Colo. R. App. P. 4.1

As amended through Rule Change 2024(18), effective October 2, 2024

Rule 4.1 - Interlocutory Appeals in Criminal Cases

(a)Grounds. The state may file an interlocutory appeal in the supreme court from a district court order granting a defendant's pretrial motion under Crim. P. 41(e) and (g) and Crim. P. 41.1(i) for return of property and to suppress evidence or granting a motion to suppress an extrajudicial confession or admission, provided that the state certifies to the judge who issued the order being appealed and to the supreme court that the appeal is not taken for purposes of delay and that the evidence is a substantial part of the proof of the charge pending against the defendant.

(b)Time for Filing. An interlocutory appeal must be filed within 14 days after entry of the order being appealed. Filing a motion for a new trial or rehearing in the district court is not required.

(c) How Filed. The state must file the notice of appeal with the supreme court and must serve an advisory copy on the district court within the time allowed under subsection (b) of this rule.

(d)Record. The record for an interlocutory appeal must be filed in accordance with C.A.R. 10 except it must be filed within 14 days after the notice of appeal is filed.

(e)Representation of the State. The district attorney's office will represent the state and will prepare all briefs. Any responsive briefs or pleadings must be served on that office.

(f)Briefs. Within 14 days after the record is filed in the supreme court, the state must file its opening brief, and within 14 days thereafter, the appellee must file the answer brief. The state must file any reply brief within 7 days after service of the answer brief.

(g)Oral Argument. Oral argument is not permitted unless ordered by the court.

(h)Disposition by Court. The supreme court will issue its decision by written opinion or order disposing of the interlocutory appeal. The supreme court clerk will serve the opinion or order on the district court judge and the parties. Petitions for rehearing are not permitted. Orders issued without an opinion will not be designated for official publication by the court and will remain unpublished. Unpublished orders may not be cited as precedent.

(i)Time. The court may extend the time limits established in this rule for good cause shown only before the time limit expires.

C.A.R. 4.1

Source: (b), (d), and (f) amended and adopted December 14, 2011, effective 1/1/2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1(b); entire rule amended and effective 6/23/2014; (d) amended and adopted October 26, 2017, Amended November 1, 2017, effective1/1/2018; amended and adopted by the Court, En Banc, February 24, 2022, effective 7/1/2022; amended and adopted by the Court, En Banc, 5/16/2024, effective immediately.

ANNOTATION Rule not violative of equal protection. The provisions of this rule permitting only the prosecution to enter an interlocutory appeal are not violative of equal protection, since the prosecution is precluded from placing the defendant in double jeopardy after the final verdict has been reached, and its only meaningful avenue of appeal must be found in a prejudgment proceeding. People v. Traubert, 199 Colo. 322, 608 P.2d 342 (1980). This rule requires filing of an interlocutory appeal within ten days after entry of an appealable order. However, where there was no indication that entry of a motion to reconsider was an attempt to circumvent the appeals process or delay the proceedings, the prosecution complied with this rule by filing an appeal within ten days after the modified ruling. People v. Melton, 910 P.2d 672 (Colo. 1996). In order to toll the time for filing an interlocutory appeal, a motion to reconsider a trial court order of suppression must be filed within ten days of the date of the order of suppression. People v. Powers, 47 P.3d 686 (Colo. 2002). This rule provides an appeal for the prosecution rather than defendant, therefore, the court does not have jurisdiction to address any issues resolved by the trial court in favor of the prosecution. People v. Gothard, 185 P.3d 180 (Colo. 2008). Issues raised by defendant are not normally included. An interlocutary appeal by the people under this rule does not normally include issues raised by the defendant. People v. Barton, 673 P.2d 1005 (Colo. 1984). The supreme court has no jurisdiction to address a ruling adverse to the defendant in an interlocutory appeal under this rule. People v. Oates, 698 P.2d 811 (Colo. 1985); People v. Griffin, 727 P.2d 55 (Colo. 1986); People v. Weston, 869 P.2d 1293 (Colo. 1994). This rule does not interfere with defendant's rights to appeal his conviction after a verdict has been reached. People v. Traubert, 199 Colo. 322, 608 P.2d 342 (1980). This rule is designed as procedural device to facilitate review, and does not represent a constitutional right on the part of either the defendant or the state. People v. Renfrow, 172 Colo. 399, 473 P.2d 957 (1970). Reduction of charge. In reducing a charge, the court in effect dismisses the greater charge and substitutes a lesser one. Through such action, the court does not dismiss the case in its entirety; therefore, the appeal of the case is governed by the procedures set forth in C.A.R. 4(b) (3) and in this rule, not C.A.R. 4(b)(2), and must be filed within 10 days of the date of the order. People v. Severin, 122 P.3d 1073 (Colo. App. 2005). Interlocutory appeals may not be employed to obtained pretrial review of issues not covered by this rule. People v. Dailey, 639 P.2d 1068 (Colo. 1982); People v. Cummings, 706 P.2d 766 (Colo. 1985); People v. Weston, 869 P.2d 1293 (Colo. 1994). Interlocutory appeal rule may not be employed to "piggyback" issues not embraced by that rule for pretrial review. People v. Morrison, 196 Colo. 319, 583 P.2d 924 (1978). Where a suppression order is based on conclusions that statements were the product of an illegal arrest and of a custodial interrogation not preceded by Miranda warnings, a district court must make sufficient findings of fact and conclusions of law to identify each of the statements at issue and to permit appellate review of its rulings with regard to whether the statements must be suppressed. People v. Haurey, 859 P.2d 889 (Colo. 1993). Appellate court has the responsibility of ascertaining whether the trial court's legal conclusions are supported by sufficient evidence and whether the trial court applied the correct legal standard. People v. Brazzel, 18 P.3d 1285 (Colo. 2001). Trial court's findings of fact are entitled to deference by a reviewing court, but when the absence of factual findings regarding key contested issues hinders appellate review, or when unresolved evidentiary conflicts exist with regard to material facts, case must be remanded to the trial court for further fact-finding. People v. Brazzel, 18 P.3d 1285 (Colo. 2001). Review of suppression hearings. This rule is designed to review rulings of the trial court made upon suppression hearings under Crim. P. 41(e) and Crim. P. 41(g). People v. Thornburg, 173 Colo. 230, 477 P.2d 372 (1970); People v. Cobbin, 692 P.2d 1069 (Colo. 1984). Interlocutory appeals are limited to motions to suppress, and it is contemplated that the motion be disposed of prior to trial. People v. Voss, 191 Colo. 338, 552 P.2d 1012 (1976). And only from adverse rulings. Interlocutory appeals under this rule may only be appealed from adverse rulings on Crim. P. 41 motion. People v. Fidler, 175 Colo. 90, 485 P.2d 725 (1971). See People v. McNulty, 173 Colo. 491, 480 P.2d 560 (1971). Unless an adverse trial court ruling is within the scope of Crim. P. 41(e) and Crim. P. 41(g), it is not within an appellate court's jurisdiction on interlocutory appeal under this rule. People v. Patterson, 175 Colo. 19, 485 P.2d 494 (1971). See People v. Thornburg, 173 Colo. 230, 477 P.2d 372 (1970); People v. Braunthal, 31 P.3d 167 (Colo. 2001). Only three circumstances for interlocutory appeal of a suppression order. Review is proper where evidence was suppressed due to: (1) An unlawful search and seizure; (2) an involuntary confession or admission; or (3) an improperly ordered or insufficiently supported, nontestimonial identification. People v. Braunthal, 31 P.3d 167 (Colo. 2001). Prosecution's brief and the record do not support certification that defendant's statements form a substantial part of the evidence where defendant's statements were made during transport as a part of a non-material, benign interchange meant to solace the defendant and where the officer did not immediately prepare any notes or reports documenting the statements. People v. MacCallum, 925 P.2d 758 (Colo. 1996). Statements suppressed by trial court held to constitute substantial part of proof of charges pending against defendant; therefore, prosecution was entitled to bring interlocutory appeal. People v. Mendoza-Rodriguez, 790 P.2d 810 (Colo. 1990). Suppression order based upon sanctions was not reviewable under this rule. However, the court could consider the issue on an interlocutory appeal under C.A.R. 21. People v. Casias, 59 P.3d 853 (Colo. 2002). Supreme court will not expand jurisdiction. The supreme court will not stray beyond the scope of its interlocutory appeal jurisdiction set forth in this rule and will not consider rulings issued in a preliminary hearing held in conjunction with a motion to suppress. People v. Singleton, 174 Colo. 138,482 P.2d 978 (1971). If the evidence or statement suppressed is not a "substantial part" of the proof which may be offered against the defendant, the supreme court will not address the substantive issues raised by the interlocutory appeal. People v. Harding, 671 P.2d 975 (Colo. App. 1983). Where review of the record provided on appeal convinced court that the defendant's statement, suppressed under Crim. P. 41(g) did not form a "substantial part" of the proof to be offered against the defendant, the court refused to address the substantive issues raised by the prosecution. People v. Valdez, 621 P.2d 332 (Colo. 1981). An order granting a motion to sever a count for separate trial is not within scope of rule. People v. Wallace, 724 P.2d 670 (Colo. 1986). Proceeding is interlocutory in nature if it intervenes between the commencement and the final decision of a case. People v. Medina, 40 Colo. App. 490, 583 P.2d 293 (1978). An appeal could not be interlocutory where it was from a final order after trial. People v. Voss, 191 Colo. 338, 552 P.2d 1012 (1976). Ruling granting a defendant's pretrial motion to suppress is subject to interlocutory appeal under this rule. People v. Nunez, 658 P.2d 879 (Colo. 1983). Lineup identification is question for trial, and not interlocutory appeal. The question of whether eyewitness identification evidence was obtained from a lineup that was overly suggestive is a matter to be resolved at trial; it is not within the ambit of the interlocutory appeal rule since it is not a proper subject of a pretrial suppression hearing. People v. Thornburg, 173 Colo. 230, 477 P.2d 372 (1970). Order suppressing statement which prosecution sought to use only for impeachment purposes if defendant elected to testify is not subject to interlocutory appeal because it was not a substantial part of the prosecution's proof. People v. Garner, 736 P.2d 413 (Colo. 1987). But suppression order was properly the subject of an interlocutory appeal under this rule where the suppressed statements concerned a murder conspiracy, jointly fabricated alibi, and videotaped confession that constituted a substantial part of the proof of the pending charges. People v. Matheny, 46 P.3d 453 (Colo. 2002). Court exercised its discretion to review district court's full pretrial order even though order did not "neatly" fall within the scope of this rule. People v. Luna-Solis, 2013 CO 21, 298 P.3d 927. A ruling limiting the scope of cross-examination of a witness in a criminal case is not appealable under this rule. People v. Haurey, 859 P.2d 889 (Colo. 1993). Record did not support the prosecution's certification that statements were a substantial part of the evidence. People v. Mounts, 801 P.2d 1199 (Colo. 1990). Interlocutory appeal unavailable in delinquency proceedings. An interlocutory appeal is not available to either the state or the respondent in a delinquency proceeding under the Colorado children's code. People in Interest of P.L.V. v. P.L.V., 172 Colo. 269, 472 P.2d 127 (1970); People in Interest of G.D.K. v. G.D.K., 30 Colo. App. 54, 491 P.2d 81 (1971). See People in Interest of P.L.V., 176 Colo. 342, 490 P.2d 685 (1971). Findings on second motion held sufficient to support ruling in earlier case. Where in one case the district judge, in denying the motion to suppress, did not make sufficient findings, but in another case the findings upon denial of the motion to suppress were amply sufficient, since the findings in the second case were by the same court, although by a different judge, since the rulings by both judges were the same, and since the parties and the search - and in substantial effect the testimony - are identical, the supreme court is justified in considering the findings in the second case as governing the first case. It would be useless to remand the first case for findings. People v. Ramey, 174 Colo. 250,483 P.2d 374 (1971). Applied in People v. McGahey, 179 Colo. 401, 500 P.2d 977 (1972); People v. District Court, 196 Colo. 401, 586 P.2d 31 (1978); People v. Lott, 197 Colo. 78, 589 P.2d 945 (1979); People v. Hillyard, 197 Colo. 83, 589 P.2d 939 (1979); People in Interest of M.R.J., 633 P.2d 474 (Colo. 1981); People v. Ferguson, 653 P.2d 725 (Colo. 1982); People v. Lindsey, 660 P.2d 502 (Colo. 1983); People v. Cobbin, 692 P.2d 1069 (Colo. 1984); People v. Lingo, 806 P.2d 949 (Colo. 1991); People v. Washington, 865 P.2d 145 (Colo. 1994); People v. Reyes, 956 P.2d 1254 (Colo. 1998); People v. Legler, 969 P.2d 691 (Colo. 1998); People v. Holmes, 981 P.2d 168 (Colo. 1999); People v. Winpigler, 8 P.3d 439 (Colo. 1999); People v. Crippen, 223 P.3d 114 (Colo. 2010).