Opinion
No. 96SA345
January 13, 1997
Interlocutory Appeal from the District Court, El Paso County Honorable Gilbert Martinez, Judge
John W. Suthers, District Attorney, Fourth Judicial District, Elizabeth Anne Kirkman, Deputy District Attorney, Gordon R. Denison, Colorado Springs, Colorado, Attorneys for Plaintiff-Appellant.
Elvin L. Gentry, P.C., Elvin L. Gentry, Marla Prudek, Colorado Springs, Colorado, Attorneys for Defendant-Appellee.
RULING REVERSED
In this interlocutory appeal, we review an order of the trial court suppressing evidence obtained pursuant to a search warrant. The affidavit supporting the search warrant did not include information related to the child-victim's background prior to the incident in question. The trial court concluded that the warrant was not supported by probable cause because the affidavit, which omitted background information relating to the child-victim's credibility without corroboration of his allegations, was substantially misleading. Because the information omitted was not material and because statements of a victim generally need not be corroborated to support a finding of probable cause, we reverse the trial court's ruling and remand the case for further proceedings.
I.
On February 10, 1996, eleven-year-old C.S. told his father that an adult friend and neighbor, defendant Timothy Fortune, had sexually abused him. The father called the Colorado Springs Police Department to report his son's allegations. On February 11, 1996, Officer David Hagan arrived at the home of C.S. and undertook a preliminary investigation by interviewing both C.S. and his father.
C.S. explained that he had been spending time at defendant's house playing cards and watching television for approximately six months and that each time he was there, defendant would bring out pornographic magazines and videos. C.S. also described in detail several instances of sexual activity by the defendant, either in front of or with C.S.C.S. also told Officer Hagan that, while watching the Superbowl with several other boys at defendant's house, the boys had "mooned" the television. After the other boys had left, defendant encouraged C.S. to drop his pants and "moon" the television again. C.S. stated that, when he did so, defendant stared at his genitals.
On February 12, 1996, Detective Richard Hunt and a victim's advocate conducted a follow-up interview with C.S. and his parents at the Children's Advocacy Center in Colorado Springs. C.S. repeated, but with more detail, the same information he had given to his father and to Officer Hagan. C.S. also provided the names of the three other boys who had been at defendant's house during the Superbowl and stated that they would also know about the pornographic magazines and the mooning of the television during the Superbowl. C.S. did not claim that the other boys had been sexually assaulted.
The trial court found that during these interviews, C.S.'s father voluntarily informed the police officers that because C.S. was suffering from a detachment and abandonment disorder, he was capable of fabrication, that he could be a good actor or a con artist, and that he could make up stories. However, the father also stated that, "I don't believe [C.S.] is fabricating this story." The father further informed the officers that C.S. was in therapy due to his behavioral problems.
The record reveals that upon checking the police department's victim records, the officers learned that there had been no record of C.S. as a victim or as a runaway.
In preparing the affidavit in support of the search warrant, Detective Hunt did not include the background information provided by the father relating to C.S.'s past behavioral problems and his ability to fabricate stories. Also, because Detective Hunt prepared the affidavit immediately after the interview with C.S. and his parents on February 12th, it did not contain any information from the other boys who were present at various times with C.S. at defendant's house. That evening, Detective Hunt presented the affidavit to a judge who signed it at approximately 8:00 p.m. The warrant was executed immediately and the police seized physical evidence that corroborated the statements of C.S. Defendant was arrested and charged with sexual assault on a child, attempted sexual assault on a child, and obscenity.
During a suppression hearing held in August 1996, Detective Hunt testified that he hadn't thought it necessary or relevant at the time to include in the affidavit the information regarding C.S.'s history and his father's comments that C.S. had the capacity to make up stories because he did not believe the father was trying to warn him about any credibility issues. Rather, the detective testified that the father "was trying to give him an accurate assessment of [C.S] and his behavioral problems." Furthermore, Detective Hunt stated that the impact of the father's statements was minimalized by his subsequent qualification that, although C.S. had lied in the past, he didn't think C.S. was fabricating this story.
In response to a question at the suppression hearing why he did not include the information in the affidavit regarding C.S.'s capacity to fabricate stories, Detective Hunt stated that:
Because someone tells a lie once about something, that doesn't mean they necessarily lie about everything. With [the father's] statements, [he] is probably one of the people that knows [C.S.] better than anyone else in the world. He was very open and I felt being very honest with me about [C.S.'s] background, his behavioral problems, and [C.S.'s] credibility, and in that sense of being very candid, very open, he was presenting to me all of the information. That, you know, he's got these concerns about [C.S.] but even with all this, I believed [C.S.] 100 percent.
I wouldn't be here talking to you. So, he believed [C.S.] even knowing [C.S.] intimately. He believed what [C.S.] was telling him was the truth.
The trial court nevertheless determined that the detective's omissions from the affidavit rendered the affidavit substantially misleading because they directly related to the credibility of the victim and were therefore relevant. The trial court stated: "If all the information was in the warrant, including this info [sic], this Court would not have signed the warrant." Thus, the court granted the defendant's motion to suppress all evidence found during the execution of the search warrant.
This interlocutory appeal followed. Because we conclude that the omissions as to the background of the child victim did not render the affidavit substantially misleading, corroboration of the victim's statements was not necessary to support a finding of probable cause, and the trial court's findings are not supported by the record, we reverse and remand for further proceedings consistent with this opinion.
II.
The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution prohibit the issuance of a search warrant except upon probable cause supported by oath or affirmation particularly describing the place to be searched or the objects to be seized. Probable cause exists when an affidavit supporting a search warrant alleges facts sufficient for a person of reasonable caution to believe that contraband or material evidence is located in the place to be searched. People v. Pate, 878 P.2d 685, 689 (Colo. 1994).
The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches . . . shall not be violated; and . . . no warrant shall issue, but upon probable cause, supported by oath or affirmation . . . ." Article II, § 7 of the Colorado Constitution provides: "The people shall be secure in their persons, papers, home and effects, from unreasonable searches and seizures; and no warrant to search any place . . . shall issue . . . without probable cause."
The omission of material facts known to the affiant at the time the affidavit was executed may cause statements within the affidavit to be so misleading that a finding of probable cause based on such statements may be deemed erroneous. People v. Winden, 689 P.2d 578, 583 (Colo. 1984). An omitted fact is material for purposes of vitiating an entire affidavit only if its omission rendered the affidavit substantially misleading to the judge who issued the warrant. People v. Unruh, 713 P.2d 370, 381 (Colo. 1986). However, there is no requirement that all steps taken, all information obtained, and all statements made by witnesses during the course of an investigation be described fully and in chronological order in an affidavit. Finally, we have held that doubts must be resolved in favor of a magistrate's determination of probable cause in order to avoid creating a climate in which police resort to warrantless searches rather than obtaining a warrant before conducting a search. People v. Abeyta, 795 P.2d 1324, 1327 (Colo. 1990).
III.
Here, the trial court determined that the omissions from the affidavit relating to the troubled history and behavioral problems of C.S. and the lack of corroboration of the boy's report indicated a lack of trustworthiness, rendering the affidavit substantially misleading and, therefore, probable cause was lacking. We disagree.
A.
In the context of probable cause, the type of showing necessary to establish the trustworthiness of the information supporting the search or arrest will vary with the source of the information. People v. Henry, 631 P.2d 1122, 1127 (Colo. 1981). For example, when the information originates from an anonymous informer, or a person from the criminal environment acting out of self-interest, there must be evidence of adequate circumstances to justify the officer's belief in the informer's credibility or the reliability of his information. Id.; see also United States v. Harris, 403 U.S. 573, 579 (1971).
However, it is generally agreed that a similar showing of trustworthiness or credibility is not needed when the information comes from an ordinary citizen. Henry, 631 P.2d at 1127; 2 Wayne R. LaFave, Search and Seizure § 3.4, at 205 (3d ed. 1996). When the source of the information is a citizen-informer who witnessed a crime and is identified, the citizen's information is presumed to be reliable and the prosecution is not required to establish either credibility of the citizen or the reliability of his information. Henry, 631 P.2d at 1127; People v. Hubbard, 184 Colo. 225, 228-29, 519 P.2d 951, 953 (1974). Importantly, the citizen-witness rule applies equally to a citizen-victim. "It is simply unreasonable to presume, in the absence of any contrary evidence, that the ordinary citizen who fortuitously becomes a victim of a crime is likely to offer false or untrustworthy information to the police." Henry, 631 P.2d at 1127. Thus, corroboration of a victim's report is generally not necessary when submitting an affidavit in support of a search warrant.
Other jurisdictions have similarly held that corroboration is not necessary when the report is made by a citizen observer or victim. See, e.g., United States v. Decoteau, 932 F.2d 1205 (7th Cir. 1991); People v. Schulle, 124 Cal.Rptr. 585 (1975); State v. Sivri, 646 A.2d 169 (Conn. 1994); Hooks v. State, 416 A.2d 189 (Del. 1980); State v. Drake, 224 N.W.2d 476 (Iowa 1974); State v. Perrigo, 640 A.2d 1074 (Me. 1994); State v. Steffes, 887 P.2d 1196 (Mont. 1994); State v. Gilreath, 339 N.W.2d 288 (Neb. 1983); State v. Haron, 220 N.W.2d 829 (S.D. 1974); Allison v. State, 214 N.W.2d 437 (Wis. 1974).
Defendant nevertheless argues that the trial court properly concluded that "contrary evidence" existed as to the lack of credibility or trustworthiness of C.S. and, therefore, such information, if included in the affidavit, would have affected the issuing magistrate's determination of probable cause under the warrant. We disagree that this information was material such that, by including it in the affidavit, the issuing magistrate would have found probable cause to be lacking.
Probable cause depends upon probabilities and not certainties, and upon knowledge grounded in the practical considerations of every day life on which reasonable and prudent persons act. People v. Washington, 865 P.2d 145, 147 (Colo. 1994); People v. Unruh, 713 P.2d 370, 381 (Colo. 1986). Thus, a totality of the circumstances analysis has traditionally informed probable cause determinations. Illinois v. Gates, 462 U.S. 213, 230-31 (1983); People v. Pannebaker, 714 P.2d 904, 907 (Colo. 1986). In applying the totality of the circumstances test, questions of veracity remain factors to be considered in the probable cause equation; however, courts have generally proceeded as if veracity may be assumed when information comes from the victim of or a witness to criminal activity. See generally LaFave, Search and Seizure, at 205.
Here, the trial court determined that the information omitted from the affidavit would have affected the trial court's probable cause determination. Specifically, the court found:
The affiant was aware that the victim had made a false allegation of physical abuse to DSS; that the victim was described by his own father as being a good actor, as a good con artist, is capable of fabrication; that the victim had been in the custody of DSS and therapy; that the victim has been in Cleo Wallace; has behavioral problems; that the victim made statements in regard to being at a poker game where there was a thousand dollars used of real money.
. . . .
Also, other boys did not corroborate the victim's statements and there was no corroboration.
. . . .
One of the seven or eight omitted categories by themselves that I went through is not very significant, but you put all these seven or eight total together that rises to several of substantially misleading the Judge who signed the warrants.
If all the information was in the warrant, including this info [sic], this Court would not have signed the warrant.
(Emphasis added).
We conclude that while there existed some evidence of C.S.'s troubled past, that evidence, in light of the totality of the circumstances, would not have significantly affected a probable cause determination. Further, the information omitted from the affidavit did not constitute "contrary evidence" that would require a showing of the victim-informant's credibility or corroboration of the victim's account.
We also note that the trial court erroneously based its conclusion on whether it would have signed the warrant, rather than on whether the issuing magistrate would have signed the warrant. See Winden, 689 P.2d at 583 (stating that an omitted fact was material for purposes of vitiating an entire affidavit "only if its omission rendered the affidavit substantially misleading to the judge who issued the warrant") (emphasis added). Although the trial court may have impliedly ruled that the issuing magistrate would not have found probable cause, it did not so state.
First, although the father indicated that C.S. had the ability to fabricate stories, that statement was mitigated by his statement immediately thereafter that he didn't think C.S. fabricated this story. Indeed, the father's opinion is supported by the fact that he chose to call the police and report the alleged incidents. Nevertheless, the court did not consider significant the fact that the father, who had offered the information about his son's history, did not think C.S. was lying. The court did afford great weight to the fact that C.S. had behavioral problems and had been in therapy. However, such a history, by itself, does not indicate a lack of veracity or trustworthiness.
C.S.'s father testified during the suppression hearing that his statements regarding his son's troubled past were not intended to warn the police about C.S.'s credibility but rather were intended to give the officers a "complete background" to "better enable him to do an interview with [C.S.]."
Second, although the court states that C.S. had made "false allegations of physical abuse" in the past, that statement is not supported by the evidence. The father admitted that he had "lightly" backhanded C.S. and that, as a result, C.S. called the Department of Social Services. Although C.S. attempted to make the incident look more serious by coloring around his eye with a crayon, the allegation that his father hit him was, in substance, true. In our view, a child's exaggeration of an actual incidence of physical abuse, as opposed to its complete fabrication, logically should not undercut his allegations of sexual abuse.
Third and importantly, there is no evidence in the record that C.S. had ever previously made a false allegation of sexual abuse; therefore, there was no reason for his father, Officer Hagan, Detective Hunt, or even the issuing magistrate to question his credibility. See Henry, 631 P.2d at 1127 ("When the source of the information is a citizen informer . . . the citizen's information is presumed to be reliable and the prosecution is not required to establish either the credibility of the citizen or the reliability of his information."); LaFave, Search and Seizure, at 208 (quoting People v. Bevins, 85 Cal. Rptr. 876 (1970)) ("A citizen who purports to be a victim of or to have witnessed a crime is a reliable informant even though his reliability has not theretofore been proved or tested.").
Indeed, all other statements made by C.S. to the officers proved to be true. For example, C.S. reported to the officers that he had been exposed to sexual activity in the past by a male babysitter and his father confirmed that this story was true. Also, C.S. stated that he was often "held down" during therapy. The father corroborated this story and explained that an effective method of therapy for C.S. involved physical restraint.
Similarly, it is no reflection on C.S.'s credibility that he stated there was $1,000 of real money used in a poker game at defendant's house. There is no evidence this statement is false. Furthermore, even if the actual amount of money did not total $1,000 or it was not real, a young boy who doesn't accurately assess exact or minute detail such as the amount or the authenticity of a stack of bills cannot reasonably be assumed to fabricate or misrepresent the existence or use of money. Clearly, this lack of financial acumen has no bearing on whether C.S. would fabricate a story regarding sexual abuse. Indeed, in our view, none of the information omitted directly contradicted or called into question the specific allegation made by C.S. and therefore did not constitute "contrary evidence" or render the affidavit substantially misleading.
Thus, because no significant "contrary evidence" was presented to refute the credibility of C.S., corroboration of his allegations was not necessary. See Henry, 631 P.2d at 1127. Nevertheless, the trial court placed great emphasis on the fact that the other boys did not corroborate C.S.'s story and implied that such information should have been included in the affidavit. However, the record reveals that Officer Hunt was not aware of the information gained from the interviews with the three boys and therefore was unable to include it, whatever the result, in the affidavit. See Winden, 689 P.2d at 583 (the omission of material facts known to the affiant at the time the affidavit was executed may cause statements within the affidavit to be so misleading that a finding of probable cause is deemed erroneous).
Also, the court was incorrect in stating that none of the boys was able to corroborate C.S.'s story. One boy did reveal that he saw the magazines and confirmed the incident while watching the Superbowl. Thus, although corroboration was not necessary because no "contrary evidence" existed, the trial court's findings on this point are again not supported by the evidence. People v. Sutherland, 886 P.2d 681, 686 (Colo. 1994).
We mention this error in the trial court's ruling because the record demonstrates that Detective Hunt was unaware whether the boys did or did not corroborate C.S.'s story at the time the affidavit was executed; however, for the same reason, the fact of their corroboration should not and is not a factor in our consideration today as to whether probable cause, in fact, existed.
B.
Finally, we note that Detective Hunt testified that he intentionally left out information regarding C.S.'s history. Based on that testimony, the trial court ruled that the omission was the product of an intentional effort to mislead the magistrate. See People v. Winden, 689 P.2d 578, 583 (Colo. 1984) (omissions that are the product of an intentional effort to mislead the issuing judge or magistrate normally justified more severe sanctions than errors occurring for other reasons). This conclusion, however, is also not supported in the record.
The trial court stated:
Omissions that are the product of intentional efforts to mislead the issuing Judge or Magistrate, a reckless disregard of no [sic] material facts, would normally justify more severe sanctions that [sic] errors occurring for other reasons and in this case it was one, an intentional leaving out of this information by Detective Hunt as opposed to an oversight.
Detective Hunt testified that he intended to leave the information out of the affidavit; however, no evidence in the record reveals that he deliberately attempted to mislead the magistrate by the omission. To the contrary, Detective Hunt specifically stated that he omitted the information because he did not feel that C.S.'s behavioral problems and psychological treatment were relevant for the purposes of the search warrant. Although we recognize that an accurate determination by the trial court that Detective Hunt intended to mislead the magistrate by omitting the information would compel a suppression order, see Winden, 689 P.2d at 583, the evidence in the record here does not support such a finding.
IV.
Accordingly, we reverse the trial court's suppression order because we cannot say based on the statements set forth, as well as those omitted, that the issuing magistrate's finding of probable cause is not supported by the record. The information omitted from the affidavit did not render it substantially misleading because it did not contradict the allegations made by C.S., a citizen-victim. Thus, contrary to the trial court's determination, corroboration was not necessary, and the trial court erred in determining otherwise.
JUSTICE KIRSHBAUM dissents, and JUSTICE LOHR joins in the dissent.