Interlocutory Appeal from the District Court Mesa County
District Court Case No. 17CR1974 Honorable Brian James Flynn,
Judge
Attorneys for Plaintiff-Appellant: Daniel P. Rubinstein,
District Attorney, Twenty-First Judicial District George Alan
Holley II, Senior Deputy District Attorney Grand Junction,
Colorado.
Attorneys for Defendant-Appellee: Flanders, Elsberg, Herber
& Dunn, LLC Mark A. Herber Elizabeth A. Raba Longmont,
Colorado.
OPINION
SAMOUR
JUSTICE
¶1
Believing there was a large marijuana grow on the
agricultural and residential land owned by defendant David
Cox, law enforcement officers obtained a warrant to search
his home and packing shed. After the officers executed the
search warrant, Cox was charged with multiple
marijuana-related offenses and child abuse. In a pretrial
motion, Cox sought to suppress all the evidence seized,
arguing, among other things, that the search warrant lacked
probable cause.[1] Relying on evidence presented during the
preliminary hearing, the trial court granted the motion,
finding that certain conclusory statements in the affidavit
regarding the presence of marijuana on Cox's property
should be stricken. More specifically, the trial court
observed that the affidavit failed to mention that Cox was
"a registered and regulated hemp farmer," which
authorized him to possess and process industrial
hemp.[2] Further, noted the trial court, the
affidavit repeatedly referred to "marijuana,"
without acknowledging that marijuana and industrial hemp can
only be distinguished through chemical testing because they
appear and smell the same. The trial court thus ruled that
the affidavit did not establish probable cause to believe
contraband or evidence of criminal activity would be found on
Cox's property. This interlocutory appeal
followed.[3]
¶2
We now reverse the suppression order because we conclude that
the trial court erred in three ways. First, the trial court
reviewed the magistrate's probable cause determination de
novo instead of according it great deference. Second, the
trial court failed to limit its review to the information
contained within the four corners of the search warrant's
accompanying affidavit. And third, the trial court did not
afford the affidavit the presumption of validity to which it
was entitled.
¶3
Presuming valid the information articulated within the four
corners of the affidavit, we conclude that the magistrate had
a substantial basis to find that probable cause existed to
believe contraband or evidence of criminal activity would be
located on Cox's property. The trial court therefore
erred in ruling that the affidavit failed to establish
probable cause. On remand, the trial court should address
Cox's alternative request for a veracity hearing.
I.
Affidavit in Support of Search Warrant
¶4
In October 2017, Detective Mark Post, a member of the
Palisade Police Department, authored the affidavit in support
of the warrant used to search Cox's
property.[4] As relevant here, the affidavit provided
as follows:
• Detective Post had been a peace officer for more than
five years and a detective since November 2015. On October
13, 2017, he was asked by Sergeant John Cooper to review some
images of Cox's property "for a believed illegal
marijuana grow." The property consisted of agricultural
and residential land, and included a house and a packing
shed. Cox owned both the house and the packing shed.
• In plain view from the roadway, in front of the
residence's two-car garage, there was an area
approximately twenty feet wide and thirty feet long that had
marijuana drying on top of a blue tarp on the ground. Given
Detective Post's knowledge, training, and experience, it
was "immediately apparent" to him that this was
marijuana. This opinion was based on the appearance of the
plants observed and "the distinctive odor of raw
marijuana."
• Detective Post and Sergeant Cooper drove by the area
and observed large quantities of marijuana being dried in
front of the property, both at "the residence and the
packing shed." The packing shed had a large overhang
that also had large quantities of marijuana "hung up
from the ceiling."
• The Palisade Police Department had been contacted by
multiple civilians regarding what was "believed to be
the large marijuana grow occurring . . . in the shed, and
possibly being processed in the shed and in the house."
• Given the large quantity of marijuana, it was
"likely that the marijuana [was] being grown inside of
the large packing shed." Additionally, there was
"likely to be equipment related to the large production
of marijuana both in the residence and in the packing
shed."
• The quantity of marijuana drying in plain view was
"visibly well over what would be considered personal use
amounts." Based on Detective Post's training and
experience, it was "reasonable to believe that this
marijuana [was] being sold or bartered for illegally."
"[I]mportant[ly]," Cox had "recently [been]
turned down by the town of Palisade for a recreational
license to grow marijuana."
II.
Motion to Suppress and Suppression Order
¶5
Cox filed a motion to suppress the evidence collected during
the search of his property. The crux of the motion was that
Detective Post's affidavit failed to establish probable
cause. But the motion largely criticized Detective Post's
attestations as being grounded in his "baseless and
incorrect conclusion that marijuana cannabis was drying in
plain view on Mr. Cox's property." Following a
hearing, the trial court issued a written order. Based on
evidence introduced during the preliminary hearing, it agreed
with the motion that the ...