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
October 3, 2024
2024COA106
No. 22CA0237, People v. d’Estree — Constitutional Law —
Fourth Amendment — Searches and Seizures — Exclusionary
Rule — Independent Source Exception — Inevitable Discovery
Exception
A division of the court of appeals reverses the district court’s
decision declining to suppress evidence obtained from the second of
two warrants issued to search the contents of a defendant’s cell
phone. While the second warrant would have met the independent
source doctrine’s requirements, here police used an illegally
obtained cell phone PIN code to execute the otherwise lawful second
warrant. Thus, the district court should have excluded evidence
obtained from the phone at trial. The division further holds that
when police seek to obtain a cell phone PIN code without a
defendant’s consent, in this case via a digital “brute force attack,”
this constitutes a search under the Fourth Amendment and
requires authorization via a warrant. Finally, the division holds
that the use of the PIN code here does not meet the requirements of
the inevitable discovery doctrine as police abandoned the lawful
search to find the PIN code pursuant to the second warrant and
expedited their access to the phone using the PIN code illegally
obtained pursuant to the first warrant. The defendant’s convictions
are reversed, and the case is remanded to the district court to hold
a new trial.
The special concurrence highlights two aspects of the
inevitable discovery jurisprudence that may warrant
reconsideration.
COLORADO COURT OF APPEALS 2024COA106
Court of Appeals No. 22CA0237
Jefferson County District Court No. 19CR4149
Honorable Jeffrey R. Pilkington, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Alec d’Estree,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE FOX
Sullivan, J., concurs
Grove, J., specially concurs
Announced October 3, 2024
Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado, for Plaintiff-Appellee
Gregory Lansky, Alternate Defense Counsel, Aurora, Colorado, for Defendant-Appellant
¶1 Defendant, Alec d’Estree, appeals his convictions, challenging
the district court’s order declining to suppress evidence gathered
from his cell phone using a PIN code obtained via an infirm
warrant. We reverse his convictions and remand the case for a new
trial.
I. Background
¶2 On October 15, 2019, Lakewood police officers responded to a
shooting outside an apartment complex around midnight. They
found the victim — who had been shot in the chest — in the
parking lot. First responders transported him to the hospital,
where he later died. A neighbor testified that, shortly before police
arrived, she heard arguing, a car horn, and then a gunshot, and
saw three individuals rush to a waiting car before driving away. At
trial, Autumn Lucero — who had been present when the shooting
occurred and accepted a plea deal from the prosecution before she
testified — detailed her version of the events leading up to the
killing.
¶3 Lucero testified that, on October 14, 2019, she was traveling
with her ex-boyfriend Manuel Garcia and her cousin Dominic
1
Maestas.1 Garcia and Maestas stole several items from a
convenience store and later robbed some teenagers in a grocery
store parking lot. D’Estree was at Lucero’s apartment, to which the
group had returned after the robbery. D’Estree joined the group,
which then went to a friend’s house where Garcia retrieved a silver
handgun.
¶4 The group next traveled to a private residence in Littleton
where, two weeks before, they had sold a stolen iPhone to an
individual. According to Lucero, Garcia’s sister “had gotten beat up
for the stolen iPhone,” so the group returned to the residence “to
retaliate.” Garcia fired the silver handgun at the house “[s]ix or
seven times” in a drive-by shooting, but no one was harmed.2
¶5 Lucero testified that the group still wanted to “make some
money” by “robbing, stealing cars, et cetera.” While at an
apartment complex, Lucero saw d’Estree leave the car with the
1 Lucero, Garcia, and Maestas were originally set to be tried
together as codefendants with d’Estree, but the district court later
severed d’Estree’s trial.
2 A prosecution expert later testified that her analysis of shell
casings and the bullets led her to conclude that the same gun was
used in the drive-by shooting and the homicide. A matching shell
was also found in Lucero’s apartment.
2
silver handgun before hearing yelling, a car horn, and a gunshot.
D’Estree returned to the car and the group left the victim in the
parking lot. After arriving home, Lucero photographed Garcia,
Maestas, and d’Estree posing with the gun. According to Lucero,
the next day d’Estree used his phone to search the internet for
“anything about what happened the night before.”
¶6 The defense pointed out on cross-examination that Lucero’s
trial testimony substantially differed from her earlier statements to
police. For example, in her first interview with police in November
2019, Lucero only told them about the drive-by shooting and not
the homicide. During that interview Lucero claimed that only she,
Garcia, and Maestas were in the car for the drive-by shooting; at
trial, she said that she had initially “forgotten” that d’Estree was
there. Lucero further first told police that Garcia forced her, at
gunpoint, to drive the car to the drive-by shooting location and that
d’Estree later forced her, at gunpoint, to remain in the backseat of
the car during the robbery that resulted in the victim’s death.
¶7 Sergeant Jonathan Holloway testified that the homicide
investigation initially produced no suspects, nor did anything
connect the drive-by shooting to the homicide, until the police
3
learned that Garcia wanted to speak to them. Once aware of
d’Estree’s potential involvement police arrested him, and later
charged him on November 14, 2019. Police also seized his Apple
iPhone, and searched and downloaded all of its contents after
acquiring a search warrant on November 20, 2019.
¶8 The district court, however, concluded the first search warrant
for the cell phone’s contents was invalid because it was overbroad.
The prosecution later sought a second warrant to repeat the search,
as discussed in greater detail below.
¶9 Pursuant to the second warrant, the court allowed police to
search the contents of d’Estree’s cell phone from October 1, 2019,
to November 12, 2019, and the prosecution presented evidence
collected from the phone at d’Estree’s homicide trial. The
prosecution admitted four pictures recovered from d’Estree’s phone
taken inside Lucero’s home approximately one hour after the
homicide. One image showed Maestas and d’Estree standing, while
d’Estree pointed a silver handgun at the camera. One image
showed Garcia smiling for the camera, and another showed
Maestas with two handguns, one black and the other silver, tucked
4
into the strap of what appeared to be a bulletproof vest. The last
image showed Garcia pointing both handguns at the camera.
¶ 10 The phone also contained several text messages d’Estree sent
in the weeks following the homicide. Most notably, d’Estree sent
the following message on November 3, 2019:
Ayee fam . . . just gotta check in with all my
n[…]s before I get locked up just wanted to
let you know I appreciate you fam . . . [.]
¶ 11 The recipient of the message asked when d’Estree would go to
prison, and d’Estree responded: “Shit they ain’t kaught me yet but
they looking for somebody they just won’t release the name and shit
link soon fam.”
¶ 12 Police also recovered d’Estree’s internet search history.
Holloway testified that police found “[s]earch histories for looking
for man shot, articles of man shot in West Denver and Lakewood”
from October 15 and 16, 2019.
¶ 13 The jury found d’Estree guilty on all charges — first degree
felony murder, second degree murder, conspiracy to commit
aggravated robbery, three charges of criminal attempt to commit
5
aggravated robbery,3 and two crime of violence sentence enhancers.
The district court only sentenced d’Estree for his felony murder and
conspiracy to commit aggravated robbery convictions because his
second degree murder and attempt to commit aggravated robbery
convictions merged into his felony murder conviction. The district
court sentenced him to life without the possibility of parole for his
felony murder conviction and sixteen years in the custody of the
Department of Corrections for the conspiracy to commit aggravated
robbery conviction, served concurrently.
¶ 14 This appeal followed. D’Estree raises four main issues,
arguing that (1) the district court erred by declining to suppress
evidence gathered from his phone after the second warrant was
issued; (2) Lucero was coerced into waiving her Fifth Amendment
rights and testifying at trial, with the district court improperly
advising the jury not to consider Lucero’s punishment; (3) the
district court erred by failing to properly instruct the jury on
3 The prosecution charged d’Estree with three counts of attempt to
commit aggravated robbery under three different theories, but the
district court did not require that the prosecution elect a specific
theory; rather, it exercised its discretion to simply impose
concurrent sentences for each of the theories under which d’Estree
was found guilty.
6
criminal attempt; and (4) given his youth, his sentence to life
without the possibility of parole for felony murder is
unconstitutional.
¶ 15 We conclude that, in gathering evidence from d’Estree’s cell
phone, police violated the Fourth Amendment and that no
exceptions to the warrant requirement apply, and that the error in
allowing the evidence was not harmless beyond a reasonable doubt.
We thus reverse his convictions and remand the case for a new
trial. We need not address d’Estree’s other contentions because
they may not arise on retrial. See People v. Cook, 197 P.3d 269,
277 (Colo. App. 2008).
II. Phone Search Conducted Pursuant to the Second Warrant
¶ 16 As to the second warrant, d’Estree argues that (1) police’s use
of the PIN code4 violated the independent source doctrine because
the PIN code was discovered during the first suppressed search and
was improperly used in preparing and executing the second
warrant; (2) collecting the PIN code through a brute force attack
4 Where possible, we refer to the specific combination required to
access d’Estree’s phone as a “PIN code,” though we also
occasionally refer to “passwords” in a broader sense, and case law
and the record occasionally refer to “password” or “pass code.”
7
constituted a search in violation of the Fourth Amendment; and (3)
the inevitable discovery doctrine does not apply.
¶ 17 These contentions were preserved. See People v. Tallent, 2021
CO 68, ¶ 12; People v. McFee,
2016 COA 97, ¶ 31.
A. Additional Background
1. The First Warrant
¶ 18 The challenged cell phone evidence resulted from two separate
search warrants, the first of which the court declared invalid. In
the first warrant, police requested authorization to search d’Estree’s
cell phone for the following information:
1. Specialized Location Records: All call, text
and data connection location information,
related to all specialized carrier records . . . .
Historical GPS/Mobile Locate Information
which shows GPS location (longitude and
latitude) and Cell-Site and sector of the device
in relationship to the network when connected
to the network. . . .
2. Electronically Stored Records: All records
associated with the identified cell phone[], to
include all stored communication or files,
including voice mail, text messages, including
numbers text to and received from and all
related content, e-mail, digital images (e.g.
pictures), contact lists, video calling, web
activity (name of web site or application visited
or accessed), domain accessed, data
connections (to include Internet Service
8
Providers (ISPs), Internet protocol (IP)
addresses, (IP) Session data, (IP) Destination
Data, bookmarks, data sessions, name of web
sites and/or applications accessed), date and
time when all web sites, applications, and/or
third party applications were accessed and the
duration of each web site, application, and/or
third party application was accessed, and any
other files including all cell site and sector
information associated with each connection
and/or record associated with the cell.
A judicial officer approved the first warrant on November 20, 2019,
even though the warrant had no subject-matter or date limits.
¶ 19 Dawn Fink, who was admitted as a police expert in “digital
forensic analysis” during a pretrial hearing, testified that, in
analyzing a cell phone, she typically extracts all electronic
information contained on the phone, unless the warrant has
constraints. Fink then provides all of the extracted data in a
readable format to detectives, who search through the data within
the scope of the warrant. The search tools available to her could
not first limit the extraction by date.
¶ 20 A return and inventory dated December 18, 2019, detailed
that no downloads of d’Estree’s phone could yet be completed
pursuant to the first warrant because the phone was “password
protected.” To gain access to the phone, police had earlier reached
9
out to the United States Secret Service (USSS) in November 2019.5
Police took d’Estree’s phone to the USSS, which installed
“Cellebrite,” its “advanced tool,” on the phone to initiate a “brute
force attack.” A brute force attack uses a computer program to test
every possible combination of a PIN code (here, a six-digit numeric
code) until it finds the correct PIN code to access data in the device.
¶ 21 After installing Cellebrite, the USSS returned the phone to
local police. Fink testified that police “waited three months or so till
[Cellebrite] cracked the code.” Fink testified that the timeframe for
a brute force attack to test every possible combination for a six-digit
PIN code was anywhere from “a week to eleven years.”
¶ 22 Once the Cellebrite software discovered the PIN code, Fink
returned to the USSS to re-connect the phone to Cellebrite to
access the PIN code’s digits. With the PIN code in hand, Fink
testified that she then extracted all of the information from
d’Estree’s phone in February 2020, and she provided all the data to
detectives.
5 Fink could not specify exactly when in November 2019 police took
the phone to the USSS.
10
¶ 23 D’Estree moved to suppress the results of the first search in
March 2021. D’Estree argued that (1) the search occurred without
a warrant, as the first warrant did not authorize police to
indefinitely hold the phone; (2) the warrant violated Crim. P.
41(d)(5)(VI) and section 16-3-305(6), C.R.S. 2024, because it was
executed more than fourteen days after the warrant was issued;
and (3) the search was an unlawful general search.
¶ 24 The district court found, in May 2021, that while the warrant
was executed beyond the fourteen-day limit, thus violating Crim. P.
41(d)(5)(VI) and section 16-3-305(6), the timing alone did not merit
suppression. Relying on People v. Coke, 2020 CO 28, ¶¶ 33-38,
however, the district court concluded that the warrant lacked
sufficient particularly and was a prohibited general warrant. The
first warrant “permitted law enforcement to search and seize the
entire contents of the [i]Phone; there were no limitations. Notably,
there were no subject matter or time limitations on the information
to be seized. Such a broad authorization violates the particularity
requirement demanded by the Fourth Amendment.” Thus, the
court suppressed the evidence gathered from the full extraction of
d’Estree’s phone.
11
¶ 25 The prosecution next requested that the district court
reconsider its ruling, arguing that — even though the warrant
lacked a search timeframe — when the warrant was read with the
accompanying affidavit, it was sufficiently particular and police
acted in good faith. Suppression of this “critical” evidence was
therefore unwarranted, the prosecution argued. The district court
rejected these arguments.
2. The Second Warrant
¶ 26 With the evidence from the first search suppressed, police
sought a second warrant to extract information from d’Estree’s cell
phone. This time, the warrant specified that it sought information
from “October 1, 2019 - November 12, 2019” relating to the
homicide. The warrant requested the following information:
• Data which tends to show possession,
dominion and control over said equipment,
including device and system ownership
information (telephone number, ESN
number, serial number, IMEI, IMSI, CCID);
• Passwords, encryption keys, codes, and/or
other devices or information that may be
necessary to access the device and its
contents;
• Date/time, language, and other settings
preferences to include wireless local area
12
network setting(s), Bluetooth settings to
include device name(s), hotspot SSID
(name), and MAC address and connection
dates and times to the device;
• System and device usage files, logs, and
databases utilized to record device activities
such as lock/unlock activities, powering
on/off cycles, installation and deletions
records;
• Telephone contact lists, phone books and
telephone logs;
• Data contained in notes, reminders,
documents, calendars and/or other similar
applications that relates to the planning and
commission of the attempt[ed] Homicide/
Homicide that occurred between October 1,
2019 - November 12, 2019;
• Communications made, stored, sent,
received or deleted that relate to the
planning and commission of the attempt[ed]
Homicide/Homicide that occurred between
October 1, 2019 ‑ November 12, 2019;
• Photos and videos created, stored, sent,
received or deleted, or documents
containing such photographs or videos that
relate to the planning and commission of
the attempt[ed] Homicide/Homicide that
occurred between October 1, 2019 -
November 12, 2019;
• All electronic files, data, videos, and
communications, including related
metadata and location data, stored, sent,
received or deleted from social media and
13
third-party applications located on the
device that relate to the planning and
commission of the attempt[ed] Homicide/
Homicide that occurred between October 1,
2019 - November 12, 2019;
• Communications through the
SIRI/(GOOGLE ASSISTANT system[)],
including all communications entered
and/or recorded into the system as well as
communicated from the system to the user
that relate to the attempt[ed] Homicide/
Homicide that occurred between October 1,
2019 – November 12, 2019;
• Global position system (GPS) data and any
other geolocation data that relates to the
planning and commission of the attempt[ed]
Homicide/Homicide that occurred between
October 1, 2019 ‑ November 12, 2019;
• Records of internet activity that relates to
the planning and commission of the
attempt[ed] Homicide/Homicide that
occurred between October 1, 2019-
November 12, 2019, including internet
protocol (IP) addresses and Port IDs, firewall
logs, transactions with internet hosting
providers, co-located computer systems,
cloud computing services, caches, browser
history and cookies, “bookmarked” or
“favorite” web pages, search terms that the
user entered into any internet search
engine, and records of user-typed web
addresses pertaining to violations of the law
or that show who used, owned, possessed,
or controlled the device(s).
14
The district court approved the second warrant on October 11,
2021. After d’Estree’s arrest, the phone had remained in police
custody (except for the brief times the USSS handled it).
¶ 27 Fink conducted the second extraction seeking to collect all
information from the phone, without limitation, to ensure no
relevant information was missed, but this time she provided the
detectives only data within the dates specified in the warrant. Fink
also explained that a new tool available after the first warrant,
“GrayKey,” was used to conduct the extraction, which allowed police
to conduct three types of extractions: a “partial BFU” (before first
unlock), an “instant AFU” (after first unlock), or a “full-file system”
AFU extraction. Fink testified that a partial BFU extraction
“provides generally just system data,” and occasionally some
photos, and is used “to see if there’s any information to potentially
find [PIN] codes for the device.” This type of extraction is the only
extraction available without a PIN code. Having a PIN code enables
conducting an AFU extraction, with the “full-file system” AFU
providing all information on a device, but it could take years to
crack the PIN code.
15
¶ 28 Fink conducted a BFU extraction on October 12, 2021, and
then initiated a brute force attack. Fink allowed the program to run
for seven days without success; then she abandoned the brute force
attack in favor of expediting the process by using a six-digit code
she found on the back of the phone — d’Estree’s PIN code — to
unlock the phone and conduct the AFU.6 It is unclear exactly how
the PIN code came to be adhered to the phone after the first search
— there is no evidence indicating that the PIN code was originally
there — and Fink conceded that the USSS “could have” placed the
code there.
¶ 29 Once the PIN code unlocked the phone on October 18, Fink
conducted a full-file system AFU extraction with GrayKey,
downloaded the phone’s contents, and then used Cellebrite to
“decode” the raw data. Once decoded, Fink used Cellebrite to select
only data from October 1 to November 12, 2019 (the range specified
6 Fink testified that she tried birthdates and the PIN code on the
phone as these numbers were “suggested” to her after the first
seven days of the brute force attack proved unsuccessful. There is
no evidence in the record that the PIN code changed between the
first and second searches, so we assume that the PIN code Fink
used is the same one that police used to first access the phone.
16
in the warrant), and provided this information to police in a “user-
friendly” report.
¶ 30 Holloway testified that, when drafting the second warrant
application and affidavit, he relied on information “[f]rom the first
warrant” but did not place any information learned from the
suppressed search into the second warrant application. Beyond
limiting the scope to specific dates, the “only thing that was added
[was] . . . some explanations of cell phone capabilities.”
¶ 31 D’Estree challenged the second warrant, arguing that it (1)
was not independent of the first warrant’s illegality; (2) relied on
suppressed evidence, including the PIN code; and (3) did not cabin
the police’s search, which also exceeded the warrant’s legitimate
scope. Allowing this evidence would also be unfair, d’Estree argued.
¶ 32 The district court declined to suppress the cell phone evidence
gathered pursuant to the second warrant.
¶ 33 The district court found that police sought the second warrant
for reasons independent of information learned from the first, thus
meeting the “independent source doctrine” criteria. It noted that
[t]he Second Affidavit was essentially the same
as the First Affidavit with three exceptions: (1)
a reference to the court’s prior suppression
17
orders; (2) an expanded explanation of
cellphone capabilities; and (3) inclusion of the
Second Date Range. Of significance here,
nothing in the Second Affidavit referenced the
information seized in the February Search.
It also found that Holloway’s testimony — that he did not rely on
information from the first suppressed search — was credible and
noted that there was no contrary evidence.
¶ 34 Regarding use of the PIN code (found on the back of the
phone), the district court said that suppression was unwarranted
for two reasons. First, the district court concluded that the
retrieval of the PIN code through a brute force attack during
execution of the first warrant did not constitute a Fourth
Amendment search. Recognizing that there were no Colorado cases
on the issue, it analogized to how police officers execute search
warrants against a locked house. Police may break into a home to
execute a search warrant and the actual breach of the home — via
a door or through a window — is not a search; rather, it is a
“means” to conduct a search.
¶ 35 The court also found that the discovery of the PIN code fell
within the “inevitable discovery” exception to the exclusionary rule,
noting that, “[e]ven though it was listed on the back of the
18
cellphone[,] . . . if it had not been available, law enforcement would
have obtained it through the [USSS] or its own software.” It also
noted that case law “has not distinguished between evidence that
would have been discovered quickly and evidence that would have
taken much longer to discover.” Thus, because the PIN code would
have been revealed once all possible combinations were tested,
there was a “reasonable probability” — indeed, the court found,
because there was a finite number of possible combinations, there
was a “100% probability” — that the PIN would have been
discovered eventually. The district court rejected the defense’s
fairness argument as unsupported by case law.
B. Standard of Review and Applicable Law
¶ 36 “Whether evidence should be suppressed is a mixed question
of law and fact. As a result, we defer to the trial court’s factual
findings if they are supported by competent evidence, but we review
the legal effect of those findings de novo.” People v. Seymour, 2023
CO 53, ¶ 19 (citation omitted).
¶ 37 “The United States and Colorado Constitutions protect
individuals against ‘unreasonable searches and seizures.’”
Id. at
¶ 20 (quoting U.S. Const. amend. IV; Colo. Const. art. II, § 7). A
19
“search” within the meaning of the Fourth Amendment “occurs
when the government infringes on an individual’s reasonable
expectation of privacy.” Id. (citing Katz v. United States, 389 U.S.
347, 361 (1967) (Harlan J., concurring)). The “‘seizure’ of property
occurs when there is some meaningful interference with an
individual’s possessory interests in that property.”
Id. (quoting
United States v. Jacobsen,
466 U.S. 109, 113 (1984)). “[T]o deter
police misconduct” and discourage illegal searches, “the
exclusionary rule requires courts to suppress evidence at trial if the
government acquired it in violation of constitutional protections.”7
Id. at ¶ 62.
¶ 38 A warrant is generally required before cell phone data can be
searched. See Riley v. California,
573 U.S. 373, 386, 393-98, 401-
403 (2014) (recognizing the ubiquity of cell phones, their immense
storage capacity, and their potential to store deeply personal
information). Our state supreme court has also “acknowledged the
special protections applicable to cell phone searches.” People v.
7 The exclusionary rule “applies both to illegally obtained evidence
and to derivative evidence — often called ‘fruit of the poisonous
tree.’” People v. Dominguez-Castor,
2020 COA 1, ¶ 19 (quoting
People v. Schoondermark,
759 P.2d 715, 718 (Colo. 1988)).
20
Davis, 2019 CO 24, ¶ 19; see also Coke, ¶ 38 (warrant to search a
cell phone that “permitted the officers to search all texts, videos,
pictures, contact lists, phone records, and any data that showed
ownership or possession” violated the Fourth Amendment’s
particularity requirement). Indeed, “the general trend of caselaw
provides cell phones with more protection, not less.” Davis, ¶ 17.
¶ 39 Preserved errors concerning the admission of evidence in
violation of the Fourth Amendment implicate “trial errors of
constitutional dimension,” and thus we review any such error for
“constitutional harmless error.” Hagos v. People,
2012 CO 63, ¶ 11.
“These errors require reversal unless the reviewing court is ‘able to
declare a belief that [the error] was harmless beyond a reasonable
doubt.’”
Id. (alteration in original) (quoting Chapman v. California,
386 U.S. 18, 24 (1967)).
C. Analysis
1. The Independent Source Doctrine
¶ 40 The independent source doctrine is an exception to the
exclusionary rule and allows “unconstitutionally obtained evidence
[to] be admitted if the prosecution can establish that it was also
discovered by means independent of the illegality.” People v.
21
Dominguez-Castor, 2020 COA 1, ¶ 20 (quoting People v. Arapu,
2012
CO 42, ¶ 29); see also People v. Thompson,
2021 CO 15, ¶ 21. The
doctrine may apply to “evidence seized under a valid warrant issued
after the evidence was first discovered during execution of an
invalid warrant . . . if the prosecution shows that the second
warrant was truly independent of information obtained from the
initial search.” Dominguez-Castor, ¶ 22. The decision to seek an
additional warrant because of a suppression order’s consequences
does not, on its own, violate the independent source doctrine.
People v. George,
2017 COA 75, ¶ 55.
¶ 41 A second warrant meets the criteria of the independent source
doctrine if the prosecution proves, by a preponderance of the
evidence, that “(1) the decision to seek the warrant was not
prompted by what was observed during the initial unlawful search,
and (2) no information obtained during the initial search was relied
upon by the magistrate in issuing the warrant.” Dominguez-Castor,
¶ 21; see also Thompson, ¶ 22. It is a question of fact for the
district court “[w]hether the police would have pursued a second
search even absent what they discovered during an earlier unlawful
22
search . . . . We will not disturb the court’s finding if it has record
support.” Dominguez-Castor, ¶ 34.
¶ 42 The reasoning behind the independent source doctrine,
articulated in Nix v. Williams, is that
the interest of society in deterring unlawful
police conduct and the public interest in
having juries receive all probative evidence of a
crime are properly balanced by putting the
police in the same, not a worse, position that
they would have been in if no police error or
misconduct had occurred. When the
challenged evidence has an independent
source, exclusion of such evidence would put
the police in a worse position than they would
have been in absent any error or violation.
467 U.S. 431, 443 (1984) (emphasis added) (citations and footnote
omitted). Put another way, “while the government should not profit
from its illegal activity, neither should it be placed in a worse
position than it would otherwise have occupied.” Murray v. United
States,
487 U.S. 533, 542 (1988).
¶ 43 The district court deemed Holloway’s testimony — averring
that the information from the first suppressed search did not inform
the second warrant application or the decision to seek the second
warrant — credible. See Dominguez-Castor, ¶ 21. We may not
disturb this credibility determination. See Seymour, ¶ 20. Nor does
23
the second warrant reference information learned during the first
search on which a judicial officer could have improperly relied. See
Dominguez-Castor, ¶ 21.
¶ 44 But d’Estree challenges the independence of the second
warrant because he argues it sought information that police had
discovered during the first search and knew existed. Therefore, he
contends the second warrant relied on information illegally obtained
in the first search. For example, d’Estree points to the second
warrant’s request for information on any “search terms that the
user entered into any internet search engine” as problematic.
D’Estree argues that the object of this request was to gather his
known internet search history (which was introduced at trial), and
improperly relied on information gathered in the first search.
¶ 45 But the first warrant request, while not as specific, requested
such information when it sought “web activity (name of web site or
application visited or accessed), domain accessed, data connections
(to include Internet Service Providers (ISPs), Internet protocol (IP)
addresses, [and] (IP) Session data.” The second warrant’s request
with additional specificity does not necessarily show that the
second warrant relied on information improperly gained from the
24
first search. See id. at ¶ 14 & n.2 (second warrant contained “much
more information than the first” in light of police’s increased
training on search warrants for cell phones).
¶ 46 As a result, the second warrant itself meets the criteria
detailed in Dominguez-Castor for the independent source doctrine
exception. Had police relied on the second warrant alone to retrieve
the contents of d’Estree’s cell phone, that would have been
permissible and the extracted evidence would have been properly
admitted at trial. But police used illegally obtained information
from the first warrant — the PIN code — in executing the second
warrant.
2. The Use of the PIN Code
¶ 47 The PIN code was discovered during the execution of the first,
unlawful general warrant. Police then used this illegally obtained
information to expedite the execution of the second warrant. By
using the illegally obtained PIN code, police extracted a crucial
benefit — guaranteed access to the phone’s contents ahead of the
forthcoming December 2021 trial. This conduct placed the
government in a better position than before the illegal search
occurred. See Murray, 487 U.S. at 542; Nix,
467 U.S. at 443. So
25
while the second warrant was not infirm, the execution of that
warrant most certainly was.
¶ 48 A summary of the key dates relating to both warrants follows:
Feb. 17,
2020:
Phone
unlocked Nov. 23,
using 2021:
Nov. 20, USSS- Oct. 11, Court
2019: provided 2021: permits
First PIN code, Second phone
warrant data warrant evidence's
signed extracted signed admission
Dec. 18, May 12, Oct. 19, 2021: Dec. 14 -
2019: No 2021: Brute force 17, 2021:
download Evidence abandoned and Trial
possible suppressed second
without PIN extraction using
code PIN code
Key Warrant Events
¶ 49 Police and the prosecution had months to submit another
warrant application after the first warrant was invalidated, and
could have done so, but they did not request a second warrant until
about two months before trial. The first brute force attack took
three months, and Fink testified that a brute force attack could
have taken up to eleven years, so there was no guarantee that
26
police would have gained access to the phone in time for trial
without relying on the illegally obtained shortcut (the PIN code).8
¶ 50 As the United States Supreme Court held in Silverthorne
Lumber Co. v. United States, 251 U.S. 385, 392 (1920), which
originated the independent source doctrine, “[t]he essence of a
provision forbidding the acquisition of evidence in a certain way is
that not merely evidence so acquired shall not be used before the
Court but that it shall not be used at all.” (Emphasis added.)
¶ 51 The second warrant authorized police to acquire the PIN code
via brute force attack; evidence on the phone so acquired would
have presumably met the independent source doctrine. See
Dominguez-Castor, ¶ 21. However, police abandoned the brute force
attack and, instead, took a different (and shorter) route to the
encrypted information using illegally obtained information (the PIN
code) to execute the second warrant. Law enforcement may not use
information obtained in violation of the Fourth Amendment. See
8 If the prosecution had pursued the second warrant immediately
after the information obtained with the first warrant was
suppressed in May 2021, even if it took three months (as it had
before) to unlock the phone, there may have been substantially less
incentive to use the PIN code to expedite access to the phone’s
contents before the December 14, 2021, trial start date.
27
Silverthorne, 251 U.S. at 392. With this framework in mind, we
proceed to address the district court’s other grounds for admitting
the evidence.
3. Whether a Brute Force Attack Constitutes a Search
¶ 52 The district court also found that the use of a brute force
attack to discover a PIN code and access d’Estree’s cell phone data
did not constitute a search under the Fourth Amendment because
it was a “means” to execute a warrant rather than a search. It
analogized the issue as akin to when police execute a warrant to
search a locked house — whether police choose to enter through
the door or a window is irrelevant.
¶ 53 Case law supports this general concept — most notably, as
pointed out by the district court and the People on appeal, in Dalia
v. United States, 441 U.S. 238 (1979). There, a defendant
challenged a wiretap order granting the government the authority to
“intercept all oral communications taking place in petitioner’s office”
through electronic surveillance.
Id. at 241-42. The defendant
argued that the order violated the Fourth Amendment because it
did not specify the means used to execute the warrant (i.e., by
covert entry into the office).
Id. at 256-58. The Supreme Court held
28
that “[n]othing in the language of the Constitution or in this Court’s
decisions interpreting that language suggests that . . . search
warrants also must include a specification of the precise manner in
which they are to be executed.” Id. at 257. Instead, the means of
executing a warrant are “generally left to the discretion of the
executing officers . . . subject of course to the general Fourth
Amendment protection . . . [, and] the manner in which a warrant is
executed is subject to later judicial review as to its reasonableness.”
Id. at 257-58.
¶ 54 But the means versus search distinction does not neatly fit
here. As the United States Supreme Court aptly recognized in Riley
v. California, analogizing the digital world and processes to the
physical world is difficult and unhelpful, and “[a]n analogue test
would ‘keep defendants and judges guessing for years to come.’”
573 U.S. at 401 (citation omitted). The use of a brute force attack
to access a phone, or any other means to obtain a phone’s PIN code
without a defendant’s cooperation or consent, is fundamentally
different from entry into a home with a warrant because a search
for the PIN code itself, just like a search of a cell phone’s contents,
is protected by the Fourth Amendment. See Davis, ¶ 19; Coke,
29
¶ 38; Riley, 573 U.S. at 386, 393-98, 401-03 (recognizing that cell
phones hold “the privacies of life” (quoting Boyd v. United States,
116 U.S. 616, 630 (1886))).
¶ 55 While the protections the Fourth Amendment affords to
passwords and PIN codes allowing access to cell phones are less
clearly defined than those it affords to physical spaces and the
personal data cell phones contain,9 existing Fourth Amendment
principles, coupled with the recognition of the special protections
afforded cell phones, support concluding that obtaining a cell phone
PIN code without consent requires a warrant. See United States v.
Booker,
561 F. Supp. 3d 924, 929-32 (S.D. Cal. 2021) (holding, in
part, that requiring defendant to involuntarily enter his PIN code
while law enforcement watched and recorded it, before police
sought a warrant to search the phone using software that required
the PIN code, violated the Fourth Amendment).
9 The issues in this case are distinct from those in the Fifth
Amendment context centering on whether a defendant can be
compelled to provide a cell phone PIN code or unlock a device. See,
e.g., Seo v. State,
148 N.E.3d 952, 962 (Ind. 2020) (holding that
forcing a defendant to “unlock her iPhone for law enforcement
would violate her Fifth Amendment right against selfincrimination”). The Fifth Amendment is not at issue in this case.
30
¶ 56 Courts use “a two-prong test to determine if a claimed privacy
interest warrants constitutional protection: (1) whether the
individual ‘exhibited an actual (subjective) expectation of privacy’
and (2) whether, objectively, ‘the expectation [is] one that society is
prepared to recognize as ‘reasonable.’” Seymour, ¶ 22 (quoting
People v. Gutierrez, 222 P.3d 925, 932 (Colo. 2009), in turn citing
Katz,
389 U.S. at 361).
¶ 57 Turning to the subjective expectation of privacy prong, there is
no evidence that d’Estree exhibited anything other than an
expectation that his PIN code would remain private. This is
evidenced by the very fact that police had to use specialized
software to break into the phone because d’Estree did not provide
the PIN code. On this point, Davis,
2019 CO 24, provides some
insight. There, the Colorado Supreme Court held that an individual
who voluntarily gave his phone’s PIN code to law enforcement —
even for a limited purpose — “had no legitimate expectation of
privacy in the digits of his passcode” and “law enforcement’s [later]
use of that passcode was not a search protected by the Fourth
Amendment.” Id. at ¶¶ 30-32. It stands to reason, therefore, that
when an individual does not voluntarily share a PIN code with
31
police, he is exhibiting a subjective expectation that his PIN code
will remain private — particularly when a phone’s PIN code is the
key to unlocking a wealth of private information.
¶ 58 As for the second, objective prong, it is clear that society
recognizes as reasonable the expectation that one’s PIN code is
private. Indeed, keeping a PIN code private is an indisputably
important part of how passwords function. See Booker, 561 F.
Supp. 3d at 931 (“There can be no question that a passcode entered
into a cell phone, which is designed to keep the contents of the
phone hidden from others, is generally considered by society to be
something private that should be free from warrantless intrusion by
the government.”); see also Jay E. Grenig, Electronic Discovery and
Records and Information Management Guide § 3:7, Westlaw
(database updated Oct. 2023) (“It is essential to use passwords and
to keep them safe. . . . No one else should be told a password. Any
compromised password should be changed immediately.”); Davis, ¶
30 (society would not deem a subjective expectation of privacy to be
objectively reasonable if a defendant shared the PIN code with law
enforcement).
32
¶ 59 The People contend that d’Estree’s PIN code “had no
meaningful existence other than to protect the contents of his
cellphone — it was just a series of numbers that provided no
independent information about his thoughts or life.” This is true in
the most literal sense of what a PIN code is. But this
characterization of a PIN code ignores the importance of what a
phone’s PIN code protects — namely, the wealth of private
information cell phones store. See Riley, 573 U.S. at 393-94, 401-
03.
¶ 60 Because d’Estree has a cognizable right to the privacy of his
cell phone PIN code that warrants constitutional protection under
the subjective and objective prongs of the Katz test, we conclude a
brute force attack to discover d’Estree’s PIN code constitutes a
search under the Fourth Amendment. The second warrant allowed
police to obtain “[p]asswords, encryption keys, codes, and/or other
devices or information that may be necessary to access the device
and its contents.” A brute force attack was therefore authorized.
But the use of the PIN code discovered while executing the first,
invalid warrant was not authorized. The district court’s “means”
rationale therefore cannot save the execution of the second warrant
33
using the PIN code discovered while executing the first, unlawful
warrant. See Riley, 573 U.S. at 400; Dominguez-Castor, ¶ 19.
4. The Inevitable Discovery Rule
¶ 61 “Under the inevitable discovery rule, evidence initially
discovered in an unconstitutional manner may be received if that
same evidence inevitably would have been obtained lawfully.”
People v. Schoondermark, 759 P.2d 715, 718 (Colo. 1988). “The
ability to obtain a lawful search warrant after an illegal search has
occurred does not satisfy the inevitable discovery exception
requirements.” People v. Nelson,
2012 COA 37, ¶ 52; see also
People v. Diaz,
53 P.3d 1171, 1176 (Colo. 2002).
The Government cannot later initiate a lawful
avenue of obtaining the evidence and then
claim that it should be admitted because its
discovery was inevitable. . . . Because a valid
search warrant nearly always can be obtained
after the search has occurred, a contrary
holding would practically destroy the
requirement that a warrant for the search . . .
be obtained before the search takes place.
People v. Burola, 848 P.2d 958, 963-64 (Colo. 1993) (quoting United
States v. Satterfield,
743 F.2d 827, 846 (11th Cir. 1984)). As a
result, “[t]he prosecution must affirmatively show that the lawful
means of discovering this evidence was already initiated when the
34
evidence was obtained illegally.” People v. Dyer, 2019 COA 161,
¶ 38.10
¶ 62 As with the independent source doctrine, this requirement
effectuates the policy underlying the inevitable discovery doctrine —
the exception should place the government in the same position (no
better, no worse) than it would have occupied if no illegality had
occurred. See Nix,
467 U.S. at 443-44 (the independent source
doctrine’s “rationale is wholly consistent with and justifies our
adoption of the ultimate or inevitable discovery exception to the
exclusionary rule”). Thus, if two searches — one lawful and one
unlawful — began at the same time and would procure the same
evidence, suppressing the resulting evidence would place the
prosecution in a worse position because the police would have
inevitably obtained that evidence even if no misconduct had taken
place.
Id.
¶ 63 While it is true, as the district court noted, that the PIN code
would have eventually been discovered by police software — months
10 Some courts, including the Tenth Circuit, do not require the
lawful means of discovering the evidence to have been initiated
before the unlawful search or seizure. See, e.g., United States v.
Christy,
739 F.3d 534, 540-41 (10th Cir. 2014).
35
or years later — focusing on the word “inevitable” in such a manner
ignores the requirements of the rule and undermines its purpose,
and the exclusionary rule more broadly.11 While police here
initiated a lawful means to obtain the PIN code — via the brute
force attack that the second warrant authorized — that means was
abandoned in favor of a shortcut (using the illegally obtained PIN
code), thus violating a key requirement of the inevitable discovery
rule under Colorado precedent. See Dyer, ¶ 38; Nelson, ¶ 52. And
regardless, the soon-abandoned lawful means was initiated well
after the PIN code was first illegally obtained. See Dyer, ¶ 38.
Simply because police software would have eventually discovered
the PIN code (perhaps years after d’Estree’s trial date) does not
render it admissible.
¶ 64 Even if we assume the second brute force attack would have
yielded a PIN code in three or so months (the time the first brute
11 Merriam-Webster’s Dictionary defines “inevitable” as “incapable of
being avoided or evaded.” Merriam-Webster Dictionary,
https://perma.cc/B3BN-X46N. Black’s Law Dictionary defines
“inevitable” within the context of the inevitable discovery rule. In
that definition, it notes that “[t]he inevitable discovery of evidence
by law enforcement is a discovery that would naturally and lawfully
occur in the course of an investigation.” Black’s Law Dictionary
925 (12th ed. 2024).
36
force attack took using the first, unlawful warrant), the information
would likely have come after the scheduled December 14, 2021,
trial. We are not prepared to speculate that the district court would
have granted a trial continuance when the prosecution waited so
close to the trial date to seek a second warrant. See People v. Syrie,
101 P.3d 219, 223 (Colo. 2004) (inevitable discovery exception
cannot be met through “speculation about possible series of
events”). Recall that police asked the court for the second warrant
in October 2021 — almost five months after the May 12, 2021,
suppression ruling — knowing that d’Estree’s trial was in December
2021 and his speedy trial clock was ticking.
¶ 65 To admit evidence under the inevitable discovery doctrine
“requires an affirmative showing of a reasonable probability that the
evidence would inevitably be discovered through lawful means
already initiated when the seizure was made.”
Id. (emphasis
added); see also Burola,
848 P.2d at 963 (“[I]f evidence is obtained
by illegal conduct, the illegality can be cured only if the police
possessed and were pursuing a lawful means of discovery at the
time the illegality occurred.”). A lawful means was initiated — the
brute force attack authorized by the second warrant — but that
37
means was abandoned in favor of using the proverbial fruit of the
first, poisoned warrant — the known PIN code.
¶ 66 The primary rationale for the inevitable discovery rule as an
exception to the exclusionary rule would be undermined by allowing
admission of any evidence that would have been eventually
discovered, where a lawful means to obtain the evidence was
initiated but abandoned in favor of a tainted shortcut. See Nix, 467
U.S. at 442-43; see also Casillas v. People,
2018 CO 78M, ¶¶ 21-22,
36.
¶ 67 We recognize that the exclusionary rule’s deterrence rationale
is not served when the challenged evidence would “ultimately or
inevitably” be discovered by lawful means. Nix,
467 U.S. at 444 (“If
the prosecution can establish . . . that the information ultimately or
inevitably would have been discovered by lawful means . . . then the
deterrence rationale has so little basis that the evidence should be
received.”). As the Nix court reasoned, “when an officer is aware
that the evidence will inevitably be discovered, he will try to avoid
engaging in any questionable practice . . . [as] there will be little to
gain from taking any dubious ‘shortcuts’ to obtain the evidence.”
Id. at 445-46; see also People v. Briggs,
709 P.2d 911, 923 (Colo.
38
1985). But here, the opposite occurred — police took a shortcut,
presumably because they were not confident that the second brute
force attack would crack the cell phone in time to put its
incriminating contents to use at the December 2021 trial.
¶ 68 To rule that use of the PIN code was permissible in this
context would provide an incentive for police to engage in such
shortcuts in the future. See Casillas, ¶¶ 34-36. Although there is a
reasonable probability that police software would have eventually
produced d’Estree’s PIN code, by Fink’s own estimates and prior
brute force attack, we can only speculate whether this would have
occurred before the December 2021 trial. See Syrie, 101 P.3d at
223.
D. Prejudice and Next Steps
¶ 69 In their brief, the People “concede that if this Court where [sic]
to find that the trial court erred in denying all of [d’E]stree’s
preserved suppression claims, under the facts of this case, the
errors could not be harmless.” We agree.
¶ 70 The admission of the evidence gathered from d’Estree’s cell
phone undoubtedly prejudiced him at trial. Photos of d’Estree
holding a handgun that matched the description of the homicide
39
weapon, text messages admitting that he expected to go to prison,
and the incriminating internet search history were impactful pieces
of evidence against d’Estree. Further, the prosecutor referred to
this evidence several times in closing argument, pointing to it to
help convince the jurors that, regardless of what they thought of
Lucero’s credibility, they could rely on the evidence taken from
d’Estree’s cell phone to corroborate her testimony. And the
prosecution noted in its motion for reconsideration after the first
warrant’s suppression that it considered the “evidence collected
from the cell phone belonging to the defendant [to be] of critical
importance to the prosecution of this case.”
¶ 71 We cannot find that the improper admission of this critical
evidence against d’Estree was harmless beyond a reasonable doubt.
Furthermore, these errors likely impacted every one of his
convictions. The prosecution’s trial evidence supporting each of
d’Estree’s convictions, especially Lucero’s testimony, benefited from
this improperly admitted digital evidence for corroboration. Thus,
40
these errors require reversal of each of his convictions.12 See
Hagos, ¶ 11; see also People v. Folsom, 2017 COA 146M, ¶¶ 17-23
(admission of videos extracted from iPod was not harmless and
required reversal).
¶ 72 In the light most favorable to the prosecution, however,
considering both the properly admitted evidence through witness
testimony and the police’s investigation, in addition to the
improperly admitted cell phone evidence, we cannot say with
certainty that there was insufficient evidence to convict d’Estree of
some or all of the charged crimes. And because this reversal is
predicated on the receipt of improperly admitted evidence, the
prosecution is entitled to a retrial of all of d’Estree’s charges on
remand. See People v. Marciano,
2014 COA 92M-2, ¶¶ 42-49; see
also People v. Sisneros,
606 P.2d 1317, 1319 (Colo. App. 1980)
(“[W]here reversal is predicated upon trial error consisting of the
reception of inadmissible evidence, remand for a new trial is proper,
12 The People do not address whether any of d’Estree’s convictions
may have been unaffected by the admission of the digital evidence
were we to find the execution of the second warrant was infirm,
while d’Estree contends that every one of his convictions must be
reversed.
41
and an appellate court should not review the remaining evidence in
order to determine whether it is sufficient to sustain the
conviction.”) (citations omitted).
III. Disposition
¶ 73 We reverse d’Estree’s convictions and remand the case to the
district court for a new trial.
JUDGE SULLIVAN concurs.
JUDGE GROVE specially concurs.
42
JUDGE GROVE, specially concurring.
¶ 74 I agree with the majority’s reasoning and its conclusion that
d’Estree’s convictions must be reversed. I write separately to urge
the Colorado Supreme Court to revisit two aspects of its inevitable
discovery jurisprudence that I believe have drifted away from the
United States Supreme Court’s articulation of the rule.
¶ 75 First, since the doctrine was first applied in this state,
Colorado’s version of the inevitable discovery rule has required the
prosecution to show that (1) “the police were pursuing an
independent investigation at the time the illegality occurred,” and
(2) there was “a reasonable probability that the evidence would have
been discovered in the absence of police misconduct.” People v.
Breidenbach, 875 P.2d 879, 889 (Colo. 1994) (emphasis added). My
concern in this case is with the second element of this test, which
not only makes little semantic sense but also materially diverges
from the standard set forth in Nix v. Williams,
467 U.S. 431 (1984).
¶ 76 Breidenbach’s “reasonable probability” approach tracked the
Fifth Circuit Court of Appeals’ holding in United States v. Cherry,
759 F.2d 1196 (5th Cir. 1985), which applied pre-existing circuit
precedent to define the scope of the inevitable discovery rule based
43
on its conclusion that the Nix court had made “no attempt . . . to
define the contours of that exception.” Id. at 1204. But however
thin the analysis in Nix may have been, it still clearly held that the
inevitable discovery rule only applies if the prosecution
“establish[es] by a preponderance of the evidence that the
information ultimately or inevitably would have been discovered by
lawful means.” Nix,
467 U.S. at 444 (emphasis added).1 The
preponderance standard is different from “reasonable probability,”
and, importantly for this case, it also places a heavier burden on
the prosecution. See United States v. Zavala,
541 F.3d 562, 579 n.7
(5th Cir. 2008) (acknowledging that the Fifth Circuit’s application of
the “reasonable probability” test rather than a preponderance
standard in the context of the inevitable discovery rule “is more
favorable to the Government than the test in other circuits”); cf. Mile
High Cab, Inc. v. Colo. Pub. Utils. Comm’n,
2013 CO 26, ¶ 15
1 I recognize the linguistic difficulties in measuring inevitability in
terms of probability. See, e.g., United States v. Cabassa,
62 F.3d
470, 474 (2d Cir. 1995) (recognizing the “semantic puzzle” created
by “using the preponderance of the evidence standard to prove
inevitability”). But that standard is dictated by the holding in Nix v.
Williams,
467 U.S. 431 (1984), and has generally proved workable
in the context of suppression rulings.
44
(observing that “reasonable probability” is used “to refer to a
likelihood of occurrence which, although not insignificant,
nevertheless need not rise to the level of a preponderance of the
evidence”); Krutsinger v. People, 219 P.3d 1054, 1060 (Colo. 2009)
(“[T]he Supreme Court has made abundantly clear that it does not
intend its use of the term ‘reasonable probability’ to require a
showing that the defendant would more likely than not have
received a different result . . . .”). As a result, Colorado’s version of
the inevitable discovery rule appears to be out of step with Supreme
Court precedent.2
¶ 77 To be sure, in practice it will often make no difference whether
the “reasonable probability” or preponderance standard applies.
2 Notably, the Colorado Supreme Court’s application of the
“reasonable probability” test in inevitable discovery cases also
diverges from its application of a preponderance standard in the
closely related context of the independent source doctrine. See
People v. Thompson,
2021 CO 15, ¶ 22 (“When, as here, the People
assert the applicability of the independent source doctrine, they
bear the burden of proving by a preponderance of the evidence the
doctrine’s applicability.”). Because the two exceptions share the
same doctrinal underpinnings, see Murray v. United States,
487
U.S. 533, 539 (1988) (observing that “[t]he inevitable discovery
doctrine . . . is in reality an extrapolation from the independent
source doctrine”), I see no reason why the same standard should
not apply to both.
45
But in close cases, the test that the trial court applies may well be
dispositive. This case provides a perfect example. Given that the
United States Secret Service took three months to complete a brute
force attack on the phone’s PIN code, I believe that it was
reasonably probable that a second brute force attack would also be
successful within a similar amount of time. But I am far less
certain that the prosecution proved by a preponderance of the
evidence that cracking the PIN code would be inevitable in any sort
of reasonable timeframe. See United States v. Jones, 72 F.3d 1324,
1334 (7th Cir. 1995) (“Inevitable discovery is not an exception to be
invoked casually, and if it is to be prevented from swallowing the
Fourth Amendment and the exclusionary rule, courts must take
care to hold the government to its burden of proof.”). To the
contrary, the only evidence on this point was Agent Fink’s
testimony that, if she had not decided to use the illegally obtained
PIN code after only a week of searching, the brute force attack could
have taken “anywhere from a week to 11 years” to unlock the
phone. Fink offered few other details about how quickly the process
was likely to proceed or how the software worked. Information of
that sort would have helped the court better assess how the search
46
would turn out. For example, if the court had been presented with
evidence that the software attempts easy-to-remember PIN codes
(like the one here) first, before moving on to more random numbers,
it might have been able to better forecast the likelihood that
execution of the second warrant would have been successful in the
time remaining before trial.
¶ 78 I acknowledge that the prosecution could have sought up to a
six-month continuance of the trial date if it had tried and failed to
discover the PIN code. See § 18-1-405(6)(g)(I), C.R.S. 2024. But in
light of Fink’s testimony, it appears that an extension of that length
would have offered little additional certainty and might, depending
on the overall age of the case, have begun to raise constitutional
speedy trial concerns. See People v. Nelson, 2014 COA 165, ¶¶ 21-
25. Accordingly, if the district court had been required to hold the
prosecution to the burden of proof dictated by Nix, it might well
have granted d’Estree’s motion to suppress.
¶ 79 Second, in my view, parties and trial courts in Colorado would
be well served by an approach to the inevitable discovery doctrine
that explicitly takes deterrence into account. I do not mean to
suggest that the prosecution should be required to show an
47
absence of bad faith (indeed, Nix rejected that very argument, 467
U.S. at 445), but as Justice Stevens pointed out in his Nix
concurrence, the inevitable discovery doctrine would “be
inconsistent with the deterrent purposes of the exclusionary rule” if
it provided law enforcement with an incentive to commit
constitutional violations “by permitting the prosecution to avoid the
uncertainties inherent in its search for evidence.”
Id. at 456
(Stevens, J., concurring in the judgment). Consistent with this
understanding, some federal circuits have made clear that the
inevitable discovery exception should not apply under
circumstances that would undermine the fundamental purpose of
the exclusionary rule. See, e.g., United States v. Crespo-Rios,
645
F.3d 37, 42 (1st Cir. 2011) (holding that inevitable discovery should
apply only where “application of the doctrine in a particular case
will not sully the prophylaxis of the Fourth Amendment” (quoting
United States v. Hughes,
640 F.3d 428, 440 (1st Cir. 2011))); United
States v. Vasquez De Reyes,
149 F.3d 192, 195 (3d Cir. 1998)
(holding that the inevitable discovery rule “permits the court to
balance the public interest in providing a jury with all relevant and
48
probative evidence in a criminal proceeding against society’s
interest in deterring unlawful police conduct”).3
¶ 80 As the majority’s analysis makes clear, the circumstances
before us here seem to be exactly what those cases had in mind.
With trial fast approaching, and apparently facing a very real
possibility that the clock would run out before the prosecution
could collect the important evidence saved in d’Estree’s cell phone,
Agent Fink took a shortcut and made a conscious decision to open
the phone using the PIN code that she knew full well had been
3 Notably, several states have rejected the reasoning of Nix
altogether and held as a matter of state constitutional law that the
prosecution must demonstrate the absence of bad faith for the
inevitable discovery rule to apply. See Garnett v. State, 308 A.3d
625, 648 (Del. 2023) (“[O]ur holding that the inevitable-discovery
exception is compatible with Article I, § 6 [of the Delaware
Constitution] assumes that it will be applied only when it is clear
that ‘the police have not acted in bad faith to accelerate the
discovery of the evidence in question.’”) (citation omitted); State v.
Holly,
2013 ND 94, ¶ 55,
833 N.W.2d 15, 33 (“When a shortcut is
taken that circumvents the requirements of the Fourth Amendment,
the requirements of the inevitable-discovery doctrine have not been
met.”); Smith v. State,
948 P.2d 473, 481 (Alaska 1997) (recognizing
the inevitable discovery rule but limiting its application under the
Alaska Constitution “where the police have intentionally or
knowingly violated a suspect’s rights”); Commonwealth v. Sbordone,
678 N.E.2d 1184, 1190 (Mass. 1997) (The inevitable discovery rule
may apply “as long as the officers did not act in bad faith to
accelerate the discovery of evidence, and the particular
constitutional violation is not so severe as to require suppression.”).
49
illegally obtained. If ever there was a time that called for an adverse
consequence, this was it. Otherwise, we would be sanctioning
precisely the type of unlawful police conduct that the exclusionary
rule was intended to discourage.
50
