Peo v. Saltzman

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

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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

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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.”

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¶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

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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

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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).

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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,

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¶ 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

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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

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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;

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• 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

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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

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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.

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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

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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).

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¶ 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

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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.

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