Veracity Challenges in Colorado: a Primer
| Publication year | 1985 |
| Pages | 227 |
1985, February, Pg. 227. Veracity Challenges in Colorado: A Primer
The U.S. Supreme Court's 1978 decision in Franks v. Delaware(fn1) found constitutional support for defendants' subfacial attacks on the veracity of affidavits in support of search warrants. Franks permits a defendant to suppress a search warrant if he can show that the officer-affiant recited material facts in the affidavit which were intentionally false or were made with reckless disregard for their truth or falsity.(fn2)
The decision produced no major changes in Colorado law and procedure. As early as 1974, the Colorado Supreme Court had permitted similar challenges upon a preliminary showing of intentional or reckless falsity.(fn3) This article discusses veracity challenges under Franks and under Colorado law, with special emphasis upon those particular statements a defendant may challenge, the appropriate procedure to follow in making a veracity challenge, the remedy where the challenge is successful, and issues which remain unresolved by the Colorado Supreme Court in the context of veracity challenges.
Under Franks and its Colorado progeny,(fn4) an officer-affiant's statements in an affidavit accompanying a search warrant application pursuant to Colorado Rules of Criminal Procedure ("C.R.Crim.P.") Rule 41, may be challenged as being recklessly or intentionally false. Franks did not decide whether a confidential informant's reckless and intentional misstatements can be attacked in a veracity challenge;(fn5) nor did it address the difficult issues of material mistruths by a citizen-affiant or the situation where a fellow officer makes deliberate misstatements upon which an officer-affiant in turn relies in applying for the search warrant.
The Colorado cases do permit an attack on the officer-affiant's truthfulness. In People v. Dailey the court said:
A defendant can attack both material statements in the affidavit, as well as material omissions. The court has recently held that statements may be so misleading "because of the omission of material facts known to the affiant at the time the affidavit was executed that a finding of probable cause based on such statements may be deemed erroneous."(fn7)[R]ather than prohibiting veracity challenges, our cases have repeatedly recognized the appropriateness of such inquiries, at least where the good faith of the police officer-affiant was explicitly or tacitly at issue.(fn6)
It is not clear whether an affiant's merely inaccurate or misleading statement must also be stricken. A pre-Franks case held as much, however, and has not been overruled.(fn8)
Colorado law does not permit an attack upon statements made by an informant and recited by an officer-affiant so long as he relied upon the statements in good faith. In another pre-Franks case, the court said:
That a defendant cannot attack an informant's statements credited in an affidavit is the rule followed in most jurisdictions.(fn10) As the California Supreme Court put it[I]f the material in the affidavit is stated to be or appears to be hearsay information obtained from an informant or other person, and the information turns out to be incorrect, we will not use hindsight as a test to determine whether the search warrant should or should not have been issued. The law is clear that a search warrant may be based upon hearsay, as long as a substantial basis for crediting the hearsay exists.(fn9) (Emphasis added.)
To exclude evidence obtained pursuant to a warrant issued on the basis of facts upon which an affiant has reasonably relied as being accurate serves no purpose of deterrence to unlawful conduct, since, by definition, the affiant has made a reasonable attempt to comply with the requirements of the Fourth Amendment.(fn11)
This is not to say that an informant's statements in an affidavit are absolutely immunized from attack. Colorado law permits such an attack where the statements attributed to the informant bear directly upon the affiant's reckless disregard for the truth or his intentional falsehoods. In People v. Nunez, the court recognized that
errors in an affidavit for a search warrant can result "from the informant's perjury or reckless disregard for the truth, or from the negligence or good
However, in such a case it remains the defendant's burden to demonstrate that the officer deliberately or recklessly misstated the informant's informationfaith mistake of either the officer or the informant." When, following a veracity hearing, the probability of one of those kinds of error has been found, the election of remedies or sanctions is left to the discretion of the district court.(fn12)
LaFave cites two instances where the Franks rule should not apply: (1) where the hearsay of the affiant is from another law enforcement official and (2) where the affiant himself is not a governmental official.
What, for example, if the officer-affiant innocently reported certain "facts" which were supplied to him by another officer who either knew they were false or passed...
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