April 25, 2019

Colorado Supreme Court: Trial Court Erred by Reviewing Magistrate’s Probable Cause Determination De Novo Instead of Affording Great Deference

The Colorado Supreme Court issued its opinion in People v. Cox on Monday, November 5, 2018.

Searches and Seizures—Judicial Review or Determination—Scope of Inquiry or Review, in General.

In this interlocutory appeal, the supreme court considered whether the trial court erred in ruling that the affidavit in support of a search warrant failed to establish probable cause. The search warrant was obtained after law enforcement officers observed what they believed was a large marijuana grow on defendant’s agricultural and residential property. The trial court found that the affidavit was deficient because it failed to mention that defendant was a registered industrial hemp farmer and that marijuana and industrial hemp appear and smell the same.

The supreme court concluded that the trial court erred by (1) reviewing the magistrate’s probable cause determination de novo instead of according it great deference, (2) considering information not contained within the four corners of the affidavit, and (3) failing to afford the affidavit a presumption of validity. When giving the information articulated within the four corners of the affidavit the presumption of validity to which it is entitled, the court determined that the magistrate had a substantial basis to find that probable cause existed to believe that contraband or evidence of criminal activity would be found on defendant’s property. Therefore, the trial court’s suppression order was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Attorney Affidavit Did Not Put Privileged Information at Issue, Therefore Privilege Not Waived

The Colorado Supreme Court issued its opinion in In re State Farm Fire & Casualty Co. v. Griggs on Monday, June 4, 2018.

Attorney-Client Privilege—Implied Waiver.

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s determination that petitioner State Farm Fire and Casualty Company impliedly waived the attorney-client privilege protecting communications between it and its former counsel when it submitted an affidavit from that former counsel to rebut factual allegations of discovery misconduct. The court issued a rule to show to cause why the district court’s finding of implied waiver should not be reversed and now makes that rule absolute. The attorney affidavit submitted in this case did not put privileged information at issue by asserting a claim or defense that depends on privileged information or attorney advice. Rather, the affidavit contained only factual statements that were intended to rebut allegations of discovery misconduct. Accordingly, the court concluded that the district court erred in finding that State Farm impliedly waived its attorney-client privilege on the facts presented.

Summary provided courtesy of Colorado Lawyer.