The Exclusionary Rule and the Burden of Proof
In Colorado an accused person can challenge any and all evidence obtained illegally by the police. When such evidence is challenged and found to the obtained in violation of either the Fourth Amendment of the U.S. Constitution or Section 7 of Article II of the Colorado Constitution, then the trial court is supposed to exclude the evidence and not allow it to be introduced at trial. These constitutional provisions apply to not only the illegally obtained evidence but also to all other evidence derived from the primary evidence (often referred to as the “fruit of the poisonous tree” evidence).
At the pretrial hearing (often referred to as a “suppression hearing”) where the evidence is challenged as unlawfully obtained, the prosecution (also called the People, the government, the State, the district attorney, etc.) has the burden to proved such evidence was in fact NOT unlawfully obtained. It is important to remember that although federal constitutional law provides that the controlling burden of proof at the suppression hearing is “by a preponderance of the evidence.” U.S. v. Matlock, 415 U.S. 164 (1974). This can be contrasted with Colorado constitutional law where the courts have been slow to specify any applicable standard of proof for suppression hearings. Obviously, the federal dictate will require at least the “preponderance” standard.
Nonetheless, there are some occurrences where the Colorado appellate courts have actually applied a “clear and convincing” standard of proof and deemed it a necessity under the applicable Colorado constitutional mandates. Thus, it would behoove one (or one’s attorney) to articulate a legal argument supporting the heightened standard of proof (“clear and convincing”) rather than settle for the lower standard (“preponderance”) often applied by default (or out of ignorance) by the Colorado trial courts. Of course, this comes with one caveat: when the Colorado appellate courts have already directed that the lower standard (“preponderance”) is applicable under Colorado law and is to be applied to the particular suppression issue.
The Exceptions to the Exclusionary Rule and Burdens of Proof
In Colorado when an accused person challenges evidence because it was illegally obtained by the police, even though the trial court judge may agree the evidence was in fact gained (or obtained) illegally by the police, the trial court may still admit the evidence at trial. The trial court will admit this illegally-obtained evidence only when an exception to the Exclusionary Rule applies. Keep in mind, when this occurs, the evidence is (first) determined to have been obtained as a result of illegal police conduct but also that (second) a relevant exception to the general rule of exclusion applies to the case and, ergo, warrants its introduction at trial and it to be heard or seen by the jury.
Whether or not an exception to the Exclusionary Rule applies (and thus whether the court will exclude the evidence from being introduced at trial) depends upon whether the prosecution has show either by a “clear and convincing” standard (People v. Jansen, 713 P.2d 907 (Colo. 1986) or by a “preponderance” standard (People v. Schoondermark, 759 P.2d 715 (Colo. 1988)).
Some of these exceptions include the following:
- The Attenuation Exception (under state and federal law): With this exception the prosecution has the burden of proving that the nexus between the initial illegal police conduct and evidence seized by the police and sought to be introduced at trial by the prosecution has become so attenuated that the taint can be said to have dissipated. See Brown v. Ill., 422 U.S. 590 (1975); People v. Padgett, 932 P.2d 810 (Colo. 1997).
- The Independent Source Exception (under state and federal law): With this exception the prosecution has the burden of proving that the evidence obtained illegally by the police was also, nonetheless, discovered by a source that was wholly-independent of the illegality (or a source other than police who broke the law). See Murray v. U.S., 487 U.S. 533 (1988); People v. Lewis, 975 P.2d 160 (Colo. 1999).
- The Inevitable Discovery Exception (also called the Inevitable Discovery Doctrine) (under state and federal law): With this exception the prosecution has the burden of proving that the illegally-obtained evidence, nonetheless, would have been lawfully obtained by the police had the police not first acted unlawfully. See Nix v. Williams, 467 U.S. 431 (1984); People v. Burola, 848 P.2d 958 (Colo. 1993).
- The Good Faith Exception (under state and federal law): With this exception the prosecution has the burden of proving that the illegally-obtained evidence was seized by a police officer who was relying (in good faith) on a warrant that the officer believed to be lawfully issued and valid (i.e., the cop cannot know or believe it is an illegal warrant). See CRS § 16-3-308; U.S. v. Leon, 468 U.S. 897 (1984); People v. Leftwich, 869 P.2d 1260 (Colo. 1994). The cop who is acting in good faith must also be acting in an objectively reasonable way in relying on the warrant – thought the warrant itself will be prima facie evidence of proper police conduct. People v. Blehm, 983 P.2d 779 (Colo. 1999). In this situation, the police’s reliance on the warrant must be “objectively reasonable.” (Citation omitted) However, the Good Faith Exception does NOTapply when the following occurs:
- The judge who issued the warrant was mislead by the police or the affiant when the police or the affiant knew such information was false or should have know the information was false but didn’t know it was false because the police or affiant acted in a reckless disregard of the truth.
- The judge who issued the warrant completely abandoned her or his role as a judge or magistrate.
- The warrant issued by the court was “so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable.” (Citation omitted)
- The warrant issued by the court was “so facially deficient that the officers executing the warrant could not have reasonably presumed it to be valid.
NOTE: The statutory Good Faith Exception under CRS § 16-3-308 is inapplicable when the warrant is obtained through intentional and material misrepresentations by the police or when “bare bones” information is given to the issuing judge by the affiant. See People v. Altman, 960 P.2d 1164 (Colo. 1998); People v. Blehm, 983 P.2d 779 (Colo. 1999). Moreover, the statutory Good Faith Exception under CRS § 16-3-308 will not apply when there is a lack of probable cause supporting the accused’s arrest, but the exception may apply to searches by the police (possibly even when the search is conducted incident to an arrest that was based upon an arrest warrant subsequently determined to be unlawful. Ariz. v. Evans, 514 U.S. 1 (1995).