Johnson v. Staab

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.

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¶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.

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¶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.

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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.

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(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

debit card online.

¶ 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.

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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.

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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

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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.

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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

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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.

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