The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY May 1, 2025
2025COA45
No. 24CA0683, Johnson v. Staab — Damages — Civil Action for Deprivation of Rights; Constitutional Law — Colorado Constitution — Searches and Seizures — Search Warrant Affidavits — False Statements and Material Omissions
A division of the court of appeals concludes for the first time
that, for purposes of seeking damages under section 13-21-131,
C.R.S. 2024, no constitutional violation occurs where a police
officer’s material omissions from and false statements in a search
warrant affidavit were the result of negligence or mistake, as
opposed to having been made intentionally or with reckless
disregard for the truth. COLORADO COURT OF APPEALS 2025COA45
Court of Appeals No. 24CA0683 City and County of Denver District Court No. 22CV33434 Honorable Stephanie L. Scoville, Judge
Ruby Johnson,
Plaintiff-Appellee,
v.
Gary Staab, an officer of the Denver Police Department, in his individual capacity, and Gregory Buschy, an officer of the Denver Police Department, in his individual capacity,
Defendants-Appellants.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE TOW Dunn and Meirink, JJ., concur
Announced May 1, 2025
Baker & Hostetler LLP, Paul G. Karlsgodt, Michelle R. Gomez, Colby M. Everett, Denver, Colorado; Law Offices of Ann M. Roan, LLC, Ann M. Roan, Boulder, Colorado; American Civil Liberties Union Foundation of Colorado, Timothy R. Macdonald, Sara R. Neel, Anna I. Kurtz, Lindsey M. Floyd, Denver, Colorado, for Plaintiff-Appellee
Wells, Anderson & Race, LLC, William T. O’Connell, III, Saugat K. Thapa, Denver, Colorado, for Defendant-Appellant Gary Staab
Katie McLoughlin, Acting City Attorney, David Murphy, Assistant City Attorney,Madison L. Smith, Assistant City Attorney, Denver, Colorado, for Defendant-Appellant Gregory Buschy ¶1 Defendants, Sergeant Gregory Buschy and Detective Gary
Staab, appeal the judgment entered on a jury verdict in favor of
plaintiff, Ruby Johnson. Claiming that Buschy and Staab illegally
searched her home, Johnson sued them under section 13-21-
131(1), C.R.S. 2024, which provides a private right of action against
peace officers “who, under color of law, subject[] or cause[] to be
subjected . . . any other person to the deprivation of any individual
rights . . . secured by the bill of rights, article II of the state
constitution.” Johnson alleged that Buschy and Staab obtained a
search warrant for her house by submitting an affidavit that was
tainted by material omissions and false statements.
¶2 This appeal requires us to consider whether, for purposes of
seeking damages under the statute, a constitutional violation
occurs where the officers’ false statements in and omissions from
the affidavit were the result of negligence or mistake — as opposed
to being made intentionally or with reckless disregard for the truth.
We conclude that such negligence or mistake does not create a
constitutional violation. And because the jury was not told to treat
such negligent or mistaken statements or omissions differently from
any misleading statements and omissions made intentionally or
1 recklessly, it was incorrectly instructed. As a result, we reverse the
judgment and remand for a new trial.
I. Background
¶3 A truck with firearms, ammunition, drones, cash, a debit card,
and an iPhone was stolen. The owner reported the theft to the
police. The owner used the Find My iPhone app (the App) on a
separate device to track the stolen phone, which showed that the
phone was pinging in multiple locations. The owner reported the
phone’s movements to the police and sent them a screenshot of the
App, which depicted a map with a blue circle encompassing or
touching multiple buildings; within the blue circle, there was a
small red dot on top of a house. The image also contained an
address for the house. The owner later reported that the phone’s
last ping was at the same location.
¶4 A dispatcher recorded information from a police officer (who
was talking to the owner on the phone) that the truck was near a
park, “right around the corner” from the location in the screenshot.
The owner also told the police that someone tried to use his wife’s
debit card online.
2 ¶5 The owner drove to the house on which the App displayed the
red dot. He did not see the truck but saw a garage that could
accommodate the truck. Police surveilled the house but did not see
the truck, nor did they observe any suspicious activity. Police also
learned that an elderly woman, Johnson, lived at the house.
¶6 The next day, Buschy learned about the theft and assigned the
case to Staab. Staab thought that the App’s screenshot’s red dot
showed the phone was at the house. Buschy was unaware of the
App’s functionality or accuracy.
¶7 Staab and Buschy discussed applying for a warrant to search
the house. Both men had concerns about probable cause related to
staleness given the amount of time (seventeen hours) that had
elapsed since the screenshot was taken. Buschy told Staab to
speak with the District Attorney’s Office about probable cause.
Staab spoke with a deputy district attorney, who had experience
using the App both professionally and personally and believed that
it was reliable. She told Staab that she did not believe staleness
undermined probable cause. Buschy also called the deputy district
attorney, who suggested that he ask the owner if he had any
experience using the App.
3 ¶8 Buschy did so, and the owner told him that he had used the
App to find a lost phone “within feet.” The owner also told Staab
that he had previously used the App to find his wife’s phone.
¶9 Staab prepared an affidavit in support of a warrant to search
the house and sent it to the deputy district attorney to review. The
deputy district attorney reviewed it, made changes, discussed it
with her supervisor, and had her supervisor review it. The deputy
district attorney approved the warrant affidavit.
¶ 10 Buschy reviewed the affidavit and, believing that it established
probable cause, approved it. Staab submitted the proposed warrant
for judicial approval, and a judge found probable cause and issued
the warrant.
¶ 11 As relevant to this appeal, the warrant affidavit provided that
the day after the truck was stolen, at
0845 hours- Your Affiant phoned [the] listed number for the victim . . . , who advised Your Affiant he had an old iPhone he left in his truck and he uses an app, find my phone. The victim related that he utilized the find my iPhone app in an attempt to track down his own vehicle/belongings, and the phone pinged to a house . . . [on] N. Worchester St. Denver, CO 80239. He reported the first ping occurred on 01/03/2021, at 1124 hours, and the last ping was on 01/03/2021, at 1555 hours.
4 During this time the phone had not moved. The phone has not pinged at the location since and the victim believes the phone might have died. Victim added he had rented a car and drove by the address and didn’t see his truck at the location but stated it could be in the garage. The phone was pinging at the address when the victim drove by. Victim has used this iPhone app on other occasions, where he found his wife’s phone in the middle of a field, with an accuracy of five feet. A photo of the app shows a red dot, signifying the phone being inside the house . . . [on] N Worchester St. Denver, CO 80239.
¶ 12 Officers executed the search warrant with the SWAT team,
pointed guns at Johnson, ordered her to leave the house, placed her
in a police car, and drove her a short distance away. After about
thirty-five minutes, the search ended without either the truck or the
iPhone being found at the house. There was some damage to
Johnson’s house and property.
¶ 13 Johnson sued Staab and Buschy, asserting that her civil
rights had been violated because the affidavit supporting the search
warrant for her house contained “knowingly or recklessly false
statements of material fact” and it “intentionally or with reckless
disregard, omitted material, adverse facts.” Without these false
5 statements and omissions, Johnson alleged, there was insufficient
probable cause for the search warrant.
¶ 14 Specifically, Johnson alleged that the following statements in
the warrant affidavit were false:
(1) The victim “reported the first ping occurred on
01/03/2021, at 1124 hours.”
(2) The victim reported that “the last ping was on
01/03/2021, at 1555 hours.”
(3) “During this time the phone had not moved.”
(4) The victim stated that the stolen truck “could be in the
garage.”
(5) “Victim has used iPhone app on other occasions . . . .”
(6) “A photo of the app shows a red dot, signifying the phone
being inside the house . . . .”
¶ 15 Johnson also alleged that the following information was
omitted from the affidavit:
(1) Staab believed that there was not probable cause when
he prepared the affidavit.
(2) Buschy had the same concerns about probable cause.
6 (3) Staab and Buschy were concerned about probable cause
when they called the deputy district attorney and thought
she would tell them there was not probable cause.
(4) The phone pinged all over Denver the day the truck was
stolen.
(5) Staab had no experience with, training on, or knowledge
about the App that he was relying on.
(6) Buschy had no experience with, training on, or
knowledge about the App that he was relying on.
(7) The truck was not at the house.
(8) Staab never considered Johnson, a seventy-eight-year-
old woman, to be a suspect.
(9) While doing surveillance at the house, officers saw no
suspicious activity.
(10) The victim reported to Staab that later in the morning
after the truck was stolen, someone tried to use his wife’s
¶ 16 A mobile forensics expert testified that the App displays a
location for the phone based on Wi-Fi hotspots or routers, GPS
satellites, and Bluetooth beacons. He testified that the accuracy of
7 the location depends on the sources and number of data points
received from those sources, as well as the phone’s settings. And
he testified that, in the screenshot, the circle represented where the
phone may be whereas the smaller dot was just the center of that
circle.
¶ 17 The jury found Staab and Buschy liable. The jury awarded
Johnson $1.25 million in noneconomic damages, $10,000 in
economic damages, and $1.25 million dollars in punitive damages
per officer.1
1 The trial court granted a post-trial motion resulting in the
reduction of the economic damages to $200.
8 II. Jury Instruction
¶ 18 Defendants contend that the trial court reversibly erred by
incorrectly instructing the jury.2 We agree.
A. Additional Background
¶ 19 Jury Instruction No. 16 provided as follows:
To show that Plaintiff was deprived of her article II, section 7 rights, Plaintiff must prove each of the following two things by a preponderance of the evidence:
1. In the warrant affidavit, Defendant made false statements, or omissions that created a falsehood; and
2. Those false statements or omissions were material, or necessary, to the finding of probable cause for the arrest.
To determine whether any misstatements or omissions were material, you must subtract
2 Each of the defendants filed his own opening brief. In a pattern repeated throughout the briefs, however, Buschy argued a point, and Staab summarily joined in that argument. For some issues, however, Staab added to Buschy’s argument. This manner of briefing is inconsistent with the rules of appellate procedure. See C.A.R. 28(h) (“[A]ny party may adopt by reference any part of another’s brief, but a party may not both file a separate brief and incorporate by reference the brief of another party.”). Nevertheless, as it relates to the specific argument that the jury was incorrectly instructed — which we ultimately conclude is the dispositive issue on appeal — Staab simply adopted Buschy’s argument without attempting to expound on it. Thus, notwithstanding Staab’s noncompliance with C.A.R. 28(h), we exercise our discretion not to strike his brief.
9 the misstatements from the warrant affidavit, and add the facts that were omitted, and then determine whether the warrant affidavit, with these corrections, would establish probable cause.
You may consider information outside the affidavit to determine whether it contained material misrepresentations or material omissions.
Buschy and Staab objected to this instruction, arguing that to be a
correct statement of law it needed to be revised to include that “the
defendants intentionally or recklessly included false statements or
omissions.” The trial court declined to modify the instruction.
B. Standard of Review
¶ 20 A trial court must correctly instruct the jury on all matters of
law. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). “We review
de novo whether a particular jury instruction correctly states the
law” and whether the “instructions as a whole accurately informed
the jury of the governing law.” Id.
C. Applicable Law
¶ 21 As noted, section 13-21-131 authorizes a private right of
action against a peace officer “who, under color of law, subjects or
causes to be subjected . . . any other person to the deprivation of
any individual rights . . . secured by the bill of rights, article II of
10 the state constitution.” Thus, to prove a claim under section
13-21-131, a plaintiff must establish that there was a violation of a
right embodied in the bill of rights of the Colorado Constitution.
See Puerta v. Newman, 2023 COA 100, ¶ 2.
¶ 22 Article II, section 7 of the Colorado Constitution prohibits the
issuance of a search warrant except upon probable cause supported
by oath or affirmation particularly describing the place to be
searched and the things to be seized. People v. Miller, 75 P.3d
1108, 1112 (Colo. 2003). A challenge can be brought to the
accuracy of an affidavit supporting a search warrant. See, e.g.,
People v. Dailey, 639 P.2d 1068, 1074 (Colo. 1982). And “[s]ince
probable cause determinations are based on inferences drawn from
the language in warrant affidavits, false statements may result in a
mistaken finding of probable cause.” People v. Reed, 56 P.3d 96, 99
(Colo. 2002).
D. Analysis
¶ 23 The crux of the parties’ dispute is whether the inclusion of any
material, false statements in or the omission of any material facts
from a warrant affidavit — even if the inclusion or omission is the
11 product of negligence or simple mistake — violates article II,
section 7.
¶ 24 Johnson relies on Dailey and Reed to support her contention
that “under article II, section 7, courts are empowered to suppress
evidence where affidavit errors result from ‘the negligence or good
faith mistake of either the officer or the informant.’” (Quoting
Dailey, 639 P.2d at 1075.) But Johnson overstates Dailey and
Reed.
¶ 25 In Dailey, the supreme court concluded that a trial court
determines whether the affidavit contains erroneous statements
and, if so, whether “the source of the error is intentional falsehood
or reckless disregard for the truth on the part of the officer-affiant.”
639 P.2d at 1075. If it finds that the challenging party has shown
by a preponderance of the evidence that the source of the error is
intentional falsehood or reckless disregard for the truth, it must
strike the false statements from the affidavit. Id.
¶ 26 Similarly, in Reed, the supreme court applied the Dailey test
and explicitly differentiated between false statements made
intentionally or with reckless disregard for the truth and those
made due to negligence or a good faith mistake, stating “it is
12 imperative that the trial court make specific findings why the false
statements are in the affidavit: whether the error was intentional, or
with reckless disregard for the truth, or due to negligence or a good
faith mistake.” Reed, 56 P.3d at 100 (emphasis added). Statements
made negligently or due to a good faith mistake do not require
excision from the affidavit. See id.3
¶ 27 In response to questioning during oral argument, Johnson’s
counsel appeared to acknowledge that suppression of the evidence
is only required when the materially false information was the
product of knowledge and intent or reckless disregard for the truth.
But counsel contended that, under our supreme court’s
jurisprudence, the inclusion of material negligent or mistaken
statements in (or the existence of material negligent omissions from)
a warrant affidavit also results in a constitutional violation
3 Other supreme court cases similarly require the exclusion of
intentional or reckless misstatements or omissions from warrant affidavits but generally recognize the possibility of unidentified “appropriate sanctions” for other warrant affidavit errors. See, e.g., People v. Winden, 689 P.2d 578, 583 (Colo. 1984); People v. Millitello, 705 P.2d 514, 518 (Colo. 1985); People v. Flores, 766 P.2d 114, 119 (Colo. 1988); People v. Cox, 2018 CO 88, ¶ 9.
13 cognizable under section 13-21-131, even if evidence suppression
would not be warranted. We disagree.
¶ 28 We acknowledge that our supreme court has generally
observed that
[t]he errors, however, could have resulted from the informant’s perjury or reckless disregard for the truth, or from the negligence or good faith mistake of either the officer or the informant. Other sources of error can be imagined. We consider it inadvisable to attempt to develop the consequences which would follow under the United States and Colorado Constitutions from each of the various possibilities as to the origin of the error.
Dailey, 639 P.2d at 1075 (emphasis added); accord Reed, 56 P.3d at
99 (“If the error resulted from some other source, such as
negligence or a good-faith mistake, the question of appropriate
sanctions, if any, is initially left to the discretion of the trial court,
but subject to our subsequent review.”). But we do not read this
language as a holding by our supreme court that the inclusion of
negligent or mistaken statements in the affidavit, although not
requiring suppression of the evidence, nevertheless creates a
constitutional violation. To the contrary, in Dailey, the supreme
court said, “We do not agree with the trial court’s assumption that
14 all false information in an affidavit for search warrant must be
stricken, without regard to the source of the error, before
determining its sufficiency to establish probable cause.” 639 P.2d at
1075 (emphasis added). In other words, a warrant may be
supported by probable cause even if the supporting affidavit
contains negligent or mistaken misstatements. See Reed, 56 P.3d
at 100 (holding that trial court erred by excising statements that
were “[a]t best” negligent when assessing whether affidavit
established probable cause). And if such a warrant is supported by
probable cause, the search pursuant to that warrant does not
violate article II, section 7.
¶ 29 We are unpersuaded by Johnson’s remaining contentions.
¶ 30 Johnson argues that negligent statements and omissions must
create a constitutional deprivation. To hold otherwise, she
contends, essentially grafts the federal standard for qualified
immunity in 42 U.S.C. § 1983 into our statute because a plaintiff
would be required to demonstrate more than just a constitutional
violation.
¶ 31 But we are neither creating § 1983-style immunity nor
requiring more than proof of a constitutional violation. Instead, we
15 conclude that proof of a deprivation of a constitutional right in this
context requires a showing that there were misstatements in or
omissions from the affidavit that were intentional or made with
reckless disregard for the truth, without which the affidavit would
not establish probable cause. This is consistent with what Colorado
courts require to determine whether a warrant was issued with
probable cause as required by article II, section 7. See Dailey, 639
P.2d at 1076; Reed, 56 P.3d at 100. And we reject Johnson’s
attempt, relying on an out-of-state case, to recast what constitutes
a violation of article II, section 7. See Garcia v. Centura Health
Corp., 2020 COA 38, ¶ 45 (out-of-state cases are not binding
precedent on this court).
¶ 32 Next, Johnson contends that we should not impose a state-of-
mind requirement where section 13-21-131 has none. While
section 13-21-131 has no state-of-mind requirement, as noted, a
plaintiff must show that there was a violation of a constitutional
right. § 13-21-131(1). Johnson herself acknowledges that different
violations of the state constitution have different state-of-mind
requirements. Nothing in section 13-21-131 eliminates the
necessity of satisfying the applicable state-of-mind requirement for
16 the constitutional violation at issue. And, as noted, the state-of-
mind requirement for the constitutional violation on which Johnson
bases her claim — indeed, which she pleaded in her complaint — is
intent or recklessness. See Dailey, 639 P.2d at 1076; Reed, 56 P.3d
at 100.
¶ 33 For similar reasons, we reject Johnson’s contention that
requiring a plaintiff to prove state of mind to show a constitutional
violation renders section 13-21-131(4)(a) a nullity. Section
13-21-131(4)(a) states,
[I]f the peace officer’s employer determines on a case-by-case basis that the officer did not act upon a good faith and reasonable belief that the action was lawful, then the peace officer is personally liable and shall not be indemnified by the peace officer’s employer for five percent of the judgment or settlement or twenty-five thousand dollars, whichever is less.
While this provision has limited application for a constitutional
violation that requires a state of mind greater than negligence, it
still bears on other constitutional deprivations that require no state
of mind or encompass negligence.
¶ 34 In sum, the jury instruction misstated the law because it did
not direct the jury to only excise the false statements from, or
17 correct the omissions in, the affidavit that the jury found were made
intentionally or with a reckless disregard for the truth. Cf. Dailey,
639 P.2d at 1075; Reed, 56 P.3d at 100.
E. Harmful Error
¶ 35 Johnson contends that any error was harmless. We disagree.
¶ 36 We “must disregard any error or defect in the proceeding [that]
does not affect the substantial rights of the parties.” C.R.C.P. 61;
see also C.A.R. 35(c). In the context of instructional error, “a
judgment will not be reversed for refusal to give requested
instructions where there was not resulting substantial, prejudicial
error.” Schuessler v. Wolter, 2012 COA 86, ¶ 11. “That’s the result
only if the jury ‘probably would have decided [the] case differently if
given a correct instruction.’” Dorsey & Whitney LLP v. RegScan,
Inc., 2018 COA 21, ¶ 46 (quoting Gasteazoro v. Cath. Health
Initiatives Colo., 2014 COA 134, ¶ 12).
¶ 37 The instruction told the jury to subtract all misstatements
from the affidavit and add all omissions. It did not instruct the jury
to excise only intentional or reckless misstatements or add back
only those facts that were intentionally or recklessly omitted. We
cannot say whether the jury thought any of the misstatements or
18 omissions were intentional or reckless or simply negligent or
mistaken. As a result, “it cannot be known” whether the jury’s
verdict was based on excising only the intentionally or recklessly
made statements or adding in only the intentionally or recklessly
made omissions in the warrant affidavit. Bullington v. Barela, 2024
COA 56, ¶ 29 (quoting Banning v. Prester, 2012 COA 215, ¶ 19)
(concluding that the instructional error was prejudicial where it
could not be known whether the jury’s verdict included a finding
that the defendant failed to mitigate her damages).
¶ 38 Johnson contends that the jury’s finding that Staab and
Buschy acted willfully and wantonly such that she was owed
exemplary damages under section 13-21-101, C.R.S. 2024, means
that the jury necessarily found that they intentionally or with
reckless disregard for the truth included or omitted statements in
the affidavit. Again, we disagree.
¶ 39 The jury was given the following instruction:
If you find in favor of Plaintiff on her claim against a Defendant, then you shall consider whether she should recover punitive damages against that Defendant. If you find beyond a reasonable doubt that the Defendant acted in a willful and wanton manner in causing Plaintiff’s injuries or damages, you shall
19 determine the amount of punitive damages, if any, that Plaintiff should recover from that Defendant.
Punitive damages, if awarded, are to punish the Defendant and serve as an example to others.
¶ 40 ‘“[W]illful and wanton conduct’ means conduct purposefully
committed which the actor must have realized as dangerous, done
heedlessly and recklessly, without regard to consequences, or of the
rights and safety of others, particularly the plaintiff.”
§ 13-21-102(1)(b), C.R.S. 2024. A statement is made with a
“reckless disregard for the truth” if the person making the
statement “entertained serious doubts as to the truth of the
statement or acted with a high degree of awareness of its probable
falsity.” Rosenblum v. Budd, 2023 COA 72, ¶ 39 (citation omitted)
(discussing actual malice); see Beard v. City of Northglenn, 24 F.3d
110, 116 (10th Cir. 1994) (noting that a demonstration of the
officer’s recklessness requires “evidence that the officer ‘“in fact
entertained serious doubts as to the truth of his” allegations . . .
and [a] factfinder may infer reckless disregard from circumstances
evincing “obvious reasons to doubt the veracity” of the allegations’”)
(citation omitted). Thus, the standard for willful and wanton
20 conduct differs from the standard for statements made with
reckless disregard for the truth. Cf. Credit Serv. Co. v. Dauwe, 134
P.3d 444, 447 (Colo. App. 2005) (noting that section
13-21-102(1)(b)’s definition of willful and wanton conduct connotes
subjective behavior whereas the term actual malice has an objective
connotation).
¶ 41 Moreover, the punitive damage instruction was not limited to
Johnson’s claim that Buschy and Staab’s search warrant affidavit
was tainted by materially false information and omissions. Instead,
it broadly asked the jury to consider whether Buschy and Staab
“acted in a willful and wanton manner in causing Plaintiff’s injuries
or damages.” Thus, we cannot determine whether the jury’s
determination regarding willful and wanton conduct was limited to
the warrant affidavit or whether the jury also considered other
facts — referenced by Johnson’s counsel when arguing for punitive
damages — such as the presence of a heavily armed SWAT team or
the damage to the house.
¶ 42 Finally, the jury was instructed to reach the question of
whether the conduct was willful and wanton only after concluding
that the properly revised warrant lacked probable cause. But, had
21 the jury been instructed to leave in those falsehoods and leave out
those omissions (if any) that it found were merely negligent or
mistaken, it may not have found liability at all and, thus, may never
have reached the question of punitive damages. Consequently, we
simply cannot conclude that the jury’s determination that Buschy
and Staab acted willfully and wantonly renders the instructional
error harmless.
III. Disposition
¶ 43 The judgment is reversed, and the case is remanded for a new
trial.
JUDGE DUNN and JUDGE MEIRINK concur.