SUMMARY

January 30, 2020

2020COA14

No. 15CA0040, People v. Tallent — Constitutional Law —

Searches and Seizures — Exclusionary Rule — Exceptions

After the Colorado Supreme Court’s decision in People v. 

Morehead, 2019 CO 48, 442 P.3d 413, stating that the trial court 

should exercise its discretion in allowing or disallowing the 

prosecution to argue new theories opposing a motion to suppress 

evidence on remand, a division of the court of appeals establishes a 

two-prong test intended to aid the trial court’s decision. The 

division concludes that (1) the trial court should consider three 

factors — whether entertaining new arguments would unfairly 

prejudice any party to the case, whether the party proposing the 

new argument is at fault for not preserving it in an earlier 

proceeding, and any other factor the court deems relevant — in 

exercising its discretion to determine whether it will allow the 

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.
prosecution to advance new arguments on remand; and (2) if the 

court determines that new arguments opposing suppression may be 

raised for the first time on remand, it should proceed to the second 

step by ruling on the substance of the new arguments.
COLORADO COURT OF APPEALS 2020COA14

Court of Appeals No. 15CA0040

Larimer County District Court No. 07CR68

Honorable Julie Kunce Field, Judge

Honorable Stephen E. Howard, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Randy D. Tallent,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE TAUBMAN

Bernard, C.J., and Welling, J., concur

Announced January 30, 2020

Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Esteban A. Martinez, Alternate Defense Counsel, Longmont, Colorado; Joseph 

T. Goodner, Englewood, Colorado, for Defendant-Appellant
1

¶ 1 Defendant, Randy D. Tallent, appeals his judgment of 

conviction entered on a jury verdict finding him guilty of theft, 

second degree burglary, second degree criminal trespass, and theft 

by receiving. He also appeals his adjudication as a habitual 

criminal and his sentence. Our division previously reversed the 

trial court’s judgment, People v. Tallent, (Colo. App. No. 15CA0040, 

May 24, 2018) (not published pursuant to C.A.R. 35(e)), relying on 

People v. Morehead, 2015 COA 131, ¶ 52, 450 P.3d 733, 742

(Morehead I), aff’d in part and rev’d in part, 2019 CO 48, 442 P.3d 

413 (Morehead II), to conclude that the trial court may not hear new 

arguments on remand in opposition to a defendant’s motion to 

suppress. Following its decision in Morehead II, concluding that the 

trial court has discretion to hear on remand new arguments 

opposing a defendant’s motion to suppress, the supreme court 

vacated our decision and remanded the present case. People v. 

Tallent, (Colo. No. 18SC483, July 1, 2019) (unpublished order). We 

now reverse and remand for further findings. 

¶ 2 Because the supreme court vacated our opinion, we restate 

the background and some of the legal principles below.
2

I. Background

¶ 3 Around midnight one night in January 2007, a police officer 

was in his patrol car in an alley watching for a vehicle that had 

been illegally parking in a handicapped space. The officer saw 

Tallent near a garage in the alley. When Tallent saw the patrol car, 

he turned and ran, ignoring the officer’s orders to stop. The officer 

saw Tallent pass through a fenced backyard, but then lost sight of 

Tallent and called for backup. 

¶ 4 The responding officers followed footprints in the snow and 

found Tallent hiding on the front porch of a nearby building. He 

was arrested at gunpoint, handcuffed, and searched. The officers 

found a set of keys with a remote entry fob in Tallent’s pocket. 

Using the fob, the officers located Tallent’s car, which they 

impounded and eventually searched pursuant to a warrant. 

¶ 5 After Tallent’s arrest, officers again tracked his footprints, first 

to a screwdriver dropped in the snow and then to a garage where 

they found tools that had recently been reported stolen from a 

nearby construction site, as well as other stolen property. In the 

meantime, the officers discovered that Tallent had an outstanding 

warrant for his arrest on a parole violation. 
3

¶ 6 Over the course of the next few months, the police continued 

investigating leads stemming from property found in the garage. 

The police also monitored phone calls Tallent placed while in jail. 

These investigative efforts led the police to additional evidence and 

witnesses. 

¶ 7 Before trial, Tallent moved to suppress the evidence and 

statements obtained as a result of his arrest. Specifically, he urged 

the trial court to suppress 

everything learned or obtained including but 

not limited to any statements reportedly made 

by Mr. Tallent following and as a result of his 

unlawful seizure, detention and arrest; 

resulting from his unlawful custodial 

interrogation; resulting from the unlawful 

entry and search of the garage where he was 

storing his personal property; and resulting 

from the unlawful seizures and searches of his 

personal property and motor vehicle, as well as 

any evidence which is fruit thereof. 

¶ 8 After a hearing, the trial court initially granted Tallent’s 

motion in a bench ruling. Then, in a written order, the trial court 

reconsidered and partially denied the motion to suppress.1 After a 

 

1 The trial court suppressed evidence seized from Tallent’s car. The 

People brought an interlocutory appeal, and the supreme court 

reversed. See People v. Tallent, 174 P.3d 310 (Colo. 2008).
4

jury trial, Tallent appealed, and a division of this court reversed the 

denial of his motion to suppress. People v. Tallent, slip op. at 2 

(Colo. App. No. 09CA0981, Aug. 16, 2012) (not published pursuant 

to C.A.R. 35(f)). The division determined that Tallent was arrested 

without probable cause. Id. at 21. The division concluded that

“[b]ecause Tallent was arrested without probable cause, evidence 

obtained as a result of that arrest should not have been admitted at 

trial. Accordingly, we reverse the judgment of conviction and 

remand for a new trial.” Id.

¶ 9 On remand, the People filed a “motion to preserve evidence,” 

arguing that evidence obtained after Tallent’s illegal arrest was 

admissible under three exceptions to the exclusionary rule: 

inevitable discovery, independent source, and attenuation. During 

a hearing on the People’s motion, the trial court heard testimony 

from the officers involved in the arrest and investigation. The trial 

court stated that it would also consider the transcripts from the 

original 2007 suppression hearing and related proceedings. 

¶ 10 In two written orders, the trial court concluded that some 

evidence obtained after Tallent’s arrest was admissible either 

because the People proved that it was sufficiently attenuated from 
5

the illegal arrest or officers would have inevitably discovered the 

evidence through lawful means. The trial court concluded that the 

People could introduce: (1) evidence of where Tallent’s footprints in 

the snow led, the screwdriver, and all evidence found in the garage; 

(2) Tallent’s name and other identifying information obtained after 

his arrest; (3) all evidence obtained as a result of monitoring 

Tallent’s phone calls from jail; and (4) statements Tallent made after 

being advised of his rights under Miranda v. Arizona, 384 U.S. 436 

(1966). However, the trial court suppressed: (1) evidence obtained 

during the search of Tallent incident to his arrest; (2) evidence 

found during the search of Tallent’s car; and (3) statements Tallent 

made before being advised of his rights under Miranda. A jury 

convicted Tallent of all charges. He was later adjudicated a 

habitual criminal by the trial court and sentenced to forty-eight 

years in the custody of the Department of Corrections. 

¶ 11 Tallent appealed, and this division reversed, relying on 

Morehead I, ¶ 52, 450 P.3d at 742, and the supreme court vacated 

that decision, in light of Morehead II.
6

II. Discussion

¶ 12 On appeal, Tallent contends that the trial court erred in 

permitting the People to make new arguments on remand regarding 

the admissibility of the evidence obtained after his illegal arrest. He 

bases this argument primarily on the law of the case doctrine, 

relying on People v. Roybal, 672 P.2d 1003, 1005 (Colo. 1983). We 

do not reach the question of whether the trial court erred; instead, 

we remand for further findings in light of the supreme court’s 

decision in Morehead II. 

A. Standard of Review

¶ 13 We review a trial court decision to hear new arguments on 

remand in a suppression hearing for an abuse of discretion. See 

Morehead II, ¶ 13, 442 P.3d at 418. As a general rule, we review the 

substance of a trial court’s decision on a motion to suppress as a 

mixed question of fact and law. People v. King, 16 P.3d 807, 812 

(Colo. 2001). While we defer to the trial court’s findings of fact 

when they are supported by sufficient competent evidence in the 

record, we review conclusions of law de novo. Id. 

¶ 14 We review preserved errors of a constitutional dimension for 

constitutional harmless error. Hagos v. People, 2012 CO 63, ¶ 11, 
7

288 P.3d 116, 119. Under that standard, we will reverse unless the 

People prove any error was harmless beyond a reasonable doubt. 

Id.

B. Applicable Law

¶ 15 The United States and the Colorado Constitutions prohibit 

unreasonable searches and seizures. See U.S. Const. amends. IV, 

XIV; Colo. Const. art. II, § 7. Evidence obtained as a result of an 

unconstitutional search or seizure must be suppressed. See King, 

16 P.3d at 813. This exclusionary rule “applies both to the illegally 

obtained evidence itself and to the ‘fruit of the poisonous tree’ —

any other evidence derived from the primary evidence.” People v. 

Schoondermark, 759 P.2d 715, 718 (Colo. 1988). However, there 

are exceptions to the exclusionary rule that “justify admission of 

evidence even though it is derived from information obtained” 

through unconstitutional means. Id. These exceptions “have been 

labeled independent source, attenuation, and inevitable discovery.” 

Id. (summarizing these doctrines). 

¶ 16 If an appellate court holds that a trial court erred in denying a 

defendant’s motion to suppress, can the prosecution argue for the 

first time on remand that illegally obtained evidence is nonetheless 
8

admissible under an exception to the exclusionary rule? That 

question was left open by the supreme court in People v. Briggs, 

709 P.2d 911, 924 n.17 (Colo. 1985). In Morehead I, a division of 

this court concluded that a search of the defendant’s home was 

unconstitutional and that the trial court’s erroneous denial of the 

defendant’s motion to suppress was not harmless. Morehead I, 

¶¶ 33, 40, 450 P.3d at 739, 741. Further, the Morehead I division 

concluded that the prosecution could not present a “previously 

unargued theory of admissibility on remand.” Id. at ¶ 47, 450 P.3d 

at 741. Thus, the People were “precluded from arguing on remand 

that any of the evidence derived from the unconstitutional search 

should still be admitted under the attenuation doctrine or one of 

the exceptions to the exclusionary rule” because they had not 

raised such arguments in the initial suppression hearing. Id. at 

¶ 42, 450 P.3d at 741. However, the supreme court reversed the 

judgment of the court of appeals, concluding that the trial court is 

best positioned to decide whether to entertain new arguments on 

remand. Morehead II, ¶ 13, 442 P.3d at 418. In so doing, it 

announced that the trial court may, in its discretion, allow the 

prosecution a second bite at the apple on remand.
9

¶ 17 However, in multiple decisions since Briggs, the supreme court 

has recognized that, in certain situations where the People fail to 

present an argument for admissibility at an initial suppression 

hearing, they cannot later raise that argument on remand. See 

People v. Null, 233 P.3d 670, 681 (Colo. 2010) (declining to give the 

prosecution “a second bite at the apple” when it failed to carry its 

evidentiary burden on statutory suppression issue (quoting Burks v. 

United States, 437 U.S. 1, 17 (1978))); Moody v. People, 159 P.3d 

611, 617 (Colo. 2007) (declining to remand for further findings on 

standing argument not raised by the People in the trial court or on 

appeal); People v. Syrie, 101 P.3d 219, 223 (Colo. 2004) (holding 

that the People “surrender[ed]” an alternative theory of admissibility 

by not raising it in the trial court); People v. Quintero, 657 P.2d 948, 

951 (Colo. 1983) (declining to remand on an inevitable discovery 

issue when the “prosecution did not rely upon that rule in 

[op]posing the initial suppression motion, nor did it raise the rule in 

its brief” and, based on the record, the claim would have been 

futile); Morehead I, ¶¶ 44-46, 450 P.3d at 741 (discussing Null, 

Moody, Syrie, and Quintero); see also People v. Schaufele, 2014 CO 

43, ¶ 43, 325 P.3d 1060, 1068 (Boatright, J., concurring in the 
10

judgment) (declining to review the merits of a suppression order 

when “the entirety of the People’s argument on appeal rests on a 

claim that they failed to raise until filing a motion for 

reconsideration”); People v. Crippen, 223 P.3d 114, 116-17 (Colo. 

2010) (“Because the record . . . contains no indication that the 

applicability of the good faith exception was either alleged by the 

prosecution or resolved by the district court, we decline to address 

it on appeal.”); People v. Salazar, 964 P.2d 502, 507 (Colo. 1998) 

(“Because the issue of consensual encounter was not raised by the 

prosecution below, we decline to resolve the issue in this appeal.”); 

People v. Titus, 880 P.2d 148, 152 (Colo. 1994) (“The issue of 

whether the evidence should be admitted under the good-faith 

exception to the exclusionary rule was not raised in the trial court, 

and therefore is not appropriately before us.”). In Morehead II, the 

supreme court clarified that “[w]hile [Moody, Null, Syrie, and 

Quintero] may demonstrate this court’s reluctance to consider or 

initiate further proceedings concerning arguments not adequately 

developed below, none purports to control the arguments that can 

be heard by a trial court upon retrial.” Morehead II, ¶ 15, 442 P.3d 

at 419. However, the Morehead II court provided limited guidance 
11

as to how a trial court should exercise its discretion in determining 

whether to hear new arguments on remand. 

¶ 18 The Morehead II court suggested at least two factors: (1) Will 

the allowance of new arguments unfairly prejudice one or more of 

the parties? (2) Is the party proposing a new argument at fault for 

having failed to preserve it in an earlier proceeding? Morehead II, 

¶ 13, 442 P.3d at 418. We further conclude that a trial court may 

consider any other factor it deems relevant. See, e.g., People v.

Brown, 2014 CO 25, ¶ 24, 322 P.3d 214, 221 (in considering 

whether to grant a continuance to substitute defense counsel, trial 

court must consider multiple factors, including any other “casespecific factors”).

¶ 19 Accordingly, a trial court should engage in a two-step analysis 

when the prosecution seeks to argue new theories to oppose a 

defendant’s motion to suppress on remand. First, applying the 

factors listed above, the court must exercise its discretion to 

determine whether it will allow the prosecution to advance new 

arguments on remand. If the court determines that new arguments 

against suppression are proper on remand, it may proceed to the 

second step by ruling on the substance of the new arguments. 
12

¶ 20 In announcing this two-step analysis, we emphasize the 

distinction between usurping the trial court’s discretion to hear new 

theories on remand and requiring the trial court to articulate the 

reasons why it is exercising its discretion to hear new theories on 

remand. This approach harmonizes the decisions in Morehead II

and previous decisions denying the prosecution “a second bite at 

the apple.” See Morehead II, ¶ 13, 442 P.3d at 418; Null, 233 P.3d 

at 681. 

C. Analysis

¶ 21 Tallent contends that the People were precluded from arguing 

on remand that the fruit of his unlawful arrest was admissible 

under the inevitable discovery and attenuation doctrines. In light of 

Morehead II, we remand to allow the trial court to make further 

findings consistent with this opinion.

¶ 22 The People do not allege that the prosecution raised the 

inevitable discovery or attenuation arguments during the 2007 

suppression hearing. Indeed, they point to nothing in the record to 

demonstrate that these arguments were presented to the trial court 
13

at any point before the previous appeal to this court.2 Instead, they 

argue that, because the trial court ruled in their favor, “there was 

no need for the People to contend the evidence was admissible 

under any exception to the exclusionary rule, and their failure to do 

so should not constitute waiver.”3

¶ 23 We note that this argument assumes that the People knew 

they would prevail at the suppression hearing. However, during the 

suppression hearing, the People did not know that there was “no 

 

2 The People apparently did not raise any inevitable discovery or 

attenuation argument in the prior appeal, either. See generally 

People v. Tallent, (Colo. App. No. 09CA0981, Aug. 16, 2012) (not 

published pursuant to C.A.R. 35(f)).

3 Although Tallent does not argue that the People waived their 

arguments regarding inevitable discovery and attenuation, the 

People assert that they did not waive the claim. We recognize that 

the Colorado Supreme Court addressed the doctrine of waiver in

People v. Rediger, 2018 CO 32, 416 P.3d 893, and People v. Smith, 

2018 CO 33, 416 P.3d 886. In Rediger, the court stated that waiver 

requires the “intentional relinquishment of a known right or 

privilege.” Rediger, ¶ 40, 416 P.3d at 902. Thus, the court 

concluded that the defendant there did not waive his objection to an 

erroneous jury instruction when there was no evidence that he 

intended to relinquish the relevant right or that he knew of the 

error. Id. at ¶¶ 42-43, 416 P.3d at 902-03. It is unclear whether 

this waiver analysis even applies in the present case because, 

unlike the criminal defendant in Rediger, the People here had no 

right or privilege to present evidence supporting the evidence’s 

admissibility. 
14

need” to make alternative arguments as to the admissibility of the 

challenged evidence. 

¶ 24 This leads to a second consideration regarding the People’s 

argument: it fails to appreciate the prosecution’s burden of proof. 

At a suppression hearing, the People bear the burden of proving 

either that a warrantless search or seizure was constitutional or, if 

the search or seizure was illegal, that one of the exceptions to the 

exclusionary rule applies. See Schoondermark, 759 P.2d at 719; 

see also Outlaw v. People, 17 P.3d 150, 155 (Colo. 2001), as 

modified on denial of reh’g (Feb. 5, 2001). “The amount of the 

available evidence that the prosecution elects to present at a 

suppression hearing is left to the district attorney’s discretion.” 

Roybal, 672 P.2d at 1006. Thus, “the prosecution must be 

prepared to abide the consequences of an adverse ruling when it 

elects not to offer available probative evidence.” Id. As a result, the 

prosecution has the opportunity to make all relevant arguments for 

admissibility at the initial suppression hearing. Accordingly, 

prosecutors regularly make alternative admissibility arguments 

during suppression proceedings. See, e.g., People v. Hyde, 2017 CO 

24, ¶ 38, 393 P.3d 962, 971 (Eid, J., concurring in the judgment) 
15

(noting that, in trial court, the prosecution advanced alternative 

arguments that warrantless search was permissible as search 

incident to arrest or that the defendant consented). 

¶ 25 Allowing the People to raise new admissibility arguments on 

remand may give the prosecution “a second bite at the apple” that it 

would not otherwise receive. Null, 233 P.3d at 681 (quoting Burks, 

437 U.S. at 17). According to the People, they are permitted to 

identify one ground for admissibility in the initial hearing. If on 

appeal the denial of a motion to suppress is reversed, they may 

make alternative arguments on remand. The Morehead II court 

held that the trial court must exercise its discretion to determine 

whether the People should be allowed to do so, based on the 

particular circumstances of each case. Thus, on remand, the trial 

court should weigh the three factors noted above.

¶ 26 Accordingly, the trial court must articulate its exercise of 

discretion in permitting or disallowing the prosecution to present 

new arguments on remand. 

III. Conclusion

¶ 27 We note that Tallent raised additional contentions on appeal 

concerning the trial court’s application of the inevitable discovery 
16

doctrine, the trial court’s denial of his motion for a continuance, 

and the constitutionality of the habitual offender sentencing 

scheme. Because these contentions are unlikely to arise on 

remand, we decline to address them. 

¶ 28 Accordingly, the judgment is reversed, and the case is 

remanded for further proceedings consistent with this opinion. 

Once the trial court rules, the adversely affected party or parties 

may appeal that decision.

CHIEF JUDGE BERNARD and JUDGE WELLING concur.