DISTRICT COURT, BOULDER COUNTY,

COLORADO

Court Address: 1777 6th Street

Boulder, CO 80302

THE PEOPLE OF THE STATE OF COLORADO

v.
▲ COURT USE ONLY ▲
COLEMAN STEWART, _______________________________
Defendant.
Attorneys for Defendant: Case Number: 14CR884
Iris Eytan, #29505
Dru Nielsen, #28775
EYTAN NIELSEN LLC Division: 4
3200 Cherry Creek South Drive, Suite 720
Denver, CO 80209
Phone: (720) 440-8155
iris@eytan-nielsen.com, dru@eytan-nielsen.com

Thomas J. Bath, Jr. KS #12971

BATH & EDMONDS
7944 Santa Fe Drive
Overland Park, KS 66204
Phone: (913) 652-9800
tom@bathedmonds.com

Sean Connelly, #33600

CONNELLY LAW LLC
3200 Cherry Creek So. Dr., #720
Denver, CO 80209
Phone: (303) 302-7849
sean@sconnellylaw.com

MOTION TO DISMISS UNDER THE FOURTH AMENDMENT AND DUE PROCESS

Defendant Cole Stewart moves to dismiss the case because the Boulder Police Department

outrageously violated his constitutional rights at every stage of the case: when they

unconstitutionally entered his locked curtilage, when they shot him, and when they presented

perjured testimony to cover up their wrongdoing and falsely convict him.

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 Introduction

Defendant Cole Stewart’s life turned into a long nightmare after Boulder police violated

his constitutional rights in the wee hours of Friday, May 30, 2014. First, multiple officers

outrageously violated the Fourth Amendment—after a crazed cabbie (in his own words) possibly

“kidnapped” Cole over concern he might skip a $4.85 cab far—by hopping Cole’s six-foot privacy

fence and appearing with guns drawn in his patio curtilage. From this unlawful perch, officers

fired a volley of ten gunshots, eight of which made it into Cole’s apartment and two of which

struck Cole. Cole laid inside for two hours while a Bearcat demolished the privacy fence and the

front door until the officers dragged him outside bloodied and unconscious of what had happened.

The nightmare continued when Cole was charged with felony menacing of four officers

and then convicted after a fundamentally unfair trial—leading to a rare published reversal on

grounds of “cumulative error.” People v. Stewart, 417 P.3d 882, 2017 COA 99 (July 27, 2017).

The Court of Appeals did not even reach the issue of whether the original trial judge erred by

summarily denying a motion challenging the officers’ unconstitutional conduct but ordered that

“the trial court take a fresh look at the motion should defendant renew it.” 417 P.3d at 885 n.1,

2017 COA 99, ¶ 5 n.1.

We now know—from a forensic reconstruction and a to-scale diagram of the crime scene

never before done by either side—that outrageous government misconduct was more egregious

than even originally understood. The officers who grossly violated Cole’s Fourth Amendment

rights and shot him, but then claimed they were the victims, perjured themselves at trial to convict

Cole. As shown from the forensic evidence analyzed in a new expert report (Ex. 1), and as will

be further shown in the upcoming suppression hearing, the officers could not possibly have seen

what their trial testimony claimed. The Constitution demands that this criminal case be dismissed.

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 Statement of Facts

A. A crazed cabbie, concerned with having “kidnapped” Cole, chases Cole into his
home followed by a trailing police officer who lost sight of Cole.

The case began over a $4.85 cab fare. Cab driver Joshua Worth (who went missing before

trial) drove crazily away from Cole’s apartment after refusing to let him out: with tires screeching,

horn honking, and passenger door open, he made a hard right turn onto 13th Street and stopped

the wrong way in front of a bank ATM near the University Hill police annex. Cole ran out, and

Worth contacted Officer Frankenreiter. Tr. (02-18-15 am) at 37, 103. Worth later admitted fearing

he could be charged with a “kidnap” of Cole (whom he admitted said, “Let me out”) but an officer

“reassur[ed]” Worth he was “good.” See Ex. 2 at lines 1679-80. 3940-42, 4446-57.

Frankenreiter allowed Worth to lead a chase of Cole, with Worth yelling “police.” Ex. 2

at lines 484-491, 2289-2301. Frankenreiter, at least half a block behind, lost sight of Cole and

wrongly reported the direction in which Cole had turned. Tr. (2-18-15 am), at 54-58, 99-100.

Cole had entered behind a six-foot high privacy fence leading to his below-ground

apartment. Worth, who arrived there after Cole but before Frankenreiter, later told officers he had

to jump up to see over a locked fence. See Ex. 2 at lines 538-541. Worth stated he heard the door

close before he got to it, and when he got to the door of the fence, he turned the doorknob and the

door was locked. Id., and line 2420. Nonetheless, the later-arriving Frankenreiter testified that

he purportedly “got up on [his] tippytoes” to look over the fence, was able to communicate to Cole

that he was with the Boulder Police, and made eye contact with Cole, who purportedly said “f***

you.” Tr. (2-18-15 am), at 72-74, 111-13. That far-fetched testimony was undermined by the

interview statements of Worth, who arrived first and needed to jump to see over a locked fence

and who never reported anything about Cole having looked back to speak an expletive to the

officer. See Ex. 2 at lines 540-544, 2533-2538, 2594.

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 B. Armed police officers illegally jump a privacy fence to enter Cole’s patio.

Other Boulder officers arrived quickly after Frankenreiter. Officers Kirshbaum, Starks,

and Perea were the next three officers to arrive, while Officers Vaporis and Sweetin arrived right

behind to find them and Frankenreiter inside Cole’s fenced patio. Tr. (2-18-15 pm), at 26, 108.

Officer Frankenreiter had tried to get inside the fence but was stymied by the locked gate.

Officer Starks jumped on the fence, the gate opened, and Frankenreiter and Kirshbaum walked

through. Officer Perea had already hopped the fence, Officer Kirshbaum admitted they “snuck

onto the patio.” Tr. (2-18-15 pm) at 56.

Officers had their guns drawn when they entered the courtyard. Tr. (2-18-15 pm) at 33.

They purportedly tried unsuccessfully to contact Cole by knocking on the door. Id. at 60. Air

conditioning was running, and residents of apartments just above and next to Cole’s heard no

police knocks even though one was awake studying at the time. Tr. (2-19-15), at 156-58, 184-87,

194. An eyewitness at the fence with cab driver Worth testified the police began running toward

the apartment without audibly identifying themselves. Tr. (2-18-15 pm), at 19-20.

C. The police fired ten shots, eight went inside the apartment, and two struck Cole.

1. The officers began firing soon after they arrived.

It was undisputed from police dispatch recordings that fewer than two minutes elapsed

from the beginning the chase to shooting. Twenty-eight seconds in, Officer Frankenreiter

incorrectly told dispatch Cole had gone in a wrong direction; thirty-nine seconds after that,

Frankenreiter reported Cole was in the apartment; and forty-one seconds after that, another officer

reported shots had been fired. Tr. (2-18am), at 121-23.

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 The officers rapidly fired ten rounds. Eight bullets went inside the apartment, and two

struck Cole: one in back of his upper right arm (tricep) exiting out his forearm, and one in his

right knee cap. Tr. (2-18pm), at 65, 116.

2. The police claimed a gun was pointed through front door blinds
immediately before they fired gunshots that made the gun disappear.

Four officers (Frankenreiter, Starks, Vaporis, and Kirshbaum) claimed Cole had menaced

them by coming to the blinds covering the front door window holding what seemed to be a firearm

but turned out to be a plastic BB gun. At least one officer yelled “gun,” and three of those officers

opened fire (all but Kirshbaum, because he did not have time to shoot). Tr. (2-18am), at 82-87.

The trial testimony of these four alleged victims—of a gun supposedly being pointed at

and even tracking them right before they fired shots into the apartment that caused the gun to

disappear—was dramatic. What the original jury did not know, but what is established forensically

from the police’s own evidence, is that this dramatic testimony could not have been true.

All four of the alleged victim officers testified that they saw a gun pointed from behind the

front door window blinds. According to Frankenreiter: “I see him raise his hand up with a gun

and put it to the window of the door … [H]e stuck the gun up to … the blinds of that window …

like he was getting ready to shoot it is the best way to describe it.” Tr. (2-18-15 am), at 82.

According to Starks: “I see a gun pointed at me [through “blinds on the door”] and “I’m right in

front of the gun. … And as I moved to the right the suspect holding the gun moves the gun directly

at me. I thought I was going to get shot there. And as I’m moving to the right there, that’s where

I start to fire.” Tr. (2-18-15 pm), at 63-64. According to Vaporis: “I saw the blinds just pop open,

… and then I saw the muzzle of a gun. … I was looking straight down the barrel.” Tr. (2-18-15

pm), at 114-15. According to Kirshbaum: “All I saw was the muzzle of a gun pointed out through

the blinds. The blinds were closed.” Tr. (2-18-15 pm), at 34.

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 The officers also claimed they “immediately” fired at the person standing behind the door,

whereupon the pointed gun then “disappeared.” Frankenreiter testified, “As I see the gun,

simultaneously everybody started yelling, ‘gun,’ and gunfire erupted immediately. … I was

aiming at the person standing behind the door.” Tr. (2-18am), at 87, 88. Vaporis (who entered

the patio with his firearm drawn even though other officers did not even know was there as he had

not announced his presence) testified, “I stuck my gun out, just straight out, looking straight at the

door like that and shot three times. … And the gun disappeared out of the window. I don’t know

where it went, but I saw the blinds close again and the gun disappeared.” Tr. (2-18 pm), at 116.

Kirshbaum did not even have time to shoot: “[W]hen I was ready to shoot, … the gun that was

pointed at me had disappeared, and I didn’t have anything positive to shoot at anymore.” Tr. (2-

18 pm), at 39.

3. New forensic evidence (based on law enforcement photos, trajectories and

crime-scene measurements) proves the officers’ testimony could not
possibly be true.

We now know this dramatic police officer testimony—of a gun pointed from front door

blinds directly at four officers who then “immediately” protected themselves by firing shots that

made “the gun disappear[] out of the window”—could not have been true. Expert forensic

examination by criminalist John Wilson—who used the police’s own crime scene measurements—

proves (a) the four officers could not possibly have seen what they claimed when they claimed to

have seen it; and, even more importantly, (b) Cole could not possibly have been holding a gun at

the front door window immediately before he was shot. Ex. 1.

The police officers’ version of events could not possibly be true. Here is a to-scale diagram

showing where each officer was (and where Cole necessarily had to have been) when the first

shots were fired:

6
Position of Officers and Cole When First Shots are Fired Into Apartment.

7
 Neither Frankenreiter nor Starks possibly could have seen what they testified to when they

fired two and five shots respectively. As forensic reconstruction shows, “There is no view of the

entry door possible by Officers Frankenreiter or Starks at the positions from which they

fired through the living room window.” Ex. 1at 38.

Likewise, the testimony of Vaporis (the first officer to fire shots into the apartment) “is not

possible based upon the trajectories of the two shots through the door window. Coleman would

have necessarily been struck by these shots with at least one shot to the torso.” Id. When Vaporis

fired, Cole was at least four feet from that door with his back to it. Id.

Contrary to these officers’ testimony, Cole could not possibly have been at the front door

window, where they all said he was, when they fired their weapons. Under the undisputed

evidence, “It is established that Officer Vaporis fired the shot that struck Coleman in the back of

the right arm.” Id. Accordingly, “To avoid also being hit by the other shot Officer Vaporis fired

into the apartment, Coleman must be at least at the dining area doorway when that shot is fired.”

Id. Thus, “Coleman cannot be at the entry door with a gun to the middle of the window when

the first shot is fired by Officer Vaporis.” Id.

Cole was even further away from the front door when struck a second time (in his knee)

by Starks’s shot. Again, as “well established” by shot trajectories and other forensic evidence,

“Coleman is in the dining area when shot in the right knee by Officer Starks.” Id. at 39. This

shot to the knee was sustained when Cole was six feet from the front door, and when he was in an

entirely different room in the apartment.

Finally, as detailed in the Wilson Report, it is forensically “impossible” for Cole to have

been holding the gun near the front door when officers fired shots. Instead, the “BB gun is on the

floor when the first shot is fired by Officer Vaporis.” Id.

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 Argument

I. The Fourth Amendment violations require suppression and therefore dismissal.

Indisputably, when armed officers jumped a six-foot privacy fence and trespassed on the

patio right outside the apartment, they invaded reasonable expectations of privacy protected by the

Fourth Amendment. The Supreme Court recently reiterated, “At the Amendment's very core

stands the right of a man to retreat into his own home and there be free from unreasonable

governmental intrusion.” Collins v. Virginia, 138 S.Ct. 1663, 1670 (2018) (internal quotations

omitted). It explained that to “give full practical effect to that right, the Court considers curtilage

—the area immediately surrounding and associated with the home—to be part of the home itself

for Fourth Amendment purposes.” Id. Accordingly, it was presumptively unreasonable for the

officers to have made their warrantless entries onto this fence-protected “curtilage.” People v.

Brunsting, 307 P.3d 1073, 1078 (Colo. 2013).

There was no Fourth Amendment justification for the officers’ warrantless entry. The only

possible one—“hot pursuit” to arrest a fleeing criminal, Welsh v. Wisconsin, 466 U.S. 740, 750

(1984) (citing United States v. Santana, 427 U.S. 38 (1976))—cannot now be raised by the

prosecution and would fail regardless. The prosecution’s arguments in the original trial preclude

any attempt now to justify the entry as one made in hot pursuit of an arrestee. Describing the

chasing officer’s intentions, the prosecutor’s opening statement told jurors Officer Frankenreiter

just wanted to get Cole “to pay the fare … [and then] be done. Not even necessarily write him a

ticket.” Tr. (2-18am), at 18. Then, in closing arguments, the prosecution told jurors that the

officers were “just try[ing] to make contact with this kid, [to] get him to pay his cab fare.” Tr. (2-

20), at 37.

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 Even had the officers been seeking to effectuate an arrest, their warrantless entry could not

be justified under a hot pursuit theory. There was no evidence that Cole, whom the crazed cabbie

feared had been kidnapped, had actually skipped a proper fare but in any event the only possible

offense was a “petty” one. See C.R.S. § 18-4-401(2)(b) (theft of less than fifty dollars). And there

was no exigency, such as risk of danger or destruction of evidence.

Determining the reasonableness of a warrantless entry based on purportedly exigent

circumstances depends on “the totality of the circumstances, although the precise evaluation of

factors is often tailored to the particular emergency at issue.” People v. Wehmas, 246 P.3d 642,

648 (Colo. 2010). The relevant factors, applied here, establish the blatant unreasonableness of the

Boulder officers’ entry.

The first factor is whether “a grave offense is involved, particularly a crime of violence”—

a factor “elevated” in importance after Welsh decision. Id. at 647-48. The Court has left open the

question, on which “federal and state courts nationwide are sharply divided,” whether “an officer

with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant

while in hot pursuit of that suspect.” Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (per curiam). It

explained Welsh as having “held not that warrantless entry to arrest a misdemeanant is never

justified, but only that such entry should be rare.” Id. at 6.

Here, this first factor cuts strongly against the People. The only possible offense here was

not even a misdemeanor, much less a felony, but a petty one. In evaluating warrantless entries to

make arrests, our supreme court has distinguished petty from other criminal offenses. Mendez v.

People, 986 P.2d 275, 283 (Colo. 1999) (noting that marijuana possession laws then were

classified “as either a petty offense, a misdemeanor, or a felony,” so gravity of offense was greater

than in Welsh, as it might “lead to a misdemeanor or felony possession charge”).

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 The remaining Wehmas factors confirm the unreasonableness. Cole was not “reasonably

believed to be armed.” 246 P.3d at 648 (factor two). Assuming there was probable cause and

reason to believe Cole had entered the premises (factors three and four), there was no “likelihood”

Cole would “escape if not swiftly apprehended.” Id. (factor five). Finally, the entry was not “made

peaceably,” id. (factor six), as armed officers climbed a six-foot high privacy fence. That “the

warrantless entry [was] made at night” is an “additional factor” undercutting any claim of

reasonableness. Id.

The closest case to ours is Mascorro v. Billings, 656 F.3d 1198 (10th Cir. 2011). There,

the officers had probable cause to arrest a fleeing juvenile for a misdemeanor traffic offense and

arguably for eluding a police officer. Id. at 1205 & n.9. The Tenth Circuit held that “a minor

offense does not permit warrantless entry into the home except in the most extraordinary of

circumstances.” Id. at 1208 (citing Welsh). No “exigent circumstances” could justify the

warrantless entry: the “risk of flight or escape was somewhere between low and nonexistent,”

“there was no evidence which could have potentially been destroyed and there were no officer or

public safety concerns.” Id. at 1207.

The People’s appellate argument against suppression on appeal was that Fourth

Amendment violations cannot justify unlawful force and “[b]ased on the jury’s menacing verdicts,

there is no dispute that Stewart unlawfully threatened the officers.” People’s Answer Br. 19 (citing

People v. Doke, 171 P.3d 237 (Colo. 2007)). But the jury verdict has been overturned, and forensic

evidence now proves Cole could not have pointed a (BB) gun as the officers described.

The Fourth Amendment thus requires suppressing the police officers’ testimony of what

they purportedly did and witnessed after their blatant violations of the Fourth Amendment. This

leaves nothing to this criminal case, so it should be dismissed.

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II. The outrageous government misconduct requires dismissal.

As our Supreme Court explained, “Colorado has specifically recognized the due-process

claim of outrageous government conduct.” Effland v. People, 240 P.3d 868, 879 (Colo. 2010).

This constitutional defense “provides a mechanism by which this court may curtail overzealous

police activity that we find shocking to the conscience.” People v. Sprouse, 983 P.2d 771, 775 n.3

(Colo. 1999) (citing People v. Vandiver, 552 P.2d 6, 9 (Colo. 1976), as “recognizing that a defense

of outrageous governmental conduct exists when conduct by officers violates fundamental

standards of due process”). Notably, an “asserted denial of due process must be tested by an

appraisal of the totality of facts in a given case.” People in Interest of M.N., 761 P.2d 1124, 1129

(Colo. 1988) (emphasis added; internal quotations omitted).

Exercise “of a court’s supervisory powers in dismissing a criminal case may be proper if

the government’s conduct has violated fundamental fairness and is shocking to the universal sense

of justice.” People v. Auld, 815 P.2d 956, 957 (Colo. App. 1991). Auld affirmed dismissal of a

criminal case where the government had “perpetrated a fraud upon the court.” Id. at 958.

Here, the outrage began when armed officers blatantly violated the Fourth Amendment by

jumping a six-foot privacy fence and effecting an armed occupation of Cole’s patio, all in response

to what at worst was a $5 cab fare dispute. But for that illegal entry, the officers never would have

been in a position to shoot Cole, who after being chased by a crazed cabbie had exercised his right

“to retreat into his own home and there be free from unreasonable governmental intrusion.”

Collins v. Virginia, 138 S.Ct. at 1670. Then, after having shot Cole, the officers tried to turn the

tables by falsely claiming that they rather than Cole were the victims.

As will be established further at the upcoming hearing, the officers’ conduct is shocking

and fundamentally unfair. The Court should dismiss the prosecution.

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III. The perjured testimony violated due process and requires dismissal.

Under the Supreme Court’s Napue decision, it is “fundamental that prosecutors may not

present or allow perjured testimony.” People v. Medina, 260 P.3d 42, 48 (Colo. App. 2010) (citing

United States v. Bagley, 473 U.S. 667, 679 n. 8 (1985), which discussed cases including Napue v.

Illinois, 360 U.S. 264 (1959)). The elements of a Napue claim are “first, that the prosecution's

case included perjured testimony; second, that the prosecution knew or should have known of the

perjury; and third, that the perjury was material.” Id.

As our Supreme Court explained, after discussing Napue, the “duty of the district attorney

extends not only to marshalling and presenting evidence to obtain a conviction, but also to

protecting the court and the accused from having a conviction result from misleading evidence or

perjured testimony.” DeLuzio v. People, 494 P.2d 589, 593 (Colo. 1972). It has favorably cited a

case law that “held that the prosecution is charged with the knowledge of its agents, including the

police.” Id. at 592 (citations omitted).

While Napue claims are “heavily fact dependent” and “usually must be made on a collateral

attack,” Medina, 260 P.3d at 48 (internal quotations omitted), this case provides an unusual

opportunity to resolve the issue prior to retrial. This claim must be resolved because “[f]alse

testimony, when knowingly used, or when used recklessly or without regard or inquiry as to the

truth of the facts asserted, is a due process violation that requires reversal.” People v. Clark, 370

P.3d 197, 221 (Colo. App. 2015).

The Wilson Report finds, and testimony at the upcoming motions hearing will establish,

that events could not possibly have occurred as the officers testified at the original trial. The

officers cannot be allowed to perjure themselves at a new trial in an effort to excuse their own

misconduct and frame Cole.

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 Conclusion

From beginning to end—from allowing a crazed cabbie to chase Cole into his apartment

over a less than $5 dispute, from then illegally jumping a fence to trespass on Cole’s curtilage,

from then shooting Cole and perjuring themselves to claim that Cole victimized them rather than

vice versa—this case, which resulted in an extraordinary appellate reversal, has been plagued by

constitutional violations. This Court should remedy these constitutional violations and end this

travesty by dismissing all criminal charges against Cole.

Respectfully submitted,

s/ Sean Connelly
Sean Connelly, #33600

CERTIFICATE OF SERVICE

I hereby certify that on October 5, 2018, a true and correct copy of the foregoing was served
via Colorado Courts E-Filing to the following:

Adrian Van Nice

Office of the District Attorney
1777 6th Street
Boulder, CO 80306
Phone: 303-441-3700
Fax: 303-441-4703

s/Sean Connelly
Sean Connelly, #33600

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