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ADVANCE SHEET HEADNOTE
November 21, 2016
2016 CO 73
No. 16SA231, People v. Cooper—Criminal Law—Evidence Suppression.
This interlocutory appeal asks whether an officer can reasonably and in good
faith rely on a warrant when the warrant affidavit is devoid of specific dates but
establishes a long, ongoing pattern of drug trafficking from a home. The supreme court
holds that there was enough evidence in the warrant affidavit of an ongoing drug
trafficking operation that an officer could have a reasonable, good faith belief that the
warrant was proper. The supreme court therefore reverses the trial court’s suppression
order and remands for proceedings consistent with this opinion.
1 The Supreme Court of the State of Colorado
2 2 East 14th Avenue • Denver, Colorado 80203
3 2016 CO 73
4 Supreme Court Case No. 16SA231
5 Interlocutory Appeal from the District Court
6 Alamosa County District Court Case No. 15CR304
7 Honorable Michael Gonzales, Judge
8 Plaintiff–Appellant:
9 The People of the State of Colorado,
0 v.
1 Defendant–Appellee:
2 Lonnie Cooper.
3 Order Reversed
4 en banc
5 November 21, 2016
6
7 Attorneys for Plaintiff–Appellant:
8 David Mahonee, District Attorney, Twelfth Judicial District
9 Crista Newmyer-Olsen, Chief Deputy District Attorney
0 Alamosa, Colorado
1
2 Attorneys for Defendant–Appellee:
3 Martinez Law, LLC
4 Esteban A. Martinez
5 Longmont, Colorado
6
7 Henson Law, LLC
8 Patrick R. Henson
9 Denver, Colorado
0
1
2
3
4
5
6 CHIEF JUSTICE RICE delivered the Opinion of the Court.
7 JUSTICE HOOD concurs, and JUSTICE MÁRQUEZ joins in the concurrence.
¶1 This interlocutory appeal requires us to answer whether an officer can
reasonably and in good faith rely on a warrant when the warrant affidavit is devoid of
specific dates but establishes a long, ongoing pattern of drug trafficking from a home.
We hold that there was enough evidence in the warrant affidavit of an ongoing drug
trafficking operation that an officer could have a reasonable, good faith belief that the
warrant was proper. We therefore reverse the trial court’s suppression order and
remand for proceedings consistent with this opinion.
I. Facts and Procedural History
¶2 On September 29, 2015, police officers in Alamosa County, Colorado applied for
and received a warrant to search Lonnie Cooper’s residence and vehicles on his
property for illegal drugs and other items associated with the sale of illegal drugs.
¶3 The warrant application contained the following information:
1. On September 29, 2015, Your Affiant spoke with a confidential
informant regarding drug activity at Lonnie Coopers [sic] (5/22/73)
residence located at 220 Main Street. This address is in the City and
County of Alamosa, State of Colorado.
2. The informant stated that he had purchased both heroin and
methamphetamine from Cooper at the above address. The informant
states that he has at times purchased up to an ounce of heroin from
[C]ooper.
3. The informant states that the narcotics are somewhere within the
residence. He states that [C]ooper sends his nephew into a back room,
and that his nephew returns approximately a minute later with the agreed
amount.
4. The informant states that Cooper carries large quantities in stock, and
sells to only a select few trusted people. The informant knows Cooper
from his childhood, and states that he usually purchases narcotics through
Cooper.
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5. Intelligence reports from other operations have yielded information that
Cooper has been dealing from his residence. Undercover officers
conducted a raid and arrested a separate party, who stated that he
purchased the 25 grams of methamphetamine that he was found with,
from Cooper.
6. The informant states that Cooper usually keeps the narcotics in his
house, but on two separate occasions, has seen him keep it in vehicles on
his property.
7. The informant confirmed intelligence that Cooper is one of the main
movers of methamphetamine and heroin in the valley. The informant also
confirmed several (already known to officers) pieces of information that
would indicate he is being truthful.
8. Your affiant requests that the Honorable Judge grant this search
warrant for the above items listed at the residence identified as 220 Main
Street, Alamosa, Colorado.
¶4 An Alamosa County Court magistrate signed the warrant on the day of
application, September 29, 2015. Police officers searched Cooper’s home and found
controlled substances, drug paraphernalia, and weapons. The State charged Cooper
with two counts of possession with intent to manufacture or distribute a controlled
substance (counts 1 and 2); two counts of conspiracy to possess with the intent to
manufacture or distribute a controlled substance (counts 3 and 4); three counts of
possession of a controlled substance (counts 5–7); seven counts of possession of a
weapon by a previous offender (counts 8–14); one count of possessing a prohibited
large-capacity magazine (count 15); one count of theft (count 16); one special offender
count (count 17); and one habitual criminal count (count 18).
¶5 Cooper moved to suppress the results of the search warrant, arguing that the
supporting affidavit was so lacking in indicia of probable cause that no reasonable
officer could, in good faith, rely on it. The trial court granted Cooper’s motion to
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suppress. The trial court was particularly concerned about the affidavit’s “staleness”—
i.e., the lack of exact dates in the warrant affidavit. The State filed a timely interlocutory
appeal pursuant to section 16-12-202(2), C.R.S. (2016), and C.A.R. 4.1. We now reverse
the trial court’s suppression order and remand for proceedings consistent with this
opinion.
II. Analysis
¶6 The State argues that, even if the warrant was stale and issued in error, the good
faith exception to the exclusionary rule should apply. Therefore, the trial court should
admit the evidence seized pursuant to the warrant. We agree.
¶7 “When reviewing a suppression order, we afford the trial court’s factual findings
deference and will not overturn those findings if they are supported by competent
evidence in the record.” People v. Pacheco, 175 P.3d 91, 94 (Colo. 2006). However, we
review a trial court’s legal conclusions de novo. Id.
¶8 “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 and the things to be seized.” People v. Miller, 75 P.3d 1108, 1112 (Colo. 2003)
(citations omitted). “The warrant must establish probable cause to believe that
contraband or evidence of criminal activity is located in the place to be searched at the
time of the warrant application, not merely some time in the past.” Id.
¶9 “Probable cause exists when an affidavit for a search warrant alleges sufficient
facts to warrant a person of reasonable caution to believe that contraband or evidence of
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criminal activity is located at the place to be searched.” Id. We determine whether
probable cause exists by examining the totality of the circumstances. Id. at 1113.
“Whether information is current or stale plays an important role in the totality of the
circumstances analysis.” Id. “Whether the information is stale and cannot support
probable cause depends on the factual circumstances and the type of crime.” Id.
¶10 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.” United States v. Leon, 468 U.S. 897, 906
(1984). One exception to the exclusionary rule, the good faith exception, applies when,
despite an otherwise invalid warrant, a trial court nonetheless admits evidence because
the officer(s) that executed the warrant had a reasonable good faith belief that the search
was in accord with the Fourth Amendment. Id. at 909.
¶11 Colorado codified the good faith exception to the exclusionary rule at section
16-3-308(4), C.R.S. (2016). Under that section, evidence that would otherwise be
excluded as the result of an invalid warrant should be admitted when the officer’s
conduct was pursuant to a “reasonable, good faith belief that [the warrant] was
proper.” § 16-3-308(4)(a). The statute directs us to presume that an officer’s actions are
in “reasonable good faith” when “the evidence was obtained pursuant to and within the
scope of the warrant, unless the warrant was obtained through intentional and material
misrepresentation.” § 16-3-308(4)(b). “This presumption may be rebutted if the officer
failed to undertake the search in an objectively good faith belief that it was reasonable.”
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Miller, 75 P.3d at 1113. “If no reasonable officer would have relied upon the warrant,
then objective good faith is absent and the good faith exception offers no shelter.” Id.
¶12 As this court noted in Miller, there are four situations in which an officer may not
reasonably rely on a warrant:
(1) where the issuing magistrate was misled by a known or recklessly
made falsehood; (2) where the issuing magistrate wholly abandoned the
judicial role; (3) where the warrant is so facially deficient that the officer
cannot reasonably determine the particular place to be searched or things
to be seized; or (4) 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.
Id. at 1114 (citing Leon, 468 U.S. at 923). We have characterized the fourth situation as a
“bare bones” warrant. See id.
¶13 Whether a warrant is so “bare bones” that no reasonable officer could rely on it
forms the crux of the issue in this case. Specifically, our focus is on one of the “bare
bones” considerations, the “staleness” of the information in the warrant affidavit:
Probable cause to search cannot be based on stale information that no
longer suggests that the items sought will be found in the place to be
searched. The determination of timeliness, however, does not depend on
simply the number of days that have elapsed between the facts relied on
and the issuance of the warrant; instead, whether the information is too
stale to establish probable cause depends on “the nature of the criminal
activity, the length of the activity, and the nature of the property to be
seized.”
United States v. Iiland, 254 F.3d 1264, 1268–69 (10th Cir. 2001) (quoting United States v.
Snow, 919 F.2d 1458, 1459–60 (10th Cir. 1990)). For warrants involving drug trafficking
specifically, when there is evidence “demonstrating that the alleged drug trafficking
activity was ongoing over a considerable period of time . . . the passage of time between
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the suspected illegal activities and issuance of the warrant diminishes in significance.”
Id. at 1269.
¶14 Here, there was enough evidence of an ongoing drug trafficking operation such
that a reasonable officer could have a reasonable, good faith belief that the warrant was
proper. The affidavit contained information that: (1) an informant had purchased
heroin and cocaine from Cooper at his home on multiple occasions; (2) Cooper stores
the drugs in his residence and in vehicles on his property (the warrant application
sought authorization to search the vehicles); (3) Cooper stocks large quantities of drugs;
and (4) other independent operations confirmed that Cooper sold drugs from his
residence. This evidence demonstrated “that the alleged drug trafficking activity was
ongoing over a considerable period of time.” See id. Therefore, the lack of specific
dates does not lead us to conclude that the information was so stale that no reasonable
police officer could rely on the warrant. Rather, the information in the warrant affidavit
was enough for an officer to reasonably—and in good faith—believe that the warrant
established probable cause that Cooper was currently dealing drugs from his residence.
III. Conclusion
¶15 Therefore, we reverse the trial court’s suppression order and remand for
proceedings consistent with this opinion.1
JUSTICE HOOD concurs, and JUSTICE MÁRQUEZ joins in the concurrence.
1 Because we hold that, in any event, the officers’ good faith applies as an exception to
the exclusionary rule, we decline to decide whether the warrant was deficient.
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JUSTICE HOOD, concurring.
¶16 I agree with the majority that the suppression order should be reversed because
an officer could reasonably and in good faith believe the warrant established probable
cause. For those forced to travel this path again, however, I write separately to explain
how I reconcile our decision today with our arguably conflicting decision in People v.
Miller, 75 P.3d 1108 (Colo. 2003).
¶17 In Miller, we affirmed a trial court’s order suppressing evidence because the
warrant used to obtain that evidence was based on stale information. Id. at 1116–17.
The affidavit supporting the warrant contained information about two events tying
methamphetamine manufacturing to the location to be searched (Miller’s house), but
the more recent of those occurred one month before police sought the warrant. Id. at
1114. We held officers could not have reasonably relied on the warrant in good faith
because the affidavit was “bereft of current information about illegal activity at Miller’s
house.” Id. at 1116–17.
¶18 Although such broad language in Miller might seem to support some of
Cooper’s arguments, closer examination of the underlying facts reveals otherwise.
Indeed, neither Miller nor People v. Randolph, 4 P.3d 477 (Colo. 2000), on which
Cooper also relies, compels the result he seeks here. True, both involved stale
information, and in both cases we held that the warrants were “bare bones” upon which
officers could not have reasonably relied in good faith. See Miller, 75 P.3d at 1115–17;
Randolph, 4 P.3d at 482, 484. But in Randolph, we focused on the warrant’s inadequate
geographic particularity—not staleness. 4 P.3d at 484. And the evidence in Miller did
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not demonstrate an ongoing operation at the house to be searched as convincingly as
does the evidence here. There, the evidence showed that Miller had manufactured
drugs twice in his house (one month and four months before the warrant application),
but it also showed that the manufacturing operation was mobile and Miller had
manufactured at other locations. Miller, 75 P.3d at 1115.
¶19 Critically, even though the affidavit here does not contain specific dates, it sets
forth more recent information about criminal activity in the house than the month-old
information in Miller. Some of the informant’s statements in the affidavit—written in
the present tense—indicate that the informant believed the drugs were present in the
house on the day the informant spoke with police, the same day police sought the
warrant. For example, the third paragraph of the affidavit begins, “The informant states
that the narcotics are somewhere within the residence.” (Emphasis added.) While the
value of such present-tense language in establishing probable cause may be debatable,
that language supports the notion that these officers relied on this affidavit in good
faith.
¶20 Perhaps most importantly, the majority opinion does nothing to diminish
Miller’s holding that officers, even in cases involving evidence of ongoing criminal
operations, must supply in the affidavits they tender—and verify in the warrants they
obtain—the “crucial link between the place to be searched and current information of
criminal activity or the presence of contraband there.” See id. at 1116. Instead, the
court today simply concludes that officers in this case could have reasonably believed
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that this “crucial link” had been established by current information. I agree with that
conclusion.
I am authorized to state that JUSTICE MÁRQUEZ joins in this concurrence.
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