People v. Rodriguez-Ortiz.
2025 COA 30. No. 22CA0224. Possession, Use, or Removal of Explosives or Incendiary Devices—Fourth Amendment—Searches and Seizures—Search Warrants—Probable Cause—Particularity—Expert Testimony—Sentencing.
March 20, 2025
J.R. and Rodriguez-Ortiz were in a tumultuous relationship for about 18 months. Rodriguez-Ortiz was charged with multiple counts of criminal conduct for a series of incidents that occurred over a six-month period during his relationship with J.R. As relevant here, these included incidents where multiple gunshots were fired into J.R.’s truck while it was parked in the driveway; multiple gunshots were fired into the basement bedroom where J.R. was sleeping; several surveillance cameras were either moved and disabled in the home where J.R. was staying; and two Molotov cocktails were thrown into J.R.’s home. Police obtained a search warrant for Rodriguez-Ortiz’s cell phone records, and based on what they found in those records, obtained warrants for his apartment and truck. Police collected a .380 handgun from Rodriguez-Ortiz’s truck. A forensic toolmark expert opined that two of the recovered bullet fragments were fired from that gun and concluded that three of the recovered casings were fired from the same gun, though they could not conclusively be linked to Rodriguez-Ortiz’s handgun. Rodriguez-Ortiz moved to suppress all evidence seized from the cell phone records warrant, arguing that the warrant violated the Fourth Amendment’s particularity requirement. The trial court denied the motion. He also filed a pretrial objection to the firearms toolmark evidence and requested a hearing under People v. Shreck, 22 P.3d 68 (Colo. 2001), to determine its admissibility. The court found that the firearms toolmark analysis evidence was admissible under CRE 702 and that the expert testimony would be helpful to the jury because firearms toolmarks are not commonly known. Rodriguez-Ortiz also unsuccessfully challenged the admissibility of the prosecution’s proposed expert testimony on cell phone/cell site location data and requested a Shreck hearing. Rodriguez-Ortiz was convicted of three counts of attempted first degree murder, three counts of first degree assault, two counts of attempted murder using explosive or incendiary devices, two counts of attempted assault using explosive or incendiary devices, first degree arson, illegal discharge of a weapon, second degree criminal tampering, two counts of second degree trespass, and criminal mischief. The trial court merged eight counts and entered nine convictions, and it applied the crime of violence sentence enhancer for first degree arson. This resulted in a controlling sentence of 102 years in the custody of the Department of Corrections.
On appeal, Rodriguez-Ortiz argued that the search warrant for his cell phone records lacked probable cause and particularity, so the trial court erroneously denied his motion to suppress. Here, investigators requested a search warrant for Rodriguez-Ortiz’s cell phone records and the corresponding cell tower location data for the six months during which the incidents occurred, and the warrant incorporated the lengthy affidavit detailing each incident. The totality of the circumstances described in the affidavit demonstrated a fair probability that a search of Rodriguez-Ortiz’s cell phone and cell phone records would reveal evidence of criminal activity, such as his physical location when the crimes were committed and communications he had around those times. Further, to be sufficiently particularized, warrants to search data on cell phones must include specific limitations based on (1) the type of alleged criminal activity; (2) the alleged victim’s identity; and (3) if applicable, the time frame within which the suspected crime occurred. Here, the search warrant satisfied the Fourth Amendment’s particularity requirement because (1) the warrant was limited to the six-month time period during which the alleged crimes occurred, and it incorporated the affidavit; (2) the crimes occurred over six months and concerned a domestic violence relationship, so conduct and communications surrounding the crimes were relevant to identifying Rodriguez-Ortiz as the suspect; (3) the affidavit clearly identified the victims and linked them to the specific crimes; and (4) the warrant did not allow for a disorganized search of Rodriguez-Ortiz’s phone and personal information but instead targeted a specific set of data that law enforcement used to establish Rodriguez-Ortiz as the suspect. Therefore, the affidavit sufficiently alleged probable cause and was sufficiently particular, and the trial court properly denied the motion to suppress.
Rodriguez-Ortiz also contended that the trial court erred by admitting expert testimony about firearms toolmark analysis because such analysis is unscientific and unreliable, and the firearms toolmark analysis was not helpful to the jury. And he maintained that he was entitled to a Shreck hearing on the matter. However, numerous courts have held that the principles underlying firearm identification through toolmarks analysis are sufficiently reliable, and firearms toolmark analysis is a generally accepted method in the forensic sciences community. The court of appeals recognized the criticisms of toolmark comparisons but found no abuse of discretion in the court’s admission, without a hearing, of the firearms toolmark analysis here because the expert acknowledged the method’s shortcomings and provided a qualified opinion. The trial court thus did not abuse its discretion by finding that the expert’s firearms toolmark analysis satisfied the threshold of baseline reliability under Shreck and CRE 702 and that any shortcomings went to the weight of the evidence and not its admissibility. Further, the expert’s testimony regarding the rifling process helped the jury understand how the bullet fragments from the shootings were found to have been fired from Rodriguez-Ortiz’s gun, and how the shell casings were found to have been fired from the same gun. Therefore, the trial court did not err by finding the expert’s testimony would be helpful to the jury.
Rodriguez-Ortiz also asserted that the trial court erred by admitting expert testimony about cell phone location data, maintaining that AT&T’s Network Element Location Services (NELOS) cell phone location data incorporated proprietary information that has not been evaluated or tested and thus was insufficiently reliable to be admissible. Here, (1) the expert testified that the NELOS data was not used to pinpoint Rodriguez-Ortiz’s location at a particular time, but instead was used to show his general location in relation to the crimes, and he also described the data’s limitations and said he was not trained in the methods used to compile the data; (2) the expert testified that he performed his own tests to confirm the reliability of the NELOS data; (3) the NELOS data was used in combination with traditional cell phone tower data and was thus cumulative of the cell phone tower data; and (4) the evidence does not indicate that “ghost data” was produced. And the extent to which the secret nature of AT&T’s proprietary information renders data unreliable goes to its weight, not its admissibility. Accordingly, the trial court did not err in admitting this testimony.
Rodriguez-Ortiz further contended that cumulative evidentiary errors require reversal. However, the court found no errors, so there was no cumulative error.
Rodriguez-Ortiz also argued that a Molotov cocktail is not an “explosive,” so the crime of violence sentence enhancer cannot apply. He asserted that the word “or” in CRS § 18-12-109(1)(a) is disjunctive, and “explosive” and “incendiary” have different meanings, and the Molotov cocktail he used is an incendiary device rather than an explosive under the statute. The court concluded that the legislature intended a Molotov cocktail to constitute “either an explosive or an incendiary device” under § 18-12-109(1)(a)(I). Accordingly, the trial court did not err in applying the crime of violence sentence enhancer.
Lastly, Rodriguez-Ortiz asserted that concurrent sentencing was required because his convictions on attempted extreme indifference murder and first degree arson are based on identical evidence. However, Rodriguez-Ortiz’s combined conduct of placing bars on a window and throwing the first Molotov cocktail through that window supports the attempted extreme indifference murder conviction; but throwing the second Molotov cocktail into the house 12 minutes later, which resulted in a fire, supports the first degree arson conviction. Therefore, separate evidence supports each conviction, and concurrent sentencing was not required.
The judgment was affirmed.