Lead Opinion
The defendant, Jerry Deitchman, appeals his convictions of first-degree sexual assault, second-degree kidnapping, and attempted second-degree kidnapping. §§ 18-3-402; 18-3-302; and 18-2-101, 8 C.R.S. (1978). As the sole ground for reversal, defendant claims that the district court improperly admitted evidence seized from his residence and automobile pursuant to defective warrants.
During a ten-day period in 1981, the Denver Police Department received reports from four teenage girls of separate assaults and sexual attacks that occurred in the Lincoln High School area. Each victim described her attacker as a male who was approximately twenty years old and who was between five foot seven and five foot nine inches in height. In addition, all four victims stated that their assailant drove a small, light-colored automobile. Two of the victims stated that the assailant threatened them with a broken bottle, shoved them into his car, and forced them to perform fellatio. One of the victims told the police that her assailant wore a pair of size eight, white, Nike tennis shoes with a neutral stripe and black shoe laces. She reported that the name “Janet” was written on the inside of the left shoe. Another victim stated that she had seen a red bandana hanging from the rear view mirror of her attacker’s car. Two of the victims identified the license plate on the assailant’s automobile as CN-4714.
Records from the Colorado Motor Vehicle Department disclosed that license plate number CN-4714 was issued for a 1971 Toyota registered to Jerry Deitchman. The police obtained a photograph of Deitch-man from the Denver Police Department’s Identification Bureau and prepared a photographic display that included Deiteh-man’s photograph. After viewing the photograph array, three of four victims identified Deitchman as their assailant. The police were unable to locate Deitchman until they contacted his employer and learned that he had moved to 3300 West Ohio Avenue in Denver.
On November 10, 1981, two Denver police detectives, acting pursuant to a Crim.P. 41.1 court order, went to the defendant’s residence for the purpose of obtaining his presence in a physical lineup. When the police arrived at the defendant’s residence, they were led to an upstairs bedroom where the defendant was sleeping. While in the bedroom, a police officer noticed a pair of white high-topped tennis shoes in plain view on the bedroom floor. When the defendant requested that his wife obtain his shoes for him, he specifically asked for shoes other than the tennis shoes. The defendant was taken into custody and transported to the police station for a lineup. At the lineup, three of the four victims again identified Deitchman as their assailant. Deitchman was then arrested and advised of his Miranda rights.
Following Deitchman’s arrest, Detective Foster secured separate warrants to search Deitchman’s car and home at 3300 West Ohio Avenue. The affidavit prepared by Detective Foster set forth in detail the results of the investigation and identified 3300 West Ohio Avenue as the place to be searched. Among the items sought to be seized were a pair of Nike tennis shoes, a red bandana, and other clothing that was believed to be at the defendant’s residence at 3300 West Ohio Avenue. Detective Foster, however, inadvertently failed to allege facts in the affidavit that would link Deitchman to the residence that was to be searched, although the address was included in the affidavit. Detective Foster presented the affidavit to a judge, who determined that it established probable cause and issued both search warrants. Relying on the warrants, the police searched Deitchman’s residence and his automobile. The police found the size eight white Nike tennis shoes with a neutral stripe, black laces, and the name “Janet” written on the left shoe in a closet. The police also recovered a red bandana from the defendant’s home and seized a second bandana from the defendant’s car.
At the suppression hearing, the defendant sought to suppress the evidence seized during the search, claiming that the affida
In our view, the defendant’s conviction must be affirmed since reversible error did not occur. Four members of the court are of the opinion that the “good faith” exception created by section 16-3-308, 8 C.R.S. (1984 Supp.), does not apply. Because no concurring opinion dispositive of this case is supported by a majority of the court, separate concurrences follow in order of seniority of the author.
Concurrence Opinion
concurring:
I.
The sole issue presented for our consideration is whether the district court erred in refusing to suppress the evidence seized pursuant to the warrants in light of the deficiencies in the affidavit.
In rejecting the defendant’s motion to suppress the evidence, the district court relied exclusively on section 16-3-308, 8 C.R.S. (1984 Supp.), Colorado’s statutory “good faith” exception to the exclusionary rule. Section 16-3-308 provides in pertinent part:
(1) 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 defined in section 18-1-901(3)(1), C.R.S., as a result of a good faith mistake or of a technical violation.
(2) As used in subsection (1) of this section:
(a) “Good faith mistake” means a reasonable judgmental error concerning the existence of facts which if true would be sufficient to constitute probable cause.
(b) “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.
On appeal, the defendant claims that section 16-3-308 is not applicable to the type of error committed by the police officer in this case, and that the statute violates article II, section 7 and article III of the Colorado Constitution. I find both arguments to be unpersuasive.
A.
Application of Section 16-3-308
The General Assembly has broad powers under article III of the Colorado Constitution and may enact laws not expressly or impliedly prohibited by the United States of Colorado Constitutions. People v. Y.D.M.,
In Mapp v. Ohio,
Since Mapp, the Supreme Court has restricted the application of the exclusionary rule in several areas of fourth amendment law.
In the present case, the primary issue is whether section 16-3-308 is inconsistent with the United States Supreme Court’s decisions that dictate when a state court must invoke the exclusionary rule to deter violations of the fourth amendment. In enacting the good faith statutory exception to the exclusionary rule, the General Assembly stated:
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. ...
§ 16-3-308(4), 8 C.R.S. (1984 Supp.).
In furtherance of that legislative policy, section 16-3-308(1) expressly provides that a district court shall not suppress evidence that is lawfully seized by a police officer as a result of a “good faith mistake” or a “technical violation.” It is significant that in enacting section 16-3-308, the General Assembly saw fit to create two separate and distinct categories of police mistakes: (1) those mistakes that constitute “good faith” mistakes within the meaning of section 16-3-308(2)(a); and (2) those mistakes that are “technical violations” as defined by section 16-3-308(2)(b). The mistake committed by the police officer in the present case falls squarely within subsection (2)(b), which is directed to “a reasonable good faith reliance upon ... a warrant which is later invalidated due to a good faith mistake.”
At the time of the defendant’s suppression hearing, there was no judicial authority interpreting the language contained in subsection 2(b). In People v. Quintero,
While it is apparent that the mistake committed by the detective here involves a legal issue, that factor alone does not preclude resort to the provisions of subsection (2)(b). A common sense reading of subsection (2)(b) reveals that the General Assembly intended that the provisions of the subsection include good faith mistakes of law as well as good faith factual errors.
Following the suppression hearing, the United States Supreme Court decided United States v. Leon, — U.S. -,
In Sheppard, a police officer obtained substantial evidence linking the defendant to a murder, and subsequently prepared an affidavit that set forth facts that were sufficient to establish probable cause to validate a search warrant. Unable to find a suitable warrant form, however, the officer used a standardized “controlled substances” warrant form that he modified as best he could. He presented the affidavit and the warrant to a judge who made some minor alterations and signed the warrant. However, the judge did not alter the substantive portions of the warrant that merely authorized a search for controlled substances. Relying on the apparent legality of the altered warrant, the police searched Sheppard’s residence and recovered several items that tied Sheppard to the murder. At trial, the court suppressed the evidence because of the facial defects in the search warrant.
On appeal, the Supreme Court reversed the trial court’s suppression order due to the officer’s good faith conduct. The Court noted that the police had taken “every step that could reasonably be expected of them” and that their conduct was “objectively reasonable and largely error-free.” — U.S. at -,
Sheppard is analogous to the present case in several respects and is also consistent with the technical violation language contained in section 16 — 3—308(2)(b). In both Sheppard and in this case the police had probable cause to obtain a search warrant as a result of thorough investigations. Cf. United States v. Leon (police had not gathered sufficient information to constitute probable cause at the time they sought to secure a search warrant). In addition, the police in both cases prepared detailed affidavits that a neutral and detached judge reviewed and approved. Moreover, the error asserted in both cases involved a “facial” defect that a reasonably prudent police officer could not be expected to detect. Finally, both this case and Sheppard involve a mistake that, when considered in the context of the entire record, had no tangible impact on the defendant’s constitutional rights.
B.
Article II, Section 7
The defendant asserts that section 16-3-308 vitiates the probable cause requirement of article II, section 7 of the Colorado Constitution. Accordingly, he claims the statute is unconstitutional and that the trial court erred in refusing to suppress the evidence. I do not agree with his analysis.
Like the fourth amendment, article II, section 7 of the Colorado Constitution expressly requires that a warrant be supported by probable cause established by affidavit. Article II, section 7 provides:
The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place or seize any person or thing shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.
Although article II, section 7 contains language virtually identical to its federal counterpart, this court has, in the past, interpreted article II, section 7 as providing an individual with even greater protections than those guaranteed by the fourth amendment to the United States Constitution. See, e.g., People v. Sporleder,
In enacting a good faith statutory exception to the exclusionary rule, the General Assembly left intact the probable cause requirement and the other constitutional standards for obtaining a valid warrant. The statute does not affect the rights guaranteed under article II, section 7, but merely alters the mechanism available to enforce those rights. Under section 16-3-308(2)(b), the exclusionary sanction simply will not apply in cases in which a police officer has relied in good faith on a defective warrant, a court precedent, or a subsequently invalidated statute.
The defendant argues, however, that the exclusionary rule is an integral part of article II, section 7 and cannot be modified or restricted by the General Assembly. I reject the defendant’s argument. The exclusionary rule is not a personal constitutional right, but is a judicially created remedy designed to deter illegal police behavior. United States v. Calandra,
In recognition of the fact that the exclusionary rule is a prophylactic remedy and not a personal constitutional right, this court has never required that all evidence seized in violation of article II, section 7 be suppressed. See, e.g., Thomeczek v. Bray,
By limiting the exclusionary rule to cases where deterrence can be achieved, this court’s search and seizure jurisprudence has roughly paralleled the approach taken by the United States Supreme Court. See generally Illinois v. Gates,
In the present case, however, I do not perceive how respect for Colorado’s constitutional rights can be achieved by suppressing the evidence. The record reveals that the detective conducted himself in an objectively reasonable manner throughout the entire chain of events that precipitated the search. After conducting a thorough investigation, the detective obtained substantial evidence linking the defendant to the sexual assaults. The detective then prepared an affidavit; as required by article II, section 7. It is undisputed that the detective had the facts necessary to establish probable cause for the search at the time he prepared the affidavit, but that he inadvertently failed to include the facts in the affidavit. The detective presented the affidavit to a judge and obtained official sanction for the search by securing the necessary warrants. Relying on the apparent propriety of the warrants, the officer executed the search in a reasonable manner, searching only those areas specified in the warrants and seizing only those items that he was authorized to seize.
The detective’s sole mistake, throughout the entire investigation, was his failure to allege known facts in the affidavit that would link the defendant to the residence to be searched. Such an inadvertent omission, in my opinion, does not demonstrate a willful or flagrant disregard of the defendant’s rights under the Colorado Constitution. To the contrary, the detective’s actions throughout the investigation were those of a conscientious law enforcement officer concerned with following proper police procedures. The affidavit was prepared and the search warrant was issued after the police officers had obtained an order pursuant to Crim.P. 41.1 and had taken Deitchman into custody at 3300 West Ohio Avenue for the lineup. Thus, the police knew that Deitchman lived at 3300 West Ohio Avenue but inadvertently failed to include that information as the basis for their conclusion that incriminating evidence would be found at that address.
In my view, the critical error in the present case was committed by the judge who reviewed the affidavit, and not by the police officer who prepared it. Police officers, unlike magistrates and judges, are not trained experts in the subtleties and nuances of fourth amendment law. It is the responsibility of the judge, and not the officer, to examine an affidavit to insure
Moreover, any incremental deterrent benefit that might be achieved by excluding the evidence must be balanced against the substantial costs of suppressing evidence that is highly probative on the issue of guilt. Significantly, the defendant here has not challenged the authenticity of the evidence seized from his home. Nor has he questioned the adequacy or thoroughness of the police officer’s investigation and the existence of probable cause to support his arrest for the crimes charged. Cf. People v. Quintero,
I would therefore hold that article II, section 7 does not require the suppression of evidence when a police officer acts in good faith reliance on a technically defective warrant. Accordingly, I reject defendant’s claim that the good faith statute, as applied to the facts in the present case, violates article II, section 7 of the Colorado Constitution.
C.
Separation of Powers
The defendant also claims that section 16-3-308 violates the principle of separátion of powers embodied in article III of the Colorado Constitution. He asserts that the good faith statute is an unconstitutional usurpation by the legislature of the powers belonging exclusively to the judiciary. I disagree.
Whether a particular statute violates the provisions of article III depends on whether the statute is classified as “procedural” or “substantive” in nature. Page v. Clark,
If the purpose ... is to permit a court to function and function efficiently, the rule-making power is inherent unless its impact is such as to conflict with other validly enacted legislative or constitutional policy involving matters other than the orderly dispatch of business.
This court has traditionally recognized that the General Assembly has great latitude in enacting legislation that affects the admissibility of evidence in criminal and civil trials. See, e.g., McKenna,
The defendant claims, however, that the “good faith” statute constitutes a legislative attempt to circumvent the exclusionary rule and to regulate the procedural operation of the courts. In making this argument, the defendant ignores the General Assembly’s intent in enacting a good faith statutory exception to the exclusionary rule. The basic purpose of section 16-3-308 is one of public policy. See § 16-3-308(4). The statute represents the Colorado General Assembly’s response to growing public disapproval of an exclusionary rule that undermines the truth finding process and often causes the guilty to go free. Thus, the statute deals with a matter of substantive public policy, and not with the internal operating proceedings of this court. Id. In my opinion, section 16-3-308 does not violate article III of the Colorado Constitution.
Accordingly, I agree that the defendant’s conviction should be affirmed.
Notes
. We need not consider whether the affidavit that supported the issuance of the warrant violated the defendant’s rights under either the United States or Colorado Constitutions. The prosecution conceded at the suppression hearing that the affidavit failed to comply with constitutional prerequisites. Therefore, that issue is not properly before us.
. Justice Black concurred in Mapp, but was not persuaded that the fourth amendment, standing alone, was enough to support extending the exclusionary rule to the states. In his concurring opinion, Justice Black described the exclusionary rule as a "judicially created rule of evidence which Congress might negate.”
. Significantly, only four justices in Mapp concluded that the exclusionary rule was mandated by the fourth amendment. However, in the cases immediately following Mapp, the Supreme Court treated the exclusionary rule as an "essential part" of the fourth amendment’s privacy right and routinely excluded evidence in nearly every case involving a fourth amendment violation. E.g., Ker v. California,
. See, e.g., United States v. Havens,
.Charles Moylan points out, however, that:
Even as the Supreme Court reluctantly adopted the Exclusionary Rule as a desperation measure, because no other feasible sanction appeared on the horizon, it never pretended that it was doing so for the benefit of the defendant. In the best of all worlds, the defendant should have gone to jail for the crime which the physical evidence proved he had committed and the officer who violated the Constitution should have felt the sting of some other sanction. The defendant only received the undeserved and unintended benefit of exclusion because he was the necessary vehicle through whose case the sanction had to be applied to the officer.
United States v. Calandra,414 U.S. 338 [94 S.Ct. 613 ,38 L.Ed.2d 561 ] (1974), asserted flatly that the exclusion of evidence was not "a personal constitutional right of the person aggrieved.” Linkletter v. Walker [381 U.S. 618 ,85 S.Ct. 1731 ,14 L.Ed.2d 601 (1965)], spoke to the same effect, "The ruptured privacy of the victims’ homes and effects cannot be restored. Reparation comes too late.” The majority opinion in Leon reaffirmed this unremitting rejection of exclusion as a constitutional entitlement:
"The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure ‘works no new Fourth Amendment wrong.’ ”
C. Moylan, Back to Normalcy! Some Off-The-Cuff Observations on the Leon & Sheppard Decisions, Printed in The Daily Record, Baltimore, Maryland (July 12, 1984) (quoting United States v. Leon, — U.S. -,
. Section 16-3-308(2)(a) is inapplicable to the facts in the present case. Section 16 — 3— 308(2)(a) defines a good faith mistake as a "reasonable judgmental error concerning the existence of facts which if true would be sufficient to constitute probable cause.” In People v. Quintero,
In my view, section 16-3-308(2)(a), under which Quintero was decided, simply restates the existing standard for probable cause. Probable cause has never required absolute certainty on the police officer’s part. Rather, probable cause deals with probabilities and takes into account the reasonable factual misperceptions of the officer. United States v. Ventresca,
. Section 16-3-308(2)(b), when read in its entirety, further supports my conclusion that the "good faith” language in subsection (2)(b) encompasses good faith mistakes of law. Subsection (2)(b) evinces an intent, consistent with the United States Supreme Court’s rulings, to limit the exclusionary rule to those areas where the deterrent objectives of the rule can actually be achieved. For example, subsection (2)(b) includes within its definition of a good faith "technical violation” instances where a police officer relies on a statute that a court later declares unconstitutional. The wording of the statute parallels Michigan v. DeFillippo,
Similarly, subsection (2)(b) also declares that evidence should not be suppressed when a police officer relies on a court decision that is later overruled. The statute again is consistent with the Supreme Court’s holding in United States v. Peltier,
. Despite their broad language, Leon and Sheppard do not create a blanket rule of admissibility for all evidence seized pursuant to a defective warrant. Under the good faith exception, a court still retains the power to exclude evidence in those cases where deterrence can be achieved. Specifically, the exclusionary rule is retained in the following situations: (1) where a magistrate or judge plainly had "no business” issuing a warrant; (2) where a magistrate or judge relied on false or misleading information; (3) where the warrant clearly lacks a probable cause basis; and (4) where a judge or magistrate wholly abandons his role as a neutral and detached decision-maker. See Leon, - U.S. at -,
. I would not decide today whether a “technical violation” as defined by section 16-3-308(2)(b) includes the type of law enforcement mistake committed by the police officers in United States v. Leon. In Leon, unlike the facts in Sheppard and the present case, the police had not gathered sufficient information to constitute probable cause at the time they attempted to secure a search warrant.
. The appropriateness of applying the exclusionary rule is also addressed by the Leon decision. Justice White, writing for a majority of the Court, stated:
Judges and magistrates are not adjuncts to the law-enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions. The threat of exclusion thus cannot be expected to significantly deter them.
United States v. Leon, — U.S. at -,
Once it is accepted that the only purpose for denying the jury competent evidence is to "police the police," the decisions in Leon and Sheppard follow ineluctably. Deterrence is only obtained by punishing the police when they are unreasonable and by forbearing to punish them when they are reasonable. The fact patterns, therefore, are analyzed not from the constitutional vantage point of the defendant but from the subjective vantage point of the police. Everything reduces itself to the pivotal question, "Was the police action reasonable?"
Moylan, supra note 5.
.In a concurring opinion, Justice Stevens criticized the majority in Sheppard for deciding the case on “the broadest possible grounds." —
. The purpose of the exclusionary rule is to deter illegal police activity by suppressing evidence that is obtained as a result of police misconduct. However, under some circumstances, such as when an officer mistakenly believes that his conduct comports with the Fourth Amendment, the rule fails to deter official misconduct. In response to such cases, the Fifth Circuit announced a "good faith” exception to the exclusionary rule and refused to suppress evidence "discovered by officers in the course of actions that are taken in good faith and in the reasonable, though mistaken, belief that they are authorized.” United States v. Williams,
Erickson, Pronouncements of the United States Supreme Court Relating to the Criminal Law Field: 1982-83,
. The Model Code of Pre-Arraignment Procedure suggests using a “substantiality test" for determining when unlawfully seized evidence should be excluded at trial. Under the substan-tiality test, a court would not invoke the exclusionary sanction in cases, like the present, involving relatively minor police misconduct. American Law Institute, Model Code of Pre-Ar-raignment Procedure § 290.2 (1975). It has been the unlimited application of the exclusionary rule, especially in cases where the police error was inadvertent, that has prompted widespread criticism of the rule in its present form. The substantiality test takes into account both the "willfullness” of the police officer’s conduct and the "seriousness” of his mistake in determining whether the exclusionary rule should be invoked. The Model Code provides in pertinent part:
(2) Determination. A motion to suppress evidence pursuant to this section shall be granted only if the court finds that the violation upon which it is based was substantial, or if otherwise required by the Constitution of the United States or of this State.
If the court finds a violation not to be substantial it shall set forth its reasons for such finding.
*1156 is) Violations Deemed Substantial. A violation shall in all cases be deemed substantial if it was gross, wilful and prejudicial to the accused. A violation shall be deemed wilful regardless of the good faith of the individual officer if it appears to be part of the practice of the law enforcement agency or was authorized by a high authority within it.
(4) Circumstances to be Considered in Determining Substantiality. In determining whether a violation not covered by Subsection (3) is substantial, the court shall consider all the circumstances including:
(a) the extent of deviation from lawful conduct;
(b) the extent to which the violation was wilful;
(c) the extent to which privacy was invaded;
(d) the extent to which exclusion will tend to prevent violations of this Code;
(e) whether, but for the violation, the things seized would have been discovered; and
(f) the extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend himself in the proceeding in which the things seized are sought to be offered in evidence against him.
Id. at § 290.2(2) — (4).
. In addition to the deterrence justification, the Supreme Court has addressed the normative function or goal of judicial integrity as a second reason for suppressing illegally seized evidence. See, e.g., Terry v. Ohio,
To the extent that the normative rationale remains viable, the reason for invoking the exclusionary rule in this case is lacking. The "imperative of judicial integrity” requires admission of the evidence in issue. The court approved the affidavit by issuing the two warrants. The validity of the warrants issued by the court could not be questioned by Detective Foster. The police should not be punished and would not be deterred if the evidence was suppressed because of the court's error in approving the affidavit and issuing the warrants.
Concurrence Opinion
concurring:
I agree with Justice Quinn that the statutory “good faith exception,” § 16-3-308, 8 C.R.S. (1978), is inapplicable to the facts of this ease, and I join in Part III of his concurring opinion. However, I do not agree with Justice Quinn that police reliance on the affidavit in this case was “entirely unreasonable” within the meaning of United States v. Leon, — U.S. -,
I.
In United States v. Leon, — U.S. -,
I do not believe, as does Justice Quinn, that the affidavit in this case may be fairly placed within this exception to the rule of Leon. Justice Quinn finds that the police officer’s reliance on the warrant in this case was “entirely unreasonable” because the warrant was “totally lacking in any indicia of probable cause.” Slip op. at 8 (Quinn, J., concurring). However, it is to invalid warrants — those unsupported by probable cause — that the rule of Leon is addressed in the first instance. In excepting from this rule those cases in which police reliance upon the warrant is “entirely unreasonable,” the Court clearly intended to encompass those situations in which not only is probable cause lacking, but also in which the lack of probable cause is so patent that no reasonable police officer could believe that the warrant is valid.
Whatever else the Supreme Court may have meant by this exception, it is clear to me that the affidavit in this ease does not fall below this minimal standard. As discussed in Part III infra, the affiant in this case possessed probable cause to search the residence at 3300 West Ohio Avenue, and inadvertently omitted from the affidavit the information linking the defendant to that address. Moreover, the affidavit contained extensive information summarizing the results of the officer’s investigation, including facts linking the defendant to a number of sexual assaults in which the items sought by the search warrant played a role. The affiant clearly believed that he had provided the magistrate with all the information he himself had collected. Although the affiant erred in failing to review the affidavit to make certain that he had provided the magistrate with all that he knew, I cannot say that this failing is so egregious as to render reliance on the warrant “entirely unreasonable.”
II.
Although I do not share Justice Quinn’s view that the police reliance on the warrant here was “entirely unreasonable” within the meaning of that exception to the rule of Leon, neither do I join in Chief Justice
In applying section 16-3-308, Chief Justice Erickson imports into his analysis the “good faith exception” to the exclusionary rule announced in Massachusetts v. Sheppard, — U.S. -,
In the present case, the affidavit failed to state probable cause because no facts were set forth linking the items to be seized with the place to be searched. People v. Arnold,
Such a sweeping analysis is unnecessary to the resolution of this case. The analogy to Sheppard is forced and inapt; there, the warrant and affidavit read together supplied probable cause and limited the objects of the search, see Leon,
The “good faith exception” adopted in Leon has been criticized on a number of grounds. See generally Leon,
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 party aggrieved.” United States v. Calandra,
Application of the exclusionary rule in the present case would not advance its purpose. The objective circumstances of this case convincingly demonstrate that the police officer possessed probable cause at the time he applied for the warrant, and that his omission from the affidavit of facts sufficient to establish probable cause was inadvertent. Allowing admission of the evidence under these narrow circumstances will not encourage police officers in the future to conduct searches upon less than probable cause, nor to deliberately apply for warrants when probable cause is lacking.
A.
Both the fourth amendment to the United States Constitution and article II, section 7 of the Colorado Constitution prohibit “unreasonable” searches and seizures. Although in certain limited contexts a search and seizure may be found reasonable when unaccompanied by probable cause, see, e.g., Terry v. Ohio,
Therefore, one of the functions of the exclusionary rule under both the United States and Colorado Constitutions must be to deter police officers from conducting residence searches in the absence of proba
Such a requirement, while creating a narrower “good faith exception” than that apparently fashioned in Leon, is consistent with the rationale of that case. The deterrence objective of the exclusionary rule, the Court wrote, is not served “when the offending officers acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment.” Id.
In the present case, there is no doubt that Detective Foster possessed probable cause to search the defendant’s residence. Two days before obtaining the search warrant, Detective Foster had learned from the defendant’s employer that the defendant lived at 3300 West Ohio Avenue. That day, the detective served a Crim.P. 41.1 warrant on the defendant at 3300 West Ohio Avenue. When he and Detective Dinan arrived there, they were admitted by a woman, later identified as the defendant’s wife, who told them that the defendant was in the upstairs bedroom. The detectives served the warrant in the bedroom. While there, Detective Dinan noticed that one of the items later enumerated in the search warrant, a pair of the defendant’s tennis shoes, was on the floor. Upon either entering or leaving, Detective Foster noticed that a car bearing license plate number CN-4714 was parked in the driveway. This was the license plate number described by one of the victims, and Detective Foster had previously determined that a car bearing that license plate was registered to Jerry I. Deitchman. Based upon this information, Detective Foster possessed probable cause to believe that the defendant resided at 3300 West Ohio Avenue and that the objects of the search would be found there. Admitting the evidence under these circumstances cannot encourage police officers to conduct residence searches or seek warrants without probable cause.
B.
A finding that the police officer was aware of facts sufficient to constitute probable cause does not end the analysis. As noted above, the warrantless search of a residence is presumptively unreasonable unless it falls within one of a few previously-established exceptions to the warrant requirement.
We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals.... And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.
Chimel v. California,
In terms that apply equally to seizures of property and seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
In cases not before the court today, the broad and uncertain rule of Leon may have the unintended result of weakening the deterrent effect of the exclusionary rule by encouraging police behavior designed to circumvent the warrant requirement. See W. LaFave, The Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and “Good Faith”, 43 U.Pitt.L.Rev. 307, 353-54 (1982); Wasser-strom and Mertens at 109.
Under the facts presented here, there is little danger that police officers will be encouraged to evade the warrant requirement. Detective Foster testified at the suppression hearing that the omission of facts from the affidavit linking the defendant to 3300 West Ohio Avenue was inadvertent. Because Detective Foster possessed such facts at the time of the search warrant application, his testimony is highly credible. Admitting the evidence here will not encourage police officers to cut corners in investigation, deliberately approach magistrates with less than probable cause, or engage in magistrate shopping.
IY.
In sum, I would hold that it is consistent with the aims of the exclusionary rule under both the federal and state constitutions to admit illegally obtained evidence where, as here, the objective circumstances of the case convincingly demonstrate that the police officer possessed probable cause at the time of the warrant application, and the circumstances further show that any omission of facts from the underlying affidavit was truly inadvertent. I would save for another day the question of whether to adopt the rule of Leon in other contexts, or whether we should chart an independent course under article II, section 7 of the Colorado Constitution.
I am authorized to say that Justice LOHR joins this concurrence.
. The Court also held that the "good faith exception” to the exclusionary rule will not apply where the affiant supplies false information, where the magistrate wholly abandons his judicial role, or where a warrant is so facially defective (for example, in failing to particularize the place to be searched) that police cannot reasonably presume it to be valid. United States v. Leon, — U.S. -,
. Neither can I subscribe to Justice Quinn’s conclusion that the admission of the tennis shoe with the name "Janet” printed on it was error harmless beyond a reasonable doubt. The description of the tennis shoe, later found in the defendant's bedroom, was central to the prosecution’s case. Any doubts that the jury might have entertained as to the credibility of the witnesses’ testimony about the shoe were resolved by the admission of the shoe into evidence. In addition, the introduction of the tennis shoe into evidence may have led to the defendant’s highly damaging admission that the shoe was his.
. The characterization of the exclusionary rule as a "judicially created remedy” casts doubt upon the federal constitutional status of the rule. Therefore, the extent to which state courts are bound by federal interpretations of the exclusionary rule remains unclear. In addition, this court has not yet considered the question of whether and to what extent the exclusionary rule is required by article II, section 7 of the Colorado Constitution. See People v. Casias,
. Because the officer’s awareness of facts constituting probable cause and the inadvertence of his omission of such facts are proved here by objective circumstances, we need not decide whether to admit illegally seized evidence where the proof of such facts rests substantially or exclusively upon the officer's post hoc testimony as to his state of mind. Obviously, the danger of deliberate police evasion of constitutional requirements is much greater in such a case.
. The facts of this case do not fall within any established exception to the warrant requirement. Warrantless entry into a residence is
. The warrant requirements of the Colorado Constitution are more stringent than those of the United States Constitution. Under article II, section 7 of the Colorado Constitution, probable cause must be "supported by oath or affirmation reduced to writing." The magistrate’s function is thus more crucial under the Colorado Constitution than it is under the fourth amendment to the United States Constitution. See People v. Brethauer,
. One recent article suggests that the Leon rule may lead to shopping for magistrates known to be “soft” on probable cause:
With the [exclusionary] rule in place, the police know that if a reviewing court finds the warrant invalid, it will suppress the evidence seized pursuant to the warrant. Under the good faith exception, however, even evidence seized under an invalid warrant will generally be admissible. The police need concern themselves only with getting a warrant and not with getting a warrant that will hold up on review. Consequently, under the good faith exception, we can expect a variation of Gresham’s Law to operate; “bad" warrants— those issued by the most indolent, incompetent and indulgent magistrates — will effectively drive out “good” warrants. As a practical matter, the standard of probable cause will be established by the least demanding official authorized to issue warrants, even if this standard falls below the already diluted standard of probable cause established by the Court in Gates.
Wasserstrom and Mertens at 109 (footnotes omitted).
Concurrence Opinion
concurring:
Because the admission of the tennis shoes and the bandana seized from the residence at 3300 West Ohio Avenue was, in my view, harmless error, I concur in the affirmance of the defendant’s conviction. I do not believe, however, that the circumstances of this case merit the application of the good faith exception to the Fourth Amendment exclusionary rule as formulated and applied by the United States Supreme Court in United States v. Leon, — U.S. -,
I.
It should be noted that there were two red bandanas seized during the search pursuant to warrant conducted on November 16, 1981 — one seized from the interior of the 1971 Toyota automobile belonging to the defendant and the other seized from the house at 3300 West Ohio Avenue. I am satisfied that the affidavit established probable cause to search the Toyota automobile and that, therefore, the bandana seized from the automobile was properly admitted.
The Fourth Amendment to the United States Constitution requires that a search warrant be based on probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized. U.S. Const, amend. IV. Article II, section 7 of the Colorado Constitution is even more specific in the requirement of probable cause by expressly mandating that the probable cause necessary for the warrant, in addition to being supported by oath or affirmation, must be “reduced to writing.” See Hernandez v. People,
A judicial officer issuing a search warrant has the responsibility to determine whether, given all the circumstances set forth in the affidavit, “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates,
The preface of the affidavit in this case stated that the affiant, Denver Police Detective Dock Foster, had “reason to believe” that there were located at the premises of 3300 West Ohio Avenue in Denver, Colorado, a white pair of Nike tennis shoes with the name “Janet” written on the left shoe, a red bandana, and several other items of specifically designated property. The factual basis for this belief, as alleged in the affidavit, was: (1) a report by one of the victims, identified by name, that on October 31, 1981, she had been sexually assaulted by a Spanish American male, 20 years of age, 5'9" tall, wearing blue jeans, a green T-shirt, and white Nike tennis shoes with the name “Janet” written on the left shoe, and driving a car with a license number CN 4714; and (2) a report from another victim, also identified by name, who stated that on November 4, 1981, a Caucasian 20 year old man, 5'8" tall and weighing approximately 130 pounds, wearing blue jeans and a red T-shirt, attempted to force her into a light yellow Datsun “with a red bandana hanging on the rear view mirror.” The affidavit of Detective Foster stated that his investigation “revealed that CN-4714 lists to Jerry M. Deitchman, of 1755 South Pecos Street on a 1971 Toyota” and that “Deitchman is a Caucasian (dark complexioned) male, 5'8" tall, 140 pounds.” (emphasis added).
Thus, not only did the affidavit fail to establish to a fair probability that Jerry M. Deitchman lived at 3300 West Ohio Avenue
II.
Because the seizure of the tennis shoes and the bandana from 3300 West Ohio Avenue was constitutionally infirm, it is necessary to determine whether the “good faith exception” to the Fourth Amendment exclusionary rule applies to the circumstances of this case. I conclude that the good faith exception has no application here.
A.
In United States v. Leon, — U.S. -,
The Supreme Court’s formulation of the exception was based on its perception that the exclusionary rule cannot be expected “to deter objectively reasonable law enforcement activity.”
The good faith exception in Leon is bottomed in an objective standard of reasonableness. Irrespective of the many uncertainties that this exception might pose for Fourth Amendment doctrine, Leon does make crystal clear that subjective good faith is simply not enough to withstand a constitutional challenge to a search and seizure conducted under an invalid search warrant:
We emphasize that the standard of reasonableness we adopt is an objective one. Many objections to a good-faith exception assume that the exception will turn on the subjective good faith of individual officers. “Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law en*1166 forcement profession as a whole to conduct themselves in accord with the Fourth Amendment.” [citations omitted]. The objective standard we adopt, moreover, requires officers to have a reasonable knowledge of what the law prohibits.
Leon,
No principle is more basic to Fourth Amendment jurisprudence than the prohibition against a search based on a warrant totally lacking in probable cause. A police officer requesting a search warrant must be presumed to know that it is his constitutional responsibility to include in the affidavit sufficient facts to support a finding of probable cause for the issuance of a warrant for the search of another’s home. Leon’s objective standard of reasonableness would be totally illusory if police officers are not to be held to at least this minimal standard of knowledge. Where, therefore, as here, a search warrant is constitutionally infirm due to the failure of the affidavit to establish probable cause, the applicability of the good faith exception should turn on whether there was an objectively reasonable basis for a police officer to rely on the validity of the warrant. Objective reasonableness in this context must be determined on the basis of the “indicia of probable cause” contained in the affidavit. Leon,
In this case the affidavit of Detective Foster was totally lacking in any indicia of probable cause to search 3300 West Ohio Avenue. Even if “indicia of probable cause” is equated with the diminished standard of plausible possibility, the affidavit fails the test. There is simply no recitation of facts which will support an inference, even to a plausible possibility, that Deitch-man lived at 3300 West Ohio Avenue or that the evidence sought by the police would be found there. That Detective Foster might have possessed independent knowledge of facts establishing Deitch-man's present address as 3300 West Ohio Avenue rather than 1755 South Pecos Street is, in my view, no aid to the establishment of the good faith exception. Such facts never made their way into the affidavit. Uncommunicated knowledge of facts never brought to the attention of the judge issuing the warrant neither mitigates the facial deficiency of the affidavit nor provides any discernible indicia that might arguably support an objectively reasonable reliance on the validity of the warrant. Utilization of the good faith exception to uphold the search and seizure in this case is to convert what I perceive to be nothing more than subjective good faith into an objective standard of reasonable reliance with respect to a search warrant that, so far as concerns the constitutional requirement of probable cause, was no more factually supported than a warrant issued without any affidavit at all. The Supreme Court, as I read Leon, never intended the good faith exception to encompass such a fundamental infirmity in the warrant process.
B.
I find Massachusetts v. Sheppard, — U.S. -,
Sheppard was convicted of first degree murder, but the Supreme Court of Massachusetts reversed his conviction, holding that the incriminating evidence, although seized on the basis of a reasonable good faith belief in the validity of the warrant, should have been excluded. The Supreme Court of the United States concluded that the facts clearly established “an objectively reasonable basis for the officers’ mistaken belief” in the validity of the warrant,
In sum, the police conduct in this case clearly was objectively reasonable and largely error-free. An error of constitutional dimensions may have been committed with respect to the issuance of the warrant, but it was the judge, not the police officers, who made the critical mistake. “[T]he exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges.” [citation omitted]. Suppressing evidence because the judge failed to make all the necessary clerical corrections despite his assurances that such changes would be made will not serve the deterrent function that the exclusionary rule was designed to achieve. Accordingly, federal law does not require the exclusion of the disputed evidence in this case.
Unlike the error in Sheppard, the error in this case was not in the technical form of the warrant but in the affiant-officer’s failure to include in the affidavit the barest factual statement connecting 3300 West Ohio Avenue with the evidence sought by the police. This case, therefore, is plainly what the court in Sheppard expressly recognized was not within its holding: “an instance in which ‘it is plainly evident that a magistrate or judge had no business issuing a warrant.’ ” Sheppard,
III.
Because I view the admission of the tennis shoes and the red bandana seized from 3300 West Ohio Avenue as a violation of the Fourth Amendment to the United States Constitution, I believe it unnecessary to engage in an analysis of the admis
Section 16-3-308, 8 C.R.S. (1984 Supp.), states in pertinent part as follows:
(1) 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 a result of a good faith mistake or of a technical violation.
(2) As used in subsection (1) of this section:
(a) “Good faith mistake” means a reasonable judgmental error concerning the existence of facts which if true would be sufficient to constitute probable cause.
(b) “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.
A “good faith mistake” as defined in subsection (2)(a) is restricted to “mistakes based on reasonable judgmental errors of fact rather than mistakes of law.” People v. Mitchell,
No “technical violation” occurred in this case. Officer Foster had knowledge that the defendant lived at 3300 West Ohio Avenue. In executing the warrant, therefore, he was not laboring under some reasonable judgmental error concerning the location of the defendant’s home. On the contrary, the officer’s inadvertence in failing to include in the affidavit any facts linking the evidence sought to 3300 West Ohio Avenue was a basic error of law, not a judgmental mistake about some fact which, if true, would constitute probable cause. Under these circumstances, the lack of any indicia of probable cause in the affidavit to support the search warrant for 3300 West Ohio Avenue renders any reliance upon the warrant “far beyond the purview of a ‘technical violation' ” as that term is used in section 16-3-308(2)(b). People v. Mitchell,
IV.
Although I believe the Nike tennis shoes and the red bandana taken from the residence were the products of an unconstitutional search and were improperly admitted into evidence, I would nonetheless affirm the judgment. Before a constitutional error can be deemed harmless, a court must
During the prosecution’s case in chief, Detective Phillip Dinan testified that prior to the search of 3300 West Ohio Avenue on November 16, 1981, in which the tennis shoes and red bandana were seized, he took the defendant into custody pursuant to a court order for nontestimonial identification evidence. While the detective was waiting in the defendant’s home while the defendant dressed, he heard the defendant ask his wife to get him a pair of shoes. The defendant’s wife attempted to pick up a pair of tennis shoes on the floor in the bedroom of the home, but when the defendant told her “not that pair” she obtained a pair of boots from another part of the bedroom. Detective Dinan, according to his trial testimony, was able to observe the tennis shoes and described them as “[h]i-topped, white tennis shoes, like old style basketball shoes.” The detective also testified that, after taking the defendant into custody on this occasion, he saw parked outside the home a pale yellow “Toyota type vehicle” with the license number CN 4714 and a red bandana lying on the front seat.
The victim of the sexual assault that occurred on October 31, 1981, made an in-trial identification of the defendant as her assailant before any mention of the tennis shoes was made or before they were introduced into evidence.
The victim of the attempted kidnapping that occurred on November 4, 1981, testified during the prosecution’s case in chief that in the course of the offense she saw a red bandana hanging from the rear view mirror of her assailant’s car.
Thus, both the prosecution’s eyewitness identification evidence and the circumstantial evidence connecting the defendant with the crimes charged originated in sources independent of the illegal seizure of the Nike tennis shoes and the red bandana from 3300 West Ohio Avenue. The actual admission of these two items of evidence was, under these circumstances, cumulative at best. More important, the prosecution’s other evidence of guilt was so overwhelming that, in my view, there was no reasonable possibility that the improperly admitted evidence contributed to the defendant’s conviction. I would therefore affirm the judgment.
I am authorized to say that Justice KIRSHBAUM concurs in the harmless error analysis in Part IV of this opinion.
. The affidavit alleged that one of the sexual assault victims, identified by name, reported having been kidnapped and assaulted on October 31, 1981, by a man driving "a small white car” with the license number CN 4714. The affidavit further stated that another victim, also identified by name, reported that a man tried to force her into his car on November 4, 1981, and that during this encounter the victim observed a “red bandana hanging on the rear view mirror.” The affidavit contained reports from two other women, also identified by name, who reported having been attacked by a man driving a white or a yellow Toyota with license number CN 4714 or CN 4741. Finally, the affidavit stated that the affiant, Detective Dock Foster, traced the license number CN 4714 to a 1971 Toyota owned by Jerry M. Deitchman of 1755 South Pecos Street. These factual allegations, in my view, provided probable cause for the search of the defendant’s 1971 Toyota automobile with license number CN 4714, which resulted in the seizure of the bandana from the interior of the automobile.
. Some aids of right judgment on the scope of the good faith exception may be gleaned from examples that arguably would provide an objectively reasonable basis for police reliance on a subsequently invalidated search warrant. These examples might include search warrants issued on the basis of any of the following affidavits: (1) an affidavit stating that the defendant lived at “3030 West Ohio Avenue” and containing facts showing the presence of contraband or incriminating evidence at this address, when the actual address for which the warrant issues is 3300 West Ohio Avenue, the correct address of the home to be searched — in other words, a typographical error made by the officer in preparing the affidavit; (2) an affidavit listing the residence to be searched as 3300 West Ohio Avenue, but containing only the barest averment that the evidence sought had some connection with that residence, such as a statement that the suspect had been seen on occasions entering and leaving the premises; or (3) an affidavit containing stale information, such as statements showing that the suspect had lived at the house several months prior to the preparation of the affidavit but offering no account of his present whereabouts. These examples, I believe, would probably qualify for the good faith exception adopted by Leon because in each instance the affidavit alleges what is at least a colorable though technically insufficient case of probable cause.
. By contrast, the good faith exception promulgated by the United States Supreme Court makes no such distinction between errors of law and errors of fact. Massachusetts v. Sheppard, — U.S. -,
. This victim testified that on October 31, 1981, the defendant grabbed her as she walked by his car, forced her into his car, held her with a broken glass bottle to the throat, drove her some distance, and then compelled her to commit fellatio. As a result of this incident, the defendant was charged in two counts with first degree sexual assault, § 18-3-402, 8 C.R.S. (1978 and 1984 Supp.), and second degree kidnapping, § 18-3-302, 8 C.R.S. (1984 Supp.). The jury returned guilty verdicts on both counts.
. This victim testified that on November 4, 1981, as she walked by the defendant’s parked car, he grabbed her and attempted to force her into the car, but that she managed to escape. As a result of this incident, the defendant was charged with attempted second degree kidnapping, §§ 18-2-101, 8 C.R.S. (1978), and 18-3-302, 8 C.R.S. (1984 Supp.), and the jury returned a guilty verdict on this charge.
Concurrence Opinion
concurring:
I concur in the result reached by the court. Because I believe the case can be resolved on the basis of harmless error, I join in section IV of Justice Quinn’s concurring opinion.
In light of the People’s concession that the affidavit of Detective Foster was constitutionally defective, the only search and seizure question addressed by the trial court was the applicability of the Colorado good-faith statute, section 16-3-308, 8 C.R.S. (1984 Supp.), to the ease. At no time did the trial court consider the wide array of theories and issues upon which the members of the court write today. If it is necessary to address the question of whether the tennis shoes and one bandana were properly seized in compliance with constitutional requirements, then consideration of that issue should be limited to the context of the good-faith statute. The number and diversity of separate opinions provide ample evidence as to why we should heed our statements in People v. Enea,
When we follow our traditional practice of adjudicating difficult and novel constitutional questions only in concrete factual situations, the adjudications tend to be crafted with greater wisdom. Hypothetical rulings are inherently treacherous and prone to lead us into unforeseen errors; they are qualitatively less reliable than the products of case-by-case adjudications.
(Quoting New York v. Ferber,
The highest court in the state has the ultimate duty to define the rights and privileges guaranteed to its citizens by the state constitution. Although the federal and state constitutions may be similarly or even identically phrased, state courts are free to consider the merits of a constitutional challenge under their own constitutional provisions, and are free to do so independently of United States Supreme Court opinions. Oregon v. Hass,
Under the basic doctrines of federalism, a state constitution provides an independent and adequate ground for resolution of constitutional issues. See Colorado v. Nunez, — U.S. -,
Moreover, “[t]o submerge the analysis of a state constitution in doctrines derived from the work of the United States Supreme Court serves neither the law nor theory itself.” Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga. L.Rev. 165, 194 (1984).
The crucial step for ... state courts ... is to recognize that the Supreme Court’s answer is not presumptively the right answer, to be followed unless the state court explains why not.
The right question is not whether a state’s guarantee is the same as or broader than its federal counterpart as interpreted by the Supreme Court. The right question is what the state’s guarantee means and how it applies to the case at hand.
Id. at 179; see also Upton, — U.S. -,
As a result of Mapp v. Ohio,
Article II, section 7 requires that no search warrant shall issue except on a showing of probable cause which has been “reduced to writing.” This textual variation from the fourth amendment indicates “beyond a doubt that sufficient facts to support a magistrate’s determination of probable cause must appear on the face of the written affidavit.” People v. Baird,
The People concede that the affidavit of Detective Poster is constitutionally deficient. Simply stated, the affidavit clearly fails to allege sufficient facts for a person of reasonable caution to believe that the items to be seized were located in the premises to be searched. People v. Conwell,
Having determined that there was a constitutional violation, the applicability of the good-faith statute must be examined on the assumption that the statute is constitutional.
Moreover, recognizing a good-faith exception to the exclusionary rule on the ground that Detective Foster knew of the defendant’s connection with the place to be searched, but merely neglected to include it in the written affidavit, is contrary to the direct mandate of article II, section 7 of the Colorado Constitution that probable cause be established by an oath or affirmation reduced to writing. By ignoring the uniqueness and independence of our own constitutional provisions, I fear this court may become merely a passenger on a vessel captained by the federal judiciary.
For the reasons I have stated, I believe the tennis shoes and red bandana seized from the defendant’s residence should have been suppressed by the trial court. However, because I view the admission of those items into evidence as harmless error beyond a reasonable doubt, I would affirm the judgment of the trial court.
. Members of the Supreme Court have drawn the state courts’ attention to their independent responsibility to determine their states’ constitutional law. Justice O’Connor recently stated:
There is a fine line, of course, between a state court holding that an action independently violates both the State and Federal Constitutions, and holding that the State Constitution is violated because the Federal Constitution is violated. Recently, there has been a tendency for the Supreme Court to find no independent state ground and to assert its power to review if it appears that both federal and state constitutional provisions are cited by the state court, that the state cases generally follow the federal interpretation, and the state court does not clearly and expressly articulate its separate reliance on independent state grounds. See South Dakota v. Neville,459 U.S. 553 [103 S.Ct. 916 ,74 L.Ed.2d 748 ] (1983); Delaware v. Prouse,440 U.S. 648 [99 S.Ct. 1391 ,59 L.Ed.2d 660 ] (1979).
The point of this discussion is to emphasize that, as state court judges, you have a very real power to decide cases, whether they are civil or criminal, on state grounds alone, if they exist, or to indicate clearly and expressly that the decision is alternatively based on separate and independent state grounds....
State v. Kennedy,
Chief Justice Burger has also stated: "State courts ... are responsible for first resolving issues arising under their constitutions and statutes and then for passing on matters concerning federal law.” Kennedy,
See also McCray v. New York,
. Implicit in these decisions is the recognition that evidence seized in violation of the constitutional requirements imposed by article II, section 7 must be suppressed. I would save for another day any discussion of the purpose of the exclusionary rule, e.g., to deter police misconduct, to deter judges from issuing invalid warrants, or to prevent the government from profiting from the violation of the defendant’s constitutional rights by the government. See White, Forgotten Points in the "Exclusionary Rule"Debate, 81 Mich.L.Rev. 1273 (1983). Resolution of this issue will require the court to decide whether the exclusionary rule is a judicially created remedy subject to being modified by legislation or the courts, or whether the exclusionary rule is part and parcel of the constitutional proscription against unreasonable searches and seizures under article II, section 7 of the Colorado Constitution.
. The fourth amendment contains no requirement that the affidavit be reduced to writing. However, in Whiteley v. Warden,
Under the cases of this Court, an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate. See Aguilar v. Texas,
. Because section 16-3-308, 8 C.R.S. (1984 Supp.), is not applicable to this case, I decline to express any view on whether the provision violates article II, section 7 of the Colorado Constitution.