v. Cox , 429 P.3d 75 ( 2018 )

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ADVANCE SHEET HEADNOTE
November 5, 2018
2018 CO 88
No. 18SA204, People v. Cox—Searches and Seizures—Judicial Review or
Determination—Scope of Inquiry or Review, in General.
In this interlocutory appeal, the supreme court considers whether the trial court
erred in ruling that the affidavit in support of a search warrant failed to establish probable
cause. The search warrant was obtained after law enforcement officers observed what
they believed was a large marijuana grow on the defendant’s agricultural and residential
property. The trial court found that the affidavit was deficient because it failed to
mention that the defendant was a registered industrial hemp farmer and that marijuana
and industrial hemp appear and smell the same. The supreme court concludes that the
trial court erred by (1) reviewing the magistrate’s probable cause determination de novo
instead of according it great deference, (2) considering information not contained within
the four corners of the affidavit, and (3) failing to afford the affidavit a presumption of
validity. When giving the information articulated within the four corners of the affidavit
the presumption of validity to which it is entitled, the supreme court determines that the
magistrate had a substantial basis to find that probable cause existed to believe that
contraband or evidence of criminal activity would be found on the defendant’s property.
Therefore, the trial court’s suppression order is reversed.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2018 CO 88
Supreme Court Case No. 18SA204
Interlocutory Appeal from the District Court
Mesa County District Court Case No. 17CR1974
Honorable Brian James Flynn, Judge
______________________________________________________________________________
Plaintiff-Appellant:
The People of the State of Colorado,
v.
Defendant-Appellee:
David Lawrence Cox.
______________________________________________________________________________
Order Reversed
en banc
November 5, 2018
______________________________________________________________________________
Attorneys for Plaintiff-Appellant:
Daniel P. Rubinstein, District Attorney, Twenty-First Judicial District
George Alan Holley II, Senior Deputy District Attorney
Grand Junction, Colorado
Attorneys for Defendant-Appellee:
Flanders, Elsberg, Herber & Dunn, LLC
Mark A. Herber
Elizabeth A. Raba
Longmont, Colorado
JUSTICE SAMOUR delivered the Opinion of the Court.
JUSTICE GABRIEL specially concurs.
¶1 Believing there was a large marijuana grow on the agricultural and residential
land owned by defendant David Cox, law enforcement officers obtained a warrant to
search his home and packing shed. After the officers executed the search warrant, Cox
was charged with multiple marijuana-related offenses and child abuse. In a pretrial
motion, Cox sought to suppress all the evidence seized, arguing, among other things, that
the search warrant lacked probable cause.1 Relying on evidence presented during the
preliminary hearing, the trial court granted the motion, finding that certain conclusory
statements in the affidavit regarding the presence of marijuana on Cox’s property should
be stricken. More specifically, the trial court observed that the affidavit failed to mention
that Cox was “a registered and regulated hemp farmer,” which authorized him to possess
and process industrial hemp.2 Further, noted the trial court, the affidavit repeatedly
1 In the alternative, Cox requested a veracity hearing to test the truthfulness of the
assertions set forth in the affidavit.
2Amendment 64 defines “industrial hemp,” commonly known as “hemp,” as “the plant
of the genus cannabis and any part of such plant . . . with a delta-9 tetrahydrocannabinol
concentration that does not exceed three-tenths percent on a dry weight basis.” Colo.
Const. art. XVIII, § 16(2)(d); see also § 35-61-101, C.R.S. (2018) (containing a similar
definition of industrial hemp). Industrial hemp “is an agricultural commodity that
belongs to the cannabis family,” but has only “trace amounts” of the psychoactive
component of marijuana “(delta-9 tetrahydrocannabinol or THC), typically around .03
percent,” which stands in stark contrast to most marijuana strains that are sold in
Colorado and “range between 8 and 30 percent THC.” Legislative Council Colo. Gen.
Assembly, 2018 State Ballot Information Booklet 6 (Sept. 11, 2018),
https://perma.cc/9MYG-PXFP. Industrial hemp’s applications include “building
material, food, fuel, medicine, paper, plastic substitute, rope, and textiles.” Id.
Amendment 64 makes clear that the definition of marijuana “does not include industrial
hemp.” Colo. Const. art. XVIII, § 16(2)(f).
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referred to “marijuana,” without acknowledging that marijuana and industrial hemp can
only be distinguished through chemical testing because they appear and smell the same.
The trial court thus ruled that the affidavit did not establish probable cause to believe
contraband or evidence of criminal activity would be found on Cox’s property. This
interlocutory appeal followed.3
¶2 We now reverse the suppression order because we conclude that the trial court
erred in three ways. First, the trial court reviewed the magistrate’s probable cause
determination de novo instead of according it great deference. Second, the trial court
failed to limit its review to the information contained within the four corners of the search
warrant’s accompanying affidavit. And third, the trial court did not afford the affidavit
the presumption of validity to which it was entitled.
¶3 Presuming valid the information articulated within the four corners of the
affidavit, we conclude that the magistrate had a substantial basis to find that probable
cause existed to believe contraband or evidence of criminal activity would be located on
Cox’s property. The trial court therefore erred in ruling that the affidavit failed to
3 The People bring this interlocutory appeal pursuant to section 16-12-102(2), C.R.S.
(2018), and C.A.R. 4.1(a). We find that the People have met the threshold requirement to
file an interlocutory appeal in this court from a district court’s order granting a
defendant’s motion to suppress evidence. See § 16-12-102(2) (the People must certify that
the appeal is not taken for purposes of delay and that the evidence is a substantial part of
the proof of the charge pending against the defendant); C.A.R. 4.1(a) (same).
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establish probable cause. On remand, the trial court should address Cox’s alternative
request for a veracity hearing.
I. Affidavit in Support of Search Warrant
¶4 In October 2017, Detective Mark Post, a member of the Palisade Police
Department, authored the affidavit in support of the warrant used to search Cox’s
property.4 As relevant here, the affidavit provided as follows:
• Detective Post had been a peace officer for more than five years and a detective
since November 2015. On October 13, 2017, he was asked by Sergeant John
Cooper to review some images of Cox’s property “for a believed illegal
marijuana grow.” The property consisted of agricultural and residential land,
and included a house and a packing shed. Cox owned both the house and the
packing shed.
• In plain view from the roadway, in front of the residence’s two-car garage,
there was an area approximately twenty feet wide and thirty feet long that had
marijuana drying on top of a blue tarp on the ground. Given Detective Post’s
knowledge, training, and experience, it was “immediately apparent” to him
that this was marijuana. This opinion was based on the appearance of the
plants observed and “the distinctive odor of raw marijuana.”
• Detective Post and Sergeant Cooper drove by the area and observed large
quantities of marijuana being dried in front of the property, both at “the
residence and the packing shed.” The packing shed had a large overhang that
also had large quantities of marijuana “hung up from the ceiling.”
4There were actually two search warrants executed: one in Cox’s residence and the other
in his packing shed (which has a different address than the residence). Each warrant was
accompanied by an affidavit from Detective Post. However, like the trial court and the
parties, we refer to a single search warrant and a single affidavit because, save for the
different addresses and property descriptions, there are no substantive differences
between the warrants or between the affidavits.
4
• The Palisade Police Department had been contacted by multiple civilians
regarding what was “believed to be the large marijuana grow occurring . . . in
the shed, and possibly being processed in the shed and in the house.”
• Given the large quantity of marijuana, it was “likely that the marijuana [was]
being grown inside of the large packing shed.” Additionally, there was “likely
to be equipment related to the large production of marijuana both in the
residence and in the packing shed.”
• The quantity of marijuana drying in plain view was “visibly well over what
would be considered personal use amounts.” Based on Detective Post’s
training and experience, it was “reasonable to believe that this marijuana [was]
being sold or bartered for illegally.” “[I]mportant[ly],” Cox had “recently
[been] turned down by the town of Palisade for a recreational license to grow
marijuana.”
II. Motion to Suppress and Suppression Order
¶5 Cox filed a motion to suppress the evidence collected during the search of his
property. The crux of the motion was that Detective Post’s affidavit failed to establish
probable cause. But the motion largely criticized Detective Post’s attestations as being
grounded in his “baseless and incorrect conclusion that marijuana cannabis was drying
in plain view on Mr. Cox’s property.” Following a hearing, the trial court issued a written
order. Based on evidence introduced during the preliminary hearing, it agreed with the
motion that the affidavit contained conclusory statements regarding the presence of
marijuana on Cox’s property. Thus, the trial court granted Cox’s motion.
III. Analysis
¶6 Before analyzing the merits of the People’s appeal, we take a short detour to
review the legal principles governing challenges to search warrants. We then apply those
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principles to determine whether the trial court erred in granting Cox’s motion to suppress
based on its finding that Detective Post’s affidavit lacked probable cause.
A. Relevant Law
¶7 The Fourth Amendment to the United States Constitution and article II, section 7
of the Colorado Constitution prohibit unreasonable searches and seizures. People v.
Bailey, 2018 CO 84, ¶ 18, __ P.3d __. Neither constitutional provision explains what
constitutes an unreasonable search, but the United States Supreme Court has inferred
from the text of the Fourth Amendment that “a warrant must generally be secured”
before a police officer may conduct a search. Id. (quoting Kentucky v. King, 563 U.S. 452,
459 (2011)). Under both constitutions, “a search warrant may only be issued upon a
showing of probable cause, supported by oath or affirmation, particularly describing the
place to be searched and the things to be seized.” People v. Kerst, 181 P.3d 1167, 1171
(Colo. 2008). An affidavit submitted in support of a search warrant “must set forth
particular facts and circumstances underlying the existence of probable cause, so as to
allow the magistrate to make an independent evaluation.” Id. Probable cause exists when
an affidavit sets forth “sufficient facts to warrant a person of reasonable caution to believe
that contraband or evidence of criminal activity is located at the place to be searched.”
People v. Miller, 75 P.3d 1108, 1112 (Colo. 2003). A magistrate’s probable cause
determination must be based on facts contained “within the four corners of the affidavit”
submitted in support of the search warrant. People v. Gallegos, 251 P.3d 1056, 1064 (Colo.
2011).
6
¶8 The affidavit accompanying the search warrant must be afforded “a presumption
of validity.” Kerst, 181 P.3d at 1171. However, we have recognized that where an affiant’s
good faith is at issue, either explicitly or implicitly, the defendant may mount a veracity
challenge by requesting a hearing to test the accuracy of the attestations in the affidavit.
People v. Flores, 766 P.2d 114, 118 (Colo. 1988). But before a veracity hearing may be held,
the defendant’s motion to suppress must satisfy two conditions: (1) it must be supported
by at least one affidavit that reflects there is a “good faith basis for the challenge,” and (2)
it must identify with specificity the “precise statements” being challenged. People v.
Dailey, 639 P.2d 1068, 1075 (Colo. 1982).5
¶9 If the trial court holds a veracity hearing, it must determine whether the affidavit
contains erroneous statements and, if so, whether they are the result of “intentional
falsehood or reckless disregard for the truth on the part of the officer-affiant.” Id. In the
event the trial court finds that the defendant has shown by a preponderance of the
evidence intentional falsehood or reckless disregard for the truth by the affiant, it must
strike the erroneous statements from the affidavit. Id. On the other hand, if the erroneous
statements resulted from an informant’s perjury or reckless disregard for the truth, or
5 Both parties have referred to a “Franks hearing” in this proceeding. But in Dailey, we
adopted a less rigorous threshold standard than the one announced by the United States
Supreme Court in Franks v. Delaware, 438 U.S. 154 (1978). In contrast to the “good faith
basis” showing we require to request a veracity hearing, under Franks, a veracity
challenge may be made only if there is “a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the truth, was
included . . . in the . . . affidavit.” Franks, 438 U.S. at 155–56.
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from the negligence or good faith mistake of either the affiant or an informant, the issue
of appropriate sanctions is left to the sound discretion of the trial court. Flores, 766 P.2d
at 119–20.
¶10 A magistrate’s probable cause determination is generally given “great deference”
and is not subject to de novo review. People v. Hebert, 46 P.3d 473, 481 (Colo. 2002)
(quotation omitted). This deference is consistent with the preference for police to seek a
judicial determination of probable cause, rather than resort to warrantless searches in the
hopes of relying on one of the narrowly defined exceptions to the warrant requirement.
Id. Consequently, a reviewing court should not attempt to put itself in the shoes of the
magistrate and consider whether it would have found probable cause. Id. Instead, “the
usual question for a reviewing court is whether the issuing magistrate had a ‘substantial
basis’ for issuing the search warrant.” Id. (quoting People v. Gall, 30 P.3d 145, 150 (Colo.
2001)); see also Miller, 75 P.3d at 1112 (“A reviewing court should uphold the validity of a
warrant if the affidavit accompanying the warrant creates a substantial basis for the
conclusion that probable cause existed.”). Any doubts must be resolved in favor of the
magistrate’s probable cause determination. Hebert, 46 P.3d at 481.
B. Application
¶11 The People contend that the trial court erred in ruling that Detective Post’s
affidavit did not establish probable cause to search Cox’s property. For three reasons, we
agree.
¶12 First, the trial court engaged in de novo review and failed to afford the magistrate’s
probable cause determination great deference. When a trial court is called upon to review
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a magistrate’s probable cause determination, the question is not whether the trial court
would have found probable cause in the first instance, but whether the magistrate had a
substantial basis for issuing the search warrant. Here, instead of evaluating whether the
magistrate had a substantial basis for issuing the warrant, the trial court analyzed
whether the affidavit established probable cause to search Cox’s property. In other
words, the trial court placed itself in the position of the magistrate and determined it
would have denied law enforcement’s request for a search warrant.
¶13 Second, the trial court failed to limit its review to the information contained within
the four corners of the affidavit. In fact, in its order granting the motion to suppress, the
trial court relied heavily on information which was extraneous to the affidavit:
• Cox is “a registered hemp grower,” and he explained to the officers executing
the search warrant that the plants they had viewed drying on his property were
all legal hemp plants;
• the truth of Cox’s statements to law enforcement was later confirmed by
chemical testing;
• despite Cox’s attempt to correct the officers’ mistaken assumptions, law
enforcement confiscated and destroyed some of the hemp, but left behind
almost 10,000 pounds of what Detective Post had conclusively described as
marijuana in the affidavit;
• although marijuana and hemp appear and smell the same, they are different;
• there was no basis to believe that Cox was not in compliance with any law or
regulation concerning the possession or processing of hemp;
• the opinion in the affidavit that there was marijuana on Cox’s property was
conclusory and was contradicted by Detective Post’s testimony at the
preliminary hearing, which indicated that hemp and marijuana can only be
distinguished by chemical testing;
9
• there was testimony at the preliminary hearing that law enforcement could
have learned, either through a direct inquiry to the Department of Agriculture
or through a Google search, that Cox was in fact a registered and regulated
hemp farmer;
• the plants observed on Cox’s property were being dried in a manner consistent
with how hemp is dried; and
• the manner in which the plants were being dried and the “open and obvious”
fashion of such drying were “distinct facts” supporting the conclusion that “it
was more likely the plants viewed were hemp [ ] being legally processed.”
¶14 Notably, during the hearing on the motion to suppress, the trial court asked
defense counsel if it could consider evidence from the preliminary hearing, and counsel
answered in the negative, explaining that the probable cause determination has to be
limited to the four corners of the affidavit. The trial court agreed, acknowledging that
the law in Colorado requires a four-corners review when a magistrate’s probable cause
determination is challenged. It then keenly added that evidence outside the four corners
of the affidavit may be appropriately considered in a veracity hearing. At that point, the
trial court realized it was “probably putting the cart before the horse in getting into th[at]
issue.” But its subsequent order granting the motion to suppress did precisely that—it
placed the cart before the horse by including within its four-corners review information
that was not contained in the affidavit.6
6 Cox’s motion to suppress suffers from the same deficiency and may have inadvertently
led the trial court down the primrose path to error.
10
¶15 Third, the trial court did not give the affidavit the presumption of validity to which
it was entitled. Instead, it disregarded parts of the affidavit as conclusory based on the
omission of certain information presented at the preliminary hearing. The trial court
implied that the affidavit was misleading because it repeatedly referred to “marijuana”
without ever acknowledging that Cox was “a registered hemp grower” and that what the
officers had observed on his property could have been hemp. According to the trial court,
the affidavit “should have included facts explaining why the plants [seized] . . . were
actually more likely to be illegal marijuana, instead of hemp.”
¶16 While the trial court’s observations could potentially be relevant to a veracity
challenge, they are of no import to a four-corners review of the magistrate’s probable
cause finding. It was improper for the trial court to refute the validity of the assertions
in the affidavit with extraneous information. During its four-corners review, the trial
court was limited to Detective Post’s sworn statements and was required to presume
those attestations valid.
¶17 When we afford the magistrate’s probable cause determination the great deference
it deserves and Detective Post’s affidavit the presumption of validity to which it is
entitled, we conclude that the information within the four corners of the affidavit
provided the magistrate a substantial basis to issue the search warrant. The affidavit did
not mention “industrial hemp” or “hemp.” It referred only to “marijuana,” and Colorado
law expressly provides that the term “marijuana” does not include industrial hemp.
Colo. Const. art. XVIII, § 16(2)(f). It explained that the plants on Cox’s property looked
like marijuana and had “the distinctive odor of raw marijuana.” It described a “large
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marijuana grow” and possibly large amounts of marijuana “being processed in the shed
and in the house.” It indicated that the quantity of marijuana was “visibly well over what
would be considered personal use amounts” and had prompted multiple civilians to
contact the Palisade Police Department about what was “believed to be [a] large
marijuana grow.” It noted that Cox’s application to grow marijuana had recently been
denied. And it contained an opinion, based on Detective Post’s training and experience,
that it was “reasonable to believe” that the marijuana on Cox’s property was “being sold
or bartered for illegally.” In our view, these averments provided the magistrate a
substantial basis to find that probable cause existed to believe that contraband or
evidence of criminal activity would be located on Cox’s property.
IV. Conclusion
¶18 Presuming valid the information articulated within the four corners of Detective
Post’s affidavit, we conclude that the magistrate had a substantial basis to find that
probable cause existed to believe contraband or evidence of criminal activity would be
located on Cox’s property. The trial court thus erred in ruling that the affidavit failed to
establish probable cause. Accordingly, we reverse the trial court’s suppression order. On
remand, the trial court should address Cox’s alternative request for a veracity hearing.
JUSTICE GABRIEL specially concurs.
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JUSTICE GABRIEL, concurring specially.
¶19 With some hesitancy, I agree with the majority’s conclusion that, under the
prevailing standards governing magistrates’ probable cause determinations, the
magistrate here had a substantial basis to find that probable cause existed to believe that
contraband or evidence of criminal activity would be located on defendant David Cox’s
property. I write separately, however, because I share the concerns that appear to have
motivated the trial court’s suppression order in this case.
¶20 In his search warrant affidavit, Detective Post repeatedly expressed the belief that
a large, illegal marijuana grow operation was being conducted on Cox’s property.
Detective Post based this belief on his training, knowledge, and experience, as well as on
the plants’ appearance and distinctive odor. He did not explain, however, how he knew
that he was observing an illegal marijuana grow, as opposed to a legal industrial hemp
operation. This is particularly concerning given that (1) the record in this case indicates
that marijuana and hemp appear and smell identical and (2) when Detective Post and
other officers proceeded to execute the search warrant, they left behind approximately
10,000 pounds of the cannabis referenced in the affidavit “because there was a concern it
was hemp” and Detective Post knew that it is not illegal to dry or transport industrial
hemp.
¶21 Contrary to Cox’s suggestion, I do not believe that, in a case like this, an officer
must conduct chemical testing before submitting a probable cause affidavit averring the
officer’s belief that an illegal marijuana grow, as opposed to a legal industrial hemp
operation, was being conducted on property to be searched. Because it is lawful to
1
possess and process industrial hemp and because the record in this case indicates that
marijuana and hemp appear and smell identical, however, I believe that an officer must
aver more than just a belief that “marijuana” is present on site. Absent such factual
assertions, an officer could obtain a search warrant for any legal industrial hemp
operation merely by asserting the word “marijuana” in a probable cause affidavit. In my
view, such an affidavit would amount to a “bare bones” affidavit that would be
insufficient to establish probable cause. See People v. Pacheco, 175 P.3d 91, 96 (Colo. 2006)
(noting that an affidavit is termed “bare bones” if it contains only conclusory statements
devoid of facts that would allow a magistrate to make an independent determination of
probable cause).
¶22 Although I perceive the issue as close, I cannot say that the facts contained within
the four corners of the affidavit here were insufficient to support the magistrate’s
probable cause determination. Nonetheless, the better practice would have been for
Detective Post to explain in more detail why he believed the plants at issue were
marijuana and not industrial hemp.
¶23 For these reasons, I respectfully concur in the majority opinion.
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