People v. Scott
227 P.3d 894
Colo.
2010
Check Treatment

*1 - - applies "expenditures relates and express -, 130 S.Ct. - ly advocating (2010). the election or defeat of a L.Ed.2d by: candidate" Corporations?

A. organizations?

B. Labor agreed accept

We the Governor's inter-

rogatories Governor, ordered Assembly, Attorney General, General State, Secretary Colorado Common Cause, League Voters, of Woman Colorado, PEOPLE of the State of Association, Colorado Bar any other in- Plaintiff-Appellant persons permitted terested to file simulta- Opening neous Briefs in Supreme Court office, clerk's with simultaneous Answer Omega SCOTT, Julius Defendant- Briefs to follow. We received briefs from Appellee. Ritter, Jr., Governor Bill and Secretary of Buescher; State Bernie the Colorado Edu- No. 09SA225. Association, cation School District 14 Class- Association, room Teachers Douglas Supreme Colorado, Court of Federation; County the Colorado Profession- En Banc. Fighters; al Fire and Colorado Common April availing Cause. Rather than themselves of opportunity Briefs, to file Answer all of responding parties filed a Joint Motion Briefing To Close And Declare Case At Is-

sue, agreeing that both of interrogatories

should be answered in the affirmative.

We answer the first interrogatory in

the affirmative. To the extent that section 3(4) of article XXVIII of the Colorado Con

stitution makes it unlawful for a corporation organization

or labor expenditures to make

expressly advocating the election or defeat candidate, it violates the dictates

First Amendment of the United States Con

stitution, in light of the United States Su

preme Court's decision in Citizens United v. - Commission,

Federal Election -,U.S. - - L.Ed.2d

We also answer the second interroga

tory in the affirmative. To the extent 6(2) of article XXVIII of the Colorado

Constitution makes it unlawful for a corpora

tion or a organization labor provide fund

ing for an electioneering communication, it

violates the dictates of the First Amendment

of the United States Constitution, light

the United Supreme States Court's decision Commission, in Citizens United v. Federal Election *2 Attorney, Seven- Quick, District Don S. Milne, District, Michael J.

teenth Judicial Brighton, Attorney, Deputy District Senior Plaintiff-Appellant. Colorado, Attorneys for Defender, Chad Wilson, Public Douglas K. Defender, Oxman, Deputy Public Ryan Colorado, Defen- Attorneys for Brighton, dant-Appellee. Opinion delivered MARTINEZ

Justice the Court. we review interlocutory appeal, In this mo- granting Julius order trial court's Seott's under collected suppress evidence tion animal related to search 18-9-204, CRS. under fighting suppres- trial court's We reverse gion further the case for remand order opinion. with this consistent proceedings History and Procedural Facts I. the exclusion concerns matter three second under seized items resi for Scott's executed warrants search housing more to be Suspecting Scott dence. a Thornton dogs in violation than three 896§ code,1 municipal animal control officers for the counter used strengthen muscle tone." County sought Adams a warrant to search Finding these observations sufficient to es-

for and seize on Scott's residence. Offi tablish cause to search Scott's cer house for instrumentalities affidavit supporting the first related to indicated one of neighbors Scott's fighting, issued the second *3 reported seeing pit five different warrant. bulls-one with sears on its face-in backyard, Scott's Under this second warrant officers seized kept mostly which he covered with a large a number of home, items from Scott's includ- tarp. neighbor The reported also hearing a ing, among other things, the modified tread- dog "crying." neighbor Another told officers mill, several magazines and books regarding that she had seen pit three bulls in the dog fighting, pedigree papers, a break stick backyard day before, the and that "the owner (used separate dogs during fight), dog shuffling dogs [was] around and keeping collars, surgical staplers, skin kits, suture female inside the house." From neigh syringes, supplements antibiotics, salves residence, bor's officers were able to see into used for treating horses, wounded and a Seott's backyard and observed "several dog computer which, at the search, time of the houses, some blue barrels dog used for hous had internet windows minimized to the tool es, chains to dogs[,] secure[] the and food (but visible) bar still indicating recent visits and water bowls." Officers did not any see to websites titled "Gamedog," Bulls," "Pit dogs themselves. The concluded Pedigrees." "Online alleged these facts were sufficient to estab Subsequent seizures, to these a third war- lish ecause for Thornton code viola rant, supported by an affidavit recounting tion and requested issued the warrant. searches, both sought for a search of the Having obtained the Officer Fee- computer's contents. The third warrant was ney along with other officers executed a issued, and the computer's contents were dogs search for at Seott's home. The officers investigated catalogued. pit found three bulls in backyard, the three Scott was then charged with fight- animal more isolated in cages individual ga ing in violation of 18-9-204, a class rage, and another inside the house. All sev felony. five Scott moved suppress any dogs en were seized.2 evidence seized under the three warrants. In the course of seizing dogs, the the offi- hearing After arguments testimony from cers noticed other they items believed to be Officer Feeney concerning matter, suggestive of dog-fighting activities. Officer trial court suppressed everything collected Feeney directed Scott to wait outside while except dogs seven and the modified she obtained a to further search treadmill. The trial court reasoned that the premises for instrumentalities dog fight- observations made searching officers and ing. In her affidavit in support of her second recounted in the affidavits supporting the request, Officer Feeney described second warrant request did suggest not dogs three in garage Scott's dogs had kept were for something pet other than been discovered dog crates," "inside that a purposes. The trial court noted al- treadmill located the garage had been though Officer Feeney was a expert trained modified with "wood built along the side and concerning dog fighting, neither experi- her top on along with [two] chains used to hold a ence nor the bases for her conclusions that in," dog and that an officer who had entered Seott was involvedin fighting and would the main house had supplements "noticed on possess instrumentalities related to that ac- 1. Municipal 6-17(F) states, Thornion Code Unfortunately, the record does not include re- pertinent part, person "No itemizing shall harbor or turns allow the seizures under the various there However, to be more than a warrants in total of three case. the failure to per provide dwelling residential us they impede with returns does occupy." unit that not our review here where the facts as section was described incorrectly often cited are as stipulated by parties in their 6-17(5)(b)(£)." briefs as well record as "section commensurate with suppres- discussions at the hearing. sion (Colo.2010) (" 114, 117 cause' [P P.3d within the affidavit tivity were contained Jrobable such, satisfy any rigid, hypertechni not itself need As the trial court warrant. 'practical, but is a nontech cal had not established the officers concluded for those items. conception, involving common-sense cause to search nical (quoting human conclusions about behavior." to conclude that trial court went on Gates, Illinois v. faith plain view nor neither (1983))). 2317, L.Ed.2d rule would allow exceptions to the exclusion to be submit- improperly obtained items reviewing suppression When or Having into determined ted evidence. der, findings factual af the trial court's are computer ifMegally had been seized Scott's legal deference while its conclusions forded entirety, suppressed should be its and so Pacheco, novo. are reviewed de trial court did not consider whether dispute, a factual at 94. Absent "we need *4 proper computer's contents was search of the only ap trial determine whether the court third warrant. under the legal plied the correct standards and reached trial court's rul- People appealed the proper conclusions of constitutional law un under the see- ing suppressing items seized totality der the of the cireumstances." Id. 21 pursuant to C.A.R. and we ond warrant Kirk, 918, (citing People v. 103 P.3d 921 (Colo.2005)). Specifically, we must surmise now reverse. affidavit here "contained

whether the suffi and II. Probable Cause finding information to a cient support Standard Review probable cause to a valid search war issue Randolph, doing rant." 4 P.3d at 481. In and Colorado The United States so, magistrate's determination we credit the prohibit of a search issuance Constitutions provided whether the affidavit assess showing probable a cause without warrant magistrate with a substantial basis for con by or affidavit See U.S. supported oath cluding probable People cause existed. v. II, IV; § art. amend. Colo. Const. Const. " Pate, (Colo.1994); 685, see 878 P.2d 690 also an affidavit for cause exists when Probable (Colo. Gutierrez, 925, People 222 P.3d 987 v. alleges facts sufficient a search 2009) ("In reviewing validity of a search person of reasonable caution be cause a magistrate's probable- we accord a contraband or evidence of lieve that deference, great cause determination but place to activity located at be is (internal not is that boundless.". 477, deference Randolph, 4 P.3d People v. searched." omitted)}. quotations (Colo.2000) (quoting People v. Turcotte- 481 (Colo.1993)). 658, Schaeffer, 843 P.2d Analysis III. by "totality cause is determined Probable Gates, search challenged 462 circumstances." Illinois v. Seott 2317, 213, 103 76 L.Ed.2d having probable issued without Pacheco, 91, (1983); trial court concluded the affida People 175 P.3d cause. The v. 527 insuf (Colo.2006). vit the second warrant was Under the Colorado Consti supporting probable cause tution, ficient to establish supporting facts cause suppress motion to all items col writing, proba granted so his be reduced to a must except for the modified lected thereunder within the four cause must be established ble After, garage. careful treadmill found supporting or its affi corners of the warrant review, II, 7; the first and see- People § we conclude that art. davit. See Colo. Const. 480, together, that Padilla, can 511 P.2d ond affidavits v. Colo. read by of facts set forth the constellation However, analysis is not a provided by hypertechnical legal rath with governed rules; two from which to conclude substantial basis er, "practical, common judge must make People v. cause existed. See there is fair sense decision" as to whether (indi (Colo.1996) Staton, 127, 132 924 P.2d that a search will reveal contra probability cireumstances, Pacheco, cating in certain exami or of a crime. band evidence a warrant 94; of the "four corners" of Crippen, 223 nation see also (1985) (same); consideration of 396 Mass. 486 N.E.2d 706 allows for the nonetheless presented magistrate). other to a Wayne LaFave, documents see also R. Search and Seizure: A Treatise on the Fourth Amend Officer second affidavit recounts 4.8(d), (dth ed.2004) ment at 516 (stating by several observations made officers while that "[it is clear there is no inherent executing the first search warrant. The affi- in utilizing multiple defect affidavits" for the davit sets forth the officers found three determinations). purpose probable-cause backyard in Seott's and three more Here, though, the affidavit supporting the garage. "inside crates" The affi- second warrant explicitly incorpo does not davit further states there was "a tread- rate reference the supporting affidavit mill garage[] that had wood built Rather, first warrant. the second affidavit along top[,] along the side and on with [two] only states that the officers made their ob a.dog chains used to hold in." Officer Fee- servations while executing the first search ney indicated that the treadmill "place was a warrant at Scott's residence. conditioning fighting dog prior fights." Finally, the affidavit noted Nonetheless, that an- the observations sworn officer, house, other who had entered Seott's first clearly ongoing informed the supplements had "noticed on the counter investigation as well as the second warrant strengthen used to muscle tone." request. To foree the two affidavits to be separately simply considered because Officer *5 Although it was established at suppres Feeney explicitly failed incorporate to hearing sion Feeney that Officer had been first affidavit into the second would be to regarding dog fighting trained and had ex impose hypertechnical on an knowledge dog fighting activities, tensive of affidavit's form and constrain the common experience her and the basis for her judg approach sense guides that magistrate's a ment that Seott was engaging in such activi probable-cause determinations. See Kaiser ties were not included in the affidavit. The (10th Lief, 732, Cir.1989) v. 874 F.2d 734-85 properly trial court determined without (discussing propriety magistrates con that the affidavit's statements information, sidering information in documents before that the officers' observations were related to them other than the supporting affidavit dog fighting merely were conclusory and warrant request stating magis that a could not upon be relied probable to establish trate should not by be constrained unneces See, e.g., Randolph, 4 P.3d at 482. cause. sary sense); limitations on his use of common Subtracting Officer conclusory Fogarty, United v. 928, States 663 F.2d 930 affidavit, statements from the the trial court (9th Cir.1981) ("[We can think of no Fourth concluded that alleged the facts in the second why Amendment magistrate reason had affidavit were support proba insufficient to vision."). to read either with tunnel ble-cause determination that Seott in affidavit was We will not magistrate's so constrict a analysi volved in fighting. s.3 However, the second affidavit need not be read in a vacuum. It practice is common course, for probable Of cause cannot be single supported warrant by multiple established after the search. multiple Before affidavits, or for an affidavit to incorporate affidavits can together be read pur for the by expand reference and upon then an poses earli probable-cause of a analysis, "it im is See, Hakel, er affidavit. e.g., People v. 870 portant that the record reflect (Colo.1994) P.2d 1224 (reading two judge had him before all ... docu issuing together establishing cause making ments in his proba determination of " where the second incorporated affidavit ble cause to People issue the warrant. v. by reference); Saleh, first Commonwealth v. Campbell, 1035, 678 P.2d (Colo.App. 1040 3. See also United tigation States v. similarly Nat. Bank implicated the defendant Mfrs. Detroit, 699, (6th Cir.1976) (hold- 536 F.2d 702 activities, and where the second war- ing magistrate that the was entitled to read to- though rant referred to the first even it did not gether sought two days warrants on consecutive explicitly it). incorporate where both warrants referred to the same inves-

899 III Conclusion LaFave, and Sei- Search 1983); see also gure where the 4.3(d), (noting that at 518 reasons, we reverse the foregoing For the clearly that all quite "establish[ ] facts evidence col- suppressing court's order trial and considered before were documents executing the second search while lected slightly different if for magistrate, even case for further and remand this commonly the docu allow courts purpose," opinion. this consistent with proceedings proba to establish together be read ments to cause)4 easily met is requirement ble reviewed magistrate judgment the same where EID concurs

here Justice and second joins the first in the concurrence. signed both Justice RICE only It is sensi other. hours of each within EID, concurring judgment. consider could Justice ble the same him earlier information sworn appeal case frame their making his when officer day by the same challenging the district court's in terms of the second determination probable-cause justified by to be to find the search refusal investigation ongoing request in an exclusionary exception to the good faith activities. closely related concerning Leon, 468 U.S. See United States rule. 108, Ventresca, 85 S.Ct. I L.Ed.2d 677 commands, like ("[The Amendment's Fourth appeal in terms therefore address the would practical requirements, are all constitutional People v. Alt generally good faith. See abstract."). and not (Colo.1998) man, court, discretion, that the at its (recognizing together, Considering the affidavits con may faith issue before address facts were sufficient conclude there we supported sidering whether the search the issuance cause for establish cause). majority opinion As the by probable state The affidavits warrant. *6 demonstrates, maj. op. the affida many dogs, harboring at least six Scott of "bare case were not sort vits this with sears at least one pit bulls and themof which reliance would be affidavits on bones" dogs were discover face. Three on its Gutierrez, 222 People v. See unreasonable. and anoth garage dog crates inside ed (Colo.2009). Because Neigh house. likely kept inside the er was appeal in terms of have framed their dogs "shuffling noticed Seott bors had faith, there is irrespective of whether good around," reported sounds and had cause, I would and because actual premises. Considered "crying" from the upon the affida the officers relied find that context, muscle-building supplements faith, I in the result concur vits with treadmill-enelosed and the modified majority. by the reached hanging from chains with two plywood and say JUSTICE authorized to I am the track-can be keep dog on top joins in this concurrence. dog- RICE with reasonably viewed as associated of facts constellation fighting activities. affidavits, when viewed

contained magistrate's crediting the

through the lens

determination, con a commonsense outlines with involved that Scott was

clusion such, provided the As

fighting. for con basis with substantial issue the existed to

cluding probable cause un properly collected and evidence suppressed. should not the warrant

der Randolph, 4 P.3d at 481. reliable, independent- upon be way relied information multiple in no Reading together necessary, and not stale. ly where verified Fourth Amendment dilutes