People v. Tomaske , 440 P.3d 444 ( 2019 )

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ADVANCE SHEET HEADNOTE
May 20, 2019
2019 CO 35
No. 18SA292, People v. Tomaske—Fourth Amendment—Exclusionary Rule—
Attenuation Doctrine.
In this case, the supreme court considers whether evidence of a defendant’s
alleged assault of a police officer should be suppressed based on police misconduct. The
police entered the defendant’s property in violation of the Fourth Amendment and the
defendant responded by allegedly assaulting and attempting to disarm a police officer.
The supreme court holds that the evidence of the defendant’s alleged criminal acts should
not be suppressed because the evidence was sufficiently attenuated from the police
misconduct. Since the defendant’s choice to physically resist broke the causal connection
between the evidence and the police misconduct, the deterrent purpose of the
exclusionary rule would not be satisfied and thus the rule does not apply.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 35
Supreme Court Case No. 18SA292
Interlocutory Appeal from the District Court
Montrose County District Court Case No. 18CR178
Honorable Mary E. Deganhart, Judge
______________________________________________________________________________
Plaintiff-Appellant:
The People of the State of Colorado,
v.
Defendant-Appellee:
Jeremiah Anthony Tomaske.
______________________________________________________________________________
Order Reversed
en banc
May 20, 2019
______________________________________________________________________________
Attorneys for Plaintiff-Appellant:
Dan Hotsenpiller, District Attorney, Seventh Judicial District
Robert Davis, Deputy District Attorney
Montrose, Colorado
Attorneys for Defendant-Appellee:
Megan A. Ring, Public Defender
Kori Keil Zapletal, Deputy Public Defender
Montrose, Colorado
JUSTICE BOATRIGHT delivered the Opinion of the Court.
¶1 Police officers entered Jeremiah Tomaske’s property without a warrant and chased
him into his house; Tomaske responded by resisting and allegedly assaulting a police
officer. We must determine whether the evidence regarding Tomaske’s actions was
properly suppressed. The trial court found that the police officers’ initial entry onto the
Tomaske property was a Fourth Amendment violation. The court further found that
Tomaske’s alleged assault “occurred only as a result of the illegal action of law
enforcement entering the curtilage1 and then the residence in violation of the Fourth
Amendment.” As a result, the court suppressed all evidence of the alleged assault.
¶2 Because Tomaske’s decision to resist was an independent act, we conclude that the
evidence of Tomaske’s alleged criminal acts was sufficiently attenuated from the police
misconduct. Therefore, the evidence of what transpired inside the house should not be
suppressed. Accordingly, we reverse the trial court’s suppression order.
I. Facts and Procedural History
¶3 Mary Tomaske called the Montrose Police to report that her car had been stolen
by her son, Josh Tomaske, and that he was potentially still on the property. While three
officers were en route to the Tomaske residence, they received a report that the car had
been returned. As the officers arrived at the Tomaske residence, they confirmed that the
car was parked in the driveway but decided to investigate further. In doing so, they
1“Curtilage” is a legal term of art that describes the area directly surrounding the home.
See Florida v. Jardines, 569 U.S. 1, 6 (2013).
2
entered the backyard and observed a man—Jeremiah Tomaske—coming out of the
detached garage and heading toward the house. The officers asked Jeremiah if he was
Josh, the Tomaske who had reportedly taken the car.2 Tomaske responded that he was
not, and that Josh was his brother. Tomaske then told the officers that they had no right
to be there, but the officers commanded Tomaske to come talk with them. Tomaske
refused and continued to move toward the house. The officers pursued Tomaske through
the backyard, and one officer followed him into the house and tackled him to the ground.
Tomaske resisted and, in the course of the struggle, dislodged the officer’s baton from his
duty belt. At this point, the other officers assisted in detaining Tomaske. Ultimately,
Tomaske was taken into custody.
¶4 Tomaske was charged with second-degree assault on a peace officer, disarming a
peace officer, attempted disarming of a peace officer, and obstructing a peace officer.
Tomaske moved to suppress any statements from the officers about what transpired
inside the house, arguing that the evidence stemmed from a warrantless entry and
unlawful arrest.
¶5 The trial court suppressed the evidence. As an initial matter, the trial court
determined that the officers’ entry into the backyard of the Tomaske home violated the
Fourth Amendment. The court then reasoned that Tomaske’s actions inside the house
2 We will refer to the defendant in this case, Jeremiah Tomaske, as “Tomaske” moving
forward.
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were “a continuation of the illegal conduct of the officers.” Therefore, the court
determined that Tomaske’s conduct “was not sufficiently attenuated as to dissipate the
taint of the police misconduct,” and it suppressed the officers’ testimony about what
transpired inside the house.
¶6 In response, the People filed this interlocutory appeal as authorized by section
16-12-102(2), C.R.S. (2018), and C.A.R. 4.1.
II. Standard of Review
¶7 A lower court’s ruling on a suppression motion presents a mixed question of fact
and law. Casillas v. People, 2018 CO 78M, ¶ 18, 427 P.3d 804, 809. We defer to a trial court’s
findings of fact if they are supported by sufficient evidence in the record. Id. We review
a lower court’s conclusions of law de novo. Id.
III. Analysis
¶8 To determine whether the evidence here should be suppressed, we first look to the
Fourth Amendment’s protections. Next, we examine the purpose and bounds of the
common remedy for Fourth Amendment violations: the exclusionary rule. Then, we
discuss the attenuation doctrine and its application as an exception to the exclusionary
rule. Finally, applying the attenuation doctrine to the instant matter, we conclude that
the evidence of Tomaske’s alleged criminal acts was sufficiently attenuated from the
police misconduct, meaning that the evidence of what transpired inside the house should
not be suppressed.
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A. Law
¶9 The Fourth Amendment to the U.S. Constitution provides that “the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” There are two primary ways that the
government can violate a person’s Fourth Amendment rights: intrusion on a
constitutionally protected area and violation of a person’s reasonable expectation of
privacy. See United States v. Jones, 565 U.S. 400, 411 (2012) (noting that there are two tests
used to assess Fourth Amendment violations: the “trespass” test and the “reasonable-
expectation-of-privacy” test). For purposes of the Fourth Amendment’s protections, “the
home is first among equals.” Jardines, 569 U.S. at 6. The area directly surrounding the
home, known as the curtilage, is an extension of the home for purposes of Fourth
Amendment protection. Id. And because the curtilage is a “constitutionally protected
area,” a physical intrusion by the police on that area absent a warrant or recognized
exception constitutes a Fourth Amendment violation. See id. at 7, 11–12.
¶10 When there is a Fourth Amendment violation, courts can apply the exclusionary
rule to suppress evidence that was discovered as a result of the violation. United States v.
Calandra, 414 U.S. 338, 347 (1974). The exclusionary rule is a judicially created remedy
under which the “evidence obtained in violation of the Fourth Amendment cannot be
used in a criminal proceeding against the victim of the illegal search and seizure.” Id. at
347–48. The exclusionary rule applies to evidence obtained as the result of an illegal
search and seizure, as well as “evidence later discovered and found to be derivative of an
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illegality,” otherwise known as the “fruit of the poisonous tree.” Utah v. Strieff, 136 S. Ct.
2056, 2061 (2016) (quoting Segura v. United States, 468 U.S. 796, 804 (1984)). The “prime
purpose” of the exclusionary rule “is to deter future unlawful police conduct and thereby
effectuate the guarantee of the Fourth Amendment.” Calandra, 414 U.S. at 347. Because
the exclusionary rule is not an individual right, it “applies only where it ‘results in
appreciable deterrence.’” Herring v. United States, 555 U.S. 135, 141 (2009) (quoting United
States v. Leon, 468 U.S. 897, 909 (1984)). Therefore, the existence of a Fourth Amendment
violation alone does not mandate application of the exclusionary rule and the
suppression of evidence. Id. at 140.
¶11 Although we must weigh the deterrent benefits of the exclusionary rule against
the “substantial social costs” of excluding evidence, we note that excluding evidence “has
always been our last resort, not our first impulse.” Hudson v. Michigan, 547 U.S. 586, 591
(2006) (quoting Leon, 468 U.S. at 907). As a result, courts have carved out several
exceptions to the exclusionary rule based on “the causal relationship between the
unconstitutional act and the discovery of evidence.” Strieff, 136 S. Ct. at 2061. One such
exception is the attenuation doctrine. Id.
¶12 The attenuation doctrine applies in situations where “the connection between
unconstitutional police conduct and the evidence is remote or has been interrupted by
some intervening circumstance.” Id. Even if the police misconduct is directly connected
to the evidence sought to be admitted, courts will still apply the attenuation doctrine if
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“the interest protected by the constitutional guarantee that has been violated would not
be served by suppression of the evidence obtained.” Hudson, 547 U.S. at 593.
¶13 When defendants have responded to Fourth Amendment violations with willful
criminal acts against police officers, courts have applied the attenuation doctrine and held
that evidence of the criminal act is admissible. See, e.g., People v. Doke, 171 P.3d 237, 239
(Colo. 2007); State v. Aydelotte, 665 P.2d 443, 447–48 (Wash. App. 1983) (collecting cases).
“[A]n independent and willful criminal act against a law enforcement officer” is sufficient
to break the causal chain between the police misconduct and the evidence of the new
crime, such that the attenuation doctrine applies. Doke, 171 P.3d at 240. This is so for two
reasons: (1) admission of the contested evidence does not incentivize illegal searches by
the police; and (2) a contrary approach would “effectively give the victim of police
misconduct carte blanche to respond with any means, however violent.” Id. at 240–41.
¶14 Doke illustrates this framework. In that case, sheriff’s deputies went to Doke’s
house to serve him with civil process. Id. at 237. The deputies approached Doke’s front
door and rang the doorbell, but nobody answered. Id. at 238. The deputies saw
movement inside the house, so they entered the backyard and approached the back
porch. Id. Looking through a window, the deputies saw Doke sitting in a chair with his
eyes closed. Id. One deputy pounded on the back door and verbally identified himself,
but Doke did not respond for ten minutes. Id. Apparently concerned that there was a
medical problem, a deputy opened the back door. Id. At that point, Doke grabbed a
shotgun, and the deputies withdrew from the doorway and ordered Doke to drop the
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gun. Id. Doke was eventually taken into custody by a SWAT team and charged with
three counts of menacing, one count of obstructing a peace officer, and one count of
failure to leave premises or property upon request of a peace officer. Id.
¶15 The trial court suppressed all evidence of what Doke said to the deputies, as well
as all evidence of the deputies’ visual observations and all evidence seized from the
house. Id. The court concluded that the deputies had violated Doke’s reasonable
expectation of privacy by entering his property and that this constitutional violation
required suppression. Id. at 238–39.
¶16 We reversed and held “that Doke’s allegedly criminal acts [were] sufficiently
attenuated from any illegal conduct of the deputies so that exclusion [was] not
appropriate.” Id. at 241. We reasoned that “[t]he deterrent effect of applying the
exclusionary rule in cases where the accused has committed a crime against police officers
in response to police misconduct would be minimal. Admitting evidence of the crime
does not provide police with an incentive to conduct illegal searches.” Id. at 240–41. Also,
importantly, we noted that it would be “contrary to the public interest” to establish “[a]
rule that would allow a person whose right to be free from unreasonable searches and
seizures was allegedly violated to respond with acts of violence.” Id. at 241.
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B. Application
¶17 Turning to the instant matter, we must determine whether the attenuation
doctrine applies to the evidence of what transpired inside the Tomaske residence.3 On
this issue, Doke is instructive. Much like the physical intrusion and menacing response
in Doke, once the officers entered Tomaske’s house, he responded with physical
resistance. In so doing, Tomaske allegedly assaulted and attempted to disarm a police
officer. Again, as in Doke, Tomaske’s decision to resist “br[oke] the causal connection
between the police illegality and the evidence of the new crime,” thereby implicating the
attenuation doctrine. See id. at 240. To merit the exclusion of evidence, the exclusionary
rule requires more than merely “but for” causation between the police’s illegal acts and
the discovery of evidence. Id.
¶18 However, both here and in Doke, the trial courts relied on “but for” causation to
demonstrate the causal connection necessary to exclude the contested evidence. Both
trial courts ruled, in effect, that “but for” the police misconduct, the police would not
have gathered any evidence. But as we stated in Doke, “but for” causation does not
necessarily justify the exclusion of evidence. See id. Instead, the issue is whether the
evidence was “come at by exploitation of [the police’s] illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.” Id. (quoting People v.
Rodriguez, 945 P.2d 1351, 1363–64 (Colo. 1997)). Here, the contested evidence suppressed
3 The issue of whether the police violated the Fourth Amendment is not before us.
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by the trial court was evidence of Tomaske’s new and independent criminal acts that
arose from his decision to physically resist. Thus, unlike the scenario where police
officers’ misconduct leads to their discovery of evidence of a completed crime (e.g., finding
contraband), this case involves police misconduct that led to the commission of a new
crime. The exclusionary rule applies to the former situation, not the latter.
¶19 Furthermore, recognizing that courts only apply the exclusionary rule when doing
so will sufficiently deter police misconduct, Herring, 555 U.S. at 141, we conclude that no
such deterrence would be accomplished here. Suppressing evidence of the alleged crimes
committed against the police officers here would have a minimal deterrent effect on
police misconduct because it was Tomaske’s decision to physically resist that caused the
police officers to observe his alleged criminal conduct. Application of the exclusionary
rule requires a strong causal connection between police misconduct and the discovery of
evidence, and it is the strength of that connection that merits the heavy toll of excluding
evidence. Because the causal connection here was broken by Tomaske’s decision to resist,
the exclusionary rule does not apply and the evidence of what transpired inside the
Tomaske home should not be suppressed.
IV. Conclusion
¶20 In sum, the evidence of Tomaske’s alleged criminal acts was sufficiently
attenuated from the police misconduct such that the exclusionary rule does not apply.
Therefore, we reverse the trial court’s suppression order, and we remand to that court for
further proceedings consistent with this opinion.
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