v. Pettigrew

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
March 26, 2020

2020COA46

No. 16CA1319, People v. Pettigrew — Constitutional Law —
Fourth Amendment — Searches and Seizures — Exclusionary
Rule — Independent Source Exception

A division of the court of appeals considers what identifying

information must be included in a search warrant authorizing the

search of a cell phone to meet the Fourth Amendment’s

particularity requirement. The division concludes that the search

warrant in this case — identifying one phone that was registered to

a known phone number and that belonged to a known person —

was sufficiently particular under the Fourth Amendment.
COLORADO COURT OF APPEALS 2020COA46

Court of Appeals No. 16CA1319
Adams County District Court No. 14CR234
Honorable Francis C. Wasserman, Judge
Honorable Donald S. Quick, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

William Scott Pettigrew,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE BERGER
Fox and Lipinsky, JJ., concur

Announced March 26, 2020

Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Casey J. Mulligan, Alternate Defense Counsel, Boulder, Colorado, for
Defendant-Appellant
¶1 William Scott Pettigrew appeals his convictions for pandering

of a child and tampering with a witness or victim. He contends that

two errors require reversal of his convictions. First, he claims that

the trial court’s statements made to the jury during voir dire

regarding reasonable doubt lowered the prosecution’s burden of

proof. Second, he asserts that evidence of the contents of his cell

phone was admitted in violation of the Fourth Amendment. This

second claim raises a question of first impression in Colorado:

What identifying information must be included in a search warrant

authorizing the search of a cell phone to meet the Fourth

Amendment’s particularity requirement?

¶2 We conclude that none the statements made by the trial court

lowered the prosecution’s burden of proof. We also conclude that

the independent source exception to the Fourth Amendment

exclusionary rule applied to the evidence found in Pettigrew’s phone

and that the search warrant sufficiently identified the phone to be

searched. Thus, we affirm the judgment.

I. Background

¶3 Pettigrew met the seventeen-year-old victim in 2013. After

interacting in person, over the phone, and by text, they began a

1
relationship. Text messages that Pettigrew sent to the victim

supported the prosecution’s theory that Pettigrew encouraged the

victim to become a prostitute. The victim’s mother contacted the

police after seeing sexually explicit photographs on the victim’s

phone.

¶4 After obtaining information from the victim, her cell phone,

and her mother, the police arrested Pettigrew inside his house

without a warrant.

¶5 The police interrogated Pettigrew after they transported him to

the police station.1 During the interrogation, Pettigrew showed the

police certain text messages on his cell phone. The police already

had possession of the phone; they had seized it after arresting

Pettigrew. Later that day, the police released Pettigrew because of

concerns by the arresting officers’ superiors that the arrest might

have been unlawful because it was effected without a warrant.

Although the police released Pettigrew, they kept his phone.

¶6 The next day, on the detective’s application, a magistrate

issued a warrant for Pettigrew’s arrest, and he was rearrested.

1Pettigrew does not raise any Fifth Amendment challenges on
appeal.

2
Approximately a week later, the magistrate issued a search warrant

for the cell phone, which, as noted, had remained in police custody.

¶7 Pettigrew was charged with soliciting for child prostitution,

pandering of a child, sexual exploitation of a child, attempted

inducement of child prostitution, and tampering with a witness or

victim.

¶8 Pettigrew moved to suppress all of the information obtained

from his cell phone. He argued that the officers unlawfully arrested

him when they entered his home without a warrant and that the

seizure and later forensic examination of his cell phone were fruits

of the unlawful arrest. The trial court denied the motion,

concluding that exigent circumstances justified Pettigrew’s arrest.

¶9 The jury convicted Pettigrew of pandering of a child and

tampering with a witness or victim but acquitted him of the other

charges.

¶ 10 On appeal, in an unpublished remand order, a different

division of this court rejected the trial court’s conclusion that

exigent circumstances justified Pettigrew’s warrantless arrest.

People v. Pettigrew, (Colo. App. No. 16CA1319, Feb. 27, 2019)

(unpublished order). That division remanded to the trial court to

3
determine whether the independent source exception to the

exclusionary rule justified the admission of the evidence found on

the phone.2

¶ 11 The prior division identified two questions that governed

whether the independent source doctrine applied. First, was the

decision to seek the search warrant prompted by information

learned as a result of the unlawful arrest? Second, did any

information gained from the illegal search affect the magistrate’s

decision to issue the search warrant? The division answered the

second question in the negative. To do so, the division redacted

from the warrant affidavit all of the information that it believed was

discovered as a result of the unlawful arrest, and then concluded

that the warrant affidavit still established probable cause for the

issuance of the warrant. As to the first question, because issues of

2 Neither the prior division nor the trial court determined whether
the police searched Pettigrew’s phone, within the meaning of the
Fourth Amendment, when he showed the police certain text
messages during custodial questioning. Even if a consensual
search occurred, it remains true that the arrest was unlawful and
the examination of the phone by the police, consensual or not,
flowed directly from the unlawful arrest. Similarly, neither the prior
division nor the trial court evaluated whether the seizure of the
phone, as opposed to Pettigrew’s warrantless arrest, was justified by
exigent circumstances. Because of our disposition, neither do we.

4
fact remained, the division remanded the case to the trial court to

determine if the information obtained from the search of the phone

before the warrant was issued affected the detective’s decision to

seek the search warrant.

¶ 12 On remand, the trial court (with a different judge presiding)

found that the detective’s decision to seek the search warrant was

not prompted or impacted by the evidence gathered as a result of

the illegal arrest. The court therefore concluded that the evidence

was admissible under the independent source exception. The

appeal was then recertified to this court.

II. Analysis

A. The Trial Court’s Statements and Instructions
on Reasonable Doubt

¶ 13 Pettigrew asserts that five statements made by the trial court

to the jury during voir dire constituted reversible error.3 Pettigrew

did not preserve any of these claims of error.

¶ 14 A jury “instruction that lowers the prosecution’s burden of

proof below reasonable doubt constitutes structural error and

requires automatic reversal.” Johnson v. People, 2019 CO 17, ¶ 8.

3 The prior division did not address the voir dire claims.

5
But not every statement made by a trial court to a jury constitutes

an instruction. See Deleon v. People, 2019 CO 85, ¶ 15; People v.

Knobee, 2020 COA 7, ¶¶ 72-76 (Dailey, J., concurring in part and

dissenting in part). Thus, if we determine that the court made an

improper statement that lowered the burden of proof during voir

dire, we must then determine if it constituted an instruction. If so,

reversal is required. Johnson, ¶ 8.

¶ 15 However, if the statements were not instructions, we evaluate

under the plain error standard because Pettigrew did not preserve

these claims. See Cardman v. People, 2019 CO 73, ¶ 18; Knobee,

¶¶ 72-76 (Dailey, J., concurring in part and dissenting in part).

“[P]lain error occurs when there is (1) an error, (2) that is obvious,

and (3) that so undermines the fundamental fairness of the trial

itself as to cast serious doubt on the reliability of the judgment of

conviction.” Cardman, ¶ 19.

1. “Innocent” and “Not Guilty”

¶ 16 During voir dire, the court told prospective jurors:

Innocent would mean that the defendant didn’t
do anything, all right? He was in China at the
time of this event okay? He just – he’s
innocent, all right? But that’s not how we look
at trials in this country. It’s – trials in this

6
country are a test of the prosecution’s
evidence. So even if you listen to the evidence
and you start to think about it, you say, well,
you know, he might have done it, or he could
have done it, there’s some evidence there that
would suggest he’s involved in this, if it doesn’t
convince you beyond a reasonable doubt, then
you have to find him not guilty.

¶ 17 These statements did not lower the prosecution’s burden of

proof, so we need not determine if they were instructions. Nothing

in the court’s statements directed or even suggested that the jury

could convict Pettigrew on anything less than proof beyond a

reasonable doubt. Despite any possible confusion, the court

correctly informed prospective jurors that they had to find Pettigrew

not guilty if they were not convinced of his guilt beyond a

reasonable doubt. And immediately prior to the quoted statements,

the court correctly told the jury that guilty “means that the

prosecution’s evidence has convinced you beyond a reasonable

doubt that the defendant committed one or all of the offenses

charged.”

¶ 18 Also, it is uncontested that the jury was correctly instructed

on the burden of proof, under the pattern jury instructions.

Pettigrew does not contend that those instructions were defective in

7
any way. Courts have repeatedly recognized that the risk of

lowering the burden of proof is mitigated when the jury is otherwise

correctly instructed. People v. Estes, 2012 COA 41, ¶ 12.

2. “Beyond a Shadow of a Doubt”

¶ 19 Next, the trial court explained to the venire that legal concepts

are not the same as they appear on television:

[B]eyond a shadow of doubt. Sounds really
good, doesn’t it? There’s no such thing. In
law, there is no such thing as a burden of
proof beyond a shadow of doubt. There’s no
proof beyond all doubt, every doubt or any
doubt. And that’s because, as [prospective
juror] pointed out, you can have vague,
speculative or imaginary doubts about all
kinds of things, but they aren’t reasonable,
okay?

So we don’t – the burden is not an impossible
burden on the prosecution, but it’s a very, very
high burden.

¶ 20 There is no need to determine whether these statements

constituted instructions because they did not misstate the law or

lower the prosecution’s burden of proof. It is not reversible error for

a court to distinguish the fictional “beyond a shadow of a doubt”

standard from the constitutionally mandated beyond a reasonable

doubt standard. Knobee, ¶ 37.

8
3. Perry Mason and CSI

¶ 21 After crediting the television show “Perry Mason” for the

popularity and origin of the “beyond a shadow of a doubt” phrase,

the court summarized an episode of the show “CSI” and made the

following comments:

And the reason I emphasize that is because,
you know, that’s television. That’s great for
TV, but it’s not real life, okay? And I am
always concerned that when jurors go back
into the jury room after they’ve heard all the
evidence and they start to deliberate on a case
and somebody says, well, you know, I saw on
television where the police were able to do this.
And that’s not – that’s bad, okay? Because
this isn’t television. This is real life, all right?
And we don’t rely on what we saw on TV to
decide cases in a live courtroom.

¶ 22 These statements, whether instructions or not, did not affect

the prosecution’s burden of proof. They accurately informed the

prospective jurors that they were required to apply the law given to

them by the court, not by television shows.

4. Birthday Hypothetical

¶ 23 The court continued its attempt to explain reasonable doubt to

potential jurors:

THE COURT: I can throw out maybe your birth
certificate is wrong, maybe your mother wasn’t

9
aware of the date. But I would suggest to you,
[prospective juror], on November 18, you are
going to recognize that as your birthday, aren’t
you?

PROSPECTIVE JUROR: Yes, sir.

THE COURT: Because I haven’t created a
reasonable doubt, have I?

THE PROSPECTIVE JUROR: No, sir.

THE COURT: That’s the important thing. It’s
not to remove all doubt, every doubt, every
vague or imaginative doubt. The burden is on
the prosecution to remove all reasonable
doubt.

¶ 24 Even if portions of these statements were potentially

confusing, they did not lower the burden of proof because the last

quoted sentence was a correct statement of the law: it is the

prosecution’s burden to prove the defendant’s guilt beyond a

reasonable doubt.

5. “We Try People When There’s Evidence to Support the
Charges”

¶ 25 During voir dire, the court had the following colloquy with a

prospective juror:

PROSPECTIVE JUROR: I’m wondering why
there’s no child pornography charges.

THE COURT: Well, you will just have to listen.
Maybe there’s not enough evidence to charge

10
him with that. I don’t know what the evidence
is going to be.

....

THE COURT: I understand. But, first of all,
you know, we try people when there’s evidence
to support the charges, okay?

THE PROSPECTIVE JUROR: Right.

THE COURT: You know, and right now he’s
presumed innocent because there’s no
evidence against him, so I can’t speak to why
he’s not being charged with other offenses.

¶ 26 This colloquy is more problematic than the preceding

statements because the court aligned itself with the prosecutor by

using the pronoun “we.” Estes, ¶ 10. The court also improperly

implied that there was at least some evidence to support the

charges against Pettigrew when it said that “we try people when

there’s evidence to support the charges.” See id.

¶ 27 But any improper inferences as to Pettigrew’s guilt were

corrected by the court’s last statement — “right now he’s presumed

innocent because there’s no evidence against him.” Even if these

statements were instructions, they must be analyzed in context, not

isolation. Johnson, ¶ 14. And accurate written instructions on

reasonable doubt and the presumption of innocence mitigated the

11
potential for any misunderstanding. Estes, ¶ 12. Thus, these

statements did not lower the prosecution’s burden of proof.

¶ 28 Our conclusion that none of the trial court’s statements

require reversal does not constitute approval of them. Indeed, this

court, the Colorado Supreme Court, and the United States Supreme

Court have repeatedly disapproved of similar voir dire statements

made by trial courts because they jeopardize otherwise valid

convictions and almost never bring additional clarity to the difficult

concept of reasonable doubt. See People v. Vialpando, 2020 COA

42, ¶¶ 85–87 (collecting cases).

B. Independent Source Exception

¶ 29 Pettigrew next contends that the trial court on remand erred

when it found that the independent source exception to the

exclusionary rule authorized admission of the evidence obtained

from his cell phone.

1. The Law

¶ 30 The United States and Colorado Constitutions prohibit

unreasonable searches and seizures. U.S. Const. amend. IV; Colo.

Const. art. II, § 7.

12
¶ 31 “[E]vidence derived from or acquired by the police through

unlawful means, such as an illegal search, is inadmissible in

criminal prosecutions” under the fruit of the poisonous tree

doctrine. People v. Triplett, 2016 COA 87, ¶ 55; see also Wong Sun

v. United States, 371 U.S. 471, 484 (1963). Even so, illegally seized

evidence may be admissible if an exception to the exclusionary rule

applies.

¶ 32 One exception is the independent source rule, which permits

“the unconstitutionally obtained evidence [to] be admitted if the

prosecution can establish that it was also discovered by means

independent of the illegality.” People v. Nelson, 2012 COA 37, ¶ 54

(quoting People v. Schoondermark, 759 P.2d 715, 718 (Colo. 1988)).

The prosecution bears the burden of proving by a preponderance of

the evidence that the independent source exception applies. Id. at

¶ 55.

¶ 33 This exception raises two questions. First, was the decision to

seek the search warrant prompted by evidence obtained during the

initial illegal arrest? Schoondermark, 759 P.2d at 719. Second, did

any information gained from the illegal arrest affect the magistrate’s

13
decision to issue the search warrant? People v. George, 2017 COA

75, ¶ 47.

¶ 34 A warrant must be supported by probable cause, and it must

describe with particularity “the place to be searched, and the

persons or things to be seized.” Groh v. Ramirez, 540 U.S. 551, 557

(2004) (quoting U.S. Const. amend. IV). “The requirement that

warrants shall particularly describe the things to be seized . . .

prevents the seizure of one thing under a warrant describing

another.” Marron v. United States, 275 U.S. 192, 196 (1927).

¶ 35 A trial court’s ruling on a motion to suppress presents a mixed

question of fact and law. People v. Hyde, 2017 CO 24, ¶ 9. “We

defer to the trial court’s findings of fact that are supported by the

record, but we assess the legal effect of those facts de novo.” Id.

2. Decision to Seek the Warrant

¶ 36 Pettigrew argues that the trial court erred on remand in

concluding that the police’s decision to obtain a search warrant was

not tainted by any of the illegally obtained information. Specifically,

he argues that the detective’s testimony indicated that his decision

to seek the warrant was tainted by information obtained from the

14
illegal arrest and seizure of the phone. But the record supports the

trial court’s findings and conclusion.

¶ 37 The record demonstrates that the police knew that Pettigrew

was texting the victim about child prostitution before the unlawful

arrest and seizure of Pettigrew’s phone. Before the police ever

contacted or arrested Pettigrew, they knew it was highly likely that

Pettigrew’s phone contained evidence of criminal conduct because

the detective had examined the victim’s phone, which contained

text messages between her and Pettigrew. This was more than

sufficient probable cause to believe that Pettigrew had engaged in

criminal conduct, completely independent of information obtained

from the unlawful arrest.

¶ 38 Pettigrew also argues that the detective only learned the

physical description of the cell phone during Pettigrew’s

interrogation following his unlawful arrest, and that this

information influenced the detective’s decision to seek a warrant.

¶ 39 On these facts, this argument is meritless. The detective knew

to a practical certainty that Pettigrew had a phone that he was

using to text a minor about illegal activity. Because the police knew

this before the illegal arrest and interrogation, whatever information

15
they learned from the interrogation did not influence their decision

to obtain a search warrant.

3. Validity of the Warrant

¶ 40 Pettigrew’s argument about the physical description of the

phone has more force when analyzing whether the magistrate’s

decision to issue the warrant was affected by illegally obtained

information. Pettigrew argues that if the phone’s physical

description was redacted from the warrant affidavit, the magistrate

would not have issued the warrant because it would have lacked

particularity as to the place to be searched — the phone.4 This is

so, according to Pettigrew, because a physical description of the

phone is necessary to satisfy the Fourth Amendment’s particularity

requirement.

¶ 41 This issue is outside the scope of the limited remand order,

which concerned only the question of whether the detective’s

decision to seek the warrant was tainted by the illegal search. The

4Pettigrew does not argue that the warrant was deficient for lack of
particularity as to the things to be seized within the phone (for
example, files, data, or other information on the phone).

16
prior division has already determined that the magistrate’s decision

to issue the warrant was not tainted.

¶ 42 So, we face two questions. First, should the prior division

have redacted the physical description of Pettigrew’s cell phone in

addition to the other information obtained from the unlawful arrest

and seizure before determining whether the magistrate’s decision to

issue the warrant was impacted? Second, if the physical

description of the phone is redacted from the warrant, is it invalid

for lack of particularity? We answer the second question “no,” so it

is not necessary to consider the first.

¶ 43 Even if the physical description of the phone is redacted, the

warrant sufficiently describes the “place” to be searched —

Pettigrew’s phone. Specifically, the warrant authorized the search

of Pettigrew’s cell phone that was tied to one specific phone

number. This is sufficient particularity under the Fourth

Amendment.

¶ 44 We have found no authority supporting Pettigrew’s contention

that a warrant to search a cell phone must describe the phone’s

make, model, and color to meet the Fourth Amendment’s

particularity requirement. Pettigrew relies on United States v.

17
Russian, 848 F.3d 1239, 1246 (10th Cir. 2017), but that case is

different. There, the warrant authorized the search of the

defendant’s apartment and any cell phones found inside. Id. The

United States Court of Appeals for the Tenth Circuit held that the

warrant was invalid for lack of particularity.5 Id.

¶ 45 This case — where the police wanted to search one phone,

belonging to a known person, registered to a known phone number

— is fundamentally different from Russian. Here, the police did not

seek a warrant for any electronic device that Pettigrew could have

been using to communicate with the victim; they sought a warrant

for one cell phone used by Pettigrew that already was in the police’s

possession. One federal court has concluded that a warrant that

5 It is unclear whether the warrant in Russian lacked particularity
because it authorized the search of any cell phones found in the
defendant’s apartment, or because that authorization failed to
describe the two phones that the police had already seized, or both.
See United States v. Russian, 848 F.3d 1239, 1246 (10th Cir. 2017)
(“Although the application requested authorization to search the
two Samsung cell phones law enforcement had seized at the time of
Russian's arrest and certain data that might be found on them, the
warrant itself merely authorized a search of Russian's residence
and seizure of any cell phones found inside.”). Regardless, Russian
does not support Pettigrew’s contention that a warrant to search a
cell phone must describe the phone’s make, model, and color to be
sufficiently particular.

18
“expressly identified [a] cell phone number associated with an

active” criminal investigation has “sufficiently identified the cell

phone” for Fourth Amendment purposes. United States v. Cook, No.

CRIM. 14-221 ADM/JJK, 2015 WL 224721, at *11 (D. Minn. Jan.

15, 2015), aff’d, 842 F.3d 597 (8th Cir. 2016). While that case is

not binding on us, it is well reasoned, and we follow it here.

¶ 46 For all these reasons, the evidence seized from Pettigrew’s

phone was admissible at trial under the independent source

exception.

III. Conclusion

¶ 47 The judgment of conviction is affirmed.

JUDGE FOX and JUDGE LIPINSKY concur.

19