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    Defective Search Warrant? Doesn’t Matter – The Good Faith “Loophole” Under Colorado Law

    By H. Michael Steinberg – Colorado Drug Crimes Criminal Defense Lawyer – Attorney

    Many search warrants are the result of confidential informants - for whatever reason - tipping off the police of suspected drug sales occurring at a specific location. The issue in a recent case decided by the Colorado Supreme Court is how "stale" can the "tip" be before it is no longer reliable. The answer... it doesn’t seem to matter.Defective Search Warrant? Doesn’t Matter – The Good Faith “Loophole” Under Colorado Law – Many search warrants are the result of confidential informants – for whatever reason – tipping off the police of suspected drug sales occurring at a specific location. The issue in a recent case decided by the Colorado Supreme Court is how “stale” can the “tip” be before it is no longer reliable. The answer… it doesn’t seem to matter.

    People v. Cooper was decided by the Colorado Supreme Court on November 21, 2016. It explores the outer limits of the so called “good faith” exception to an admittedly Colorado defective search warrant.

    The lower court granted the Defendant’s Motion to Suppress Evidence (LINK) and the Supreme Court reversed that suppression order.

    Some Foundational Colorado Criminal Search Warrant Law

    The Fourth Amendment to the United States Constitution and article II, section 7, of the Colorado Constitution prohibit the issuance of a search warrant except upon probable cause supported by oath or affirmation particularly describing the place to be searched and the things to be seized.

    The warrant must establish probable cause to believe that contraband or evidence of criminal activity is located in the place to be searched at the time of the warrant application, not merely some time in the past.

    Probable cause exists when an affidavit for a search warrant alleges sufficient facts to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched.

    Probable cause exists by examining the totality of the circumstances.

    Whether information is current or stale plays an important role in the totality of the circumstances analysis.

    Whether the information is stale and cannot support probable cause depends on the factual circumstances and the type of crime.

    The exclusionary 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.

    When A Colorado Search Warrant Is Defective – The Good Faith Exception Analysis

    The whittling away of your constitutional rights occurs when the law begins to use the words “good faith.”

    One exception to the exclusionary rule, the good faith exception, applies when, despite an otherwise invalid warrant, a trial court nonetheless admits evidence because the officer(s) that executed the warrant had a reasonable good faith belief that the search was in accord with the Fourth Amendment.

    The Colorado “good faith exception” to the exclusionary rule is found at section 16-3-308(4), C.R.S. This law providies that evidence that would otherwise be excluded as the result of an invalid warrant should be admitted when the officer’s conduct was pursuant to a “reasonable, good faith belief that the warrant was proper.” § 16-3-308(4)(a).

    Here Is The Colorado Good Faith Exception Law

    Colorado Revised Statutes Title 16. Criminal Proceedings § 16-3-308. Evidence, admissibility, declaration of purpose, definitions

    (1) Evidence which is otherwise admissible in a criminal proceeding shall not be suppressed by the trial court if the court determines that the evidence was seized by a peace officer, as described in section 16-2.5-101, as a result of a good faith mistake or of a technical violation.

    (2) As used in subsection (1) of this section:

    (a) “Good faith mistake” means a reasonable judgmental error concerning the existence of facts or law which if true would be sufficient to constitute probable cause.

    (b) “Technical violation” means a reasonable good faith reliance upon a statute which is later ruled unconstitutional, a warrant which is later invalidated due to a good faith mistake, or a court precedent which is later overruled.

    (3) Evidence which is otherwise admissible in a criminal proceeding and which is obtained as a result of a confession voluntarily made in a noncustodial setting shall not be suppressed by the trial court.

    (4)(a) It is hereby declared to be the public policy of the state of Colorado that, when evidence is sought to be excluded from the trier of fact in a criminal proceeding because of the conduct of a peace officer leading to its discovery, it will be open to the proponent of the evidence to urge that the conduct in question was taken in a reasonable, good faith belief that it was proper, and in such instances the evidence so discovered should not be kept from the trier of fact if otherwise admissible. This section is necessary to identify the characteristics of evidence which will be admissible in a court of law. This section does not address or attempt to prescribe court procedure.

    (b) It shall be prima facie evidence that the conduct of the peace officer was performed in the reasonable good faith belief that it was proper if there is a showing that the evidence was obtained pursuant to and within the scope of a warrant, unless the warrant was obtained through intentional and material misrepresentation

    The statute directs us to presume that an officer’s actions are in “reasonable good faith” when “the evidence was obtained pursuant to and within the scope of the warrant, unless the warrant was obtained through intentional and material misrepresentation.” § 16-3-308(4)(b).

    This presumption may be rebutted if the officer failed to undertake the search in an objectively good faith belief that it was reasonable.”

    If no reasonable officer would have relied upon the warrant, then objective good faith is absent and the good faith exception offers no shelter.”

    The FOUR Situations Where The State CANNOT Rely On The Good Faith Exception

    Under Colorado law – the Courts have found that there are four situations in which an officer may not reasonably rely on a warrant:

    (1) where the issuing magistrate was misled by a known or recklessly made falsehood;

    (2) where the issuing magistrate wholly abandoned the judicial role;

    (3) where the warrant is so facially deficient that the officer cannot reasonably determine the particular place to be searched or things to be seized; or

    (4) where the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.

    A “Bare Bones” Search Warrant

    Where a warrant is based on an affidavit that is: so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable

    ….is characterized as a “bare bones” warrant. This warrant is called a “bare bones” warrant because the Court must find – after reviewing the four corners of the warrant that “no reasonable officer could rely on it forms the crux of the issue in this case. “

    When the Defendant alleges the warrant does not contain enough information about the “staleness” of the information in the warrant affidavit, the Court then reviews the remaining information in the warrant itself.

    Here is what the “Cooper” Court said about this issue:

    Probable cause to search cannot be based on stale information that no longer suggests that the items sought will be found in the place to be searched. The determination of timeliness, however, does not depend on simply the number of days that have elapsed between the facts relied on and the issuance of the warrant; instead, whether the information is too stale to establish probable cause depends on “the nature of the criminal activity, the length of the activity, and the nature of the property to be seized.”

    For warrants involving drug trafficking specifically, when there is evidence “demonstrating that the alleged drug trafficking activity was ongoing over a considerable period of time . . . the passage of time between the suspected illegal activities and issuance of the warrant diminishes in significance.”

    The Court therefore found that the affidavit, even if it was deficient as to when the so called drug sales actually took place – was saved from the exclusionary rule because it was not so “bare bones” that it could not meet the broad language found in the “good faith” exception.

    “We hold that there was enough evidence in the warrant affidavit of an ongoing drug trafficking operation that an officer could have a reasonable, good faith belief that the warrant was proper.”

    Defective Search Warrant? Doesn’t Matter – The Good Faith “Loophole” Under Colorado Law

    If you found any of the information I have provided on this web page article helpful please click my Plus+1 or the Share buttons for Twitter and Facebook below so that others may also find it.

    The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

    If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

    Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael at your side every step of the way – advocating for justice and the best possible result in your case.

    Over 40 Years Specializing in Colorado Criminal LawABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

    “A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

    You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Defective Search Warrant? Doesn’t Matter – The Good Faith “Loophole” Under Colorado Law.

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    Defective Search Warrant? Doesn’t Matter - The Good Faith
    Article Name
    Defective Search Warrant? Doesn’t Matter - The Good Faith
    Description
    Many search warrants are the result of confidential informants - for whatever reason - tipping off the police of suspected drug sales occurring at a specific location. The issue in a recent case decided by the Colorado Supreme Court is how "stale" can the "tip" be before it is no longer reliable. The answer... it doesn’t seem to matter.
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    ___________________________
    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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