Johnson v. Staab.
2025 COA 45. No. 24CA0683. Damages—Civil Action for Deprivation of Rights—Colorado Constitution Article II, § 7—Searches and Seizures—Search Warrant Affidavits—False Statements and Material Omissions.
May 1, 2025
A truck with numerous items of personal property, including an iPhone, was stolen, and the owner reported the theft to the police. The owner used the Find My iPhone app (the app) on a separate device to track the stolen phone, which ultimately led police to Johnson’s house. The next day, Sergeant Buschy assigned the case to Detective Staab (defendants). Staab later prepared an affidavit in support of a warrant to search Johnson’s house, which the deputy district attorney and her supervisor reviewed and approved, with some changes. Buschy also reviewed and approved the affidavit. A judge then found probable cause and issued the warrant. Officers executed the search warrant with the SWAT team, pointed guns at Johnson, ordered her to leave the house, placed her in a police car, and drove her a short distance away. Shortly thereafter, the search ended without either the truck or the iPhone being found at the house, but with damage to Johnson’s house and property. Johnson sued Buschy and Staab under CRS § 13-21-131(1), alleging that her civil rights were violated because the affidavit supporting the search warrant for her house contained “knowingly or recklessly false statements of material fact” and it “intentionally or with reckless disregard, omitted material, adverse facts,” and was thus unsupported by probable cause. As relevant here, Buschy and Staab objected to Jury Instruction 16 concerning deprivation of rights under article II, § 7 of the Colorado Constitution, arguing that it was an incorrect statement of law because it did not include that “the defendants intentionally or recklessly included false statements or omissions.” The trial court declined to modify the instruction. The jury found Staab and Buschy liable and awarded Johnson $1.25 million in noneconomic damages, $10,000 in economic damages, and $1.25 million in punitive damages per officer.
On appeal, defendants contended that the trial court reversibly erred by incorrectly instructing the jury in Jury Instruction 16. CRS § 13-21-131(1) provides a private right of action against peace officers who deprive any individual rights under article II, § 7 of the Colorado Constitution, which prohibits the issuance of a search warrant except upon probable cause supported by oath or affirmation particularly describing the place to be searched and the things to be seized. The issue here was whether including any material false statements in a warrant affidavit, or omitting any material facts from a warrant affidavit, violates article II, § 7, regardless of whether the inclusion or omission results from negligence or simple mistake. The court of appeals concluded that proof of a constitutional right deprivation in this context requires a showing that there were misstatements in or omissions from the affidavit that were intentional or made with reckless disregard for the truth, without which the affidavit would not establish probable cause. Here, the instruction told the jury: “To determine whether any misstatements or omissions were material, you must subtract the misstatements from the warrant affidavit, and add the facts that were omitted, and then determine whether the warrant affidavit, with these corrections, would establish probable cause.” However, the jury was not instructed to remove only intentional or reckless misstatements or add back only those facts that were intentionally or recklessly omitted. Therefore, the jury instruction misstated the law because it did not direct the jury to only excise the false statements from, or correct the omissions in, the affidavit that the jury found were made intentionally or with a reckless disregard for the truth. Further, it is unclear whether the jury thought any of the misstatements or omissions were intentional or reckless, or simply negligent or mistaken, so the error was not harmless.
The judgment was reversed and the case was remanded for a new trial.