People v. Kazmierski, 00SA395.

• Decision Date: 25 June 2001
• Docket Number: No. 00SA395.,00SA395.
• Citation: 25 P.3d 1207
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Richard KAZMIERSKI and Kathy Knafla, Defendants-Appellees.
• Court: Colorado Supreme Court

25 P.3d 1207

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Richard KAZMIERSKI and Kathy Knafla, Defendants-Appellees.

No. 00SA395.

Supreme Court of Colorado, En Banc.

June 25, 2001.

David J. Thomas, District Attorney, First Judicial District, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, CO, Attorneys for Plaintiff-Appellant.

Cynthia Sheehan, Denver, CO, Attorney for Defendant-Appellee Richard Kazmierski.

Casey J. Mulligan, Boulder, CO, Attorney for Defendant-Appellee Kathy Knafla.

Justice KOURLIS delivered the Opinion of the Court.

In this interlocutory appeal, the People contest the trial court's suppression of evidence obtained pursuant to the execution of a search warrant. The trial court determined that certain statements made by the officer-affiant in the affidavit in support of the warrant were not accurate and were made with reckless disregard for the truth. The trial court thus struck those statements from the affidavit and then examined it to determine whether the remaining assertions established probable cause. The trial court ruled that the resultant affidavit was conclusory, lacking in particularity, and insufficient to establish probable cause for the issuance of a search warrant. Accordingly, the trial court applied the exclusionary rule and suppressed the physical evidence obtained during the execution of the search warrant.

The People make two arguments on this appeal: first, that the redacted affidavit does establish sufficient probable cause for issuance of a search warrant for the defendants' residence; and second, that even if the affidavit is lacking, it is not so flawed as to undermine the application of the good-faith exception to the exclusionary rule, which would protect evidence seized in accordance with a lawfully issued warrant. We agree with the trial court that the affidavit does not establish probable cause to search the residence. Further, we decline to apply the good-faith exception to protect evidence seized pursuant to a search warrant obtained and executed by an officer who made statements in the supporting affidavit with reckless disregard for the truth.

I.

On November 4, 1999, Detective Douglas Tiller of the West Metro Drug Task Force obtained a warrant authorizing the search of a residence, outbuildings, vehicles and persons for evidence relating to manufacture of methamphetamine. The affidavit in support of the warrant, sworn out by Detective Tiller, recited that defendants Richard Kazmierski and Kathy Knafla had purchased known precursors to methamphetamine, including $70 worth of pseudoephedrine, iodine crystals, and hypophosphorous over a period of five months. Defendants presented identification at these points of sale; the salespeople reported the sales and the investigators then traced the leads to a shared residence at 400 South Foote Street in Lafayette, Colorado. The affidavit also recited that the defendants drove the same black car on various occasions. The affidavit alleged that Detective Tiller observed defendant Knafla driving the car while smoking something in a clear glass pipe of a type often used for methamphetamine. The affidavit further stated that defendant Kazmierski formerly served as a Denver police officer, who was terminated from duty while a SWAT team stood by in support; and that Kazmierski had a number of arrests for assault. The affidavit also averred that Kazmierski had been arrested for marijuana cultivation at some earlier unspecified time, that he had admitted to methamphetamine use at the time of that arrest, and that officers found drug paraphernalia in the residence where marijuana was being cultivated at the time of that arrest. The affidavit did not allege that any person had witnessed the transportation of any precursor materials into the residence, or witnessed any drug related activity in the residence or in any of the outbuildings.

Once the warrant was signed, Detective Tiller undertook the search. Based on the evidence discovered during the execution of the warrant,¹ the People charged defendants with four drug counts involving methamphetamine.² Each defendant entered a not guilty plea and filed a number of motions including motions to suppress the evidence obtained in the shared residence at 400 South Foote Street. Defendants claimed in the motion to suppress that the affidavit supporting the warrant lacked probable cause, that the officer-affiant included knowingly or recklessly made falsehoods; and that the good-faith exception to the exclusionary rule should not be used to protect evidence obtained in the search.

At the hearing on the motion to suppress, the trial court focused on whether the statements in the affidavit were false and whether they would substantially mislead the judge issuing the warrant pursuant to People v. Winden, 689 P.2d 578, 583 (Colo.1984). Together, the defendants challenged the truthfulness of four statements in the affidavit.

The trial court found that the defendants proved by a preponderance of the evidence that three of the statements were erroneous and made with reckless disregard for the truth.³ In accordance with the requirements set forth in People v. Dailey, 639 P.2d 1068, 1074 (Colo.1982), the trial judge struck the statements from the affidavit and determined that without the statements, the affidavit failed to establish probable cause authorizing a search for evidence relating to production of methamphetamine. The trial court thus suppressed all evidence obtained during the search.

II.

We begin by restating the principle that a reviewing court, in the context of a suppression motion, defers to a trial court's findings of fact, but analyzes de novo the trial court's application of legal standards to those facts as a question of law. People v. Rivas, 13 P.3d 315, 320 (Colo.2000). It falls to the appellate court to shoulder responsibility to "ascertain whether the trial court's legal conclusions are supported by sufficient evidence and whether the trial court applied the correct legal standard." People v. King, 16 P.3d 807, 812 (Colo.2001) (citations omitted).

Here, the trial court held a veracity hearing, occasioned by the defendants' motions and affidavits. See Winden, 689 P.2d at 581

(setting forth requirements for a veracity hearing to comply with the Fourth Amendment of the federal constitution); Dailey, 639 P.2d at 1075 (allowing a defendant to make a specific, good-faith challenge to the veracity of an affidavit supporting a warrant). At that hearing, the court examined the statements challenged by the defendants to determine first their accuracy, and if false, to determine the source of the errors. Winden, 689 P.2d at 583. "If the source of the error is intentional falsehood or reckless disregard for the truth on the part of the officer-affiant, the statements must be stricken from the affidavit." Dailey, 639 P.2d at 1075. If the remaining statements fail to establish probable cause, the court must grant the motion to suppress. Id.

At the veracity hearing before the trial court, the defendants made the following challenges. First, the affidavit included information about defendant Kazmierski's arrest for cultivation of marijuana. Defendant Kazmierski did not dispute the accuracy of this information but argued that the information was misleading because it omitted the fact that he was ultimately convicted for possession of marijuana, not cultivation. Second, defendant Kazmierski challenged the affidavit's assertion that he had been the subject of "several arrests for assault." In fact, the trial court heard evidence that Kazmierski's record showed only one arrest for assault, which occurred some eighteen years before the warrant was executed. Third, Kazmierski challenged the affidavit's assertion that "he is a former police officer and the SWAT team was called to `stand by' at his termination." The trial court heard no evidence supporting any SWAT team involvement in Kazmierski's dismissal from the police force. Finally, defendants challenged the assertion in the affidavit that Knafla purchased a total of six twelve-ounce bottles of iodine crystals from Walker Cage & Feed. The defendants produced evidence that Walker Cage & Feed only sold two-ounce bottles of iodine crystals and had never sold twelve-ounce bottles.

The trial court first found that although the affidavit failed to recount the ultimate disposition of the marijuana charge, no judge or magistrate would be substantially misled by that omission. Thus, the trial court allowed that statement to remain in the affidavit. See Winden, 689 P.2d at 583

(allowing the trial court discretion to determine whether an omission renders an affidavit substantially misleading). Next, the trial court applied the three-part test set forth in People v. Dailey, 639 P.2d at 1074-75, and concluded that the statements about the several arrests for assault, the reference to the SWAT team and the size of the iodine crystal bottles were all false. See Dailey, 639 P.2d at 1075 (requiring a showing that challenged statements are false). The court further determined that there was no basis for the statements and the officer's decision to include them was made with reckless disregard for the truth of the statements. The trial court thus struck the statements from the affidavit. See id. As to the iodine crystal bottles, the trial court struck any reference to size, but not to the purchase of iodine crystals from the affidavit, because of the officer's failure to ascertain the correct size of the bottles.

Accordingly, having stricken the false and recklessly made statements from the affidavit, the trial court proceeded to consider whether the affidavit sufficiently stated probable cause sufficient for a search, and concluded that it did not.

III.

The People do not challenge the trial court's findings as to the falsity and recklessness of the statements. Rather, the People contest the...