2021 Colorado Code
Title 16 - Criminal Proceedings
Article 3 - Arrest - Searches and Seizures
Part 3 - Searches and Seizures
§ 16-3-303. Search Warrants - Application

1. A search warrant shall issue only on affidavit sworn to or affirmed before the judge and relating facts sufficient to:
   1. Identify or describe, as nearly as may be, the premises, person, place, or thing to be searched;
   2. Identify or describe, as nearly as may be, the property to be searched for, seized, or inspected;
   3. Establish the grounds for issuance of the warrant or probable cause to believe that such grounds exist; and
   4. Establish probable cause to believe that the property to be searched for, seized, or inspected is located at, in, or upon the premises, person, place, or thing to be searched.

2. The affidavit required by this section may include sworn testimony reduced to writing and signed under oath by the witness giving the testimony before issuance of the warrant. A copy of the affidavit and a copy of the transcript of testimony taken in support of the request for a search warrant shall be attached to the search warrant filed with the court.
3. Procedures governing application for and issuance of search warrants consistent with this section may be established by rule of the supreme court.
4. A no-knock search warrant shall be issued only if the affidavit for such warrant:
   1. Complies with the provisions of subsections (1), (2), and (3) of this section;
   2. Specifically requests the issuance of a no-knock search warrant; and
   3. Has been reviewed and approved for legal sufficiency and signed by a district attorney pursuant to section 20-1-106.1 (1)(b), C.R.S. Such review and approval may take place as allowed by statute or court rule or by means of facsimile transmission, telephonic transmission, or other electronic transfer.

5. If the grounds for the issuance of a no-knock search warrant are established by a confidential informant, the affidavit for such warrant shall contain a statement by the affiant concerning when such grounds became known or were verified by the affiant. The statement shall not identify the confidential informant.
6. For the purposes of this section, unless the context otherwise requires, “no-knock search warrant” means a search warrant served by entry without prior identification.

History. Source: L. 72: R&RE, p. 200, § 1. C.R.S. 1963: § 39-3-303 . L. 2000: (4), (5), and (6) added, p. 650, § 1, effective July 1. L. 2001: (4)(c) amended, p. 1270, § 19, effective June 5.

Analysis

• I. GENERAL CONSIDERATION.
• II. CONTENT AND SUFFICIENCY OF AFFIDAVIT.

Law reviews. For article, “Veracity Challenges in Colorado: A Primer”, see 14 Colo. Law. 227 (1985).

Annotator's note. (1) Since § 16-3-303 is similar to repealed § 39-2-6 , C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.

(2) For further annotations concerning search and seizure, see § 7 of art. II of the Colo. Const., and Crim. P. 41.

Unreasonable searches and seizures forbidden. Section 7 of art. II, Colo. Const., as well as the fourth and fourteenth amendments to the United States constitution, forbids unreasonable searches and seizures and further requires that searches and seizures be made only pursuant to a warrant based upon probable cause and supported by oath or affirmation. People v. Thompson, 185 Colo. 208 , 523 P.2d 128 (1974).

Search authorized only upon showing of probable cause. It is only upon a showing of probable cause that the legal doors are opened to allow the police to gain official entry into an individual's domain of privacy for the purpose of conducting a search or to make an official seizure under the constitution. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).

Probable cause defined. Probable cause exists where the facts and circumstances within the officers' knowledge, and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. In dealing with probable cause, one deals with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971); People v. Thompson, 185 Colo. 208 , 523 P.2d 128 (1974).

Probable cause is an elusive term and is incapable of any precise definition which would permit a mechanical application under all circumstances. Flesher v. People, 174 Colo. 355 , 484 P.2d 113 (1971).

Totality of circumstances test adopted for determining probable cause. People v. Pennebaker, 714 P.2d 904 (Colo. 1986).

Anticipatory warrants are barred by statutory language and identical language in Crim. P. 41 requiring that property to be searched for, seized, or inspected “is located at, in, or upon” premise, person, place, or thing to be searched. People v. Poirez, 904 P.2d 880 (Colo. 1995).

For evidence constituting probable cause, see People v. Lindholm, 197 Colo. 270 , 591 P.2d 1032 (1979).

Mere suspicion does not by itself constitute probable cause. People v. Thompson, 185 Colo. 208 , 523 P.2d 128 (1974).

Mere conclusory belief or suspicion by an affiant officer is not enough upon which to base the issuance of a search warrant. People v. Clavey, 187 Colo. 305 , 530 P.2d 491 (1975).

Determination of probable cause is a judicial function to be performed by the issuing magistrate, which in Colorado may be any judge of the supreme, district, county, superior, or justice of the peace court under Crim. P. 41, and is not a matter to be left to the discretion of a law enforcement officer who is employed to apprehend criminals and to bring before the courts for trial those who would violate the law. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).

The role of the police officer in search warrant practice is limited solely to providing the judge with facts and trustworthy information upon which he, as a neutral and detached judicial officer, may make a proper determination. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).

And mere affirmance of belief or suspicion of an officer is not enough. To hold otherwise would attach controlling significance to the officer's belief rather than to the magistrate's judicial determination. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).

Independent determination of probable cause. The fact that the police did not request a warrant to search additional places likely to contain incriminating evidence is irrelevant to the independent determination of probable cause to search the place specified in the warrant. People v. Chase, 675 P.2d 315 (Colo. 1984).

A court may sever deficient portions of a search warrant without invalidating the entire warrant. When a warrant lists several locations to be searched, a court may suppress evidence recovered at a location for which police lacked probable cause but admit evidence recovered at locations for which probable cause was established. Under this severability doctrine, items that are illegally seized during the execution of a valid search warrant do not affect admissibility of evidence legally obtained while executing the warrant. People v. Eirish, 165 P.3d 848 (Colo. App. 2007).

Applied in People v. Conwell, 649 P.2d 1099 (Colo. 1982).

Affidavit need not be attached to warrant served. There is nothing which requires that a person given a warrant must receive a copy of the underlying affidavit or that a copy thereof must be attached to the copy of the warrant which is served at the time of the search. People v. Papez, 652 P.2d 619 (Colo. App. 1982).

But documents attached to and incorporated in an affidavit by reference need not be sworn to separately and may thus fall within the four corners of the affidavit. People v. Campbell, 678 P.2d 1035 (Colo. App. 1983).

Probable cause must be affirmed in writing. The fourth amendment to the United States constitution requires probable cause supported by oath or affirmation as a condition precedent to the valid issuance of a search warrant. Section 7 of art. II, Colo. Const., is even more restrictive and provides that probable cause must be supported by oath or affirmation reduced to writing. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).

Under both the fourth amendment of the United States constitution and § 7 of art. II, Colo. Const., no search warrants may issue without a showing of probable cause, which, under the Colorado constitution, must be affirmed in writing before a search warrant may issue. Flesher v. People, 174 Colo. 355 , 484 P.2d 113 (1971).

A search warrant may properly issue only upon written affidavit establishing probable cause for the belief that the items sought are or will be located on the premises to be searched at the time at which the warrant is procured, or within a reasonable time thereafter. People v. Erthal, 38 Colo. App. 245, 556 P.2d 1228 (1976), aff'd, 194 Colo. 147 , 570 P.2d 534 (1977).

While an officer's “training and experience” may be considered in determining probable cause, such training and experience cannot substitute for an evidentiary nexus, prior to the search, between the place to be searched and any criminal activity. People v. Eirish, 165 P.3d 848 (Colo. App. 2007).

Probable cause exists when an affidavit for a search warrant alleges sufficient facts to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).

During a controlled drug transaction, probable cause exists to search the location to which the seller went before selling the drugs to the police. People v. Eirish, 165 P.3d 848 (Colo. App. 2007).

Judge must look within the four corners of the affidavit to determine whether there are grounds for the issuance of a search warrant in determining whether the affidavit is sufficient. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971); People v. Woods, 175 Colo. 34 , 485 P.2d 491 (1971); People v. Lindholm, 197 Colo. 270 , 591 P.2d 1032 (1979); People v. Atley, 727 P.2d 376 (Colo. 1986).

In determining whether an affidavit is sufficient to support the issuance of a search warrant, the magistrate must look only within the four corners of the affidavit, and verbal communications to the magistrate of additional supporting information cannot correct an affidavit which is basically deficient in its statement of the underlying facts and the circumstances relied upon. People v. Padilla, 182 Colo. 101 , 511 P.2d 480 (1973).

The court is restricted to the information contained within the four corners of the affidavit. Thus, it cannot bolster the insufficient affidavit with additional information not conveyed to the magistrate in the application for the warrant. People v. Miller, 75 P.3d 1108 (Colo. 2003).

Existence of information outside affidavit is immaterial. The fact that the police might have had additional information which could have provided a basis for the issuance of the warrant is of no consequence. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).

Verbal communication of facts, as contrasted with written communication, will not suffice to establish probable cause. People v. Padilla, 182 Colo. 101 , 511 P.2d 480 (1973).

Nor will the affiant's conclusory declaration that he has probable cause add strength to the showing made. People v. Padilla, 182 Colo. 101 , 511 P.2d 480 (1973).

Technical requirements and elaborate specificity are not required in the drafting of affidavits for search warrants. People v. Padilla, 182 Colo. 101 , 511 P.2d 480 (1973).

Affidavit interpreted with common sense. In interpreting an affidavit for a search warrant and the execution of the warrant, a common sense interpretation must be applied. People v. Del Alamo, 624 P.2d 1304 (Colo. 1981).

Task of magistrate is to make practical, common-sense decision as to whether, given all circumstances stated in affidavit, there is fair probability that contraband or evidence of a crime will be found in a particular place. People v. Pennebaker, 714 P.2d 904 (Colo. 1986); People v. Atley, 727 P.2d 376 (Colo. 1986).

Affidavit must supply underlying fact. Before the issuing magistrate can properly perform his official function he must be apprised of the underlying facts and circumstances which show that there is probable cause to believe that proper grounds for the issuance of the warrant exist. If a search warrant is to be sustained, the Colorado supreme court must find that the affidavit complied with the standards set forth in Aguilar v. Texas (378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1966)) and in Spinelli v. United States (393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969)). People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971); People v. Lindholm, 197 Colo. 270 , 591 P.2d 1032 (1979); People v. Dailey, 639 P.2d 1068 (Colo. 1982).

The United States supreme court, in attempting to define the area of probable cause with certainty and to provide guidelines for proper investigation, has provided a two-prong test. First, the affidavit upon which the warrant is based must set forth the underlying circumstances necessary to enable an independent judicial determination to be made, and, second, the information upon which the conclusion is based must come from a reliable or credible source. Flesher v. People, 174 Colo. 355 , 484 P.2d 113 (1971).

The affidavit for search warrant must meet the two-pronged test requiring that the officer establish: (1) The underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and (2) some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable. People v. Glaubman, 175 Colo. 41 , 485 P.2d 711 (1971).

The test for determining probable cause for issuance of a search warrant based on information provided by an unidentified informant is that the affidavit in support of the warrant must allege facts from which the issuing magistrate can independently determine whether there is probable cause to believe that illegal activity is being carried on in the place to be searched. People v. Ward, 181 Colo. 246 , 508 P.2d 1257 (1973).

An affidavit based on information provided in large part by an unidentified informant must, in order to establish probable cause for issuance of a search warrant: (1) Allege facts from which the issuing magistrate could independently determine whether there were reasonable grounds to believe that illegal activity was being carried on in the place to be searched; and (2) set forth sufficient facts to allow the magistrate to determine independently if the informer is credible or the information reliable. People v. Harris, 182 Colo. 75 , 510 P.2d 1374 (1973); People v. Baird, 182 Colo. 284 , 512 P.2d 629 (1973); People v. Masson, 185 Colo. 65 , 521 P.2d 1246 (1974).

In order to support the issuance of a search warrant the issuing magistrate must be apprised of sufficient underlying facts and circumstances, reduced to writing, under oath, from which he may reasonably conclude that probable cause exists for the issuance of the warrant. People v. Padilla, 182 Colo. 101 , 511 P.2d 480 (1973).

In testing the sufficiency of affidavits in support of search warrants, Colorado has followed the mandate of the United States supreme court in applying the two-pronged Aguilar-Spinelli test. An affidavit which relies on information supplied by a confidential informant must allege sufficient underlying facts from which the issuing magistrate can make an independent determination that illegal activity is being carried on in the place to be searched. In addition, the affidavit must set forth sufficient information so that the magistrate can determine independently that the informant is credible or that his information is reliable. People v. Arnold, 186 Colo. 372 , 527 P.2d 806 (1974).

The two-pronged test which emphasizes the basis upon which an informer's tip will provide a foundation for the issuance of a search warrant requires that the affidavit set forth: (1) The underlying circumstances necessary to enable the magistrate independently to judge the validity of the informant's conclusion, and (2) support of the affiant's claim that the informant was credible or his information reliable. People v. McGill, 187 Colo. 65 , 528 P.2d 386 (1974).

An issuing magistrate must be properly apprised of the underlying facts and circumstances which show that there is probable cause to believe that grounds for the issuance of a search warrant exist. People v. Clavey, 187 Colo. 305 , 530 P.2d 491 (1975).

Affidavit contained sufficient underlying facts. Where the affiant states that the informant personally observed marijuana in the premises to be searched, this statement is sufficient to permit the issuing magistrate to determine independently that there were reasonable grounds to believe that illegal activity was being carried on in the place to be searched. People v. Harris, 182 Colo. 75 , 510 P.2d 1374 (1973).

Where it appears that the informant personally saw an illegal narcotic on the premises, that he was given two marijuana cigarettes by someone on the premises on September 20, 1972, and that he observed other illegal narcotics at the time he left the premises on September 20, 1972, these facts are sufficient to allow a magistrate to determine whether there was probable cause to determine presence of illegal activity. People v. Baird, 182 Colo. 284 , 512 P.2d 629 (1973).

Where informant personally observed that apartment was used solely to grow mushrooms and observations were consistent with cultivation of psilocybin mushrooms, the totality of the affidavit established probable cause and supported the issuance of a search warrant. People v. Atley, 727 P.2d 376 (Colo. 1986).

Information contained in the affidavit established probable cause to search premises, when analyzed under the totality of the circumstances test, where corroborating circumstances of the same license plate on the vehicle and the presence of a pregnant woman and small child accompanying the defendant in the car at the time of the arrest, and a high volume of short term visitors at the trailer shortly before the defendant's arrest for selling cocaine to an undercover officer established a reasonable probability that contraband or evidence of a crime would be found at the defendant's trailer. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).

Information regarding results of a previous search which were suppressed in a previous action must be stricken from the affidavit supporting a search warrant. But the court will not strike down the warrant if there are sufficient facts remaining in the affidavit to support the issuance of the warrant. People v. Wilson, 819 P.2d 510 (Colo. App. 1991).

Information regarding defendant's description that was omitted from an affidavit for a search warrant did not render the affidavit substantially misleading to the judge who issued the warrant. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).

Regardless of whether facts were omitted with a reckless disregard for the truth in the affidavit submitted in support of a search warrant, the information was not material such that its omission rendered the affidavit substantially misleading as to the existence of probable cause. People v. Kerst, 181 P.3d 1167 (Colo. 2008).

Failure to include a complete list of the indicators of marijuana cultivation in the affidavit did not render the affidavit misleading where the affidavit listed the only two indicators of marijuana cultivation which were present in the office which was to be searched. People v. Wilson, 819 P.2d 510 (Colo. App. 1991).

Identification of wrong street not dispositive of affidavit's efficacy. Fact that the affidavit identified the wrong street, which was less than one block away from the actual location of the truck to be searched, was not dispositive of an affidavit's efficacy. People v. Del Alamo, 624 P.2d 1304 (Colo. 1981).

Information in sheriff deputy's affidavit, when considered separately and as a whole, failed to establish a substantial basis for the magistrate's determination that probable cause existed to issue the warrant. People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev'd on other grounds, 2012 CO 66, 289 P.3d 24.

Deputy who conducted the search and who was the same officer who prepared the deficient affidavit either knew or should have known that the warrant he obtained based on his own affidavit was lacking in probable cause, and thus it was objectively unreasonable for him to rely on it. People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev'd on other grounds, 2012 CO 66, 289 P.3d 24.

Trial court erred when it concluded that (1) probable cause existed to issue the search warrant, and, (2) even absent probable cause, the officers acted in good faith in executing the warrant. People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev'd on other grounds, 2012 CO 66, 289 P.3d 24.

Affidavit must support finding of probable cause as to each place to be searched. While more than one search warrant may be issued on the basis of a single affidavit, the affidavit must support a finding of probable cause as to each separate warrant or each separate place to be searched. People v. Arnold, 181 Colo. 432 , 509 P.2d 1248 (1973).

Fact that the places to be searched were apartments rather than single-family residences does not alter the rule that an affidavit must support a finding of probable cause as to each separate place to be searched. People v. Arnold, 181 Colo. 432 , 509 P.2d 1248 (1973).

Personal observation by an informant of the objects of the search within the place to be searched satisfied the first prong of the Aguilar-Spinelli test. People v. Ward, 181 Colo. 246 , 508 P.2d 1257 (1973); People v. Harris, 182 Colo. 75 , 510 P.2d 1374 (1973).

The direct observations of the informant are sufficient to satisfy the first prong of the Aguilar-Spinelli test. People v. Arnold, 186 Colo. 372 , 527 P.2d 806 (1974).

Requirement that the affidavit for a search warrant set forth underlying circumstances so as to enable a magistrate to independently judge the validity of the informant's conclusion that criminal activity exists can be satisfied by the assertion of personal knowledge of the informant. People v. Montoya, 189 Colo. 106 , 538 P.2d 1332 (1975).

An informer need not relate to police officers the specific address of the place in which he observed the unlawful activity. It is enough if the informant describes the location and provides the officers sufficient information so that they can accurately determine such address. People v. Harris, 182 Colo. 75 , 510 P.2d 1374 (1973).

Details from informant must support independent court determination. If officer seeking the warrant is relying upon a tip by another person, then the information contained in the affidavit upon which the informant based his conclusion must be of sufficient detail as to permit the making of an independent determination by the court of the credibility of the informant and his information. Flesher v. People, 174 Colo. 355 , 484 P.2d 113 (1971).

Statement that informant is reliable is insufficient. An affidavit does not establish the credibility of an informant by merely stating that the informant is known to be reliable. Nor does an affidavit establish the credibility of an informant by merely stating that the informant is known to be reliable based on past information supplied by the informer which has proved to be accurate. Although the words “past information” might conjure up in the mind of the officer some knowledge of the underlying circumstances from which the officer might conclude that the informant was reliable, the judge has not been apprised of such facts, and consequently, he cannot make a disinterested determination based upon such facts. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).

As a basis for issuing a search warrant, the mere assertion of reliability is not sufficient to establish an informant's credibility. There must be a more comprehensive statement of underlying facts upon which the magistrate can make an independent determination that the informant is credible or his information reliable. People v. Aragon, 187 Colo. 206 , 529 P.2d 644 (1974).

An affidavit for a search warrant seeking to show an informant's credibility is not satisfactory by merely stating that the informant is reliable, or that he has supplied information in the past which proved to be accurate. Nor are irrelevant, albeit correct, details sufficient. People v. Montoya, 189 Colo. 106 , 538 P.2d 1332 (1975).

Where the only recital in the affidavit for a search warrant bearing upon the informant's credibility or the reliability of the information supplied was “That the confidential informant has related information to the affiant regarding several previous narcotics and dangerous drugs sellers and users which has been confirmed and proven reliable by the affiant”, this was totally conclusory and devoid of details sufficient to support an independent finding of credibility or reliability. People v. Bowen, 189 Colo. 126 , 538 P.2d 1336 (1975).

An affidavit must contain sufficient facts to allow the magistrate to determine how the informant obtained the information upon which the affiant relies. Bare assertions of knowledge are insufficient to establish the informer's knowledge. Statements as to the informer's reliability must not be conclusory, but must contain information upon which the magistrate could independently determine the informant's veracity and reliability. People v. Pacheco, 175 P.3d 91 (Colo. 2006).

There are at least three ways in which an affidavit might allow a magistrate to determine the reliability of an informant's information so as to issue a search warrant: (1) By stating that the informant had previously given reliable information; (2) by presenting the information in detail which clearly manifests its reliability; and (3) by presenting facts which corroborate the informant's information. People v. Masson, 185 Colo. 65 , 521 P.2d 1246 (1974).

The reliability of the informant is established if the information resulted in arrests. The issue involved is the reliability of the informant; this reliability is satisfactorily established if the previous information led to arrests. People v. Arnold, 186 Colo. 372 , 527 P.2d 806 (1974).

And not in convictions. To impose the more stringent requirement that the information led to convictions would impose an undue restriction on law enforcement officers. People v. Arnold, 186 Colo. 372 , 527 P.2d 806 (1974).

Or it is asserted informant previously furnished information of specified criminal activity. Requirement that the affiant-police officer support his request for a search warrant with information showing that the informant was credible, or his information was reliable, may be satisfied by an assertion that the informant has previously furnished solid material information of specified criminal activity. People v. Montoya, 189 Colo. 106 , 538 P.2d 1332 (1975).

Statement sufficient to establish informant's reliability. Where search warrant affidavit indicated that previous information supplied by the informant had led to narcotics arrests and seizures, such statement was sufficient to establish the reliability of the informant. People v. Ward, 181 Colo. 246 , 508 P.2d 1257 (1973).

Where the affidavit related that the informant had, within the past 14 months, supplied information which led to the arrest and conviction of an individual for possession of a narcotic drug, and that the informant had, within the past 24 hours, supplied information which resulted in arrests and the seizure of a quantity of marijuana, this information was sufficient to permit the issuing magistrate to find that the informant was reliable. People v. Harris, 182 Colo. 75 , 510 P.2d 1374 (1973).

Affidavit set forth sufficient facts to permit a determination that the informant was reliable and the information provided therewith was sufficient to justify issuance of a search warrant. People v. Treadway, 182 Colo. 239 , 512 P.2d 275 (1973).

Where the affidavit alleged that the informant had furnished information which “has been the cause of approximately 20 narcotic and dangerous drug arrests in the past year”, the magistrate could independently conclude that the police would not repeatedly accept information from one who has not proven by experience to be reliable, and hence, the magistrate could determine that the informant was credible. People v. Baird, 182 Colo. 284 , 512 P.2d 629 (1973).

The second prong of the Aguilar-Spinelli test is satisfied by the statement in the affidavit that the information was received from “a previously reliable confidential informant whose information has resulted in narcotics arrest and seizures on at least two past occasions”. People v. Arnold, 186 Colo. 372 , 527 P.2d 806 (1974).

Informant's means of obtaining information need not be recited in the affidavit if there is stated such detail given by the informant as would corroborate his assertions of criminal activity. Flesher v. People, 174 Colo. 355 , 484 P.2d 113 (1971).

Citizen-informer rule. Colorado will follow the citizen-informer rule and will recognize that a citizen who is identified by name and address and was a witness to criminal activity cannot be considered on the same basis as the ordinary informant. People v. Glaubman, 175 Colo. 41 , 485 P.2d 711 (1971).

Affidavit need not contain statement of facts showing reliability of citizen-informant. Where the citizen-informant rule applies to information contained in an affidavit for issuance of a search warrant, it is not necessary that the affidavit contain a statement of facts showing the reliability of the citizen-informant, as is the case when the informant is confidential and unidentified. People v. Schamber, 182 Colo. 355 , 513 P.2d 205 (1973).

A police officer's factual statements in an affidavit that are erroneous and false must be stricken and may not be considered in determining whether the affidavit will support the issuance of a search warrant. People v. Malone, 175 Colo. 31 , 485 P.2d 499 (1971).

Deletion of inaccuracies not fatal if sufficient material facts remain. Where the affidavit still contains material facts sufficient as a matter of law to support the issuance of a warrant after deletion of erroneous statements, the supreme court will not strike down a warrant because the affidavit is not completely accurate. People v. Malone, 175 Colo. 31 , 485 P.2d 499 (1971).

The fact that some portions of an affidavit must be stricken because they are erroneous, or that a portion of the evidence relied on for a finding of probable cause is not properly recorded and may not be considered, does not require the issuing magistrate to ignore the other information supplied by the affidavit. People v. Gable, 647 P.2d 246 (Colo. App. 1982).

Likewise, affidavit may be amended by sworn testimony before issuance of warrant. Should the judge to whom application has been made for the issuance of a search warrant determine that the affidavit is insufficient, he can require that sworn testimony be offered to supplement the affidavit or can demand that the affidavit be amended to disclose additional facts. The testimony taken would have to be reduced to writing and signed by the witness or witnesses that offered testimony, under oath, to supplement the affidavit. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).

A search warrant may be based on hearsay, as long as a substantial basis for crediting the hearsay exists. People v. Woods, 175 Colo. 34 , 485 P.2d 491 (1971); People v. Lindholm, 197 Colo. 270 , 591 P.2d 1032 (1979).

Affidavit not insufficient though based on double hearsay. Affidavit in support of search warrant was not insufficient although it was predicated upon double hearsay, where the information is conveyed by one police officer to another police officer. People v. Quintana, 183 Colo. 81 , 514 P.2d 1325 (1973).

Fruits of search supported by defective affidavit are inadmissible. Where the affidavits were fatally defective, the warrants issued thereon were nullities, any search conducted under them was unlawful, and the fruits of such a search are inadmissible in evidence. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).

Affidavit did not recite sufficient facts which could enable the court to make an independent determination that there is probable cause to believe that the defendants were keeping marijuana in their safe deposit box, where the first six paragraphs of the affidavit merely provide the information that the two college students, one of whom reportedly had engaged at some previous time in selling marijuana, had rented a safe deposit box, and paragraph seven states that the treasury department had received information that one of the defendants kept marijuana in a safe deposit box in a local bank, since there is no basis to test the credibility or reliability of the actual source of the incriminating information. Flesher v. People, 174 Colo. 355 , 484 P.2d 113 (1971).

The affidavit is not sufficient if no explanation appears as to how the county sheriff's office obtained the information, nor did the affidavit set forth who made the observation, or whether the information was obtained from an eyewitness or from a person who received the information indirectly. People v. Myers, 175 Colo. 109 , 485 P.2d 877 (1971).

Statement in affidavit for issuance of search warrant that informant was present in two apartments located in the same building and observed marijuana did not have “plain meaning” to indicate that informant had seen marijuana in both apartments and would not support the issuance of search warrants for both apartments. People v. Ward, 181 Colo. 246 , 508 P.2d 1257 (1973).

Although the affidavit related that the informant did observe marijuana and “speed” somewhere in the building at 2018 Ogden Street, there is nothing in the affidavit to indicate specifically where in that multiple-occupancy structure the drugs were located. This being so, the affidavit failed to relate sufficient facts from which the issuing magistrate could find probable cause to believe that the marijuana and “speed” were located within the places to be searched, i.e., within each of the defendants' apartments. People v. Arnold, 181 Colo. 432 , 509 P.2d 1248 (1973).

Affidavit was not sufficient to establish probable cause for issuance of warrant authorizing search of automobile where owner of automobile was suspected of selling marijuana. People v. Padilla, 182 Colo. 101 , 511 P.2d 480 (1973).

Because of the long lapse of time, the information in the affidavit pertaining to the probable location of the sought items was insufficient for the issuance of a search warrant. People v. Erthal, 38 Colo. App. 245, 556 P.2d 1228 (1976), aff'd, 194 Colo. 147 , 570 P.2d 534 (1977).

Good faith basis required to challenge warrant affidavits. As conditions to a veracity hearing testing the truth of averments contained in a warrant affidavit, a motion to suppress must be supported by one or more affidavits reflecting a good faith basis for the challenge and contain a specification of the precise statements challenged. People v. Dailey, 639 P.2d 1068 (Colo. 1982).

Affidavit containing stale information. Where the only information upon which the search warrant issued had been obtained nearly two months prior to issuance of the warrant and the staleness of the information in the affidavit was not remedied by later information, the warrant was invalid and not supported by sufficient affidavit. People v. Erthal, 194 Colo. 147 , 570 P.2d 534 (1977).

The warrant was not based on probable cause, and the police could not have reasonably relied on it, because the information regarding drug manufacturing at defendant's home was stale when the police applied for the warrant. People v. Miller, 75 P.3d 1108 (Colo. 2003).

Although crimes were perpetrated eight months prior to application for search warrant, because officers proceeded with all due diligence upon discovery of information upon which to base request for a search warrant, the affidavit was sufficient to establish probable cause. People v. Cullen, 695 P.2d 750 (Colo. App. 1984).

Probable cause is typically lacking for issuance of a warrant where no relatively current information of criminal activity or contraband at the location to be searched is available. People v. Miller, 75 P.3d 1108 (Colo. 2003).

Warrant issued day after probable cause established is not invalid. A warrant issued one day after evidence establishing probable cause is obtained is not invalid as being predicated on “stale information”. People v. Thrower, 670 P.2d 1251 (Colo. App. 1983).

Trial court erred in suppressing evidence because search warrant lacked probable cause. Magistrate's probable cause determination was entitled to great deference; the court failed to limit its review to information contained in the four corners of the affidavit; and the court did not give the affidavit the presumption of validity. People v. Cox, 2018 CO 88, 429 P.3d 75.