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holding that month old information of methamphetamine manufacture at the defendant's house was stale
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No. 03SA107.
September 8, 2003.
Interlocutory Appeal from the Fremont County District Court, Case No. 03CR11, Honorable Julie G. Marshall, Judge.
ORDER AFFIRMED.
No. 03SA107, People v. Miller — Suppression Order — C.A.R. 4.1 — Section 16-12-102(2), 6 C.R.S. (2002) — Probable Cause — Staleness of Information Alleged in Search Warrant — Four Corners of Affidavit — Exclusionary Rule — Inapplicability of Good Faith Exception — Section 16-3-308(1), 6 C.R.S. (2002).
In this interlocutory appeal pursuant to C.A.R. 4.1 and section 16-12-102(2), 6 C.R.S. (2002), the prosecution challenged a trial court order suppressing evidence of methamphetamine manufacture seized from defendant Wade Miller's home. The Supreme Court affirms the trial court's order, holding that the trial court properly set aside the search warrant for lack of probable cause and the good faith exception to the exclusionary rule is inapplicable.
The warrant lacked probable cause because the only information linking the illegal activity to the place to be searched, the defendant's home, was anonymous informant information that was nearly a month old. The current information in the affidavit regarding defendant's drug manufacturing activity was for another location that was not his home. Due to the staleness of the information relating to the place to be searched, it was unreasonable for the police to rely on the warrant. Thus, the good faith exception to the exclusionary rule is inapplicable, and the trial court properly suppressed the evidence obtained from the search.
Edward J. Rogers, District Attorney, Kathleen G. Eberling, Assistant District Attorney, Canon City, Colorado, Attorneys for Plaintiff-Appellant.
Josh T. Liles, Salida, Colorado, Attorney for Defendant-Appellee.
In this interlocutory appeal, filed pursuant to C.A.R. 4.1 and section 16-12-102(2), 6 C.R.S. (2002), the prosecution appeals the district court's order suppressing evidence of methamphetamine manufacture seized from defendant Wade Miller's home. Nearly a month expired between the event the informant related and application by the police for the warrant. The trial court set aside the warrant for lack of probable cause and suppressed the evidence seized — for lack of good faith police reliance on the sufficiency of the warrant — because the only information linking the illegal activity to the place to be searched, Miller's home, was stale. We agree with the trial court and affirm its suppression order.
I.
On January 6, 2003, the police obtained and executed a search warrant for Miller's home. During the search, the police discovered a methamphetamine laboratory, arrested Miller, and charged him with possessing and operating the lab.
Based on the search of his home, the Amended Information charged Miller with manufacturing a schedule two controlled substance, § 18-18-405(1),(2)(a), 6 C.R.S. (2002), possession of manufacturing chemicals or supplies, Id., possession of a schedule II control substance, Id., and unlawful possession of a schedule II controlled substance, Id. The prosecution also charged Miller with identical counts, based on the search of the residence of Miller's friend. The validity of this other search warrant is not before us.
The warrant was based on a police affidavit reciting information from an anonymous informant. The informant said that, on December 9, 2002, at Miller's home, he smoked some methamphetamine Miller had just finished manufacturing there. The informant also stated that Miller kept methamphetamine manufacturing supplies in his kitchen cabinets. The affidavit also recited another informant's information — current at the time of application for this warrant on January 6, 2003 — that Miller was manufacturing methamphetamine at a location other than his home. But the affidavit (attached as Exhibit A) contained no information more current than December 9, 2002, regarding manufacture or the presence of contraband at Miller's home.
On August 14, 2002, the police previously searched Miller's home pursuant to a warrant and seized evidence of methamphetamine manufacturing there.
The record made at the suppression hearing discloses that the police obtained and executed warrants for the other location and Miller's home on January 6, but the affidavit for search of the other location inexplicably contains more current information regarding manufacture of the drug by Miller at his home than was contained in the affidavit for search of his home.
As to the affidavit for search of Miller's home, the trial court found that (1) the police had recited sufficient reliable information to implicate Miller in the manufacture of methamphetamine; (2) but the information regarding drug manufacturing by Miller at his home was stale; and (3) the police could not have reasonably relied on it in applying for the warrant. The trial court concluded that the warrant lacked probable cause, and the good faith exception to the exclusionary rule did not apply because no reasonably objective police officer would have relied on the warrant's sufficiency. It therefore granted Miller's motion to suppress the evidence obtained from search of his home.
II.
We agree with the trial court that the warrant in this case was not based on probable cause, and the police could not have reasonably relied on it, because the information regarding drug manufacturing at Miller's home was stale when the police applied for the warrant, and no reasonable police officer would have relied on it. Accordingly, the exclusionary rule operates in this case, not the good faith exception to it.
A. Deficient Warrant and the Good Faith Exception
When reviewing a suppression order, we defer to the trial court's findings of facts, if supported by the record; and we review the trial court's legal conclusions de novo. People v. Schall, 59 P.3d 848, 851 (Colo. 2002);People v. D.F., 933 P.2d 9, 13-14 (Colo. 1997).
We address this case using the framework set forth by People v. Randolph, 4 P.3d 477, 482 (Colo. 2000), and People v. Altman, 960 P.2d 1164, 1167 (Colo. 1998). Randolph upheld a trial court's suppression order because the warrant there lacked probable cause and the police, under the circumstances in that case, could not have reasonably relied on it. In contrast, Altman applied the good faith exception and allowed the evidence to be admitted at trial, even though it was derived from execution of a warrant that may have lacked probable cause.
The application for the warrant in Randolph failed to particularize the building where the evidence of illegal activity might be found; pertinent here, the anonymous tip received in that warrant was stale (two months old). We concluded that the police could not have reasonably believed that the "bare bones" affidavit they presented to the magistrate in that case established probable cause.
In contrast, 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.
Officer Landolt's experience and training led him to believe that the purchase of equipment commonly associated with indoor marijuana cultivation at the height of the outdoor growing season, the high electrical usage, the potentially suspicious use of a rental car, and the defendant's previous brushes with the law all created a reasonable inference of marijuana cultivation.
Altman, 960 P.2d at 1172. Though the warrant may have lacked probable cause, an issue we did not reach because of the applicability of the good faith exception, we concluded that police reliance on the warrant in Altman was objectively reasonable.
The test for good faith reliance on the warrant imposes upon the officer involved in obtaining and executing the search warrant a continuing duty to exercise reasonable professional judgment. Randolph, 4 P.3d at 483. The officer must read the affidavit and warrant carefully and must be objectively persuaded that the warrant is sufficient. Id. In determining whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization, a reviewing court should take all the circumstances surrounding the issuance of the warrant into account. Id.
As we did in Randolph, we now address the law of probable cause and the good faith exception for police reliance on a warrant. Then, we apply that law to the warrant and the seizure of evidence in this case.
B. Probable Cause
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. U.S. Const. amend. IV; Colo. Const. art 2, § 7; see also § 16-3-303, 6 C.R.S. (2002) (specifying the requirements for a search warrant). Because there is no mechanical formula for determining probable cause, reasonable minds may differ on the question of whether a particular affidavit establishes probable cause. Altman, 960 P.2d at 1167. 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. People v. Reed, 56 P.3d 96, 101 (Colo. 2002).
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. People v. Erthal, 570 P.2d 534, 534 (Colo. 1977). 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 criminal activity is located at the place to be searched.Altman, 960 P.2d at 1167.
To determine whether probable cause exists, we examine the totality of the circumstances. Altman, 960 P.2d at 1167. This analysis does not lend itself to mathematical certainties or bright line rules; rather, it involves a practical, common-sense determination whether a fair probability exists that a search of a particular place will reveal contraband or other evidence of criminal activity. Id.
Whether information is current or stale plays an important role in the totality of the circumstances analysis. See Randolph, 4 P.3d at 482;People v. Meraz, 961 P.2d 481, 484 (Colo. 1998); People v. Hearty, 644 P.2d 302, 311 (Colo. 1982); see also People v. Green, 70 P.3d 1213, 1215 (Colo. 2003) (warrant was obtained one day after the defendant was seen wearing the stolen item). Whether the information is stale and cannot support probable cause depends on the factual circumstances and the type of crime. People v. Lubben, 739 P.2d 833, 836 (Colo. 1987) ("In determining whether information is stale, the court must consider the type of crime the facts reveal.").
The type of evidence and activity involved is important. Some types of evidence the police seek to obtain through a search warrant may be relatively immune from becoming stale, for example, DNA evidence at the specified location.
C. Good Faith Exception
Typically, when the police conduct a search without a valid warrant, the exclusionary rule operates to suppress the fruits of the search, unless the search falls under an exception to the warrant requirement. People v. Winpigler, 8 P.3d 439, 443-44 (Colo. 1999). 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 aggrieved; whether to invoke the exclusionary rule is an issue separate from the question of whether Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct. United States v. Leon, 468 U.S. 897, 906 (1984) . Application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served. Id. at 908.
As a result, the exclusionary rule does not apply to situations where the police act in objectively reasonable, good faith reliance on a warrant, even if a court later holds that the warrant is defective.Randolph, 4 P.3d at 483. In such circumstances, excluding the fruits of the search would not have a deterrent effect on the police. Leon, 468 U.S. at 919-20.
The Colorado General Assembly has codified a version of the Leon test that permits admission of otherwise suppressible evidence if the evidence was seized "as the result of a good-faith mistake or of a technical violation." § 16-3-308(1), 6 C.R.S. (2002). The Leon "objectively reasonable" standard and the statutory "good faith" standard are substantially similar. Randolph, 4 P.3d at 483; People v. Leftwich, 869 P.2d 1260, 1272 (Colo. 1994). Colorado's statute, however, creates a presumption that an officer was acting in good faith if he or she acted pursuant to a warrant. See § 16-3-308(4)(b), 6 C.R.S. (2002); Randolph, 4 P.3d at 483. This presumption may be rebutted if the officer failed to undertake the search in an objectively good faith belief that it was reasonable. Randolph, 4 P.3d at 483; Altman, 960 P.2d at 1169. If no reasonable officer would have relied upon the warrant, then objective good faith is absent and the good faith exception offers no shelter.Altman, 960 P.2d at 1169.
Accordingly, the police must act in objective good faith when they apply for the warrant; the fact that a magistrate ultimately approved the warrant is not controlling.
[T]he fact that a magistrate acted favorably upon a warrant request is of no moment in the determination of whether the officer acted with objective reasonableness because the question of reasonableness is to be judged as of the time of warrant application and thus without consideration of the fact that the magistrate thereafter issued a warrant.
Leftwich, 869 P.2d at 1269 n. 11 (emphasis added); accord Malley v. Briggs, 475 U.S. 335, 345 (1986) (the Leon analysis focuses on "whether a reasonably well-trained officer . . . would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.") (emphasis added); see Altman, 960 P.2d at 1169 n. 3.
There are four circumstances under 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. Leon, 468 U.S. at 923; Randolph, 4 P.3d at 483-84. We have characterized warrants that fall under the fourth circumstance as "bare bones" warrants. E.g.,Randolph, 4 P.3d at 482.
This case implicates the fourth circumstance, because the trial court found that the information in the affidavit was stale, and, consequently, the police could not have reasonably believed that it established probable cause for the search of Miller's house.
D. Application In This Case
1. Lack of Probable Cause
A proper search warrant affidavit must allege sufficient facts to warrant a person of reasonable caution to believe that evidence of criminal activity is located at the place to be searched. Leftwich, 869 P.2d at 1265. Although the affidavit for the warrant in this case alleged past criminal activity at Miller's residence, it did not tie any current criminal activity or the presence of contraband to Miller's residence.
The affidavit for the warrant related information that Miller was engaged in a course of manufacturing methamphetamine, but the most recent event of affidavit-alleged criminal activity occurring at Miller's residence was nearly a month old at the time the police applied for the warrant. As the trial court found, the affidavit related two stale allegations of criminal activity at Miller's home: the fact that he was arrested there in August 2002 after the police found a methamphetamine lab on the premises, and the fact that an anonymous informant on December 9, 2002, told the police he had smoked methamphetamine at Miller's house and observed Miller in the process of manufacturing a batch of methamphetamine.
Thus, the most recent evidence of criminal activity at Miller's residence was almost a month old when the police applied for the warrant on January 6, 2003. The affidavit contains no information indicating that the police attempted to ascertain whether Miller's illegal activity at his residence continued after the informant's visit, or to corroborate the informant's statements. The affidavit relates one unsuccessful attempt to verify that Miller continued to live at the house to be searched.
The affidavit reports that a police officer went to the house and saw a vehicle registered to "James E. and Marsha L. Miller" parked at the residence. The affidavit provides no basis to believe that "James" Miller is the same person as "Wade" Miller. In addition, the affidavit does not state when the police made this observation, so the information is presumptively stale. See Randolph, 4 P.3d at 482 (affidavit's account of a witness statement is stale, because it did not include the time frames when the witness made his observations).
Under these circumstances, the excessive delay between the informant's December 9, 2002 observations and the police application of January 6, 2003 for the warrant renders the information stale and unreliable. See Randolph, 4 P.3d at 482 (evidence that the defendant smoked methamphetamine at his house was stale, as it occurred "only some time in the last two months."); People v. Stoppel, 637 P.2d 384, 391 (Colo. 1981) (month-old observations by non-anonymous informant that the defendant had bomb making supplies in his residence were stale and insufficient to support probable cause).
Erthal, 570 P.2d at 534 is instructive on this point. In that case, the defendant was accused of stealing some tools from a former employer. The police observed similar tools in the defendant's shop shortly after the theft. However, they waited two months before obtaining and executing a warrant to search the defendant's shop. We held that this two-month-old observation was stale, and did not support probable cause.Id. at 535. "Due to the lapse of nearly two months between the deputy's observation . . . and the issuance of the warrant, there was no probable cause to believe that stolen goods were in the shop at the time the warrant was executed." Id.
The current information contained in the affidavit about Miller's illegal drug manufacturing activity related to a different location from his home. The affidavit recites that on January 3, 2003, a few days before the police searched Miller's house, a different anonymous informant informed police that Miller was manufacturing methamphetamine at a trailer located elsewhere. The information from that informant related intimate and detailed knowledge of Miller's manufacturing activities and did not mention anything about Miller manufacturing the drug at his house, or storing it there. In fact, Miller was arrested and charged for manufacturing methamphetamine at the other location as a result of the search conducted there pursuant to a separate warrant issued the same day as the warrant for search of his home. However, the warrant for search of Miller's home set forth nothing but stale information regarding manufacture at his home.
This second informant also told the police that Miller was manufacturing at several other locations; however, the informant did not tell the police when Miller was manufacturing at those locations, so these additional allegations are stale.
In contrast to the month involved here, our course of conduct cases address a much shorter time between the occurrence of criminal activity set forth as the basis for the warrant and the police application for the warrant. People v. Schmidt, 473 P.2d 698 (Colo. 1970), involved evidence that a defendant was continuously dealing drugs from his room, and a lapse of five days between the time that an informant saw drugs in the room and the time that the police sought the warrant. Id. at 701. Likewise, People v. Hearty, 644 P.2d 302 (Colo. 1982), involved a lengthy conspiracy to extort money, corroborated by a series of transactions over several months, with the final transaction occurring eight days before the police sought a search warrant. Id. at 311.
In People v. Ball, 639 P.2d 1078 (Colo. 1982), the police observed literally hundreds of suspected drug transactions at the defendant's residence, with the last transaction seven days before the police sought a warrant. Id. at 1080 1083. Finally, in Lubben, 739 P.2d 833, the affidavit involved a situation in which the police found methamphetamine in the defendant's residence in April; received additional information that the defendant possessed methamphetamine or drug paraphernalia in November and December of the same year; conducted "sporadic surveillance" of the defendant in December and observed unusually heavy foot traffic to and from the defendant's residence; and received a tip from an informant that seventy-two hours before they applied for a search warrant, the informant saw methamphetamine in the defendant's residence. Id. at 836.
Here, the affidavit mentions two instances of illegal drug manufacture at Miller's house, one four months old and one nearly a month old. The mobility of this type of drug manufacturing is evident from the facts of this case. The affidavit recites that Miller was manufacturing methamphetamine at various places in the past. As our case law demonstrates, without relatively current information of criminal activity or contraband at the location to be searched, probable cause is typically lacking for issuance of the warrant.
The warrant for search of Miller's home lacked probable cause. We now address whether the good faith exception to the exclusionary rule should apply to this case.
2. Inapplicability of Good Faith Exception
In the vast majority of cases where a substantial basis for determining probable cause does not exist, the police cannot rely on the good faith exception:
[I]n the vast majority of cases, if a court . . . ascertains that a substantial basis for determining probable cause did not exist, the court will reach the conclusion that the officer unreasonably relied on the affidavit.
Leftwich, 869 P.2d at 1271 n. 12.
Application of the good faith exception to allow evidence that would be suppressed otherwise turns on whether it was "objectively reasonable" for the officer to rely on the warrant. Id. Thus, police officers involved in obtaining and executing a search warrant have a continuing duty to exercise reasonable professional judgment. Randolph, 4 P.3d at 483;Altman, 960 P.2d at 1170. The good-faith exception requires officers to have a reasonable knowledge of what the law prohibits. Leon, 468 U.S. at 919 n. 20.
The affidavit in this case is a "bare bones" affidavit regarding the existence of the crucial link between the place to be searched and current information of criminal activity or the presence of contraband there. Randolph, 4 P.3d at 482. As the trial court observed, the affidavit is bereft of current information about illegal activity at Miller's house:
We emphasize that there is no bright line rule for counting of days in considering whether the affidavit is based on stale information. When the information in the affidavit focuses on one location, demonstrates ongoing activity over several months at that place, and the search warrant is for that place, courts have held that observations dating back more than one month were not stale. For example, the court in United States v. Iiland, 254 F.3d 1264, 1268-69 (10th Cir. 2001) (activity ongoing over a considerable period of time) pointed out that the "affidavit tended to show that Mr. Iiland kept the drugs he sold in the storage unit, and that he was still renting and visiting the unit a few days before the warrant was issued." Another court pointed out that "[n]othing suggested either that the conspirators would not continue in their operation or that the laboratory would be moved." United States v. Ruff, 984 F.2d 635, 638 (5th Cir. 1993). In United States v. Le, 173 F.3d 1258, 1266 (10th Cir. 1999), the reports of two informants were consistent in stating ongoing activity at the place to be searched. In contrast, the affidavit in the case before us placed the ongoing drug manufacturing at a different location from the place to be searched.
The "good faith" exception does not cure this deficiency. The affidavit is devoid of any information indicating current illegal activity at [Miller's house]. Official belief in the existence of information showing current illegal activity at [Miller's house] would be objectively unreasonable based on the information in the affidavit.
A reasonably well-trained police officer is held to know that an affidavit without any relatively current information of illegal activity or the presence of contraband at a residence does not create probable cause to search the residence. Consequently, we agree with the trial court that the police did not reasonably rely on the warrant.
The prosecution urges us to consider information outside the affidavit to establish that the police met the objective good faith standard for admission of the seized evidence. This information was included in the affidavit to search the house of Miller's friend, or was discovered as a result of that search, and was "overlooked" in the affidavit for this warrant. However, like the trial court, we are restricted to the information contained within the four corners of the affidavit. See Reed, 56 P.3d at 101 (courts must consider whether reliance on the warrant was objectively reasonable, based on the contents of the warrant, and cannot inquire into the police's subjective good faith). Thus, we decline to bolster the insufficient affidavit in this case with additional information not conveyed to the magistrate in the application for this warrant.
The prosecution's brief to us argues that the officer who sought and executed the warrant acted in objective good faith, in part because "he possessed more knowledge of criminal activity at [Miller's house] than he stated in his warrant; to wit: that he personally spoke with another informant on December 20, 2002, who told him that Miller continues to manufacture methamphetamine in his home." (emphasis in original). People's Opening Brief at 8, People v. Miller, No. 03SA107.
For example, the warrant for the friend's house recites that an informant told the police on December 20 that Miller had continued to manufacture methamphetamine since his August arrest, and Miller primarily manufactures at his home and at his friend's residence. The People urge us to consider this information, arguing:
A comparison of Officer Lopez' probable cause affidavit for the search of [Miller's residence] and Deputy Jolliffe's probable cause affidavit for the search of [Miller's friend's residence] clearly demonstrate that the two officers shared information
and worked together in composing their affidavits. It is also clear that Officer Lopez simply overlooked stating an important detail when composing his affidavit. (emphasis added). People's Opening Brief at 6.
Given the facts of this case, applying the exclusionary rule to suppress the evidence seized has the salutary effect of requiring the police to use in the affidavit for the search warrant current information they have available, or may obtain, to establish the link between the place to be searched and the existence of criminal activity or contraband there. Establishing this link is at the heart of Fourth Amendment protections.
III. Conclusion
Accordingly, we affirm the trial court's suppression order and remand this case for further proceedings consistent with this opinion.
JUSTICE COATS dissents, and JUSTICE KOURLIS and JUSTICE RICE join in the dissent.