FAQ: The Changing Face of Probable Cause for Search Warrants in Colorado

The Colorado Supreme Court recently (in April 2010) revisited what the law requires to create probable cause – that standard of proof necessary to support a search.

Probable Cause

The United States and Colorado Constitutions prohibit issuance of a search warrant without a showing of probable cause supported by oath or affidavit. See U.S. Const. amend IV; Colo. Const. art. II, ¤ 7. “Probable cause exists when an affidavit for a search warrant alleges facts sufficient to cause a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched.'”

Probable cause is determined by the “totality of the circumstances.” Under the Colorado Constitution, the facts supporting probable cause must be reduced to a writing, and so probable cause must be established within the four corners of the warrant or its supporting affidavit.

However, the analysis is not governed by hypertechnical legal rules; rather, a judge must make a “practical, commonsense decision” as to whether there is a fair probability that a search will reveal contraband or evidence of a crime. Probable cause’ itself need not satisfy any rigid, hypertechnical requirements but is a “practical, nontechnical conception,’ involving common-sense conclusions about human behavior.”

In People v Scott, the Colorado Supreme Court expanded the “source” of probable cause to allow a judge to “add together” the evidence taken from two separate search warrants to support probable cause for a single search warrant. Scott had challenged the second search warrant as having issued without probable cause. The trial court concluded the affidavit supporting the second warrant was insufficient to establish probable cause and granted his motion to suppress all items collected thereunder except for the modified treadmill found in the garage.

After review, the court concluded that two affidavits could be read together and that the constellation of facts set forth by the two affidavits was a sufficient to provide the judge with a substantial basis from which to conclude that probable cause existed.

H. Michael’s Take:

I disagree with the court’s conclusions. In the past, where two affidavits have been read together to support a single search warrant, the affidavits incorporated each other by reference to each other.

In this case – the court broadened this rule of law on what it takes to establish probable cause in Colorado.

“Here, though, the affidavit supporting the second warrant does not explicitly incorporate by reference the affidavit supporting the first warrant. Rather, the second affidavit only states that the officers made their observations while executing the first search warrant at Scott’s residence. Nonetheless, the observations sworn in the first affidavit clearly informed the ongoing investigation as well as the second warrant request. To force the two affidavits to be considered separately simply because Officer Feeney failed to explicitly incorporate the first affidavit into the second would be to impose hypertechnical requirements on an affidavit’s form and constrain the commonsense approach that guides a magistrate’s probable-cause determinations.”