good faith exception in Colorado

2026First, the good faith exception does not apply if the warrant is “facially deficient” because it “fail[s] to particularize the place to be searched or the things to be seized.” Leon, 468 U.S. at 923 .

2016Id. at 909 . ¶11 Colorado codified the good faith exception to the exclusionary rule at section 16-3-308(4), C.R.S. (2016).

1998The Court in Leon concluded that there is a middle ground between an affidavit setting forth probable cause and a bare bones affidavit: the middle ground where a police officer could have reasonably relied upon the validity of the warrant, because the affidavit was not “so lacking ... as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923 , 104 S.Ct. 3405 ; see also Leftwich, 869 P.2d at 1268 (determining that an affidavit was lacking in probable cause and then examining whether it might nonetheless merit the good faith exception); United States v. Savoca,

1998The Court in Leon concluded that there is a middle ground between an affidavit setting forth probable cause and a bare bones affidavit: the middle ground where a police officer could have reasonably relied upon the validity of the warrant, because the affidavit was not "so lacking ... as to render official belief in its existence entirely unreasonable." Leon, 468 U.S. at 923 , 104 S.Ct. 3405 ; see also Leftwich, 869 P.2d at 1268 (determining that an affidavit was lacking in probable cause and then examining whether it might nonetheless merit the good faith exception); United States v. Savoca,

2010In Altman, a case upon which the prosecution relies and where the court concluded that the good faith exception applied, the court emphasized that the facts which were recited in the affidavit-and from which the officer inferred criminal activity connected to the defendant-were personally observed by law enforcement personnel. 960 P.2d at 1172 ; see also Miller, 75 P.3d at 1112 ("[The affidavit in Altman contained recent information the police had personally observed, suggesting a reasonable inference that the defendant was growing marijuana in his home.").

2010Cf. Altman, 960 P.2d at 1169 ("Obviously, the good faith exception is not called into play when the warrant is found to be valid.").

2026A Short History of Peremptory Challenges in Colorado ¶ 48 The United States Supreme Court has “long recognized” that “[peremptory] challenges are auxiliary; unlike the right to an impartial jury guaranteed by the Sixth Amendment, peremptory challenges are not of federal constitutional dimension.” United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000); see also Rivera v. Illinois, 556 U.S. 148, 157 (2009)(“If a defendant is tried 30 before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not

2014See Rivers v. Illinois, 556 U.S. 148, 157 , 129 S.Ct. 1446 , 173 L.Ed.2d 320 (2009) ("If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court's good-faith error is not a matter of federal constitutional concern."). {18 The evolving decision to treat some kinds of error as harmless has been termed "'the most far-reaching doctrinal change in American procedural jurisprudence since its inception.'" Wayne R.

2010"To hold, as the majority does, that the good faith exception does not apply, penalizes the police officers for a decision belonging to" us; exclusion therefore "cannot logically contribute to the deterrence of police misconduct." People v. Gutierrez, 222 P.3d 925, 948 (Colo.2009) (Rice, J., dissenting); see also Leon, 468 U.S. at 921 , 104 S.Ct. 3405 ("Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.").

2010"To hold, as the majority does, that the good faith exception does not apply, penalizes the police officers for a decision belonging to" us; exelusion therefore "cannot logically contribute to the deterrence of police misconduct." People v. Gutierrez, 222 P.3d 925, 948 (Colo.2009) (Rice, J., dissenting); see also Leon, 468 U.S. at 921 , 104 S.Ct. 3405 ("Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.").

2026See People v. Hagos, 250 P.3d 596, 618-19 (Colo. App. 2009) (addressing the good faith exception despite a lack of factual findings because our review is de novo). 1.

2025Pettigrew v. People, 2022 CO 2, ¶ 49 ; People v. Hagos, 250 P.3d 596, 619 (Colo. App. 2009).

2015See People v. McCarty , 229 P.3d 1041, 1046 (Colo. 2010) (“[W]e are reluctant to expand the good-faith exception to the Supreme Court’s exclusionary rule beyond the limits set by that Court itself.”); Perez , 231 P.3d at 962 (“Consistent with our holding in McCarty , we decline to apply a good faith exception to the officer’s actions.”). ¶37       However, as the Supreme Court has recognized, although Strickland ’s deficient performance prong is governed by the law as it stood at the time of counsel’s allegedly deficient performance, no such “contemporary assessmentâ€

2011Davis effectively overruled People v. McCarty, 229 P.3d 1041, 1045 (Colo.2010), in which the Colorado Supreme Court rejected the application of the good faith exception to the exclusionary rule to situations involving police reliance on pre-Gant case law. .

2024We reject Tarr’s imposition of a condition precedent for applying the good faith exception not found in the case law — the officers’ reliance on appellate precedent that “specifically authorized” this “particular police practice.” That Davis, 564 U.S. at 241 , involved “[e]vidence obtained during a search conducted in reasonable reliance on binding precedent” does not mean that, as a general rule, the good faith exception is limited to those instances in which the officers conducted their search in reliance on a specific prior case.

2024If in Tarr I, this division unanimously interpreted section 42-4-1301.1(3) and the existing case law to mean that, under the circumstances, Tarr had given unconditional consent to the blood draws through the statute, then it was objectively reasonable for the officers to interpret the statute the same way. ¶ 38 We reject Tarr’s imposition of a condition precedent for applying the good faith exception not found in the case law — the officers’ reliance on appellate precedent that “specifically authorized” this “particular police practice.” That Davis, 564 U.S. at 241 , involved “[e]vidence obtai

1985The Supreme Court, declining to consider whether the affidavit satisfied the “totality of circumstances” test announced in Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 , which rejected the Aguilar-Spinelli standard, chose instead to modify the exclusionary rule by adopting a good faith exception to the exclusionary rule for evidence wrongfully seized in a search pursuant to warrant.

1985The Supreme Court, declining to consider whether the affidavit satisfied the “totality of circumstances” test announced in Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 , which rejected the Aguilar-Spinelli standard, chose instead to modify the exclusionary rule by adopting a good faith exception to the exclusionary rule for evidence wrongfully seized in a search pursuant to warrant.

1983The good-faith rule adopted by the Colorado legislature closely follows the views of Justice White in his dissent in Stone v. Powell, supra, where he stated that the exclusionary rule should be “modified so as to prevent its application in those many circumstances where the evidence at issue was seized by an officer acting in the good faith belief that his conduct comported with existing law and having reasonable grounds for his belief.” See United States v. Williams, 622 F.2d 830 (5th Cir.1980), cert. denied, 449 U.S. 1127 , 101 S.Ct. 946 , 67 L.Ed.2d 114 (1981) (upheld seizure of evidence by

1983See Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976); United States v. Williams, 622 F.2d 830 (5th Cir.1980); compare Wilkey, Enforcing the Fourth Amendment by Alternatives to the Exclusionary rule (National Legál Center for the Public Interest, July 1982) (arguing in favor of various exceptions to the exclusionary rule) with Mertens & Wasserstrom, The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo.L.J. 365 (1981) (arguing that a good faith exception is unwise); see also People v. Hogan, 649 P.2d 326 (Colo.1982) (Rovir

2014See Schall, 59 P.3d at 853 ; Shepherd, 906 P.2d at 610 ; Milhollin, 751 P.2d at 48-49 . 1 52 We also reject defendant's contention that, because the Schawfele decision did not expressly discuss the good faith exception noted in Davis for instances in which officers had relied on then-binding appellate court precedent, we should not apply that exception here. ' We acknowledge that Schaufele did not discuss any good faith exception.

2003People v. Schall, 59 P.3d 848, 851 (Colo.2002); People v. D.F., 933 P.2d 9, 13-14 (Colo.1997).

1994See People v. Foster, supra. In People v. Mitchell, supra, without addressing whether the good faith exception statute applies when there is an invalid arrest warrant, the supreme court, relying upon Whiteley v. Warden, 401 U.S. 560 , 91 S.Ct. 1031 , 28 L.Ed.2d 306 (1971), affirmed the exclusion of evidence obtained following the issuance of an invalid arrest warrant because the mistake of fact there was insufficient to create a reasonable belief that probable cause existed.

1994In People v. Fields, supra, the supreme court discussed approvingly People v. Mitchell, supra, and Whiteley v. Warden, supra, thereby demonstrating the continued vitality of those cases to the applicability of the good faith exception statute.

1998See Leon, 468 U.S. at 925 , 104 S.Ct. 3405 (“[C]ourts could reject suppression motions posing no important Fourth Amendment questions by turning immediately to a consideration of the officers’ good faith.”); Chaar, 137 F.3d at 363 (“We need not engage in [a probable cause analysis] because there is a simpler and relatively non-speculative reason to conclude that this search was constitutional: the‘good-faith exception; Cancelmo, 64 F.3d at 807 (“[W]e need not resolve the issue [of probable cause] because we conclude that the good faith exception applies.”); McKneely, 6 F.3d at 1453 (“We hold u

1998See Leon, 468 U.S. at 925 , 104 S.Ct. 3405 *1173 ("[C]ourts could reject suppression motions posing no important Fourth Amendment questions by turning immediately to a consideration of the officers' good faith."); Chaar, 137 F.3d at 363 ("We need not engage in [a probable cause analysis] because there is a simpler and relatively non-speculative reason to conclude that this search was constitutional: the `good-faith exception....'"); Cancelmo, 64 F.3d at 807 ("[W]e need not resolve the issue [of probable cause] because we conclude that the good faith exception applies."); McKneely, 6 F.3d at 14

1993Noyes v. Raymond, supra, 28 Mass.App.Ct. at 199 , 548 N.E.2d 196 ; see Ballweg v. City of Springfield, supra. Limiting the application of the good faith requirement to collusive conduct also encourages settlement because the result is to involve the settling defendant in a more simple and efficient hearing. *983 Abbott Ford, Inc. v. Superior Court, 43 Cal.3d at 897 , 239 Cal.Rptr. at 652 , 741 P.2d at 137 (Mosk, J., dissenting) (quoting Roberts, The Good Faith Settlement: An Accommodation of Competing Goals, supra, at 910); see Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d at 502 ,

1993Noyes v. Raymond, supra, 28 Mass.App.Ct. at 199 , 548 N.E.2d 196 ; see Ballweg v. City of Springfield, supra. Limiting the application of the good faith requirement to collusive conduct also encourages settlement because the result is to involve the settling defendant in a more simple and efficient hearing. *983 Abbott Ford, Inc. v. Superior Court, 43 Cal.3d at 897 , 239 Cal.Rptr. at 652 , 741 P.2d at 137 (Mosk, J., dissenting) (quoting Roberts, The Good Faith Settlement: An Accommodation of Competing Goals, supra, at 910); see Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d at 502 ,

2026See Cooper, ¶¶ 11-12; Miller, 75 P.3d at 1116 22 (declining to apply the good faith exception when there was no link “between the place to be searched and current information of criminal activity or the presence of contraband there”). ¶ 40 Accordingly, the videos of M.P. and B.H. should have been suppressed under the exclusionary rule.

2016“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

2024Krull, 480 U.S. at 349-50 ; see Feland v. State, 142 S.W.3d 631, 633 (Ark. 2004) (explaining that “the good-faith exception to the exclusionary rule has been interpreted to extend to include evidence obtained by police who act in objectively reasonable reliance on a statute, even though that statute is later found unconstitutional”). ¶ 29 The Kansas Supreme Court’s reasoning in City of Kingman v. Ary, 475 P.3d 1240, 1247 (Kan. 2020), persuasively demonstrates why the good faith exception applies in this case.

2024Illinois v. Krull, 480 U.S. 340, 349-50 (1987); see Feland v. State, 142 S.W.3d 631, 633 (Ark. 2004) (explaining that “the good-faith exception to the exclusionary rule has been interpreted to extend to include evidence obtained by police who act in objectively reasonable reliance on a statute, even though that statute is later found unconstitutional”). 10 ¶ 24 The Kansas Supreme Court’s reasoning in City of Kingman v. Ary, 475 P.3d 1240, 1247 (Kan. 2020), persuasively demonstrates why the good faith exception applies in this case.

2019We stated, “We have . . . long made clear . . . that the good faith exception to the exclusionary rule must be asserted by the prosecution at the suppression hearing or reliance on it will be considered waived.” Id. 4 at 116.

2019We stated, "We have ... long made clear ... that the good faith exception to the exclusionary rule must be asserted by the prosecution at the suppression hearing or reliance on it will be considered waived." Id. at 116 .

2010As Justice Stevens recognized in his dissent in Evans, Leon "assumed the existence of a warrant," whereas there was "no warrant at all" outstanding for the defendant's arrest in Evans, 514 U.S. at 20 , 115 S.Ct. 1185 (Stevens, J., dissenting); see also id. at 20 & n. 2, 115 S.Ct. 1185 (noting, in connection with Krull , his view that the good-faith exception is "wholly inapplicable to warrantless searches and seizures").

2010As Justice Stevens recognized in his dissent in Evans, Leon "assumed the existence of a warrant," whereas there was "no warrant at all" outstanding for the defendant's arrest in Evans, 514 U.S. at 20 , 115 S.Ct. 1185 (Stevens, J., dissenting); see also id. at 20 & n. 2, 115 S.Ct. 1185 (noting, in connection with Krull , his view that the good-faith exception is "wholly inapplicable to warrantless searches and seizures").

2010See People v. Crippen, 223 P.3d 114, 116 (Colo.2010). [2] Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969).

2010See People v. Crippen, 223 P.3d 114, 116 (Colo.2010). [2] Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969).

1999See People v. Fields, 785 P.2d 611, 613-14 (Colo.1990); People v. Mitchell, 678 P.2d 990, 995 (Colo.1984).

1994In People v. Fields, supra, the supreme court discussed approvingly People v. Mitchell, supra, and Whiteley v. Warden, supra, thereby demonstrating the continued vitality of those cases to the applicability of the good faith exception statute.

1983See Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976); United States v. Williams, 622 F.2d 830 (5th Cir.1980); compare Wilkey, Enforcing the Fourth Amendment by Alternatives to the Exclusionary rule (National Legál Center for the Public Interest, July 1982) (arguing in favor of various exceptions to the exclusionary rule) with Mertens & Wasserstrom, The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo.L.J. 365 (1981) (arguing that a good faith exception is unwise); see also People v. Hogan, 649 P.2d 326 (Colo.1982) (Rovir

1983See Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976); United States v. Williams, 622 F.2d 830 (5th Cir.1980); compare Wilkey, Enforcing the Fourth Amendment by Alternatives to the Exclusionary rule (National Legál Center for the Public Interest, July 1982) (arguing in favor of various exceptions to the exclusionary rule) with Mertens & Wasserstrom, The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo.L.J. 365 (1981) (arguing that a good faith exception is unwise); see also People v. Hogan, 649 P.2d 326 (Colo.1982) (Rovir

2026A Short History of Peremptory Challenges in Colorado ¶ 48 The United States Supreme Court has “long recognized” that “[peremptory] challenges are auxiliary; unlike the right to an impartial jury guaranteed by the Sixth Amendment, peremptory challenges are not of federal constitutional dimension.” United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000); see also Rivera v. Illinois, 556 U.S. 148, 157 (2009)(“If a defendant is tried 30 before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not