The "bare Bones" Affidavit Under Colorado's Good Faith Exception to the Exclusionary Rule
| Publication year | 2011 |
| Pages | 27 |
2011, May, Pg. 27. The "Bare Bones" Affidavit Under Colorado's Good Faith Exception to the Exclusionary Rule
May 2011
Vol. 40, No. 5 [Page27]
Criminal Law articles are sponsoredby the CBA Criminal Law Section and generally are writtenby prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
About the Authors
Davin Dahl is deputy general counsel for Denver Public Schools. Patrick Thiessen is a law clerk for the Honorable Dennis A. Graham of the Colorado Court of Appeals. The analysis contained in this article is solely that of the authors.
The good faith exception to the Fourth Amendment's exclusionary rule provides that evidence shall not be excluded when the police act in good faith. Submitting a "bare bones" affidavit in support of a search warrant is one circumstance indicating a lack of good faith. This article examines when an affidavit is bare bones.
When police officers obtain evidence under the reasonable belief that a search warrant sets forth probable cause as shown in a supporting affidavit, the good faith exception prevents the Fourth Amendment's exclusionary rule from operating to exclude the evidence. In Colorado, one often-litigated issue under the good faith exception is whether an affidavit is "bare bones," which would prevent a police officer from relying on it in good faith.(fn1)
This article focuses on recent Colorado appellate cases determining when an affidavit is and is not bare bones. It first provides a brief background on the good faith exception. It then surveys the leading U.S. Supreme Court and Colorado Supreme Court cases addressing whether an affidavit is bare bones. It next discusses the recent case of People v. Gutierrez and the three factors used in that case. Finally, it sets forth four factors that other courts have used to analyze whether an affidavit is bare bones.(fn2)
Background
The exclusionary rule operates to suppress evidence obtained directly or indirectlyby the police in violation of the Fourth Amendment.(fn3) 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."(fn4) When applying the exclusionary rule, courts seek to deter police misconduct, not to influence the decisions of judges and magistrates.(fn5)
Under the good faith exception to the exclusionary rule, evidence is not suppressed if the police executed the search under the objectively reasonable belief that the warrant was valid.(fn6) In such cases of good faith reliance, excluding the fruits of the search would not deter future police misconduct.(fn7)
The U.S. Supreme Court first recognized the good faith exception to the exclusionary rule in United States v. Leon.(fn8) The Leon decision set forth four circumstances in which an officer's reliance on a warrant would not be objectively reasonable:
1) where the magistrate issuing the warrant is misledby a knowingly or recklessly made falsehood;
2) where the magistrate wholly abandons his or her judicial role;
3) where the warrant is so facially deficient that it fails to particularize the place to be searched or the things to be seized; and
Colorado courts also use these four circumstances when examining an officer's objective reasonableness.(fn10) This article focuses on the fourth circumstance, and examines when an affidavit is bare bones under U.S. and Colorado law4) where the warrant is based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable," also known as a "bare bones" affidavit.(fn9)
The Leon Decision
The Leon decision involved police officers conducting an extensive drug investigation after receiving information from a confidential informant that several individuals were dealing drugs.(fn11) Based on an affidavit that summarized the informant's observations and the search results, an experienced and well-trained narcotics investigator prepared a search warrant application for several homes and the individuals' cars. A judge issued a facially valid search warrant and the ensuing searches revealed a large quantity of drugs. The individuals were charged with conspiracy to possess and distribute cocaine and a variety of substantive counts in the federal district court.
They filed motions to suppress the evidence seized in the search. The court concluded that the affidavit was insufficient to establish probable cause but did not suppress the evidence because none of the respondents had standing to challenge all of the searches. The Ninth Circuit affirmed, concluding that the affidavit was inadequate because the information was stale, did not establish the informant's credibility, and was not corroboratedby independent police investigation.(fn12)
The Supreme Court discussed how 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."(fn13) Whether application of the exclusionary rule is appropriate is a separate question from whether an individual's Fourth Amendment rights were violated.(fn14) The Court looked at the costs and benefits of applying the exclusionary rule, considering the effect of excluding inherently trustworthy tangible evidence from a prosecutor's case in chief and the impact of impairing the truth-finding function of the criminal justice system.(fn15) After considering these costs, the Court reversed the Ninth Circuit's decision to suppress the evidence, because the investigator's reliance on the magistrate's probable cause determination was "objectively reasonable" and supportedby "much more than a 'bare bones' affidavit."(fn16)
Leon is the last word from the U.S. Supreme Court on the issue of bare bones affidavits.(fn17) That said, there is a substantially richer state jurisprudence, both legislatively and under the Colorado Constitution.
Colorado Statutes and Decisions Involving Bare Bones Affidavits
Neither the Colorado General Assembly nor the Colorado Supreme Court is boundby the U.S. Supreme Court's decision in Leon; the former is free to pass laws and the latter is free to interpret laws in a way that gives more protection to defendants than does the Fourth Amendment. In 1981, three years before Leon, the Colorado General Assembly codified a version of the good faith exception in CRS § 16-3-308(1).(fn18) In 1985, it amended § 16-3-308 to include a mistake of law as another basis under the good faith exception.(fn19) The statute contains a presumption that the police acted in good faith.(fn20) The objectively reasonable test employed to examine whether an affidavit is bare bones and the statutory good faith test are substantially similar.(fn21)
Colorado appellate courts have addressed the bare bones issue in a number of opinions, all decided under the state constitution's prohibition against unreasonable searches and seizures at article II, § 7.(fn22) In 1998, the Colorado Supreme Court described a bare bones affidavit as consisting of "wholly conclusory statements devoid of facts from which a...
To continue reading
Request your trial