People v. Altman

• Citation: 960 P.2d 1164
• Decision Date: 08 June 1998
• Docket Number: No. 96SC837,96SC837
• Parties: 98 CJ C.A.R. 2841 The PEOPLE of the State of Colorado, Petitioner, v. Damian J. ALTMAN, Respondent.
• Court: Supreme Court of Colorado

Page 1164

960 P.2d 1164

98 CJ C.A.R. 2841

The PEOPLE of the State of Colorado, Petitioner, v. Damian J. ALTMAN, Respondent.

No. 96SC837.

Supreme Court of Colorado,

En Banc.

June 8, 1998.

Rehearing Denied June 29, 1998.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Paul Koehler, Assistant Attorney General, Criminal Enforcement Section Denver, for Petitioner.

The Tegtmeier Law Firm, P.C., Richard Tegtmeier, Bradley S. Taylor, Colorado Springs, and Nancy J. Lichtenstein Denver, for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

We granted certiorari ¹ to review issues in People v. Altman, 940 P.2d 1009 (Colo.App.1996) , concerning application of the good faith exception to the exclusionary rule. We now conclude that the affidavit supporting the search warrant in this case was more than a "bare bones" affidavit. Thus, the officer reasonably relied upon the warrant in conducting the search, and the evidence is admissible under the good faith exception to the exclusionary rule. Accordingly, we reverse the decision of the court of appeals and remand the case with directions to reinstate the district court's ruling.

I.

On June 13, 1994, two federal Drug Enforcement Administration (DEA) agents reported to Officer Paul Landolt of the Fort Collins Police Department that two white males had purchased hydroponic growing equipment, of the type commonly used for indoor marijuana cultivation, and had transported the equipment in a rental car to 508 Maple Street in Fort Collins.

Officer Landolt commenced an investigation, and over the next three weeks uncovered additional facts. The rental car used to transport the growing equipment had been rented for ten days, beginning June 10, to Robert Newman who listed an address on Yount Street in Fort Collins. When one of the DEA agents, acting undercover, called the telephone number Newman had given to the rental car agency, a man identifying himself as Newman told the agent that he now lived at 508 Maple. Landholt observed the rental car in the driveway at 508 Maple on June 14 and June 15. During the course of his investigation, Landolt also observed that Newman had two cars of his own registered in his name, which were parked at the Maple Street residence.

Landolt checked the utility records for 508 Maple and discovered that respondent Damian Altman had been paying the bills since October of 1993. Landolt learned that since the utilities at that address had been under Altman's name, the electrical usage had been two to three times higher than that for surrounding residences and two to three times higher than the previous resident's usage.

Landolt is a fourteen-year veteran of the Fort Collins Police Department with over five years' experience in the Special Investigations Unit and training at the federal, state and local level in the area of controlled substance investigations. He has investigated indoor marijuana cultivation on several previous occasions. Based on the purchase of this indoor growing equipment in June at the height of the outdoor growing season, the high electrical usage, and the suspicious circumstances surrounding the apparently unnecessary use of a rental car, Landolt suspected that marijuana was being cultivated at the Maple Street residence.

Landolt continued his investigation. He checked police department records and found that Altman had several prior contacts with Fort Collins police. Landolt also discovered an outstanding warrant for Altman's arrest on misdemeanor charges. ² Landolt checked city sales tax records to ascertain whether a business was registered at the Maple Street address that might account for the high electrical usage. No such record existed.

Believing that there was probable cause to search the Maple Street residence for evidence of a marijuana growing operation, Landolt executed an affidavit in support of a search warrant. The affidavit related the facts we have set forth above.

The magistrate agreed that the affidavit established probable cause and issued a search warrant for 508 Maple. A search of the premises uncovered, among other things, a 96-plant marijuana "farm" in the basement of the residence, operating on hydroponic technology with moving grow lights mounted on ceiling tracks and a carbon dioxide producing machine. On the ground floor, police found psilocybin mushrooms (a Schedule I controlled substance), some 268 grams of marijuana, additional marijuana plants growing in a closet and various documents connecting Altman to the residence.

The state charged Altman with cultivation of marijuana, a class 4 felony under section 18-18-406(8)(a), 6 C.R.S. (1997), and unlawful possession of a Schedule I controlled substance, a class 3 felony under sections 18-18-405(2)(A)(I) and 18-18-203, 6 C.R.S. (1997). Prior to trial, Altman moved to suppress the evidence from the search alleging that Landolt's affidavit did not establish probable cause to search the residence at 508 Maple Street.

The trial judge assigned to the case was, coincidentally, the magistrate who had issued the warrant. After hearing argument on the matter, and upon further reflection, the judge decided that the facts in the affidavit, while creating a certain amount of suspicion, did not rise to the level of probable cause. The judge did not suppress the evidence, however, because of the good faith exception to the exclusionary rule for warrant-based searches contained in section 16-3-308, 6 C.R.S. (1997).

The court convicted Altman of both charges in a bench trial, and Altman appealed his conviction to the court of appeals. Altman argued that the good faith exception was inapplicable because Landolt's affidavit was so lacking in indicia of probable cause as to render the officers' reliance on it objectively unreasonable.

The court of appeals held that under the totality of the circumstances the affidavit did not contain any facts clearly indicating that Altman might have been engaged in criminal activity, and that the degree of suspicion related to the non-criminal activity described was insufficient to establish probable cause. The court further held that the good faith exception to exclusion was inapplicable in this case because this was a "bare bones" affidavit, devoid of facts indicating current or previous illegal drug activity. We granted certiorari to consider the propriety of this ruling and now reverse.

II.

The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution protect persons from unreasonable searches and seizures and prohibit the issuance of a search warrant except upon probable cause supported by oath or affirmation particularly describing the place to be searched and objects to be seized. See U.S. Const. amend. IV; Colo. Const. art. 2, § 7. To establish probable cause, an affidavit in support of a warrant must allege facts sufficient to cause "a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched." People v. Quintana, 785 P.2d 934, 937 (Colo.1990). The analysis of probable cause under both the state and federal constitutions looks at the totality of the circumstances. See People v. Turcotte-Schaeffer, 843 P.2d 658, 660 (Colo.1993) (noting that we have adopted the standard set by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), for probable cause analysis under the Colorado Constitution). The probable cause standard does not lend itself to mathematical certainties and should not be laden with hypertechnical interpretations or rigid legal rules. See People v. Leftwich, 869 P.2d 1260, 1266 (Colo.1994); People v. Atley, 727 P.2d 376, 378 (Colo.1986). Rather, judges, considering all of the circumstances, must make a practical, common-sense decision whether a fair probability exists that a search of a particular place will reveal contraband or evidence of a crime. See Atley, 727 P.2d at 377-78.

Because there is no precise formula for determining probable cause, "[r]easonable minds frequently may differ on the question whether a particular affidavit establishes probable cause." United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); see also Turcotte-Schaeffer, 843 P.2d at 662 (acknowledging that the "facts here present a very close case of probable cause and a different issuing judge may have required more information before issuing a warrant"); United States v. Cancelmo, 64 F.3d 804, 807 (2d Cir.1995) (recognizing that "the question of whether probable cause existed in the instant case is a close one").

Here, the facts present a vivid illustration of the principle that reasonable minds may differ on the issue of whether an affidavit sets forth sufficient information to comprise probable cause. A magistrate issued the warrant; that same judicial officer then concluded upon further review that the affidavit was insufficient.

We now address our certiorari questions in inverse order, beginning with the question of whether the good faith exception to the exclusionary rule protects the search at issue in this case.

III.

A.

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." Leon, 468 U.S. at 907, 104 S.Ct. 3405 (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)); see also People v. Deitchman, 695 P.2d 1146, 1160 (Colo.1985) (Dubofsky, J., concurring). It is police officers, not judges and magistrates, whose conduct we seek to influence through application of the exclusionary rule. See Leon 468 U.S. at 917, 104 S.Ct. 3405 ("Imposition of...