People v. Cox
2018 CO 88
Colo.2018Background
- In Oct. 2017 Detective Mark Post swore an affidavit supporting warrants to search David Cox’s residence and packing shed after officers observed plants drying on tarps and hung from a shed ceiling that Post described as marijuana based on appearance and a "distinctive odor."
- The affidavit stated large quantities were in plain view, quantities exceeded personal-use amounts, multiple civilians had reported a suspected large marijuana grow, and Cox had been denied a town recreational marijuana license.
- Officers executed the warrant, seized plants (but left about 10,000 pounds because of hemp concerns), and Cox was charged with marijuana-related offenses and child abuse.
- Cox moved to suppress, arguing the affidavit lacked probable cause because it failed to disclose Cox’s status as a registered industrial hemp farmer and did not account for the fact that hemp and marijuana appear and smell the same. The trial court granted the motion after considering preliminary-hearing evidence.
- The People appealed interlocutorily. The Colorado Supreme Court reversed, concluding the trial court erred by (1) conducting de novo review instead of deferring to the magistrate, (2) relying on information outside the four corners of the affidavit, and (3) failing to presume the affidavit’s validity; on remand the trial court should consider Cox’s request for a veracity hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the affidavit established probable cause to search Cox’s property | Affidavit provided detailed observations and officer opinion that plants were marijuana, large quantities consistent with distribution; magistrate had substantial basis to issue warrant | Affidavit was conclusory and misleading because it omitted that Cox was a registered hemp farmer and hemp and marijuana are indistinguishable without chemical testing | Reversed: magistrate had a substantial basis for probable cause when the affidavit is read within its four corners and afforded the presumption of validity |
| Whether trial court properly reviewed magistrate’s probable-cause finding de novo | Magistrate’s determination is entitled to great deference; reviewing court should ask if magistrate had a "substantial basis" | Trial court contended affidavit was insufficient and examined evidence beyond the affidavit | Reversed: trial court erred by applying de novo review rather than deferential substantial-basis standard |
| Whether the trial court could rely on evidence outside the affidavit in reviewing probable cause | People: review must be limited to the four corners of the affidavit | Cox: trial court relied on preliminary-hearing evidence (e.g., registration, chemical tests) to show affidavit was misleading | Reversed: trial court improperly relied on extraneous evidence in its four-corners review; such material may be relevant only to a veracity hearing |
| Whether the affidavit was entitled to a presumption of validity and whether a veracity hearing was warranted | Affidavit presumptively valid; Cox may pursue a veracity hearing if he makes the required threshold showing | Cox argued affidavit omitted material facts (hemp status) so statements were misleading and warranted suppression | Court: affidavit must be presumed valid for probable-cause review; remanded to consider Cox’s alternative request for a veracity hearing under Colorado’s Dailey/Franks standard |
Key Cases Cited
- People v. Kerst, 181 P.3d 1167 (Colo. 2008) (affidavit must set forth particular facts and is afforded a presumption of validity)
- People v. Miller, 75 P.3d 1108 (Colo. 2003) (probable cause exists if affidavit warrants a person of reasonable caution to believe contraband or evidence is located at place to be searched)
- People v. Gallegos, 251 P.3d 1056 (Colo. 2011) (magistrate’s determination must be based on facts within the four corners of the affidavit)
- People v. Hebert, 46 P.3d 473 (Colo. 2002) (magistrate’s probable-cause determination is given great deference; reviewing court asks if there was a substantial basis)
- People v. Gall, 30 P.3d 145 (Colo. 2001) (reviewing standard focuses on whether issuing magistrate had substantial basis)
- People v. Pacheco, 175 P.3d 91 (Colo. 2006) ("bare bones" affidavit doctrine; conclusory statements insufficient)
- People v. Flores, 766 P.2d 114 (Colo. 1988) (veracity hearing rules when affiant’s good faith is challenged)
- People v. Dailey, 639 P.2d 1068 (Colo. 1982) (Colorado’s threshold for requesting a veracity hearing requires a good-faith showing identifying specific challenged statements)
- Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (federal standard for showing intentional or reckless falsehoods in affidavits to obtain a Franks hearing)