2026 CO 14, 25SA198, People v. Austin McGee

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The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
March 9, 2026

# 2026 CO 14

No. 25SA198, People v. McGee-Probable Cause-Warrantless Arrest-
Sufficient Specificity.

In this interlocutory appeal, the supreme court considers whether a
suspect's description lacked sufficient specificity to establish probable cause for
the defendant's warrantless arrest. Probable cause requires that the description
used to arrest a suspect be sufficiently specific to identify the particular person
who committed the alleged offense and not be so vague as to match innocent
persons in the suspect's vicinity.

In this case, officers relied on a description of a suspect as a male in his
thirties riding a scooter in a large park. The supreme court holds that, under the
totality of the circumstances, the officers lacked probable cause to arrest the
defendant because the description used to arrest him lacked sufficient specificity
to identify him as the suspect. In the court's view, the description - a male in his
thirties riding a scooter in a park that was "large and frequented by many" at the
time of the arrest-is vague and not sufficiently specific to establish probable

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cause. Accordingly, the court affirms the trial court's order suppressing the fruits
of the arrest.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 14

Supreme Court Case No. 25SA198
Interlocutory Appeal from the District Court
Larimer County District Court Case No. 21CR991
Honorable Susan Blanco, Chief Judge

Plaintiff-Appellant:
The People of the State of Colorado,

V.
Defendant-Appellee:
Austin Rhys McGee.

Order Affirmed
en banc
March 9, 2026

Attorneys for Plaintiff-Appellant:
Gordon P. Mclaughlin, District Attorney, Eighth Judicial District
Russell B. Connelly, Deputy District Attorney
Michael W. Deschenes, Senior Deputy District Attorney
Fort Collins, Colorado

Attorneys for Defendant-Appellee:

Sidley-MacKie LLC

Andrew Sidley-MacKie

Fort Collins, Colorado

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JUSTICE BOATRIGHT delivered the Opinion of the Court, in which CHIEF
JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE
SAMOUR and JUSTICE BERKENKOTTER joined.

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JUSTICE BOATRIGHT delivered the Opinion of the Court.

11 In this interlocutory appeal, we consider whether the trial court erred when
it found that the police lacked probable cause to support the warrantless arrest of
Austin Rhys McGee. We hold that, under the totality of the circumstances, the
officers lacked probable cause to arrest McGee because the description used to
arrest him lacked sufficient specificity to identify him as the suspect. We therefore
affirm the trial court's order suppressing the fruits of the arrest, including all
subsequent statements made by McGee and all evidence discovered through post-
arrest warrants. As a result of our decision, we decline to consider the People's
additional arguments pertaining to the police's post-arrest conduct.1

1 The People raised the following issues in their opening brief:

1\. Whether the lower court erred in suppressing the evidence against Mr.
McGee based on a lack of probable cause for warrantless arrest.

2\. Whether the lower court erred in suppressing the electronic evidence
against Mr. McGee based on an allegedly overbroad search warrant.

3\. Whether the lower court erred in suppressing the seizure and search of USB
drives and external hard drives as predicated on an allegedly illegitimate
initial seizure of those items.

4\. Whether the lower court erred in suppressing all statements made by Mr.
McGee based on an allegedly inadequate Miranda advisement and/or
waiver.

Because we hold that the initial arrest was invalid, we need not discuss the
remaining issues pertaining to the police's post-arrest conduct.

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## I. Facts and Procedural History2

T2
2 In May 2021, the police responded to a Safe2Tell report and interviewed
fourteen-year-old A.H. She told the police that in 2020, she met a man online
whom she knew as "Ashton," who had a last name beginning with "Mc," and
whom she believed to be in his thirties. She stated that they sent sexually explicit
texts, photographs, and videos to each other. According to her, they continued
communicating even after she told the man that she was thirteen years old. At
some point, the man told her that his birth date was March 29. A.H. said she later
met the man in person several times at Rolland Moore Park in Fort Collins, and
that during two of those meetings, he touched her sexually over and under her
clothes. The man rode a scooter to those meetings.

13 Acting on this information, the police directed A.H.'s father to message the
man on the online application Discord and set up a meeting. During these Discord
conversations, which the police supervised, the man agreed to meet A.H.'s father
at 4:30 p.m. on June 3, 2021, at Rolland Moore Park. The man said he would arrive
at the meeting riding a scooter.

14 At about 4:54 p.m., twenty-four minutes after the scheduled meeting time,
police officers saw a man in his thirties riding a scooter in Rolland Moore Park.

2 The facts detailed here are derived from uncontroverted testimony at the
suppression hearing and the court's subsequent order.

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Without asking any questions, they handcuffed the man and then questioned him.
At that point, the man identified himself as Austin McGee and provided his birth
date of March 29. McGee subsequently made inculpatory statements to the
officers. Based on these statements and the facts surrounding his arrest, the police
obtained several search warrants and seized various electronic drives from
McGee's residence.

15 The People charged McGee with two counts of internet sexual exploitation
of a child and two counts of sexual assault on a child, among other felonies. McGee
filed several motions to suppress, including (as relevant here) a motion to suppress
the fruits of his warrantless arrest, contending that the officers lacked probable
cause for his arrest.

16 At the suppression hearing, the People presented testimony concerning the
suspect's sexual messages and interactions with A.H. before McGee's arrest.
However, regarding how police identified the person they arrested, the testifying
officer said the police arrested McGee because he was a man in his thirties riding
a scooter at Rolland Moore Park at about 4:54 p.m., twenty-four minutes after the
scheduled meeting time.

17
7 The trial court granted McGee's motion to suppress, finding that the officers
lacked probable cause to arrest McGee. The court noted that Rolland Moore Park
was "large and frequented by many ... particularly during daytime hours," and

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that there was no record of how many individuals qualified as a "male in his
thirties who was on a scooter in Rolland Moore Park at around 4:30 pm on June 3,
2021." Because the police had "no additional identifying information," the court
ruled that the officers had no probable cause at the time of the arrest to believe that
McGee was the person who had committed the alleged crimes. Thus, the court
suppressed all of the fruits of the arrest, including all of McGee's subsequent
statements to police and "all warrants and information found pursuant to the
warrants that were authorized by information collected from Mr. McGee while he
was detained and under arrest."3

18
The People then filed this interlocutory appeal.

### II. Jurisdiction and Standard of Review

19
Pursuant to C.A.R. 4.1 and section 16-12-102(2), C.R.S. (2025), the People
may file an interlocutory appeal from a trial court's ruling on a motion to suppress
evidence if they certify that it is not for purposes of delay and that the suppressed
evidence is a substantial part of the proof of the charges pending against the
defendant. The People met these conditions.

3 Although the trial court stated that this ruling rendered McGee's remaining
arguments moot, it nonetheless analyzed those arguments. In light of our
disposition today regarding the warrantless arrest, we need not consider those
additional rulings.

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110 "A trial court's suppression order presents a mixed question of law and
fact." People v. McIntyre, 2014 CO 39, 1 13, 325 P.3d 583, 586. We defer to the trial
court's findings of fact, but we review the court's application of the law to those
facts de novo. Id., 325 P.3d at 587.

## III. Analysis

111 We first discuss the relevant legal principles governing probable cause for a
warrantless arrest. We then apply those principles to the facts of this case and hold
that, under the totality of the circumstances, the officers lacked probable cause to
arrest McGee because the description used to arrest him lacked sufficient
specificity to identify him as the suspect.

## A. Probable Cause for a Warrantless Arrest

112 Both the United States and Colorado Constitutions protect persons against
unreasonable searches and seizures. U.S. Const. amends. IV, XIV; Colo. Const. art.
II, § 7; People v. Brown, 2022 CO 11, 1 17, 504 P.3d 970, 975. A warrantless arrest is
an unreasonable seizure unless it is supported by probable cause.
People v. Castaneda, 249 P.3d 1119, 1122 (Colo. 2011). The People have the burden
to prove that probable cause supported a warrantless arrest before a court may
admit evidence obtained following that arrest. Id. We assess whether probable
cause existed for a warrantless arrest by considering the totality of the
circumstances. Id.

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113 Probable cause for a warrantless arrest exists when "the objective facts and
circumstances available to a reasonably cautious officer at the time of arrest justify
the belief that (1) an offense has been or is being committed (2) by the person
arrested." Id. (quoting People v. Robinson, 226 P.3d 1145, 1149 (Colo. 2009)). Thus,
probable cause requires not just suspicion of a crime but also "a nexus between
the suspected crime and the person arrested." People v. King, 16 P.3d 807, 813
(Colo. 2001). A general description of the suspect, without sufficient specificity to
identify the particular person arrested, does not establish probable cause to arrest.
See id. at 815-16. Although this inquiry depends on the facts of each case, sufficient
specificity invariably requires distinctive information that is not so "vague" as to
match innocent individuals in the suspect's vicinity. People v. Lewis, 975 P.2d 160,
167 (Colo. 1999).

114 For example, in Lewis, we held that the description used to identify a
suspect-"a tall black male wearing dark clothing" -lacked sufficient specificity
to establish probable cause because it was so "vague" as to match three other
persons in the suspect's vicinity. Id. at 167-68. Even considering the lateness of
the hour, the proximity of the suspect to the crime scene, and the furtive gesture
of the suspect's companion, we determined that probable cause did not exist under
the totality of the circumstances. Id. at 168.

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115 Moreover, in People v. McCoy, 870 P.2d 1231, 1233 (Colo. 1994), we illustrated
the degree of specificity that probable cause requires by considering two
descriptions of the person arrested. We first observed that one witness's
description of a "short, stout, black male about twenty-five years old" was
"problematic" for establishing probable cause because of its "generality." Id. at
1233, 1237. But we held that another witness's description - that the man was
(1) "rather stocky and about twenty-five years old," (2) wearing a black jacket with
the name "McCoy" on it and a red devil on the back, (3) wearing a large amount
of jewelry, and (4) carrying a little bag - did establish probable cause because of its
"specificity." Id. at 1234, 1237.

116 With these principles in mind, we now consider whether the police had
probable cause for their warrantless arrest in this case.

## B. The Description Used to Arrest McGee Lacked Sufficient Specificity to Identify Him as the Suspect in Order to Establish Probable Cause

117 We hold that, under the totality of the circumstances, the officers lacked
probable cause to arrest McGee because the description used to arrest him lacked
sufficient specificity to identify him as the suspect.

118 True, the police had specific information related to the suspect: his birth date
and the fact that his last name begins with "Mc." But they did not arrest McGee
based on this information. Instead, they arrested McGee because he was a male in

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his thirties who arrived on a scooter at Rolland Moore Park within twenty-four
minutes of the scheduled meeting time. Indeed, the officers based their arrest
exclusively on this information. Only after arresting McGee did the officers
question him about his identity; importantly, they did not confirm his name or
birth date prior to the arrest.

119 The People argue that overwhelming evidence of the committed offense and
the descriptors available to the police at the time of the arrest justified the officers'
belief that McGee was the person who committed the offense. We disagree.

120 It is true that A.H.'s age, her account of her online and in-person
communication and contacts with the suspect, and the Discord conversations
provided more than ample evidence for a reasonably cautious officer to believe a
suspect had committed sexual crimes. Hence, we agree that the People presented
sufficient evidence that an offense had been committed. But the People failed to
present sufficient evidence that they identified McGee with the specific
information they had as the person who had committed the offense. That is, the
People did not establish a nexus between McGee and the crime committed in order
to establish probable cause. See King, 16 P.3d at 813.

121 In our view, the description that the officers used to arrest McGee - a male
in his thirties who would be riding a scooter at Rolland Moore Park - is vague and
not sufficiently specific to establish probable cause. See Lewis, 975 P.2d at 167-68.

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We find compelling the trial court's observation that "[t]here [was] no record of
how many individuals who met" the suspect's description in Rolland Moore Park,
a location it described as "large and frequented by many ... particularly during
daytime hours." Thus, when viewed in the light of the facts and circumstances of
the arrest, the description of the suspect lacked the specificity to satisfy the belief of
a reasonably cautious officer intent on making a warrantless arrest that they would
be arresting the particular person who had committed the crime.

122 In sum, the information the police knew about the suspect's identity and the
description they used to identify McGee at the time of the arrest per their
testimony are very different. This court must base its decision on the description
that the police used to identify McGee as established at the suppression hearing.
We thus hold that, under the totality of the circumstances, the officers lacked
probable cause to arrest McGee because the description used to arrest him lacked
sufficient specificity to identify him as the suspect. Accordingly, the fruits of the
arrest are inadmissible at trial. Castaneda, 249 P.3d at 1122.

## IV. Conclusion

123 For the foregoing reasons, we affirm the trial court's order suppressing all
fruits of the warrantless arrest, and we remand the case for further proceedings
consistent with this opinion.