People v. Fortune

• Decision Date: 13 January 1997
• Docket Number: No. 96SA345,96SA345
• Parties: 21 Colorado Journal 71 The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Timothy FORTUNE, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1341

930 P.2d 1341

21 Colorado Journal 71

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Timothy FORTUNE, Defendant-Appellee.

No. 96SA345.

Supreme Court of Colorado En Banc.

Jan. 13, 1997.

John W. Suthers, District Attorney, Fourth Judicial District, Elizabeth Anne Kirkman, Deputy District Attorney, Gordon R. Denison, Colorado Springs, for Plaintiff-Appellant.

Elvin L. Gentry, P.C., Elvin L. Gentry, Marla Prudek, Colorado Springs, for Defendant-Appellee.

Justice SCOTT delivered the Opinion of the Court.

In this interlocutory appeal, we review an order of the trial court suppressing evidence obtained pursuant to a search warrant. The affidavit supporting the search warrant did not include information related to the child-victim's background prior to the incident in question. The trial court concluded that the warrant was not supported by probable cause because the affidavit, which omitted background information relating to the child-victim's credibility without corroboration of his allegations, was substantially misleading. Because the information omitted was not material and because statements of a victim generally need not be corroborated to support a finding of probable cause, we reverse the trial court's ruling and remand the case for further proceedings.

I.

On February 10, 1996, eleven-year-old C.S. told his father that an adult friend and neighbor, defendant Timothy Fortune, had sexually abused him. The father called the Colorado Springs Police Department to report his son's allegations. On February 11, 1996, Officer David Hagan arrived at the home of C.S. and undertook a preliminary investigation by interviewing both C.S. and his father.

C.S. explained that he had been spending time at defendant's house playing cards and watching television for approximately six months and that each time he was there, defendant would bring out pornographic magazines and videos. C.S. also described in detail several instances of sexual activity by the defendant, either in front of or with C.S. C.S. also told Officer Hagan that, while watching the Superbowl with several other boys at defendant's house, the boys had "mooned" the television. After the other boys had left, defendant encouraged C.S. to drop his pants and "moon" the television again. C.S. stated that, when he did so, defendant stared at his genitals.

On February 12, 1996, Detective Richard Hunt and a victim's advocate conducted a follow-up interview with C.S. and his parents at the Children's Advocacy Center in Colorado Springs. C.S. repeated, but with more detail, the same information he had given to his father and to Officer Hagan. C.S. also provided the names of the three other boys who had been at defendant's house during the Superbowl and stated that they would also know about the pornographic magazines and the mooning of the television during the Superbowl. C.S. did not claim that the other boys had been sexually assaulted.

The trial court found that during these interviews, C.S.'s father voluntarily informed the police officers that because C.S. was suffering from a detachment and abandonment disorder, he was capable of fabrication, that he could be a good actor or a con artist, and that he could make up stories. However, the father also stated that, "I don't believe [C.S.] is fabricating this story." ¹ The father further informed the officers that C.S. was in therapy due to his behavioral problems.

In preparing the affidavit in support of the search warrant, Detective Hunt did not include the background information provided by the father relating to C.S.'s past behavioral problems and his ability to fabricate stories. Also, because Detective Hunt prepared the affidavit immediately after the interview with C.S. and his parents on February 12th, it did not contain any information from the other boys who were present at various times with C.S. at defendant's house. That evening, Detective Hunt presented the affidavit to a judge who signed it at approximately 8:00 p.m. The warrant was executed immediately and the police seized physical evidence that corroborated the statements of C.S. Defendant was arrested and charged with sexual assault on a child, attempted sexual assault on a child, and obscenity.

During a suppression hearing held in August 1996, Detective Hunt testified that he hadn't thought it necessary or relevant at the time to include in the affidavit the information regarding C.S.'s history and his father's comments that C.S. had the capacity to make up stories because he did not believe the father was trying to warn him about any credibility issues. Rather, the detective testified that the father "was trying to give him an accurate assessment of [C.S] and his behavioral problems." Furthermore, Detective Hunt stated that the impact of the father's statements was minimalized by his subsequent qualification that, although C.S. had lied in the past, he didn't think C.S. was fabricating this story. ²

The trial court nevertheless determined that the detective's omissions from the affidavit rendered the affidavit substantially misleading because they directly related to the credibility of the victim and were therefore relevant. The trial court stated: "If all the information was in the warrant, including this info [sic], this Court would not have signed the warrant." Thus, the court granted the defendant's motion to suppress all evidence found during the execution of the search warrant.

This interlocutory appeal followed. Because we conclude that the omissions as to the background of the child victim did not render the affidavit substantially misleading, corroboration of the victim's statements was not necessary to support a finding of probable cause, and the trial court's findings are not supported by the record, we reverse and remand for further proceedings consistent with this opinion.

II.

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 or the objects to be seized. ³ Probable cause exists when an affidavit supporting a search warrant alleges facts sufficient for a person of reasonable caution to believe that contraband or material evidence is located in the place to be searched. People v. Pate, 878 P.2d 685, 689 (Colo.1994).

The omission of material facts known to the affiant at the time the affidavit was executed may cause statements within the affidavit to be so misleading that a finding of probable cause based on such statements may be deemed erroneous. People v. Winden, 689 P.2d 578, 583 (Colo.1984). An omitted fact is material for purposes of vitiating an entire affidavit only if its omission rendered the affidavit substantially misleading to the judge who issued the warrant. People v. Unruh, 713 P.2d 370, 381 (Colo.1986). However, there is no requirement that all steps taken, all information obtained, and all statements made by witnesses during the course of an investigation be described fully and in chronological order in an affidavit. Finally, we have held that doubts must be resolved in favor of a magistrate's determination of probable cause in order to avoid creating a climate in which police resort to warrantless searches rather than obtaining a warrant before conducting a search. People v. Abeyta, 795 P.2d 1324, 1327 (Colo.1990).

III.

Here, the trial court determined that the omissions from the affidavit relating to the troubled history and behavioral problems of C.S. and the lack of corroboration of the boy's report indicated a lack of trustworthiness, rendering the affidavit substantially misleading and, therefore, probable cause was lacking. We disagree.

A.

In the context of probable cause, the type of showing necessary to establish the trustworthiness of the information supporting the search or arrest will vary with the source of the information. People v. Henry, 631 P.2d 1122, 1127 (Colo.1981). For example, when the information originates from an anonymous informer, or a person from the criminal environment acting out of self-interest, there must be evidence of adequate circumstances to justify the officer's belief in the informer's credibility or the reliability of his information. Id.; see also United States v. Harris, 403 U.S. 573, 579, 91 S.Ct. 2075, 2079-80, 29 L.Ed.2d 723 (1971).

However, it is generally agreed that a similar showing of trustworthiness or credibility is not needed when the information comes from an ordinary citizen. Henry, 631 P.2d at 1127, 2 Wayne R. LaFave, Search and Seizure § 3.4, at 205 (3d ed. 1996). When the source of the information is a citizen-informer who witnessed a crime and is identified, the citizen's information is presumed to be reliable and the prosecution is not required to establish either credibility of the citizen or the reliability of his information. Henry, 631 P.2d at 1127; People v. Hubbard, 184 Colo. 225, 228-29, 519 P.2d 951, 953 (1974). Importantly, the citizen-witness rule applies equally to a citizen-victim. "It is simply unreasonable to presume, in the absence of any contrary evidence, that the ordinary citizen who fortuitously becomes a victim of a crime is likely to offer false or untrustworthy information to the police." Henry, 631 P.2d at 1127. Thus, corroboration of a victim's report is generally not necessary when submitting an affidavit in support of a search warrant. ⁴

Defendant nevertheless argues that the trial court properly concluded that "contrary evidence" existed as to the lack of credibility or trustworthiness of C.S. and, therefore, such information, if included in the affidavit would have affected the issuing magistrate's determination of probable cause under the warrant. We disagree that this information was material such that, by including it in the affidavit, the issuing magistrate would have found...