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ADVANCE SHEET HEADNOTE

09SA212 People v. Crippen: Search Warrants - Probable Cause –

The People brought an interlocutory appeal pursuant to

section 16-12-102(2), C.R.S. (2009), and C.A.R. 4.1, challenging

the district court’s suppression of evidence seized during the

execution of a search warrant at the defendant’s home. The

district court found that the affidavit in support of the

warrant failed to establish probable cause, largely because it

failed to identify the person or agency conducting the audit

from which the allegations of criminal activity were derived and

because the records that were evaluated in the audit and sought

pursuant to the warrant appeared to be several years old.

The Colorado Supreme Court reversed the suppression order

and remanded for further proceedings, concluding that, when

considered in the totality of the circumstances, the affidavit

provided a substantial basis to believe the information it

contained was reliable, and there was a reasonable probability

that evidence of the criminal activity it alleged would still be

erred in granting the motion to suppress.

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SUPREME COURT, STATE OF COLORADO Case No. 09SA212
Two East 14th Avenue
Denver, Colorado 80203

Interlocutory Appeal from the District Court

Plaintiff-Appellant:

The People of the State of Colorado,

v.

Defendant-Appellee:

James Crippen.

ORDER REVERSED AND REMANDED

Bill Thiebaut, District Attorney, Tenth Judicial

Attorneys for Plaintiff-Appellant

Koncilja & Koncilja, P.C., Joseph A. Koncilja

Attorney for Defendant-Appellee

JUSTICE COATS delivered the Opinion of the Court.

section 16-12-102(2), C.R.S. (2009), and C.A.R. 4.1, challenging

the district court’s suppression of evidence seized during the

execution of a search warrant at the defendant’s home. The

district court found that the affidavit in support of the

warrant failed to establish probable cause, largely because it

failed to identify the person or agency conducting the audit

from which the allegations of criminal activity were derived and

because the records that were evaluated in the audit and sought

pursuant to the warrant appeared to be several years old.

When considered in the totality of the circumstances, the

affidavit provided a substantial basis to believe the

information it contained was reliable, and there was a

reasonable probability that evidence of the criminal activity it

alleged would still be found at the defendant’s home. The

district court therefore erred in granting the motion to

suppress. The suppression order is reversed, and the case is

remanded for further proceedings.

I.

Following the seizure of both documentary and real evidence

(including contraband) during a search of his home, the

defendant was charged with theft, embezzlement of public

property, failing to disclose a conflict of interest, first

degree official misconduct, and multiple counts of possessing

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explosive or incendiary devices. He moved to suppress the

evidence, alleging that the affidavit in support of the search

warrant failed to establish probable cause. After hearing the

motion and making written findings of fact and conclusions of

law, the district court granted it.

The application for a search warrant and supporting

affidavit were prepared by an investigator for the district

attorney’s office. The affiant indicated that the defendant was

the Director of an organization called the Western Forensic Law

Enforcement Training Center, which was formed at Colorado State

University-Pueblo, through funding provided by a grant from the

National Institute of Justice Crime Laboratory Improvement

Program, with a mission of training and assisting law

enforcement agencies in Colorado with forensic analysis. The

affiant asserted that an audit of the defendant’s program was

conducted for the period between September 2003 and December

2006, covering its various expenditures and including all

accounts for which the defendant had signature authority. Over

four, single-spaced, typewritten pages, the affidavit detailed

various findings of irregularities uncovered in the audit,

including such things as the failure of the defendant to

disclose his interest in a corporation operated by him and his

wife from their home, from which questionable sales were made to

the program; various purchases from the defendant’s corporation

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of materials that could not be located by the auditor; travel

and other expenses improperly billed to the University; and

records indicating the defendant’s outside compensation for

times during which he was also being compensated by the

University.

Uncontested testimony at the suppression hearing also

indicated that the defendant was a retired agent and explosives

expert for the Colorado Bureau of Investigation. While the

warrant was being executed, the defendant gave a lengthy

statement concerning his activities. He discussed his role as

the Director of the Center, the process through which it

received federal funding, and his responsibilities regarding the

creation of its budget. He also briefly discussed the

corporation operated by him and his wife and confirmed that he

was its President. He admitted that this corporation made a

profit through the sale of merchandise to the University. The

defendant declined to answer questions regarding any conflict of

interest without first discussing the matter with his lawyer.

The defendant also discussed four or five trips he took related

to consulting employment for which he was reimbursed by private

organizations or law enforcement in addition to federal grant

funds.

The district court found the affidavit deficient for two

separate reasons. First, it found that the failure of the

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affidavit to set forth the identity of the person or agency

conducting the audit, along with its failure to allege any

corroboration of the information contained in the audit,

precluded any meaningful assessment of the auditor’s veracity or

basis of knowledge, or the reliability of the information he

provided. Second, it found that an audit concluded more than

two years before the application for a search warrant did not

provide sufficiently current information to justify a finding of

probable cause to believe a search would still produce evidence

of criminal activity. It therefore suppressed everything found

during the search of the defendant’s home.

The People immediately appealed to this court, pursuant to

the provisions of section 16-12-102, C.R.S. (2009), and C.A.R.

4.1.

II.

It is now firmly established that the Fourth Amendment

exclusionary rule does not extend to evidence seized by law

enforcement officers while executing, in objectively reasonable

good faith, a judicially authorized warrant. U.S. v. Leon, 468

U.S. 897, 906 (1984); People v. Gall, 30 P.3d 145, 150 (Colo.

2001). We have also long made clear, however, that the good

faith exception to the exclusionary rule must be asserted by the

prosecution at the suppression hearing or reliance on it will be

considered waived. People v. Donahue, 750 P.2d 921, 923 (Colo.

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1988). Because the record certified to us contains no

indication that the applicability of the good faith exception

was either alleged by the prosecution or resolved by the

district court, we decline to address it on appeal.

Public policy encouraging the use of warrants nevertheless

dictates that probable cause be reviewed with deference to

issuing magistrates, and therefore the appropriate question for

a court considering a search authorized by warrant is whether

the issuing magistrate had a substantial basis for issuing the

search warrant, as distinguished from simply whether the

reviewing court would have found probable cause in the first

instance. Illinois v. Gates, 462 U.S. 213, 238-39 (1983); Gall,

30 P.3d at 150. Furthermore, “probable cause” itself need not

satisfy any rigid, hypertechnical requirements but is a

“practical, nontechnical conception,” involving common-sense

conclusions about human behavior. Gates, 462 U.S. at 239;

People v. Polander, 41 P.3d 698, 702 (Colo. 2001). It has been

referred to as a “fluid concept,” turning on the assessment of

probabilities in particular factual contexts that are not

reducible to a neat set of legal rules. Id. Even the probable

cause determination itself must therefore include consideration

of the totality of the circumstances.

In addition to the content of the information asserted in

the affidavit, a totality-of-the-circumstances analysis

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necessarily requires some assessment of the reliability of the

information. Both the credibility of any sources of

incriminating information and the way those sources acquired

that information – their basis of knowledge – are unquestionably

important in determining whether the information they provide

should be considered sufficiently reliable to be acted upon.

See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v.

Texas, 378 U.S. 108 (1964). Although it once appeared that

these two concerns might be treated as independent prerequisites

to the inclusion of any particular information in the calculus

of probable cause, more than a quarter century ago the Supreme

Court made clear that they “were intended simply as guides,” and

that each need not be satisfied in any technical sense. Gates,

462 U.S. at 239; Polander, 41 P.3d at 702. Rather than being

accorded independent status, these two elements are better

understood as relevant considerations in the totality-of-

circumstances analysis: a deficiency in one may be compensated

for by a strong showing as to the other, or for that matter, by

some other indicia of the information’s reliability altogether.

Polander, 41 P.3d at 702; see Gates, 462 U.S. at 233.

Under this kind of analysis, even the tip of a completely

anonymous informant might be considered reliable, as long as

sufficiently unique details could be corroborated. Alabama v.

White, 496 U.S. 325, 331 (1990); Gates, 462 U.S. at 239. Quite

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apart from corroboration, however, it has long been recognized

that assessing the veracity of average citizens who report crime

does not pose the same difficulty as assessing the veracity of

informants from the criminal milieu. Polander, 41 P.3d at 703;

see generally, 2 Wayne R. LaFave, Search and Seizure § 3.4 (3d

ed. 1996). By the same token, even without a specific

description of the source’s basis of knowledge, it may be

patently clear from its nature alone that it could only have

been acquired through first-hand observation or in some

similarly reliable way. See Spinelli, 393 U.S. at 413

(referring to the detail in Draper v. U.S., 358 U.S. 307, 309

(1959), as providing a suitable benchmark); see generally 2

Wayne R. LaFave, Search and Seizure § 3.3(e) (self-verifying

detail).

Although the affidavit in this case was hardly a model to

be emulated, failing as it did to identify the person conducting

the audit, , specify the timing and circumstances of its

commission or attach a copy of the audit in question, under the

unique circumstances presented here, the reliability of the

information contained in the affidavit was nevertheless

discernible from its nature and detail alone. Large portions of

the affidavit were clearly excerpted from the audit. They

provided specific detail available only to someone given access

to confidential records of the University, the Institute, and

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the Training Center, including references to specific dates,

locations, and amounts. These excerpts also included numerous

inferences from records and receipts that could only have been

drawn by someone professionally trained in accounting and

auditing techniques, and with the cooperation of, and perhaps

employment by, some or all of these three business entities.

While the district court was needlessly forced to scour the

affidavit for implications that should have been made explicit,

it nevertheless erred in relegating this information to the

status of an uncorroborated tip from an anonymous informant.

Although the auditor may not have been specifically named or

questioned about his basis of knowledge, a great deal could be

inferred about both prongs of the Aquilar-Spinelli paradigm.

Far from having the hallmarks of “a rumor circulating in the

underworld” or a malicious fabrication, this information, by its

very nature, was almost certainly acquired by first-hand

observation of the relevant documents, in the regular course of

business, for purposes other than criminal investigation.

Because the audit described irregularities in the defendant’s

purchases and accounting practices consistent with criminal

conduct such as theft, embezzlement of public property, and

official misconduct, the district court should have found that

the affidavit provided the issuing magistrate with a substantial

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basis for believing the defendant’s business records, at least

at the time of the audit, would evidence criminal activity.

Unlike the actual seizure of items connected to the

commission of a crime, however, a search for otherwise seizable

items must be supported by probable cause to believe not only

that those items have been at the place to be searched but that

they will probably be found there at the time the search can be

conducted. See People v. Miller, 75 P.3d 1108, 1112 (Colo.

2003); see also People v. Erthal, 194 Colo. 147, 148, 570 P.2d

534, 534 (1977). Whether information about particular

contraband, instrumentalities, fruits, or even “mere evidence”

of a crime has become “stale,” however, is not simply a question

of the passage of time. See United States v. Rahn, 511 F.2d

290, 292 (10th Cir. 1975). Rather, it is a function of a host

of variables unrelated to the calendar, chief among which are

the nature of the criminal activity at issue and the way the

items being sought are related to it. See People v. Lubben, 739

P.2d 833, 836 (Colo. 1987).

Unlike a half-smoked marijuana cigarette in an ashtray at a

cocktail party, which may well be stale the day after the

cleaning lady has been in, see Andresen v. State, 24 Md. App.

128, 172, 331 A.2d 78, 104 (1975), or the proceeds of a

convenience store robbery, which are likely to be spent or co-

mingled almost immediately after the crime, business records,

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created specifically for tax or other accounting purposes, would

normally be maintained at least until those purposes had been

served. See United States v. Word, 806 F.2d 658, 662 (6th Cir.

1986) (business records prepared and kept in the ordinary course

of business defy claims of staleness); see also United States v.

Brownderville, No. 98-1374, 1999 WL 618067, at *4 (6th Cir. Aug.

2, 1999); see also United States v. Singh, 390 F.3d 168, 182 (2d

Cir. 2004); United States v. Farmer, 370 F.3d 435, 439-40 (4th

Cir. 2004); United States v. Ninety-Two Thousand Four Hundred

Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 148 (3d

Cir. 2002). In the absence of some indication that they were no

longer needed in the normal course of business or that someone

with access had become aware that their continued existence

posed too great a risk, one might reasonably expect records or

accounts of this kind to be maintained at a regular place of

business for relatively long periods of time. See United States

v. McManus, 719 F.2d 1395, 1400-01 (6th Cir. 1983) (old business

records could reasonably be expected to be found at the

defendant’s home or place of business for which the search

warrant was issued).

Although the records referred to in the audit in this case

appear to have been several years old, this time differential is

not abnormal or unexpected for an audit. The records

themselvesinvolved accountings for grants, expenditures,

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reimbursements, and salaries acquired or made under the auspices

of public educational and law enforcement institutions. And

while the affidavit at times failed to carefully distinguish

information in the audit from information acquired elsewhere, a

fair reading indicates that the affiant had personal knowledge

or learned from the Secretary of State and Pueblo County

Assessor of the defendant’s continued and current use of the

Candytuft address as both a residence and business address for

the private business venture operated by him and his wife.

Nothing in the record suggested that the defendant had been

confronted with the findings of the audit or had otherwise

acquired cause to attempt to either hide or destroy the relevant

computer records, even if that had been possible.

Despite the length of time between the auditor’s

observation of the records in question and the search for which

a warrant issued, there was every reason to believe the items

for which the search was judicially authorized would still be in

the place to be searched, at the time of the search. Under

these circumstances, the district court erred in disregarding

the audit’s information as stale and finding that it could not

have provided a substantial basis for issuing the warrant

executed in this case.

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 III.

Although the sufficiency of the affidavit in this case is

far from obvious, we conclude that it provided a substantial

basis to believe that items connected to a crime would be found

at the defendant’s home, at the time of the search. The

district court therefore erred in suppressing the evidence

seized during the judicially authorized search of the

defendant’s home. Its order of suppression is reversed, and

the case is remanded for further proceedings.

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