People v. Rodriguez-Ortiz.
2025 COA 61. No. 22CA0224. Possession, Use, or Removal of Explosives or Incendiary Devices—Fourth Amendment—Searches and Seizures—Search Warrants—Probable Cause—Particularity—Expert Testimony—Crime of Violence Sentence Enhancer—Consecutive Versus Concurrent Sentencing.
June 26, 2025
Rodriguez-Ortiz and the victim, J.R., were in a tumultuous on-again, off-again relationship for about 18 months. Rodriguez-Ortiz was linked to a series of criminal and domestic violence incidents targeted at J.R. in 2019, with each incident following shortly after arguments between them. One incident involved Molotov cocktails that ignited a fire. Through various search warrants, investigators found circumstantial and other evidence (including a cell phone, cell phone records, and a handgun) implicating Rodriguez-Ortiz. He was charged with 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. A jury convicted Rodriguez-Ortiz of all charges. The trial court merged eight counts and entered nine convictions. The court also applied a crime of violence sentence enhancer for first degree arson. Rodriguez-Ortiz received a controlling sentence of 102 years in the custody of the Department of Corrections.
On appeal, Rodriguez-Ortiz contended that the search warrant for his cell phone records lacked probable cause and particularity, so the trial court erroneously denied his motion to suppress. The search warrant requested 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 a lengthy affidavit detailing each incident. The totality of the circumstances described in the affidavit demonstrated a fair probability that searching Rodriguez-Ortiz’s cell phone and cell phone records would turn up evidence of criminal activity, including his physical location when the crimes were committed, and communications he had before, during, or after the crimes. Accordingly, the affidavit alleged sufficient probable cause for law enforcement to believe that Rodriguez-Ortiz committed a crime. Further, while the warrant was broad, the crimes occurred over six months and involved a domestic violence relationship, so the conduct and communications surrounding the crimes were relevant to identifying Rodriguez-Ortiz as the suspect. And the warrant excluded much of the data typically contained in a cell phone, such as images, videos, and contact lists. The warrant thus targeted a specific set of data that law enforcement used to establish Rodriguez-Ortiz as a suspect, so it also satisfied the Fourth Amendment’s particularity requirement.
Rodriguez-Ortiz also argued that the trial court erred by admitting expert testimony about firearms toolmark analysis and cell phone location data. He asserted that he was entitled to a hearing under People v. Shreck, 22 P.3d 68 (Colo. 2001), on both categories of testimony. He also argued that the firearms toolmark analysis was not helpful to the jury. Here, the court found that firearms toolmark analysis evidence was sufficiently reliable under CRE 702 and had been accepted by multiple courts in multiple jurisdictions. The court also found that the expert testimony would be helpful to the jury because firearms toolmarks are not commonly known. And while the court acknowledged that the evidence could be prejudicial, any prejudice did not substantially outweigh the probative value of the testimony, especially since that expert would be available for cross-examination. Therefore, the trial court did not abuse its discretion by finding that the prosecution’s expert’s firearms toolmark analysis satisfied the threshold of baseline reliability under Shreck/CRE 702 and that any shortcomings went to the weight of the evidence and not its admissibility.
Rodriguez-Ortiz further argued that the trial court erred by admitting expert testimony about cell phone location data, contending 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. He also challenged the Call Detail Records (CDR) data, arguing that the data was unreliable because AT&T records “ghost data” while the phone is turned off that does not indicate where the phone is located. He again asserted that he was entitled to a Shreck hearing. First, to the extent Rodriguez-Ortiz maintains that the secret nature of AT&T’s proprietary information renders the data unreliable, the accuracy of this data goes to its weight and not its admissibility. Here, the NELOS data was used to show Rodriguez-Ortiz’s general location in relation to the crimes rather than to pinpoint his location at a particular time. Further, the expert testified that he performed his own tests to confirm the reliability of the NELOS data. And the NELOS data was used in combination with the traditional cell phone tower data, so it was cumulative of the cell phone tower data. Lastly, it is not an abuse of discretion to admit cell site location data to determine the general geographic location of a cell phone without a Shreck hearing. As to the CDR data, no evidence supports Rodriguez-Ortiz’s assertion about ghost data. Accordingly, the trial court did not err in admitting the expert testimony.
Rodriguez-Ortiz additionally asserted that the crime of violence sentence enhancer cannot apply. He argued that that a Molotov cocktail is an incendiary device, not an explosive as required by the crime of violence statute, so insufficient evidence supports his enhanced sentence. Interpreting the relevant statutes as a whole, the court of appeals concluded that the legislature intended a Molotov cocktail to constitute “either an explosive or an incendiary device” for purposes of CRS § 18-12-109(1)(a)(I), so the court properly applied the crime of violence sentence enhancer.
Rodriguez-Ortiz also contended that his convictions of count 3 (attempted extreme indifference murder) and count 8 (first degree arson) are both based on the second Molotov cocktail that caused the fire, so concurrent sentencing was required. Here, in count 3, the prosecution charged Rodriguez-Ortiz with attempted first degree murder of R.R., J.R.’s mother, from the second Molotov cocktail, and in count 8 with first degree arson for the damage caused by the same Molotov cocktail. The court concluded that the convictions for counts 3 and 8 were based on one distinct act—Rodriguez-Ortiz throwing the second Molotov cocktail into R.R.’s room, which ignited the fire. Accordingly, concurrent sentencing is required under CRS § 18-1-408(3).
Rodriguez-Ortiz contended that the cumulative evidentiary errors require reversal. Given the lack of numerous errors, however, there was no cumulative error.
The judgment was affirmed in part and vacated in part, and the case was remanded to the trial court for correction of the mittimus to reflect concurrent sentences for Rodriguez-Ortiz’s convictions of count 3 (attempted extreme indifference murder) and count 8 (first degree arson).