CO Code § 16-3-308 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 3 - Arrest - Searches and Seizures|Part 3 - Searches and Seizures|§ 16-3-308. Evidence - Admissibility - Declaration of Purpose - Definitions

  Evidence which is otherwise admissible in a criminal proceeding shall not be suppressed by the trial court if the court determines that the evidence was seized by a peace officer, as described in section 16-2.5-101, as a result of a good faith mistake or of a technical violation.    As used in subsection (1) of this section:   “Good faith mistake” means a reasonable judgmental error concerning the existence of facts or law which if true would be sufficient to constitute probable cause.    “Technical violation” means a reasonable good faith reliance upon a statute which is later ruled unconstitutional, a warrant which is later invalidated due to a good faith mistake, or a court precedent which is later overruled.       Evidence which is otherwise admissible in a criminal proceeding and which is obtained as a result of a confession voluntarily made in a noncustodial setting shall not be suppressed by the trial court.      It is hereby declared to be the public policy of the state of Colorado that, when evidence is sought to be excluded from the trier of fact in a criminal proceeding because of the conduct of a peace officer leading to its discovery, it will be open to the proponent of the evidence to urge that the conduct in question was taken in a reasonable, good faith belief that it was proper, and in such instances the evidence so discovered should not be kept from the trier of fact if otherwise admissible. This section is necessary to identify the characteristics of evidence which will be admissible in a court of law. This section does not address or attempt to prescribe court procedure.    It shall be prima facie evidence that the conduct of the peace officer was performed in the reasonable good faith belief that it was proper if there is a showing that the evidence was obtained pursuant to and within the scope of a warrant, unless the warrant was obtained through intentional and material misrepresentation.         History. Source: L. 81: Entire section added, p. 922, § 1, effective July 1. L. 85: (2)(a) and (4) amended, p. 615, §§ 3, 4, effective July 1. L. 2003: (1) amended, p. 1614, § 7, effective August 6.    Cross references:   For the admissibility of evidence in proceedings under the “Colorado Children's Code”, see § 19-2-803 .   ANNOTATION   Law reviews. For article, “Colorado's Good-Faith Exception to the Exclusionary Rule”, see 11 Colo. Law. 410 (1982). For article, “Good-Faith Exception to the Exclusionary Rule: The Fourth Amendment is Not a Technicality”, see 11 Colo. Law. 704 (1982). For article, “Attacking the Seizure -- Over-coming Good Faith”, see 11 Colo. Law. 2395 (1982). For note, “The Colorado Statutory Good-Faith Exception to the Exclusionary Rule : A Step Too Far?” see 53 U. Colo. L. Rev. 809 (1982). For comment, “Privacy Rights v. Law Enforcement Difficulties: The Clash of Competing Interests in New York v. Belton”, see 59 U. Den. L.J. 793 (1982). For article, “Warrant Requirement -- The Burger Court Approach”, see 53 U. Colo. L. Rev. 691 (1982). For article, “Search Warrants, Hearsay and Probable Cause -- The Supreme Court Rewrites the Rules”, see 12 Colo. Law 1250 (1983). For article, “Criminal Procedure”, which discusses a Tenth Circuit decision dealing with the exclusionary rule, see 61 Den. L.J. 291 (1984). For comment, “The Good Faith Exception: The Seventh Circuit Limits the Exclusionary Rule in the Administrative Context”, see 61 Den. L.J. 597 (1984). For article, “United States v. Leon and Its Ramifications”, see 56 U. Colo. L. Rev. 247 (1985). For article, “People v. Mitchell: The Good Faith Exception in Colorado”, see 62 Den. L.J. 841 (1985). For article, “The ‘Bare Bones' Affidavit Under Colorado's Good Faith Exception to the Exclusionary Rule”, see 40 Colo. Law. 27 (May 2011).   Annotator's note. For annotations concerning the exclusionary rule, see § 7 of art. II, Colo. Const., and Crim. P. 26 and 41.   The link between the place to be searched and the existence of criminal activity or contraband is at the heart of fourth amendment protections. 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. People v. Miller, 75 P.3d 1108 (Colo. 2003).   However, even if affidavit is insufficient to establish link between the place to be searched and the existence of criminal activity, if the affidavit contains objectively reasonable probable cause, as enumerated by the federal circuit courts, the good faith exception to exclusionary rule applies. People v. Hagos, 250 P.3d 596 (Colo. App. 2009).   Whether an individual conducting a search or seizure is an agent of the government is determined by the totality of the circumstances. In order to establish agency, one must show that the government encouraged, initiated, and instigated a search or seizure or that the person conducting the search acted only to assist law enforcement efforts. People v. Pilkington, 156 P.3d 477 (Colo. 2007).   A private actor's independent motive to investigate creates a strong presumption that he or she is not an agent of the government, and therefore the fourth amendment does not apply to the search. People v. Pilkington, 156 P.3d 477 (Colo. 2007).   Section inapplicable to mistaken judgment of law. A mistaken judgment of law, such as the mistaken judgment by an officer that the facts known to him are sufficient to warrant a full custodial arrest of the defendant, is insufficient to cause the application of this statute. People v. Quintero, 657 P.2d 948 (Colo. 1983), cert. granted, 463 U.S. 1206, 104 S. Ct. 62, 77 L. Ed. 2d 1386, cert. dismissed, 464 U.S. 1014, 104 S. Ct. 543, 78 L. Ed. 2d 719 (1983) (decided under subsection (2)(a) prior to 1985 amendment).   Search by police of tenant's premises based on consent by landlord is mistake of law since it is well settled that a landlord cannot give such consent. People v. Brewer, 690 P.2d 860 (Colo. 1984).   Where no warrant was ever issued and an arrest occurred as a result of incorrect information in the National Crime Information Computer (NCIC) after the period of parole had expired, an arrest was illegal, and any evidence seized as a result of such arrest cannot be covered by the good faith exception and must be suppressed. People v. Fields, 785 P.2d 611 (Colo. 1990).   Violation of fourth amendment rights found when court failed to review affidavits in support of both wiretap applications and search warrants to determine if they established probable cause after certain evidence contained in said affidavits had been struck, the court having determined that there was no statutory technical violation exception to the exclusionary rule suppressing such evidence. People v. Vazquez, 768 P.2d 721 (Colo. App. 1988), cert. denied, 787 P.2d 174 (Colo. 1990).   Telephone toll records held admissible under good faith exception to exclusionary rule where affidavit underlying search warrant was insufficient because affidavit not so lacking in indicia of probable cause as to render official belief unreasonable. People v. Taylor, 804 P.2d 196 (Colo. App. 1990).   Admission of evidence seized from a defendant's residence pursuant to a defective warrant did not constitute reversible error, even though warrant was issued based on an affidavit inadvertently failing to allege facts linking defendant to the residence to be searched. People v. Deitchman, 695 P.2d 1146 (Colo. 1985).   Section does not apply to an arrest based on a warrant void from its inception due to the absence of any cause whatever for its issuance. People v. Mitchell, 678 P.2d 990 (Colo. 1984).   No technical violation where court precedent relied on was based on different facts. Technical violation was not found for good faith reliance of prior court decision where such precedent was based on different factual situation. People v. Corr, 682 P.2d 20 (Colo.), cert. denied, 469 U.S. 855, 105 S. Ct. 181, 83 L. Ed. 2d 115 (1984).   Statutory good faith exception to exclusionary rule inapplicable where mistaken information, even if true, along with other information relied on by officer, did not constitute reasonable grounds to believe defendant committed or was committing a crime. People v. Foster, 788 P.2d 825 (Colo. 1990).   Statutory good faith exception to exclusionary rule does not exclude evidence that federal jurisprudence would admit. This section was intended to incorporate the federal exception to the exclusionary rule, it does not create a narrower rule. People v. Saint-Veltri, 935 P.2d 34 (Colo. App. 1996).   Statutory good faith exception to exclusionary rule inapplicable to evidence seized after search incident to arrest where arrest warrant is not supported by probable cause to arrest the defendant. People v. Woods, 885 P.2d 287 (Colo. App. 1994).   Good faith exception to exclusionary rule does not apply where a detective's reliance on a warrant is not objectively reasonable. Where an affidavit contains no facts that would allow a reasonable officer to conclude that probable cause for a search exists, the illegally obtained evidence is not admissible under the good faith exception to the exclusionary rule. People v. Leftwich, 869 P.2d 1260 (Colo. 1994); People v. Pacheco, 175 P.3d 91 (Colo. 2006); People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev'd on other grounds, 2012 CO 66, 289 P.3d 24.   Information in deputy's affidavit, considered separately and as a whole, failed to establish a substantial basis for the magistrate's determination that probable cause existed to issue the warrant. People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev'd on other grounds, 2012 CO 66, 289 P.3d 24.   Because the information regarding drug manufacturing at defendant's home was stale when the police applied for the warrant, no reasonable police officer would have relied on it. Accordingly, the exclusionary rule operates, not the good faith exception to it. People v. Miller, 75 P.3d 1108 (Colo. 2003).   Thus, good faith exception does not apply when the police submit a defective affidavit to the county judge and continue to rely on that defective affidavit. Officers involved in obtaining and executing a search warrant have a continuing duty to exercise reasonable professional judgment. Even though a reviewing magistrate has executed the warrant, the officer must still read the affidavit and warrant carefully and must be objectively persuaded that the warrant is sufficient. People v. Randolph, 4 P.3d 477 (Colo. 2000).   Neither Colorado nor federal law purports to recognize a “good faith” exception to the exclusionary remedy for statements taken in violation of Miranda. People v. Mangum, 48 P.3d 568 (Colo. 2002).   The statute creates a presumption that an officer was acting in good faith if he or she was acting pursuant to a warrant, but the ultimate question must still be whether the officer undertook the search in the reasonable, good faith belief that it was proper. People v. Altman, 960 P.2d 1164 (Colo. 1998); People v. Hagos, 250 P.3d 596 (Colo. App. 2009).   Police must act in objective good faith when applying for a warrant; the fact that a magistrate ultimately approved the warrant is not controlling. People v. Miller, 75 P.3d 1108 (Colo. 2003).   The court is restricted to the information contained within the four corners of the affidavit. Thus, it cannot bolster the insufficient affidavit with additional information not conveyed to the magistrate in the application for the warrant. People v. Miller, 75 P.3d 1108 (Colo. 2003).   Good faith exception applies when police are acting in reasonable reliance on search warrant issued by detached and neutral magistrate or judge, and the warrant is later found to be unsupported by probable cause. Exception is applicable only when such reliance is “objectively reasonable”. People v. Titus, 880 P.2d 148 (Colo. 1994).   The fact that same officer filed bare bones affidavit for warrant and executed warrant bolsters trial court's conclusion that the officer's reliance on the defective affidavit was not objectively reasonable, and, consequently, the good faith exception to the exclusionary rule did not apply to shield the evidence obtained in the search. People v. Pacheco, 175 P.3d 91 (Colo. 2006).   But, it is not necessarily sufficient grounds to apply the exclusionary rule if same officer who filed bare bones affidavit for warrant also executed warrant so long as the officer could show his or her reliance on the warrant was objectively reasonable. People v. Hagos, 250 P.3d 596 (Colo. App. 2009).   The determination by an appellate court that a warrant is invalid does not mean a police officer's reliance upon that warrant was objectively unreasonable. People v. Altman, 960 P.2d 1164 (Colo. 1998).   The fact that the affidavit details activities that are lawful does not cause it to be a bare bones affidavit; a combination of otherwise lawful circumstances may well lead to a legitimate inference of criminal activity. People v. Altman, 960 P.2d 1164 (Colo. 1998).   Arrest of a person other than the one named on the warrant does not automatically preclude application of the good faith mistake exception to the exclusionary rule. If the police have reasonable grounds to believe the suspect is the intended arrestee and the warrant is constitutionally valid, the arrest of the suspect is generally valid. People v. Lewis, 813 P.2d 813 (Colo. App. 1991).   Applied in People v. Reed, 56 P.3d 96 (Colo. 2002).