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holding that Colorado's good-faith exception, codified in section 16-3-308, C.R.S., is "substantially similar" to the Supreme Court's rule
Summary of this case from People v. SeymourOpinion
No. 93SA290 No. 93SA291
Decided March 7, 1994
Interlocutory Appeals from the District Court, Boulder County, Honorable Roxanne Bailin, Judge
RULINGS AFFIRMED AND CASES REMANDED WITH DIRECTIONS
Alexander M. Hunter, District Attorney, Twentieth Judicial District William F. Nagel, Appellate Chief Deputy District Attorney, Bryan Quiram, Chief Deputy District Attorney, Boulder, Colorado, Attorneys for Plaintiff-Appellant
Howard Bittman, Boulder, Colorado, Attorney for Defendant-Appellee Jeffrey Leftwich
Philip L. Dubois, Boulder, Colorado, Attorney for Defendant-Appellee David Alan Wade
The prosecution in this interlocutory appeal challenges suppression orders entered by the Boulder County District Court in the prosecutions of Jeffrey Leftwich (Leftwich) and David Alan Wade (Wade). Leftwich and Wade are each charged with possession of marijuana concentrate with intent to sell and cultivation of marijuana and are being tried separately. The prosecution obtained evidence it intends to use at the trial of Leftwich and the trial of Wade as the result of a warrant to search their residence. Leftwich moved to suppress the evidence asserting that the search warrant was not valid and Wade joined the motion. After a hearing, the trial court concluded the affidavit that resulted in the search warrant did not set forth sufficient facts to allow a magistrate or judge (magistrate) to find probable cause to search Leftwich's home. The trial court also held that the good-faith exception to the exclusionary rule and section 16-3-308, 8A C.R.S. (1986), are not applicable and therefore suppressed the evidence obtained in the search of the residence. We affirm the trial court's rulings.
This interlocutory appeal is proper pursuant to § 16-12-102(2), 8A C.R.S. (1986), and C.A.R. 4.1.
§ 18-18-406(8)(b), 8B C.R.S. (1993 Supp.).
§ 18-18-406(8)(a), 8B C.R.S. (1993 Supp.).
Leftwich and Wade both live in the residence that was searched. The search warrant that resulted in the evidence that is the basis of this appeal was based only on information about Leftwich. For simplicity, this opinion refers to the residence as Leftwich's residence.
I
In March of 1993, Detective Kurt Weiler (Detective Weiler), an officer of the Boulder Police Department, received an anonymous letter addressed to the "Boulder Colorado Police Department — Drug Squad," which stated:
This letter is to inform you that the person described below is an active drug dealer and warrants investigation. This is based on first-hand knowledge and eyewitness accounts by me and others. Below are some facts that may help you.
Person
Name: Jeff Age: 35-40 Height: 5'9" Weight: 170 lbs. Race: white Features: Bald on the top of his head. Crooked front teeth.
Address: Lives in Boulder, Colorado and is a student at the University.
Vehicle
Two door van with a large window on the drivers [sic] side. The passenger side has a sliding door. Color is steel blue. License plate number is MXS 518 or MSX 518, Colorado.
Drugs are collected at a music store located in Kansas City just North of the intersection of 39th and Main on the East side of the street. The collection times may coincide with the vacation times of the university in Colorado. The drugs are then taken to Boulder for resale.
We hope that this information will help you and are sorry that we must remain anonymous as other innocent people may get involved.
Your friends in Kansas City, March, 1993.
Detective Weiler commenced an investigation based on the information contained in the letter. He was able to confirm the non-incriminatory factual details recited in the letter, but the investigation did not yield any information implicating Leftwich in illegal activity. At the suppression hearing, Detective Weiler stated: "I think based on the anonymous letter that I had, I really didn't have [the] opportunity to corroborate criminal activity, a lot of other facts [were] corroborated, not the criminal acts." He also stated: "I'm always going to try to look at the evidence and corroborate criminal activity. That's my job. In this case it didn't happen."
The affidavit sets forth the following facts: Colorado License plate No. MSX-518 was listed to Jeffrey S. Leftwich who resided at 1720 Marshall Road #25, Boulder, Colorado; Leftwich's vehicle is a 1976 steel-blue Ford van, which has a large window directly behind the driver's door and a sliding door on the passenger side; Leftwich is 5'11" tall, 175 pounds, 39 years old, with brown eyes and hair and is bald on the top of his head; there is a music store at 3841 S. Main in Kansas City; the music store is located in a "Known . . . high drug area"; Leftwich is a student at the University of Colorado and went to Kansas City during spring break in his Ford van; and a vehicle registered to an individual who had a previous conviction for possession of cocaine was parked in the driveway in front of Leftwich's residence. The evidence does not support the conclusion that a known drug offender visited Leftwich's residence. The police did observe that a car was parked in front of Leftwich's house and that the car was registered to an individual who had a felony conviction. However, the police only saw a parked vehicle. They did not see who was driving the vehicle and thus could not state if the driver of the automobile was the registered owner. The police did not witness anyone go from the vehicle into Leftwich's residence or from the residence to the vehicle. The inference that a known drug offender visited Leftwich's residence is thus mere conjecture. It is equally possible that a person driving a known drug offender's automobile visited Leftwich's residence or that a person driving a known drug offender's automobile parked in Leftwich's driveway and visited a different residence. Absent more complete information, any conclusion based on the location of a parked car is of little or no relevance. The negligible impact that this information has on the probable cause calculus is evinced by the holding in Sibron v. New York, 392 U.S. 40 (1968). In Sibron, an officer witnessed the defendant have separate conversations with more than six known narcotics addicts over a period of eight hours. The Supreme Court stated: "The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security." Id. at 62.
Detective Weiler admitted that this was the first time he based a warrant on an anonymous tip and that he had no experience establishing the sufficiency of an affidavit that relied on the statements of an unnamed informant. He also admitted that before discussing the letter with anyone, he knew that the anonymous letter posed problems that would have to be resolved by corroborating the allegations in the letter.
There was no corroboration that Leftwich was involved with drugs. Nothing in the record establishes Leftwich ever visited the music store described in the letter or collected drugs at the music store in Kansas City. Nothing supports the claim that the music store was a site of drug activity, or that any drugs were taken to Boulder, Colorado. In addition, the record is devoid of any facts linking illegal activity to Leftwich's residence. The investigation only established that Leftwich lives in Boulder, goes to the University of Colorado, and took a trip to Kansas City during spring break.
The police corroborated that Leftwich went to Kansas City during spring break by calling and asking him. Leftwich freely admitted that he traveled to Kansas City.
Despite the lack of any corroboration of the vague allegations of criminal activity in the letter and the absence of information linking drugs to Leftwich's residence, Detective Weiler prepared an affidavit for a search warrant for Leftwich's home. The affidavit was reviewed by Weiler's supervisor, the Boulder Police Department legal advisor, and the Boulder County Chief Deputy District Attorney. The chief deputy district attorney advised Detective Weiler that the affidavit presented a close case and that a judge might not sign it. Weiler nonetheless filed the application and a district court judge issued a warrant. A search of Leftwich's home was conducted and marijuana plants and marijuana concentrate were found.
The inventory form executed by the police as a result of the search of Leftwich's residence states that "suspected hash" was seized. The statutory definition of "marijuana concentrate" includes hashish. § 18-18-102(19), 8B C.R.S. (1993 Supp.).
II A
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 and objects to be seized. Probable cause exists when an affidavit for a search warrant alleges sufficient facts to warrant a person of reasonable caution to believe that evidence of criminal activity is located at the place to be searched. People v. Abeyta, 795 P.2d 1324, 1327 (Colo. 1990); People v. Quintana, 785 P.2d 934, 936 (Colo. 1990).
To determine if probable cause exists, the totality of the facts and circumstances known to the officer at the time of the search must be considered. Illinois v. Gates, 462 U.S. 213 (1983) (abandoning the two-pronged test that was set forth in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969)). We have adopted the totality-of-the-circumstances test formulated in Gates in construing the Search and Seizure Clause of the Colorado Constitution. People v. Pannebaker, 714 P.2d 904, 907 (Colo. 1986).
The totality-of-the-circumstances test does not lower the standard for probable cause determinations; it simply gives reviewing courts more flexibility to determine the overall reliability of information from a confidential informant:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is fair probability that contraband or evidence of crime will be found in a particular place.
Gates, 462 U.S. at 238; see also Abeyta, 795 P.2d at 1327 ("Whether facts in an affidavit provided by a confidential informant establish probable cause for a search warrant depends not on a rigid set of legal rules but on a practical, nontechnical totality of the circumstances approach that considers an informant's veracity, reliability, and basis of knowledge.") (quotations omitted). Gates provides that veracity or reliability and basis of knowledge should not be accorded independent status: "Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Gates, 462 U.S. at 233.
A reviewing court does not review a magistrate's determination of probable cause de novo because the determination is entitled to great deference. Spinelli, 393 U.S. at 410. The duty of a reviewing court is only to ensure that a magistrate had a substantial basis for concluding that probable cause existed. Gates, 462 U.S. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 270-71 (1960)); see also Abeyta, 795 P.2d at 1327.
B
The anonymous letter that implicates Leftwich does not establish a substantial basis for concluding there was probable cause to search Leftwich's residence. Pursuant to Gates, we consider "the various indicia of reliability (and unreliability) attending an informant's tip" in assessing the basis for a probable cause determination. Gates, 462 U.S. at 234.
Because the letter came from an anonymous informant, it is difficult to assess the veracity of the information contained in the letter. Detective Weiler could not consider or rely on the past performance of the informer and nothing in the letter constitutes a declaration against the informer's penal interest. See Gates, 462 U.S. at 227; see also People v. Paquin, 811 P.2d 394, 398 (Colo. 1991) (emphasizing that the confidential informant personally spoke to the affiant and the informant had previously provided information which resulted in a felony arrest); Abeyta, 795 P.2d at 1328-29 (sustaining the finding of probable cause based in part on the fact that the affiant had personally spoken to three anonymous informants); People v. Diaz, 793 P.2d 1181, 1184-85 (Colo. 1990) (finding lack of probable cause in part because there was no information provided from which the court could assess the informants' veracity).
The inability of Detective Weiler to establish the informant's reliability and veracity does not end the inquiry because a deficiency regarding reliability and veracity can be overcome by a strong showing as to the informant's basis of knowledge or some other indicia of reliability. See Gates, 462 U.S. at 233; Diaz, 793 P.2d at 1183 ("Weakness in one area may be compensated by strength in another or some other indicia of reliability.") (quotations omitted). The only statement in the letter regarding the basis of the informer's knowledge is the statement, "this is based on first-hand knowledge and eyewitness accounts by me and others." A bare assertion of knowledge is not sufficient to establish an informer's basis of knowledge; there must be sufficient facts to allow a magistrate to determine how the informant obtained the information on which the affiant relies. See Aguilar, 378 U.S. at 113-14 (1962) (holding that one of the defects in the affidavit was its failure to inform the magistrate "of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were"); see also United States v. Long, 439 F.2d 628, 630-31 (D.C. Cir. 1971) (holding that an affidavit which stated that two informants had "personal knowledge" that the defendant was engaged in a numbers operation was only a conclusion which did not make it sufficiently clear that the informants had actually observed the defendant's gambling activities); State v. Baca, 640 P.2d 485, 487 (N.M. 1982) (determining that an affidavit which stated that an informant had "first hand personal knowledge" was insufficient because a magistrate could not determine whether the informant had "actually seen the defendant carry a .32-caliber pistol" or was relying "on mere hearsay or rumor").
The letter in this case does not allow an inference that the informer had personal knowledge Leftwich was involved in illegal activity. The informer only identifies Leftwich by his first name. The name of the music store is not provided, and the type of illegal substance is not indicated. The informer is only able to state that "the collection times may coincide with the vacation times of the university in Colorado." This statement is merely a speculation about Leftwich's schedule. The allegations do not even indicate at what stage of the alleged drug transaction Leftwich is involved; the letter simply states that the drugs "are collected" and "are then taken" to Boulder. It is not clear whether Leftwich is involved in collecting the drugs at the music store or transporting the drugs to Colorado. One of the serious omissions in the letter is the absence of any reference to where in Boulder the drugs were taken. Nowhere in the letter does the informant indicate that Leftwich's residence is the site of alleged drug activity.
In Gates, the police also received an anonymous letter, which stated:
This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomington Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement.
They brag about the fact they never have to work, and make their entire living on pushers.
I guarantee if you watch them carefully you will make a big catch. They are friends with some big drugs dealers, who visit their house often.
Lance Susan Gates Greenway in Condominiums
Gates, 462 U.S. at 225.
This letter is more detailed than the letter implicating Leftwich. Significantly, the informer in Gates provided specific information regarding the Gateses' modus operandi and stated contraband was stored in the Gateses' home. Despite the informer's statements implicating the Gateses, the Supreme Court held that the letter did not establish the basis of the informer's knowledge and that the letter, standing alone, did not provide sufficient evidence to allow a magistrate to find probable cause.
The Supreme Court stated:
[S]tanding alone, the anonymous letter sent to the Bloomingdale Police Department would not provide the basis for a magistrate's determination that there was probable cause to believe contraband would be found in the Gateses' car and home. The letter provides virtually nothing from which one might conclude that its author is either honest or his information reliable; likewise, the letter gives absolutely no indication of the basis for the writer's predictions regarding the Gateses' criminal activities. Something more was required, then, before a magistrate could conclude that there was probable cause to believe that contraband would be found in the Gateses' home and car.
Illinois v. Gates, 462 U.S. 214, 227 (citing Aguilar v. Texas, 378 U.S. 108, 109 n. 1 (1964)).
In this case, the anonymous letter does not allow an inference that the informant had access to reliable information of Leftwich's alleged illegal activities or that evidence of illegal activity would be found at Leftwich's residence.
C
Even if an informer's allegations do not establish probable cause, it may still be possible to obtain a warrant by corroborating the details of a tip through independent police work. Gates, 462 U.S. at 241-42; see also Diaz, 793 P.2d at 1183 ("The totality-of-circumstances test places particular importance on the value of corroboration of details of an informant's tip by independent police work.").
Facts that are easily obtained or predictions that are easily made add little to the decision of whether probable cause for a search exists. In Gates, the Court applied this principle:
[T]he anonymous letter contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. The letterwriter's accurate information as to the travel plans of each of the Gateses was of a character likely obtained only from the Gateses themselves, or from someone familiar with their not entirely ordinary travel plans. If the informant had access to accurate information of this type a magistrate could properly conclude that it was not unlikely that he also had access to reliable information of the Gateses' alleged illegal activities.
Gates, 462 U.S. at 245. In People v. Turcotte-Schaeffer, 843 P.2d 658, 660-61 (Colo. 1993), we recognized that corroboration of non-criminal activity may support a finding of probable cause. The focus of a court in reviewing an affidavit that relies on corroboration of non-criminal activity is the degree of suspicion that attaches to particular types of corroborated non-criminal acts and whether the informant provides details which are not easily obtained. Id. The purpose of the inquiry is to determine if the informer's statements regarding non-incriminatory facts indicate familiarity with the implicated individual or the alleged criminal activity that would allow an inference that the informer's allegations of criminal activity are reliable. In this case, Detective Weiler admitted he was only able to corroborate non-criminal activity. The facts that were verified are neither suspicious nor difficult to obtain and could merely be based on rumors and hearsay. In addition to the affidavit's insufficiency regarding criminal activity, neither the letter nor the investigation provided a substantial basis to determine if probable cause existed to search Leftwich's residence. In People v. Taube, 864 P.2d 123, 129 (Colo. 1993), we stated that an affidavit did not establish probable cause to search the defendant's residence because, "the affidavit [did not] indicate that the defendant's residence contained any of the drugs or stolen property allegedly involved in the illegal scheme." We noted that "no direct link between the cocaine and the defendant's residence was ever shown." Id. at 129 n. 10. In this case, neither the letter nor the investigation established a nexus between the alleged illegal activity and Leftwich's home.
It is significant that in People v. Turcotte-Schaeffer, 843 P.2d 658 (Colo. 1993), the search warrant was based on information from a named informant who personally advised the affiant that on ten separate occasions he had personally purchased controlled substances from an individual at the individual's home. The informer described the location of the home and provided information that he had been inside the residence and knew drugs were stored there. Although the court recognized that an affidavit can be based in part on the verification of non-criminal activity, the finding of probable cause was also based on the fact that because the informant was named, his admission was against his penal interest and thus had additional indicia of reliability. Id. at 661. Thus, Turcotte-Schaeffer is similar to Draper v. United States, 358 U.S. 307 (1959), where all that was corroborated was innocent activity but the informer was a named informer who had given reliable information to the police in the past.
Distilled to its essence, the letter is from an unidentified informant of unknown reliability and contains a vague and brief reference to illegal activity surrounded by innocuous details. If vague, unverifiable allegations accompanied by verifiable, innocuous facts can result in a warrant, the constitutional requirement that a search warrant only issue upon probable cause becomes a nullity. In this case, application of the totality-of-the-circumstances test announced in Gates establishes that there was not a substantial basis for concluding Leftwich was engaged in any illegal activity, let alone that drugs would be found in his house.
III
The prosecution contends that even if Detective Weiler's affidavit failed to provide a substantial basis to determine if probable cause existed, the good-faith exception to the exclusionary rule and section 16-3-308, 8A C.R.S. (1986), require that the trial court admit the illegally obtained evidence. We disagree.
A
The trial court found that Detective Weiler's reliance on the warrant was not objectively reasonable and that the exception announced in United States v. Leon, 468 U.S. 897 (1984), does not apply. We agree.
In Leon, 468 U.S. at 922 and Massachusetts v. Sheppard, 468 U.S. 981, 988 (1984), the Supreme Court announced a good-faith exception to the exclusionary rule in cases where an officer proceeds pursuant to a warrant. The court grounded the exception on the principle of objective reasonableness:
[T]he officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.
Leon, 468 U.S. at 922-23 (citations omitted). The Court articulated four situations where an officer's reliance on a warrant would not be objectively reasonable and therefore not in good faith: (1) where a facially sufficient affidavit is based upon knowingly or recklessly made falsehoods; (2) where the issuing magistrate wholly abandoned his judicial role; (3) where the warrant is so lacking in specificity that the officers could not determine the place to be searched or the things to be seized; and (4) where the affidavit is so lacking in indicia of probable cause that official belief in its existence is unreasonable, i.e., the affidavit is a "bare bones" affidavit. Leon, 468 U.S. at 923; see also State v. Doile, 769 P.2d 666, 672 (Kan. 1989) (recognizing Leon established four categories of unreasonable conduct); State v. Hlavacek, 407 S.E.2d 375, 383 n. 5 (W. Va. 1991) (same); see generally 1 Wayne R. LaFave, Search and Seizure § 1.3(f) (2d ed. 1987).
In Malley v. Briggs, 475 U.S. 335 (1986), the Supreme Court clarified the standard in Leon. Malley involved a civil rights action pursuant to 42 U.S.C. § 1983 (1988) in which the plaintiff sued a state trooper for violating the plaintiff's civil rights by improperly applying for an arrest warrant. The trooper asserted qualified immunity claiming that he was "shielded from damages liability because the act of applying for a warrant is per se objectively reasonable, provided that the officer believes that the facts alleged in his affidavit are true." Malley, 475 U.S. at 345. The trooper also asserted that he was "entitled to rely on the judgment of a judicial officer in finding that probable cause exists and hence issuing the warrant." Id.
The Court stated it was applying "the same standard of objective reasonableness that we applied in the context of a suppression hearing in Leon" and explained that pursuant to Leon the question to be addressed:
[I]s whether a reasonably well-trained officer in [the officer's] position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant. If such was the case, the officer's application for a warrant was not objectively reasonable, because it created the unnecessary danger of an unlawful arrest. It is true that in an ideal system an unreasonable request for a warrant would be harmless, because no judge would approve it. But ours is not an ideal system, and it is possible that a magistrate, working under docket pressure, will fail to perform as a magistrate should. We find it reasonable to require the officer applying for the warrant to minimize this danger by exercising reasonable professional judgment.
Malley also establishes that the fact that a magistrate acted favorably on a warrant request is of no moment in the determination of whether the officer acted with objective reasonableness because the question of reasonableness is to be judged as of the time of warrant application and thus without consideration of the fact that the magistrate thereafter issued a warrant. See Malley v. Briggs, 475 U.S. 335, 345 (1985) (holding that if an officer's request for a warrant is outside the range of professional competence expected of an officer, then that officer can not rely on the fact the magistrate issued the requested warrant); see also United States v. Baker, 894 F.2d 1144, 1148-49 (10th Cir. 1990) ("where . . . a reasonably well-trained law enforcement officer should himself have been aware that a proposed search would be illegal, a judicial officer's concurrence in the improper activity does not serve to bring it within the rule of Leon or Sheppard"); People v. Camarella, 818 P.2d 63, 70-71 (Cal. 1991) ("By definition, in every case in which the prosecution seeks the benefit of Leon, a magistrate has issued a warrant; issuance of the warrant defines the class of cases eligible for nonexclusion under the Leon rule. Because issuance of a warrant is a constant factor in these cases, it cannot logically serve to distinguish among them."). The Supreme Court's refusal to allow a police officer to insulate his decision by relying on a magistrate's finding of probable cause indicates that a police officer can not rely on the decisions of other law enforcement personnel to insulate his decision. In Baker, the Tenth Circuit explained that a judicial officer's concurrence in illegal activity does not insulate the police officer's decision. If the decision of a neutral and detached magistrate is not relevant, the "hurried actions," Aguilar, 378 U.S. at 110-11, of those "engaged in the often competitive enterprise of ferreting out crime," Johnson v. United States, 333 U.S. 10, 14 (1946), are also not relevant. When an affidavit fails to satisfy the requirements of probable cause and is clearly deficient on this face, the advice and recommendations of fellow officers and attorneys cannot buttress the sufficiency of the affidavit.
Detective Weiler's reliance on the warrant to search Leftwich's residence was unreasonable under the fourth category described in Leon, i.e., that the affidavit was so lacking in probable cause that Detective Weiler knew, or should have known, that the search was illegal. Leon, 468 U.S. at 919 ("If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." (quoting United States v. Peltier, 422 U.S. 531, 542 (1975))); see also United States v. McKneely, 6 F.3d 1447, 1455 (10th Cir. 1993) ("An officer who knows or should have known that a search warrant was invalid may not rely upon the good faith exception to immunize his subsequent seizure of evidence.").
In applying the good-faith exception to the facts in Leon, the Court stated that the officer's "application for a warrant clearly was supported by much more than a `bare bones' affidavit." Leon, 468 U.S. at 926. Unlike the affidavit at issue in Leon, the affidavit in this case is a "bare bones" affidavit because it contains no facts that would allow a reasonable officer to conclude that probable cause existed to search Leftwich's residence. The statements in the affidavit regarding criminal activity are unsupported conclusions that are not based on reliable information. See United States v. Baxter, 889 F.2d 731, 734 (6th Cir. 1989) (stating that the affidavit was a `bare bones' affidavit because "the officer involved . . . had to realize that the source of the information against the defendant was an unknown party who was unavailable and could not be demonstrated to be reliable"); United States v. Jackson, 818 F.2d 345, 350 n. 8 (5th Cir. 1987) ("Because of our conclusion that the affidavit is totally lacking in indicia of reliability and basis of knowledge, and is therefore a bare-bones affidavit, the good-faith exception to the exclusionary rule is not available."); United States v. Barrington, 806 F.2d 529, 532 (5th Cir. 1986) (determining that affidavit was a `bare bones' affidavit under Leon); State v. Johnson, 395 S.E.2d 167, 170 (S.C. 1990) (holding that an affidavit which stated that the informant had seen drugs in the defendant's home in the last seventy-two hours was a `bare bones' affidavit and therefore the good-faith exception could not be employed to validate the warrant); Hlavacek, 407 S.E.2d at 382-83 n. 5 (holding that an anonymous informant's tip regarding the defendant's trip to get marijuana and slight corroboration were insufficient to warrant application of the good-faith exception); State v. Worley, 369 S.E.2d 706, 712 (W.Va.) (holding that an affidavit which set out hearsay statements of an unknown declarant was of the bare-bones type), cert. denied, 488 U.S. 895 (1988); State v. Adkins, 346 S.E.2d 762, 775 (W.Va. 1986) (stating that because an affidavit merely asserted a confidential informant observed marijuana inside the premises, the affidavit was conclusory and Leon was not applicable).
The interrelationship of the requirement that an affidavit for a warrant not be "bare bones" under Leon and the standard for reviewing a determination of probable cause under Gates was explained by Justice Brennen:
Because the two standards overlap so completely, it is unlikely that a warrant could be found invalid under Gates and yet the police reliance upon it could be seen as objectively reasonable; otherwise, we would have to entertain the mind-boggling concept of objectively reasonable reliance upon an objectively unreasonable warrant.
Leon, 468 U.S. 958-59 (Brennen, J., dissenting); see also Yale Kamisar, Gates, "Probable Cause," "Good Faith," and Beyond, 69 Iowa L. Rev. 551, 588-589 (1984) ("To impose a `reasonable belief' exception on top of this already diluted standard surely would amount to a double dilution."); Wayne R. LaFave, Fourth Amendment Vagaries, 74 J. Crim. L. Criminology 1171, 1199 (1983) ("If, as the Gates majority beguiles, probable cause is nothing more than a matter of `practical, common-sense' decisionmaking, then it would seem that a probable cause determination which is erroneous and thus lacking this sagaciousness is undeserving of either the appellation `good faith' or the sympathetic reception which a `good faith' qualification would allow."); see generally 1 Wayne R. LaFave, Search and Seizure § 1.3(f) (2d ed. 1987). We recognize that these tests address differing concepts, i.e., Gates focuses on the degree of deference that a reviewing court should pay a magistrate's determination of probable cause while Leon focuses on police officer's decision to seek and then execute a certain warrant. Nonetheless, both tests utilize a reasonableness standard to review the facts in an affidavit. Thus, in the vast majority of cases, if a court applies Gates and ascertains that a substantial basis for determining probable cause did not exist, the court will reach the conclusion that the officer unreasonably relied on the affidavit.
At the suppression hearing, Detective Weiler admitted that he knew the letter implicating Leftwich did not contain probable cause to search Leftwich's residence so he began an investigation to establish whether the informant was reliable. Detective Weiler also admitted his investigation did not corroborate that Leftwich was engaged in illegal activity. Officer Weiler knew, or should have known, that the affidavit he submitted did not establish that probable cause existed to search Leftwich's residence. Therefore, the illegally obtained evidence is not admissible under the good-faith exception to the exclusionary rule.
B
The prosecution also asserts that despite the absence of probable cause to search Leftwich's residence, section 16-3-308, 8A C.R.S. (1986), requires the evidence seized in the unconstitutional search be admitted. We disagree.
Section 16-3-308 provides in pertinent part:
(2) As used in subsection (1) of this section:
(a) "Good faith mistake" means a reasonable judgmental error concerning the existence of facts or law which if true would be sufficient to constitute probable cause
. . . .
(4)(a) 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 . . . .
(Emphasis added.)
The General Assembly enacted section 16-3-308 prior to the Supreme Court's decision in Leon. The purpose of the statute was to enact a good-faith exception to the exclusionary rule. The General Assembly based the law on United States v. Williams, 622 F.2d 830, 840 (5th Cir. 1980), cert. denied, 449 U.S. 1127 (1981), in which the Fifth Circuit enunciated a two-pronged test to determine when evidence should be admitted despite a constitutional violation.
Williams states:
We emphasize that the belief, in addition to being held in subjective good faith, must be grounded in an objective reasonableness. It must therefore be based upon articulable premises sufficient to cause a reasonable, and reasonably trained, officer to believe that he was acting lawfully.
Williams, 622 F.2d at 841 n. 4a. The language and legislative history of section 16-3-308 clearly indicates that the General Assembly intended to apply an objective standard substantially similar to the reasonableness requirement later announced in Leon. Because Detective Weiler's reliance on the affidavit was not reasonable, as discussed supra at section III(A), section 16-3-308 does not apply and the evidence should be excluded.
In discussing House Bill 1493, which created section 16-3-308, the drafter and co-sponsor of the bill, Representative Chris Paulson, was questioned regarding the meaning of "reasonable" in subsection 2(a) and 4(a). He stated that the bill is designed to implement the Williams decision in Colorado. A representative asked how the law would address the situation where a police officer is misinformed by a district attorney regarding the state of the law and acts on the misinformation. Representative Paulson responded that the arrest, or search, that resulted from this misinformation would be unreasonable under section 16-3-308 and the evidence obtained would be excluded. Representative Paulson stated that it is "unreasonable for us, in this day and age, to have police officers who are uninformed about the requirements for searches and seizures." Hearings on H.B. 1493 Before the House Judiciary Committee, 53d Gen. Assembly, 1st Reg. Sess. (audio tape, March 17, 1981, at 5:25-6:21).
IV
The affidavit submitted by Detective Weiler did not provide a substantial basis for concluding that probable cause existed to search Leftwich's residence. From the time Detective Weiler received the letter until he prepared the affidavit, Detective Weiler, the members of the Boulder Police Department, and the chief deputy district attorney doubted whether probable cause existed to obtain a warrant. When a warrant is obtained, the legal sufficiency of the warrant depends upon whether facts were set forth which as a matter of law would allow a magistrate to determine if probable cause exists. The affidavit that Detective Weiler submitted was insufficient because it was devoid of facts that would establish that evidence of illegal activity would be found at Leftwich's residence. Because Detective Weiler knew, or should have known, the affidavit was insufficient, neither the good-faith exception announced in Leon, nor section 16-3-308, 8A C.R.S. (1986), permits the illegally obtained evidence to be admitted at Leftwich's or Wade's trials.
Accordingly, we affirm the suppression orders and remand the cases for further proceedings consistent with this opinion.
JUSTICE VOLLACK dissents, and CHIEF JUSTICE ROVIRA joins in the dissent.