23CA1143 Peo v Saltzman 07-31-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1143 Douglas County District Court No. 20CR556 Honorable Patricia D. Herron, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brian Philip Saltzman,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE WELLING Yun and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 31, 2025
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Springer and Steinberg, P.C., Harvey A. Steinberg, Taylor Ivy, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Brian Philip Saltzman, appeals the judgment of
conviction entered upon a jury verdict finding him guilty of one
count of third degree assault (criminal negligence), two counts of
prohibited use of a weapon (under the influence), and one count of
reckless endangerment. He contends that the trial court erred by
denying his motion to suppress the fruits of an unconstitutional
protective sweep of his residence. We affirm.
I. Background
¶2 On May 25, 2020, Saltzman, a detective and firearms
instructor with the Palmer Lake Police Department, invited some
colleagues to a party at his home. Shortly after midnight, while
Saltzman and his guests were drinking alcohol and sitting around a
firepit outside, Saltzman took out a gun from his waistband and,
without checking where the gun was pointed, fired the gun behind
him. The bullet struck the victim — a party guest — in the leg as
she was coming out of the patio door.
¶3 Police received a call about the shooting and, about thirty-five
minutes after the first officer arrived, conducted a protective sweep
of Saltzman’s three-story home. The four-page affidavit filed to
1 establish probable cause for a search warrant for the home
included officers’ observations during the protective sweep:
A protective sweep of the residence found a gun room and a closet in the basement filled with firearms and ammunition. There was a bar area in the basement. There were multiple bottles of alcohol and beer throughout the basement. A gun and holster with a Palmer Lake PD badge were on the bar counter. There was blood and multiple shell casings in the grassy area just off the basement patio area.
¶4 When executing the search warrant, officers seized multiple
items from Saltzman’s home, including the gun (a Colt 1911) that
Saltzman had used to shoot the victim. And, when taking Saltzman
into custody, officers conducted a pat-down search and collected
another firearm (a revolver) on his person.
¶5 The People charged Saltzman with second degree assault –
recklessly causing serious bodily injury, prohibited use of a weapon
(the Colt 1911), prohibited use of a weapon (the revolver), and
reckless endangerment.
¶6 Before his trial, Saltzman filed a motion to suppress the fruits
of the protective sweep, contending that the sweep “failed to comply
with the exceptions outlined as permissible by the United States
Supreme Court in Maryland v. Buie[, 494 U.S. 325 (1990)].” He
2 asserted that “all fruits, including those used in obtaining a search
warrant of [his] home, should be suppressed.”
¶7 At the conclusion of a three-day motions hearing, defense
counsel clarified that the fruits of the illegal protective sweep that
should be suppressed were the search warrant and the evidence
seized during its execution. Counsel stated that “the essence of
[his] argument” was that, “if you redact the information contained
in the affidavit in support of the search [warrant] that was gathered
as a result of the safety check[,] . . . there’s clearly not probable
cause for the search of the premises — and all the fruits that are
seized during the [search] warrant must be suppressed.”
¶8 In response, the prosecutor argued that, even if the
information collected during the protective sweep was removed from
the affidavit, sufficient probable cause otherwise existed to secure
the search warrant because “the firearm recovered on [Saltzman]
was not the firearm that caused the injury to the victim; meaning,
the firearm [used in the shooting wa]s likely somewhere in that
home, [and] that there were clearly other people in that home who
could have also been the shooter.”
3 ¶9 In a written order, the trial court denied the motion to
suppress, concluding that the prosecution satisfied its burden of
establishing that the protective sweep was reasonable. Specifically,
the court found that (1) the officers couldn’t account for “numerous
additional individuals [who] were at the residence [as evidenced by]
the number of vehicles and the amount of food and alcohol”; (2) the
officers didn’t “know[] who the shooter was”; (3) “[t]he firearm used
had not been located”; and (4) “there were several firearms in plain
view in vehicles outside the residence as well as other firearms
which were seen in the basement as Deputies passed through to get
to the victim and [Saltzman].” The court also found that the first
responding officer “did not conduct a protective sweep or clear the
residence” before the challenged protective sweep.
¶ 10 At trial, the Colt 1911 that was seized pursuant to the search
warrant was admitted into evidence, and there was testimony that it
was the weapon that had been used to shoot the victim. Saltzman’s
theory of defense was that he wasn’t guilty of second degree assault
or reckless endangerment because he didn’t act recklessly and the
victim didn’t suffer serious bodily injury. Instead, he conceded that
he was guilty of the lesser offense of third degree assault because
4 he acted with criminal negligence and the victim suffered bodily
injury. Saltzman also admitted that he was guilty of the prohibited
use of a weapon charges. The jury found Saltzman guilty of third
degree assault (criminal negligence), the two prohibited use of a
weapon (under the influence) counts, and reckless endangerment.
II. Standards of Review and Reversal
¶ 11 “Our review of a trial court’s order addressing a defendant’s
motion to suppress involves ‘a mixed question of law and fact.’”
People v. Threlkel, 2019 CO 18, ¶ 15 (quoting People v. Gothard, 185
P.3d 180, 183 (Colo. 2008)). We review “the trial court’s legal
conclusions” de novo but “defer to the trial court’s factual findings
and do not disturb them ‘if they are supported by competent
evidence in the record.’” Id. (citations omitted).
¶ 12 We review preserved errors “of constitutional dimension . . . for
constitutional harmless error.” Hagos v. People, 2012 CO 63, ¶ 11.
We must reverse errors of constitutional dimension “unless [we are]
‘able to declare a belief that [the error] was harmless beyond a
reasonable doubt.’” Id. (quoting Chapman v. California, 386 U.S.
18, 24 (1967)). “In other words, we reverse if ‘there is a reasonable
5 possibility that the [error] might have contributed to the
conviction.’” Id. (quoting Chapman, 386 U.S. at 24).
¶ 13 Further, we review unpreserved errors, “constitutional and
nonconstitutional, . . . for plain error.” Id. at ¶ 14. “[P]lain error
occurs when there is (1) an error, (2) that is obvious, and (3) that so
undermines the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.”
Phillips v. People, 2019 CO 72, ¶ 39 (citing Crim. P. 52(b)). To
constitute plain error, “an error must ‘be so obvious’ at the time it is
made ‘that a trial judge should be able to avoid it without the
benefit of an objection.’” Cardman v. People, 2019 CO 73, ¶ 34
(quoting Scott v. People, 2017 CO 16, ¶ 16, abrogated on other
grounds by Whiteaker v. People, 2024 CO 25, ¶ 25); see also People
v. Crabtree, 2024 CO 40M, ¶ 42. “For an error to be this obvious,
the action challenged on appeal ordinarily ‘must contravene (1) a
clear statutory command; (2) a well-settled legal principle; or
(3) Colorado case law.’” Scott, ¶ 16 (quoting People v. Pollard, 2013
COA 31M, ¶ 40).
6 III. Legal Authority
¶ 14 The United States and Colorado Constitutions protect
individuals from unreasonable searches and seizures. U.S. Const.
amend. IV; Colo. Const. art. II, § 7; People v. Furness, 2025 CO 16,
¶ 16.
¶ 15 “A search conducted pursuant to a warrant is typically
reasonable.” People v. Coke, 2020 CO 28, ¶ 34. “[A] search warrant
may only be issued upon a showing of probable cause, supported
by oath or affirmation, particularly describing the place to be
searched and the things to be seized.” People v. Kerst, 181 P.3d
1167, 1171 (Colo. 2008). “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.” People v.
Miller, 75 P.3d 1108, 1112 (Colo. 2003). When moving to suppress
evidence seized during the execution of a search warrant, the
defendant bears the burden of showing that “[t]here was not
probable cause for believing the existence of the grounds on which
the warrant was issued.” Crim. P. 41(e)(4); People v. Morehead,
2019 CO 48, ¶ 12; see also People v. Cunningham, 2013 CO 71,
7 ¶ 10 (“A motion to suppress under Crim. P. 41(e) is a claim that [a]
defendant’s Fourth Amendment rights have been violated.”).
¶ 16 A search conducted without a warrant is presumptively
unreasonable. People v. Ramos, 2022 CO 16, ¶ 6. To overcome this
presumption, the prosecution has the burden of establishing an
exception to the warrant requirement. Id.; People v. Fuerst, 2013
CO 28, ¶ 11. One such exception is a protective sweep. See Buie,
494 U.S. at 334-35. In Buie, the Supreme Court explained that a
protective sweep is conducted for the protection of arresting officers
and is limited to “a cursory inspection of those spaces where a
person may be found” and may “last[] no longer than is necessary to
dispel the reasonable suspicion of danger.” Id. at 335-36.
IV. Motion to Suppress the Fruits of the Protective Sweep
¶ 17 Saltzman contends that the trial court erred in denying his
motion to suppress the fruits of the protective sweep because the
court misapprehended the law and its findings aren’t supported by
the record. He argues that this error wasn’t harmless beyond a
reasonable doubt because the fruits of the protective sweep were
included in the affidavit in support of probable cause for a search
warrant and the execution of that search warrant led to the seizure
8 of the Colt 1911, which was critical evidence in the prosecution’s
case at trial.
¶ 18 Saltzman is correct that “police can not [sic] use information
obtained solely by unconstitutional means to supply probable cause
to support a search warrant.” People v. Hebert, 46 P.3d 473, 481
(Colo. 2002). But “[w]here an affidavit includes illegally obtained
evidence as well as evidence derived from independent and lawful
sources, a valid search warrant may issue if the lawfully obtained
evidence, considered by itself, establishes probable cause to issue
the warrant.” People v. McFall, 672 P.2d 534, 537 n.4 (Colo. 1983);
see also People v. Pahl, 169 P.3d 169, 175 (Colo. App. 2006) (“Where
an affidavit includes information obtained unlawfully from a
previous warrantless search as well as information from lawful
origins, evidence discovered by execution of the search warrant is
admissible if the search pursuant to the warrant was supported by
information from sources independent of the unlawfully procured
information.”).
¶ 19 Assuming, without deciding, that the protective sweep was
unconstitutional, we conclude that the error in denying the motion
to suppress the fruits of the sweep was harmless beyond a
9 reasonable doubt because we are convinced that the other
independently collected information in the affidavit, besides the
information gathered during the protective sweep, was sufficient to
establish probable cause to secure the search warrant. See People
v. Stock, 2017 CO 80, ¶ 13 (“We may affirm a trial court’s
suppression ruling on any grounds supported by the record.”); see
also Hebert, 46 P.3d at 481 (“[D]e novo review is the proper
standard for an appellate court to apply to determine whether a
redacted affidavit is sufficient to establish probable cause.”).
¶ 20 The affidavit included the following information that wasn’t
gathered during the challenged protective sweep:
• police dispatch received reports from party guests that
“someone” had fired a gun, that the discharged bullet hit
a person, and that “[t]he male who shot the weapon was
still on scene, but it was unknown where the weapon
was”;
• responding officers saw multiple vehicles parked at the
home and multiple firearms in plain view in those cars;
10 • the victim reported that, when she entered the backyard,
she heard a shot, saw a muzzle flash, and felt the bullet
hit her leg;
• officers observed a bloody sock, a spent round, and
multiple shell casings at the scene;
• a party guest told officers that he saw Saltzman pull a
firearm from the front of his waistband and fire the
weapon;
• other attendees were unable or unwilling to identify the
fired weapon or indicate where it could be located;
• when contacted, Saltzman had on his person a revolver
and a magazine for a 1911 handgun;
• when contacted, Saltzman’s girlfriend had on her person
an empty holster for a 1911 handgun; and
• Saltzman and his girlfriend lived at the house where the
shooting occurred.
¶ 21 The affiant represented that, at the time, (1) “[i]t [wa]s
unknown what weapon was used in the shooting and it ha[d] yet to
be recovered”; (2) “[i]t [wa]s unknown if the weapon was hidden
prior to the arrival of the deputies”; (3) Saltzman “was
11 uncooperative with deputies and refused to speak”; and
(4) Saltzman’s girlfriend “could not provide any information
regarding the weapon used in the shooting.”
¶ 22 Based on this record, we conclude that, had the information
collected during the protective sweep been redacted, the remaining
content in the affidavit provided sufficient information to establish
probable cause for securing the search warrant under which the
Colt 1911 was seized. See Kerst, 181 P.3d at 1171-72 (“There is a
presumption of validity afforded to the affidavit submitted in
support of the search warrant.”); see also Bartley v. People, 817
P.2d 1029, 1033 (Colo. 1991) (concluding that, if the challenged
information contained in an affidavit was disregarded, “the warrant
and search conducted pursuant to it [could be] sustained on the
basis of the other completely independent information in the
affidavit”); McFall, 672 P.2d at 537-39 (concluding that, if
information collected during an illegal warrantless arrest and
search was redacted, the affidavit still “provided sufficient reliable
information . . . to permit a judge to find probable cause to search”);
People v. Bustam, 641 P.2d 968, 973 (Colo. 1982) (The inclusion of
12 facts collected during a warrantless entry into the defendant’s home
did not “taint the otherwise valid affidavit.”).
¶ 23 Accordingly, Saltzman failed to establish a reasonable
possibility that an error in denying the motion to suppress the
fruits of the protective sweep contributed to his conviction.
¶ 24 Moreover, even if the search warrant would have lacked
probable cause (after excluding the information collected during the
protective sweep from the affidavit), we conclude that the failure to
exclude the Colt 1911 from trial was harmless beyond a reasonable
doubt. See People v. Tomaske, 2019 CO 35, ¶ 10 (“When there is a
Fourth Amendment violation, courts can apply the exclusionary
rule to suppress evidence that was discovered as a result of the
violation.”).
¶ 25 Saltzman’s trial strategy was to mitigate his criminal
culpability. In doing so, he admitted his guilt on the prohibited use
of a weapon (Colt 1911) charge and conceded that he fired the gun
from which the bullet that struck the victim was discharged. In
light of this defense theory, we are convinced that the introduction
of the Colt 1911 wasn’t critical to the prosecution’s case.
13 Importantly, Saltzman doesn’t assert that, had the Colt 1911 been
suppressed, he would have advanced a different trial strategy.
¶ 26 Furthermore, we are convinced that the record contains
overwhelming evidence, other than the Colt 1911, to prove that
Saltzman fired that gun at the victim and that he possessed the
Colt 1911 while under the influence. Specifically, witnesses
testified that Saltzman was intoxicated on the evening in question,
that he was seen firing a Colt 1911, and that he had accessories for
a Colt 1911 on his person.
V. Other Contentions
¶ 27 Saltzman also contends that the trial court applied an
erroneous legal standard when analyzing whether any of the officers
who entered his home had legal authority to do so and whether the
first responding officer conducted an illegal search that preceded
the protective sweep. We aren’t persuaded that the court erred in
either respect.
¶ 28 First, Saltzman asserts that “the trial court overlooked the fact
that every officer who entered [his] house prior to the so-called
protective sweep did so without a warrant and without [his]
consent.” While it’s true that the court didn’t make any explicit
14 findings regarding the legality of law enforcement’s entry into his
home, the omission occurred because the issue wasn’t raised below.
Saltzman’s motion to suppress and his argument at the hearing
focused on law enforcement’s conduct after they made entry into
the home, not the legality of the entry itself.
¶ 29 Saltzman insists that this argument was preserved because,
although he “did not explicitly state that police entered his house
without consent in his suppression motion and did not use the
word ‘consent,’ . . . the issue was discussed during throughout [sic]
the hearing on the motion.” We aren’t persuaded. See Phillips, ¶ 12
(“Motions to suppress ‘should state with reasonable specificity the
legal grounds upon which [they] are based’ in order ‘to put the
prosecution on notice of the contentions it must be prepared to
meet at a suppression hearing and to inform the court of the issues
to be decided.’” (quoting People v. Jansen, 713 P.2d 907, 912 n.8
(Colo. 1986))).
¶ 30 Accordingly, Saltzman’s challenge to the officers’ entry into his
home isn’t preserved and is thus subject to plain error review. See
id. at ¶ 22 (suppression arguments asserted for the first time on
appeal are forfeited and subject to plain error review).
15 ¶ 31 We conclude that the trial court didn’t obviously err by failing
to address, sua sponte, whether law enforcement’s warrantless
entry into his home violated his constitutional rights. See People v.
Petschow, 119 P.3d 495, 505 (Colo. App. 2004) (“Plain error
assumes that the court should have intervened sua sponte because
the error was so obvious.”). This is so because exceptions to the
warrant requirement quite clearly could have justified the officers’
warrantless entry. See Stock, ¶¶ 16, 23 (Voluntary consent to enter
is an exception to the warrant requirement; “[t]he police may
assume, without further inquiry, that a person who answers the
door in response to their knock has the authority to let them enter.”
(quoting People v. Ledesma, 140 P.3d 657, 705 (Cal. 2006))); People
v. Stone, 2021 COA 104, ¶¶ 47-49 (absent a revocation of consent
or an objection to reentry, consent for police to initially enter a
home can extend to subsequent entries); see also People v. Aarness,
150 P.3d 1271, 1277 (Colo. 2006) (Exigent circumstances is an
exception to the warrant requirement; an exigent circumstance to
justify a warrantless entry into a home includes when “there is a
colorable claim of emergency threatening the life or safety of
another.”). Indeed, undisputed evidence in the record shows that
16 one of the party goers consented to the officer’s entry upon arrival
and that officers were responding to a report that an occupant of
the house had been shot.
¶ 32 Second, Saltzman argues that the trial court erred by finding
that the first responding officer didn’t conduct a search of his home
prior to the protective sweep. Despite the court’s inclusion of such
a finding in the factual history section of its order, we aren’t
convinced that Saltzman raised this particular argument. See
Phillips, ¶¶ 12, 22.
¶ 33 Nevertheless, even assuming this assertion was preserved, we
conclude that any error in the court’s finding was harmless beyond
a reasonable doubt because Saltzman doesn’t identify any evidence
or information found during this challenged search that contributed
to his conviction.
VI. Disposition
¶ 34 The judgment is affirmed.
JUDGE YUN and JUDGE LUM concur.