December 22, 20252025 CO 64, 24SA276, In re People v. Camp 24SA308 & 24SA309, In re People v. Simons2025 CO 65, 25SA154, People v. Havens

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there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.
ADVANCE SHEET HEADNOTE
December 22, 2025
2025 CO 65
No. 25SA154, People v. Havens—Law Enforcement—Body-Worn Cameras —
Discovery and Procedure Before Trial.
In this C.A.R. 4.1 appeal, the supreme court reverses the district court’s
order suppressing evidence seized in a defendant’s motel room because the
district court misinterpreted the body-worn camera statute, section 24-31-302,
C.R.S. (2025), and Crim. P. 16. The court remands the case to the district court to
hold a hearing to give the prosecution the opportunity to rebut the presumption
of inadmissibility set forth in section 24-31-902(1)(a)(III).

The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2025 CO 65
Supreme Court Case No. 25SA154
Interlocutory Appeal from the District Court
Fremont County District Court Case No. 24CR404
Honorable Lauren T. Swan, Judge
Plaintiff-Appellant:
The People of the State of Colorado,
v.
Defendant-Appellee:
Thomas James Havens.
Order Reversed
en banc
December 22, 2025
Attorneys for Plaintiff-Appellant:
Jeffrey D. Lindsey, District Attorney, Eleventh Judicial District
Stephanie B. Miller, Senior Deputy District Attorney
Cañon City, Colorado
Attorneys for Defendant-Appellee:
Thom LeDoux Law, PLLC
Thom LeDoux
Cañon City, Colorado

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JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which
CHIEF JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD,
JUSTICE GABRIEL, and JUSTICE SAMOUR joined.
JUSTICE HART did not participate.

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JUSTICE BERKENKOTTER delivered the Opinion of the Court.
¶1 As of July 1, 2023, all local law enforcement agencies in the State of Colorado
and the Colorado State Patrol must provide a body-worn camera (“BWC”) for each
peace officer who interacts with members of the public. § 24-31-902(1)(a)(I), C.R.S.
(2025). The statute sets forth requirements for officers concerning their BWCs.
§ 24-31-902(1)(a)(II). It also explains the consequences of an officer’s failure to
activate a BWC as required by the statute. § 24-31-902(1)(a)(III). If an officer fails
to comply with the BWC statute, there is a permissive inference that the missing
footage would have reflected misconduct by the officer. Id. The statute also
creates a rebuttable presumption of inadmissibility as to any statements or
conduct that were not recorded due to the officer’s failure to activate or reactivate
their BWC. Id.
¶2 In this interlocutory appeal, we review a district court’s order suppressing
evidence seized from defendant Thomas James Havens’s motel room during the
execution of a search warrant. The court concluded that the search warrant did
not establish probable cause as the only basis for the location of the search was a
statement by a motel clerk that was not recorded. The statement was not recorded
because the officer who spoke with the clerk had previously turned his BWC audio
off and failed to reactivate it during their conversation.

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¶3 The district court was persuaded that the prosecution had committed a
discovery violation because it did not produce a report explaining the officer’s
failure to unmute his BWC audio. As a discovery sanction, the court prohibited
the officer from testifying at the suppression hearing about his failure to unmute
his BWC or any of the clerk’s statements. The court additionally concluded that
the officer’s testimony as to both topics was inadmissible under the rebuttable
presumption of inadmissibility in the BWC statute. It then reasoned that without
the officer’s testimony, the permissive inference that the missing audio reflected
misconduct by the officer had not been rebutted. And because there was no
testimony about the clerk’s statement that was the sole basis for the location of the
search (i.e., Havens’s motel room), the search warrant did not establish probable
cause. The court, accordingly, suppressed all the fruits of the search.
¶4 Because the court erroneously granted the motion to suppress based on its
misinterpretation of the BWC statute and Crim. P. 16, and because the prosecution
should have been given an opportunity to rebut the presumption of
inadmissibility, we reverse the court’s suppression order and remand the case to
the district court to hold a hearing as required by the BWC statute.
I. Facts and Procedural History
¶5 In a Motel 6 parking lot, Cañon City Police Department (“CCPD”) Officer
Austin Modlin and other CCPD officers stopped Havens for a traffic infraction.

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Havens was arrested for outstanding warrants. Officer Modlin observed drug
paraphernalia in plain view in Havens’s car. After he called for a drug K-9 to sniff
the vehicle, the K-9 alerted on the car, and the officers searched it. The officers
found illegal narcotics, a firearm, bullets, and a ledger. Havens told the officers
that he was staying in room 220 of the motel.
¶6 While searching the vehicle, Officer Modlin disabled the audio on his BWC
because personal conversations unrelated to the case were occurring around him.
After searching the car, he went into the motel to verify that Havens was staying
in room 220 as Havens had stated. The motel clerk told Officer Modlin that
Havens was staying in room 223 (not room 220 as Havens said). Officer Modlin
failed to unmute his BWC while talking to the motel clerk. So, even though the
BWC video recording was activated, the conversation with the motel clerk and the
room number that she gave were not captured by audio.
¶7 Using this information, Officer Modlin applied for and obtained a warrant
to search room 223. The motel clerk’s statement that Havens was staying in
room 223 was the only basis in the search warrant affidavit regarding the location
to be searched. When officers executed the warrant, they seized more illegal
narcotics and drug paraphernalia. Based on the evidence seized in the vehicle and
room 223, the prosecution charged Havens with two counts of possession with
intent to distribute a controlled substance, two counts of violation of a protection

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order, possession of a defaced firearm, failure to obey a traffic control device, and
possession of drug paraphernalia.
¶8 Havens filed a motion to suppress the evidence found in room 223. Havens
argued that because Officer Modlin’s police report did not explain why he muted
his BWC audio, and because the prosecution had failed to provide an explanation,
the prosecution had violated Crim. P. 16. He further asserted that Officer Modlin’s
testimony regarding the motel clerk’s statement was inadmissible in light of the
BWC statute’s presumption of inadmissibility.
¶9 Havens additionally claimed that Officer Modlin’s statement in the search
warrant application that Havens “had rented room 223” lacked the necessary
veracity and, pursuant to Franks v. Delaware, 438 U.S. 154, 156 (1978), “must be ‘set
to one side.’”1 Without the statement of the motel clerk regarding the location to
be searched, Havens urged, the warrant lacked probable cause to search room 223.
¶10 The district court agreed. As a discovery sanction, it prohibited Officer
Modlin from testifying about why his BWC audio had been muted. The court also
1 In Franks, the Supreme Court held that a defendant has the right to a hearing to
contest the truthfulness of a search warrant affidavit under certain conditions.
438 U.S. at 155–56. If a defendant establishes by a preponderance of the evidence
that an affidavit contains a false statement that was made intentionally or with
reckless disregard for the truth, then the court sets aside the false statement. Id. at
156. If the remaining content is insufficient to establish probable cause, then the
search warrant must be voided and the evidence obtained as a result of the search
must be excluded. Id.

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prohibited Officer Modlin, as a discovery sanction, from testifying about the
clerk’s statements, including her statement that Havens was staying in room 223.
Based on these rulings, the district court then found that the defense had met its
burden as to the veracity challenge under Franks. Specifically, it concluded that
without Officer Modlin’s testimony, the permissive inference that the missing
audio reflected misconduct by Officer Modlin had not been rebutted. And because
the clerk’s statement was the sole basis for the warrant that authorized the search
of Havens’s motel room, the court held that the search warrant did not establish
probable cause. The court, accordingly, suppressed all the evidence seized in
room 223.
¶11 The prosecution then filed this interlocutory appeal.
II. Analysis
¶12 We begin by reviewing the basis for our jurisdiction and the applicable
standard of review. We then review the BWC statute and Crim. P. 16 to determine
whether the district court erred when it suppressed the evidence found in
room 223 because Officer Modlin failed to unmute his BWC audio. We conclude
that the district court erred. The prosecution does not have an obligation under
the BWC statute nor under Crim. P. 16 to provide a report to the defense when an
officer fails to unmute the audio on a BWC. Thus, the court mistakenly barred
Officer Modlin’s testimony as a discovery sanction.

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¶13 Additionally, the statements by the motel clerk are subject to the rebuttable
presumption of inadmissibility. Despite this, the prosecution did not have the
opportunity to present evidence regarding the officer’s failure to comply with the
BWC statute or what the motel clerk told him. This led the district court to read
the clerk’s statement out of the search warrant affidavit and, as a result, to
erroneously suppress the evidence found in room 223.
A. Jurisdiction
¶14 Under C.A.R. 4.1(a), the prosecution may file an interlocutory appeal in this
court to review a district court’s order granting a motion to suppress. Here, the
prosecution asks this court to review the district court’s order suppressing the
evidence found in the motel room. Accordingly, we have jurisdiction to review
the district court’s suppression order under Rule 4.1.
B. Standard of Review
¶15 Our review of a court’s suppression order presents a mixed question of fact
and law. People v. Hyde, 2017 CO 24, ¶ 9, 393 P.3d 962, 965. We defer to a court’s
findings of fact when they are supported by the record, but we assess the legal
effect of those facts de novo. Id. A court’s legal conclusion can be corrected if the
court applied an erroneous legal standard to the facts of the case. People v.
Munoz-Gutierrez, 2015 CO 9, ¶ 14, 342 P.3d 439, 443.

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C. The BWC Statute
¶16 All local law enforcement agencies in the state and the Colorado State Patrol
must provide BWCs for each of their peace officers who interact with members of
the public. § 24-31-902(1)(a)(I). These officers must wear and activate their BWCs
when interacting with the public for the purpose of enforcing the law or
investigating possible violations of the law. § 24-31-902(1)(a)(II)(A). Officers may
turn off their BWCs to avoid recording personal information that is not case
related. § 24-31-902(1)(a)(II)(B).
¶17 However, if an officer fails to activate a BWC as required by the statute,
“there is a permissive inference in any investigation or legal proceeding . . . that
the missing footage would have reflected misconduct by the [police] officer.”
§ 24-31-902(1)(a)(III). Additionally, any statements that the prosecution seeks to
introduce through that officer that were not recorded due to the officer’s failure to
activate or reactivate the BWC as required by this section are subject to a rebuttable
presumption of inadmissibility. Id. Importantly, the statute does not require an
explanation for a failure to activate or reactivate a BWC.2 Id.
2 There is one situation in which documentation is contemplated by the BWC
statute, but it does not apply here. If the BWC was not activated due to a
malfunction of the BWC, the officer was not aware of the malfunction, and the law
enforcement agency’s documentation shows that the officer checked the
functionality of the BWC at the beginning of their shift, then the statute’s
evidentiary instructions do not apply. § 24-31-902(1)(a)(III). Officer Modlin did

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¶18 Here, Officer Modlin muted his BWC because personal conversations not
related to the case were occurring around him. He should have, however,
reactivated the audio on his BWC when speaking with the motel clerk. But there
is nothing in the statute that suggests that the prosecution must provide a report
or other documentation explaining this type of failure to unmute a BWC. Instead,
the statute creates a permissive inference that missing BWC audio reflects officer
misconduct. The statements by the motel clerk are additionally subject to the
rebuttable presumption of inadmissibility. Critically, because the presumption is
rebuttable, the prosecution should have had the opportunity to present evidence
explaining the officer’s failure to comply with the BWC statute. Despite this, the
district court prohibited Officer Modlin from testifying about why he failed to
unmute his BWC and what the motel clerk told him. This led the district court to
read the clerk’s statement out of the search warrant affidavit and, as a result,
erroneously suppress the evidence found in room 223.
D. Crim. P. 16
¶19 Havens contends that the district court correctly suppressed the evidence
seized in room 223 based on its conclusion that the prosecution violated its
discovery obligations under Crim. P. 16. We disagree.
not assert that his BWC malfunctioned; rather, he indicated that he forgot to
unmute the audio.

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¶20 Crim. P. 16(I)(a) sets out the discovery procedures before trial, including the
prosecutor’s obligations. As relevant here, it requires the prosecution to disclose
to the defense “[a]ny . . . tangible objects held as evidence in connection with the
case,” Crim. P. 16(I)(a)(1)(IV), and “the substance of any oral statements made to
the police or prosecution by the accused,” Crim. P. 16(I)(a)(1)(VIII). The
prosecution must also disclose any exculpatory information in their control to the
defense. Crim. P. 16(I)(a)(2); People v. Bueno, 2018 CO 4, ¶ 28, 409 P.3d 320, 326
(stating that Crim. P. 16(I)(a)(2) codifies the constitutional disclosure requirement
as set forth in Brady v. Maryland, 373 U.S. 83 (1963)). Exculpatory information is
“any material or information within [the prosecution’s] possession or control
which tends to negate the guilt of the accused as to the offense charged or would
tend to reduce the punishment therefor.” Crim. P. 16(I)(a)(2). If the prosecution
fails to comply with these discovery requirements, then the court may issue
sanctions prohibiting them from introducing evidence that was not disclosed.
Crim. P. 16(III)(g); see also People v. Whittington, 2024 CO 65, ¶ 18, 556 P.3d 805, 809.
¶21 Here, the disclosure requirements set forth in Crim. P. 16(I)(a) were not
implicated because the failure to unmute the audio on a BWC is not a tangible
object, a statement by the accused, or inherently exculpatory. That is, the failure
to unmute the audio does not tend to negate Havens’s guilt or reduce his potential
punishment. As such, the prosecution was not required to disclose that Officer

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Modlin failed to unmute his audio to the defense, nor was it otherwise required to
provide some type of report regarding this failure under the BWC statute.
¶22 Simply put, the district court’s misreading of the BWC statute and Crim.
P. 16 led the court to erroneously suppress the evidence seized in Havens’s motel
room.
III. Conclusion
¶23 Because the district court erroneously suppressed the evidence seized in
Havens’s motel room based on its misinterpretation of the BWC statute and Crim.
P. 16, and because the prosecution should have had the opportunity to rebut the
presumption of inadmissibility regarding the motel clerk’s statement, we reverse
the district court’s suppression order and remand this case to the district court to
hold a hearing as contemplated by the BWC statute. We express no opinion on
how the district court should rule after its hearing on remand.