author: MANNHEIMER, Judge.

text:
    Phillip Leon HUTCHINGS, Jr., Appellant, v. STATE of Alaska, Appellee.
    No. A-7946.
    Court of Appeals of Alaska.
    Sept. 6, 2002.
    Rehearing Denied Sept. 20, 2002.

      Christine S. Schleuss, Anchorage, for Appellant.
    John A. Seukanee, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Phillip Leon Hutchings, Jr., and his brother, Jason Hutchings, were jointly charged with assaulting two police officers in the parking lot of the Riverside House in Soldot-na. The two brothers appeared for trial represented by the same lawyer, Jody P. Brion.

Just before jury selection began, the prosecuting attorney urged the trial judge to ask the two defendants whether they knowingly and intelligently waived their right to be represented by separate attorneys, and whether they understood "that Mr. Brion [would be] representing both of them, although they might have diverging interests as far as any defense might be concerned". The judge began to speak, but Mr. Brion interrupted him:

Defense Attorney: Your Honor, I'll warrant that I have discussed potential conflict and diverging interests with both clients, and both clients are ... informed and have consented to proceed with me representing ... both of them in one trial. That was really one of the first things we spoke about.
The Court Okay. And Jason [Hutch-ings], you have agreed that Mr. Brion will represent you?
Jason Hutchings: Yes, Your Honor, I have.
The Court: And Phillip [Hutchings], you have agreed that Mr. Brion will represent you, even though he is representing Jason also?
Phillip Hutchings: Yes, sir.

The discussion then turned to other matters. The trial proceeded, and Phillip Hutchings was ultimately convicted of third-degree assault and third-degree criminal mischief.

The primary issue in this appeal is whether the trial judge's cursory inquiry and Hutchings's two-word answer were legally sufficient to demonstrate that Hutchings knowingly waived his right to a separate attorney. For the reasons explained here, we agree with Hutchings that this record does not demonstrate a knowing waiver of independent counsel.

We therefore remand Hutchings's case to the superior court for a determination of whether Hutchings in fact understood the possibility that his interests would diverge from his brother's interests and, if so, whether he nevertheless consented to the joint representation. If the answer to either of these questions is "no", then the superior court must decide whether Brion's representation of Hutchings was adversely affected by an actual conflict of interest between the brothers. The State bears the burden of proving the absence of prejudicial conflict beyond a reasonable doubt.

Hutchings raises one other issue on appeal: whether the State's evidence was sufficient to support his conviction for third-degree assault. We agree with Hutchings that the evidence was not sufficient, and we therefore direct the superior court to amend the judgement to reflect a conviction for the lesser included offense of fourth-degree assault.

When two or more defendants are represented by the same attorney, Moreau v. State requires a trial judge to ascertain that each defendant has knowingly consented to the joint representation despite the potential conflicts that might arise between the defendants. Hutchings's trial judge failed to comply with Moreau, and awe must therefore remand this case to the superior court for a determination of whether Hutchings was prejudiced by the joint representation.

Criminal defendants may validly choose to be represented by the same attorney. As the United States Supreme Court noted in Holloway v. Arkansas, "[a] common defense often gives strength against a common attack". In the present case, for instance, both Hutchings brothers testified that they were leaving the Riverside House peacefully when they were set upon by the police officers. According to both brothers, neither of them resisted-even after they were assaulted by the police.

But joint representation also holds potential dangers for defendants. The defendants may have differing attitudes toward, or different incentives for, reaching a plea agreement with the government. The interests of the defendants may collide regarding the strategy to be adopted in cross-examining government witnesses or in presenting witnesses during the defense case-for evidence that reflects favorably on one defendant may directly or indirectly east other defendants in a less favorable light.

(For a more thorough discussion of these potential dangers, see the commentary to the American Bar Association's Standards for Criminal Justice The Defense Function (3rd edition, 1998), Standard 4-8.5, "Conflict of Interest"-especially the section of the commentary entitled "Representation of Co-defendants".)

In Moreau v. State, 588 P.2d 275 (Alaska 1978), the Alaska Supreme Court adopted a procedure to ensure that criminal defendants are aware of the pitfalls of joint representation. The court declared that trial judges should

address each defendant personally and forthrightly advise [them] of the potential dangers of [being represented] by counsel with a conflict of interest. [Defendants] must be at liberty to question the court as to the nature and consequences of [their choice of] representation.... [Generally], the court should seek to elicit a narrative response from each defendant that [they have] been advised of [their] right to effective representation, that [they] understand[ ] the details of {[their] attorney's possible conflict of interest and the potential perils of such a conflict, that [they have] discussed the matter with [their] attorney or ... with outside counsel, and that [they] voluntarily waive[ ] [their right to separate counsel].

Id. at 284 n. 27

The supreme court cautioned that even though the requisite waiver might sometimes be shown through a defendant's "[ImJere assent in response to a series of questions from the bench", it is generally preferable "to have each defendant personally articulate in detail [their] intent to forego this significant constitutional protection".

The State acknowledges that Judge Brown did not conduct this kind of inquiry in Hutchings's case. Nevertheless, the State argues that the abbreviated inquiry quoted above was sufficient to satisfy Moreau. The State points out that, in Moreau itself, the trial judge did not personally address the two defendants; instead, the judge relied on the statement of the defendants' shared attorney that the defendants had expressed the desire to be jointly represented.

It is true that the supreme court upheld the waiver in Moreau even though neither defendant was personally addressed by the court or said anything on the record. But Moreau adopted a stiffer standard for future cases. The supreme court declared that its new procedure-the one outlined above-"[would] be applied to Alaska cases tried after the mandate is issued in the instant appeal". In other words, the inquiry conducted by the trial judge in Moreau would not pass muster now. We thus conclude that the inquiry in Hutchings's case does not meet the Moreau standard.

Moreau holds that, because the inquiry was insufficient, it is now the State's burden "to prove beyond a reasonable doubt that a prejudicial conflict did not exist" between the two Hutchings brothers. Nevertheless, the State asks us to make Hutchings shoulder the burden of proving prejudice.

The State points out that, under federal constitutional law, when a defendant does not raise their attorney's conflict of interest until after trial, it is the defendant's burden to show that a conflict actually existed and that it adversely affected the attorney's performance. The State acknowledges that in State v. Celikoski, 866 P.2d 189, 141-42 (Alaska App.1994), we held that the Moreau rule is based on Alaska law and that it is purposely more protective of defendants' rights than corresponding federal law. However, the State urges us to reconsider Celiko-ski and then supplant the Moreau rule with the federal rule-in other words, make Hutchings prove that an active conflict existed and that it adversely affected his attorney's performance.

We believe that it would be inappropriate for us to revise the Moreau rule-a rule formulated by our supreme court-under the guise of reconsidering Celikoski. If the State believes that the post-Moreau development of federal law justifies a re-examination of the burden of proof announced in Moreau, the State should pursue this matter with the supreme court.

We therefore will hold the State to the burden of proving that no prejudicial conflict existed. However, it is impossible to determine this question on the existing record.

An attorney's conflicting loyalty to another client is a species of ineffective assistance of counsel. And, as we have noted in previous decisions, a defendant's claim of ineffective assistance of counsel can rarely be resolved based solely on the record of the proceedings in which the defendant allegedly received the ineffective assistance. As we explained in Sharp v. State, "an attorney's trial decisions-including which potential defenses to pursue, whether to object to the evidence offered by the government, how to cross-examine government witnesses, and whether and how to present a defense case-generally rest on considerations of strategy and trial tactics that are not directly addressed in open court." Thus, when a defendant raises a claim of ineffective assistance of counsel, we almost always require that claim to be litigated first in the trial court (generally, through a petition for post-conviction relief) before we address it on appeal.

When a Moreau violation occurs, the courts must determine whether a "prejudicial conflict" existed between the co-defendants. As we discussed earlier in this opinion, the potential conflicts between co-defendants generally arise from considerations of trial strategy and from evaluations of the evidence (both the evidence to be presented by the government and the evidence available to the defense). These matters are rarely discussed openly on the record during the defendants' trial. Thus, when a Moreau violation occurs and a court is obliged to determine whether a potential conflict actually flowered into an active conflict that adversely affected the attorney's representation of one or more co-defendants, a court must conduct the type of inquiry that occurs during the litigation of a petition for post-conviction relief-except that, under Moreau, the State bears the burden of proof (the burden of proving beyond a reasonable doubt that the defendant's representation was not prejudicially affected by an active conflict of interest).

Here, when the prosecutor raised the issue of a potential conflict of interest, the defense attorney broke into the conversation to assure the trial judge that he had "discussed potential conflict and diverging interests with both [of his] clients", and that the two brothers had given their informed consent to the joint representation. To determine whether Phillip Hutchings was prejudiced by the joint representation, the superior court must therefore investigate these attorney-client conversations.

On this point, we note the Minnesota Supreme Court's decision in Mercer v. State, 290 N.W.2d 623 (Minn.1980). In Mercer, the trial judge failed to conduct the inquiry mandated by State v. Olsen (the Minnesota forerunner of our supreme court's decision in Moreau), and so the trial judge was later obliged to hold a hearing to investigate potential conflicts of interest between the co-defendants. At this hearing, the trial judge found that the defendant was not entitled to relief. On appeal, the Minnesota Supreme Court upheld this ruling, finding it "significant that the petitioner's attorney warned petitioner of the potential of a conflict but [the] petitioner was not concerned about this and ..., indeed, ... suggested the joint representation".

We therefore remand Hutchings's case to the superior court so that the parties can litigate the question of whether Hutchings received effective assistance of counsel despite potential conflicts of interest between Hutchings and his brother." The superior court should (1) investigate the possible conflicts of interest between the brothers, 2) determine whether Phillip Hutchings was apprised of these possible conflicts when he consented to the joint representation, and (8) determine whether any of the potential conflicts of interest between the brothers actually ripened into an active conflict that adversely affected Brion's representation of Phillip Hutchings.

Because Hutchings bas raised the issue of conflict of interest, he has waived his attorney-client privilege to the extent necessary to resolve this claim. See Alaska Evidence Rule 503(d)(8), which states that the attorney-client privilege does not apply to "[any] communication relevant to an issue of breach of duty by the lawyer to his client". Thus, the State can require the testimony of both Hutchings and Brion.

(It is also possible that Phillip Hutchings's waiver encompasses his brother's statements to their shared attorney. We do not decide this issue.)

The State's evidence is mot sufficient to support a finding that Hutchings committed assault with a dangerous instrument; we therefore reverse his conviction for third-degree assault and reduce the conviction to fourth-degree assault.

Hutchings raises one other point on appeal, a point that we can resolve without waiting for the superior court's findings on remand. The issue is the sufficiency of the evidence to support Hutchings's conviction for third-degree assault.

Hutchings was charged with this offense for kicking one of the police officers. According to the State's evidence, Officers Shayne LaCroix and Gisele Webster were attempting to control Hutchings's brother Jason in the parking lot. As the officers confronted Jason, Hutchings approached La-Croix from behind, with his fist drawn back as if to strike the officer. LaCroix turned and blocked the attack, then began to wrestle with Hutchings. The two men fell to the ground. Hutchings lay on the ground, with LaCroix in a half-crouch over him. Suddenly, Hutchings straightened one of his legs and kicked LaCroix in the back of the head, either onee or twice.

Hutchings was wearing heavy boots, and the blow was delivered forcefully enough that a fellow officer heard the impact. The victim of the assault, Officer LaCroix, felt a sharp pain in his head and "saw stars". Other officers described LaCroix as "staggering around", dazed and unsteady on his feet. The blow left LaCroix feeling nauseous, and afterwards he had a headache and a large lump on the back of his head.

When LaCroix went to the hospital to be examined, the emergency room doctor concluded that LaCroix had probably suffered a mild concussion but had not suffered brain injury. He therefore released LaCroix from medical care. The doctor verified that a person could die from a blow to the head if it was administered forcefully enough, but he did not assert that LaCroix had been in danger of death or serious physical injury from Hutchings's kick.

Hutchings was convicted of third-degree assault under AS 11.41.220(a)(1)(B)-recklessly causing physical injury to another person by means of a dangerous instrument. The State's evidence was clearly sufficient to support a finding that Hutchings recklessly caused physical injury to LaCroix. The question is whether the State's evidence is sufficient to support a finding that Huteh-ings's boot-shod foot constituted a "dangerous instrument".

'The term "dangerous instrument" is defined in AS 11.81.900(b)(14). The pertinent portion of this definition states that a dangerous instrument is "anything that, under the cireumstances in which it is used, ... is capable of causing death or serious physical injury".

We have previously held that if the assailant's attack causes death or serious physical injury, this will be prima facie evidence that a dangerous instrument was used. But that was not the case here. Thus, the State was obliged to present other evidence to show that Hutchings used his shod foot in a manner that created an "actual and substantial" risk of death or serious physical injury to LaCroix.

As the emergency room doctor noted, a blow to the head is "capable" of killing someone if the blow is administered forcefully enough. But that is not the question posed by the statute. Rather, the question is whether, under the particular cireumstances presented here, Hutchings used his foot in a manner that created a substantial risk of serious physical injury. As this Court noted in Konrad v. State, "It is the actual use of the instrument ... that must be considered, not abstract possibilities for use of the instrument in hypothetical cases.

In Willett v. State, we discussed the specific issue of when a shod foot could be deemed a "dangerous instrument". We stated that "the inquiry ... must center on the manner in which the kick was administered and the victim's vulnerability to the kick".

Here, Hutchings was lying on the ground and his victim, LaCroix, was on his feet crouched over him. Hutchings was wearing heavy boots, and he was able to land one or possibly two blows in rapid succession from his prone position. But these blows did not cause serious harm to LaCroix, and LaCroix was able to end the assault by straightening up and walking away (since Hutchings remained lying on the ground). There is little to indicate that LaCroix was in any greater physical danger than if Hutchings had punched him in the head when he was not looking.

Given these circumstances, we conclude that the State's evidence was insufficient to support a finding that Hutchings's shod foot constituted a "dangerous instrument". We therefore reverse Hutchings's conviction for third-degree assault.

However, as we noted above, the State's evidence is clearly sufficient to support the jury's finding that Hutchings recklessly caused physical injury to LaCroix. We therefore direct the superior court to amend the judgement to reflect a conviction for the lesser included offense of fourth-degree assault under AS 11.41.280(a)(1)-"recklessly caus[ing] physical injury to another person".

Conclusion

This case is REMANDED to the superior court for a hearing on whether Hutchings received ineffective assistance of counsel because of an active, prejudicial conflict of interest between Hutchings and his brother, Jason. The superior court shall make findings on this issue and shall transmit those findings to this Court within 90 days of our decision. The parties shall then have 30 days to file memoranda responding to the superior court's findings. Upon our receipt of the parties' memoranda, we shall resume our consideration of this issue.

In the meantime, Hutchings's conviction for third-degree assault is REVERSED. The superior court is directed to reduce the crime to the lesser included offense of fourth-degree assault, and to re-sentence Hutch-ings.

3. Administrative Law and Procedure €~501

      . 435 U.S. 475, 482-83, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426, 433 (1978).

      . Quoting State v. Olsen, 258 N.W.2d 898, 906 (Minn.1977).

      . Moreau 588 P.2d at 284 n. 27.

      . See id. at 283.

      . Id. at 284 (emphasis added).

      . Id. at 284.

      . See Cuyler v. Sullivan, 446 U.S. 335, 348 & n. 14, 100 S.Ct. 1708, 1718 & n. 14, 64 LEd.2d 333, 347 & n. 14 (1980).

      . 837 P.2d 718, 722 (Alaska App.1992).

      . See Sharp, 837 P.2d at 722; Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App.1984).

      . Moreau, 588 P.2d at 284.

      . 258 N.W.2d 898 (Minn.1977).

      . Mercer, 290 N.W.2d at 626.

      . See AS 11.81.900(b)(45), which defines "physical injury" as "physical pain or [any] impairment of physical condition".

      . See Konrad v. State, 763 P.2d 1369, 1374 (Alaska App.1988).

      . See Konrad v. State, 763 P.2d 1369, 1375 (Alaska App.1988).

      . 763 P.2d 1369, 1373 (Alaska App.1988).

      . $36 P.2d 955 (Alaska App.1992).

      . Id. at 959.


source: Caselaw Access Project

author: Justice RICE

license: Public Domain

text:
    In re Steve KERNS, Plaintiff, v. Sok Sun KERNS; John Hoehne; Karl Hoehne; Hoehne Bros., a Minnesota general partnership; Ray-Paul, Inc., a Colorado corporation; and John Does, Defendants.
    No. 02SA59.
    Supreme Court of Colorado.
    May 28, 2002.

      Howard and Francis, LLP, Steven G. Francis, Fort Collins, Colorado, Attorneys for Plaintiff.
    Grimshaw & Harring, P.C., Lisa Mayers, Denver, Colorado, Attorneys for Defendants John Hoehne, Karl Hoehne and Hoehne Bros.
    Bostrom, Sands and Sander, P.C., Jon F. Sands, Denver, Colorado, Attorneys for Defendant Ray-Paul, Inc.
   Justice RICE

delivered the Opinion of the Court.

In this original action, we issued a rule to show cause why the order of the District Court of Larimer County should not be vacated. The district court held that a party seeking to impose a constructive trust on real property located in Colorado is not entitled to file a notice of lis pendens under section 88-85-110, 10 C.R.S. (2001), because the action was brought in an out-of-state court without in rem jurisdiction over the property. Pursuant to the plain meaning of the statute, we hold that the procedure for filing a notice of lis pendens set forth in section 38-85-1110 is available to a party in any action "wherein relief is claimed affecting the title to real property," regardless of the jurisdiction in which the action is brought. § 88-85-110(1), 10 C.R.S. (2001). Whether relief is claimed that affects title to real property depends on the facts of each case, not on whether or not the action is in rem. The constructive trust sought in the out-of-state action at issue in this case affects title to real property in Colorado. Accordingly, we now make the rule absolute.

I. FACTS AND PROCEDURAL HISTORY

Petitioners, John Hoehne, Karl Hoehne, and the Hoehne Bros., a Minnesota General Partnership (collectively "the Hoehnes") filed an action in the United States District Court for the District of Minnesota against Respondent, Steve Kerns, alleging fraud, breach of fiduciary duty, violation of the Minnesota Consumer Fraud Act, conversion, and constructive trust. Petitioners are elk farmers from Pine Island, Minnesota. They claim that Respondent defrauded them out of more than six million dollars over the course of several years.

According to the complaint, Respondent represented to Petitioners that, on their behalf, he had contracted with the states of Montana, Idaho, Oregon, and Washington to manage free-range elk from overpopulated areas in those states Purportedly, the states had agreed to provide a minimum of 2500 elk a year, pay a per diem handling fee, and reimburse Petitioners for the purchase of land and construction of improvements necessary to manage the elk. Believing this to be a legitimate and sound business proposition, and relying on Respondent's knowledge of and connections in the industry, Petitioners agreed to supply the facilities necessary to manage and dispose of elk sent to them from each of the states. Accordingly, Petitioners provided Respondent with funds to buy and improve various ranches in Idaho, Colorado, and Montana as well as with "good faith" cash deposits that Respondent had said the states required to assure performance.

Allegedly, Respondent eventually confessed that the entire venture was a sham. As a result, Petitioners filed the Minnesota action to impose a constructive trust upon the various ranch facilities for the purpose of retitling these properties in Petitioners' name. In addition, Petitioners seek to recover all funds deposited in banks by Respondent on Petitioners' behalf for ranch operations and good faith deposits under the purported agreement.

Two of the ranch facilities on which Petitioners are seeking to impose a constructive trust in the Minnesota action are located in Colorado. They are: (a) a 18T-acre farm parcel with a house and lot at 5380 North County Road 9, Fort Collins, Colorado (the "Dilo Parcel"); and (b) a house at 350 Tur-man Drive, Fort Collins, Colorado (the "Tur-man Drive Parcel"). To protect Petitioners' alleged interest in these parcels during the pendency of the Minnesota action, Petitioners' counsel of record in the Minnesota action filed a notice of lis pendens against each of these parcels in the Larimer County Recorder's Office on November 17, 2000. The notice of lis pendens against the Turman Drive Parcel was recorded on November 21, 2000. The notice of lis pendens against the Dilo Parcel, however, was not recorded until August 17th, 2001. When Petitioners learned that the Dilo Parcel had been replatted and subdivided, they filed two additional notices of lis pendens containing the legal descriptions of the subdivision for additional protection. These notices were recorded on August 20, 2001.

On August 17th, 2001, Respondent deeded a substantial portion of the Dilo Parcel to Ray-Paul, Inc. Ray-Paul, Inc. executed a deed of trust in favor of Respondent on that same day. The warranty deed and the deed of trust were not recorded until September 7, 2001. On August 20, 2001, Respondent executed a warranty deed for another portion of the Dilo Parcel in favor of his wife. Seven days later she deeded it back to herself and her husband as "tenants by the entireties." These documents were recorded on August 21, 2001 and August 28, 2001, respectively. Respondent has agreed to sell the remainder of the Dilo Parcel to Raymond and Linda Olick. That transaction, however, is not scheduled to close until September 1, 2002.

The Federal District Court for the District of Minnesota granted a temporary restraining order on October 26, 2001 and then entered a preliminary injunction on November 2, 2001 barring Respondent and anyone with whom he is in privity from transferring the Dilo Parcel, the Turman Drive Parcel, and two Idaho parcels while the Minnesota action is pending. At the federal trial judge's suggestion, Respondent then filed an action in Larimer County District Court to quiet title to the Dilo Parcel, naming Petitioners, Ray, Paul, Inc., and his wife as defendants. Before the Larimer County District Court, Respondent argued that section 38-85-110, does not permit a notice of lis pendens to be recorded unless the action to which it refers is pending in the State of Colorado. Accordingly, Respondent requested that the Larimer County District Court declare the lis pen-dens recorded against the Dilo Parcel invalid. In addition, Respondent argued that the notices of lis pendens filed against the Dilo Parcel were spurious liens or documents within the meaning of section 38-85-201, 10 C.R.S. (2001)

On February 4, 2002, the district court issued a minute order that the lis pendens notices recorded against the Dilo Parcel were invalid, stating:

The federal court may have jurisdiction to declare a constructive trust but it has no in rem jurisdiction over the Colorado property. Accordingly, the Court orders the Hoehne Defendants to dismiss the lis pen-dens filed against the property that is the subject of this action within fifteen days.

We issued a rule to show ﬁause why the district court's order should not be vacated; we now make that rule absolute.

II ANALYSIS

The only issue before us is whether a party to an out-of-state action seeking to impose a constructive trust on real property located in Colorado is entitled to file a notice of lis pendens under section 88-35-110.

A. Section 38-35-110 Applies to Extraterritorial Actions Affecting Title To Real Property

Our primary task in construing a statute is to give effect to the legislative purpose underlying the enactment. Shapiro & Meinhold v. Zartman, 823 P.2d 120, 123 (Colo.1992). In discerning legislative intent, we look first to the statutory language itself, giving words and phrases their commonly accepted and understood meaning. Id.; Farmers Group, Inc. v. Williams, 805 P.2d 419, 422 (Colo.1991). If the language of a statute is plain, its meaning is clear, and the intent of the General Assembly may be discerned with reasonable certainty, the statute must be applied as written. McKinney v. Koutzky, 801 P.2d 508, 509 (Colo.1990).

Section 38-85-110(1) provides in relevant part: "

After filing any pleading in an action wherein relief is claimed affecting title to real property, any party to such action may record in the office of the county clerk and recorder in the county or counties in which the real property or any portion thereof is situated a notice of lis pendens containing the name of the court where such action is pending, the names of the parties to such action at the time of such recording, and a legal description of the real property.

§ 38-85-110(1).

The plain language of section 38-85-110 permits a party in any action wherein relief is claimed "affecting title to real property" to file a notice of lis pendens in the county where the Colorado real estate is located. See Alien, Inc. v. Futterman, 924 P.2d 1063, 1070 (Colo.App.1995). Thus, the jurisdiction in which the action is brought has no relevance under the statute; in fact, the only prerequisite imposed on the action to which the notice of lis pendens pertains is that it be one "affecting title to real property'”

Permitting an out-of-state claimant to file a notice of lis pendens in accordance with the plain language of section 38-85-110 is also consistent with the legislative purpose in enacting the statute. In Hammersley v. District Court, 199 Colo. 442, 610 P.2d 94 (1980), we explained that section 38-35-110 was enacted to assuage the harsh effects of the common-law doctrine of lis pendens. Hammersley, 610 P.2d at 95-96; see also Crown Life Ins. Co. v. April Corp., 855 P.2d 12, 14 (Colo.App.1992). At common law, purchasers acquiring an interest in property that was the subject of a lawsuit-historically deemed purchasers pendente lite-were "conclusively bound by the result of the litigation and their interest in the real property was subject to the litigants' rights as finally determined by the court." Belleville State Bank v. Steele, 117 Wis 2d 563, 345 N.W.2d 405, 410 (1984); accord Hammersley, 610 P.2d at 95. This was true regardless of whether they had actual notice of the litigation because "the pendency of judicial proceedings was presumed to be of such notoriety that commencement of judicial proceedings was considered constructive notice to pendente lite purchasers." Belleville State Bank, 345 N.W.2d at 409; Gail M. Hashimoto, Note: The Protection of Land Decrees: The Use of Iis Pendens in Interstate Litigation Affecting California Real Property, 36 Hastings L.J. 255, 258-59 (1984). The severe and sometimes inequita-bie consequences of this common-law rule caused courts to judicially limit its application: only if the action operated directly on title and the property was located in the territorial jurisdiction of the court where the suit was pending were purchasers bound by the outcome of the litigation. Hammersley, 610 P.2d at 96; Belleville State Bank, 345 N.W.2d at 410.

By integrating the lis pendens doe-trine into the recording system, section 38-35-110 tempers the harsh effects of the common-law doctrine without the need for the common-law restrictions. Unlike at common law, anyone acquiring an interest in the property during the pendency of the litigation will be bound by its outcome so long as a notice of lis pendens has been recorded in the office of the county clerk and recorder where the property is located in accordance with section 38-35-110 James H. Moore & Assoc. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 373-74 (Colo.App.1994); accord King v. W.R. Hall Transp. & Storage Co., 641 P.2d 916, 921 (Colo.1982).

This recording requirement serves two purposes. First, it provides prospective purchasers and encumbrancers easier access to actual notice of court proceedings affecting property. 14 Richard R. Powell, Powell on Real Property § 82A.01[3], at 82A-7 (2000). A prospective purchaser or encum-brancer need only look in the office of the clerk and recorder in the county where the land is situated to determine if there is any pending litigation affecting the title to the land. See Belleville State Bank, 345 N.W.2d at 411. Second, the pendency of the action itself no longer serves as constructive notice to prospective purchasers or encumbrancers. Pursuant to section 38-85-110, a claimant must record a notice of lis pendens if he wishes to preserve his contingent interest against those who purchase or encumber the property while the lawsuit is pending. Id. Thus, section 88-35-110 itself "effectively eliminate[s] the problem of surprise," Hammersley, 610 P.2d at 96, and obviates the need for the common-law restrictions. Therefore, there is no sound justification for limiting the statute's applicability to actions pending in the jurisdiction where the property is located or to actions that operate directly upon title Belleville State Bank, 345 N.W.2d at 411; Winters, 977 P.2d at 1222-23 (Utah Ct.App.1999); TWE Retirement Fund Trust v. Ream, 198 Ariz. 268, 8 P.3d 1182, 1187 (Ct.App.2000); Robby Alden, Note: Modernizing the Situs Rule for Real Property Conflicts, 65 Tex. L. Rev. 585, 598 (1987) (reasoning that "[tlhere is no reason ... for statutory lis pendens, in contrast to common law lis pendens, to be limited to the territorial jurisdiction of the situs because constructive notice does not arise unless a lis pendens is actually recorded, and thus a prospective purchaser need look only in the office of the register of deeds in the county in which the land is situated" to determine whether a lawsuit affecting title is pending in another jurisdiction); see generally Hashimoto, supra; cf. Alien, Inc., 924 P.2d at 1070 ("[Wle perceive no rationale for distinguishing between a suit affecting title to real property which is brought in state court from one brought in federal court with respect to the recording of a notice of lis pendens.").

Permitting an out-of-state claimant to file a notice of lis pendens furthers the policies behind the act as well. In addition to protecting the out-of-state claimant's interest in the subject property, subjugating pendente lite purchasers' interest in the property to the litigants rights' as finally determined by the court, promotes "the finality of litigation and economy of judicial resources." Hammersley, 610 P.2d at 96. Onee a notice of lis pendens has been properly recorded, the judgment of the court cannot be frustrated by alienation of the property to a third party not bound by the outcome of the litigation. Hammersley, 610 P.2d at 96 ("The policy that successful completion of a suit involving rights in real property should not be thwarted by permitting transfers of interest in real property to persons not bound by the outcome of the suit continues in its full vigor."); Belleville State Bank, 345 N.W.2d at 409 ("If property which was the subject of litigation could be alienated, the court's exercise of jurisdiction would be frustrated and litigants would be forced into an unending series of lawsuits against persons acquiring the property during litigation."); see also James H. Moore & Assoc. Realty, Inc., 892 P.2d at 374; Alien, Inc., 924 P.2d at 1070. Promoting the finality of litigation and economy of judicial resources is important whether the litigation and the resources are in Colorado or elsewhere.

Furthermore, allowing out-of-state claimants to file a notice of lis pendens under section 38-35-110 furthers the policy of protecting prospective purchasers. Unlike at common law, prospective purchasers can readily determine whether a judicial proceeding-local or otherwise-potentially affects title to a piece of property simply by visiting the county clerk and recorder's office in the county where the property is located. Bankers Trust Co. v. El Paso Pre-Cast Co., 192 Colo. 468, 475, 560 P.2d 457, 462 (1977); Belleville State Bank, 345 N.W.2d at 411. Once there, he need only conduct a standard title search-as any prudent buyer would do-to discern whether the property is the subject of litigation anywhere in the world. Without a rule permitting out-of-state litigants to avail themselves of the procedures set forth in section 88-85-110, those interested in purchasing Colorado real estate would be unaware of an extraterritorial proceeding potentially affecting the property's title. See Belleville State Bank, 345 N.W.2d at 411 (holding that the lis pendens statute has "the additional objective of giving prospective purchasers and encumbrancers notice of pending actions so that they may avoid buying a lawsuit" (internal quotation marks omitted)); Alden, supra at 598 ("Would-be purchasers would not be responsible for searching all the courts of the nation to verify the full alien-ability of the land."). Thus, just as it prevents the title-holder from colluding with a third party to thwart a judicial proceeding, a duly recorded notice of lis pendens also prevents him from unserupulously foisting the property upon an innocent purchaser.

Although it may be more difficult for prospective purchasers of real property in Colorado to determine the status or validity of an action in a court outside this state, this inconvenience is outweighed by the greater protection afforded them:

Allowing a lis pendens to be filed in [Colorado] when the action is pending in another state actually provides prospective purchasers of real property in [Colorado] with more protection than if a lis pendens could only be filed in connection with an action commenced in [Colorado]. Applying [seetion 38-35-110] to out-of-state judicial proceedings provides prospective purchasers with notice of all actions that may affect the property, not just those pending in [Colorado].

Winters, 977 P.2d at 1222-23; see also Belleville State Bank, 345 N.W.2d at 411.

In sum, whereas denying an out-of-state claimant the opportunity to file a notice of lis pendens would unjustifiably protect the interests of property owners and prospective purchasers at the expense of claimants in extraterritorial actions, integrating the lis pendens doctrine into the overall recording scheme and permitting out-of-state claimants to file a notice of lis pendens under section 38-85-110 "restores the balance of interests" among these parties TWE Retirement Fund Trust, 8 P.3d at 1187; Hashimoto, supra, at 279-80. Thus, we hold that a party to an out-of-state action affecting title to real property in Colorado is entitled to file a notice of lis pendens under section 38-85 110.

B. An Extraterritorial Action To Impose A Constructive Trust On Colorado Real Estate Is an Action "Affecting Title To Real Property" Within the Meaning of Section 38-35-110

Having concluded that a party to an out-of-state action affecting title to real property in Colorado is entitled to file a notice of lis pendens under section 38-85-110, we are left with the remaining question of whether the Minnesota action is actually one "affecting title to real property." We hold that it is.

Principles of state sovereignty dictate the rule that the courts of one state have no power to directly affect title to land located wholly within the borders of another. Fall v. Eastin, 215 U.S. 1, 11-12, 30 S.Ct. 3, 54 L.Ed. 65 (1909); see also Flader v. Campbell, 120 Colo. 66, 76, 207 P.2d 1188, 1193 (1949) ("It seems clear that the question of ownership of lands located within the state is a matter to be determined by the Colorado courts ...."); Hashimoto, supra, at 264 ("The limitation on a court's ability to affect land outside its territorial jurisdiction "is an ancient one and represents the view when the common law of England quite naturally looked with distrust upon any effort of a foreign power to dictate with respect to English land."" (quoting Byron R. Bentley, Equity Decrees in Sister States, 8 S. Cal. L. Rev. 1, 9 (1984))). In short, the usual case requires that in rem proceedings be brought in the jurisdiction where the land is situated. Thus, if section 38-385-110's applicability were limited to in rem proceedings, an extraterritorial action would almost never "affect" title within the meaning of the statute. But it is not so limited.

As we have already explained, "Such a limitation is no longer necessary in Colorado because of the ... rule that a notice of lis pendens describing the parties and the property must be filed in the office of the county clerk and recorder in order to give constructive notice of the pending action." Hammersley, 610 P.2d at 96; see also TWE Retirement Fund Trust, 8 P.3d at 1186 (holding that the filing of a notice of lis pendens pertaining to an extraterritorial action does not infringe upon Arizona's jurisdiction over real property within its territorial borders); Hashimoto, supra, at 268 (arguing that because a notice of lis pendens recorded in relation to an extraterritorial action that indirectly affects real property does not create, transfer, or vest title or interests in realty, it "does not affect title in a manner that violates the territorial sovereignty of the situs state"). In addition, Hammersley instructs that the policies behind the statute "would be furthered by giving an expansive interpretation to the language 'affecting the title to real property' as found in section 38-85-110." Hammersley, 610 P.2d at 96. Thus, even litigation that does not seek to change ownership in any way but does "involve a determination of certain rights [and liabilities] incident to ownership" falls within the purview of the statute. Accordingly, we hold that section 38-85-110's applicability is not limited to in rem proceedings. Id.; Crown Life Ins. Co. v. April Corp., 855 P.2d 12, 14-15 (Colo. App.1992) (holding that a ereditor seeking to set aside a conveyance of real property as fraudulent may file a notice of lis pendens against such property under section 38-85-110); Cooper v. Flagstaff Realty, 634 P.2d 1013, 1015 (Colo.App.1981) (holding that litigation of a promise to grant a deed of trust to a specific parcel of real property affects title within the meaning of section 38-35-110 even though it does not seek to change ownership in any way because it does involve a determination of certain rights and liabilities incident to ownership); see also TWE Retirement Fund Trust, 8 P.3d at 1186; Hashimoto, supra, at 256.

In personam actions may also "affect" title within the meaning of the statute. Id. In Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65 (1909), the United States Supreme Court clarified that:

The territorial limitation of the jurisdiction of courts of a State over property in another State has a limited exception in the jurisdiction of a court of equity, but it is an exception well defined. A court of equity having authority to act upon the person may ... decree a conveyance of land situated in another jurisdiction, and even in a foreign country, and enforce the execution of the decree by process against the defendant ... [Ilts decree is made effectual through the coercion of the defendant.

Fall, 215 U.S. at 8, 9-10, 30 S.Ct. 3; see also Hallaba v. Worldcom Network Servs. Inc., 196 F.R.D. 630, 650 (N.D.OKla.2000) ("This Court can clearly render decisions that "affect" the real estate title records in state court, such as, for example, deciding to set aside a fraudulent conveyance."); Andre v. Morrow, 106 Idaho 455, 680 P.2d 1855, 1361 n. 2 (1984) (holding that "a foreign court has the power to indirectly affect out-of-state property by means of a decree based on personal jurisdiction over the parties, which determines the parties' personal rights or equities in that property" and citing cases in support of that proposition).

An equitable action to impose a constructive trust on real property does not operate directly upon title but is a type of in person-am action that may "ultimately change legal title." Ross, 621 N.W.2d at 676; see also Mandley v. Backer, 121 F.2d 875, 876 (D.C.Cir.1941) (holding that a court has the power to fashion an equitable decree enfore-ing a constructive trust on property located outside the jurisdiction (relying on Massie v. Watts, 10 U.S. (6 Cranch) 148, 3 L.Ed. 181 (1810))); cf. Keller v. Millice, 838 F.Supp. 1163, 1174 (S.D.Tex.19983) (holding that an action seeking to impose a constructive trust is transitory). In In re Marriage of Allen, 724 P.2d 651 (Colo.1986), we discussed the concept of a constructive trust:

The constructive trust is an equitable device used to compel one who unfairly holds a property interest to convey that interest to another to whom it belongs. When property has been acquired in such ciream-stances that the holder of legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee. The successful plaintiff in a constructive trust action wins an in personam order that requires the defendant, the constructive trustee, to transfer specific property in some form to the plaintiff, the beneficiary, of the trust.

724 P.2d at 656-57 (internal quotation marks and citations omitted). Thus, an action to impose a constructive trust has the potential to "affect" title to real property, albeit indirectly.

Given Hammersley's mandate to broadly interpret the phrase "affecting the title to real property," we hold that an action to impose a constructive trust on real property located within the state of Colorado, entitles the party bringing the action to file a notice of lis pendens against that property in accordance with section 38-35-1110. See Polk v. Schwartz, 399 A.2d at 1004 ("There is no doubt that an action to impress a constructive trust on realty affects title to that property, so that a notice of lis pendens may be filed under a statute such as ours."); Ross, 621 N.W.2d at 676 (holding that a party to an out-of-state action to impose a constructive trust on Wisconsin real estate is entitled to file a notice of lis pendens under Wisconsin's lis pendens statute); see also Powell, supra, at 82A-16, Hashimoto, supra at 256; cf. Hawthorne Trust v. Maine Sav. Bank, 136 N.H. 533, 618 A.2d 828, 830-31 (1992) (holding that an equitable interest in real estate is within the purview of a recording statute which only applies to instruments affecting title to real estate). This is true whether the action is brought in the courts of our state, the courts of a sister state, or the federal courts. If brought in the latter two, our state courts will afford the judgment full faith and credit. U.S. Const. art. IV, § 1; see Andre, 680 P.2d at 1363 (granting full faith and credit to a California judgment imposing a constructive trust on real property located in Idaho and affirming Idaho trial court order transferring title to property in accordance therewith).

HI. CONCLUSION

Petitioners brought an action in the Federal District Court for the District of Minnesota seeking to impose a constructive trust on Colorado real property. One of the purposes of this action was to "retitle" the various Colorado ranch facilities in Petitioners names. Under these cireumstances, Petitioners were entitled to file a notice of lis pendens against the Colorado real estate pursuant to section 38-35-110. Accordingly, we make the rule absolute, and the district court is directed to vacate its order dismissing the notices of lis pendens filed against the Dilo Parcel.

      . We draw the facts underlying the Minnesota action from the complaint filed therein, as only these allegations are relevant to our inquiry here. See Winters v. Schulman, 977 P.2d 1218, 1223 (Utah Ct.App.1999) ("In determining the validity of a lis pendens, courts have generally restricted their review to the face of the complaint."); Ross v. Specialty Risk Consultants, Inc., 240 Wis.2d 23, 621 N.W.2d 669, 677 (Ct.App.2000) ("[The propriety of a Lis Pendens must stand on the allegations in the pleadings."); see also S. Utsunomiya Enters. v. Moomuku Country Club, 75 Haw. 480, 866 P.2d 951, 964 (1994); Polk v. Schwartz, 166 N.J.Super. 292, 399 A.2d 1001, 1004-05 (1979).

      . Respondent expends much effort in their brief before this court arguing that the August 17, 2001 lis pendens recorded against the Dilo Parcel is a spurious document and therefore must be declared invalid by the Larimer County District court pursuant to-section 38-35-204, 10 C.R.S. (2001). This issue is not properly before us, and we pass no judgment upon it.

      . In addition to the action to quiet title brought in the Larimer County District Court, Respondent also filed a motion in the Minnesota action requesting that the court declare notices of lis pendens filed by Petitioners against the Idaho ranch {acilities null and void. The court denied this motion. Hoehne v. Kerns, No. 00CV-2544 (D.Minn. Aug. 2, 2001) (order denying Defendant's Motion for Removal of Lis Pendens from Defendant's Property and Declare Said Lis [Pen-dens] Null and Void and of No Effect). It reasoned that the Idaho lis pendens statute, Idaho Code § 5-505, (Michie 2001), was "devoid of any language excluding courts of foreign jurisdiction from effecting lis pendens notices within the State of Idaho." Id. Therefore, the court held that the notices of lis pendens filed against the Idaho properties were valid. Id.

      . Of course, just as at common law, anyone acquiring an interest in the property with actual notice of pending litigation that potentially affects title to the property will be bound by the outcome of such litigation.

      . But cf. Kaiser Steel Corp. v. Frates, 80 B.R. 216, 219-21 (Bankr.D.Colo.1987) (reasoning that the jurisdictional grant of federal bankruptcy courts provides an exception to the rule that that subject matter jurisdiction over real property is generally limited to courts within the same state as that of the res and therefore holding that California's lis pendens statute permits a party to an action before the United States Bankruptcy Court for the District of Colorado to file a notice of lis pendens against California property).

      . We acknowledge that there are serious consequences flowing from the filing of a notice of lis pendens. Once a lis pendens is filed, it renders title unmarketable and therefor effectively prevents the property's transfer until the litigation is resolved or the lis pendens is expunged. However, it is still only a notice. Unlike a lien, "no new interest is created by the existence of a lis pen-dens notice." 14 Powell, supra, § 82A.01[1], at 82A-4; see also Alien Inc., 924 P.2d at 1070. As we explained in Hammersley:
      This means only that a subsequent purchaser will be bound by the outcome of the litigation and that the purchase may be discouraged until that outcome is certain. No unfairness to the owner or to the subsequent purchaser is perceived in binding them both by the judgment in the pending action. The petitioner[ ]has] a legitimate interest in obtaining a final resolution of the questions in litigation.
      610 P.2d at 97. Nevertheless, given the relative ease with which a notice of lis pendens can be recorded, courts must be vigilant in ensuring that the requirements of the statute have been met. Moreover, if a notice of lis pendens is improperly recorded, we note that section 38-35-204, 10 C.R.S. (2001) authorizes an action to expunge a "spurious" notice of lis pendens, and award the costs and aitorneys fees associated with such an action to the prevailing party. § 38-35-204(1) & (2). In addition, we have held that in the appropriate case, the filing of notice of lis pendens may be actionable as malicious prosecution. See Westfield Dev. Co. v. Rifle Inv. Assocs., 786 P.2d 1112, 1118 (Colo.1990).

      . This is our principal point of difference with the Wyoming Supreme Court's opinion in Ludvik v. James S. Jackson Co., 635 P.2d 1135 (Wyo. 1981). In Ludvik, the Wyoming Supreme Court held that its lis pendens statute codified the common law. 635 P.2d at 1141. Thus, in accordance with the common law, it reasoned that a notice of lis pendens could only be filed when the action to which it pertained is brought before a court having jurisdiction over the res. Id. Because an extraterritorial court cannot proceed in rem against Wyoming real estate, the court held the Wyoming lis pendens statute did not permit ' the filing of such notice where the underlying action was pending outside the state. Id. In contrast to Ludvik, Hammersley made clear that our lis pendens statute "modifies or restricts" the common-law doctrine of lis pendens on this point and is therefore not so restrictive in its application.


author: Justice COATS

text:
    Concerning the APPLICATION FOR WATER RIGHTS IN RIO GRANDE COUNTY. The State Engineer and The Division Engineer for Water Division 3, Opposers-Appellants. v. David W. Bradley, Applicant-Appellee.
    No. 01SA295.
    Supreme Court of Colorado, En Banc.
    Sept. 9, 2002.

      Ken Salazar, Attorney General, Alexandra L. Davis, Assistant Attorney General, Denver, Colorado, Attorneys for Opposers Appellants.
    David W. Bradley, Pro Se, Monte Vista, Colorado.
   Justice COATS

delivered the Opinion of the Court.

The State Engineer and Division Engineer for Water Division No. 3 appealed a judgment of the water court approving an application by Bradley for a change of water right and ordering the issuance of a well permit. Bradley sought to change the point of diversion of an existing water right from a well in a corner of his property to a well in the center of his property. Because the evidence in the record does not support the water court's conclusion that granting the application will neither enlarge the existing right by expanding Bradley's historic use nor result in injury to other vested rights, the judgment of the water court is reversed.

I. FACTS AND PROCEDURAL BACKGROUND

This dispute arises from an attempt by David W. Bradley to improve his method of irrigating 150 acres of farmland he owns in the San Luis Valley. In 1999, Bradley applied for a permit to construct a new well, to be used as an alternate point of diversion for an existing water right. The State Engineer denied the application on the grounds that he was unable to determine that unappropriated water was available for withdrawal by the proposed well and that the vested water rights of other appropriators would not be materially injured. Bradley then filed a pro se application with the water court for Water Division No. 3 for a determination with respect to a change of water right, specifically a change in point of diversion. The water referee denied that application, indicating simply that Bradley had failed to meet his burden of proof regarding historic use. Bradley then filed this protest with the water court, and the State and Division Engineers intervened.

At the one-day hearing, the only testimony came from a hydrographic expert with the Division Engineer's Office and the applicant's brother, who was qualified as an expert in civil engineering. The hydrographic expert's testimony focused on the effect of the proposed change on the overappropriated Closed Basin and Rio Grande systems of the San Luis Valley. He testified that because of Bradley's location above the moving hydraulic divide separating the two systems, at any given time withdrawals from the proposed well might not affect the same system as a withdrawal from the original location. Bradley's brother prepared and presented a "historical use report" and testified about his conclusion that no more water would be consumed on the land than under current methodology. Neither side presented any quantifiable evidence of well usage, and although aneedotal evidence of the use of the acreage in question was gathered and presented by the applicant's brother, showing varying degrees of crop production in different years, it was undisputed that annual irrigation of the acreage in question was never accomplished solely by well water.

Bradley's groundwater right was decreed by the water court in 1974 for irrigation purposes at a flow rate of 1,200 gallons per minute, 5.34 acre-feet per day, with an appropriation date of August 81, 1988; however, the evidence indicated that in addition to groundwater, Bradley had always irrigated his land with water from two surface rights, which had been used on the land since before the construction of the corner well. It was undisputed, and found as a matter of fact by the water court, that in any given year the underground water would typically be applied later in the growing season when Bradley's surface rights were used in full or curtailed by senior users.

Beginning in 1997 or 1998, Bradley largely abandoned his long-established practice of flood-irrigating through ditches and began delivering both his surface and underground water to two newly purchased center-pivot sprinklers by placing the water into a ditch, transporting it to a holding pond near the sprinklers, and pumping it into the sprinklers as needed. It was therefore clear that the acreage in question had always been irrigated by some combination of surface and well water.

The water court was clearly cognizant of the importance of differentiating the amount of surface water from the amount of well water historically used to irrigate the acreage in question, but it was also concerned about the difficulty and expense of quantifying the historic use of the particular water right for which a change in the point of diversion was requested. Noting that one of the goals of the Water Rights and Determination Act of 1969 was to simplify application and change procedures, the court ultimately concluded that the applicant had met his burden of proving the historic use of the water right to be changed and the feasibility of changing the point of diversion without injuring other vested users. The court then ordered the State Engineer to issue the requested well permit and to fashion any reasonable terms and conditions necessary to prevent any possible injury to other vested rights.

The State and Division Engineers appealed the water court's ruling directly to this court.

II. APPLICATIONS TO CHANGE THE POINT OF DIVERSION

Although a water right in Colorado is usufructuary in nature, with ownership of the water itself remaining in the public, it is nevertheless a property right. Santa Fe Trail Ranches v. Simpson, 990 P.2d 46, 54 (Colo.1999); Shirola v. Turkey Canon Ranch, L.L.C,, 937 P.2d 739, 748 (Colo.1997); Weibert v. Rothe Brothers, Inc., 200 Colo. 310, 315, 618 P.2d 1367, 1371 (1980). Water rights are created when a person appropriates unappropriated water by putting it to a beneficial use. Williams v. Midway Ranches Property Owners Ass'n, Inc., 938 P.2d 515, 521 (Colo.1997); Shtrola, 987 P.2d at 748. A water right adjudication is therefore a judicial proceeding at which respective priorities of water rights are ascertained. Shirola, 937 P.2d at 748. An absolute decree confirms that an appropriation has vested as a property right and entitles the subsequent operation of that right through its decreed point of diversion, in a specified amount, for a particular beneficial use. Midway Ranches, 938 P.2d at 521.

One of the incidents of a water right is the right to change the point of diversion. Weibert, 200 Colo. at 316, 618 P.2d at 1371; see also Farmers Res. & Irr. Co. v. City of Golden, 44 P.3d 241, 245 (Colo.2002) (same with regard to change of use). Under the 1969 Act, an application for a change of water right must be approved if the change will not injuriously affect the owner of or persons entitled to use water under a vested water right or a decreed conditional water right, § 37-92-305(8); Farmers Res. & Irr. Co., 44 P.3d at 246, and conversely, a change cannot be granted if it will injuriously affect the rights of other users. Farmers Res. & Irr. Co., 44 P.3d at 246; City of Thornton v. Bijou Irr. Co., 926 P.2d 1, 80 (Colo.1996). "A classic form of injury involves diminution of the available water supply that a water rights holder would otherwise enjoy at the time and place and in the amount of demand for beneficial use under the holder's decreed water right operating in priority." Farmers Res. & Irr. Co., 44 P.3d at 246 (quoting Farmers Res. & Irr. Co. v. Consol. Mut. Water Co., 33 P.3d 799, 807 (Colo.2001)). In any event, however, it is inherent in the notion of a "change" of water right that the property right itself can only be changed and not enlarged. Id. at 246. The appropriator of native water may not enlarge an appropriation without establishing all of the elements of an independent appropriation, which will necessarily have a later priority date. Santa Fe Trail Ranches, 990 P.2d at 54.

Although a decree does not confer, but rather confirms a pre-existing water right (or in the case of conditional applications, gives the applicant the opportunity to develop the right and obtain a priority date that relates back to the date of the first step), Shirola, 937 P.2d at 748, several limitations on the right to divert at the full decreed rate at all times are read into every decree by implication. Orr v. Arapahoe Water & Sanitation Dist., 753 P.2d 1217, 1223 (Colo. 1988); Rominiecki v. McIntyre Livestock Corp., 633 P.2d 1064, 1067 (Colo.1981); Weibert, 200 Colo. at 316, 618 P.2d at 1371. Diversions are implicitly limited to an amount sufficient for the purpose for which the appropriation was made, without waste or excessive use. Weibert, 200 Colo. at 318, 618 P.2d at 1372; Hoehne Ditch Co. v. Martinez, 71 Colo. 428, 431, 207 P. 859, 860 (1922); Baca Ditch Co. v. Coulson, 70 Colo. 192, 195, 198 P. 272, 273 (1921). A diversion of water decreed for irrigation purposes is limited by the "duty of water" with respect to the decreed place of use. In re Steffens, 756 P.2d 1002, 1005 (Colo.1988). In addition, diversions are implicitly limited in quantity by historic use at the original decreed point of diversion. Orr, 753 P.2d at 1223. The actual historic diversion for beneficial use could be less than the optimum utilization represented by the duty of water in any particular case, either because the well or other facility involved cannot physically produce at the decreed rate on a continuing basis, e.g., Weibert, 200 Colo. at 317, 618 P.2d at 1372, or because that amount has simply not been historically needed or applied for the decreed purpose, e.g., Hoehne Ditch Co., 71 Colo. at 430-31, 207 P. at 860.

In the past, we have explained this limitation by noting that "over an extended period of time a pattern of historic diversions and use under the decreed right at its place of use will mature and become the measure of the water right for change purposes." Midway Ranches, 938 P.2d at 521. The right to change a point of diversion is therefore limited in quantity by the historic use at the original point of diversion. Orr, 753 P.2d at 1223; Weibert, 200 Colo. at 317, 618 P.2d at 1371-72. "Thus, a senior appropriator cannot enlarge the historical use of a water right by changing the point of diversion and then diverting from the new location the full amount of water decreed to the original point of diversion, even though the historical use at the original point of diversion might have been less than the decreed rate of diversion." Orr 753 P.2d at 1228; see also Farmers Res. & Irr. Co., 44 P.3d at 248 (citing Empire Lodge Homeowners' Ass'n, 39 P.3d at 1156, for the proposition that the enlargement doctrine prohibits an appropriator from expanding its historic appropriation).

An absolute decree, whether expressed in terms of a flow rate or a volumet-rie measurement, is itself not an adjudication of actual historic use but implicitly is further limited to actual historic use. In order to determine that a requested change of a water right is merely that, and will not amount to an enlargement of the original appropriation, actual historic use must therefore, in some fashion and to some degree of precision, be quantified. As we have previously observed, onee an appropriator exercises the right to change a decreed water right, he runs the real risk of requantification of the right based upon actual historic consumptive use at an amount less than his original decree. Midway Ranches, 938 P.2d at 522; Pueblo West Metro. Dist. v. Southeastern Colo. Water Conservancy Dist., 717 P.2d 955, 959 (Colo.1986).

The acreage under irrigation is a common basis of measuring the use of water in the adjudication of priorities, Farmers Res. & Irr. Co., 44 P.3d at 247, but if the same acreage is also being irrigated by water from appropriations other than the one for which a change is sought, some measure of the appli-eable appropriation's historic contribution to the duty of water is necessary to determine its historic use and ensure that the appropriation will not be enlarged by the change. Whether this is accomplished by directly gauging the quantity of water applied to the decreed beneficial use from the right to be changed or by deducing it from the contributions of other appropriations and the overall duty of water, it is impossible to know that a change will not exceed the historic use of any particular appropriation without some way of differentiating the contributions of the various rights involved. In such cases, calculation of the productivity and needs of the acreage alone can never be sufficient.

It is well-established that the applicant for a change of water right bears the burden of proving by a preponderance of the evidence that the requested change will not injure other users. Farmers Res. & Irr. Co., 44 P.3d at 246. Although less expressly articulated, an obligation to demonstrate that the requested change remains within the seope of the original right and does not require a new and independent appropriation is necessarily included within this burden. While the enlargement of a water right, as measured by historic use, may be injurious to other rights, it also simply does not constitute a permissible "change" of an existing right. The applicant therefore bears the risk of nonpersuasion with regard to historic use as well as the absence of injury to other rights. Both are primarily matters for the trier of fact, but if the record fails to contain evidence from which both can be favorably resolved, the application must be denied. See § 37-92-305(8); Santa Fe Troil Ranches, 990 P.2d at 58 (citing Romimiecki, 633 P.2d at 1067-68 and Weibert, 200 Colo. at 316, 618 P.2d at 1871).

III. VALIDITY OF THE WATER COURTS ORDER

In its order, the water court made a number of factual findings from the evidence but failed to suggest how any of those findings led to its conclusion that the applicant had met his burden with regard to historic use and lack of injury. Not only do the court's factual findings and the undisputed evidence from the applicant's own expert fail to support the conclusions reached by the court; they demonstrate with near certainty that the requested change would amount to an enlargement of the applicant's original water right and would be injurious to other vested rights.

Bradley's property has been served by at least three distinct water sources for over sixty years. The record contained no suggestion that the well had ever been the sole source of water for the acreage in question, even during the two years since the implementation of the center-pivot sprinklers. Though he made no attempt to quantify the contribution of his surface water rights to the overall duty of water on the irrigated acreage, the record indicated that the ground water appropriation, for which the change was sought, was used only in a supplemental capacity, being applied each year only later in the growing season, after the available surface water ran out. Because Bradley's application requested enough water from the new point of diversion to irrigate, by itself, 128 acres of the same 150 acre-field, his burden required, at the least, a demonstration that historic diversions from the corner well amounted to approximately eighty-five percent of the water historically applied to the entire field. The record failed to support, and was almost certainly inconsistent with, such a determination.

The inadequacy of the applicant's presentation was not due merely to a lack of precision or accuracy in quantifying historic use. It resulted from a conceptual failure to distinguish actual historic use from the face amount of the decree, and therefore a failure to even attempt to establish the historic use of the well-water, separate and apart from historic use of the applicant's surface water. In approving the request, the water court appears to have conflated the historic use of the land as a whole with the historic use of the groundwater. Admirable as the applicant's attempt to improve the efficiency of his irrigation technique may have been, a water right is a property right, which can be sold or further changed onee it is established. An enlargement of the applicant's right would at the very least have the effect of advancing his priority to any additional water over that of junior appropriators, and in the overappropriated systems of the San Luis Valley it would necessarily be injurious to other vested rights.

IV. CONCLUSION

Because the record does not support the water court's conclusion that the applicant met his burden of proof with regard to the historic use of the water right for which he sought a change or the lack of injury to other vested rights, the water court's order must be reversed. The case is remanded for further proceedings consistent with this opinion, including the possible presentation of additional evidence or modification of the application.

      . Section 37-92-302(1)(b), 10 C.R.S. (2001), allows the State Engineer to oppose applications for determinations of a water right or changes to a water right.

      . A general description of the geographic, geologic, and hydrologic features of the San Luis Valley is set forth in Alamosa-LaJara Water Users Protection Ass'n v. Gould, 674 P.2d 914, 916-20 (Colo.1983). A description of the features of the Closed Basin appears in Closed Basin Landowners Ass'n v. Rio Grande Water Cons.Dist., 734 P.2d 627, 629 (Colo.1987). See also In re Rules & Regulations Governing Use, Control, & Protection of Water Rights, 674 P.2d 914, 918, 931 (Colo.1983) (stating that by 1900, all streams in San Luis Valley were overappropriated and that "underground water diversions from [valley aquifers] have been found to significantly affect stream flow").

      . The surface water was represented by 20 shares of the Rio Grande Canal and 20 shares of the Santa Maria Reservoir Company.

      . See title 37, art. 92, 10 C.R.S. (2001).

      . The Act permits approval of an application for a change of water right only if such a change will not injuriously affect the owner of or persons entitled to use water under a vested water right or a decreed conditional water right, and in cases in which a statement of opposition has been filed, it prescribes a formula for the parties to propose to the referee or water court a ruling or decree with terms and conditions that will prevent any such injurious effect. See § 37-92-305(3), 10 C.R.S. (2001).

      . The court of appeals lacks jurisdiction over "water cases involving priorities and adjudications." See § 13-4-102(d), 5 C.R.S. (2001).

      . A "change in water right" includes "a change in the type, place, or time of use, a change in the point of diversion, a change from a fixed point of diversion to alternate or supplemental points of diversion, [or] a change in the means of diversion,. ..." § 37-92-103(5).

      . The duty of water has been defined as:
      [ITIhe measure of water, which, by careful management and use, without wastage, is reasonably required to be applied to any given tract of land for such period of time as may be adequate to produce therefrom a maximum amount of such crops as ordinarily are grown thereof. It is not a hard and fast measurement, but is variable according to conditions.
      See In re Steffens, 756 P.2d at 1005 (Colo.1988)(quoting Farmers Highline Canal & Res. Co. v. City of Golden, 129 Colo. 575, 584-85, 272 P.2d 629, 634 (Colo.1954)).

      . The term "historic use" refers to the "historic consumptive use," see, e.g., Farmers Res. & Irr. Co. v. City of Golden, 44 P.3d 241, 247 (Colo.2002), or "historic beneficial consumptive use," see, e.g., Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139, 1147 (Colo.2001), attributable to the appropriation the quantity of water historically consumed by application to the beneficial use for which it was decreed. Although we have often used the term in describing the quantity of water historically diverted, the amount of water diverted and applied to any beneficial use that entails less than 100% consumption will necessarily be greater than the historic consumptive use. In light of the further implied limitation on diversions to an amount sufficient for the purpose for which the appropriation was made, without waste or excessive use, the allowable historic diversion is clearly determined by historic consumptive use.


author: Justice HOBBS

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant. v. Joseph Phillip DIAZ, Defendant-Appellee.
    No. 02SA156.
    Supreme Court of Colorado, EN BANC.
    Sept. 9, 2002.

      GF. Sandstrom, District Attorney, Margaret C. Vellar, Deputy District Attorney, Pueblo, Colorado, Attorneys for Plaintiff-Appellant.
    Michael S. Emmons, Pueblo, Colorado, Attorney for Defendant-Appellee.
   Justice HOBBS

delivered the Opinion of the Court.

In this interlocutory appeal, filed pursuant to C.A.R, 4.1, the prosecution appeals the trial court's suppression of blood and hair evidence the Pueblo police obtained from the defendant, Joseph Diaz. We hold that the police violated the Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution by obtaining blood and hair samples through a warrantless search and seizure without a court order pursuant to Crim. P. 41.1. Because no exceptions to the warrant requirement apply, we uphold the trial court's order suppressing the illegally obtained evidence. However, the trial court erred in barring the prosecution-as a sanction for the prior police misconduct-from obtaining an order for nontestimonial identification evidence from the defendant.

I.

On December 18, 2000, Officer Abeyta responded to a sexual assault call. The victim told Officer Abeyta that an ex-boyfriend named Joseph Diaz had twice sexually assaulted her. Officer Oritz, who had also responded to the call, then contacted Diaz. Diaz said he was willing to talk with the police regarding the allegations.

At the police department, Officer Oritz advised Diaz of his Miranda rights. Simply stating that "I did nothing wrong," Diaz did not waive these rights. Officer Oritz asked Diaz if he would voluntarily provide samples of his hair and blood. Diaz refused. Officers then transported Diaz to St. Mary-Cor-win Hospital for a sexual assault examination. The officers did not obtain a court order for the collection of nontestimonial evidence from Diaz pursuant to Crim. P. 41.1. At the hospital, a nurse specializing in sexual assaults drew blood and plucked head and pubic hairs from Diaz, but did not comb for foreign hairs or swab to detect foreign bodily fluid.

Subsequently, the prosecution charged Diaz with sexual assault, a class four felony, and violation of a restraining order, a class two misdemeanor. Diaz filed a motion to suppress the nontestimonial evidence collected at the hospital prior to his arrest. After a hearing, the trial court granted Diaz's motion to suppress the head hair, pubic hair, and blood taken from Diaz at the hospital. As a sanction against police misconduct, the trial court also ruled that it would not entertain any prosecution requests to collect hair and blood samples from Diaz under Crim. P. 41.1 and Crim. P. 16(II)(a).

IL

We hold that the police violated the Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution by obtaining blood and hair samples through a warrantless search and seizure without a court order pursuant to Crim. P. 41.1. Because no exceptions to the warrant requirement apply, we uphold the trial court's order suppressing the illegally obtained evidence. However, the trial court erred in barring the prosecution-as a sanction for the prior police misconduct-from obtaining an order for nontestimonial identification evidence from the defendant.

Crim. P. 41.1 sets forth a procedure for obtaining from the court an order for the taking of nontestimonial identification evidence prior to the defendant's arrest or after arrest and prior to trial:

Crim. P. 41.1. Court Order for Nontestimonial Identification
(b) Time of Application. A request for a nontestimomial identification order may be made prior to the arrest of a suspect, after arrest and prior to trial or, when special cireumstances of the case make it appropriate, during trial.
(c) Basis for Order. An order shall issue only on an affidavit or affidavits sworn to or affirmed before the judge amd establishing the following grounds for the order:
(1) That there is probable cause to believe that an offense has been committed;
(2) That there are reasonable grounds, not amounting to probable cause to arrest, to suspect that the person named or described in the affidavit committed the offense; and
(3) That the results of specific nontesti-monial identification procedures will be of material aid in determining whether the person named in the affidavit committed the offense.
(d) Issuance. Upon a showing that the grounds specified in section (c) exist, the judge shall issue an order directed to any peace officer to take the person named in the offidavit into custody to obtain nontes-timomnial identification. The judge shall direct that the designated nontestimonial identification procedures be conducted expeditiously. After such identification procedures have been completed, the person shall be released or charged with an offense.

Crim. P. 41.1, 12 C.R.S. (2001)(emphasis added). This rule applies to police gathering of nontestimonial identification evidence under authorization by a judicial officer. Lacking a court order, the police proceeded with a war-rantless search and seizure of Diaz, and the exclusionary rule applies in this case to suppress the evidence thus obtained.

A. Search and Seizure of Nontestimonial Identification Evidence

The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution forbid the unreasonable search and seizure of non-testimonial identification evidence taken from a defendant's body. People v. Harris, 762 P.2d 651, 654 (Colo.1988); People v. Williams, 192 Colo. 249, 257, 557 P.2d 399, 406 (1976)(stating that "because of the special insult to human dignity involved when police seek evidence in body apertures or bodily fluids, special rules restrict internal body searches"). A warrantless search or seizure is presumed unconstitutional. People v. Winpigler, 8 P.3d 439, 443 (Colo.1999). The warrant requirement interposes an impartial member of the judiciary between the law enforcement officer and the person against whom the arrest and/or search is directed. People v. O'Hearn, 931 P.2d 1168, 1173 (Colo.1997).

The exelusionary rule seeks to deter improper police conduct by suppressing evidence obtained by the police in violation of the Fourth Amendment from presentation during the prosecution's case-in-chief. People v. Kasmierski, 25 P.3d 1207, 1213 (Colo.2001); People v. Morley, 4 P.3d 1078, 1080 (Colo.2000). The exelusionary rule is a "judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).

When reviewing a suppression order, we defer to the trial court's findings of fact, but analyze the trial court's application of legal standards to those facts de novo. Kazmierski, 25 P.3d at 1210.

1. Warrantless Search of Diaz

The police officers took Diaz to the hospital without his consent and obtained blood and hair samples without a court order. This search and seizure was unconstitutional unless an exception to the warrant requirement applies. At the suppression hearing, Officer Oritz testified that the police's failure to seek a Crim. P. 41.1 order was based on exigent cireumstances because of their concern about losing any bodily fluid or hair evidence that may have been transferred from the victim to Diaz. Officer Oritz cited Diaz's clothing change as support for this concern. In Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), the United States Supreme Court held that a warrantless search based upon the existence of probable cause and ready destructibility of the evidence, involving a very limited intrusion undertaken incident to a station house detention, did not violate the Fourth and Fourteenth Amendments. Id. at 296, 93 S.Ct. 2000. In that case, the police scraped under the defendant's fingernails in order to preserve highly evanescent evidence while he was detained at the station house upon probable cause. Cupp, 412 U.S. at 292, 93 S.Ct. 2000.

Here, however, no exigent circumstance existed to justify the warrantless search and seizure. Diaz's blood and hair were not subject to ready disappearances. The search of Diaz was not a very limited intrusion, nor was it conducted to obtain readily destructible evidence. Cupp, 412 U.S. at 296, 93 S.Ct. 2000.

The prosecution urges the court to apply our holding in People v. Williams, 192 Colo. 249, 557 P.2d 399 (1976), to the present case. In Williams, we held that "[in determining whether forced production of bodily fluids is permissible, the appropriate standard is clear indication that evidence of intoxication or drug abuse will be found. Moreover, there must be some indication that evidence of drugs or alcohol, if found, will be relevant to a crime for which the defendant may be charged." Williams, 192 Colo. at 258, 557 P.2d at 406 (emphasis in original). Williams is inapplicable here. Evidence of intoxication or drugs in the human system is ephemeral and can disappear in the time it takes to obtain a court order. Here, the police only obtained Diaz's own hair and blood, items which could easily have been acquired at any time with a court order.

2. Exclusionary Rule and Inevitable Discovery Exception

The trial court applied the exclusion ary rule in this case to suppress the evidence seized in violation of the Fourth Amendment and article II, section 7 of the Colorado Constitution. The prosecution argues that the police-obtained evidence should be admitted under the inevitable discovery exception to the exclusionary rule requirement, because the state may obtain blood and hair samples at any time under Crim. P. 41.1 or Crim. P. 16(II)(a). We disagree. The prosecution's ability to obtain identity evidence under these rules while the criminal case is pending does not satisfy the requirements of the inevitable discovery exception.

The independent source, attenuation, and inevitable discovery doctrines are well-established exceptions to the exelusion-ary rule, and permit the admission of evidence obtained in violation of the Fourth Amendment. Morley, 4 P.3d at 1080. The inevitable discovery exception to the exclusionary rule allows evidence initially discovered in an unconstitutional manner to be received, but only if the prosecution can establish that the information ultimately or inevitably would have been discovered by lawful means. People v. Burola, 848 P.2d 958, 962 (Colo.1993); see People v. Breidenbach, 875 P.2d 879, 889 (Colo.1994).

We have previously stated that the ability to subsequently obtain a lawful search warrant, after the illegal search has occurred, does not satisfy the inevitable discovery exception requirements. Burola, 848 P.2d at 968. Rather, the police must have been pursuing another lawful means of discovery at the time the illegality occurred:

"If evidence is obtained by illegal conduct, the illegality cam be cured only if the police possessed and were pursuing a lawful means of discovery at the time the illegality occurred. The Government cannot later initiate a lawful avenue of obtaining the evidence and then claim that should be admitted because its discovery was inevitable. This is a sound rule, especially when applied to a case in which a search warrant was constitutionally required. Because a valid search warrant nearly always can be obtained after the search has occurred, a contrary holding would practically destroy the requirement that a warrant for the search of the home be obtained before the search takes place."

Id. at 963 (quoting United States v. Satterfield, 743 F.2d 827, 846 (lith Cir.1984), cert. denied, 471 U.S. 1117, 105 S.Ct. 2362, 86 L.Ed.2d 262 (1985) (citations omitted))(emphasis added).

Evidence is not admissible under the inevitable discovery exception based on speculation that the evidence would have been discovered anyway. Breidenbach, 875 P.2d at 889. The prosecutor must establish that there was a reasonable probability that the evidence would have been discovered in the absence of police misconduct, and that the police were pursuing an independent investigation at the time the illegality occurred. Id. at 889.

Here, the prosecution has not shown that an independent police investigation was being conducted, or that the police would have inevitably discovered the evidence through such an investigation despite their misconduct. We conclude that the inevitable discovery exception to the exclusionary rule does not apply in this case to the illegally seized blood and hair evidence. Thus, the trial court properly suppressed the evidence.

B. Trial Court's Sanction

As a sanction for the warrantless police search and seizure of Diaz's hair and blood, the trial court ruled that the prosecution could not pursue a motion for nontesti-monial identification evidence under Crim. P. 16(II)(a) and Crim., P. 41.1. Specifically, the trial court ruled:

In addition to that, this Court as a-I think when we suppress things, we also are to sanction the police To suppress these items and then allow another 41.1, another request under Rule 16 to be made, basically, does absolutely nothing but, I think, encourage the police to act as they did in this case. Therefore, the Court will mot grant any other requests by the prosecution in this matter to gather this specific kind of evidence from this Defendant.

(Emphasis added.)

A court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair. People v. Crow, 789 P.2d 1104, 1106 (Colo.1990). Here, the trial court abused its discretion by forbidding the prosecution from filing a motion under Crim. P. 16(II)(a) and Crim. P. 41.1 for nontestimonial identification evidence. In effect, this ruling sanctioned the prosecution for the police department's misconduct. Although Crim. P. 16(III)(g) provides the trial court with discretion to issue sanctions for discovery violations, the prosecution did not violate Crim. P. 16 and could not be sanctioned for the police conduct in which it did not participate. Accordingly, Crim. P. 16(III)(g) was inapplicable.

The police violated the Fourth Amendment and article II, section 7 of the Colorado Constitution by obtaining blood and hair samples through a warrantless search and seizure without a court order pursuant to Crim. P. 41.1, and no exeeptions to the warrant requirement apply. People v. Schoondermanrk, 759 P.2d 715, 717-18 (Colo.1988)("A warrantless search violates the fourth amendment unless it falls within one of the recognized exceptions to the warrant requirement.") Suppression of the illegally obtained evidence was the sufficient and required remedy for the unconstitutional police search and seizure. Additional sanctions might be appropriate in an instance of governmental loss or destruction of exculpatory and material evidence, discovery violation, or other egregious governmental misconduct. See People v. Braunthal, 31 P.3d 167, 172-73 (Colo.2001).

However, an illegal seizure of previous identification samples from the defendant by the police does not foreclose the prosecution from obtaining identity evidence through proper means after filing of the case. See People v. Madsen, 743 P.2d 437, 439 (Colo.App.1987)(holding that second set of defendant's palm prints were not tainted by prosecution's violation of Crim. P. 16(ID)(a) in obtaining the first set of defendant's palm prints). Crim. P. 41.1 and Crim. P. 16(II)(a) do not prevent the prosecution from filing a request for nontestimonial identification evidence, despite a prior police illegal search and seizure. See Crim P. 41.1, 12 C.R.S. (2001); Crim. P. 16(IM)(a), 12 C.R.S. (2001).

Moreover, in seeking the nontesti-monial identification evidence through Crim. P. 16(ID)(a) and Crim. P. 41.1, the prosecution does not rely on information or evidence the police obtained by means of an illegal search and seizure. See Madsen, 748 P.2d at 439; Schoondermark, 759 P.2d at 719 ("[A] search pursuant to a warrant would not be a genuinely independent source of the challenged evidence if the decision to seek the warrant was prompted by what was observed during the initial entry or if information obtained during that entry was relied upon by the magistrate in issuing the warrant."); People v. Barndt, 199 Colo. 51, 56, 604 P.2d 1173, 1176 (1980). The type of evidence addressed by Crim. P. 41.1 and Crim. P. 16(ID)(a) is nontestimonial identification evidence, such as blood, hair, fingerprints, footprints, ete. See Crim. P. 41.1(b)(2), 12 C.R.S. (2001). The trial court in this case may not preclude the prosecution from requesting this type of nontestimonial identification evidence under Crim. P. 16(ID(a) and Crim. P. 41.1.

IIL

Accordingly, we uphold the trial court's order suppressing the blood and hair samples taken through a warrantless search and seizure without a court order for nontestimo-nial identification evidence collection. We reverse the court order prohibiting the prosecution from applying for and obtaining an order under Crim. P. 16(ID)(a) and Crim. P. 41.1.

      . Sexual Assault, § 18-3-402(1)(a) and (2), 6 C.R.S. (2001).

      . Crime of Violation of a Restraining Order, § 18-6-803.5(1) and (2)(a), 6 C.R.S. (2001).

      . The nurse did not comb for foreign pubic hair or swab for foreign bodily fluid. Accordingly, we do not decide whether exigent circumstances existed for taking that type of evidence without a court order.

      . The case before us is distinguishable from the United States Supreme Court's holding in Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). In Nix, two independent investigations were being conducted simultaneously. Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct 2501, 81 L.Ed.2d 377 (1984)(volunteer search for victim's body was proceeding at same time as police interrogation of defendant). Here, the police were pursuing only one line of investigation.

      . Crim. P. 16(II)(a), 12 C.R.S. (2001), provides:
      Crim. P. 16. Discovery and Procedure Before Trial
      Part IL, Disclosure to Prosecution
      (a) The Person of the Accused.
      (1) Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, upon request of the prosecuting attorney, the court may require the accused to give any nontestimonial identification as provided in Rule 41.1(b)(2).
      (2) Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the prosecuting attorney to the accused and his counsel. Provision may be made for appearance for such purposes in an order admitting the accused to bail or providing for his release.

      . We note that once judicial proceedings against a defendant have been initiated, the prosecution in seeking nontestimonial identification evidence raust proceed with notice through Crim. P. 16(II)(a), which incorporates by reference Crim. P. 41.1(h)(2). See People v. District Court, 664 P.2d 247, 250 n. 5 (Colo.1983); People v. Angel, 701 P.2d 149, 150-51 (Colo.App.1985).