Peo v. Torres

22CA1730 Peo v Torres 10-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1730
City and County of Denver District Court No. 21CR3373
Honorable Jay S. Grant, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Matthew Torres,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE PAWAR
Freyre, J., concurs
Yun, J., concurs in part and dissents in part

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 23, 2025

Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julieanne Farchione, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Matthew Torres, appeals his conviction of two

counts of possession of a weapon by a previous offender (POWPO).

We agree with him that his convictions must merge but conclude

that he is not entitled to any additional relief.

I. Background

¶2 Police were surveilling an RV they believed was involved in

illegal drug sales. Torres and his friend walked past the RV and

then returned to talk to the RV’s occupant through the driver’s side

window. Torres and his friend appeared to argue with the person

inside the RV when Torres’ friend reached through the open window

and appeared to attack the person inside. Torres and his friend

then walked away from the RV with Torres appearing to try to calm

his friend down.

¶3 Having observed these events, police decided to approach

Torres and his friend. Officer Hillers detained Torres while Officer

Hart detained his friend. A third officer detained the person in the

RV. During this interaction, officers discovered a gun on Torres’

hip.

¶4 Torres was charged with two counts of POWPO based on two

previous felony convictions. Before trial, he moved to suppress the

1
gun, arguing that police lacked reasonable suspicion to support

either an investigatory stop or a pat-down for weapons. The trial

court denied the motion and admitted the gun evidence at trial.

The jury found Torres guilty of both POWPO counts, and he was

convicted and sentenced accordingly.

¶5 Torres appeals. He argues that the trial court erred by

(1) failing to suppress the gun; (2) denying a challenge for cause to a

juror who served on the jury; (3) refusing to compel the prosecution

to discover certain documents; and (4) failing to merge the two

POWPO convictions. We conclude that only the last argument

warrants relief.

II. Suppression

¶6 Torres argues that the trial court erred by (1) denying his

motion to suppress at the pretrial suppression hearing and

(2) refusing to reverse that ruling at trial based on new evidence.

We disagree with both arguments.

A. Governing Law

¶7 We review a trial court’s suppression ruling as a mixed

question of fact and law. People v. Deaner, 2022 CO 43, ¶ 10. We

defer to the court’s factual findings if they are supported by

2
competent evidence in the record and review the legal effect of those

facts de novo. Id.

¶8 Under the Fourth Amendment, an investigatory stop like the

one at issue here must be supported by a reasonable articulable

suspicion that the suspect is involved in criminal activity

(reasonable suspicion). People v. Dacus, 2024 CO 51, ¶ 26.

¶9 A legal investigatory stop does not, in and of itself, justify a

pat-down search for weapons. People v. Martinez, 801 P.2d 542,

544-45 (Colo. 1990). Instead, even during a legal investigatory

stop, officers may conduct a pat-down search for weapons only if

there is also reasonable suspicion that the suspect is armed and

dangerous. Id. at 545.

¶ 10 It is initially the defendant’s burden to establish the point at

which a Fourth Amendment seizure occurred. See Outlaw v.

People, 17 P.3d 150, 155 (Colo. 2001). If the defendant establishes

a Fourth Amendment seizure and the police acted without a

warrant, as they did here, the burden shifts to the prosecution to

prove that it was legal. Id.

3
B. Pretrial Ruling

¶ 11 In reviewing a pretrial suppression ruling, we consider only

the record created at the suppression hearing. Dacus, ¶ 24. Torres

argues that, based on the suppression hearing evidence, police had

neither reasonable suspicion for an investigatory stop nor

reasonable suspicion to believe that he was armed and dangerous

when the gun was discovered.

¶ 12 We conclude these arguments are effectively irrelevant. Based

on our review of the suppression hearing evidence, we conclude

that Torres failed to establish that he was seized at the moment

police discovered the gun.

¶ 13 A Fourth Amendment seizure requires either (1) the

application of physical force to restrain movement or (2) in the

absence of physical force, a suspect’s submission to an officer’s

show of authority. California v. Hodari D., 499 U.S. 621, 626

(1991). If there is no application of physical force and a suspect

refuses to submit to an officer’s show of authority, there is no

seizure. This is what the evidence at the suppression hearing

showed.

4
¶ 14 Officer Hillers, Torres’ arresting officer, did not testify at the

suppression hearing because he had COVID-19. But Officer Hart,

who detained Torres’ friend, did testify. He testified that Officer

Hillers approached Torres, saying he wanted to speak with Torres

and pat him down for weapons. But Torres said no. Officer Hart

further testified that he saw the holstered gun under Torres’ shirt

before Officer Hillers made physical contact with Torres and before

Torres acquiesced to Officer Hillers’ show of authority. In other

words, Officer Hart saw the gun before Torres was seized and

certainly before any search occurred.

¶ 15 No contrary evidence was presented at the suppression

hearing. We therefore must reject Torres’ argument that the trial

court should have granted his suppression motion at the

suppression hearing. Because the evidence at the hearing showed

that police discovered the gun before any stop or search took place,

whether reasonable suspicion existed for either was irrelevant.

C. Renewed Motion at Trial

¶ 16 Torres also argues that the trial court should have revisited its

suppression ruling at trial when Officer Hillers testified for the first

5
time because his testimony suggested Torres was seized at the

moment the officers discovered the gun.

¶ 17 Officer Hillers testified at trial that he had already applied

physical force to Torres when Officer Hart discovered the gun. He

testified that he heard Officer Hart say “gun” — indicating that

Torres had a gun — after he (Officer Hillers) had grabbed Torres’

arm. Torres argued to the trial court that this testimony suggested

he was seized before the officers discovered the gun, thereby

contradicting the suppression hearing evidence and undermining

the court’s pretrial suppression ruling. The court declined to revisit

its pretrial suppression ruling, saying that ruling was the law of the

case and observing that “[t]he Defense could have called Officer

Hillers [at the suppression hearing] to provide a second

perspective.”

¶ 18 Generally, motions to suppress must be filed and ruled upon

before trial. Crim. P. 41(e). But a trial court retains discretion to

entertain a motion to suppress at trial. Id. A trial court acts within

its discretion by denying a during-trial suppression motion “if the

grounds therefor were known or by due diligence were reasonably

6
discernible prior to trial.” People v. Tyler, 874 P.2d 1037, 1039

(Colo. 1994).

¶ 19 Torres’ renewal of his suppression motion based on Officer

Hillers’ testimony was effectively a late suppression motion that the

trial court had the discretion to consider under Crim. P. 41(e). We

conclude that the court acted within its discretion by denying it

because its grounds (Officer Hillers’ testimony) were reasonably

discernible prior to trial through due diligence.

¶ 20 We recognize that it was not defense counsel’s fault that

Officer Hillers could not testify at the suppression hearing (he had

COVID-19). We also recognize that defense counsel likely did not

know how Officer Hillers would describe the events at issue. But

Officer Hillers was the arresting officer, and, before trial, it was

clear that the fate of any suppression motion would turn on what

Officers Hillers and Hart knew at the moment one of them first saw

the gun. Under these circumstances, due diligence required

defense counsel to present Officer Hillers’ testimony before the

court ruled on the suppression motion.

¶ 21 Upon learning that Officer Hillers was sick and unavailable for

the suppression hearing, defense counsel could have asked for a

7
continuance or proceeded with the suppression hearing and

requested an additional hearing date before trial at which Officer

Hillers could testify. Had defense counsel done so, the conflict

between the two officers’ testimony would have been obvious and

allowed the trial court to rule on the suppression issue before trial.

Put in the language of the governing legal standard, had defense

counsel exercised due diligence, the grounds for the suppression

motion would have been reasonably discernible. We therefore

conclude that the trial court did not abuse its discretion by denying

the during-trial suppression motion.

¶ 22 This result may seem troubling and unfair given that Officer

Hillers’ testimony, the substance of which was revealed only at trial,

could have benefitted Torres’ suppression argument. But avoiding

this situation is why Crim. P. 41(e) “require[es] the parties to . . .

pursue discovery vigorously prior to trial.” Tyler, 874 P.2d at 1039.

And our holding is not without precedent. See People v. Hastings,

983 P.2d 78, 82-83 (Colo. App. 1998) (holding that during-trial

suppression motion was untimely even though primary witness of

alleged illegal search was unavailable before trial because defendant

8
knew that the potentially illegal search had occurred), aff’d on other

grounds sub nom., Gorman v. People, 19 P.3d 662 (Colo. 2000).

¶ 23 We therefore disagree with Torres’ arguments that the trial

court erred by failing to suppress the gun evidence.

III. Challenge for Cause

¶ 24 Torres next argues that the trial court erred by denying his

challenge for cause to a juror who ended up serving on the jury.

We review a court’s denial of a challenge for cause to a juror for an

abuse of discretion. Marko v. People, 2018 CO 97, ¶ 22. We

perceive none here.

¶ 25 A juror’s initial expression of bias does not necessarily require

their exclusion for cause. Id. at ¶ 21. Even if a juror initially

expresses bias or a misunderstanding of the law, the juror should

not be excused for cause if the court believes they can set that bias

aside and impartially follow the law. See § 16-10-103(1)(j), C.R.S.

2025; Marko, ¶ 21.

¶ 26 Here, the juror initially indicated that evidence of Torres’ prior

felony convictions would make her think it was more likely he

committed the charged offenses. Defense counsel asked the juror a

9
series of questions about this belief that ultimately demonstrated

the juror could follow the law:

Defense counsel: So if you were read a rule
that said that a person who comes into this
courtroom and sits at the defense table is
presumed innocent, and that a prior felony
conviction can not be held against them for the
purposes of determining if they are guilty in
this case, how do you fall on that rule?

Juror: I am a rule follower, so I would follow
the rule. But it is in the back of my head.

Defense counsel: We don’t expect you to forget
the things you believe or change who you are
to come into this courtroom to be a juror.
When you say that you would follow the rule,
are you 100 percent confident you can follow
that rule in every case, or is it something you
would try to do?

Juror: Try to do.

Defense counsel: Okay. I want to dig in a little
bit on the word “try.”

So I try to wake up early and work out every
day. I don’t work out every day. That does not
happen, but I try. I set the alarm.

When I say that I try to wake up and work out
every morning, is that the same kind of try
that you would apply in this case?

Juror: I think I would follow the rule. Having
heard the “prior,” it just — I will follow the
rule, but — I don’t know how to describe what

10
kind of “try” that would be. It’s just in the
back of my head.

¶ 27 Based on this record, we conclude that the trial court acted

within its discretion by denying the challenge for cause. The juror

repeatedly stated that she would follow the rule despite her initial

belief about prior felony convictions. We therefore disagree with

Torres’ argument that the trial court erred.

IV. Motion to Compel

¶ 28 Torres next argues that the trial court erred by refusing to

compel the prosecution to discover a particular piece of evidence

relevant to his prior felonies as a discovery sanction. Torres claims

that this error violated his constitutional right to due process and

therefore argues that we must reverse unless the error was

harmless beyond a reasonable doubt. See Hagos v. People, 2012

CO 63, ¶ 11. Even if we assume the trial court erred, and further

assume that the error was constitutional, we conclude that it was

harmless beyond a reasonable doubt because there is no

reasonable possibility that it contributed to Torres’ conviction. See

id.

11
¶ 29 About six months before trial, the prosecution sent the defense

a photocopy of a packet of information, certified by another trial

court, that contained records of Torres’ prior felony convictions.

But that’s not all it contained. The other trial court mistakenly

included in the certified packet records from an unrelated case

against an unrelated defendant.

¶ 30 Six months later, and less than a week before trial, the

prosecution sent the defense a second version of the packet, again

certified by the other trial court. This second packet contained the

same records of Torres’ prior felonies, included additional records of

Torres’ prior felonies, and omitted the records from the unrelated

case. Because of a long holiday weekend right before trial, defense

counsel did not become aware of the second packet until the

prosecution sought to introduce it midway through trial. Defense

counsel objected to its admission, and the trial court overruled the

objection and admitted it.

¶ 31 Defense counsel then sought to compel the prosecution to

discover the original version of the first packet (not the photocopy

sent six months before trial) so that defense counsel could

introduce it to attack the reliability of the information in the second

12
packet.1 Defense counsel argued that this was an appropriate

discovery sanction for the prosecution providing the second packet

less than a week before trial.

¶ 32 Torres does not dispute that the second packet (the one

admitted at trial) contained overwhelming evidence of his prior

felonies. The first packet did too — it contained court records

showing that a person with Torres’ identical name and date of birth

had been convicted of two felonies. Nevertheless, Torres claims

there is a reasonable possibility that had he been able to introduce

the first packet with its extraneous records, the jury would have

doubted the reliability of all the records to the point that it would

have found the records insufficient to prove Torres’ prior felonies

beyond a reasonable doubt.

¶ 33 We disagree. Initially, we note that no ruling prevented Torres

from introducing the photocopy of the first packet he already had in

1 Defense counsel sought the original version of the first packet so

that it could be introduced as a self-authenticating document.

13
his possession.2 Although the photocopy may not have been self-

authenticating, Torres chose to forego laying foundation that could

have allowed him to introduce the photocopy.

¶ 34 Furthermore, had the first packet been introduced, the jury

would have certainly understood that the other trial court

mistakenly certified the extraneous records. But the jury would

have also understood that the other trial court certified the same

records of Torres’ felonies twice, thereby bolstering the credibility of

those records and strengthening the prosecution’s case that he had

been convicted of two prior felonies. We therefore see no reasonable

possibility that introducing the second packet without the first

contributed to Torres’ conviction.

¶ 35 Torres also argues that he was prejudiced by not being able to

introduce the first packet with the extraneous records because it

2 We recognize that in denying defense counsel’s objection to

admitting the second packet, the trial court said that the first
packet “would cause incredible confusion to the jury.” We doubt
that this constituted a ruling that any version of the first packet
(original or photocopy) was inadmissible under CRE 403 for
confusing the issues. But if it was a ruling excluding the first
packet under CRE 403, Torres does not challenge that ruling. And
that ruling would have rendered the original first packet
inadmissible, thereby mooting the trial court’s alleged in error in
refusing to compel its discovery.

14
destroyed the defense’s credibility with the jury. According to

Torres, defense counsel made a promise to the jury in her opening

statement that she was unable to fulfill because the first packet was

never introduced. We presume that Torres is referring to this

passage from defense counsel’s opening statement:

Finally, the People are going to talk about a
prior case. They’ve already talked about a
prior case where they allege that Mr. Torres
was convicted of some crimes. We’re going to
ask you to question the evidence that they
show you about that prior case. We’re going to
ask you to consider whether that evidence is
reliable, whether that evidence is reliable
enough to convict Mr. Torres and to find him
guilty beyond a reasonable doubt. We’re going
to ask you to look very closely at that evidence
and consider whether you should believe that
that is true.

¶ 36 As this record shows, defense counsel made no promise

during opening statement. She merely asked the jury to scrutinize

the reliability of the prosecution’s evidence. Consequently, we

conclude that the exclusion of the first packet had no impact on the

15
defense’s credibility with the jury and did not prejudice the defense

as Torres suggests.3

V. Merger

¶ 37 Finally, Torres contends that his possession of a single gun

during a single incident cannot support two POWPO convictions.

The prosecution agrees, and so do we. See People v. Perez, 2019

COA 48, ¶ 28 (“A person with multiple prior felony convictions may

not be convicted of multiple POWPO counts for possession of a

single gun during a single incident.”), affirmed on other grounds and

vacated in part on other grounds, 2021 CO 5M. We therefore vacate

one of Torres’ POWPO convictions.

VI. Disposition

¶ 38 One of Torres’ POWPO convictions is vacated. The judgment is

otherwise affirmed. The case is remanded to the trial court with

directions to correct the mittimus.

JUDGE FREYRE concurs.

3 In so holding, we do not suggest that it was Torres’ burden to

establish prejudice for this assumed constitutional error. It is the
prosecution’s burden to establish harmlessness beyond a
reasonable doubt, Hagos v. People, 2012 CO 63, ¶ 11, a burden we
conclude the prosecution has carried.

16
JUDGE YUN concurs in part and dissents in part.

17
JUDGE YUN, concurring in part and dissenting in part.

¶ 39 I concur with most of the majority’s opinion. But I part ways

with the majority’s conclusion that the trial court did not abuse its

discretion by declining to reconsider its suppression ruling after

Officer Hillers testified at trial. Because Officer Hillers was absent

from the suppression hearing due to illness from COVID-19 and his

trial testimony directly contradicted, in part, the factual basis for

the trial court’s suppression decision, I believe the trial court

abused its discretion by refusing to reconsider its earlier ruling.

Accordingly, I respectfully concur in part and dissent in part and

would remand the case for the trial court to reconsider its

suppression ruling in light of Officer Hillers’s trial testimony.

¶ 40 Matthew Torres was charged with two counts of possession of

a weapon by a previous offender. Before trial, he moved to

suppress evidence of the gun, contending that the police lacked

reasonable suspicion to justify either an investigatory stop or a pat-

down for weapons under the Fourth Amendment.

¶ 41 At the suppression hearing, Officer Hart testified that Officer

Hillers approached Torres and stated that he wanted to pat Torres

down for weapons and speak with him. Torres responded, “No, you

18
can’t pat me down, you can’t search me, you have no right to

search me.” As Officer Hillers reached to control Torres, Officer

Hart observed Torres pulling away and noticed a gun in a holster on

Torres’s hip. Officer Hart testified that he saw the gun before

Officer Hillers made any physical contact with Torres and before

Torres submitted to Officer Hillers’s authority. Upon seeing the

gun, Officer Hart assisted Officer Hillers in handcuffing and

arresting Torres.

¶ 42 Based largely on Officer Hart’s testimony, the trial court made

the following findings:

And I think here, based on the totality and
universal knowledge — knowledge that the
officer and detectives had, they had reason to
go up and to question the individuals in the
alley. And before even Mr. Torres was detained
is when Detective Hart saw the gun. And
regardless of whether he can legally carry a
gun on your person, concealed, or whatever,
for officer safety purposes he had reason to
detain and secure the handgun in the alley.

....

For those reasons, I find that I deny the
Defense motion to suppress the evidence, and
there’s reasonable suspicion to approach the
individuals and do a Terry pat-down for officer
safety. Again, Mr. Torres turned away when
Detective Hart saw the gun, then I think they

19
had reason to be able to detain him and secure
him. So with that being said, we need to set a
trial.

¶ 43 At trial, Officer Hillers testified that he informed Torres he

intended to pat him down. Torres responded defiantly and began to

walk away. As Torres attempted to leave, Officer Hillers grabbed his

wrist, then reached for his belt and suspender area to prevent him

from escaping. “[W]hen I grabbed onto the suspender . . . and belt

area,” Officer Hillers continued, “apparently that moved [Torres’s

shirt] or showed [Torres’s] waistband, which [Officer] Hart could

see,” and “[t]hat was when [Officer Hart] . . . said ‘gun.’” He further

clarified:

Q. Okay. And so you contacted Mr. Torres
physically before you knew that there was a
gun —or that there was likely a gun?

A. Yes.

Q. And it was after that that you heard
Sergeant Hart announce “gun”?

A. Correct.

¶ 44 Torres’s counsel moved the trial court to reconsider its

suppression ruling, arguing that Officer Hillers’s testimony

contradicted Officer Hart’s suppression hearing testimony, which

20
formed the basis for the court’s decision. The trial court denied the

motion, reasoning as follows:

So I guess my position is that there was a
motions hearing where officers were called,
officers testified, and I made a ruling on the
evidence that was presented. I think it’s the
law of the case. I don’t think I’m going to
reopen it.

The Defense could have called Officer Hillers to
provide a second perspective. Both officers
have a different perspective on, like, what I
think [the prosecutor] is saying that, you
know, one is very close and one is not.

I don’t think it warrants, from what I — from
my ruling and from what this detective has
testified, I don’t think that warrants a
relitigation of the motion nor a change of my
order.

¶ 45 In criminal cases, motions to suppress evidence should be

filed and resolved before trial when the defendant is aware of the

grounds for such a motion. Crim. P. 41(e), (g); People v. Tyler,

874 P.2d 1037, 1039 (Colo. 1994). This process promotes efficiency

by encouraging parties to conduct thorough discovery prior to trial.

Tyler, 874 P.2d at 1039. It also allows both the prosecution and the

defense to prepare for trial with a clearer understanding of what

evidence will be admitted or excluded. Id.

21
¶ 46 However, under Crim. P. 41(e), a trial court retains discretion

to consider a motion to suppress during trial. The court may deny

such a motion at trial “if the grounds therefor were known or by

due diligence were reasonably discernible prior to trial.” Tyler,

874 P.2d at 1039. However, “if the defendant could not by the

exercise of reasonable diligence discover the grounds for such a

motion in advance of trial, the defendant should not be deemed to

have forfeited his or her right to seek suppression of evidence

arguably obtained by constitutionally prohibited means.” Id.

Otherwise, a contrary ruling would result in a postconviction claim

of ineffective assistance of counsel if the defendant is convicted. Id.

Further, when the justification for late filing is a close call, the court

may exercise its discretion to rule on the merits of an arguably

untimely motion as a precaution, recognizing that a future reversal

of its timeliness determination would likely necessitate a new trial.

Id. at 1039-40.

¶ 47 In my view, the trial court abused its discretion by refusing to

reconsider its suppression ruling based on Officer Hillers’s trial

testimony for several reasons.

22
¶ 48 First, the law of the case doctrine permits a court to reconsider

its rulings when presented with new evidence. The law of the case

doctrine is merely a “discretionary rule of practice” when applied to

a trial court’s power to reconsider its own prior rulings. People v.

Morehead, 2019 CO 48, ¶ 10 (citation omitted). It “provides that

prior relevant rulings made in the same case are to be followed

unless such application would result in error or unless the ruling is

no longer sound due to changed conditions.” Stockdale v.

Ellsworth, 2017 CO 109, ¶ 37 (quoting People v. Dunlap, 975 P.2d

723, 758 (Colo. 1999)). But “a trial court is not inexorably bound

by its own precedents.” Id. at ¶ 37 (quoting Brodeur v. Am. Home

Assurance Co., 169 P.3d 139, 149 (Colo. 2007)). The doctrine

allows a trial court to clarify or even revisit its prior rulings. Id.

Because the trial court in this case was presented with new

evidence that appeared to contradict the factual basis for the

court’s earlier ruling, the law of the case doctrine did not preclude

the court from reconsidering it. See Moore v. 1600 Downing St.,

Ltd., 668 P.2d 16, 19 (Colo. App. 1983) (the law of the case doctrine

is generally inapplicable when there is new evidence before the

court).

23
¶ 49 Second, the trial court erred by finding that the defense “could

have called Officer Hillers to provide a second perspective” at the

suppression hearing. Although Officer Hillers was under subpoena,

he was unable to appear at the hearing because he was sick with

COVID-19. Thus, the trial court was incorrect in finding that the

defense could have called Officer Hillers at the hearing. While the

majority says that “defense counsel could have asked for a

continuance or proceeded with the suppression hearing and

requested an additional hearing date before trial at which Officer

Hillers could testify,” supra ¶ 21, the trial court made no such

findings in its ruling. The court said nothing about whether the

defense had the option to continue the suppression hearing or

could have secured his testimony on another date. Instead, it

appears the trial court mistakenly believed Officer Hillers was

available to testify, but the defense chose not to call him at the

hearing.

¶ 50 Finally, I disagree with the majority’s view that Torres’s

counsel failed to exercise reasonable diligence because she could

have asked for a continuance and obtained Officers Hillers’s

testimony on another date before trial. See supra ¶ 21. After

24
Officer Hart testified at the suppression hearing about what he

observed, there was no reason to suspect that Officer Hillers’s

testimony would contradict Officer Hart’s own observation. No

police report or any other document in the record suggested that

Officer Hillers would provide a different version of how the gun

became visible — namely, that his physical contact caused Torres’s

shirt to rise and expose the gun. While it would have been prudent

to secure Officer Hillers’s testimony before the court’s suppression

ruling, I do not believe that reasonable diligence required the

defense to request a continuance of the suppression hearing under

these circumstances. This is precisely the type of situation that

Crim. P. 41(e) was designed to address — when new evidence comes

to light at trial that could not have been reasonably anticipated.

¶ 51 Indeed, a review of reported Colorado decisions shows that

appellate courts have upheld the trial court’s denial of untimely

suppression motions only when the defense knew the supporting

facts well before trial. See Tyler, 874 P.2d at 1040 (concluding that,

because the defendant’s “attorney conceded that he had knowledge

of the [United States Army Investigation Command’s] involvement in

[the defendant’s] arrest from the onset of the criminal proceedings,”

25
the applicability of the Posse Comitatus Act could have been

identified through reasonable diligence soon after the case was

filed); Morgan v. People, 444 P.2d 386, 387 (Colo. 1968) (affirming

the trial court’s decision not to hear a motion to suppress, which

was filed on the afternoon before trial, because all the factual

grounds raised were apparent from the time defense counsel first

appeared); People v. Hastings, 983 P.2d 78, 83 (Colo. App. 1998)

(affirming the denial of a motion to suppress, made during trial, as

untimely because the defendant had been awakened by her son

claiming that “a detective just tried to come through my window”

and was therefore “on notice of the police conduct nearly from the

moment it occurred”), aff’d on other grounds sub nom., Gorman v.

People, 19 P.3d 662 (Colo. 2000); People v. Hinchman, 574 P.2d

866, 868 (Colo. App. 1977) (when the “defendant possessed prior to

trial all pertinent information relative to the seizure of the container

and its possible suppression,” the trial court did not abuse its

discretion by ruling that the motion to suppress, made during trial,

was untimely), aff’d in part and rev’d in part on other grounds,

589 P.2d 917 (Colo. 1978); see also Crim. P. 41(e) (“The motion

shall be made and heard before trial unless opportunity therefor did

26
not exist or the defendant was not aware of the grounds for the

motion . . . .”). Unlike these cases, the record here does not show

that, prior to trial, the defense was aware of Officer Hillers’s

testimony or had any reason to suspect he would contradict Officer

Hart’s account.

¶ 52 I therefore respectfully dissent in part. I would remand the

case for the trial court to reconsider its suppression ruling in light

of Officer Hillers’s trial testimony. See Morehead, ¶ 16; People v.

Mack, 895 P.2d 530, 537 (Colo. 1995) (reversing the suppression

ruling in part and remanding for additional findings). I otherwise

concur with the rest of the majority’s opinion.

27