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People v. Cox

Supreme Court of Colorado, En Banc

November 5, 2018

The People of the State of Colorado, Plaintiff-Appellant
David Lawrence Cox. Defendant-Appellee

          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.



         ¶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 ...

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