Fighting a Colorado Criminal Arrest Warrant Based on a Faulty Veracity Affidavit

Under the Fourth Amendment to the U.S. Constitution, a warrant cannot be issued without probable cause. Probable cause means reasonable grounds for a search and seizure or pressing charges. An affidavit of probable cause is a sworn statement, usually made by law enforcement, which provides factual justification for why a judge should issue an arrest warrant or a search warrant. It may also provide factual confirmation that a person in custody was arrested based on solid evidence during a crime in progress, and that the person being held is likely to have committed the crime. If the judge is convinced by the affidavits that there is probable cause to believe a crime has been committed and that the defendant committed it, an arrest warrant or search warrant is issued.

What Are the Criteria for Having a False Statement Stricken?

Fighting a Colorado Criminal Arrest Warrant Based on a Faulty Veracity AffidavitIn a veracity hearing, a defendant may challenge and seek to have stricken a false statement contained in a warrant. To challenge and have stricken a false statement contained in a warrant in a veracity proceeding, the defendant must demonstrate the following by a preponderance of the evidence (greater than 50% chance):

  • A good faith basis in fact for the challenge exists, based on affidavits submitted in support of the defendant’s motion to suppress.
  • The precise statements being challenged are set forth with specificity.
  • It is established at the veracity hearing that the affidavit contains false statements
  • It is established that the officer or affiant made the statements as intentional falsehood or in reckless disregard for the truth.

The court will only conduct a veracity hearing if the statements that are alleged as false are necessary to the finding of probable cause. For suppression to occur, the defendant must prove reckless disregard or perjury on the part of the person who made the affidavit. He or she must also show that the remaining content of the affidavit, after the false content is stricken, is insufficient to show probable cause.

What Is the Veracity Process in Colorado?

First, the court must conclude, based on a good faith showing, that:

  • False statements are contained in the affidavit; and
  • These false statements are essential to any finding of probable cause against the defendant.

Without the false statements, there is no probable cause, and the court must conclude that the statements must be stricken from the affidavit. Without the stricken statements, if it is found that there is no probable cause for the defendant’s arrest, then no adequate factual basis for the arrest exists, and there is no probable cause for the charges. In that case, the charges must be dismissed.

Why Is It Essential to Seek the Services of an Experienced Criminal Defense Attorney?

If you have been charged with a crime based on evidence that may have been gathered in violation of the Fourth Amendment, it is crucial to speak with an experienced Colorado Springs criminal defense attorney as soon as possible. American citizens are protected from unreasonable search and seizure under the Constitution. If you are facing criminal charges, the consequences of conviction could be severe. You need the best criminal defense possible.

At The Bussey Law Firm, P.C., we have the knowledge, skills, and resources to present a strong defense and to protect your constitutional rights. Attorney Timothy Bussey is a former district attorney for multiple counties in Colorado. He understands the tactics of the other side and knows how to counter them. Violation of your rights under the Fourth Amendment is a serious matter. Call us today at (719) 475-2555 to schedule a free initial consultation and find out how we can help.