People v. Cox

• Decision Date: 05 November 2018
• Docket Number: Supreme Court Case No. 18SA204
• Citation: 429 P.3d 75
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant v. David Lawrence COX, Defendant-Appellee.
• Court: Colorado Supreme Court

429 P.3d 75

The PEOPLE of the State of Colorado, Plaintiff-Appellant

v.David Lawrence COX, Defendant-Appellee.

Supreme Court Case No. 18SA204

Supreme Court of Colorado.

November 5, 2018

Attorneys for Plaintiff-Appellant: Daniel P. Rubinstein, District Attorney, Twenty-First Judicial District, George Alan Holley II, Senior Deputy District Attorney, Grand Junction, Colorado

Attorneys for Defendant-Appellee: Flanders, Elsberg, Herber & Dunn, LLC, Mark A. Herber, Elizabeth A. Raba, Longmont, Colorado

En Banc

JUSTICE SAMOUR delivered the Opinion of the Court.

¶ 1 Believing there was a large marijuana grow on the agricultural and residential land owned by defendant David Cox, law enforcement officers obtained a warrant to search his home and packing shed. After the officers executed the search warrant, Cox was charged with multiple marijuana-related offenses and child abuse. In a pretrial motion, Cox sought to suppress all the evidence seized, arguing, among other things, that the search warrant lacked probable cause.¹ Relying on evidence presented during the preliminary hearing, the trial court granted the motion, finding that certain conclusory statements in the affidavit regarding the presence of marijuana on Cox’s property should be stricken. More specifically, the trial court observed that the affidavit failed to mention that Cox was "a registered and regulated hemp farmer," which authorized him to possess and process industrial hemp.² Further, noted the trial court, the affidavit repeatedly referred to "marijuana," without acknowledging that marijuana and industrial hemp can only be distinguished through chemical testing because they appear and smell the same. The trial court thus ruled that the affidavit did not establish probable cause to believe contraband or evidence of criminal activity would be found on Cox’s property. This interlocutory appeal followed.³

¶ 2 We now reverse the suppression order because we conclude that the trial court erred in three ways. First, the trial court reviewed the magistrate’s probable cause determination de novo instead of according it great deference. Second, the trial court failed to limit its review to the information contained within the four corners of the search warrant’s accompanying affidavit. And third, the trial court did not afford the affidavit the presumption of validity to which it was entitled.

¶ 3 Presuming valid the information articulated within the four corners of the affidavit, we conclude that the magistrate had a substantial basis to find that probable cause existed to believe contraband or evidence of criminal activity would be located on Cox’s property. The trial court therefore erred in ruling that the affidavit failed to establish probable cause. On remand, the trial court should address Cox’s alternative request for a veracity hearing.

I. Affidavit in Support of Search Warrant

¶ 4 In October 2017, Detective Mark Post, a member of the Palisade Police Department, authored the affidavit in support of the warrant used to search Cox’s property.⁴ As relevant here, the affidavit provided as follows:

• Detective Post had been a peace officer for more than five years and a detective since November 2015. On October 13, 2017, he was asked by Sergeant John Cooper to review some images of Cox’s property "for a believed illegal marijuana grow." The property consisted of agricultural and residential land, and included a house and a packing shed. Cox owned both the house and the packing shed.

• In plain view from the roadway, in front of the residence’s two-car garage, there was an area approximately twenty feet wide and thirty feet long that had marijuana drying on top of a blue tarp on the ground. Given Detective Post’s knowledge, training, and experience, it was "immediately apparent" to him that this was marijuana. This opinion was based on the appearance of the plants observed and "the distinctive odor of raw marijuana."

• Detective Post and Sergeant Cooper drove by the area and observed large quantities of marijuana being dried in front of the property, both at "the residence and the packing shed." The packing shed had a large overhang that also had large quantities of marijuana "hung up from the ceiling."

• The Palisade Police Department had been contacted by multiple civilians regarding what was "believed to be the large marijuana grow occurring ... in the shed, and possibly being processed in the shed and in the house."

• Given the large quantity of marijuana, it was "likely that the marijuana [was] being grown inside of the large packing shed." Additionally, there was "likely to be equipment related to the large production of marijuana both in the residence and in the packing shed."

• The quantity of marijuana drying in plain view was "visibly well over what would be considered personal use amounts." Based on Detective Post’s training and experience, it was "reasonable to believe that this marijuana [was] being sold or bartered for illegally." "[I]mportant[ly]," Cox had "recently [been] turned down by the town of Palisade for a recreational license to grow marijuana."

II. Motion to Suppress and Suppression Order

¶ 5 Cox filed a motion to suppress the evidence collected during the search of his property. The crux of the motion was that Detective Post’s affidavit failed to establish probable cause. But the motion largely criticized Detective Post’s attestations as being grounded in his "baseless and incorrect conclusion that marijuana cannabis was drying in plain view on Mr. Cox’s property." Following a hearing, the trial court issued a written order. Based on evidence introduced during the preliminary hearing, it agreed with the motion that the affidavit contained conclusory statements regarding the presence of marijuana on Cox’s property. Thus, the trial court granted Cox’s motion.

III. Analysis

¶ 6 Before analyzing the merits of the People’s appeal, we take a short detour to review the legal principles governing challenges to search warrants. We then apply those principles to determine whether the trial court erred in granting Cox’s motion to suppress based on its finding that Detective Post’s affidavit lacked probable cause.

A. Relevant Law

¶ 7 The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution prohibit unreasonable searches and seizures. People v. Bailey , 2018 CO 84, ¶ 18, 427 P.3d 821. Neither constitutional provision explains what constitutes an unreasonable search, but the United States Supreme Court has inferred from the text of the Fourth Amendment that "a warrant must generally be secured" before a police officer may conduct a search. Id. (quoting Kentucky v. King , 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ). Under both constitutions, "a search warrant may only be issued upon a showing of probable cause, supported by oath or affirmation, particularly describing the place to be searched and the things to be seized." People v. Kerst , 181 P.3d 1167, 1171 (Colo. 2008). An affidavit submitted in support of a search warrant "must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation." Id. Probable cause exists when an affidavit sets forth "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." People v. Miller , 75 P.3d 1108, 1112 (Colo. 2003). A magistrate’s probable cause determination must be based on facts contained "within the four corners of the affidavit" submitted in support of the search warrant. People v. Gallegos , 251 P.3d 1056, 1064 (Colo. 2011).

¶ 8 The affidavit accompanying the search warrant must be afforded "a presumption of validity." Kerst , 181 P.3d at 1171. However, we have recognized that where an affiant’s good faith is at issue, either explicitly or implicitly, the defendant may mount a veracity challenge by requesting a hearing to test the accuracy of the attestations in the affidavit. People v. Flores , 766 P.2d 114, 118 (Colo. 1988). But before a veracity hearing may be held, the defendant’s motion to suppress must satisfy two conditions: (1) it must be supported by at least one affidavit that reflects there is a "good faith basis for the challenge," and (2) it must identify with specificity the "precise statements" being challenged. People v. Dailey , 639 P.2d 1068, 1075 (Colo. 1982).⁵

¶ 9 If the trial court holds a veracity hearing, it must determine whether the affidavit contains erroneous statements and, if so, whether they are the result of "intentional falsehood or reckless disregard for the truth on the part of the officer-affiant." Id. In the event the trial court finds that the defendant has shown by a preponderance of the evidence intentional falsehood or reckless disregard for the truth by the affiant, it must strike the erroneous statements from the affidavit. Id. On the other hand, if the erroneous statements resulted from an informant’s perjury or reckless disregard for the truth, or from the negligence or good faith mistake of either the affiant or an informant, the issue of appropriate sanctions is left to the sound discretion of the trial court. Flores , 766 P.2d at 119–20.

¶ 10 A magistrate’s probable cause determination is generally given "great deference" and is not subject to de novo review. People v. Hebert , 46 P.3d 473, 481 (Colo. 2002) (quotation omitted). This deference is consistent with the preference for police to seek a judicial determination of probable cause, rather than resort to warrantless searches in the hopes of relying on one of the narrowly defined exceptions to the warrant requirement. Id . Consequently, a reviewing court should not attempt to put itself in the shoes of the magistrate and consider whether it would have found probable cause. Id. Instead, "the usual question for a reviewing court is whether the issuing...