Mosley v. Daves.
2025 COA 80. No. 24CA0079. Civil Action for Deprivation of Rights—Fourth Amendment—Searches and Seizures—Warrantless Search—Civil Jury Instructions—Affirmative Defenses.
October 2, 2025
Aurora Police Department (APD) Officer Daves pulled Mosley over because Mosley’s vehicle did not have a license plate. Daves ordered Mosley to exit the vehicle and patted him down but did not find a weapon. Daves then ordered Mosley to sit on the bumper of the police vehicle while Daves ran a search of Mosley’s driver’s license and observed his demeanor. After running the search, Daves was going to let Mosley go and write him a summons or issue him a warning for the license plate violation. But before doing so, Daves conducted a warrantless search of Mosley’s vehicle, during which he found a gun. Mosley filed a lawsuit under CRS § 13-21-131 asserting a violation of his constitutional rights. Each party filed a pretrial motion in limine to exclude unfavorable evidence, and the trial court precluded Daves from introducing the gun found in the vehicle search. The jury returned a verdict for Mosley, and the trial court granted Mosley’s motion for attorney fees and costs and entered judgment accordingly.
On appeal, Daves argued that the trial court erred by instructing the jury that Daves had the burden of proving the affirmative defense that the search was reasonable. In a civil case, the defendant asserting an affirmative defense has the burden of proving the affirmative defense by a preponderance of the evidence. The court of appeals held that justification for a warrantless search is an affirmative defense that the defendant must prove in a § 13-21-131 action. Here, the final jury instructions, which Daves did not object to, provided that Daves’s claim of legal justification was an affirmative defense that he had to prove by a preponderance of the evidence. The court also instructed the jury on the warrant requirement and the protective sweep exception to the warrant requirement. Accordingly, the trial court properly instructed the jury.
Daves also contended that the trial court abused its discretion by not allowing Daves’s expert Smyth to testify about how the APD trains its officers to determine whether reasonable suspicion exists because it prevented the jury from understanding how these factors impact an officer’s decision to conduct a protective sweep. Here, it was highly likely that the jury would be confused and might think Smyth was defining a legal term. But Smyth was allowed to testify about officer safety tactics and other relevant vehicle search training without mentioning how reasonable suspicion is defined within the APD training materials. And the trial court accurately defined reasonable suspicion in its jury instructions. Therefore, the trial court properly disallowed Smyth’s testimony on reasonable suspicion.
Daves further asserted that the trial court abused its discretion by excluding evidence of the gun Daves found during the protective sweep because it was relevant to show that his initial protective sweep was limited to areas that were within Mosley’s reach while sitting in the driver’s seat, which thus supported the argument that the search was reasonable. Here, while both parties agreed that Daves entered the vehicle three separate times, Mosley argued only that the initial search, which was the protective sweep, was unconstitutional. The court concluded that the only issue for the jury to decide was whether the initial search was justified, not whether justification existed for the subsequent searches. Accordingly, the trial court held that the evidence Daves intended to introduce, which was obtained during the initial search, was not relevant. Thus, the trial court did not abuse its discretion by excluding the evidence.
Lastly, Daves argued that the trial court’s award of $130,987 for attorney fees and $3,405.10 for costs to Mosley was unreasonable and based on an erroneous assessment of the evidence. Here, the trial court held a hearing on attorney fees at which the parties’ experts testified on the hourly rates charged and hours spent on the litigation, and the court reviewed each line item of claimed costs related to the litigation. The court then detailed its findings in its order awarding attorney fees and costs. There was thus no abuse of discretion in the trial court’s award of attorney fees and costs.
Mosley requested an award of appellate attorney fees and costs under CRS § 13-21-131(3).
The judgment was affirmed and the case was remanded for the trial court to determine Mosley’s reasonable appellate attorney fees and costs.