Law

¶ 34 Trial courts have “broad discretion” to determine the

admissibility of expert testimony, and the exercise of that discretion

will not be overturned absent an abuse of discretion. Est. of Ford v.

Eicher, 220 P.3d 939, 942 (Colo. App. 2008), aff’d, 250 P.3d 262

(Colo. 2011). The trial court is afforded this discretion because of

its superior opportunity to determine the competence of the expert

and the extent to which their opinion would be helpful to the jury.

Bocian v. Owners Ins. Co., 2020 COA 98, ¶ 64. Thus, a trial court’s

exercise of its discretion in this regard will not be overturned unless

“manifestly erroneous.” Id.

¶ 35 Pursuant to CRE 702, expert testimony is admissible if it will

“assist the trier of fact to understand the evidence or to determine a

fact in issue.” However, an expert may not usurp the function of

the court by expressing an opinion of the applicable law or legal

standards. Quintana v. City of Westminster, 8 P.3d 527, 530 (Colo.

App. 2000). Thus, to the extent that an expert intends to testify

about the correct legal standard, the testimony is inadmissible. See

Black v. Black, 2018 COA 7, ¶ 113.

18
3. Discussion

¶ 36 Daves argues that the court’s decision to preclude Smyth’s

reasonable suspicion testimony prevented the jury from

understanding how these factors impact an officer’s decision to

conduct a protective sweep. We disagree.

¶ 37 The court held a lengthy conference with the parties detailing

the scope of Smyth’s proposed testimony and concluded that

permitting Smyth to testify on the reasonable suspicion standard

was too close to the issue the jury would decide. Trial courts “have

an obligation to serve as gatekeepers regarding the propriety of

expert testimony.” Lawrence v. People, 2021 CO 28, ¶ 43. Because

there was a high likelihood that the jury would be confused and

might think Smyth was defining a legal term, the trial court

properly exercised its gatekeeping role by not permitting him to give

testimony on reasonable suspicion.

¶ 38 Additionally, during trial, the court permitted Smyth to testify

about officer safety tactics, explain the risks involved in traffic

stops, define and discuss the “six hazards of approach,” and

identify cues that he trains officers to look for when determining

whether they should conduct a search after stopping a vehicle.

19
Smyth was able to testify to all this pertinent information without

mentioning how reasonable suspicion is defined within the APD

training materials.

¶ 39 Finally, the jury instructions setting forth the reasonable

suspicion standard to warrant a protective sweep were accurate and

tracked the relevant case law:

[T]he warrant requirement is subject to certain
well-delineated exceptions. One such
exception permits an officer to conduct a
protective search for weapons, known as a
“protective sweep.” An officer is entitled to
conduct a protective sweep of the areas of a
vehicle’s passenger compartment where a
weapon may be placed or concealed, so long as
the officer possesses a “reasonable suspicion”
that an occupant of the vehicle may be
dangerous and may gain immediate control of
a weapon.

A “reasonable suspicion” is a suspicion that
arises from specific and articulable facts
known to the officer, taken together with
rational inferences from those facts. It is not a
mere generalized suspicion or hunch.

The scope and character of the protective
sweep must be reasonably related to the
purpose of ensuring the safety of the officer
and others who may be present.

See, e.g., Altman, 938 P.2d at 146 (recognizing that an officer must

“possess[] a reasonable belief based on specific and articulable facts

20
that the suspect is dangerous and may gain immediate control of

weapons” to conduct a protective sweep); People v. Moreno, 2022 CO

19, ¶ 15 (noting that the jury could not only consider the facts

known to the officer, but could also make “rational inferences from

those facts” (citation omitted)); People v. Wheeler, 2020 CO 65, ¶ 13

(“[A] reasonable suspicion must be based on more than a mere

generalized suspicion or hunch.”). The jury instructions also

discussed the interplay between a reasonable suspicion and a

protective sweep.

¶ 40 Likewise, we are unpersuaded by Daves’s argument that the

court erred by declining to give his proposed supplemental

instruction on reasonable suspicion and protective sweep:

A protective sweep is a search of the passenger
compartment of a vehicle, which is limited to
the areas in which a suspect may place or hide
a weapon. A protective sweep is permissible if
the officer possesses a reasonable belief based
on specific and articulable facts which, taken
together with the rational inference from those
facts, reasonably warrant the officer in
believing that the suspect is dangerous and he
may gain immediate control of a weapon when
he is in the driver’s seat of the vehicle.

Traffic stops are potentially violent encounters
and, therefore, if appropriate facts exist to
justify an officer’s concern, a search may be

21
justified by safety considerations. The goal of
a protective sweep is to secure a vehicle so that
when the occupant is returned to the vehicle,
he is not likely to injure the officer.

Daves contends that, unlike the final jury instructions, his proffered

instruction fully conveyed the applicable legal principles.

¶ 41 Based on a comparison of Daves’s proposed instruction and

those given by the trial court, we disagree. Both instructions define

a protective sweep, limit the boundaries of the search to the

vehicle’s passenger compartment, and discuss officer safety.

Although Daves’s instructions provide more subjective information

from a law enforcement officer’s perspective, both were correct

statements of the law, and we cannot say the trial court abused its

discretion by declining to give Daves’s proposed instructions.

¶ 42 We therefore conclude that the trial court accurately defined

reasonable suspicion in its jury instructions and did not abuse its

discretion by precluding Smyth from testifying on the reasonable

suspicion standard.

C. The Trial Court Acted Within its Discretion in Excluding
Evidence Obtained from Daves’s Protective Sweep

¶ 43 Daves contends that the trial court abused its discretion by

excluding evidence of a gun Daves found during the protective

22
sweep. Specifically, Daves argues that the gun was relevant to

show that his initial protective sweep was limited to those areas

that Mosley could have reached while sitting in the driver’s seat,

which in turn supported the argument that the search was

reasonable. Again, we disagree.

1. Additional Applicable Facts

¶ 44 Prior to trial, each party moved in limine to exclude

unfavorable evidence. After considering both motions, the trial

court precluded Daves from introducing the gun found in the

vehicle during the search.

2. Standard of Review and Applicable Law

¶ 45 Unless otherwise prohibited by law, all relevant evidence is

admissible. CRE 402. Relevant evidence is any evidence “having

any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.” CRE 401.

¶ 46 Relevant evidence may be excluded if “its probative value is

substantially outweighed by the danger of unfair prejudice.” CRE

403. When reviewing a trial court’s decision to admit evidence, “we

accord the evidence its maximum probative value as weighed

23
against its minimum prejudicial effect.” Walker v. Ford Motor Co.,

2015 COA 124, ¶ 46.

¶ 47 We review evidentiary rulings for an abuse of discretion.

Madalena, ¶ 57. A court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair or is based on a

misapplication or misunderstanding of the law. State Farm Mut.

Auto. Ins. Co. v. Goddard, 2021 COA 15, ¶ 65.

3. Preservation

¶ 48 Mosley contends that Daves failed to preserve the argument he

now raises on appeal — that the trial court erred by excluding

evidence of the gun — because he did not make the argument in his

response to Mosley’s motion in limine. We disagree.

¶ 49 A party can preserve an issue through motions in limine

without a later trial objection, if “the issue of the admissibility of the

specific evidence was fully argued to the trial court on the same

grounds argued by the non-prevailing party on appeal.” Uptain v.

Huntington Lab, Inc., 723 P.2d 1322, 1330-31 (Colo. 1986).

¶ 50 Mosley filed a motion in limine arguing that evidence obtained

after the initial search was irrelevant. In his response, Daves

argued that the court should not preclude him from proffering

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evidence that, after finding the gun, Daves had further justification

to conduct a search to determine if additional evidence was present.

The trial court then issued a combined pretrial order, ruling that

the sole issue for the jury to decide was whether the initial search

was justified and that the evidence obtained from the search was

irrelevant. Thus, the issue was preserved for appeal.

4. Discussion

¶ 51 Daves argues that the evidence obtained from the protective

sweep should have been presented to the jury to demonstrate that

the sweep’s scope was lawful. We are unpersuaded.

¶ 52 The trial court thoroughly analyzed the parties’ arguments

pertaining to the admissibility of the evidence. The court

highlighted that, while both parties agreed that Daves entered the

vehicle three separate times, Mosley argued only that the initial

search — the protective sweep — was unconstitutional. Therefore,

the court concluded that the sole issue for the jury to decide was

whether there was justification for the initial search, not whether

there was justification for the subsequent searches. Accordingly,

the trial court held that the evidence Daves intended to introduce,

which was obtained during the initial search, was not relevant.

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¶ 53 We therefore find no abuse of the trial court’s discretion by

excluding evidence obtained from searching Mosley’s vehicle.

D. Trial Attorney Fees and Costs Were Reasonable

¶ 54 Daves argues that the trial court’s award of attorney fees of

$130,987 and costs of $3,405.10 to Mosley was unreasonable and

based on an erroneous assessment of the evidence. We disagree.

1. Standard of Review and Applicable Law

¶ 55 We review a trial court’s decision to award attorney fees and

costs for an abuse of discretion. Anderson v. Pursell, 244 P.3d

1188, 1193 (Colo. 2010). A trial court abuses its discretion if its

decision is “manifestly arbitrary, unreasonable, or unfair.” Colo.

Nat’l Bank of Denv. v. Friedman, 846 P.2d 159, 167 (Colo. 1993)

(citation omitted). Further, the party requesting fees has the

burden of proving entitlement to them. Am. Water Dev., Inc. v. City

of Alamosa, 874 P.2d 352, 383 (Colo. 1994).

¶ 56 Section 13-21-131(3) authorizes a trial court to award

reasonable attorney fees to a prevailing plaintiff in an action

brought under the statute. To calculate a reasonable fee, a trial

court shall start by multiplying the number of hours reasonably

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expended on the matter by a reasonable hourly rate. Anderson, 244

P.3d at 1197.

2. Discussion

¶ 57 The trial court held a hearing on attorney fees at which the

parties’ experts testified on the hourly rates charged and hours

spent on the litigation. The court thoroughly described its findings

in its order awarding attorney fees and costs. The court found that

the hourly rates were reasonable for attorneys with trial counsel’s

respective experience within their community. The court also

concluded that some of the time spent was not reasonable and

reduced the time devoted by each attorney accordingly. The court

then multiplied the number of reasonable hours worked by the

hourly rate for each attorney, for a total amount of $130,987 in

attorney fees. Finally, the court addressed the amounts requested

for costs related to the litigation and reviewed each line item of

claimed costs.

¶ 58 Having reviewed the record and trial court’s analysis, we

discern no abuse of discretion in the trial court’s award of attorney

fees and costs.

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E. Appellate Attorney Fees

¶ 59 Finally, Mosley requests an award of appellate attorney fees

and costs under section 13-21-131(3).

¶ 60 When a party has been awarded attorney fees for a prior stage

of the proceedings, the party may recover reasonable attorney fees

and costs for successfully defending the appeal. Kennedy v. King

Soopers Inc., 148 P.3d 385, 390 (Colo. App. 2006).

¶ 61 We exercise our discretion under C.A.R. 39.1 and remand the

case to the trial court to determine the reasonable amount of

attorney fees and costs that Mosley incurred in successfully

defending the judgment on appeal.

III. Disposition

¶ 62 We affirm the judgment and remand the case to the trial court

to determine the amount of reasonable appellate attorney fees and

costs to be awarded to Mosley.

JUDGE GOMEZ and JUDGE BERNARD concur.

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