Colorado Supreme Court December 14, 2009

No. 08SC588. People v. Wittrein.Criminal Procedure—Competency Proceedings—Expert Testimony—Psychologist–Patient Privilege—Due Process. The Supreme Court reversed the court of appeals’ order remanding the case for a new trial. The Court held that (1) the district court did not err in holding a child competency proceeding in front of the jury; (2) an impermissible response by an expert witness was an error that was invited by defense counsel’s questioning; and (3) the trial court was not required to review the child victim’s mental health records in camera because they were privileged. The Court held that education records may be subject to an in camera review if the defendant shows a need for the information that outweighs any privacy interests. In this case, however, the education records did not relate to the evidence presented at trial. Therefore, the trial court’s refusal to review them was not error. The Court remanded the case to the court of appeals to consider the defendant’s other arguments not addressed by that court.

No. 09SA69. People v. Gutierrez. Fourth Amendment Standing—Probable Cause—The Good Faith Exception.

The Supreme Court held that the trial court properly suppressed evidence obtained pursuant to an unlawful search of defendant Gutierrez’s tax returns and supporting documentation. The documents were found in Gutierrez’s client file police seized from his tax preparer’s office.

The Court held that Gutierrez has standing under the Fourth Amendment to object to a search of his client file. A taxpayer has a reasonable expectation of privacy in his or her tax returns and return information, even when that information is in the custody of a tax preparer. This reasonable expectation of privacy is based on federal and state laws that protect the confidentiality of tax returns and return information.

The Court also held that Gutierrez’s client file was searched in violation of the Fourth Amendment. The affidavit supporting the warrant did not name Gutierrez or refer to him in any way and therefore failed to establish individualized probable cause to search his client file.

Finally, the Court found that the good faith exception to the exclusionary rule does not apply in this case, because the affidavit supporting the warrant was so lacking in indicia of probable cause to search Gutierrez’s file that no reasonably well-trained officer could have relied on it. Therefore, suppression of the evidence was appropriate and the judgment was affirmed.

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