author: COATS, Chief Judge.

text:
    Daryle D. JAMES, Appellant, v. STATE of Alaska, Appellee.
    No. A-8109.
    Court of Appeals of Alaska.
    Aug. 8, 2003.

      Dan S. Bair, Anchorage, for Appellant.
    Nancy Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

The superior court revoked Daryle D. James's probation for violating a probation condition requiring him to participate in a sex offender treatment program. James was rejected for sex offender treatment because he would not admit and take responsibility for his convictions for sexual abuse of a minor in the second degree and sexual assault in the second degree. James argues that his privilege against self-incrimination protected him from having to admit these prior offenses because he had a pending application for post-conviction relief, which, if successful, could result in a new trial at which his statements concerning these offenses could be used as evidence against him. He also points out that because he had previously testified that he had not committed the offenses, if he participated in sex offender treatment and admitted these offenses, the State could use his admissions to prosecute him for perjury. We conclude that James's refusal to discuss his offenses was protected by the privilege against self-incrimination. We therefore reverse the revocation of his probation.

Background information

James was on probation for his 1995 convictions for sexual abuse of a minor in the second degree and sexual assault in the see-ond degree, The superior court sentenced James to a composite sentence of 10 years with 4 years suspended. A special condition of James's probation required James to participate in a sex offender treatment program while incarcerated. The court placed James on probation for a period of 5 years following his release.

James subsequently filed an application for post-conviction relief. After an evidentiary hearing, Superior Court Judge Michael A. Thompson - denied James's - application. While Judge Thompson's denial of the post-conviction relief application was on appeal, James's probation officer filed a petition to revoke James's probation on the ground that James had not participated in a sex offender treatment program.

Judge Thompson held a hearing in February 2001 to determine the merits of the probation revocation petition. At the hearing, John Steven Dempsey, a clinical social worker who worked with convicted sex offenders for the Department of Corrections, testified that he had met with James to determine if James was amenable to participate in a sex offender treatment program. Dempsey testified that when he asked James about what he had done, James responded by telling Dempsey, "I've invoked the Fifth Amendment, I'm not going to talk about any of this because basically I didn't do it and I'm under appeal." Dempsey told James that it did not make any sense to talk to him until the appeal was settled. Dempsey testified that the program could not treat someone who was denying his guilt.

After Dempsey's original meeting with James, James's probation officer asked the Office of the Attorney General for an opinion about whether James had a valid privilege against self-inerimination. The Office of the Attorney General informed the department that the privilege against self-inerimination did not exeuse James from participating in sex offender treatment. James's probation officer informed James of this decision and told him that he would have another opportunity to meet with Dempsey.

At the subsequent meeting, James again denied committing the crimes for which he had been convicted and refused to talk to Dempsey because his case was on appeal. After Dempsey reported this to James's probation officer, the probation officer filed the petition to revoke James's probation.

At the conclusion of the evidentiary hearing on the petition to revoke James's probation, James argued that he had a Fifth Amendment right to remain silent and that the State could not compel him to admit that he had committed the offenses for which he had previously been convicted.

Judge Thompson ruled that James had simply not invoked his Fifth Amendment rights. He concluded that James was merely insisting that he was innocent and that this did not excuse him from satisfying the probation condition to obtain sex offender treatment. He found that James was in violation of his probation. However, Judge Thompson delayed disposition for six months in the hope that this court would issue a decision on James's application for post-conviction relief, possibly clarifying any Fifth Amendment concerns.

Approximately six months later, in August of 2001, Judge Thompson held a disposition hearing. Judge Thompson imposed 1 year of James's 4-year suspended sentence. Judge Thompson again concluded that James had not exercised his Fifth Amendment rights. He concluded that, regardless of the status of James's appeal, James would under any circumstances continue to insist that he had not committed the crimes for which he had been convicted.

James asserted his privilege against self-inecrimination

The Fifth Amendment of the United States Constitution protects a person in a criminal case from being compelled by the government to be a witness against himself. A person claiming the protection of the Fifth Amendment must affirmatively invoke it. We initially must decide whether James invoked his Fifth Amendment rights. Judge Thompson apparently concluded that James was not invoking his privilege against self-incrimination because James insisted that he did not commit the offenses for which he had been convicted. He concluded that, even if James's appeals were final, James would continue to deny committing the offenses.

But a review of the record shows that James consistently invoked his privilege against self-incrimination. Although James did repeatedly declare in his interviews with Dempsey that he was innocent, he also indicated that he was invoking the Fifth Amendment and that he would not talk about any of the offenses because he had an appeal pending. Dempsey recognized that James was invoking his Fifth Amendment rights, and he informed the Department of Corrections. In response, the Department of Corrections contacted the Office of the Attorney General to determine whether James had a valid Fifth Amendment right to refuse to discuss the offenses. The Office of the Attorney General responded that he did not, and the Department of Corrections adopted that position. Aside from Judge Thompson, there seems little question that everyone connected to the case understood that James was attempting to exercise his Fifth Amendment right to not discuss the offenses for which he had been convicted. We accordingly conclude that James invoked his right to remain silent.

James had a Fifth Amendment right to refuse to discuss the offenses for which he had been convicted

To establish a Fifth Amendment claim, parties invoking the privilege have the burden of demonstrating a valid reason to believe that their compelled statements might incriminate them. This burden is not great: "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."

There is no question that requiring James to discuss the offenses for which he had been convicted was an attempt to elicit testimonial evidence. - Furthermore, the State does not appear to contest that James's statements were compelled-because James faced imprisonment based on his failure to admit his offenses. The State contends, however, that James does not face a threat of incrimination sufficient to give rise to a Fifth Amendment claim of privilege.

In Gyles v. State, this court explained that "[a] probationer or parolee cannot validly invoke the constitutional privilege ... when there is 'no real or substantial hazard of incrimination' " "[Aln individual faces a hazard of incrimination whenever 'the answers elicited could support a conviction or might furnish a link in the chain of evidence leading to a conviction. " Thus the question becomes whether James faced a real or substantial hazard that his admitting responsibility for the crimes for which he was convicted could support a conviction or furnish a link in the chain of evidence leading to a conviction.

Dempsey, the social worker, testified that when he interviews defendants to evaluate them for treatment, the defendant's statements are not confidential, and he shares any information he obtains with the probation office. He stated that he had testified against former interviewees using information that came out during the interviews. It thus appears that James had a legitimate fear of self-incrimination.

James's case is complicated because his appeal is a collateral attack on his conviction. The State appears to concede that defendants have a valid privilege not to discuss their offense so long as a direct appeal is pending. But the State maintains that the privilege should not extend to a collateral attack. James contends that if he is forced to discuss the facts about the incidents that led to his convictions, the State could use those statements against him if he were to ultimately win a retrial on any of his remaining post-conviction relief claims. He also points out that because he testified at his original eriminal trial and denied his guilt, if he admitted committing the offenses during treatment, the State could use those statements to prosecute him for perjury. The State responds that James's chances of success on a post-conviction relief application are minimal, and therefore there is no basis to continue to extend James the privilege.

The State relies on McCormick on Evidence, which favors granting the privilege on a collateral appeal when "the facts [of the case] present a 'real and appreciable' danger of incrimination." The treatise suggests that "[iIn the absence of some specific showing that collateral attack is likely to be successful, a conviction should be regarded as removing the risk of incrimination and consequently the protection of the privilege." But James's case demonstrates the practical difficulties associated with this standard-it places the trial court in a position of reviewing its own decisions.

Judge Thompson originally dismissed James's application for post-conviction relief, after which James filed a timely appeal to this court. While that appeal was pending, the State filed its petition to revoke James's probation for failing to participate in the sex offender program. Judge Thompson presided over the probation revocation hearing as well. Thus, applying the standard suggested by the State would force Judge Thompson to reassess his earlier ruling on James's application for post-conviction relief and determine if the petition is likely to be successful-a determination he has already made. Requiring him to once again rule on the application while James's case awaits appeal is pointless because if he thought the application had any merit, he would not have dismissed it in the first place.

The State also points out that, if a defendant continues to have a privilege against self-incrimination during the pendency of a post-conviction relief application, a defendant could potentially avoid participating in a treatment program for a long period of time. The State postulates that a defendant could keep appeals going indefinitely, thereby avoiding sex offender treatment. We recognize that upholding James's exercise of his Fifth Amendment right might allow him to avoid sex offender treatment. But if James has a legitimate Fifth Amendment right, that right must trump practical difficulties raised by the legitimate exercise of that right.

The State finally rests its argument on cases from other jurisdictions that it alleges hold that "prisoners and probationers have no privilege against self-incrimination in regard to the requirement that the prisoner accept responsibility for criminal behavior during treatment." But our review of those cases shows that they are inapplicable to the cireumstances of James's appeal. In the majority of the cases that the State cites, the defendant faced no future threat of self-incrimination and therefore did not have a privilege against self-incrimination. We relied on similar cases in Gyles v. State. Other cases that the State cites are inapplicable for a variety of reasons.

One case cited by the State actually appears to support James's position. In State v. Eccles, the Arizona Supreme Court struck down probation conditions that forced the defendant to "choose between incriminating himself and losing his probationary status by remaining silent." The court only allowed a condition that required the defendant to "truthfully answer all questions that could not incriminate him in future criminal proceedings." While the court did hold that the defendant could be forced to talk about offenses for which he had already been convicted, the defendant had to do so only to the extent he had lost the privilege to remain silent. Based on the United States Supreme Court's decision in Minnesota v. Murphy, the court held that the government could "compel answers to incriminating questions only if it offers the probationer use immunity.

Another case the State cites, State v. Mace, was later vacated by the United States District Court of Vermont. Mace plead guilty to one count of lewd and lascivious conduct for his sexual conduct with his stepdaughter. Mace was required, as a condition of his probation, to participate in sex offender treatment. During treatment, Mace admitted that he had oral sex with his stepdaughter but denied having sexual intercourse with her. Mace was informed by his probation officer that his refusal to admit sexual intercourse with his stepdaughter was interfering with the successful completion of his therapy and constituted a violation of his conditions of probation, which required him to complete a sex offender therapy program. At a subsequent hearing, the trial court found that Mace violated his probation condition and revoked 60 days of his previously suspended sentence.

Mace argued that requiring him to admit having sexual intercourse with his stepdaughter violated his Fifth Amendment rights. He pointed out that he was admitting to a greater offense than the one for which he had been convicted. He argued that the State might be able to prosecute him for this greater offense. He also argued that since his stepdaughter testified that he had been having sexual intercourse with her for a substantial period of time, he still faced potential prosecution for sexual acts he committed against his stepdaughter during these different time periods. The Supreme Court of Vermont, while accepting that this was "theoretically true," concluded that Mace had not shown "a realistic threat of self-incrimination." The court upheld the revocation of Mace's probation.

Mace filed a petition for a writ of habeas corpus, and the United States District Court in the District of Vermont reversed the Supreme Court of Vermont and vacated the revocation of Mace's probation. The federal district court rejected the Vermont Supreme Court's conclusion that Mace had not shown that he faced a "realistic threat of self-incrimination." The court reasoned that Mace "should not be left to the good intentions of the State when forced to incriminate himself or face incarceration." The court stated:

Contrary to the state's position, the state has the burden of eliminating the threat of incrimination. If the state wishes to carry out rehabilitative goals in probation by compelling offenders to disclose their erim-inal conduct, it must grant them immunity from eriminal prosecution.[]

In State v. Cate, the Vermont Supreme Court adopted the reasoning of the federal district court in Mace. Cate was charged with sexual assault. He testified at trial that the sexual intercourse was consensual. He was conviected. The trial court, as part of Cate's sentence, imposed a condition of probation requiring Cate to admit his guilt as part of sex offender therapy. The court required Cate to sign an acknowledgment of responsibility for sexually assaulting the vie-tim. Cate argued that signing the acknowledgment would violate his rights against self-incrimination because it would subject him to a potential prosecution for perjury.

The Vermont Supreme Court, relying on the district court's decision in Mace, conelud-ed that Cate had a legitimate Fifth Amendment claim and that the State could not require him to sign the acknowledgment of responsibility for the sexual assault to avoid revocation of his probation. However, the court went further than the district court in protecting defendants. Rather than relying on a prosecutorial grant of immunity, the court extended judicial use immunity. The court stated:

Accordingly, in situations such as this, where the prosecutor has failed to eliminate the threat of future prosecution, we hold that the proper remedy for protecting a probationer's privilege against self-incrimination is a grant of judicial use immunity that makes any statements required for successful completion of rehabilitative probation inadmissible against a probationer at a subsequent criminal proceeding.[]

The court concluded that the trial court

may reimpose the challenged probation condition, but only if it first assures defendant on the record that statements required for successful completion of probation, and their fruits, will not be admissible against him at any subsequent criminal proceeding. Absent such assurance, the State may not seek, nor the court impose, a probation condition requiring defendant to admit culpability for the conduct of which he stands convicted.[]

Similarly, in State v. Imlay, the Montana Supreme Court upheld a defendant's Fifth Amendment rights in a case factually similar to James's. Imlay was rejected from a number of sex offender treatment programs after he repeatedly denied that he had committed a sexual offense. No outpatient sex therapy program in the state would accept him because he denied that he was guilty of sexual misconduct. As a result of Imlay's failure to complete a sex therapy program, as dictated by his conditions of probation, the trial court revoked his probation and imposed the remainder of his 5-year suspended sentence. Imlay appealed the court's order revoking his probation.

The Supreme Court of Montana concluded that requiring Imlay to admit his guilt to avoid revocation of his probation violated his rights under the Fifth Amendment. The court pointed out that Imlay "still had the right to challenge his conviction, based on newly discovered evidence, or by collateral attack." The court also pointed out that because Imlay had testified in his own defense at trial and denied his guilt, he also faced prosecution for perjury:

In addition, by admitting guilt in this case, the defendant would have to abandon his right guaranteed by the Fifth Amendment, not only as to the crime for which he has been convicted, but also to the crime of perjury. He testified in his own defense during his trial and denied committing the offense for which he was charged.
Under the cireumstances, and absent any grant of immunity, we believe that the better reasoned decisions are those decisions which protect the defendant's constitutional right against self-incrimination []

We agree with these courts that defendants in James's position face a realistic threat of self-incrimination sufficient to justify the protections of the Fifth Amendment. Like the defendants in Cate and Imlay, James testified at his trial that he did not commit the offenses for which he was convicted. Any statement that James made during therapy admitting to the offenses could be used by the State to prosecute him for perjury. Therefore, James's claim that he faced a realistic threat of self-incrimination is valid. In addition, James still had an application for post-conviction relief pending. If James was successful in that application, he could have obtained a new trial Any statements James made, particularly statements admitting responsibility for the offenses, could then be used against him. This supports James's position that he had a legitimate Fifth Amendment claim.

Conclusion

'We conclude that James asserted his Fifth Amendment rights and that he has valid reasons to fear that discussing the facts surrounding his former convictions would force him to incriminate himself, We accordingly conclude that James has a valid Fifth Amendment privilege not to be compelled to discuss the facts surrounding the charges for which he has been convicted, and his probation cannot be revoked for his failure to do so.

The judgment of the superior court is REVERSED.

      . James v. State, Alaska App. Memorandum Opinion and Judgment No. 3734, 1997 WL 796507 (Dec. 24, 1997).

      . U.S. Const. amend. V.

      . United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 410-11, 87 L.Ed. 376 (1943).

      . Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 817-18, 95 L.Ed. 1118 (1951); Gyles v. State, 901 P.2d 1143, 1148 (Alaska App. 1995).

      . Hoffman, 341 U.S. at 486-87, 71 S.Ct. at 818.

      . See McKune v. Lile, 536 U.S. 24, 36, 41, 122 S.Ct. 2017, 2026, 2029, 153 L.Ed.2d 47 (2002).

      . Gyles, 901 P.2d at 1148 (quoting State v. Gonzalez, 853 P.2d 526, 530 (Alaska 1993)).

      . Gonzalez, 853 P.2d at 530 (quoting E.L.L. v. State, 572 P.2d 786, 788 (Alaska 1977)).

      . 1 John W. Strong, McCormick on Evidence, § 120 at 465 (5th ed.1999).

      . Id.

      . See, eg., Russell v. Eaves, 722 F.Supp. 558, 560-61 (E.D.Mo.1989) (holding that Missouri sex offender treatment does not violate Fifth Amendment because no future criminal proceeding identified); State v. Gleason, 154 Vt. 205, 576 A.2d 1246, 1250 (1990) (holding that defendant's plea of nolo contendre and protections of double jeopardy removed subsequent threat of incrimination and the protections of the privilege); State v. Mace, 154 Vt. 430, 578 A.2d 104, 107-08 (1990) (holding that Fifth Amendment did not protect defendant because defendant could not be prosecuted for a greater offense, and defendant had not shown a "realistic threat of self-incrimination" regarding other prosecutions); State v. Carrizales, 191 Wis.2d 85, 528 N.W.2d 29, 30-32 (App.1995) (holding that Fifth Amendment did not protect the defendant because he had plead no contest, and in any case, the statements could only have been used for rehabilitative purposes).

      . See Gyles, 901 P.2d at 1149.

      . See, e.g., Warren v. Richland County Circuit Court, 223 F.3d 454, 457 (7th Cir.2000) (holding that sex counseling sessions did not violate defendant's plea agreement on due process grounds rather than Fifth Amendment grounds); United States v. Ross, 9 F.3d 1182, 1191 (7th Cir.1993), rev'd on other grounds, 40 F.3d 144 (7th Cir. 1994) (holding that Fifth Amendment not implicated where probation requirement inquired into defendant's possession of prohibited firearms and condition did not force him to admit responsibility for any crimes); People v. Ickler, 877 P.2d 863, 866-67 (Colo.1994) (deciding case without ever reaching or discussing issue of Fifth Amendment privilege).

      . 179 Ariz. 226, 877 P.2d 799 (1994).

      . Id. at 801.

      . Id.

      . Id. Unfortunately, the court is silent on how a defendant may lose the protections of the Fifth Amendment under such circumstances.

      . 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).

      . Eccles, 877 P.2d at 802.

      . 154 Vt. 430, 578 A.2d 104, 107-08 (1990).

      . Mace v. Amestoy, 765 F.Supp. 847 (D.Vt.1991).

      . Id. at 848.

      . Id.

      . Id.

      . Id.

      . Id. at 849.

      . Id.

      . Mace, 578 A.2d at 107-08.

      . Id.

      . Id.

      . Id. at 108.

      . Id.

      . Amestoy, 765 F.Supp. at 848.

      . Id. at 851-52.

      . Id. at 852.

      . Id. at 851-52.

      . 165 Vt. 404, 683 A.2d 1010 (1996).

      . Id. at 1018.

      . Id. at 1013.

      . Id.

      . Id. at 1014.

      . Id. at 1014, 1018.

      . Id. at 1018-19.

      . Id. at 1018.

      . Id.

      . Id. at 1019.

      . Id.

      . Id. at 1020.

      . 249 Mont. 82, 813 P.2d 979 (1991).

      . Id. at 982.

      . Id.

      . Id.

      . Id. at 985.

      . Id.

      . Id.


source: Caselaw Access Project

author: MANNHEIMER, Judge.

license: Public Domain

text:
    Justin R. HART, Appellant, v. STATE of Alaska, Appellee.
    No. A-8305.
    Court of Appeals of Alaska.
    Aug. 15, 2003.
    S. Joe Montague, Assistant Public Defender, Kenai, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Ap-pellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Last year, in McCoy v. State, 59 P.3d 747, 750-751 (Alaska App.2002), we were asked to decide whether a pre-sentence investigator is required to obtain permission from the superior court before writing a pre-sentence report that includes information about the defendant's informal involvement with the juvenile justice system-that is, contacts with the juvenile justice system that did not result in a formal adjudication of delinquency. We held that the answer was "no". In the present appeal, the defendant urges us to reconsider and reverse McCoy.

Justin R. Hart was convicted of third-degree assault. His pre-sentence report included information pertaining to Hart's contacts with the juvenile justice system that did not lead to formal adjudications of delinquency. (That is, the complaints against him were handled informally under AS 47.12.060.) On appeal, Hart argues that it was improper for his pre-sentence report to include this information.

Alaska Delinquency Rule 27(a)(1) authorizes a pre-sentence investigator who is preparing an adult pre-sentence report to use the defendant's juvenile records without first obtaining case-specific permission from the superior court. In McCoy, we concluded that Delinquency Rule 27(a)(1)-in particular, the phrase "court records of a juvenile delinquency proceeding"-encompassed the information in the juvenile probation officer's file, even when that information related to contacts that never led to formal delinquency proceedings. Id. at 751.

In McCoy, we acknowledged that a related statute, AS 47.12.8300(d), apparently required the pre-sentence investigator to obtain permission from the superior court before using these records. But we held that this was a procedural matter-and that, therefore, the procedure specified in the delinquency rule took precedence over the procedure specified in the statute. Id. at 751.

In the present appeal, Hart argues that the McCoy decision is flawed because we neglected to consider another statute, AS 47.12.8310(a), which declares that all agency records pertaining to a minor "are privileged and may not be disclosed ... without a court order".

However, as we noted in our first opinion on rehearing in McCoy, 59 P.3d at 752-58, the rule of non-disclosure codified in AS 47.12.810(a) is riddled with exceptions. The most pertinent of those exceptions are AS 47.12.810(b)(1), which states that a minor's records "shall" be disclosed to any federal, state, or municipal law enforcement agency when those récords are pertinent to a "specific investigation being conducted by that agency", and AS 47.12.810(b)(2)(E), which states that a minor's records "shall" be disclosed to "a law enforcement agency of this state or another jurisdiction as may be necessary for the protection, rehabilitation, or supervision of any minor or for actions by that agency to protect the public safety".

These two exceptions seemingly authorize (indeed, compel) disclosure of a person's juvenile records under the cireumstances presented here-that is, when those records are sought in connection with the preparation of a pre-sentence report on that same person. Thus, AS 47.12.8310 does not appear to conflict with the result we reached in McCoy.

Moreover, it would not make much sense to construe AS 47.12.810 as being inconsistent with MeCoy. It is difficult to imagine a situation in which a superior court judge would deny permission to a pre-sentence investigator who wanted to include information about a defendant's informal contacts with the juvenile justice system. Although the sentencing judge might ultimately conclude that these informal contacts were unimportant, the judge would want to know about them. Thus, judicial permission to inspect the defendant's juvenile file would be a foregone conclusion. This is apparently the rationale behind Delinquency Rule 27(a)(1)'s rule of automatic disclosure to pre-sentence investigators.

Even assuming that the meaning of AS 47.12.8310 was reasonably debatable, this rationale would counsel against construing the statute to require pre-sentence investigators to repeatedly seek case-specific permission to view and rely on the information in the defendant's juvenile file. Because permission would uniformly be granted, construing the statute in this fashion would only add a needless procedural step to the preparation of a pre-sentence report.

For these reasons, we reaffirm our decision in McCoy: a probation officer who is preparing a pre-sentence report can examine the defendant's juvenile file and can include information about the defendant's informal contacts with the juvenile justice system without first seeking case-specific permission from the superior court.

The judgement of the superior court in Hart's case is AFFIRMED.


author: Justice HOBBS Justice COATS,

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Wade Paul MILLER, Defendant-Appellee.
    No. 03SA107.
    Supreme Court of Colorado, En Banc.
    Sept. 8, 2003.

      Edward J. Rogers, District Attorney, Kathleen G. Eberling, Assistant District Attorney, Canon City, Colorado, Attorneys for Plaintiff-Appellant.
    Josh T. Liles, Salida, Colorado, Attorney for Defendant-Appellee.
   Justice HOBBS

delivered the Opinion of the Court.

In this interlocutory appeal, filed pursuant to C.A.R. 4.1 and section 16-12-102(2), 6 C.R.S. (2002), the prosecution appeals the district court's order suppressing evidence of methamphetamine manufacture seized from defendant Wade Miller's home. Nearly a month expired between the event the informant related and application by the police for the warrant. The trial court set aside the warrant for lack of probable cause and suppressed the evidence seized-for lack of good faith police reliance on the sufficiency of the warrant-because the only information linking the illegal activity to the place to be searched, Miller's home, was stale We agree with the trial court and affirm its suppression order.

I.

On January 6, 2003, the police obtained and executed a search warrant for Miller's home. During the search, the police discovered a methamphetamine laboratory, arrested Miller, and charged him with possessing and operating the lab.

The warrant was based on a police affidavit reciting information from an anonymous informant. The informant said that, on December 9, 2002, at Miller's home, he smoked some methamphetamine Miller had just finished manufacturing there. The informant also stated that Miller kept methamphetamine manufacturing supplies in his kitchen cabinets. The affidavit also recited another informant's information-current at the time of application for this warrant on January 6, 2003-that Miller was manufacturing methamphetamine at a location other than his home. But the affidavit (attached as Exhibit A) contained no information more current than December 9, 2002, regarding manufacture or the presence of contraband at Miller's home.

The record made at the suppression hearing discloses that the police obtained and executed warrants for the other location and Miller's home on January 6, but the affidavit for search of the other location inexplicably contains more current information regarding manufacture of the drug by Miller at his home than was contained in the affidavit for search of his home.

As to the affidavit for search of Miller's home, the trial court found that: (1) the police had recited sufficient reliable information to implicate Miller in the manufacture of methamphetamine; (2) but the information regarding drug manufacturing by Miller at his home was stale; and (8) the police could not have reasonably relied on it in applying for the warrant. The trial court concluded that the warrant lacked probable cause, and the good faith exeeption to the exelusionary rule did not apply because no reasonably objective police officer would have relied on the warrant's sufficiency. It therefore granted Miller's motion to suppress the evidence obtained from search of his home.

IL

We agree with the trial court that the warrant in this case was not based on probable ecause, and the police could not have reasonably relied on it, because the information regarding drug manufacturing at Miller's home was stale when the police applied for the warrant, and no reasonable police officer would have relied on it. Accordingly, the exclusionary rule operates in this case, not the good faith exception to it.

'A. Deficient Warrant and the Good Faith Exception

When reviewing a suppression order, we defer to the trial court's findings of facts, if supported by the record; and we review the trial court's legal conclusions de novo. People v. Schall, 59 P.3d 848, 851 (Colo.2002); People v. D.F., 933 P.2d 9, 13-14 (Colo.1997).

We address this case using the framework set forth by People v. Randolph, 4 P.3d 477, 482 (Colo.2000), and People v. Altman, 960 P.2d 1164, 1167 (Colo.1998). Randolph upheld a trial court's suppression order because the warrant there lacked probable cause and the police, under the cireumstances in that case, could not have reasonably relied on it. In contrast, Altman applied the good faith exception and allowed the evidence to be admitted at trial, even though it was derived from execution of a warrant that may have lacked probable cause.

The application for the warrant in Ran-doiph failed to particularize the building where the evidence of illegal activity might be found; pertinent here, the anonymous tip received in that warrant was stale (two months old). We concluded that the police could not have reasonably believed that the "bare bones" affidavit they presented to the magistrate in that case established probable cause.

In contrast, the affidavit in Altman contained recent information the police had personally observed, suggesting a reasonable inference that the defendant was growing marijuana in his home.

Officer Landolt's experience and training led him to believe that the purchase of equipment commonly associated with indoor marijuana cultivation at the height of the outdoor growing season, the high electrical usage, the potentially suspicious use of a rental car, and the defendant's previous brushes with the law all created a reasonable inference of marijuana cultivation.

Altman, 960 P.2d at 1172, Though the warrant may have lacked probable cause, an issue we did not reach because of the applicability of the good faith exception, we coneclud-ed that police reliance on the warrant in Altman was objectively reasonable.

The test for good faith reliance on the warrant imposes upon the officer involved in obtaining and executing the search warrant a continuing duty to exercise reasonable professional judgment. Randolph, 4 P.3d at 483. The officer must read the affidavit and warrant carefully and must be objectively persuaded that the warrant is sufficient. Id. In determining whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization, a reviewing court should take all the cireumstances surrounding the issuance of the warrant into account. Id.

As we did in Randolph, we now address the law of probable cause and the good faith exception for police reliance on a warrant. Then, we apply that law to the warrant and the seizure of evidence in this case.

B. Probable Cause

The Fourth Amendment to the United States Constitution and article II, section 7, of the Colorado Constitution prohibit the issuance of a search warrant except upon probable cause supported by oath or affirmation particularly describing the place to be searched and the things to be seized. U.S. Const. amend. IV; Colo. Const. art. 2, § 7; see also § 16-83-8083, 6 C.R.S. (2002) (specifying the requirements for a search warrant). Because there is no mechanical formula for determining probable cause, reasonable minds may differ on the question of whether a particular affidavit establishes probable cause. Altman, 960 P.2d at 1167. A reviewing court should uphold the validity of a warrant if the affidavit accompanying the warrant creates a substantial basis for the conclusion that probable cause existed. People v. Reed, 56 P.3d 96, 101 (Colo.2002).

The warrant must establish probable cause to believe that contraband or evidence of criminal activity is located in the place to be searched at the time of the warrant application, not merely some time in the past. People v. Erthal, 194 Colo. 147, 570 P.2d 534 (1977). Probable cause exists when an affidavit for a search warrant alleges sufficient facts to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched. Altman, 960 P.2d at 1167.

To determine whether probable cause exists, we examine the totality of the cireum-stances. Id. This analysis does not lend itself to mathematical certainties or bright line rules; rather, it involves a practical, common-sense determination whether a fair probability exists that a search of a particular place will reveal contraband or other evidence of criminal activity. Id.

Whether information is current or stale plays an important role in the totality of the circumstances analysis. See Randolph, 4 P.3d at 482; People v. Meraz, 961 P.2d 481, 484 (Colo.1998); People v. Hearty, 644 P.2d 302, 311 (Colo.1982); see also People v. Green, 70 P.3d 1213, 1215 (Colo.2003) (warrant was obtained one day after the defendant was seen wearing the stolen item). Whether the information is stale and cannot support probable cause depends on the factual cireumstances and the type of crime. People v. Lubben, 739 P.2d 833, 836 (Colo.1987) ("In determining whether information is stale, the court must consider the type of crime the facts reveal.").

C. Good Faith Exception

Typically, when the police conduct a search without a valid warrant, the exclusionary rule operates to suppress the fruits of the search, unless the search falls under an exception to the warrant requirement. People v. Winpigler, 8 P.3d 439, 448-44 (Colo.1999). The exclusionary rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the aggrieved; whether to invoke the exclusionary rule is an issue separate from the question of whether Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct. United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 LEd.2d 677 (1984). Application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most effica-clously served. Id. at 908, 104 S.Ct. 3405.

As a result, the exclusionary rule does not apply to situations where the police act in objectively reasonable, good faith reliance on a warrant, even if a court later holds that the warrant is defective. Randolph, 4 P.3d at 483. In such cireumstances, excluding the fruits of the search would not have a deterrent effect on the police. Leon, 468 U.S. at 919-20, 104 S.Ct. 3405.

The Colorado General Assembly has codified a version of the Leon test that permits admission of otherwise suppressible evidence if the evidence was seized "as the result of a good-faith mistake or of a technical violation." § 16-8-308(1), 6 C.R.S. (2002). The Leon "objectively reasonable" standard and the statutory "good faith" standard are substantially similar. Randolph, 4 P.3d at 483; People v. Leftwich, 869 P.2d 1260, 1272 (Colo.1994). Colorado's statute, however, creates a presumption that an officer was acting in good faith if he or she acted pursuant to a warrant. See § 16-3-808(4)(b), 6 C.R.S. (2002); Randolph, 4 P.3d at 483. This presumption may be rebutted if the officer failed to undertake the search in an objectively good faith belief that it was reasonable. Randolph, 4 P.3d at 483; Altman, 960 P.2d at 1169. If no reasonable officer would have relied upon the warrant, then objective good faith is absent and the good faith exception offers no shelter. Altman, 960 P.2d at 1169.

Accordingly, the police must act in objective good faith when they apply for the warrant; the fact that a magistrate ultimately approved the warrant is not controlling.

[The fact that a magistrate acted favorably upon a warrant request is of no moment in the determination of whether the officer acted with objective reasonableness because the question of reasonableness is to be judged as of the time of warrant application and thus without consideration of the fact that the magistrate thereafter issued a warrant.

Leftwich, 869 P.2d at 1269 n. 11 (emphasis added); accord Malley v. Briggs, 475 U.S. 835, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (the Leon analysis focuses on "whether a reasonably well-trained officer would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.")(emphasis added); see Altman, 960 P.2d at 1169 n. 3.

There are four cireumstances under which an officer may not reasonably rely on a warrant: (1) where the issuing magistrate was misled by a known or recklessly made falsehood; (2) where the issuing magistrate wholly abandoned the judicial role; (8) where the warrant is so facially deficient that the officer cannot reasonably determine the particular place to be searched or things to be seized; or (4) where the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Leon, 468 U.S. at 923, 104 S.Ct. 3405; Randolph, 4 P.3d at 483-84. We have characterized warrants that fall under the fourth circumstance as "bare bones" warrants. E.g., Randolph, 4 P.3d at 482.

This case implicates the fourth circumstance, because the trial court found that the information in the affidavit was stale, and, consequently, the police could not have reasonably believed that it established probable cause for the search of Miller's house.

D. Application In This Case

1. Lack of Probable Cause

A proper search warrant affidavit must allege sufficient facts to warrant a person of reasonable caution to believe that evidence of criminal activity is located at the place to be searched. Leftwich, 869 P.2d at 1265. Although the affidavit for the warrant in this case alleged past criminal activity at Miller's residence, it did not tie any current criminal activity or the presence of contraband to Miller's residence.

The affidavit for the warrant related information that Miller was engaged in a course of manufacturing methamphetamine, but the most recent event of affidavit-alleged criminal activity occurring at Miller's residence was nearly a month old at the time the police applied for the warrant. As the trial court found, the affidavit related two stale allegations of criminal activity at Miller's home: the fact that he was arrested there in August 2002 after the police found a methamphetamine lab on the premises, and the fact that an anonymous informant on December 9, 2002, told the police he had smoked methamphetamine at Miller's house and observed Miller in the process of manufacturing a batch of methamphetamine.

Thus, the most recent evidence of criminal activity at Miller's residence was almost a month old when the police applied for the warrant on January 6, 2008. The affidavit contains no information indicating that the police attempted to ascertain whether Miller's illegal activity at his residence continued after the informant's visit, or to corroborate the informant's statements. The affidavit relates one unsuccessful attempt to verify that Miller continued to live at the house to be searched.

Under these circumstances, the excessive delay between the informant's December 9, 2002 observations and the police application of January 6, 2008 for the warrant renders the information stale and unreliable. See Randolph, 4 P.3d at 482 (evidence that the defendant smoked methamphetamine at his house was stale, as it occurred "only some time in the last two months."); People v. Stoppel, 637 P.2d 384, 391 (Colo.1981) (month-old observations by non-anonymous informant that the defendant had bomb making supplies in his residence were stale and insufficient to support probable cause).

The current information contained in the affidavit about Miller's illegal drug manufacturing activity related to a different location from his home. The affidavit recites that on January 3, 2008, a few days before the police searched Miller's house, a different anonymous informant informed police that Miller was manufacturing methamphetamine at a trailer located elsewhere. The information from that informant related intimate and detailed knowledge of Miller's manufacturing activities and did not mention anything about Miller manufacturing the drug at his house, or storing it there. In fact, Miller was arrested and charged for manufacturing methamphetamine at the other location as a result of the search conducted there pursuant to a separate warrant issued the same day as the warrant for search of his home. However, the warrant for search of Miller's home set forth nothing but stale information regarding manufacture at his home.

In contrast to the month involved here, our course of conduct cases address a much shorter time between the occurrence of criminal activity set forth as the basis for the warrant and the police application for the warrant. People v. Schmidt, 172 Colo. 285, 478 P.2d 698 (1970), involved evidence that a defendant was continuously dealing drugs from his room, and a lapse of five days between the time that an informant saw drugs in the room and the time that the police sought the warrant. Id. at 292, 473 P.2d at 701. Likewise, People v. Hearty, 644 P.2d 302 (Colo.1982), involved a lengthy conspiracy to extort money, corroborated by a series of transactions over several months, with the final transaction occurring eight days before the police sought a search warrant. Id. at 311.

In People v. Ball, 639 P.2d 1078 (Colo.1982), the police observed literally hundreds of suspected drug transactions at the defendant's residence, with the last transaction seven days before the police sought a warrant. Id. at 1080, 1088. Finally, in Lubben, 739 P.2d 833 (Colo.1978), the affidavit involved a situation in which the police found methamphetamine in the defendant's residence in April; received additional information that the defendant possessed methamphetamine or drug paraphernalia in November and December of the same year; conducted "sporadic surveillance" of the defendant in December and observed unusually heavy foot traffic to and from the defendant's residence; and received a tip from an informant that seventy-two hours before they applied for a search warrant, the informant saw methamphetamine in the defendant's residence. Id. at 836.

Here, the affidavit mentions two instances of illegal drug manufacture at Miller's house, one four months old and one nearly a month old. The mobility of this type of drug manufacturing is evident from the facts of this case. The affidavit recites that Miller was manufacturing methamphetamine at various places in the past. As our case law demonstrates, without relatively current information of eriminal activity or contraband at the location to be searched, probable cause is typically lacking for issuance of the warrant.

The warrant for search of Miller's home lacked probable cause. We now address whether the good faith exception to the exclusionary rule should apply to this case.

2. -Inapplicability of Good Faith Exception

In the vast majority of cases where a substantial basis for determining probable cause does not exist, the police cannot rely on the good faith exception:

[Iln the vast majority of cases, if a court . ascertains that a substantial basis for determining probable cause did not exist, the court will reach the conclusion that the officer unreasonably relied on the affidavit.

Leftwich, 869 P.2d at 1271 n. 12.

Application of the good faith exception to allow evidence that would be suppressed otherwise turns on whether it was "objectively reasonable" for the officer to rely on the warrant. Id. Thus, police officers involved in obtaining and executing a search warrant have a continuing duty to exercise reasonable professional judgment. Randolph, 4 P.3d at 483; Altman, 960 P.2d at 1170. The good-faith exception requires officers to have a reasonable knowledge of what the law prohibits. Leon, 468 U.S. at 919 n. 20, 104 S.Ct. 3405.

The affidavit in this case is a "bare bones" affidavit regarding the existence of the eru-cial link between the place to be searched and current information of eriminal activity or the presence of contraband there. Randolph, 4 P.3d at 482. As the trial court observed, the affidavit is bereft of current information about illegal activity at Miller's house:

The "good faith" exception does not cure this deficiency. The affidavit is devoid of any information indicating current illegal activity at [Miller's housel. Official belief in the existence of information showing current ilegal activity at [Miller's house] would be objectively unreasonable based on the information in the affidavit.

A reasonably well-trained police officer is held to know that an affidavit without any relatively current information of illegal activity or the presence of contraband at a residence does not create probable cause to search the residence. Consequently, we agree with the trial court that the police did not reasonably rely on the warrant.

The prosecution urges us to consider information outside the affidavit to establish that the police met the objective good faith standard for admission of the seized evidence. This information was included in the affidavit to search the house of Miller's friend, or was discovered as a result of that search, and was "overlooked" in the affidavit for this warrant. However, like the trial court, we are restricted to the information contained within the four corners of the affidavit. See Reed, 56 P.3d at 101 (courts must consider whether reliance on the warrant was objectively reasonable, based on the contents of the warrant, and cannot inquire into the police's subjective good faith). Thus, we decline to bolster the insufficient affidavit in this case with additional information not conveyed to the magistrate in the application for this warrant.

Given the facts of this case, applying the exclusionary rule to suppress the evidence seized has the salutary effect of requiring the police to use in the affidavit for the search warrant current information they have available, or may obtain, to establish the link between the place to be searched and the existence of criminal activity or contraband there. Establishing this link is at the heart of Fourth Amendment protections.

III. - Conclusion

Accordingly, we affirm the trial court's suppression order and remand this case for further proceedings consistent with this opinion.

Justice COATS dissents, and Justice KOURLIS and Justice RICE join in the dissent.

Justice COATS,

dissenting:

Today the court declares inadmissible, as the product of an illegal search, the physical evidence of the defendant's manufacture of methamphetamine in his home. The majority does so despite discovery of the evidence during the execution of a warrant to search the defendant's home, issued by a neutral magistrate, in reliance upon a three and one-half page, single-spaced, typewritten affidavit, and despite acknowledging a finding of sufficient reliable information in the affidavit to implicate the defendant in the manufacture of methamphetamine. Although the affidavit undeniably alleges observations of the - defendant's continuous, and very recent, production of methamphetamine at a number of locations, the majority finds fatal to the search of his home the failure of the affidavit to document observations at that specific location for almost a month. Because I believe the majority opinion betrays a fundamental misunderstanding of the purpose and scope of the staleness inquiry; amounts to a substantial departure from the precedent of not only this court but federal and state courts across the country; and evinces a general hostility toward the good faith exception to the exclusionary rule, I respectfully dissent.

Ordinarily, it would be enough for reversal of a suppression order that the search fell within the good faith exception to the exelu-sionary rule. People v. Altman, 960 P.2d 1164 (Colo.1998). Because of the majority's staleness analysis, however, I feel obliged to explain why there was actually a substantial basis for the magistrate's finding of probable cause and issuance of the warrant. Although I do not consider the existence of probable cause to search the defendant's home a close question in this appeal, I do consider it important to emphasize that a warrant is not erroneously issued at all as long as there is at least a "substantial basis" to support it. People v. Gall, 30 P.3d 145, 150 (Colo.2001).

While specific statutes or rules may impose formal time limitations on the execution of a search warrant, see, e.g., § 16-8-305(6), 6 C.R.S. (2002) (ten days from date of issuance); Crim. P. 41(d)(V)(VI) (same), the Fourth Amendment has never been construed to assign a life-span to information disclosing the commission of a crime. "Staleness" is simply a concept that expresses the reality that information making it likely that items connected to a crime will be found at a particular time and place may lose its force with the passage of time. Information amounting to probable cause to search for evidence of a crime at a particular point in time may therefore no longer amount to probable cause to search at a later point in time. Probable cause, however, "is not determined by merely counting the number of days between the time of the facts relied upon and the warrant's issuance." United States v. Rahn, 511 F.2d 290 (10th Cir.1975). Rather, the likelihood that evidence of a erime will still be found in the same place is a function of a host of variables that are unrelated to the calendar. See Andresen v. State, 24 Md.App. 128, 331 A.2d 78 (1975). Chief among them is the nature of the criminal activity at issue.

Along with virtually every other jurisdiction considering the question, we have often acknowledged that the passage of time becomes less significant where information indicates criminal activity of a protracted or continuous nature. See, e.g., People v. Erthal, 194 Colo. 147, 570 P.2d 534 (Colo.1977) ("There was no information that the suspect continuously engaged in criminal activity or continued to use feloniously obtained tools, factors which might have justified the belief that the stolen items would still be in the location searched."); United States v. Johnson, 461 F.2d 285 (10th Cir.1972) (time has no meaning in determining probable cause apart from the nature and length of criminal activity and the nature of property to be seized). Time lapses running weeks, or even months, have been upheld where affidavits for search warrants indicated probable cause of ongoing criminal enterprises, of a wide variety. See generally 2 Wayne R. LaFave, Search & Seisure § 8."T(a), 344-46 nn. 17-26 (3d ed.1996) (illegal paramilitary operations, gambling operations, ongoing fraud or loansharking operations, ongoing processing or repeated sales of drugs, liquor, or guns, repeated thefts or receipt of stolen property).

Especially with regard to illegal drugs, probable cause of ongoing sales and production has been expressly distinguished from probable cause of mere use. Compare Andresen, ("The observation of half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in .. ..") with United States v. Hyde, 574 F.2d 856 (5th Cir.1978) (holding in context of widespread and continuing conspiracy to smuggle drugs, "The upshot of this rule to practical application has been to allow fairly long periods of time to elapse between information and search warrant of criminal activity.") In light of the nature of the manufacturing or growing process and the nature of a conspiracy or enterprise to produce and/or sell drugs, information that is months old has regularly been held sufficient to establish probable cause to support a search. See, e.g., United States v. Iiland, 254 F.3d 1264 (10th Cir.2001) (three months since cocaine sale); United States v. Smith, 266 F.3d 902 (8th Cir.2001) (three months since cocaine sale); United States v. Ruff, 984 F.2d 635 (5th Cir.1998) (two months since observation of meth lab); United States v. Dixon, 247 F.Supp.2d 926 (S.D.Ohio 2002) (two months since cocaine sale); United States v. Seibert, 779 F.Supp. 366 (E.D.Pa.1991) (three months since meth sale at defendant's trailer); Lovett v. Commonwealth, 103 S.W.3d 72 (Ky.2003) (two months since observation of meth lab); State v. Hage, 568 N.W.2d 741 (N.D.1997) (four months since supplier of meth lab ingredients named); State v. Wilson, 120 Or.App. 382, 852 P.2d 910 (1993) (six weeks since observation of meth lab); People v. Wilson, 182 Cal.App.3d 742, 227 Cal.Rptr. 528 (1986) (six weeks since observation of strong odor of meth).

The affidavit in this case indicated ongoing operations. It made clear that the affiant officer had already seized a meth lab from the defendant's home in August, as a result of which the defendant was charged with manufacturing and distributing and was released on bond. It also contained detailed information from an informant who had been in the defendant's home in December, four months later, that the defendant was still regularly manufacturing methamphetamine at both his home and the Orchard location. The affidavit further contained detailed information from another informant from early January, just days before the issuance and execution of the warrant, that the defendant and another man were continuing to manufacture methamphetamine at the Orchard address, as well as several other locations. Unlike the majority, I consider it permissible to infer from this information that the defendant had not, in the last month, mysteriously stopped manufacturing methamphetamine at his home and removed all evidence of his operations there, while continuing to maintain all of his other operations.

Where the location to be searched is a suspected drug dealer's home, often no greater nexus to that specific location is required because experience dictates that drug dealers ordinarily keep their supply, records, and monetary profits at home. See generally 2 LaFave, at 879. It literally defies commonsense, where there is good reason to believe that the defendant (while out of jail on bond for doing the same thing) continues to use methamphetamine, to acquire a supply of the materials required for its manufacture, and in fact to manufacture the drug at a number of locations simultaneously; and where he clearly manufactured the drug in his home before being arrested and was observed still doing so at least four months afterward; to hold that there is not even a reasonable probability that his home has continued to be one of his manufacturing sites, or at least still contains evidence of his ongoing manufacturing operations. The majority's decision to limit the life-span of probable cause to a set number of days following the last information of drug manufacturing at a particular location is not only contrary to our prior holdings but fails to appreciate the significance of being a continuing and ongoing operation.

While I am concerned about the majority's attempt to distinguish this case from our prior "course of conduct" cases on the grounds that we have not previously decided a case involving the same number of days between observation and issuance, see maj. op. at 1115, I am much more concerned by its holding that no well-trained police officer could reasonably believe the information to still establish probable cause. The majority not only reduces the probable cause determination to a mechanical (if not arbitrary) counting process; it forces police officers to predict precisely where the court will draw the cutoff line. Even if it did not fly in the face of an abundance of counter-examples from courts across the country, this holding can only serve to encourage officers to rely on their own counting rather than the appropriate assessment of the nature and cireum-stances of the criminal activity by a neutral magistrate. Having a good faith exeeption serves little purpose if acting in good faith means nothing more than accurately predicting the ultimate conclusion of the courts.

The exeeption to the exelusionary sanction does not apply, nor should it, if the magistrate misbehaves or is misled by police misbehavior, or if the affidavit is so lacking in indicia of probable cause-is so "bare bones"-as to render official belief in its existence entirely unreasonable. In this case, the trial court did not apply the good faith exception because it believed that the month-long interval between observations of manufacturing in the defendant's home and issuance of the warrant not only rendered that information stale but made unreasonable any belief by trained officers that the affidavit contained probable cause for the search. In upholding that ruling, the majority in effect finds it unreasonable for well-trained officers to rely on a probable cause determination by a neutral magistrate that would be upheld as fully justified by other justices of the jurisdiction's highest court.

The good faith exception to the exelusion-ary rule springs from the realization that the suppression of evidence as a sanction is unlikely to significantly modify executive branch behavior undertaken in objectively reasonable good faith United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In addition to avoiding an extremely high cost to society, with little corresponding benefit, the exception has an additional salutary effect of promoting a judicial preference for warrants, by largely insulating executive branch officers from the mistakes of judicial magistrates. Not only does the majority's narrow interpretation nullify virtually any beneficial effect of the good faith exception; its unrealistic time and place restrictions on the probable cause determination severely undercut incentives to seek warrants in cases of ongoing methamphetamine operations. If delay by the police, in order to accumulate more and better information, is rewarded by disallowing information as stale, police will be faced with the dilemma whether to act on less information while it is more fresh, relying on the exigencies of the situation to excuse judicial approval in advance. Because I consider the majority holding to be wrong, both as a matter of law and as a matter of policy, and because I believe it will have a substantial negative impact on combating a serious social problem in this jurisdiction, I respectfully dissent.

I am authorized to say that JUSTICE KOURLIS and JUSTICE RICE join in this dissent.

Appendix A

STATE OF COLORADO

COUNTY OF FREMONT

ss. AFFIDAVIT

In support of a request for the issuance of a SEARCH WARRANT FOR: 406 Riverside Drive, a yellow house with blue trim, located in the City of Canon City, County of Fremont, State of Colorado to search for Methamphetamine, ephedrine based pills, psudoephedrine based pills, drug paraphernalia, Methamphetamine lab equipment, precursor chemicals, money, records, weapons, receipts, and any other items that would relate to the use, possession, manufacturing, or trafficking of drugs.

THE UNDERSIGNED AFFIANT, BEING FIRST DULY SWORN UPON OATH, DEPOSES AND SAYS:

Your Affiant is Andrew J. Lopez, a Police Officer with the Canon City Police Department. I have been employed as a police officer for approximately seven years and am currently assigned to the narcotics investigations division of the Canon City Police Department. I have attended at least 192 hours of narcotics training involving the searches of vehicles and homes containing Methamphetamine labs, money, precursor chemicals, lab equipment, multiple grams of illegal drugs, and large amounts of money. I have also experienced first hand searches of vehicles and homes containing Methamphetamine labs, money, precursor chemicals, lab equipment, multiple grams of illegal drugs, and large amounts of money.

On December 12th, 2002 I received a phone call from South Metro Drug Task Force Agent Angela Fritz, who advised she had information regarding the manufacture of methamphetamine in Canon City. Agent Fritz advised the following:

e She had two persons in custody after they were reported to have been purchasing large quantities of ephedrine and pseu-doephedrine based pills at a store in her area

@ They stopped the two persons at a traffic stop and saw in plain view numerous boxes of pills and a glass methamphetamine pipe

® One of the two persons, wishing to remain anonymous, told her the following:

A On Monday, December 9th, 2002, they were in Wade Miller's house, 406 Riverside Drive, Canon City, Fremont County, Colorado, and Wade was actively manufacturing methamphetamine in the house
A They smoked some methamphetamine with Wade, which he had just manufactured
A Wade had Toluene, Coffee Pots, Muri-atic Acid, Anhydrous Ammonia and Salt
A Wade's batch of methamphetamine was "salting out"
A Wade drive's [sic] a Blue Ford Bronco
A Wade is keeping methamphetamine manufacturing supplies under the kitchen cabinets in his house
A They are a methamphetamine user and manufacturer and were collecting pills to manufacture methamphetamine
A Wade Miller has also been cooking at an address on Orchard, at the entrance to Mountain View Park, in the last trailer to the East
A The trailer belongs to Valerie Shetrone and a man named Nick (last name unknown)
A Valerie and Nick allow Wade and Jacob Lopez to manufacture methamphetamine in the trailer
A The trailer has an addition to the rear with some sort of aluminum cover over it
A Jacob Lopez has been recently arrested, but Wade continues to manufacture in the trailer
A Approximately 2 weeks ago they per- * sonally observed Sudafed pills, Xylol, a "bubbler," Red Devil Lye, Tubing, and Glassware in this trailer home
A Wade has been regularly manufacturing methamphetamine at either the Riverside or the Orchard address

Agent Fritz went on to say the second person arrested, wishing to remain anonymous, offered Jim Sampson's current location, stating that Jim was at the Eeono Lodge on the North end of Pueblo, and had a warrant for his arrest.

I advised Canon City Police Department Detective Jeff Worley of the information I received. Detective Worley identified the Orchard address as 926 Orchard, with a trailer number believed to be # C, and described it as two White trailer houses with Brown trim, connected by some kind of walkway between the two, with a round metal building attached on the North side. Detective Wor-ley found one car parked at the trailer, bearing Colorado license plate number 629CRH, which came back to a Claudia J. Shetrone and a Valeria R. Holtz of 926 Orchard Avenue. Detective Worley also went to 406 Riv-ergide where he found an 85 Ford 2 door, bearing Colorado license plate number NOV-LU, which came back to James E. and Marsha L. Miller. Detective Worley indicated that there were several people around the property at the time he went by.

I recognized all the chemicals and terms referred to by the first anonymous party as being integral parts of the methamphetamine manufacturing process. I know Jacob Lopez was just recently arrested and Wade Miller is currently out on bond on charges of manufacturing and distributing methamphetamine, after I found a meth lab in his home on August 14th, 2002. I also know Jacob Lopez was arrested following the seizure of this meth lab, when he approached 406 Riverside and was found to have methamphetamine and paraphernalia with him. I also know Jim Sampson was wanted on a warrant for manufacturing meth at his shop at 2027 South Street, located [sic] on November 22nd, 2002. I recalled Wade Miller's Criminal History and knew he was arrested in Canon City 1992[sic] for 2 counts of Distributing Marijuana, and Distribution of Dangerous Drugs (Methamphetamine).

On January 3rd, 2002(sic] Fremont County Sheriff's Deputy Mike Joliffe spoke to a person, wishing to remain anonymous, who advised the following:

A Wade Miller 05/25/64 is driving a navy blue, Ford, Bronco
A Wade Miller and Jacob Lopez manufacture methamphetamine together
A Jeff West owns a fake penis that has a fake bladder, that West, Jacob Lopez and Wade Miller use to pass urinalysis test [sic] as part of the M.A.P.P. program
A Wade Miller uses his boss's credit card to purchase urine from an online business through the internet
A Wade Miller and Jacob Lopez use a trailer located on Orchard Avenue in Canon City. This trailer is next to Mountain View Park. The trailer has a metal rounded building located at the back of the trailer
A The trailer they use to manufacture methamphetamine belongs to Nick Buf-mack
A Bufmack stated to Miller, that it is ok to make meth in the trailer, but he wants to know when they are doing it
A Bufmack has a girlfriend named Val (the only name this person has ever heard her called)
A Val has a mother that lives in the area of the trailer and has in the past reported smelling strange smells coming from the area
A Recently the police responded to one complaint of the smell and Jacob Lopez was hiding in the trailer until they left
A A person by the name of Jim Woldridge purchases the chemicals and ephedrine based pills for Wade Miller
A Wade Miller manufactures methamphetamine on Friday nights, but only if he has at least 1000 ephedrine based pills to cook with
A Wade Miller in the past has gone to a home in Florence that belongs to Cindy and Rod Steele
A Miller and Rod would manufacture methamphetamine in the shed on the property
A Rod has anhydrous ammonia tanks buried in the back yard
A Wade Miller's brother Chuck Miller and his girlfriend/wife with a last name of Washburn, will go to Salida and Denver to purchase Ephedrine based pills for Wade
A Chuck and Washburn live on some property up in Tallahassee
A Wade will go up on the property on occasion to manufacture methamphetamine
A Wade has anhydrous ammonia tanks buried on the property
A Wade is sharing anhydrous ammonia tanks with John Messer
A Messer lives in Williamsburg.

On this same date Fremont County Sheriff's Deputy Jay Dexter arrested Wade Miller for driving under revocation. Miller was arrested driving a blue, Ford, Bronco that registered to Harmony Britton. I arrested Harmony Britton for possession of Methamphetamine after she approached 406 Riverside following the seizure of the meth lab at the residence on August 14th, 2002.

I recognized all the chemicals and terms referred to by the first anonymous party as being integral parts of the methamphetamine manufacturing process. I know Jacob Lopez was just recently arrested and Wade Miller is currently out on bond on charges of manufacturing and distributing methamphetamine, after I found a meth lab in his home on August 14th, 2002. I have received several anonymous tips since Wade Miller bonded out that he has continued to manufacture and sell methamphetamine. I also arrested Jacob Lopez following the seizure of this meth lab, when Jacob approached 406 Riverside there was methamphetamine and paraphernalia on his person.

Wade Miller's Criminal History shows the following:

1992 arrested for marijuana distribution and distribution of dangerous drugs.
1994 arrested for DUI.
2002 arrested for distribution and manufacturing of schedule II, possession of schedule II, possession of narcotic equipment, driving under the influence of drugs, marijuana and unlawful manufacturing of schedule II.

I know the anonymous person that spoke to Deputy Jolliffe is not the same as the anonymous person I spoke to, because they are of different genders.

Subscribed and sworn before me this 6th Day of January, 20083.

      . Based on the search of his home, the Amended Information charged Miller with manufacturing a schedule two controlled substance, possession of manufacturing chemicals or supplies, possession of a schedule II control substance, and unlawful possession of a schedule II controlled substance. § 18-18-405(1), (2)(a), 6 CRS. (2002). The prosecution also charged Miller with identical counts, based on the search of the residence of Miller's friend. The validity of this other search warrant is not before us.

      . On August 14, 2002, the police previously searched Miller's home pursuant to a warrant and seized evidence of methamphetamine manufacturing there.

      . The type of evidence and activity involved is important. Some types of evidence the police seek to obtain through a search warrant may be relatively immune from becoming stale, for example, DNA evidence at the specified location.

      . The affidavit reports that a police officer went to the house and saw a vehicle registered to "James E. and Marsha L. Miller" parked at the residence. The affidavit provides no basis to believe that "James" Miller is the same person as '"'Wade" Miller. In addition, the affidavit does not state when the police made this observation, so the information is presumptively stale. See Randolph, 4 P.3d at 482 (affidavit's account of a witness statement is stale, because it did not include the time frames when the witness made his observations).

      . - People v. Erthal, 194 Colo. 147, 570 P.2d at 534 (1977) is instructive on this point. In that case, the defendant was accused of stealing some tools from a former employer. The police observed similar tools in the defendant's shop shortly after the theft. However, they waited two months before obtaining and executing a warrant to search the defendant's shop. We held that this two-month-old observation was stale, and did not support probable cause. Id. at 535. "Due to the lapse of nearly two months between the deputy's observation ... and the issuance of the warrant, there was no probable cause to believe that stolen goods were in the shop at the time the warrant was executed." Id.

      . This second informant also told the police that Miller was manufacturing at several other locations; however, the informant did not tell the police when Miller was manufacturing at those locations, so these additional allegations are stale.

      . We emphasize that there is no bright line rule for counting of days in considering whether the affidavit is based on stale information. When the information in the affidavit focuses on one location, demonstrates ongoing activity over several months at that place, and the search warrant is for that place, courts have held that observations dating back more than one month were not stale. For example, the court in United States v. Iiland, 254 F.3d 1264, 1268-69 (10th Cir.2001)(activity ongoing over a considerable period of time) pointed out that the "affidavit tended to show that Mr. Iiland kept the drugs he sold in the storage unit, and that he was still renting and visiting the unit a few days before the warrant was issued." Another court pointed out that "[njothing suggested either that the conspirators would not continue in their operation or that the laboratory would be moved." United States v. Ruff, 984 F.2d 635, 638 (5th Cir.1993). In United States v. Le, 173 F.3d 1258, 1266 (10th Cir.1999), the reports of two informants were consistent in stating ongoing activity at the place to be searched. In contrast, the affidavit in the case before us placed the ongoing drug manufacturing at a different location from the place to be searched.

      . The prosecution's brief to us argues that the officer who sought and executed the warrant acted in objective good faith, in part because "he possessed more knowledge of criminal activity at [Miller's house] than he stated in his warrant; to wit: that he personally spoke with another informant on December 20, 2002, who told him that Miller continues to manufacture methamphetamine in his home." (emphasis in original). People's Opening Brief at 8, People v. Miller, No. 03SA107.

      . - For example, the warrant for the friend's house recites that an informant told the police on December 20 that Miller had continued to manufacture methamphetamine since his August arrest, and Miller primarily manufactures at his home and at his friend's residence. The People urge us to consider this information, arguing:
      A comparison of Officer Lopez's probable cause affidavit for the search of [Miller's residence] and Deputy Jolliffe's probable cause affidavit for the search of [Miller's friend's residence] clearly demonstrate that the two officers shared information and worked together in composing their affidavits. It is also clear that Officer Lopez simply overlooked stating an important detail when composing his affidavit. (emphasis added). People's Opening Brief at 6.


author: Judge DAILEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven M. ST. JAMES, Defendant-Appellant.
    No. 99CA2069.
    Colorado Court of Appeals, Div. IV.
    Dec. 5, 2002.
    Rehearing Denied Jan. 23, 2003.
    Certiorari Denied Aug. 25, 2003.

      Ken Salazar, Attorney General, Monica M. Marquez, Assistant Attorney General, Denver, for Plaintiff-Appellee.
    H. Craig Skinner, Denver, for Defendant, Appellant.
   Opinion by

Judge DAILEY.

Defendant, Steven M. St. James, appeals the judgment of conviction entered upon jury verdicts finding him guilty of sexual exploitation of a child and sexual assault on a child by one in a position of trust. We affirm.

The convictions here arose out of the relationship between defendant and his seventeen-year-old adoptive niece. According to the niece, on one occasion he had sexual contact with her; on another occasion, he photographed her bare breasts after telling her that he "knew people from Playboy" magazine. The undeveloped film was found in storage among defendant's boxes and developed by the mother of defendant's sons.

I. Undeveloped Film as the Basis for A Charge of Sexual Exploitation of a Child

Defendant contends that he cannot be convicted of sexual exploitation of a child because he neither made nor possessed "sexually exploitative material." We are not persuaded.

"Sexually exploitative material" is defined in § 18-6-408(2)(J), C.R.S.2002, as "[alny photograph, motion picture, videotape, print, negative, slide, or other mechanically, electronically, chemically, or digitally, reproduced visual material that depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct."

Defendant argues that he only made or possessed undeveloped film, which does not qualify as "sexually exploitative material" because it is not a negative, photograph, or visual depiction of anything; it must undergo a chemical process before it becomes any of those things.

However, defendant overlooks the fact that he was charged under § 18-6-408(8)(a), C.R.S.2002, the plain language of which proscribes "[claus[ing], induc{ing], entic[ingl, or permit[ting] a child to engage in, or be used for ... the making of any sexually exploitative material" (emphasis added). This part of the statute proscribes using children to obtain sexually explicit materials Accordingly, a violation occurs at the time a person causes a child to be photographed for the purpose of making sexually exploitative material; it is inconsequential whether the film is ever developed. See United States v. Smith, 795 F.2d 841, 846 (9th Cir.1986)(noting that a similarly worded federal statute "does not require the actual production of a visual depiction, merely the enticement of minors for 'the purpose of producing' a visual depiction of sexually explicit conduct"); cf. Schneider v. State, 700 So.2d 1239, 1239 (Fla.Dist.Ct.App.1997)(recognizing that photographs are obtained through the process of photography).

This result is consistent with the purposes underlying the statute: "the focus is not merely on the harm the [sexually exploitative) material may produce, but also on the harm to a child who is induced to engage in the process of producing such materials." People v. Gagnon, 997 P.2d 1278, 1282 (Colo.App.1999); see United States v. Smith, supra, 795 F.2d at 847 (the "undeveloped state of the film does not eliminate the harm to the child victims in the film's production"); State v. Peltier, 249 Kan. 415, 819 P.2d 628, 638 (1991)(interpreting the term "film" to encompass undeveloped film, in part because "it is the recording of the images initially by using a child to portray sexually explicit conduct that the [Kansas] legislature sought to outlaw").

Consequently, we conclude that a prosecution under § 18-6-408(8)(a) may be predicated upon an individual's photographing a child engaged in sexually explicit conduct, even if the individual has not developed the film. The critical question for the jury to resolve is whether, when the individual photographed the child, he or she did so for the purpose of producing a visual depiction of explicit sexual conduct. Inasmuch as this question was submitted for the jury's consideration, and the jury answered it in a manner adverse to defendant, we see no basis for disturbing defendant's conviction.

Defendant's reliance on State v. Valdez, 182 Ariz. 165, 894 P.2d 708 (Ariz.Ct.App.1994), is misplaced. The court in Vaidez did not bar a conviction for sexual exploitation of a child based on the possession of undeveloped film; it barred only multiple convictions for sexual exploitation of a child based on the contents of one roll of undeveloped film.

II. Defendant's Prior Misconduct

Defendant contends that, in two instances, the trial court erred in admitting evidence of his other bad acts. In one instance, the trial court permitted the prosecution to elicit evidence that defendant possessed large amounts of money and the niece dealt drugs on his behalf. In the other instance, the trial court permitted the prosecution to introduce evidence of tracking records kept by defendant's community corrections facility. We conclude that reversal is not required.

The evidence of defendant's possession of money and the niece's drug dealing was admissible as res gestae evidence to provide the jury with a full understanding of the events surrounding the crimes and the context in which the crimes occurred. See generally People v. Quintana, 882 P.2d 1366, 1373 (Colo.1994). The evidence was relevant and admissible to show aspects of the relationship demonstrating defendant's influence over his niece, her desire to please him, and, ultimately, the power defendant had in this relationship.

The tracking records evidence was admitted to corroborate the niece's testimony that defendant was with her at certain times and places. Although defendant offered to stipulate to these facts, the trial court nonetheless permitted the prosecution to elicit the tracking records evidence, ordering it, however, not to elicit evidence raising "the inference that [defendant was] actually in eusto-dy.”

The prosecution elicited testimony that the records were kept by a "residential placement" program in which residents "earn certain privileges and ... gain certain freedoms to go out into the community." Defendant did not contemporaneously object to this testimony. Subsequently, however, he requested a mistrial, arguing that the evidence violated the court's order to avoid an inference of custody. The trial court summarily denied defendant's motion, and defendant did not thereafter seek a curative instruction.

On appeal, defendant asserts that the trial court should have required the prosecution to accept his stipulation or granted his motion for mistrial. We are not persuaded.

The prosecution is generally not required to accept a defendant's stipulation to certain facts. However, if the defendant offers to stipulate to a fact and the People's case is not thereby weakened, the prosecution may be required to accept the stipulation if the probative value of the offered evidence is substantially outweighed by the danger of unfair prejudice. See People v. McGregor, 757 P.2d 1082, 1083-84 (Colo.App.1987), overruled in part on other grounds by Robles v. People, 811 P.2d 804, 806-07 (Colo.1991).

Here, we perceive no abuse of the trial court's discretion in admitting the tracking records, even though defendant's proffered stipulation carried equal probative force. The court acted to remove any unfair prejudice by requiring the prosecution to avoid any inference that defendant was in custody.

Similarly, we reject defendant's assertion that a mistrial was required when the prosecutor elicited evidence concerning defendant's involvement in a residential placement program.

A mistrial is a drastic remedy that is warranted only where the prejudice to the defendant is too substantial to be remedied by other means. People v. Copenhaver, 21 P.3d 413, 417 (Colo.App.2000). A trial court has broad discretion to grant or deny a mistrial, and its decision will not be disturbed on appeal absent a gross abuse of discretion and prejudice to the defendant. People v. Abbott, 690 P.2d 1263, 1269 (Colo.1984).

Here, because residential placement programs exist for any number of legitimate treatment purposes, the challenged evidence would not have required, or even naturally led, the jury to infer that defendant was in custody or guilty of committing prior bad acts. See People v. Thiery, 780 P.2d 8, 10 (Colo.App.1989)(affirming denial of mistrial where the "two testimonial incidents which defendant argues impute[d] prior criminal activity [were] neutral in effect, raising many reasonable inferences other than criminal activity or propensity on defendant's part"); cf. People v. Cooper, 950 P.2d 620, 624 (Colo.App.1997)(no error, under CRE 404(b), in allowing questions about defendant's familiarity with "the system," in light of various conceivable ways in which jury could have understood evidence), rev'd on - other grounds, 978 P.2d 1234 (Colo.1999).

Further, any misconduct inferable from "residential placement" would hardly distract a jury and cause overmastering hostility towards a defendant. Cf. CRE 403; Masters v. People, 58 P.3d 979, 1001 (Colo.2002)("unfairly prejudicial" evidence has "an undue tendency to suggest a decision on an improper basis, commonly but not necessarily an emotional one, such as sympathy, hatred, contempt, retribution, or horror")(quoting People v. District Court, 785 P.2d 141, 147 (Colo.1990)).

Under the cireumstances, we conclude the trial court did not err in denying defendant's motion for mistrial. See People v. Ned, 928 P.2d 271, 275 (Colo.App.1996)("Speculation of prejudice is insufficient to warrant reversal of a trial court's denial of a motion for mistrial.").

III. Prosecutorial Misconduct

Finally, defendant contends that, during jury selection and opening statements, the prosecution improperly placed undue emphasis on the age ("less than eighteen years") element of the crime of sexual assault on a child by one in a position of trust. Because the prosecution did not misstate the age element for the crime for which defendant was to be tried, see § 18-3-405.3(1), C.R.S.2002, the prosecution referred to the other elements of the crime as well, and the jury was, in any event, instructed not to return a guilty verdict unless it was convinced beyond a reasonable doubt of defendant's guilt on each and every element of the charged crime, we perceive neither impropriety nor prejudice here. Consequently, reversal is not warranted on this ground.

Accordingly, the judgment is affirmed.

Judge DAVIDSON and Judge VOGT concur.


author: Judge ROTHENBERG.

text:
    Barnaby PEDGE and Uplink Computing Solutions, Inc., Plaintiffs-Appellees, v. RM HOLDINGS, INC., a New Mexico corporation, and Vantage Point Office Park Association, a Colorado corporation, jointly and severally, Defendants-Appellants.
    No. 01CA2239.
    Colorado Court of Appeals, Div. V.
    Dec. 19, 2002.

      Stoorman & Associates, PC, Samuel J. Stoorman, Peggy J. Hoyt-Hoch, Denver, Colorado, for Plaintiffs-Appellees.
    Lapin & Associates, P.C., James B. Lapin, Marguerite N. Conboy, Denver, Colorado, for Defendants-Appellants.
   Opinion by

Judge ROTHENBERG.

In this personal injury action, defendants, R.M. Holdings, Inc. and Vantage Point Office Park Association, appeal the judgment entered on a jury verdict in favor of plaintiffs, Barnaby Pedge and Uplink Computing Solutions, Inc. (collectively Pedge). The primary issue in this appeal is whether unidentified or unknown persons may be designated as non-parties pursuant to Colorado's pro rata apportionment statute, § 13-21-111.5, C.R.S. 2002. Because we conclude they may be so designated, we reverse the judgment and remand for a new trial.

At all times relevant here, Pedge was the president and sole owner of Uplink Computing Solutions, Inc., a computer consulting business located in Boulder, Colorado. In April 1999, Pedge was assaulted outside his office early one morning by an unknown assailant. He later brought this premises liability action against the landlord, R.M. Holdings, and the association that manages the office complex, Vantage Point.

Before trial, defendants filed a designation of nonparties pursuant to § 183-21-111.5, designating "any or all customers or employees of the Plaintiffs or other unidentified persons who may be the person or persons responsible for striking ... Pedge." The trial court granted Pedge's motion to strike the designation, accepting his reasoning that it was "so vague and over-broad as to be a non-designation." At the close of evidence, the trial court refused defendants' request that the jury be instructed to consider the fault of the unidentified nonparty assailant.

As relevant here, over defendants' objection, the trial court also concluded Pedge was an invitee with respect to Vantage Point and instructed the jury accordingly.

L.

Defendants contend the trial court erred in striking their nonparty designation pursuant to § 18-21-111.5@8)(b), C.R.S.2002. We agree.

Section 13-21-111.5(8)(b) provides in relevant part:

Negligence or fault of a nonparty may be considered if ... the defending party gives notice that a nonparty was wholly or partially at fault within ninety days following commencement of the action.... The notice shall be given by filing a pleading in the action designating such nonparty and setting forth such nonparty's name and last-known address, or the best identification of such nonparty which is possible under the ctreumstamces, together with a brief statement of the basis for believing such nonparty to be at fault.

(Emphasis added.)

In civil liability cases, § 18-21-111.5 allows defendants to designate as a nonparty at fault an individual or entity "wholly or partially at fault" for the damages alleged by the plaintiff. This designation ensures that parties found liable will not be responsible for more than their fair share of the damages. Stone v. Satriana, 41 P.38d 705 (Colo. 2002).

The statute also allows tortfeasors who commit intentional torts to be designated as nonparties for the purposes of apportioning lability. See Slack v. Farmers Ins. Exch., 5 P.3d 280 (Colo.2000).

Before the finder of fact may consider the negligence or fault of a nonparty, the issue must be properly raised by a defendant in a pleading that complies with § 183-21-111.5(8), C.R.8.2002. Thompson v. Colo. & E. RR. Co., 852 P.2d 1828 (Colo.App.1998). Whether defendants' nonparty designation complied with the requirements of § 13-21-111.5(8) is a question of law that we review de novo. Fazio v. State Farm Mut. Auto. Ins. Co., 55 P.8d 229 (Colo.App.2002).

We reject Pedge's contention that he was given insufficient notice of the identity of the nonparty. The identity of Pedge's assailant or assailants is unknown, but it is undisputed that someone assaulted Pedge. While we acknowledge that designating an unknown party with sufficient particularity may be difficult, we conclude that defendants' nonparty designation sufficiently complied with $ 18-21-111.5(8), and that the designation of the unidentified assailant or assailants alleged a sufficient basis for believing the nonparty or nonparties to be wholly or partially at fault. Hence, the nonparty designation issue was properly raised here by defendants.

Contrary to Pedge's contention, we also conclude Young v. Clark, 814 P.2d 864 (Colo.1991), supports our determination that unidentified or unknown persons may be designated as nonparties pursuant to Colorado's pro rata apportionment statute.

In Young, the supreme court considered whether the sudden emergency doctrine is compatible with the designation of nonparties under § 13-21-111.5(8). There, the defendant rear-ended the plaintiff after an unidentified driver swerved into plaintiffs lane, causing the plaintiff to apply the brakes suddenly. The defendant designated the unidentified driver as a nonparty.

Although the supreme court did not address the exact issue before us, it expressly noted that "the designation of the unidentified driver ... enabled [the defendant] to present evidence in support of her theory that she was not at fault for creating the emergency situation." Young v. Clark, supra, 814 P.2d at 869; of Ramires: v. Mix-sooke, 907 P.2d 617 (Colo.App.1994)(panel assumed propriety of defendant's designation of unidentified nonparty under § 13-21-111.5(8)).

A number of other jurisdictions have upheld the designation of unidentified nonparties, and we are persuaded by their reasoning. See Bartlett v. New Mexico Welding Supply, Inc., 98 NM. 152, 646 P.2d 579 (Ct.App.1982)(under analogous state statute, defendant may designate unknown "phantom" driver as nonparty); Paul v. N.L Indus., Inc., 624 P.2d 68 (Okla.1980)(noting it is accepted practice to include all tortfeasors in the apportionment question, including phantom drivers, unknown tortfeasors, and persons alleged to be negligent but not liable for damages); Jacobs v. Milwaukee & Suburban Transp. Corp., 41 Wis.2d 661, 165 NW.2d 162 (1969)(fact finder permitted to apportion liability to unknown driver); see also Kurt G. Stiegelmeier, Designation of Immune, Non-liable and Unknown Nonparties, 22 Colo. Law. 31 (Jan.1l998)(designation of unknown nonparties is consistent with plain language of the statute and long-established practice of designating unknown defendants as "John Does”). But see Veazey v. Elmwood Plantation Assocs., Ltd., 650 So.2d 712 (La.1994); Field v. Boyer Co., 952 P.2d 1078 (Utah 1998).

Accordingly, we conclude the trial court erred in striking defendants’ designation and in refusing to instruct the jury to consider the fault of the unidentified nonparty or non-parties, and we reverse and remand for a new trial.

II.

Because it will arise on remand, we also address Vantage Point’s contention that the trial court erred in determining Pedge was an invitee, rather than a licensee, with respect to it. We disagree.

An invitee is a person who enters or remains on the land of another to transact business in which the parties are mutually interested. Section 13—21—115(5)(a), C.R.S. 2002. An invitee may recover for damages caused by the landowner’s failure to exercise reasonable care to protect against dangers of which the landowner actually knew or should have known. Section 13—21—115(3)(c)(I), C.R.S.2002.

A licensee is one who enters or remains on the land of another for the licensee’s own convenience or to advance his or her own interests, pursuant to the landowner’s permission or consent. Section 13—21—115(5)(b), C.R.S.2002. A licensee includes a social guest. Section 13-21-115(5)(b).

In Maes v. Lakevieiv Associates, Ltd., 892 P.2d 375 (Colo.App.1994), ajfd, 907 P.2d 580 (Colo.1995), a division of this court held a tenant of an apartment complex was an invitee for purposes of a premises liability claim against both the landowner and the management company. The tenant was determined to be a customer of both the landowner and management company and to have had a continuing, mutually beneficial business relationship with both parties. Thus, the Maes division concluded the tenant could seek damages based on the alleged failure of the landowner and the management company to exercise reasonable care to protect against dangers they knew or should have known.

Similarly, here, Pedge was a tenant of R.M. Holdings, and he paid for and benefited from the services provided by Vantage Point.

Contrary to Vantage Point’s assertion, Wright v. Vail Run Resort Community Ass’n, 917 P.2d 364 (Colo.App.1996), does not support the position that Pedge was a licensee with respect to Vantage Point. In Wright, a division of this court held that the social guest of a condominium owner was a licensee with respect to the community association that maintained the area where the plaintiff was injured. This holding is consistent with § 13—21—115 (5) (fo), which provides that a social guest is a licensee.

Here, however, Pedge was not a social guest. He was a tenant, and we conclude the trial court did not err in determining he was an invitee of Vantage Point. In so holding, we note that R.M. Holdings concedes Pedge was an invitee with respect to it.

The judgment is reversed, and the case is remanded for further proceedings in accordance with the views expressed in this opinion.

Judge TAUBMAN and Judge WEBB concur.