v. People , 2018 CO 78M ( 2018 )

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ADVANCE SHEET HEADNOTE
September 24, 2018
AS MODIFIED OCTOBER 15, 2018
2018 CO 78M
No. 15SC292, Casillas v. People—Evidence—Searches and Seizures—Exclusionary
Rule.
In this criminal appeal, the supreme court reviews whether the exclusionary
rule requires the suppression of evidence derived from a juvenile probation officer’s
unauthorized collection of DNA from a juvenile in violation of section 19.2.925.6, C.R.S.
(2018) and the Fourth Amendment. The supreme court holds that juvenile probation
officers are properly considered adjuncts to law enforcement; the officer’s collection of
the juvenile’s DNA for uploading to CODIS served an inherent law enforcement
function; nothing in the record suggests the officer conducted the buccal swab search in
reliance on misinformation provided by a third party; and the unlawful search here was
not based on a reasonable misinterpretation of the law. Because suppression would
have a deterrent effect by removing incentives to collect DNA from ineligible juvenile
offenders, the supreme court holds that suppression is warranted. Accordingly, the
court reverses the judgment of the court of appeals and remands the case with
instructions to vacate petitioner’s conviction.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2018 CO 78M
Supreme Court Case No. 15SC292
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 12CA703
Petitioner:
Ismael Casillas,
v.
Respondent:
The People of the State of Colorado.
Judgment Reversed.
en banc
September 24, 2018
Opinion modified, and as modified, petition for rehearing DENIED. EN BANC.
October 15, 2018
Attorneys for Petitioner:
Megan Ring, Public Defender
M. Shelby Deeney, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Cynthia H. Coffman, Attorney General
L. Andrew Cooper, Deputy Attorney General
Denver, Colorado
JUSTICE MÁRQUEZ delivered the Opinion of the Court.
JUSTICE SAMOUR dissents.
JUSTICE GABRIEL does not participate.
2
¶1 Colorado law requires certain juvenile offenders to submit to collection of their
DNA for testing. § 19-2-925.6(1), C.R.S. (2018). However, this requirement “shall not
apply to an offender granted a deferred adjudication, unless otherwise required to submit
to a sample pursuant to [section 19-2-925.6] or unless the deferred adjudication is revoked
and a sentence is imposed.” § 19-2-925.6(1)(e).
¶2 In 2008, a juvenile probation officer swabbed the cheek of Petitioner Ismael
Casillas, then a juvenile, to collect a DNA sample. The probation officer’s collection of
Casillas’s DNA violated section 19-2-925.6(1) because Casillas had been granted a one-
year deferred adjudication and he was not otherwise required under the statute to submit
a DNA sample. His genetic markers were nevertheless uploaded to the federal
Combined DNA Index System (CODIS).
¶3 Several months after Casillas successfully completed the terms of his deferred
adjudication and his juvenile case had been dismissed, law enforcement investigators
matched DNA evidence recovered from a stolen vehicle with the sample in the CODIS
database taken from Casillas during his juvenile deferred adjudication. As a result of the
DNA match, Casillas was identified and charged in connection with a carjacking.
¶4 Before trial, Casillas moved to suppress all evidence derived from the DNA match,
arguing that evidence derived from the unauthorized cheek swab should be excluded as
the fruits of an unlawful search in violation of his Fourth Amendment rights. The trial
court denied the motion, and a jury later convicted Casillas of criminal mischief.
3
¶5 Casillas challenged the trial court’s suppression ruling on appeal. In a published,
split ruling, the court of appeals affirmed Casillas’s conviction. People v. Casillas, 2015
COA 15, __ P.3d __. The division unanimously held that the cheek swab violated both
the juvenile DNA collection statute and the Fourth Amendment. See id. at ¶¶ 3, 18, 22, 41.
The majority held that suppression was nevertheless unwarranted because the officer
who performed the cheek swab was “performing nothing more than a supervisory
function under the direction of the juvenile court,” and therefore, suppression “would
have no deterrent value.” Id. at ¶ 38. Judge Webb dissented, concluding that Casillas’s
motion to suppress should have been granted. Id. at ¶¶ 42, 54 (Webb, J., dissenting).
¶6 We granted Casillas’s petition for a writ of certiorari to review whether the
exclusionary rule requires suppression of the evidence derived from the juvenile
probation officer’s unauthorized collection of Casillas’s DNA in this case.1 We conclude
that it does. Accordingly, we reverse and remand with instructions to vacate Casillas’s
conviction.
1 We granted certiorari to review the following issues:
1. Whether the court of appeals erred when it concluded that an
unreasonable search by a juvenile probation officer does not require the
application of the exclusionary rule.
2. Whether taking evidence in violation of the applicable statute requires
suppression of that evidence.
4
I. Facts and Procedural History
¶7 In June 2008, Petitioner Ismael Casillas, then a juvenile, entered into a stipulated,
one-year deferred adjudication for drug possession. The stipulation required him to be
under the supervision of the juvenile probation department. Soon thereafter, a juvenile
probation officer subjected Casillas to a buccal swab (commonly referred to as a “cheek
swab”)2 and entered his genetic markers into CODIS.3 Why the officer took the swab
remains unknown; nothing in the record sheds light on his reasons for doing so. Casillas
eventually successfully completed the terms of his deferred adjudication, and his case
was dismissed with prejudice in May 2009.
¶8 Several months later, three young men ambushed an older man and stole his car.
Within hours, the victim’s car was found wrecked. A crime scene investigator discovered
blood stains on the inside of the front passenger door, and the police submitted samples
of this blood evidence to the Colorado Bureau of Investigation (CBI) for testing against
2A buccal swab is a method of gathering DNA that typically involves rubbing a cotton
swab inside a subject’s mouth against the interior of his or her cheek.
3The federal Combined DNA Index System—CODIS, for short—is a set of databases
available to law enforcement agencies across the country for law enforcement purposes.
See Frequently Asked Questions on CODIS and NDIS, Fed. Bureau of Investigation,
https://perma.cc/C97H-Q58M. Using CODIS, law enforcement officers can compare
crime scene evidence to a database of DNA profiles obtained from convicted offenders.
Id. CODIS can also be used to link DNA evidence obtained from different crime scenes,
thereby identifying serial criminals. Id.
5
DNA profiles in CODIS. This testing revealed that the blood evidence found in the car
matched the profile for Casillas.
¶9 In the process of comparing the blood evidence against profiles in CODIS, a
CODIS administrator for the CBI learned that Casillas had not been eligible for DNA
testing. The CODIS administrator nevertheless informed the detective who was
investigating the carjacking of the match, noting that Casillas’s DNA had been collected
for previous offenses that did not qualify for CODIS entry. Based on the CODIS match,
the detective proceeded to include Casillas in a photo array presented to the carjacking
victim. The victim identified Casillas in the photo array as one of his assailants. As a
result, Casillas was arrested and charged with aggravated robbery and menacing.
¶10 Before trial, Casillas moved to suppress the DNA and photo array identification,
arguing that the collection of his DNA and uploading of his genetic markers to CODIS
was statutorily unauthorized and violated his Fourth Amendment rights. At the
suppression hearing, Casillas presented email correspondence showing that, when the
blood evidence from the stolen car was matched with his DNA profile in CODIS, the
CBI’s CODIS administrator realized that Casillas’s DNA profile had been improperly
uploaded into the system. The CODIS administrator contacted a probation analyst with
the State Court Administrator’s Office to confirm, writing: “It looks like I have another
CODIS hit to an offender with a deferred sentence . . . . It looks like he was not eligible,
but I need you to confirm that.” The probation analyst responded, confirming that
Casillas was a juvenile “under a deferred adjudication for . . . a felony drug charge,” that
6
he “successfully completed his deferred adjudication,” and that Casillas therefore was
“not eligible for DNA testing on this case.” Casillas also presented records reflecting that
the detective who included Casillas in the photo array based on the DNA match knew
that the match was based on a “non-qualifying offense submission.” Records admitted
at the suppression hearing further showed that, the same day the CODIS administrator
disclosed the match to the detective, Casillas’s DNA profile was expunged from the
CODIS database, apparently at the request of the probation analyst from the State Court
Administrator’s Office. The juvenile probation officer who took Casillas’s cheek swab
did not testify.
¶11 Casillas argued that the buccal swab conducted by the juvenile probation officer
was an unlawful search under the Fourth Amendment, and that both the DNA
identification and photo-array identification should be excluded as fruits of an unlawful
search and seizure of his genetic markers. The People conceded that the collection of
Casillas’s DNA was not authorized under section 19-2-925.6, but argued that suppression
was unwarranted as a remedy for the statutory violation. In so doing, the People did not
contend that the probation officer took the cheek swab as the result of a good faith
mistake of fact or law. See § 16-3-308, C.R.S. (2018) (permitting proponent of evidence to
argue that evidence seized by a peace officer was the result of a “good faith mistake” or
“technical violation” and thus should not be suppressed). Instead, the People argued that
the buccal swab was justified under the “special needs” exception to the warrant
7
requirement under the Fourth Amendment, citing People v. Shreck, 107 P.3d 1048, 1052
(Colo. App. 2004).
¶12 The trial court denied Casillas’s motion. In its written order, the court noted that
it was not given a copy of the order placing Casillas on a deferred adjudication, and
inaccurately described Casillas as having been “placed on probation.” From this
mistaken factual premise, the court reasoned that the cheek swab did not violate the
juvenile DNA collection statute because section 19-2-925.6(1)(e)(III) indicates that a
sample may be taken from a juvenile felony offender who is “sentenced to probation.”
The trial court further reasoned that, even if the search was not statutorily authorized,
suppression was unwarranted because there was no evidence of willful or recurring
violation of the statute. The court also agreed with the People that the search was justified
under the special needs exception to the warrant requirement, and therefore did not
violate the Fourth Amendment. At trial, a jury ultimately convicted Casillas of criminal
mischief (a lesser non-included offense) but acquitted him of all other counts. The court
sentenced Casillas to six years of probation.
¶13 In a divided opinion, the court of appeals affirmed the trial court’s suppression
ruling, but on different grounds. People v. Casillas, 2015 COA 15, ¶ 41, __ P.3d __. The
division unanimously held that Casillas’s cheek swab violated the juvenile DNA
collection statute because: (1) it was undisputed that the juvenile court had granted
Casillas a deferred adjudication; (2) he was not required to submit a DNA sample under
another section of the juvenile DNA collection statute; and (3) he had successfully
8
completed his deferred adjudication. See id. at ¶¶ 3, 18, 41. It also unanimously held
that the cheek swab was an unreasonable search under the Fourth Amendment. See id.
at ¶¶ 22, 41. The division majority held that suppression was nevertheless unwarranted
because the officer who performed the cheek swab was “performing nothing more than
a supervisory function under the direction of the juvenile court,” and therefore,
suppression “would have no deterrent value.” Id. at ¶¶ 38, 41. Accordingly, the division
majority affirmed Casillas’s conviction. Id. at ¶¶ 3, 41.
¶14 Judge Webb dissented, disagreeing with the majority’s assertion that a juvenile
probation officer performs a merely supervisory function for the juvenile court and
instead reasoning that juvenile probation officers have broad law enforcement powers.
Id. at ¶¶ 43–44 (Webb, J., dissenting). He argued that juvenile probation officers have a
stake in law enforcement activities because they provide information for arrest warrants,
execute arrest warrants, take suspects into temporary custody, and otherwise enforce the
laws of the state. Id. at ¶ 47. He also noted that the prosecution could have, but did not,
invoke the statutory “good faith mistake” exception under section 16-3-308, and thus, any
lack of explanation in the record regarding the probation officer’s reason for taking the
cheek swab weighs in favor of—not against—suppression. Id. at ¶¶ 51–52. Because
suppression would deter future violations, Judge Webb concluded, Casillas’s motion to
suppress should have been granted. Id. at ¶¶ 50–54.
¶15 We granted Casillas’s petition for a writ of certiorari to review the court of appeals’
opinion. The People did not file a cross-petition to challenge the court of appeals’
9
conclusions that Casillas’s cheek swab violated the juvenile DNA collection statute and
the Fourth Amendment.
II. Analysis
¶16 The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. “[U]sing a buccal swab on the inner tissues of a person’s cheek in order
to obtain DNA samples is a search” for purposes of the Fourth Amendment. Maryland
v. King, 569 U.S. 435, 446 (2013).
¶17 Here, the court of appeals unanimously concluded that Casillas’s cheek swab
violated both the juvenile DNA collection statute and the Fourth Amendment. The
People do not challenge these conclusions. Thus, the sole question is whether the
evidence derived from the unauthorized cheek swab should be suppressed.
A. Standard of Review
¶18 When reviewing a lower court’s ruling on a suppression motion, this court is
presented with mixed issues of law and fact. People v. Martin, 222 P.3d 331, 334 (Colo.
2010). Where sufficient evidence exists in the record to support a trial court’s findings of
fact, we defer to those findings. People v. Kutlak, 2016 CO 1, ¶ 13, 364 P.3d 199, 203. But
the trial court’s conclusions of law—i.e., the legal effect of those factual findings—we
review de novo. See id.
B. Exclusionary Rule
¶19 “The Fourth Amendment contains no provision expressly precluding the use of
evidence obtained in violation of its commands. . . .” United States v. Leon, 468 U.S. 897,
10
906 (1984). Nonetheless, to effectuate the Fourth Amendment’s guarantee against
unreasonable searches and seizures, the Supreme Court developed the exclusionary rule.
Illinois v. Krull, 480 U.S. 340, 347 (1987) (citing United States v. Calandra, 414 U.S. 338,
348 (1974)). When applicable, the exclusionary rule “forbids the use of improperly
obtained evidence at trial,” Herring v. United States, 555 U.S. 135, 139 (2009), as well as
“evidence later discovered and found to be derivative of an illegality,” Utah v. Strieff, __
U.S. __,136 S. Ct. 2056, 2061 (2016) (quoting Segura v. United States, 468 U.S. 796, 804
(1984)). The rule, which operates as a judicially created remedy, seeks to safeguard
Fourth Amendment rights generally through the rule’s deterrent effect. Leon, 468 U.S. at
906.
¶20 Recently, this court has used language suggesting that exclusion necessarily
follows from an unlawful search. See, e.g., People v. Zuniga, 2016 CO 52, ¶ 14, 372 P.3d
1052, 1057 (“If a warrantless search violates the Fourth Amendment . . . then the remedy
is suppression of the evidence obtained.”); People v. Ackerman, 2015 CO 27, ¶ 12, 346
P.3d 61, 65 (“If a [search] violates the Fourth Amendment, then its results constitute fruit
of the poisonous tree and must be suppressed based on the exclusionary rule.”).
¶21 However, “the exclusionary rule should not automatically apply every time a
Fourth Amendment violation is found. . . .” People v. Gutierrez, 222 P.3d 925, 941 (Colo.
2009). Because “the exclusionary rule is intended to deter improper police conduct[,]” it
“should not be applied in cases where the deterrence purpose is not served, or where the
benefits associated with the rule are minimal in comparison to the costs associated with
11
the exclusion of probative evidence.” People v. Altman, 960 P.2d 1164, 1168 (Colo. 1998)
(internal quotation marks omitted); see also Davis v. United States, 564 U.S. 229, 237
(2011) (noting that the rule’s operation is limited to situations in which its deterrent
purpose is served); Herring, 555 U.S. at 141 (holding that “the benefits of deterrence must
outweigh” the heavy costs of excluding reliable and trustworthy evidence bearing on
guilt or innocence).
¶22 Because the exclusionary rule “serves to deter deliberate, reckless, or grossly
negligent conduct, or in some circumstances recurring or systemic negligence,” to
warrant its application, law enforcement conduct must be “sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is
worth the price paid by the justice system.” Herring, 555 U.S. at 144. The pertinent
analysis of deterrence and culpability is objective and does not inquire into an officer’s
subjective intent. Id. at 145. Rather, the inquiry is “‘confined to the objectively
ascertainable question whether a reasonably well trained officer would have known that
the search was illegal’ in light of ‘all of the circumstances.’” Id. (quoting Leon, 468 U.S.
at 922 n.23). Evidence should be suppressed, for example, where “the law enforcement
officer had knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.” Krull, 480 U.S. at 348–49 (quoting
United States v. Peltier, 422 U.S. 531, 542 (1975)).
12
C. Suppression Is Warranted Here
¶23 The People note that the U.S. Supreme Court has held that suppression is generally
inappropriate where the Fourth Amendment violation results not from police
misconduct, but instead from an error within the judicial branch. In Leon, for example,
the Court rejected suppression as a remedy where officers acted in reasonable reliance on
a search warrant that was issued by a neutral magistrate but was later found to be
unsupported by probable cause. 468 U.S. at 900, 913, 922. The Court reasoned that the
exclusionary rule is “designed to deter police misconduct rather than to punish the errors
of judges and magistrates.” Id. at 916; see also Massachusetts v. Sheppard, 468 U.S. 981,
990 (1984) (rejecting suppression where search warrant was invalid but “it was the judge,
not the police officers, who made the critical mistake”). Similarly, in Arizona v. Evans,
514 U.S. 1, 14 (1995), the Court held that suppression was not warranted where an
officer’s unlawful seizure stemmed from a mistake by court employees. There, the officer
acted in reliance on an outstanding arrest warrant that in fact had been quashed. Id. at 4.
The error was traced to the court clerk’s office, which had failed to notify the sheriff’s
office to update its computer records. Id. at 4–5. The Court reasoned that exclusion of
the evidence seized during the arrest would not deter future mistakes by court employees
because unlike police officers, “court clerks are not adjuncts to the law enforcement team”
engaged in “ferreting out crime,” and “have no stake in the outcome of particular
criminal prosecutions.” Id. at 15; see also Krull, 480 U.S. at 350–51; People v. Gall, 30 P.3d
145, 150 (Colo. 2001) (“Because neutral judicial officers have no stake in the outcome of
13
particular criminal proceedings, the threat of exclusion cannot be expected to
significantly modify their behavior.”). Nor could suppression reasonably be expected to
alter the behavior of the arresting officer, who simply relied on the police computer
records. Evans, 514 U.S. at 15.
¶24 The People rely on this line of case law to argue that suppression is unwarranted
here because the juvenile probation officer who performed the cheek swab is akin to the
court employee in Evans for whom suppression would have no appreciable deterrent
effect. We disagree for three reasons.
¶25 First, in the cases relied on by the People, the law enforcement official who
conducted the search acted in reasonable reliance on information provided by a third
party—in those cases, a court official or court employees. That information later proved
to be inaccurate, because the third party—not the officer—made a mistake. Suppression
served no appreciable deterrent purpose in those cases because the officers who
conducted those searches had no reason to question the validity of the warrants under
which they acted or otherwise suspect they were not complying with the law. In short,
there was “no police illegality and thus nothing to deter.” Leon, 468 U.S. at 921.
“Penalizing the officer for the [third party]’s error, rather than his own, cannot logically
contribute to the deterrence of Fourth Amendment violations.” Leon, 468 U.S. at 921; see
also Herring, 555 U.S. at 137–39, 144–45 (rejecting suppression where officer relied on
outdated warrant in police records and mistake was attributed to the “nonrecurring and
attenuated negligence” of another police employee).
14
¶26 Nothing in the record here, however, suggests the juvenile probation officer who
performed Casillas’s cheek swab did so in reasonable reliance on misinformation
provided by a third party. Unlike the magistrate in Leon, the court employee in Evans,
or even the fellow police employee in Herring—third parties who provided erroneous
information to the law enforcement officer who conducted the search—the juvenile
probation officer here performed the cheek swab and collected Casillas’s DNA himself.
Thus, the error giving rise to the unlawful search and seizure was not attenuated;
suppression here would target the officer’s own mistake, not someone else’s.
¶27 Second, although juvenile probation officers are appointed by the court, see § 19-2-
204(1)–(2), C.R.S. (2018), they are much more akin to “adjuncts to the law enforcement
team” than judicial officers or court clerk employees, see Krull, 480 U.S. at 348, 350–51;
Leon, 468 U.S. at 917. As noted by Judge Webb in his dissent, juvenile probation officers
have broad law enforcement powers. Casillas, ¶ 43 (Webb, J., dissenting). Like a law
enforcement officer, a juvenile probation officer is considered a “peace officer” under
Colorado law. § 16-2.5-101(1), (3), C.R.S. (2018); § 19-2-926(4), C.R.S. (2018); cf. Minnesota
v. Murphy, 465 U.S. 420, 432 (1984) (recognizing that a probation officer “is a peace
officer, and as such is allied, to a greater or lesser extent, with his fellow peace officers”
(internal quotation marks omitted)). As peace officers, juvenile probation officers have
“authority to enforce all laws of the state of Colorado” and may carry firearms while
performing their duties. § 16-2.5-101(1), (2). Moreover, juvenile probation officers may
15
take juveniles into temporary custody, see § 19-2-502(3), C.R.S. (2018), and may execute
arrest warrants, see § 19-2-503, C.R.S. (2018).
¶28 Third, we disagree that the officer here was “performing nothing more than a
supervisory function under the direction of the juvenile court.” See Casillas, ¶ 38. CODIS
exists to allow law enforcement to match DNA found at crime scenes with genetic profiles
in the database in order to identify suspected perpetrators of crimes. A cheek swab
performed to collect an individual’s DNA for entry into the CODIS database therefore
serves an inherent law enforcement purpose.
¶29 In their answer brief to this court, the People argue for the first time that
suppression is unwarranted because the cheek swab was taken as a result of the juvenile
probation officer’s reasonable mistake of law. See Heien v. North Carolina, __ U.S. __,
135 S. Ct. 530, 539 (2014) (“[W]e have looked to the reasonableness of an officer’s legal
error in the course of considering the appropriate remedy for a constitutional violation. .
. .”). We disagree.
¶30 Heien addressed an officer’s misinterpretation of the law as it pertained to
whether there was any Fourth Amendment violation at all. 135 S. Ct. at 539 (“Here, . . .
the mistake of law relates to the antecedent question of whether it was reasonable for an
officer to suspect that the defendant’s conduct was illegal. If so, there was no violation
of the Fourth Amendment in the first place.”). In other words, in Heien, the officer’s
misunderstanding of the law factored into whether the seizure itself was reasonable. But
that is not the question before us. Here, a court has concluded that the cheek swab taken
16
by the juvenile probation officer was an unreasonable search under the Fourth
Amendment. The People do not challenge that ruling. The only question is whether the
exclusionary rule applies.
¶31 Notably, the two cases cited in Heien for the proposition that suppression is not
warranted because of an officer’s reasonable mistake of law concerned situations where
an officer reasonably relied on binding appellate case law that was subsequently
overturned, Davis, 564 U.S. at 232 (holding that “searches conducted in objectively
reasonable reliance on binding appellate precedent are not subject to the exclusionary
rule”), or an officer enforced an existing statute that was later deemed unconstitutional,
Krull, 480 U.S. at 350 (reasoning that suppression would have little deterrent effect where
officer “simply fulfilled his responsibility to enforce the statute as written” and statute
was later declared unconstitutional). See Heien, __U.S.__, 135 S. Ct. at 539. Neither case
concerned the officer’s misinterpretation of the law; rather, in both Davis and Krull, the
officer followed binding case law or the statute as written. The “mistake” of law in those
cases, therefore, was not a question of the officer’s interpretation, but rather, the fact that
the law on which the officer relied was later deemed invalid—something the officer could
not have foreseen. For that reason, suppression was not warranted in those cases.
¶32 Here, by contrast, the People do not contend that the juvenile probation officer
reasonably followed the law as written but was mistaken as to its constitutionality.
Rather, the People argue that the officer reasonably misinterpreted the law. But the
search performed here was not based on any objectively reasonable interpretation of the
17
statute. Cf. Heien, 135 S. Ct. at 539–40 (2014) (noting that although the Fourth
Amendment tolerates objectively reasonable mistakes of law, “an officer can gain no
Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to
enforce”). As recognized by the CBI’s CODIS administrator, confirmed by the probation
analyst at the State Court Administrator’s Office, and conceded by the People below, the
cheek swab taken by the juvenile probation officer violated the juvenile DNA collection
statute because Casillas was under a deferred adjudication and he was not otherwise
required under section 19-2-925.6 to submit a DNA sample. He was never “sentenced to
probation”; he was placed under the supervision of the juvenile probation office as a
condition of his deferred judgment.
¶33 Importantly, the statutory violation here concerned the propriety of the search
itself, directly implicating Casillas’s Fourth Amendment rights. See People v. McKinstry,
843 P.2d 18, 20 (Colo. 1993) (“[W]here an officer has obtained evidence in violation of a
statute or regulation, the exclusionary rule is not triggered unless the unauthorized
conduct also amounts to a constitutional violation.”). Moreover, the Colorado Children’s
Code generally gives heightened protection to juvenile privacy. For instance, the
legislative declaration to the Children’s Code Records and Information Act, which
governs, among other things, access to juvenile delinquency records, recognizes that
information obtained through juvenile proceedings “is highly sensitive and has an
impact on the privacy of children,” and that “[t]he disclosure of sensitive information
carries the risk of stigmatizing children.” § 19-1-302(1)(a), C.R.S. (2018). Consistent with
18
this declaration, the Children’s Code severely limits access to juvenile arrest, criminal,
and probation records. See § 19-1-304(2)(b.5)–(c), C.R.S. (2018). In sum, a reasonably
well-trained juvenile probation officer—familiar with the provisions of the Children’s
Code—should have known that the search of Casillas was illegal under the
circumstances. See Herring, 555 U.S. at 145; Leon, 468 U.S. at 922 n.23.
¶34 As discussed above, the deterrence benefits of exclusion, and thus the rule’s
application, depend on the culpability of the law enforcement conduct at issue. Davis,
546 U.S. at 238. When the police act with “deliberate, reckless, or grossly negligent”
disregard for Fourth Amendment rights, “or in some circumstances recurring or systemic
negligence,” Herring, 555 U.S. at 144, then the benefits of exclusion “tend to outweigh the
resulting costs,” Davis, 564 U.S. at 238 (citing Herring, 555 U.S. at 144). Put differently,
“evidence should be suppressed ‘only if it can be said that the law enforcement officer
had knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.’” Herring, 555 U.S. at 143 (quoting Krull,
480 U.S. at 348–49).
¶35 Here, the juvenile probation officer who performed the buccal swab “may
properly be charged with knowledge[] that the search was unconstitutional under the
Fourth Amendment.” Id. Moreover, the record suggests this was not an isolated
incident, given the email from the CBI’s CODIS administrator to the probation analyst at
the State Court Administrator’s Office, acknowledging: “It looks like I have another
CODIS hit to an offender with a deferred sentence” (emphasis added).
19
¶36 Finally, we conclude that suppression would have a deterrent effect. The goal of
the exclusionary rule is to “remov[e] inducements to unreasonable invasions of privacy.”
Leon, 468 U.S. at 900. Indeed, the exclusionary rule “compel[s] respect for the
constitutional guaranty in the only effectively available way—by removing the incentive
to disregard it.” Elkins v. United States, 364 U.S. 206, 217 (1960). Left undisturbed, the
court of appeals’ decision would have the opposite effect: “[e]xempting evidence illegally
obtained by a [juvenile probation] officer from the exclusionary rule would greatly
increase the temptation to use the [juvenile probation] officer’s broad authority to
circumvent the Fourth Amendment.” United States v. Payne, 181 F.3d 781, 788 (6th Cir.
1999). Given that law enforcement would benefit from the ability to identify more
suspected perpetrators of crimes if the database were more comprehensive, and without
the risk that unlawfully obtained evidence would be excluded from future criminal
prosecutions, the incentive exists to take DNA from every juvenile whether authorized
or not. This is the kind of constitutional hazard that the exclusionary rule was meant to
reduce.
III. Conclusion
¶37 We hold that the exclusionary rule requires suppression of the evidence derived
from the juvenile probation officer’s unauthorized collection of Casillas’s DNA in this
case. All the evidence connecting Casillas to the carjacking was derived from the initial
unlawful seizure of his DNA. Without the unauthorized cheek swab, Casillas’s DNA
would not have been in CODIS, the police would not have obtained a match to Casillas’s
20
genetic profile, and the detective could not have prepared the photo array presented to
the victim and used to identify Casillas. Accordingly, we reverse and remand with
instructions to vacate Casillas’s conviction.
JUSTICE SAMOUR dissents.
JUSTICE GABRIEL does not participate.
21
JUSTICE SAMOUR, dissenting.
¶38 Billy Joel aptly recognized in one of his hit songs that “we’re only human” and are
“allowed to make [our] share of mistakes.” Billy Joel, You’re Only Human (Second
Wind), on Billy Joel’s Greatest Hits (Columbia Rec. 1985). Yet, today, the majority
suppresses evidence derived from a search conducted as a result of a juvenile probation
officer’s mistake of law, without meaningfully analyzing whether the mistake was
objectively reasonable. Because the ultimate touchstone of the Fourth Amendment is
reasonableness—not perfection—and because the exclusionary rule does not seek to
deter objectively reasonable mistakes, I respectfully dissent.
I. Introduction
¶39 The majority discusses this case’s factual and procedural history in some detail.
Maj. op. ¶¶ 7–15. Therefore, I do not repeat it here.
¶40 I agree with the majority that, since the People did not seek review of the court of
appeals’ conclusion that Casillas’s cheek swab violated both the DNA collection statutory
provision in question and the Fourth Amendment, the only issue before us is whether
application of the exclusionary rule is warranted as a remedy. Id., ¶ 17. In analyzing this
question, I have no qualms with the majority’s determinations that juvenile probation
officers are more akin to “adjuncts to the law enforcement team” than to judicial officers
or court employees, see id., ¶ 27, and that the juvenile probation officer who collected
Casillas’s cheek swab did not rely on misinformation provided by a third party, see id.,
¶ 26. Further, like the majority, I cannot side with the court of appeals’ determination
that suppression of the cheek swab is not justified because the juvenile probation officer
1
was simply performing a supervisory function pursuant to instructions from the juvenile
court. Id., ¶ 28.
¶41 Where my colleagues and I part ways is (1) in their implied conclusion that the
mistake of law by the juvenile probation officer was not objectively reasonable and,
instead, rose to the level of deliberate, reckless, or grossly negligent disregard for Fourth
Amendment rights or recurring or systemic negligence, see id., ¶¶ 34–35;1 and (2) in their
determination that suppression would have a deterrent effect because, otherwise, “the
incentive exists to take DNA from every juvenile whether authorized or not,” see id.,
¶ 36. These two disagreements are significant because the question of suppression “turns
on the culpability of the police and the potential of exclusion to deter wrongful police
conduct.” Herring v. United States, 555 U.S. 135, 137 (2009). I address each point of
contention in turn.
II. Analysis
A. The Mistake of Law Was Objectively Reasonable
¶42 In Heien v. North Carolina, __ U.S. __, 135 S. Ct. 530 (2014), the United States
Supreme Court addressed whether a traffic stop based on a police officer’s mistaken
understanding of the law violated the Fourth Amendment. There, an officer pulled over
1 The majority states that the juvenile probation officer “may properly be charged with
knowledge[] that the search was unconstitutional under the Fourth Amendment” and
that the record before us “suggests this was not an isolated incident.” Maj. op. ¶ 35.
2
a car after noticing that only one of its brake lights was functional. Id. With the
defendant’s consent, two officers searched the car and found cocaine. Id. The defendant
was subsequently charged with a cocaine trafficking offense. Id. at 535. Before trial, the
court denied the defendant’s motion to suppress the evidence recovered from the car,
rejecting his argument that the stop and search violated the Fourth Amendment. Id.
¶43 The North Carolina Court of Appeals reversed, holding that the stop was
objectively unreasonable and ran afoul of the Fourth Amendment because the vehicle
code required only one working brake light.2 Id. On appeal, the prosecution did not
challenge the intermediate appellate court’s interpretation of the vehicle code;
consequently, the North Carolina Supreme Court assumed that Heien’s faulty brake light
was not a violation of the vehicle code. Id. But the North Carolina Supreme Court
nevertheless concluded that the stop was valid and consistent with the Fourth
Amendment because the officer’s mistaken interpretation of the law was reasonable. Id.
¶44 The United States Supreme Court agreed. The Court emphasized that “[t]o be
reasonable is not to be perfect,” and since the Fourth Amendment’s “ultimate touchstone
. . . is reasonableness,” it “allows for some mistakes on the part of government officials,
giving them fair leeway for enforcing the law in the community’s protection.” Id. at 536
(quoting Riley v. California, 573 U.S. __, 135 S. Ct. 2473, 2482 (2014)) (internal quotation
2The court focused on the code’s references to “a stop lamp” and “[t]he stop lamp” in the
singular. Heien, 135 S. Ct. at 535.
3
marks omitted). The Court added that, just as searches and seizures based on mistakes
of fact can be reasonable, so too can searches and seizures based on mistakes of law be
reasonable. Id.
¶45 Under Heien, an officer may be reasonably mistaken on the facts or on the law, but
[w]hether the facts turn out to be not what was thought, or the law turns
out to be not what was thought, the result is the same: the facts are outside
the scope of the law. There is no reason, under the text of the Fourth
Amendment or our precedents, why this same result should be acceptable
when reached by way of a reasonable mistake of fact, but not when reached
by way of a similarly reasonable mistake of law.
Id. “[T]reating legal and factual errors alike in this context” is nothing new; it is
supported by “cases dating back two centuries.” Id. at 536–37.
¶46 Casillas argues that Heien does not apply here because, rather than address the
scope of the exclusionary rule, it found that no violation of the Fourth Amendment
occurred. However, the Court in Heien acknowledged that, in previous decisions, it has
“looked to the reasonableness of an officer’s legal error in the course of considering the
appropriate remedy for a constitutional violation, instead of whether there was a
violation at all.” Id. at 539. In such cases, the Court has either found or assumed a Fourth
Amendment violation, and the evaluation of the reasonableness of an officer’s mistake of
law has been “limited to the separate matter of remedy.” Id.
¶47 Moreover, Casillas ignores that, since mere negligence by a government official is
insufficient to constitute a Fourth Amendment violation, it certainly cannot “meet the
more stringent test for triggering the exclusionary rule.” Herring, 555 U.S. at 145. “To
trigger the exclusionary rule” as a remedy for a Fourth Amendment violation, “police
4
conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by the justice system.”
Id. at 144. As the Supreme Court has reiterated, “the exclusionary rule serves to deter
deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or
systemic negligence,” not “mistakes [that] are the result of negligence.” Id. at 144, 147.
¶48 Like Casillas, the majority glosses over the holding in Heien and strains to
distinguish it from this case, noting that “Heien addressed an officer’s misinterpretation
of the law as it pertained to whether there was any Fourth Amendment violation . . . .”
Maj. op. ¶ 30. Put differently, the majority erroneously views Heien as limited to whether
a Fourth Amendment violation occurred and having no relevance to whether application
of the exclusionary rule is warranted. Id. The majority’s overly narrow reading of Heien
misconstrues the Supreme Court’s analysis. Additionally, it makes no logical sense to
apply one standard of “objectively reasonable mistake” to examine Fourth Amendment
violations and a completely different standard of “objectively reasonable mistake” to
determine application of the exclusionary rule. And, to the extent that a different
standard were to be applied, it would have to be more stringent and require conduct that
is more egregious in the exclusionary rule context. Herring, 555 U.S. at 144, 147.
¶49 There was no conduct sufficiently deliberate and sufficiently culpable here to
trigger the exclusionary rule. Therefore, under United States Supreme Court
jurisprudence, including Heien and Herring, the exclusionary rule is inapplicable in this
case.
5
¶50 The DNA collection statutory provision in question, § 19-2-925.6, C.R.S. (2018),
which addresses the “[g]enetic testing of adjudicated offenders,” provides in pertinent
part,
(1) Beginning July 1, 2007, each of the following adjudicated offenders shall
submit to and pay for collection and a chemical testing of the offender’s
biological substance sample to determine the genetic markers thereof,
unless the offender has already provided a biological substance sample for
such testing pursuant to a statute of this state:
....
(e) Every offender sentenced on or after July 1, 2007, for an offense that
would constitute a felony if committed by an adult. This paragraph (e) shall
not apply to an offender granted a deferred adjudication, unless otherwise
required to submit to a sample pursuant to this section or unless the
deferred adjudication is revoked and a sentence is imposed. The sample
shall be collected:
(I) From an offender committed to the department of human services, by
the department during the intake process but in any event within thirty
days after the offender is received by the department;
(II) From an offender sentenced to county jail or to community corrections,
by the sheriff or by the community corrections program within thirty days
after the offender is received into the custody of the county jail or the
community corrections facility;
(III) From an offender sentenced to probation, by the judicial department
within thirty days after the offender is placed on probation; and
(IV) From an offender who receives any other sentence, by the judicial
department within thirty days after the offender is sentenced.
§ 19-2-925.6 (emphases added).
¶51 Under subsection (1)(e), Casillas was not required to submit to collection of a
biological substance sample because he was granted a deferred adjudication in 2008 after
pleading guilty to an offense that would constitute a felony if committed by an adult.
6
Had he not been granted a deferred adjudication and, instead, been sentenced to
probation, he would have been required to provide a biological substance sample. See
§ 19-2-925.6(1)(e)(III). That he received a deferred adjudication meant that no
adjudication entered and no sentence (including to probation) was imposed. But the
question before us is not whether the juvenile probation officer violated the statute by
collecting Casillas’s cheek swab; there is no dispute that he did. 3 The question we are
confronted with is whether the juvenile probation officer’s mistaken understanding of
the statute as requiring Casillas to submit a biological substance sample was objectively
reasonable. The answer, in my view, is a resounding “yes.”
¶52 The second sentence in subsection (1)(e) and the single sentence in subsection
(1)(e)(III) can reasonably be read together as stating that the requirement to submit to
collection of a biological substance sample does not apply to an offender who receives a
deferred adjudication, “unless“ such offender is “sentenced to probation.” Id. Of course,
3 The majority asserts that “nothing in the record sheds light on [the juvenile probation
officer’s] reasons” for collecting a cheek swab from Casillas. Maj. op. ¶ 7. Respectfully,
this is something of a red herring. The district court reasonably concluded from the
record that Casillas “consented to the taking of the genetic material” as a condition of his
supervision. The court of appeals reached the same conclusion. See People v. Casillas,
2015 COA 15, ¶ 2 (“The terms of the deferred adjudication required [Casillas] to be under
the supervision of the juvenile probation department,” and “Casillas’ juvenile probation
officer later swabbed Casillas’ cheek for a DNA sample.”). Furthermore, there is no
disagreement that subsection (1)(e) governs the collection—by the judicial department
(which includes probation)—of any genetic or biological substance sample from a
juvenile offender like Casillas believed, albeit incorrectly, to have been sentenced to
probation.
7
as mentioned, Casillas was not “sentenced” to probation, and could not have been
“sentenced” to probation, because he received a deferred adjudication. But the juvenile
court ordered him supervised by probation while on his deferred adjudication. And the
difference between being sentenced to probation and being ordered supervised by
probation while on a deferred adjudication is too nuanced to allow us to fairly conclude
that a juvenile probation officer’s failure to discern it is a deliberate, reckless, or grossly
negligent disregard of Fourth Amendment rights. Because Casillas’s deferred
adjudication was ordered supervised by probation, it was objectively reasonable for the
juvenile probation officer to believe, admittedly mistakenly, that subsection (1)(e)
required Casillas to provide a biological substance sample.
¶53 Significantly, the record reflects that the juvenile probation officer was not the only
one who misunderstood subsection (1)(e). The district court judge who denied Casillas’s
motion to suppress, an individual trained in the law who possesses legal experience,
appears to have construed subsection (1)(e) as the juvenile probation officer did. The
judge believed that Casillas was required to provide a biological substance sample, even
though he received a deferred adjudication, because he was “sentenced to probation.” In
other words, the judge missed the same subtle difference in the statute the juvenile
probation officer did between being “sentenced to probation” and being ordered
supervised by probation while on a deferred adjudication. In concluding that the juvenile
probation officer did not violate the statute, the judge reasoned that the evidence at the
hearing established that Casillas “had been placed on a deferred adjudication with
8
probation,”4 and that “[s]ubsection (e)(III) indicates that a genetic sample may be taken
from an offender sentenced to probation.”5
¶54 One other judicial officer in this case blurred the difference between being
“sentenced to probation” and being ordered supervised by probation while on a deferred
adjudication. In 2009, the judicial officer presiding over Casillas’s underlying juvenile
case ordered “Probation and Jurisdiction terminated successfully.” (Emphasis added.)
And the probation analyst referenced by the majority likewise mentioned in an email that
Casillas had “completed his deferred adjudication” and had been “released from
probation in May 2009.” (Emphasis added.)
4Elsewhere in its written order, the trial court seemed to incorrectly equate the fact that
Casillas’s deferred adjudication was to be supervised by probation with being “placed on
probation.”
5 The majority implies that the district court did not misunderstand the statute or fail to
apprehend the difference between being sentenced to probation and being ordered
supervised by probation while on a deferred adjudication. Maj. op. ¶ 12. Instead, asserts
the majority, the district court had an insufficient record before it, which caused it to
inaccurately believe Casillas had been sentenced to probation. Id. The record does not
support the majority’s perception. In its written order denying the motion to suppress,
the district court expressly noted that Casillas had “entered into a deferred adjudication”
and “was also placed on probation.” Later in the same order, the district court reiterated
that it “appear[ed] undisputed that [Casillas] had been placed on a deferred adjudication
with probation.” Thus, contrary to the majority’s characterization, the district court did
not rely on a “mistaken factual premise”; rather, the district court mistakenly believed,
as did the juvenile probation officer, that Casillas’s probation-supervised deferred
adjudication meant he was “an offender sentenced to probation” who was subject to the
collection requirement in subsection (1)(e). Id.
9
¶55 The legislature made a similar mistake in 2006 in drafting the predecessor to
section 19-2-925.6, although that statute never became effective. In the 2006 Session Laws,
the legislature stated:
(1) Beginning July 1, 2007, the following adjudicated delinquents must
submit to and pay for a chemical testing of the person’s biological substance
sample to determine the genetic markers thereof:
(a) Every person sentenced on or after July 1, 2007, for an offense that would
constitute a felony if committed by an adult. This paragraph (a) shall not
apply to persons sentenced to probation pursuant to a deferred
adjudication, unless otherwise required to submit to a sample in this
section, or unless the deferred sentencing is revoked and a sentence is
entered. The sample shall be collected:
....
(III) For sentences to probation, no later than thirty days after the offender
is placed on probation.
Ch. 339, § 19-2-925.6, 2006 Colo. Sess. Laws 1687, 1690–91 (emphases added). Thus, like
the juvenile probation officer, the district court judge who denied Casillas’s motion to
suppress, the juvenile court judge who presided over Casillas’s underlying case, and the
probation analyst quoted by the majority, the 2006 legislature apparently believed that a
defendant ordered supervised by probation while on a deferred adjudication was a
defendant “sentenced to probation pursuant to a deferred adjudication.” Id. (emphasis
added).
¶56 Although the majority gives Heien short shrift, the Supreme Court’s analysis is
instructive in assessing the reasonableness of the juvenile probation officer’s error of law.
Notwithstanding its acknowledgement that the North Carolina statute’s reference to “a
stop lamp” in the singular suggested that only one working brake light was required, the
10
Court had “little difficulty concluding that the officer’s error of law was reasonable.”
Heien, 135 S. Ct. at 540 (emphasis in original). The Court observed that the statute also
provided that “[t]he stop lamp may be incorporated into a unit with one or more other
rear lamps,” see id. (quoting N.C. Gen. Stat. Ann. § 20-129(g) (2007)) (alteration and
emphasis in original), which “suggest[ed] to the everyday reader of English that a ‘stop
lamp’ [was] a type of ‘rear lamp,’” see id. (quoting § 20-129(g)). Additionally, a different
subsection of the statute, subsection (d), required cars to “have all originally equipped
rear lamps or the equivalent in good working order,” which, the Court explained, was
“arguably” an “indicat[ion] that if a vehicle has multiple ‘stop lamp[s],’ all must be
functional.” Id. (quoting § 20-129(d)) (second alteration in original). Given the use of the
word “other” in subsection (g), the Court determined that “it would at least have been
reasonable to think” that the “rear lamps” referenced in subsection (d) included brake
lights. Id.
¶57 The juvenile probation officer’s mistaken understanding of subsection (1)(e) was
no less reasonable than the officer’s mistaken understanding of the “stop lamp” provision
addressed in Heien. Just as it was reasonable for the officer in Heien to think that the
North Carolina traffic code required two functional brake lights, it was reasonable for the
juvenile probation officer to think that subsection (1)(e) required Casillas to submit to the
collection of a biological substance sample. Moreover, as was the case with the North
Carolina statute in Heien, subsection (1)(e) “had never been previously construed by [the
state] appellate courts” when the mistake of law occurred. Id.
11
¶58 There is actually more proof here than in Heien that the challenged mistake of law
was reasonable because, as indicated, the juvenile probation officer was not the only one
who made it. Although this is a circumstance the majority disregards, it is relevant to
our analysis. Cf. People v. Glasser, 293 P.3d 68, 72 (Colo. App. 2011). In Glasser, the
defendant urged the trial court to suppress, among other things, the DNA evidence used
to identify him because his biological substance sample was collected and uploaded onto
CODIS erroneously based on a plea bargain in an earlier case that included an agreement
to an illegal sentence. Id. at 72–73. As relevant here, the court of appeals refused to apply
the exclusionary rule, finding that the mistake by the prosecutor could “hardly be
considered flagrant, given that defense counsel approved and the trial court accepted the
pleas” in the earlier case. Id. at 74. While Glasser preceded Heien, its rationale is
consistent with it.
¶59 The majority repeatedly notes that the People failed to assert—before both the
district court and the court of appeals—that Casillas’s cheek swab was collected due to
“a good faith mistake of fact or law.” Maj. op. ¶ 11; see also id., ¶ 14 (explaining that
Judge Webb, in his dissent, observed that the prosecution did not invoke the statutory
“good faith mistake” exception under section 16-3-308, C.R.S. (2018)). This is inherently
unfair. We granted Casillas’s petition for certiorari in this case to review “[w]hether the
court of appeals erred when it concluded that an unreasonable search by a juvenile
probation officer does not require the application of the exclusionary rule.” Id., ¶ 6 n.1
(emphasis added). I do not understand how we can grant certiorari review on an issue
that directly deals with the applicability of the exclusionary rule, and then address the
12
issue on the merits while tying the People’s hands by silencing them with respect to a
significant aspect of that rule’s purview.
¶60 And, regardless of what arguments a party may have previously advanced,
Herring makes crystal clear that “‘an assessment of the flagrancy of the police misconduct
constitutes an important step in the calculus’ of applying the exclusionary rule.” 555 U.S.
at 143 (quoting United States v. Leon, 468 U.S. 897, 911 (1984)); see also Leon, 468 U.S. at
920 (when it is “plainly apparent” that an officer acted reasonably, suppression of the
evidence “will not further the ends of the exclusionary rule” because such suppression
“can in no way affect his future conduct,” except to “make him less willing to do his
duty”) (internal quotation marks omitted). By law, we must evaluate the flagrancy of the
juvenile probation officer’s conduct in order to determine whether the exclusionary rule
applies. Casillas is asking us to reverse the court of appeals’ decision and to apply the
exclusionary rule, and we cannot properly address the merits of his request without
assessing the reasonableness of the juvenile probation officer’s mistake of law. Whether
the juvenile probation officer’s mistake of law was reasonable is at the heart of this appeal
and critical to our decision.
¶61 Rather than meaningfully evaluate the reasonableness of the juvenile probation
officer’s error of law, the majority appears to conclude, rather summarily, if not circularly,
both that “the search performed here was not based on any objectively reasonable
interpretation of the statute,” see Maj. op. ¶ 32, and that the benefits of exclusion
outweigh the costs, see id., ¶¶ 34–35. The majority points out that (1) “the cheek swab
taken by the juvenile probation officer violated the juvenile DNA collection statute”; (2)
13
“[i]mportantly, the statutory violation here concerned the propriety of the search itself,
directly implicating Casillas’s Fourth Amendment rights”; (3) the juvenile probation
officer “may properly be charged with knowledge[] that the search was unconstitutional
under the Fourth Amendment”; and (4) because the juvenile probation officer “may
properly be charged with [such] knowledge[],” “the benefits of exclusion tend to
outweigh the costs.” Id., ¶¶ 32–35. The first two points, which are undisputed, are
irrelevant to whether the juvenile probation officer’s mistake was objectively reasonable,
and the last two points are conclusory and unaccompanied by any rationale or
explanation.
¶62 Despite Herring’s mandate, the majority seems satisfied with a standard that
generally looks at whether the government official made a mistake and pays little
attention to the reasonableness of the mistake. In Heien, Heien and the amici advocated
for a similar standard based on “the well-known maxim, ‘Ignorance of the law is no
excuse,’” and argued “that it is fundamentally unfair to let police officers get away with
mistakes of law when the citizenry is accorded no such leeway.” 135 S. Ct. at 540. The
Court was not persuaded:
Though this argument has a certain rhetorical appeal, it misconceives the
implication of the maxim. The true symmetry is this: Just as an individual
generally cannot escape criminal liability based on a mistaken
understanding of the law, so too the government cannot impose criminal
liability based on a mistaken understanding of the law. If the law required
two working brake lights, Heien could not escape a ticket by claiming he
reasonably thought he needed only one; if the law required only one, [the
officer] could not issue a valid ticket by claiming he reasonably thought
drivers needed two. But just because mistakes of law cannot justify either
the imposition or the avoidance of criminal liability, it does not follow that
they cannot justify an investigatory stop. And Heien is not appealing a
14
brake-light ticket; he is appealing a cocaine-trafficking conviction as to
which there is no asserted mistake of fact or law.
Id. (emphases added).
¶63 The majority also relies on the Colorado Children’s Code Records and Information
Act (“the Act”) to support its decision. Maj. op. ¶ 33. This is a stretch; the Act is
unavailing. There is no support for the majority’s suggestion that the “heightened
protection to juvenile privacy” under the Act leads to heightened protection under the
Fourth Amendment or somehow expands the scope of the exclusionary rule. Id. The
majority cites the legislative declaration in the Act—which provides that information
obtained through juvenile proceedings is highly sensitive and has an impact on the
privacy of children, and that its disclosure carries the risk of stigmatizing children—as
the premise for its conclusion that the juvenile probation officer “should have known that
the search of Casillas was illegal under the circumstances.” Id. Respectfully, this
conclusion is a non-sequitur. Neither the highly sensitive nature of information acquired
through juvenile proceedings nor the risk accompanying the dissemination of such
information bears on whether the juvenile probation officer’s understanding of
subsection (1)(e) was objectively reasonable.
¶64 In any event, I believe the majority misses the point. The issue is not whether the
juvenile probation officer was “familiar with the provisions of the Children’s Code.” Id.
He was obviously familiar with the provision of the Children’s Code addressing the
collection of DNA from juvenile offenders who receive a deferred adjudication. Indeed,
he collected a cheek swab from Casillas and submitted the sample to be uploaded onto
15
CODIS. The issue is whether the juvenile probation officer’s interpretation of subsection
(1)(e) was objectively reasonable.
¶65 Finally, the majority implies that this was recurring or systemic negligence
because “the record suggests” that the improper collection of a biological substance
sample from Casillas “was not an isolated incident.” Id., ¶ 35. Again, I disagree. The
record is barren of any evidence of recurring or systemic negligence.
¶66 The majority’s reliance on a single email, which was sent by the CODIS
administrator to the State Court Administrator’s Office, is misplaced. That email stated:
“It looks like I have another CODIS hit to an offender with a deferred sentence. Would
you please check on Ismael Casillas . . . . It looks like he was not eligible, but I need you
to confirm that.” (Emphasis added.) First, this message establishes that there had been
more than one CODIS match to an offender with a deferred sentence, not that there had
been more than one CODIS match to an ineligible offender with a deferred sentence.
Second, even under the majority’s strained interpretation of the message as referring to
more than one CODIS match implicating an ineligible offender with a deferred sentence,
that could mean two such matches or twenty such matches, and while twenty over a
relatively short period may establish “recurring or systemic negligence,” two over an
unknown period certainly does not.
¶67 In short, under the circumstances present, it was objectively reasonable for the
juvenile probation officer to think that Casillas was on probation and, therefore, required
to submit to collection of a biological substance sample. Because the juvenile probation
officer’s mistake of law was objectively reasonable, it cannot be deemed to rise to the level
16
of deliberate, reckless, or grossly negligent disregard of Casillas’s Fourth Amendment
rights. Further, the record does not support a finding of recurring or systemic negligence.
Accordingly, I would conclude that this case falls woefully short of the type of flagrant
conduct targeted by the exclusionary rule.
B. Suppression Would Not Have a Deterrent Effect
¶68 The goal of the exclusionary rule is “to deter improper police conduct”; therefore,
the rule should not be applied where the “deterren[t] purpose is not served.” People v.
Altman, 960 P.2d 1164, 1168 (Colo. 1998) (quoting People v. Deitchman, 695 P.2d 1146,
1160 (Colo. 1985) (Dubofsky, J., concurring)). Moreover, for the exclusionary rule to
apply, “the benefits of deterrence must outweigh” the heavy costs of suppressing reliable
and trustworthy evidence bearing on guilt or innocence. Herring, 555 U.S. at 141. Stated
differently, the deterrence must be “worth the price paid by the justice system.” Id. at
144.
¶69 The majority posits that failure to apply the exclusionary rule here would create
an “incentive [ ] to take DNA from every juvenile whether authorized or not” because
law enforcement “would benefit from the ability to identify more suspected perpetrators
of crimes if the database were more comprehensive” and there would be no “risk that
unlawfully obtained evidence would be excluded from future criminal prosecutions.”
Maj. op. ¶ 36. Respectfully, I am unmoved by this sky-will-fall contention. The majority
forgets that “[t]he Fourth Amendment tolerates only reasonable mistakes, and those
mistakes—whether of fact or of law—must be objectively reasonable.” Heien, 135 S. Ct.
at 539 (emphases in original). In Heien, the Court rejected Heien’s doomsday claim that
17
failure to find a Fourth Amendment violation would “discourage officers from learning
the law.” Id. The Court explained that the subjective understanding of an officer is
irrelevant. Id. Thus, “the inquiry is not as forgiving as the one employed in the distinct
context of deciding whether an officer is entitled to qualified immunity for a
constitutional or statutory violation.” Id. As the majority in this case recognizes, “an
officer can gain no Fourth Amendment advantage through a sloppy study of the laws he
is duty-bound to enforce.” Maj. op. ¶ 32 (quoting Heien, 135 S. Ct. at 539–40).
¶70 In any case, if the majority were to determine that the exclusionary rule is
inapplicable here, a probation officer in the future would have a difficult, if not
impossible, time convincing us that his mistake in collecting a biological substance
sample from an ineligible deferred adjudication offender is objectively reasonable. This
is so because there would then be precedent clarifying that a juvenile offender on a
deferred adjudication for what would constitute a felony if committed by an adult is not
required to submit to a biological substance sample under subsection (1)(e) simply
because he is ordered supervised by probation.
¶71 Contrary to the majority’s ruling, there is no basis in the record to find that
application of the exclusionary rule serves the purpose of deterring improper conduct
here. To be sure, the juvenile probation officer in this case made a mistake of law. But
the mistake was objectively reasonable. Consequently, there is no flagrant conduct to be
deterred here. Nor will the benefits of deterrence, if any, outweigh the heavy costs of
exclusion to the justice system.
18
III. Conclusion
¶72 In sum, I respectfully disagree with the majority’s decision to apply the
exclusionary rule in this case. Instead, I would affirm the judgment of the court of appeals
on the grounds I have articulated.
19
Opinions of the Colorado Supreme Court are available to the
public and can be accessed through the Judicial Branch’s homepage at
http://www.courts.state.co.us. Opinions are also posted on the
Colorado Bar Association’s homepage at http://www.cobar.org.
ADVANCE SHEET HEADNOTE
September 24, 2018
AS MODIFIED OCTOBER 15, 2018
2018 CO 78M
No. 15SC292, Casillas v. People—Evidence—Searches and Seizures—Exclusionary
Rule.
In this criminal appeal, the supreme court reviews whether the exclusionary
rule requires the suppression of evidence derived from a juvenile probation officer’s
unauthorized collection of DNA from a juvenile in violation of section 19.2.925.6, C.R.S.
(2018) and the Fourth Amendment. The supreme court holds that juvenile probation
officers are properly considered adjuncts to law enforcement; the officer’s collection of
the juvenile’s DNA for uploading to CODIS served an inherent law enforcement
function; nothing in the record suggests the officer conducted the buccal swab search in
reliance on misinformation provided by a third party; and the unlawful search here was
not based on a reasonable misinterpretation of the law. Because suppression would
have a deterrent effect by removing incentives to collect DNA from ineligible juvenile
offenders, the supreme court holds that suppression is warranted. Accordingly, the
court reverses the judgment of the court of appeals and remands the case with
instructions to vacate petitioner’s conviction.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2018 CO 78M
Supreme Court Case No. 15SC292
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 12CA703
Petitioner:
Ismael Casillas,
v.
Respondent:
The People of the State of Colorado.
Judgment Reversed.
en banc
September 24, 2018
Modified Opinion. Marked revisions shown.
Attorneys for Petitioner:
Megan Ring, Public Defender
M. Shelby Deeney, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Cynthia H. Coffman, Attorney General
L. Andrew Cooper, Deputy Attorney General
Denver, Colorado
JUSTICE MÁRQUEZ delivered the Opinion of the Court.
JUSTICE SAMOUR dissents.
JUSTICE GABRIEL does not participate.
2
¶1 Colorado law requires certain juvenile offenders to submit to collection of their
DNA for testing. § 19-2-925.6(1), C.R.S. (2018). However, this requirement “shall not
apply to an offender granted a deferred adjudication, unless otherwise required to submit
to a sample pursuant to [section 19-2-925.6] or unless the deferred adjudication is revoked
and a sentence is imposed.” § 19-2-925.6(1)(e).
¶2 In 2008, a juvenile probation officer swabbed the cheek of Petitioner Ismael
Casillas, then a juvenile, to collect a DNA sample. The probation officer’s collection of
Casillas’s DNA violated section 19-2-925.6(1) because Casillas had been granted a one-
year deferred adjudication and he was not otherwise required under the statute to submit
a DNA sample. His genetic markers were nevertheless uploaded to the federal
Combined DNA Index System (CODIS).
¶3 Several months after Casillas successfully completed the terms of his deferred
adjudication and his juvenile case had been dismissed, law enforcement investigators
matched DNA evidence recovered from a stolen vehicle with the sample in the CODIS
database taken from Casillas during his juvenile deferred adjudication. As a result of the
DNA match, Casillas was identified and charged in connection with a carjacking.
¶4 Before trial, Casillas moved to suppress all evidence derived from the DNA match,
arguing that evidence derived from the unauthorized cheek swab should be excluded as
the fruits of an unlawful search in violation of his Fourth Amendment rights. The trial
court denied the motion, and a jury later convicted Casillas of criminal mischief.
3
¶5 Casillas challenged the trial court’s suppression ruling on appeal. In a published,
split ruling, the court of appeals affirmed Casillas’s conviction. People v. Casillas, 2015
COA 15, __ P.3d __. The division unanimously held that the cheek swab violated both
the juvenile DNA collection statute and the Fourth Amendment. See id. at ¶¶ 3, 18, 22, 41.
The majority held that suppression was nevertheless unwarranted because the officer
who performed the cheek swab was “performing nothing more than a supervisory
function under the direction of the juvenile court,” and therefore, suppression “would
have no deterrent value.” Id. at ¶ 38. Judge Webb dissented, concluding that Casillas’s
motion to suppress should have been granted. Id. at ¶¶ 42, 54 (Webb, J., dissenting).
¶6 We granted Casillas’s petition for a writ of certiorari to review whether the
exclusionary rule requires suppression of the evidence derived from the juvenile
probation officer’s unauthorized collection of Casillas’s DNA in this case.1 We conclude
that it does. Accordingly, we reverse and remand with instructions to vacate Casillas’s
conviction.
1 We granted certiorari to review the following issues:
1. Whether the court of appeals erred when it concluded that an
unreasonable search by a juvenile probation officer does not require the
application of the exclusionary rule.
2. Whether taking evidence in violation of the applicable statute requires
suppression of that evidence.
4
I. Facts and Procedural History
¶7 In June 2008, Petitioner Ismael Casillas, then a juvenile, entered into a stipulated,
one-year deferred adjudication for drug possession. The stipulation required him to be
under the supervision of the juvenile probation department. Soon thereafter, a juvenile
probation officer subjected Casillas to a buccal swab (commonly referred to as a “cheek
swab”)2 and entered his genetic markers into CODIS.3 Why the officer took the swab
remains unknown; nothing in the record sheds light on his reasons for doing so. Casillas
eventually successfully completed the terms of his deferred adjudication, and his case
was dismissed with prejudice in May 2009.
¶8 Several months later, three young men ambushed an older man and stole his car.
Within hours, the victim’s car was found wrecked. A crime scene investigator discovered
blood stains on the inside of the front passenger door, and the police submitted samples
of this blood evidence to the Colorado Bureau of Investigation (CBI) for testing against
2A buccal swab is a method of gathering DNA that typically involves rubbing a cotton
swab inside a subject’s mouth against the interior of his or her cheek.
3The federal Combined DNA Index System—CODIS, for short—is a set of databases
available to law enforcement agencies across the country for law enforcement purposes.
See Frequently Asked Questions on CODIS and NDIS, Fed. Bureau of Investigation,
https://perma.cc/C97H-Q58M. Using CODIS, law enforcement officers can compare
crime scene evidence to a database of DNA profiles obtained from convicted offenders.
Id. CODIS can also be used to link DNA evidence obtained from different crime scenes,
thereby identifying serial criminals. Id.
5
DNA profiles in CODIS. This testing revealed that the blood evidence found in the car
matched the profile for Casillas.
¶9 In the process of comparing the blood evidence against profiles in CODIS, a
CODIS administrator for the CBI learned that Casillas had not been eligible for DNA
testing. The CODIS administrator nevertheless informed the detective who was
investigating the carjacking of the match, noting that Casillas’s DNA had been collected
for previous offenses that did not qualify for CODIS entry. Based on the CODIS match,
the detective proceeded to include Casillas in a photo array presented to the carjacking
victim. The victim identified Casillas in the photo array as one of his assailants. As a
result, Casillas was arrested and charged with aggravated robbery and menacing.
¶10 Before trial, Casillas moved to suppress the DNA and photo array identification,
arguing that the collection of his DNA and uploading of his genetic markers to CODIS
was statutorily unauthorized and violated his Fourth Amendment rights. At the
suppression hearing, Casillas presented email correspondence showing that, when the
blood evidence from the stolen car was matched with his DNA profile in CODIS, the
CBI’s CODIS administrator realized that Casillas’s DNA profile had been improperly
uploaded into the system. The CODIS administrator contacted a probation analyst with
the State Court Administrator’s Office to confirm, writing: “It looks like I have another
CODIS hit to an offender with a deferred sentence . . . . It looks like he was not eligible,
but I need you to confirm that.” The probation analyst responded, confirming that
Casillas was a juvenile “under a deferred adjudication for . . . a felony drug charge,” that
6
he “successfully completed his deferred adjudication,” and that Casillas therefore was
“not eligible for DNA testing on this case.” Casillas also presented records reflecting that
the detective who included Casillas in the photo array based on the DNA match knew
that the match was based on a “non-qualifying offense submission.” Records admitted
at the suppression hearing further showed that, the same day the CODIS administrator
disclosed the match to the detective, Casillas’s DNA profile was expunged from the
CODIS database, apparently at the request of the probation analyst from the State Court
Administrator’s Office. The juvenile probation officer who took Casillas’s cheek swab
did not testify.
¶11 Casillas argued that the buccal swab conducted by the juvenile probation officer
was an unlawful search under the Fourth Amendment, and that both the DNA
identification and photo-array identification should be excluded as fruits of an unlawful
search and seizure of his genetic markers. The People conceded that the collection of
Casillas’s DNA was not authorized under section 19-2-925.6, but argued that suppression
was unwarranted as a remedy for the statutory violation. In so doing, the People did not
contend that the probation officer took the cheek swab as the result of a good faith
mistake of fact or law. See § 16-3-308, C.R.S. (2018) (permitting proponent of evidence to
argue that evidence seized by a peace officer was the result of a “good faith mistake” or
“technical violation” and thus should not be suppressed). Instead, the People argued that
the buccal swab was justified under the “special needs” exception to the warrant
7
requirement under the Fourth Amendment, citing People v. Shreck, 107 P.3d 1048, 1052
(Colo. App. 2004).
¶12 The trial court denied Casillas’s motion. In its written order, the court noted that
it was not given a copy of the order placing Casillas on a deferred adjudication, and
inaccurately described Casillas as having been “placed on probation.” From this
mistaken factual premise, the court reasoned that the cheek swab did not violate the
juvenile DNA collection statute because section 19-2-925.6(1)(e)(III) indicates that a
sample may be taken from a juvenile felony offender who is “sentenced to probation.”
The trial court further reasoned that, even if the search was not statutorily authorized,
suppression was unwarranted because there was no evidence of willful or recurring
violation of the statute. The court also agreed with the People that the search was justified
under the special needs exception to the warrant requirement, and therefore did not
violate the Fourth Amendment. At trial, a jury ultimately convicted Casillas of criminal
mischief (a lesser non-included offense) but acquitted him of all other counts. The court
sentenced Casillas to six years of probation.
¶13 In a divided opinion, the court of appeals affirmed the trial court’s suppression
ruling, but on different grounds. People v. Casillas, 2015 COA 15, ¶ 41, __ P.3d __. The
division unanimously held that Casillas’s cheek swab violated the juvenile DNA
collection statute because: (1) it was undisputed that the juvenile court had granted
Casillas a deferred adjudication; (2) he was not required to submit a DNA sample under
another section of the juvenile DNA collection statute; and (3) he had successfully
8
completed his deferred adjudication. See id. at ¶¶ 3, 18, 41. It also unanimously held
that the cheek swab was an unreasonable search under the Fourth Amendment. See id.
at ¶¶ 22, 41. The division majority held that suppression was nevertheless unwarranted
because the officer who performed the cheek swab was “performing nothing more than
a supervisory function under the direction of the juvenile court,” and therefore,
suppression “would have no deterrent value.” Id. at ¶¶ 38, 41. Accordingly, the division
majority affirmed Casillas’s conviction. Id. at ¶¶ 3, 41.
¶14 Judge Webb dissented, disagreeing with the majority’s assertion that a juvenile
probation officer performs a merely supervisory function for the juvenile court and
instead reasoning that juvenile probation officers have broad law enforcement powers.
Id. at ¶¶ 43–44 (Webb, J., dissenting). He argued that juvenile probation officers have a
stake in law enforcement activities because they provide information for arrest warrants,
execute arrest warrants, take suspects into temporary custody, and otherwise enforce the
laws of the state. Id. at ¶ 47. He also noted that the prosecution could have, but did not,
invoke the statutory “good faith mistake” exception under section 16-3-308, and thus, any
lack of explanation in the record regarding the probation officer’s reason for taking the
cheek swab weighs in favor of—not against—suppression. Id. at ¶¶ 51–52. Because
suppression would deter future violations, Judge Webb concluded, Casillas’s motion to
suppress should have been granted. Id. at ¶¶ 50–54.
¶15 We granted Casillas’s petition for a writ of certiorari to review the court of appeals’
opinion. The People did not file a cross-petition to challenge the court of appeals’
9
conclusions that Casillas’s cheek swab violated the juvenile DNA collection statute and
the Fourth Amendment.
II. Analysis
¶16 The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. “[U]sing a buccal swab on the inner tissues of a person’s cheek in order
to obtain DNA samples is a search” for purposes of the Fourth Amendment. Maryland
v. King, 569 U.S. 435, 446 (2013).
¶17 Here, the court of appeals unanimously concluded that Casillas’s cheek swab
violated both the juvenile DNA collection statute and the Fourth Amendment. The
People do not challenge these conclusions. Thus, the sole question is whether the
evidence derived from the unauthorized cheek swab should be suppressed.
A. Standard of Review
¶18 When reviewing a lower court’s ruling on a suppression motion, this court is
presented with mixed issues of law and fact. People v. Martin, 222 P.3d 331, 334 (Colo.
2010). Where sufficient evidence exists in the record to support a trial court’s findings of
fact, we defer to those findings. People v. Kutlak, 2016 CO 1, ¶ 13, 364 P.3d 199, 203. But
the trial court’s conclusions of law—i.e., the legal effect of those factual findings—we
review de novo. See id.
B. Exclusionary Rule
¶19 “The Fourth Amendment contains no provision expressly precluding the use of
evidence obtained in violation of its commands. . . .” United States v. Leon, 468 U.S. 897,
10
906 (1984). Nonetheless, to effectuate the Fourth Amendment’s guarantee against
unreasonable searches and seizures, the Supreme Court developed the exclusionary rule.
Illinois v. Krull, 480 U.S. 340, 347 (1987) (citing United States v. Calandra, 414 U.S. 338,
348 (1974)). When applicable, the exclusionary rule “forbids the use of improperly
obtained evidence at trial,” Herring v. United States, 555 U.S. 135, 139 (2009), as well as
“evidence later discovered and found to be derivative of an illegality,” Utah v. Strieff, __
U.S. __,136 S. Ct. 2056, 2061 (2016) (quoting Segura v. United States, 468 U.S. 796, 804
(1984)). The rule, which operates as a judicially created remedy, seeks to safeguard
Fourth Amendment rights generally through the rule’s deterrent effect. Leon, 468 U.S. at
906.
¶20 Recently, this court has used language suggesting that exclusion necessarily
follows from an unlawful search. See, e.g., People v. Zuniga, 2016 CO 52, ¶ 14, 372 P.3d
1052, 1057 (“If a warrantless search violates the Fourth Amendment . . . then the remedy
is suppression of the evidence obtained.”); People v. Ackerman, 2015 CO 27, ¶ 12, 346
P.3d 61, 65 (“If a [search] violates the Fourth Amendment, then its results constitute fruit
of the poisonous tree and must be suppressed based on the exclusionary rule.”).
¶21 However, “the exclusionary rule should not automatically apply every time a
Fourth Amendment violation is found. . . .” People v. Gutierrez, 222 P.3d 925, 941 (Colo.
2009). Because “the exclusionary rule is intended to deter improper police conduct[,]” it
“should not be applied in cases where the deterrence purpose is not served, or where the
benefits associated with the rule are minimal in comparison to the costs associated with
11
the exclusion of probative evidence.” People v. Altman, 960 P.2d 1164, 1168 (Colo. 1998)
(internal quotation marks omitted); see also Davis v. United States, 564 U.S. 229, 237
(2011) (noting that the rule’s operation is limited to situations in which its deterrent
purpose is served); Herring, 555 U.S. at 141 (holding that “the benefits of deterrence must
outweigh” the heavy costs of excluding reliable and trustworthy evidence bearing on
guilt or innocence).
¶22 Because the exclusionary rule “serves to deter deliberate, reckless, or grossly
negligent conduct, or in some circumstances recurring or systemic negligence,” to
warrant its application, law enforcement conduct must be “sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is
worth the price paid by the justice system.” Herring, 555 U.S. at 144. The pertinent
analysis of deterrence and culpability is objective and does not inquire into an officer’s
subjective intent. Id. at 145. Rather, the inquiry is “‘confined to the objectively
ascertainable question whether a reasonably well trained officer would have known that
the search was illegal’ in light of ‘all of the circumstances.’” Id. (quoting Leon, 468 U.S.
at 922 n.23). Evidence should be suppressed, for example, where “the law enforcement
officer had knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.” Krull, 480 U.S. at 348–49 (quoting
United States v. Peltier, 422 U.S. 531, 542 (1975)).
12
C. Suppression Is Warranted Here
¶23 The People note that the U.S. Supreme Court has held that suppression is generally
inappropriate where the Fourth Amendment violation results not from police
misconduct, but instead from an error within the judicial branch. In Leon, for example,
the Court rejected suppression as a remedy where officers acted in reasonable reliance on
a search warrant that was issued by a neutral magistrate but was later found to be
unsupported by probable cause. 468 U.S. at 900, 913, 922. The Court reasoned that the
exclusionary rule is “designed to deter police misconduct rather than to punish the errors
of judges and magistrates.” Id. at 916; see also Massachusetts v. Sheppard, 468 U.S. 981,
990 (1984) (rejecting suppression where search warrant was invalid but “it was the judge,
not the police officers, who made the critical mistake”). Similarly, in Arizona v. Evans,
514 U.S. 1, 14 (1995), the Court held that suppression was not warranted where an
officer’s unlawful seizure stemmed from a mistake by court employees. There, the officer
acted in reliance on an outstanding arrest warrant that in fact had been quashed. Id. at 4.
The error was traced to the court clerk’s office, which had failed to notify the sheriff’s
office to update its computer records. Id. at 4–5. The Court reasoned that exclusion of
the evidence seized during the arrest would not deter future mistakes by court employees
because unlike police officers, “court clerks are not adjuncts to the law enforcement team”
engaged in “ferreting out crime,” and “have no stake in the outcome of particular
criminal prosecutions.” Id. at 15; see also Krull, 480 U.S. at 350–51; People v. Gall, 30 P.3d
145, 150 (Colo. 2001) (“Because neutral judicial officers have no stake in the outcome of
13
particular criminal proceedings, the threat of exclusion cannot be expected to
significantly modify their behavior.”). Nor could suppression reasonably be expected to
alter the behavior of the arresting officer, who simply relied on the police computer
records. Evans, 514 U.S. at 15.
¶24 The People rely on this line of case law to argue that suppression is unwarranted
here because the juvenile probation officer who performed the cheek swab is akin to the
court employee in Evans for whom suppression would have no appreciable deterrent
effect. We disagree for three reasons.
¶25 First, in the cases relied on by the People, the law enforcement official who
conducted the search acted in reasonable reliance on information provided by a third
party—in those cases, a court official or court employees. That information later proved
to be inaccurate, because the third party—not the officer—made a mistake. Suppression
served no appreciable deterrent purpose in those cases because the officers who
conducted those searches had no reason to question the validity of the warrants under
which they acted or otherwise suspect they were not complying with the law. In short,
there was “no police illegality and thus nothing to deter.” Leon, 468 U.S. at 921.
“Penalizing the officer for the [third party]’s error, rather than his own, cannot logically
contribute to the deterrence of Fourth Amendment violations.” Leon, 468 U.S. at 921; see
also Herring, 555 U.S. at 137–39, 144–45 (rejecting suppression where officer relied on
outdated warrant in police records and mistake was attributed to the “nonrecurring and
attenuated negligence” of another police employee).
14
¶26 Nothing in the record here, however, suggests the juvenile probation officer who
performed Casillas’s cheek swab did so in reasonable reliance on misinformation
provided by a third party. Unlike the magistrate in Leon, the court employee in Evans,
or even the fellow police employee in Herring—third parties who provided erroneous
information to the law enforcement officer who conducted the search—the juvenile
probation officer here performed the cheek swab and collected Casillas’s DNA himself.
Thus, the error giving rise to the unlawful search and seizure was not attenuated;
suppression here would target the officer’s own mistake, not someone else’s.
¶27 Second, although juvenile probation officers are appointed by the court, see § 19-2-
204(1)–(2), C.R.S. (2018), they are much more akin to “adjuncts to the law enforcement
team” than judicial officers or court clerk employees, see Krull, 480 U.S. at 348, 350–51;
Leon, 468 U.S. at 917. As noted by Judge Webb in his dissent, juvenile probation officers
have broad law enforcement powers. Casillas, ¶ 43 (Webb, J., dissenting). Like a law
enforcement officer, a juvenile probation officer is considered a “peace officer” under
Colorado law. § 16-2.5-101(1), (3), C.R.S. (2018); § 19-2-926(4), C.R.S. (2018); cf. Minnesota
v. Murphy, 465 U.S. 420, 432 (1984) (recognizing that a probation officer “is a peace
officer, and as such is allied, to a greater or lesser extent, with his fellow peace officers”
(internal quotation marks omitted)). As peace officers, juvenile probation officers have
“authority to enforce all laws of the state of Colorado” and may carry firearms while
performing their duties. § 16-2.5-101(1), (2). Moreover, juvenile probation officers may
15
take juveniles into temporary custody, see § 19-2-502(3), C.R.S. (2018), and may execute
arrest warrants, see § 19-2-503, C.R.S. (2018).
¶28 Third, we disagree that the officer here was “performing nothing more than a
supervisory function under the direction of the juvenile court.” See Casillas, ¶ 38. CODIS
exists to allow law enforcement to match DNA found at crime scenes with genetic profiles
in the database in order to identify suspected perpetrators of crimes. A cheek swab
performed to collect an individual’s DNA for entry into the CODIS database therefore
serves an inherent law enforcement purpose.
¶29 In their answer brief to this court, the People argue for the first time that
suppression is unwarranted because the cheek swab was taken as a result of the juvenile
probation officer’s reasonable mistake of law. See Heien v. North Carolina, __ U.S. __,
135 S. Ct. 530, 539 (2014) (“[W]e have looked to the reasonableness of an officer’s legal
error in the course of considering the appropriate remedy for a constitutional violation. .
. .”). We disagree. As noted above, however, the People did not invoke the statutory
good faith mistake exception under section 16-3-308, either in the trial court or the court
of appeals, and thus, this argument is forfeited. Regardless, it fails.
¶30 Heien addressed an officer’s misinterpretation of the law as it pertained to
whether there was any Fourth Amendment violation at all. 135 S. Ct. at 539 (“Here, . . .
the mistake of law relates to the antecedent question of whether it was reasonable for an
officer to suspect that the defendant’s conduct was illegal. If so, there was no violation
of the Fourth Amendment in the first place.”). In other words, in Heien, the officer’s
16
misunderstanding of the law factored into whether the seizure itself was reasonable. But
that is not the question before us. Here, a court has concluded that the cheek swab taken
by the juvenile probation officer was an unreasonable search under the Fourth
Amendment. The People do not challenge that ruling. The only question is whether the
exclusionary rule applies.
¶31 Notably, the two cases cited in Heien for the proposition that suppression is not
warranted because of an officer’s reasonable mistake of law concerned situations where
an officer reasonably relied on binding appellate case law that was subsequently
overturned, Davis, 564 U.S. at 232 (holding that “searches conducted in objectively
reasonable reliance on binding appellate precedent are not subject to the exclusionary
rule”), or an officer enforced an existing statute that was later deemed unconstitutional,
Krull, 480 U.S. at 350 (reasoning that suppression would have little deterrent effect where
officer “simply fulfilled his responsibility to enforce the statute as written” and statute
was later declared unconstitutional). See Heien, __U.S.__, 135 S. Ct. at 539. Neither case
concerned the officer’s misinterpretation of the law; rather, in both Davis and Krull, the
officer followed binding case law or the statute as written. The “mistake” of law in those
cases, therefore, was not a question of the officer’s interpretation, but rather, the fact that
the law on which the officer relied was later deemed invalid—something the officer could
not have foreseen. For that reason, suppression was not warranted in those cases.
¶32 Here, by contrast, the People do not contend that the juvenile probation officer
reasonably followed the law as written but was mistaken as to its constitutionality.
17
Rather, the People argue that the officer reasonably misinterpreted the law. But the
search performed here was not based on any objectively reasonable interpretation of the
statute. Cf. Heien, 135 S. Ct. at 539–40 (2014) (noting that although the Fourth
Amendment tolerates objectively reasonable mistakes of law, “an officer can gain no
Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to
enforce”). As recognized by the CBI’s CODIS administrator, confirmed by the probation
analyst at the State Court Administrator’s Office, and conceded by the People below, the
cheek swab taken by the juvenile probation officer violated the juvenile DNA collection
statute because Casillas was under a deferred adjudication and he was not otherwise
required under section 19-2-925.6 to submit a DNA sample. He was never “sentenced to
probation”; he was placed under the supervision of the juvenile probation office as a
condition of his deferred judgment.
¶33 Importantly, the statutory violation here concerned the propriety of the search
itself, directly implicating Casillas’s Fourth Amendment rights. See People v. McKinstry,
843 P.2d 18, 20 (Colo. 1993) (“[W]here an officer has obtained evidence in violation of a
statute or regulation, the exclusionary rule is not triggered unless the unauthorized
conduct also amounts to a constitutional violation.”). Moreover, the Colorado Children’s
Code generally gives heightened protection to juvenile privacy. For instance, the
legislative declaration to the Children’s Code Records and Information Act, which
governs, among other things, access to juvenile delinquency records, recognizes that
information obtained through juvenile proceedings “is highly sensitive and has an
18
impact on the privacy of children,” and that “[t]he disclosure of sensitive information
carries the risk of stigmatizing children.” § 19-1-302(1)(a), C.R.S. (2018). Consistent with
this declaration, the Children’s Code severely limits access to juvenile arrest, criminal,
and probation records. See § 19-1-304(2)(b.5)–(c), C.R.S. (2018). In sum, a reasonably
well-trained juvenile probation officer—familiar with the provisions of the Children’s
Code—should have known that the search of Casillas was illegal under the
circumstances. See Herring, 555 U.S. at 145; Leon, 468 U.S. at 922 n.23.
¶34 As discussed above, the deterrence benefits of exclusion, and thus the rule’s
application, depend on the culpability of the law enforcement conduct at issue. Davis,
546 U.S. at 238. When the police act with “deliberate, reckless, or grossly negligent”
disregard for Fourth Amendment rights, “or in some circumstances recurring or systemic
negligence,” Herring, 555 U.S. at 144, then the benefits of exclusion “tend to outweigh the
resulting costs,” Davis, 564 U.S. at 238 (citing Herring, 555 U.S. at 144). Put differently,
“evidence should be suppressed ‘only if it can be said that the law enforcement officer
had knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.’” Herring, 555 U.S. at 143 (quoting Krull,
480 U.S. at 348–49).
¶35 Here, the juvenile probation officer who performed the buccal swab “may
properly be charged with knowledge[] that the search was unconstitutional under the
Fourth Amendment.” Id. Moreover, the record suggests this was not an isolated
incident, given the email from the CBI’s CODIS administrator to the probation analyst at
19
the State Court Administrator’s Office, acknowledging: “It looks like I have another
CODIS hit to an offender with a deferred sentence” (emphasis added).
¶36 Finally, we conclude that suppression would have a deterrent effect. The goal of
the exclusionary rule is to “remov[e] inducements to unreasonable invasions of privacy.”
Leon, 468 U.S. at 900. Indeed, the exclusionary rule “compel[s] respect for the
constitutional guaranty in the only effectively available way—by removing the incentive
to disregard it.” Elkins v. United States, 364 U.S. 206, 217 (1960). Left undisturbed, the
court of appeals’ decision would have the opposite effect: “[e]xempting evidence illegally
obtained by a [juvenile probation] officer from the exclusionary rule would greatly
increase the temptation to use the [juvenile probation] officer’s broad authority to
circumvent the Fourth Amendment.” United States v. Payne, 181 F.3d 781, 788 (6th Cir.
1999). Given that law enforcement would benefit from the ability to identify more
suspected perpetrators of crimes if the database were more comprehensive, and without
the risk that unlawfully obtained evidence would be excluded from future criminal
prosecutions, the incentive exists to take DNA from every juvenile whether authorized
or not. This is the kind of constitutional hazard that the exclusionary rule was meant to
reduce.
III. Conclusion
¶37 We hold that the exclusionary rule requires suppression of the evidence derived
from the juvenile probation officer’s unauthorized collection of Casillas’s DNA in this
case. All the evidence connecting Casillas to the carjacking was derived from the initial
20
unlawful seizure of his DNA. Without the unauthorized cheek swab, Casillas’s DNA
would not have been in CODIS, the police would not have obtained a match to Casillas’s
genetic profile, and the detective could not have prepared the photo array presented to
the victim and used to identify Casillas. Accordingly, we reverse and remand with
instructions to vacate Casillas’s conviction.
JUSTICE SAMOUR dissents.
JUSTICE GABRIEL does not participate.
21
JUSTICE SAMOUR, dissenting.
¶38 Billy Joel aptly recognized in one of his hit songs that “we’re only human” and are
“allowed to make [our] share of mistakes.” Billy Joel, You’re Only Human (Second
Wind), on Billy Joel’s Greatest Hits (Columbia Rec. 1985). Yet, today, the majority
suppresses evidence derived from a search conducted as a result of a juvenile probation
officer’s mistake of law, without meaningfully analyzing whether the mistake was
objectively reasonable. Because the ultimate touchstone of the Fourth Amendment is
reasonableness—not perfection—and because the exclusionary rule does not seek to
deter objectively reasonable mistakes, I respectfully dissent.
I. Introduction
¶39 The majority discusses this case’s factual and procedural history in some detail.
Maj. op. ¶¶ 7–15. Therefore, I do not repeat it here.
¶40 I agree with the majority that, since the People did not seek review of the court of
appeals’ conclusion that Casillas’s cheek swab violated both the DNA collection statutory
provision in question and the Fourth Amendment, the only issue before us is whether
application of the exclusionary rule is warranted as a remedy. Id., ¶ 17. In analyzing this
question, I have no qualms with the majority’s determinations that juvenile probation
officers are more akin to “adjuncts to the law enforcement team” than to judicial officers
or court employees, see id., ¶ 27, and that the juvenile probation officer who collected
Casillas’s cheek swab did not rely on misinformation provided by a third party, see id.,
¶ 26. Further, like the majority, I cannot side with the court of appeals’ determination
that suppression of the cheek swab is not justified because the juvenile probation officer
1
was simply performing a supervisory function pursuant to instructions from the juvenile
court. Id., ¶ 28.
¶41 Where my colleagues and I part ways is (1) in their implied conclusion that the
mistake of law by the juvenile probation officer was not objectively reasonable and,
instead, rose to the level of deliberate, reckless, or grossly negligent disregard for Fourth
Amendment rights or recurring or systemic negligence, see id., ¶¶ 34–35;1 and (2) in their
determination that suppression would have a deterrent effect because, otherwise, “the
incentive exists to take DNA from every juvenile whether authorized or not,” see id.,
¶ 36. These two disagreements are significant because the question of suppression “turns
on the culpability of the police and the potential of exclusion to deter wrongful police
conduct.” Herring v. United States, 555 U.S. 135, 137 (2009). I address each point of
contention in turn.
II. Analysis
A. The Mistake of Law Was Objectively Reasonable
¶42 In Heien v. North Carolina, __ U.S. __, 135 S. Ct. 530 (2014), the United States
Supreme Court addressed whether a traffic stop based on a police officer’s mistaken
understanding of the law violated the Fourth Amendment. There, an officer pulled over
1 The majority states that the juvenile probation officer “may properly be charged with
knowledge[] that the search was unconstitutional under the Fourth Amendment” and
that the record before us “suggests this was not an isolated incident.” Maj. op. ¶ 35.
2
a car after noticing that only one of its brake lights was functional. Id. With the
defendant’s consent, two officers searched the car and found cocaine. Id. The defendant
was subsequently charged with a cocaine trafficking offense. Id. at 535. Before trial, the
court denied the defendant’s motion to suppress the evidence recovered from the car,
rejecting his argument that the stop and search violated the Fourth Amendment. Id.
¶43 The North Carolina Court of Appeals reversed, holding that the stop was
objectively unreasonable and ran afoul of the Fourth Amendment because the vehicle
code required only one working brake light.2 Id. On appeal, the prosecution did not
challenge the intermediate appellate court’s interpretation of the vehicle code;
consequently, the North Carolina Supreme Court assumed that Heien’s faulty brake light
was not a violation of the vehicle code. Id. But the North Carolina Supreme Court
nevertheless concluded that the stop was valid and consistent with the Fourth
Amendment because the officer’s mistaken interpretation of the law was reasonable. Id.
¶44 The United States Supreme Court agreed. The Court emphasized that “[t]o be
reasonable is not to be perfect,” and since the Fourth Amendment’s “ultimate touchstone
. . . is reasonableness,” it “allows for some mistakes on the part of government officials,
giving them fair leeway for enforcing the law in the community’s protection.” Id. at 536
(quoting Riley v. California, 573 U.S. __, 135 S. Ct. 2473, 2482 (2014)) (internal quotation
2The court focused on the code’s references to “a stop lamp” and “[t]he stop lamp” in the
singular. Heien, 135 S. Ct. at 535.
3
marks omitted). The Court added that, just as searches and seizures based on mistakes
of fact can be reasonable, so too can searches and seizures based on mistakes of law be
reasonable. Id.
¶45 Under Heien, an officer may be reasonably mistaken on the facts or on the law, but
[w]hether the facts turn out to be not what was thought, or the law turns
out to be not what was thought, the result is the same: the facts are outside
the scope of the law. There is no reason, under the text of the Fourth
Amendment or our precedents, why this same result should be acceptable
when reached by way of a reasonable mistake of fact, but not when reached
by way of a similarly reasonable mistake of law.
Id. “[T]reating legal and factual errors alike in this context” is nothing new; it is
supported by “cases dating back two centuries.” Id. at 536–37.
¶46 Casillas argues that Heien does not apply here because, rather than address the
scope of the exclusionary rule, it found that no violation of the Fourth Amendment
occurred. However, the Court in Heien acknowledged that, in previous decisions, it has
“looked to the reasonableness of an officer’s legal error in the course of considering the
appropriate remedy for a constitutional violation, instead of whether there was a
violation at all.” Id. at 539. In such cases, the Court has either found or assumed a Fourth
Amendment violation, and the evaluation of the reasonableness of an officer’s mistake of
law has been “limited to the separate matter of remedy.” Id.
¶47 Moreover, Casillas ignores that, since mere negligence by a government official is
insufficient to constitute a Fourth Amendment violation, it certainly cannot “meet the
more stringent test for triggering the exclusionary rule.” Herring, 555 U.S. at 145. “To
trigger the exclusionary rule” as a remedy for a Fourth Amendment violation, “police
4
conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by the justice system.”
Id. at 144. As the Supreme Court has reiterated, “the exclusionary rule serves to deter
deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or
systemic negligence,” not “mistakes [that] are the result of negligence.” Id. at 144, 147.
¶48 Like Casillas, the majority glosses over the holding in Heien and strains to
distinguish it from this case, noting that “Heien addressed an officer’s misinterpretation
of the law as it pertained to whether there was any Fourth Amendment violation . . . .”
Maj. op. ¶ 30. Put differently, the majority erroneously views Heien as limited to whether
a Fourth Amendment violation occurred and having no relevance to whether application
of the exclusionary rule is warranted. Id. The majority’s overly narrow reading of Heien
misconstrues the Supreme Court’s analysis. Additionally, it makes no logical sense to
apply one standard of “objectively reasonable mistake” to examine Fourth Amendment
violations and a completely different standard of “objectively reasonable mistake” to
determine application of the exclusionary rule. And, to the extent that a different
standard were to be applied, it would have to be more stringent and require conduct that
is more egregious in the exclusionary rule context. Herring, 555 U.S. at 144, 147.
¶49 There was no conduct sufficiently deliberate and sufficiently culpable here to
trigger the exclusionary rule. Therefore, under United States Supreme Court
jurisprudence, including Heien and Herring, the exclusionary rule is inapplicable in this
case.
5
¶50 The DNA collection statutory provision in question, § 19-2-925.6, C.R.S. (2018),
which addresses the “[g]enetic testing of adjudicated offenders,” provides in pertinent
part,
(1) Beginning July 1, 2007, each of the following adjudicated offenders shall
submit to and pay for collection and a chemical testing of the offender’s
biological substance sample to determine the genetic markers thereof,
unless the offender has already provided a biological substance sample for
such testing pursuant to a statute of this state:
....
(e) Every offender sentenced on or after July 1, 2007, for an offense that
would constitute a felony if committed by an adult. This paragraph (e) shall
not apply to an offender granted a deferred adjudication, unless otherwise
required to submit to a sample pursuant to this section or unless the
deferred adjudication is revoked and a sentence is imposed. The sample
shall be collected:
(I) From an offender committed to the department of human services, by
the department during the intake process but in any event within thirty
days after the offender is received by the department;
(II) From an offender sentenced to county jail or to community corrections,
by the sheriff or by the community corrections program within thirty days
after the offender is received into the custody of the county jail or the
community corrections facility;
(III) From an offender sentenced to probation, by the judicial department
within thirty days after the offender is placed on probation; and
(IV) From an offender who receives any other sentence, by the judicial
department within thirty days after the offender is sentenced.
§ 19-2-925.6 (emphases added).
¶51 Under subsection (1)(e), Casillas was not required to submit to collection of a
biological substance sample because he was granted a deferred adjudication in 2008 after
pleading guilty to an offense that would constitute a felony if committed by an adult.
6
Had he not been granted a deferred adjudication and, instead, been sentenced to
probation, he would have been required to provide a biological substance sample. See
§ 19-2-925.6(1)(e)(III). That he received a deferred adjudication meant that no
adjudication entered and no sentence (including to probation) was imposed. But the
question before us is not whether the juvenile probation officer violated the statute by
collecting Casillas’s cheek swab; there is no dispute that he did. 3 The question we are
confronted with is whether the juvenile probation officer’s mistaken understanding of
the statute as requiring Casillas to submit a biological substance sample was objectively
reasonable. The answer, in my view, is a resounding “yes.”
¶52 The second sentence in subsection (1)(e) and the single sentence in subsection
(1)(e)(III) can reasonably be read together as stating that the requirement to submit to
collection of a biological substance sample does not apply to an offender who receives a
deferred adjudication, “unless“ such offender is “sentenced to probation.” Id. Of course,
3 The majority asserts that “nothing in the record sheds light on [the juvenile probation
officer’s] reasons” for collecting a cheek swab from Casillas. Maj. op. ¶ 7. Respectfully,
this is something of a red herring. The district court reasonably concluded from the
record that Casillas “consented to the taking of the genetic material” as a condition of his
supervision. The court of appeals reached the same conclusion. See People v. Casillas,
2015 COA 15, ¶ 2 (“The terms of the deferred adjudication required [Casillas] to be under
the supervision of the juvenile probation department,” and “Casillas’ juvenile probation
officer later swabbed Casillas’ cheek for a DNA sample.”). Furthermore, there is no
disagreement that subsection (1)(e) governs the collection—by the judicial department
(which includes probation)—of any genetic or biological substance sample from a
juvenile offender like Casillas believed, albeit incorrectly, to have been sentenced to
probation.
7
as mentioned, Casillas was not “sentenced” to probation, and could not have been
“sentenced” to probation, because he received a deferred adjudication. But the juvenile
court ordered him supervised by probation while on his deferred adjudication. And the
difference between being sentenced to probation and being ordered supervised by
probation while on a deferred adjudication is too nuanced to allow us to fairly conclude
that a juvenile probation officer’s failure to discern it is a deliberate, reckless, or grossly
negligent disregard of Fourth Amendment rights. Because Casillas’s deferred
adjudication was ordered supervised by probation, it was objectively reasonable for the
juvenile probation officer to believe, admittedly mistakenly, that subsection (1)(e)
required Casillas to provide a biological substance sample.
¶53 Significantly, the record reflects that the juvenile probation officer was not the only
one who misunderstood subsection (1)(e). The district court judge who denied Casillas’s
motion to suppress, an individual trained in the law who possesses legal experience,
appears to have construed subsection (1)(e) as the juvenile probation officer did. The
judge believed that Casillas was required to provide a biological substance sample, even
though he received a deferred adjudication, because he was “sentenced to probation.” In
other words, the judge missed the same subtle difference in the statute the juvenile
probation officer did between being “sentenced to probation” and being ordered
supervised by probation while on a deferred adjudication. In concluding that the juvenile
probation officer did not violate the statute, the judge reasoned that the evidence at the
hearing established that Casillas “had been placed on a deferred adjudication with
8
probation,”4 and that “[s]ubsection (e)(III) indicates that a genetic sample may be taken
from an offender sentenced to probation.”5
¶54 One other judicial officer in this case blurred the difference between being
“sentenced to probation” and being ordered supervised by probation while on a deferred
adjudication. In 2009, the judicial officer presiding over Casillas’s underlying juvenile
case ordered “Probation and Jurisdiction terminated successfully.” (Emphasis added.)
And the probation analyst referenced by the majority likewise mentioned in an email that
Casillas had “completed his deferred adjudication” and had been “released from
probation in May 2009.” (Emphasis added.)
4Elsewhere in its written order, the trial court seemed to incorrectly equate the fact that
Casillas’s deferred adjudication was to be supervised by probation with being “placed on
probation.”
5 The majority implies that the district court did not misunderstand the statute or fail to
apprehend the difference between being sentenced to probation and being ordered
supervised by probation while on a deferred adjudication. Maj. op. ¶ 12. Instead, asserts
the majority, the district court had an insufficient record before it, which caused it to
inaccurately believe Casillas had been sentenced to probation. Id. The record does not
support the majority’s perception. In its written order denying the motion to suppress,
the district court expressly noted that Casillas had “entered into a deferred adjudication”
and “was also placed on probation.” Later in the same order, the district court reiterated
that it “appear[ed] undisputed that [Casillas] had been placed on a deferred adjudication
with probation.” Thus, contrary to the majority’s characterization, the district court did
not rely on a “mistaken factual premise”; rather, the district court mistakenly believed,
as did the juvenile probation officer, that Casillas’s probation-supervised deferred
adjudication meant he was “an offender sentenced to probation” who was subject to the
collection requirement in subsection (1)(e). Id.
9
¶55 The legislature made a similar mistake in 2006 in drafting the predecessor to
section 19-2-925.6, although that statute never became effective. In the 2006 Session Laws,
the legislature stated:
(1) Beginning July 1, 2007, the following adjudicated delinquents must
submit to and pay for a chemical testing of the person’s biological substance
sample to determine the genetic markers thereof:
(a) Every person sentenced on or after July 1, 2007, for an offense that would
constitute a felony if committed by an adult. This paragraph (a) shall not
apply to persons sentenced to probation pursuant to a deferred
adjudication, unless otherwise required to submit to a sample in this
section, or unless the deferred sentencing is revoked and a sentence is
entered. The sample shall be collected:
....
(III) For sentences to probation, no later than thirty days after the offender
is placed on probation.
Ch. 339, § 19-2-925.6, 2006 Colo. Sess. Laws 1687, 1690–91 (emphases added). Thus, like
the juvenile probation officer, the district court judge who denied Casillas’s motion to
suppress, the juvenile court judge who presided over Casillas’s underlying case, and the
probation analyst quoted by the majority, the 2006 legislature apparently believed that a
defendant ordered supervised by probation while on a deferred adjudication was a
defendant “sentenced to probation pursuant to a deferred adjudication.” Id. (emphasis
added).
¶56 Although the majority gives Heien short shrift, the Supreme Court’s analysis is
instructive in assessing the reasonableness of the juvenile probation officer’s error of law.
Notwithstanding its acknowledgement that the North Carolina statute’s reference to “a
stop lamp” in the singular suggested that only one working brake light was required, the
10
Court had “little difficulty concluding that the officer’s error of law was reasonable.”
Heien, 135 S. Ct. at 540 (emphasis in original). The Court observed that the statute also
provided that “[t]he stop lamp may be incorporated into a unit with one or more other
rear lamps,” see id. (quoting N.C. Gen. Stat. Ann. § 20-129(g) (2007)) (alteration and
emphasis in original), which “suggest[ed] to the everyday reader of English that a ‘stop
lamp’ [was] a type of ‘rear lamp,’” see id. (quoting § 20-129(g)). Additionally, a different
subsection of the statute, subsection (d), required cars to “have all originally equipped
rear lamps or the equivalent in good working order,” which, the Court explained, was
“arguably” an “indicat[ion] that if a vehicle has multiple ‘stop lamp[s],’ all must be
functional.” Id. (quoting § 20-129(d)) (second alteration in original). Given the use of the
word “other” in subsection (g), the Court determined that “it would at least have been
reasonable to think” that the “rear lamps” referenced in subsection (d) included brake
lights. Id.
¶57 The juvenile probation officer’s mistaken understanding of subsection (1)(e) was
no less reasonable than the officer’s mistaken understanding of the “stop lamp” provision
addressed in Heien. Just as it was reasonable for the officer in Heien to think that the
North Carolina traffic code required two functional brake lights, it was reasonable for the
juvenile probation officer to think that subsection (1)(e) required Casillas to submit to the
collection of a biological substance sample. Moreover, as was the case with the North
Carolina statute in Heien, subsection (1)(e) “had never been previously construed by [the
state] appellate courts” when the mistake of law occurred. Id.
11
¶58 There is actually more proof here than in Heien that the challenged mistake of law
was reasonable because, as indicated, the juvenile probation officer was not the only one
who made it. Although this is a circumstance the majority disregards, it is relevant to
our analysis. Cf. People v. Glasser, 293 P.3d 68, 72 (Colo. App. 2011). In Glasser, the
defendant urged the trial court to suppress, among other things, the DNA evidence used
to identify him because his biological substance sample was collected and uploaded onto
CODIS erroneously based on a plea bargain in an earlier case that included an agreement
to an illegal sentence. Id. at 72–73. As relevant here, the court of appeals refused to apply
the exclusionary rule, finding that the mistake by the prosecutor could “hardly be
considered flagrant, given that defense counsel approved and the trial court accepted the
pleas” in the earlier case. Id. at 74. While Glasser preceded Heien, its rationale is
consistent with it.
¶59 The majority concludes that the People “forfeited” their argument “that
suppression is unwarranted because the cheek swab was taken as a result of the juvenile
probation officer’s reasonable mistake of law.” See Maj. op. ¶ 29. In so doing, theThe
majority repeatedly notes that the People failed to assert—before both the district court
and the court of appeals—that Casillas’s cheek swab was collected due to “a good faith
mistake of fact or law.” Maj. op. ¶ 11; see also id., ¶ 14 (explaining that Judge Webb, in
his dissent, observed that the prosecution did not invoke the statutory “good faith
mistake” exception under section 16-3-308, C.R.S. (2018)).; id., ¶ 29 (“[T]he People did not
invoke the statutory good faith mistake exception under section 16-3-308, either in the
trial court or the court of appeals, and thus, this argument is forfeited.”). This is
12
inherently unfair. We granted Casillas’s petition for certiorari in this case to review
“[w]hether the court of appeals erred when it concluded that an unreasonable search by
a juvenile probation officer does not require the application of the exclusionary rule.” Id.,
¶ 6 n.1 (emphasis added). I do not understand how we can grant certiorari review on an
issue that directly deals with the applicability of the exclusionary rule, and then address
the issue on the merits while tying the People’s hands by silencing them with respect to
a significant aspect of that rule’s purview.
¶60 And, regardless of what arguments a party may have previously advanced,
Herring makes crystal clear that “‘an assessment of the flagrancy of the police misconduct
constitutes an important step in the calculus’ of applying the exclusionary rule.” 555 U.S.
at 143 (quoting United States v. Leon, 468 U.S. 897, 911 (1984)); see also Leon, 468 U.S. at
920 (when it is “plainly apparent” that an officer acted reasonably, suppression of the
evidence “will not further the ends of the exclusionary rule” because such suppression
“can in no way affect his future conduct,” except to “make him less willing to do his
duty”) (internal quotation marks omitted). By law, we must evaluate the flagrancy of the
juvenile probation officer’s conduct in order to determine whether the exclusionary rule
applies. Casillas is asking us to reverse the court of appeals’ decision and to apply the
exclusionary rule, and we cannot properly address the merits of his request without
assessing the reasonableness of the juvenile probation officer’s mistake of law. Whether
the juvenile probation officer’s mistake of law was reasonable is at the heart of this appeal
and critical to our decision.
13
¶61 Rather than meaningfully evaluate the reasonableness of the juvenile probation
officer’s error of law, the majority appears to conclude, rather summarily, if not circularly,
both that “the search performed here was not based on any objectively reasonable
interpretation of the statute,” see Maj. op. ¶ 32, and that the benefits of exclusion
outweigh the costs, see id., ¶¶ 34–35. The majority points out that (1) “the cheek swab
taken by the juvenile probation officer violated the juvenile DNA collection statute”; (2)
“[i]mportantly, the statutory violation here concerned the propriety of the search itself,
directly implicating Casillas’s Fourth Amendment rights”; (3) the juvenile probation
officer “may properly be charged with knowledge[] that the search was unconstitutional
under the Fourth Amendment”; and (4) because the juvenile probation officer “may
properly be charged with [such] knowledge[],” “the benefits of exclusion tend to
outweigh the costs.” Id., ¶¶ 32–35. The first two points, which are undisputed, are
irrelevant to whether the juvenile probation officer’s mistake was objectively reasonable,
and the last two points are conclusory and unaccompanied by any rationale or
explanation.
¶62 Despite Herring’s mandate, the majority seems satisfied with a standard that
generally looks at whether the government official made a mistake and pays little
attention to the reasonableness of the mistake. In Heien, Heien and the amici advocated
for a similar standard based on “the well-known maxim, ‘Ignorance of the law is no
excuse,’” and argued “that it is fundamentally unfair to let police officers get away with
mistakes of law when the citizenry is accorded no such leeway.” 135 S. Ct. at 540. The
Court was not persuaded:
14
Though this argument has a certain rhetorical appeal, it misconceives the
implication of the maxim. The true symmetry is this: Just as an individual
generally cannot escape criminal liability based on a mistaken
understanding of the law, so too the government cannot impose criminal
liability based on a mistaken understanding of the law. If the law required
two working brake lights, Heien could not escape a ticket by claiming he
reasonably thought he needed only one; if the law required only one, [the
officer] could not issue a valid ticket by claiming he reasonably thought
drivers needed two. But just because mistakes of law cannot justify either
the imposition or the avoidance of criminal liability, it does not follow that
they cannot justify an investigatory stop. And Heien is not appealing a
brake-light ticket; he is appealing a cocaine-trafficking conviction as to
which there is no asserted mistake of fact or law.
Id. (emphases added).
¶63 The majority also relies on the Colorado Children’s Code Records and Information
Act (“the Act”) to support its decision. Maj. op. ¶ 33. This is a stretch; the Act is
unavailing. There is no support for the majority’s suggestion that the “heightened
protection to juvenile privacy” under the Act leads to heightened protection under the
Fourth Amendment or somehow expands the scope of the exclusionary rule. Id. The
majority cites the legislative declaration in the Act—which provides that information
obtained through juvenile proceedings is highly sensitive and has an impact on the
privacy of children, and that its disclosure carries the risk of stigmatizing children—as
the premise for its conclusion that the juvenile probation officer “should have known that
the search of Casillas was illegal under the circumstances.” Id. Respectfully, this
conclusion is a non-sequitur. Neither the highly sensitive nature of information acquired
through juvenile proceedings nor the risk accompanying the dissemination of such
information bears on whether the juvenile probation officer’s understanding of
subsection (1)(e) was objectively reasonable.
15
¶64 In any event, I believe the majority misses the point. The issue is not whether the
juvenile probation officer was “familiar with the provisions of the Children’s Code.” Id.
He was obviously familiar with the provision of the Children’s Code addressing the
collection of DNA from juvenile offenders who receive a deferred adjudication. Indeed,
he collected a cheek swab from Casillas and submitted the sample to be uploaded onto
CODIS. The issue is whether the juvenile probation officer’s interpretation of subsection
(1)(e) was objectively reasonable.
¶65 Finally, the majority implies that this was recurring or systemic negligence
because “the record suggests” that the improper collection of a biological substance
sample from Casillas “was not an isolated incident.” Id., ¶ 35. Again, I disagree. The
record is barren of any evidence of recurring or systemic negligence.
¶66 The majority’s reliance on a single email, which was sent by the CODIS
administrator to the State Court Administrator’s Office, is misplaced. That email stated:
“It looks like I have another CODIS hit to an offender with a deferred sentence. Would
you please check on Ismael Casillas . . . . It looks like he was not eligible, but I need you
to confirm that.” (Emphasis added.) First, this message establishes that there had been
more than one CODIS match to an offender with a deferred sentence, not that there had
been more than one CODIS match to an ineligible offender with a deferred sentence.
Second, even under the majority’s strained interpretation of the message as referring to
more than one CODIS match implicating an ineligible offender with a deferred sentence,
that could mean two such matches or twenty such matches, and while twenty over a
16
relatively short period may establish “recurring or systemic negligence,” two over an
unknown period certainly does not.
¶67 In short, under the circumstances present, it was objectively reasonable for the
juvenile probation officer to think that Casillas was on probation and, therefore, required
to submit to collection of a biological substance sample. Because the juvenile probation
officer’s mistake of law was objectively reasonable, it cannot be deemed to rise to the level
of deliberate, reckless, or grossly negligent disregard of Casillas’s Fourth Amendment
rights. Further, the record does not support a finding of recurring or systemic negligence.
Accordingly, I would conclude that this case falls woefully short of the type of flagrant
conduct targeted by the exclusionary rule.
B. Suppression Would Not Have a Deterrent Effect
¶68 The goal of the exclusionary rule is “to deter improper police conduct”; therefore,
the rule should not be applied where the “deterren[t] purpose is not served.” People v.
Altman, 960 P.2d 1164, 1168 (Colo. 1998) (quoting People v. Deitchman, 695 P.2d 1146,
1160 (Colo. 1985) (Dubofsky, J., concurring)). Moreover, for the exclusionary rule to
apply, “the benefits of deterrence must outweigh” the heavy costs of suppressing reliable
and trustworthy evidence bearing on guilt or innocence. Herring, 555 U.S. at 141. Stated
differently, the deterrence must be “worth the price paid by the justice system.” Id. at
144.
¶69 The majority posits that failure to apply the exclusionary rule here would create
an “incentive [ ] to take DNA from every juvenile whether authorized or not” because
law enforcement “would benefit from the ability to identify more suspected perpetrators
17
of crimes if the database were more comprehensive” and there would be no “risk that
unlawfully obtained evidence would be excluded from future criminal prosecutions.”
Maj. op. ¶ 36. Respectfully, I am unmoved by this sky-will-fall contention. The majority
forgets that “[t]he Fourth Amendment tolerates only reasonable mistakes, and those
mistakes—whether of fact or of law—must be objectively reasonable.” Heien, 135 S. Ct.
at 539 (emphases in original). In Heien, the Court rejected Heien’s doomsday claim that
failure to find a Fourth Amendment violation would “discourage officers from learning
the law.” Id. The Court explained that the subjective understanding of an officer is
irrelevant. Id. Thus, “the inquiry is not as forgiving as the one employed in the distinct
context of deciding whether an officer is entitled to qualified immunity for a
constitutional or statutory violation.” Id. As the majority in this case recognizes, “an
officer can gain no Fourth Amendment advantage through a sloppy study of the laws he
is duty-bound to enforce.” Maj. op. ¶ 32 (quoting Heien, 135 S. Ct. at 539–40).
¶70 In any case, if the majority were to determine that the exclusionary rule is
inapplicable here, a probation officer in the future would have a difficult, if not
impossible, time convincing us that his mistake in collecting a biological substance
sample from an ineligible deferred adjudication offender is objectively reasonable. This
is so because there would then be precedent clarifying that a juvenile offender on a
deferred adjudication for what would constitute a felony if committed by an adult is not
required to submit to a biological substance sample under subsection (1)(e) simply
because he is ordered supervised by probation.
18
¶71 Contrary to the majority’s ruling, there is no basis in the record to find that
application of the exclusionary rule serves the purpose of deterring improper conduct
here. To be sure, the juvenile probation officer in this case made a mistake of law. But
the mistake was objectively reasonable. Consequently, there is no flagrant conduct to be
deterred here. Nor will the benefits of deterrence, if any, outweigh the heavy costs of
exclusion to the justice system.
III. Conclusion
¶72 In sum, I respectfully disagree with the majority’s decision to apply the
exclusionary rule in this case. Instead, I would affirm the judgment of the court of appeals
on the grounds I have articulated.
19