State v. Tenold

. In so holding, we concluded that “the most reasonable interpretation is that

the Legislature intended the display and actuation requirements to apply only to

the two required brake lights.” Id. ¶ 7,

884 N.W.2d at 751

.

[¶12.]         Here, the circuit court’s decision—that “SDCL 32-17-8.1 requires that

all vehicle[] stop lights be red in color only”—directly conflicts with our decision in

Lerma and is erroneous. It is undisputed that Tenold’s vehicle had two brake lights

that met the display and actuation requirements as stated in SDCL 32-17-8.1.

Therefore, the circuit court erred when it concluded that “Officer McKeon had

probable cause that a traffic offense had occurred when he activated his red lights

and stopped the car.”

[¶13.]         The State nonetheless contends it was objectively reasonable for

Officer McKeon to believe that a brake light displaying white light violated SDCL

32-17-8.1. The State relies in part on the fact Lerma acknowledged that the statute

was confusing, and thus claims that “SDCL 32-17-8.1 is not definite and certain, but

rather unclear and ‘open to differing and equally reasonable interpretations[.]’” The




1.       This statute was amended in 2017, after the stop at issue.

                                            -5-
#28725

State cites previous judicial interpretations of SDCL 32-17-8.1, as well as our

reference to SDCL 32-21-27 in Lerma as an alternative basis for the stop.

[¶14.]         “The Fourth Amendment tolerates only reasonable mistakes, and those

mistakes—whether of fact or law—must be objectively reasonable.” Heien v. North

Carolina,

574 U.S. 54

, 66,

135 S. Ct. 530, 539

190 L. Ed. 2d 475

 (2014); accord

Lerma,

2016 S.D. 58

, ¶ 11 n.2,

 n.2. In examining the officer’s

objective reasonableness in Heien, the Court considered that North Carolina’s

appellate courts had yet to construe the confusing law at issue in that case. 574

U.S. at 68,

135 S. Ct. at 540

. Similarly, in State v. Wright, we noted that “previous

judicial interpretations” are a relevant factor in determining the reasonableness of

an officer’s mistake of law.

2010 S.D. 91, ¶ 16

791 N.W.2d 791, 797

 (quoting United

States v. Martin,

411 F.3d 998, 1001

 (8th Cir. 2005)).2

[¶15.]         From our review of the facts here, Officer McKeon’s mistake of law was

not objectively reasonable for three reasons. First, Lerma specifically construed

both the display and actuation requirements in SDCL 32-17-8.1 prior to the date of

the stop in question, and an objectively reasonable officer would have had actual

legal authority dispelling confusion over this statute’s interpretation. Indeed, in

Lerma, we prefaced our holding with a caveat, i.e., that an officer’s belief that the



2.       In Wright, we referenced other factors considered by the Eighth Circuit Court
         of Appeals, including “drafting history; prior enforcement; police training;
         previous judicial interpretations; and, state customs.”

2010 S.D. 91, ¶ 16

791 N.W.2d at 797

 (citing Martin,

411 F.3d at 1001

). However, to the extent any
         of these factors relate to the officer’s subjective view, a footnote in Lerma
         suggests a consideration of such factors would be improper given the
         Supreme Court’s holding in Heien that an officer’s subjective understanding
         is irrelevant.

2016 S.D. 58

, ¶ 11 n.2,

 n.2.

                                           -6-
#28725

statute meant all stop lamps must comply with the display and actuation

requirements was objectively reasonable “[u]ntil today[.]”

2016 S.D. 58, ¶ 8

884 N.W.2d at 751

 (emphasis added). Therefore, Officer McKeon was not free to rely on

his subjective view of how this law should be interpreted. See id. ¶ 9,

 (“A reasonably objective officer is bound by such unqualified statements of

law.”).

[¶16.]       Second, decisions from other courts did not provide justification for the

stop here. Those decisions, many of which are factually distinguished from the case

at hand, predate Lerma. See, e.g., Martin,

411 F.3d 998

; United States v. Johns,

410 Fed. Appx. 519

 (3d Cir. 2011). As the United States Supreme Court explained in

Heien, “an officer can gain no Fourth Amendment advantage through a sloppy study

of the laws he is duty-bound to enforce.” 574 U.S. at 67, 135 S. Ct. at 539–40.

Moreover, “an objectively reasonable mistake of law cannot be so unmoored from

actual legal authority.” United States v. Washington,

455 F.3d 824, 828

 (8th Cir.

2006); accord Wright,

2010 S.D. 91, ¶ 17

791 N.W.2d at 798

.

[¶17.]       Third, although in Lerma we considered SDCL 32-21-27 as an

alternative basis for upholding the stop in question, this nonspecific statute makes

it unlawful to drive a vehicle on a highway “unless the equipment upon the vehicle

is in good working order[.]” SDCL 32-21-27; see Lerma,

2016 S.D. 58, ¶ 11

884 N.W.2d at 753

. Unlike the scenario in Lerma, SDCL 32-21-27 does not provide an

independent basis for the stop here because all the brake lights on Tenold’s vehicle

were operational. Notably, Officer McKeon’s testimony was vague as to the precise

condition of Tenold’s third brake light. This brake light was on the inside, center of


                                          -7-
#28725

the back window of Tenold’s vehicle, and Officer McKeon could not recall why this

brake light emitted a white light. He testified that he did not know if it was broken

or whether it was sun damaged. While questioning Officer McKeon at the

suppression hearing, the State characterized Tenold’s third brake light as a “white

light in one of the red lights on the rear of the vehicle.” In contrast, in both Lerma,

2016 S.D. 58, ¶ 2

884 N.W.2d at 750

 and State v. Anderson,

359 N.W.2d 887, 889


(S.D. 1984), the brake lights at issue failed to illuminate upon actuation. Thus, this

case is distinguishable from those in which a brake light was not operational.

[¶18.]       Although we conclude that Officer McKeon did not have an objectively

reasonable basis to believe that Tenold’s brake light violated SDCL 32-17-8.1, our

review does not end there. The State further claims we should uphold Officer

McKeon’s stop based on a review of the totality of the circumstances, arguing that

“Officer McKeon undoubtedly knew there was reason to suspect criminal activity

when he initiated the traffic stop.” In particular, the State offers the following

additional information in support of its argument: Officer McKeon was aware that

Tenold was suspected of dealing drugs; “Tenold was driving between his hotel and

casinos at 2:39 a.m.”; and after the stop, drugs were located on Tenold’s person and

paraphernalia was found in his hotel room.

[¶19.]       “The Fourth Amendment permits brief investigative stops . . . when a

law enforcement officer has ‘a particularized and objective basis for suspecting the

particular person stopped of criminal activity.’” Navarette v. California,

572 U.S. 393, 396

134 S. Ct. 1683, 1687

188 L. Ed. 2d 680

 (2014) (quoting United States v.

Cortez,

449 U.S. 411

, 417–18,

101 S. Ct. 690, 695

66 L. Ed. 2d 621

 (1981)). “The


                                          -8-
#28725

stop may not be the product of mere whim, caprice or idle curiosity.” State v.

Herren,

2010 S.D. 101, ¶ 8

792 N.W.2d 551, 554

 (citation omitted). However, “it is

enough that the stop is based upon ‘specific and articulable facts which taken

together with rational inferences from those facts, reasonably warrant the

intrusion.’” State v. Starkey,

2011 S.D. 92, ¶ 6

807 N.W.2d 125, 128

 (quoting State

v. Lockstedt,

2005 S.D. 47

, ¶ 17,

695 N.W.2d 718, 722

). To determine whether there

existed a particularized and objective basis for believing that criminal activity is

afoot, we review the totality of the circumstances at the time the stop was

effectuated. State v. Stanage,

2017 S.D. 12, ¶ 7

893 N.W.2d 522, 525

.

[¶20.]       Here, the facts available to Officer McKeon at the time of the stop

(minus the mistaken belief that a traffic violation occurred) included: (1) Tenold was

suspected of dealing drugs out of his hotel room at the Deadwood Mountain Grand,

and (2) Tenold left the hotel parking garage in his vehicle at 2:39 a.m. We do not,

contrary to the State’s assertion, consider that drugs were later located on Tenold’s

person and in his hotel room because these facts were not available to Officer

McKeon at the time of the stop. After reviewing the facts available at the time of

the stop in their totality, we conclude that Officer McKeon lacked a particularized

and objective basis for believing that Tenold and Gravatt were currently engaging

in drug activity.

[¶21.]       First, at the time of the stop, Officer McKeon did not have specific or

articulable facts related to Tenold’s suspected drug activity. Rather, based upon our

review of his narrative report and suppression hearing testimony, the only

information Officer McKeon had at that time was a vehicle description and photos


                                          -9-
#28725

of Tenold and Gravatt who “were identified as possible dealers of

methamphetamine out of rented rooms at the Deadwood Mountain Grand.”

Moreover, this information came from Officer Olson, and lacked any details about

the underlying source of the information. In fact, Officer McKeon explained in his

narrative report that Officer Olson had informed the other officers that they should

“develop [their] own [r]easonable [s]uspicion for a stop and investigate.” Second, the

reported drug activity was alleged to have occurred at the hotel, not in Tenold’s

vehicle. Finally, and most importantly, because there was no timeframe associated

with the reported drug activity, Officer McKeon had no information alleging that

Tenold or Gravatt were—as they drove from the Deadwood Mountain Grand at 2:39

a.m.—committing a crime. The State’s purported basis for reasonable suspicion can

thus be summarized as a general suspicion, accompanied by otherwise innocuous

behavior.

[¶22.]       In Herren, we recognized that a tip alleging criminal wrongdoing “can

at least be considered as part of the totality of the circumstances” even though the

tip may not independently support a stop.

2010 S.D. 101, ¶ 20

792 N.W.2d at 557

.

We have also indicated that the time of day or night and the location of the

suspected person are relevant factors in determining whether reasonable suspicion

exists. See, e.g., State v. Rademaker,

2012 S.D. 28, ¶ 13

813 N.W.2d 174, 177

; State

v. Bergee,

2008 S.D. 67

, ¶ 11,

753 N.W.2d 911, 914

. Here, however, when Officer

McKeon stopped Tenold’s vehicle, he had no information alleging that criminal

wrongdoing was afoot. Other than observing the vehicle described as belonging to

Tenold leave the Deadwood Mountain Grand at 2:39 a.m., Officer McKeon did not


                                         -10-
#28725

personally observe any additional specific or articulable behavior that would allow

him to conclude that a crime was presently occurring or about to occur. Because

Officer McKeon did not have reasonable suspicion or probable cause to stop Tenold’s

vehicle, the stop was unjustified at its inception.

Exclusionary Rule

[¶23.]       Evidence obtained because of an unlawful seizure ordinarily must be

suppressed under the exclusionary rule. State v. Heney,

2013 S.D. 77

, ¶ 9,

839 N.W.2d 558, 562

 (quoting State v. Boll,

2002 S.D. 114

, ¶ 19,

651 N.W.2d 710, 716

).

“[T]he exclusionary rule reaches not only primary evidence obtained as a direct

result of an illegal search or seizure, but also evidence later discovered and found to

be derivative of an illegality or ‘fruit of the poisonous tree.’”

 (quoting Segura v.

United States,

468 U.S. 796, 804

104 S. Ct. 3380, 3385

82 L. Ed. 2d 599

 (1984)).

However, “the progenitor of the ‘fruit of the poisonous tree’ doctrine”—Wong Sun—

“recognized that original lawless conduct would not taint all evidence forever.”

Satter v. Solem,

458 N.W.2d 762, 768

 (S.D. 1990). “The question becomes whether

‘the connection between the lawless conduct of the police and the discovery of the

challenged evidence has “become so attenuated as to dissipate the taint.”’”


(quoting United States v. Ceccolini,

435 U.S. 268

, 273–74,

98 S. Ct. 1054, 1059

55 L. Ed. 2d 268

 (1978)).

[¶24.]       Tenold, as the party seeking to suppress the evidence, has the burden

“to establish that such evidence was illegally seized.” See Heney,

2013 S.D. 77

, ¶ 11,

839 N.W.2d at 562

 (citation omitted). Once Tenold “has carried the burden of

proving that the challenged evidence is the fruit of the poisonous tree, the burden


                                           -11-
#28725

again shifts to the government to ultimately ‘show that its evidence is untainted.’”

See

id.

 ¶ 11 n.2 (quoting Alderman v. United States,

394 U.S. 165, 183

89 S. Ct. 961, 972

22 L. Ed. 2d 176

 (1969)).

[¶25.]       Tenold argues that all evidence obtained after the stop—even that

obtained pursuant to the search warrant—must be suppressed as fruit of the illegal

stop. We agree that the foil ball found in the officer’s vehicle after the stop (which

at the time had tested positive for methamphetamine) and the marijuana found on

Tenold’s person were discovered solely because of Officer McKeon’s unlawful stop of

Tenold’s vehicle and his subsequent arrest. Therefore, that evidence was fruit of

the illegal stop and subject to the exclusionary rule.

[¶26.]       However, the State contends that Tenold has failed to show that but

for the traffic stop, the drugs and paraphernalia in the hotel room would not have

been discovered. In the State’s view, the information possessed by law enforcement

prior to and independent of the traffic stop provided probable cause for the warrant

to issue. The State points to the information in the search warrant affidavit derived

from Officer Olson relating Tenold’s and Gravatt’s suspected drug activity at the

hotel. In response, Tenold claims that the tip alone was insufficient to establish

probable cause.

[¶27.]       “[W]hen a search warrant is based partially on tainted evidence and

partially on evidence arising from independent sources, ‘[if] the lawfully obtained

information amounts to probable cause and would have justified issuance of the

warrant apart from the tainted information, the evidence seized pursuant to the

warrant is admitted.’” State v. Habbena,

372 N.W.2d 450, 455

 (S.D. 1985) (second


                                          -12-
#28725

alteration in original) (quoting United States v. Williams,

633 F.2d 742, 745

 (8th

Cir. 1980)). “[T]he question is whether ‘the remaining information presented to the

magistrate, after the tainted evidence is excluded, contains adequate facts from

which the magistrate could have concluded that probable cause existed for the

issuance of the search warrant.’” Boll,

2002 S.D. 114

, ¶ 35,

651 N.W.2d at 720


(quoting State v. Revenaugh,

992 P.2d 769, 774

 (Idaho 1999)).

[¶28.]       As Justice Konenkamp recognized in his special concurrence in Boll,

“[i]n the usual case, we review challenges to the sufficiency of a warrant by looking

at the totality of the circumstances to decide if there was at least a ‘substantial

basis’ for the issuing judge’s finding of probable cause.” Id. ¶ 44,

651 N.W.2d at 721


(Konenkamp, J., concurring specially). Here, however, the issuing judge never

considered the affidavit free of the tainted information. Nevertheless, because the

magistrate judge issued the warrant on a facial review of the information contained

within the affidavit, we employ our traditional rules of review to determine whether

the information in this hypothetical, redacted affidavit would have been sufficient

for an issuing judge to find probable cause for a warrant.

[¶29.]       Indeed, even when an affidavit contains no tainted information, our

review of “a judge’s probable cause determination,” is limited to the evidence that

“was before the judge at the time the application was made.” State v. Jackson,

2000 S.D. 113

, ¶ 11,

616 N.W.2d 412, 416

. This is because the existence of probable

cause “must rise or fall on the affidavit itself which was the only evidence presented

to the magistrate for his determination of probable cause.”

 (quoting State v.




                                          -13-
#

28725 Smith, 281

 N.W.2d 430, 433 (S.D. 1979)). However, “[r]easonable inferences may be

drawn from the information in the affidavit.”


[¶30.]       In State v. Helland, we reiterated the standard for determining

whether probable cause exists sufficient to support the issuance of a warrant.

2005 S.D. 121

, ¶ 16,

707 N.W.2d 262, 269

. There must be “a showing of probability of

criminal activity.”

 (emphasis omitted) (quoting State v. Kaseman,

273 N.W.2d 716, 723

 (S.D. 1978)). As opposed to evaluating a traffic stop and whether there

was reasonable suspicion (i.e., something more than a whim or caprice) to warrant

further investigation of a crime, the higher probable cause standard must be met

when determining the validity of a search of one’s property. For a search warrant to

issue, the judge must be able “to make a practical, common-sense decision whether,

given all the circumstances set forth in the affidavit before [the judge], including the

‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is

a fair probability that contraband or evidence of a crime will be found in a

particular place.” Illinois v. Gates,

462 U.S. 213, 238

103 S. Ct. 2317, 2332

76 L. Ed. 2d 527

 (1983). And on review, this Court must find that the affidavit provided

the judge “with a substantial basis for determining the existence of probable

cause[.]”

Id. at 239

103 S. Ct. at 2332

.

[¶31.]       After excising the tainted information, the remaining pertinent

portions of the affidavit contained the following information:

             On January 21, 2017, at approximately 2200 hours, Officer
             James Olson was contacted by Special Agent Brandon Snyder of
             the South Dakota Commission on Gaming. Agent Snyder stated
             that he had some information pertaining to possible drug
             activity by guests of the Deadwood Mountain Grand.


                                            -14-
#28725

             Agent Snyder arrived at the Deadwood Police Department and
             began to tell Officer Olson the information he had received from
             Mike Gurich, Security Manager of Deadwood Mountain Grand.
             Agent Snyder provided a list of names compiled by Gurich.
             Gurich had informed Agent Snyder that at different times
             throughout the month, rooms had been rented by a Curtis
             Tenold and Lana Gravatt. When these rooms are rented there is
             a considerable amount of foot traffic in and out of the rooms at
             all hours of the night. Gurich had compiled a list of names
             based off of security footage and players club information.
             Gurich states these other subjects frequently enter the rooms
             and leave within a short time frame.

             On January 28, 2017 at approximately 1700 hours, Officer Olson
             again met with Agent Snyder at the Deadwood Police
             Department. Agent Snyder stated he met again with Gurich.
             Gurich informed Agent Snyder that he had received information
             from other staff stating that Lana Gravatt had approached a
             customer and asked him if he needed any meth. The Subject
             reportedly stated no. Gravatt then asked the subject if he had
             any money she could borrow. The subject again stated no and
             she replied by saying, “I could do something for you.” The
             subject told the employee about the encounter with Gravatt and
             that he assumed she was offering sex in exchange for money.
             The subject reportedly told the employee he was tired of being
             harassed by Gravatt and Tenold.

             At approximately 1700 hours on 31 January, 2017 Officer Olson
             provided me with a vehicle description for [Tenold’s vehicle].
             Officer Olson stated that the occupants of that vehicle were
             suspected of dealing methamphetamine out of a room at the
             Deadwood Mountain Grand. Officer Olson stated that I should
             be on the lookout for that vehicle, and to develop my own
             reasonable suspicion to stop. Officer Olson stated that Curtis
             Tenold and Lana Gravatt were the suspected methamphetamine
             dealers.

[¶32.]       The information concerning Tenold’s suspected drug activity, as

reported by Officer McKeon in the affidavit, is based solely on information given by

Gurich to Agent Snyder and then related from Agent Snyder to Officer Olson.

Notably, while the affidavit relates what appears to be information derived from a

casino customer, it does not identify the customer by name (or as a confidential

                                        -15-
#28725

informant). More importantly, the affidavit refers only to thirdhand information

reported to an unidentified casino employee, who then passed the information on to

Gurich.

[¶33.]        We recognize that Officer Olson provided additional information at the

suppression hearing regarding the informants (Gurich and the complaining

customer). But this information was not presented in the search warrant affidavit

and was therefore unknown to the issuing judge who had before him only the

affidavit prepared by Officer McKeon. We must likewise confine our review to that

information. See Helland,

2005 S.D. 121

, ¶ 28,

707 N.W.2d at 272

.

[¶34.]        The pertinent information in the affidavit can be condensed into two

components:

              1.    A report from the hotel security manager that there had
                    been frequent foot traffic in and out of the room rented by
                    Gravatt and Tenold at all hours of the night, and that he
                    had compiled a list of names of casino customers
                    frequenting this room by watching security footage; and

              2.    A tip from an unidentified informant about a solicitation
                    of money by Gravatt in exchange for either drugs or
                    possibly sex, along with the informant’s general comment
                    about being “harassed” by both Gravatt and Tenold.

“When the affidavit is based substantially on information provided by an informant,

evidence of the informant’s reliability, veracity, and basis of knowledge is highly

relevant to the probable cause determination[.]” United States v. Ketzeback,

358 F.3d 987, 991

 (8th Cir. 2004) (citing Gates,

462 U.S. at 230

103 S. Ct. at 2328

). As

such, we have recognized two inquiries crucial to a probable cause determination

when an informant’s tip is involved. State v. Raveydts,

, ¶¶ 11–12,

691 N.W.2d 290, 295

. “First, an ‘explicit and detailed description of alleged

                                         -16-
#28725

wrongdoing, along with a statement that the event was observed firsthand, entitles

[the informant’s] tip to greater weight than might otherwise be the case.’”

 ¶ 11

(quoting Gates,

462 U.S. at 234

103 S. Ct. at 2330

). “Second, the extent to which

the tip is corroborated by the officer’s own investigation is important.” Id. ¶ 12.

[¶35.]       Neither crucial inquiry—when evaluated separately or when combined

and considered in totality—supports a finding of probable cause here. First, the

affidavit related only that Gurich had observed considerable foot traffic to and from

Tenold and Gravatt’s hotel room. There was no indication that he observed any

unlawful drug activity on the casino security footage. See, e.g., State v. Ford,

323 S.E.2d 358, 361

(N.C. Ct. App. 1984) (observing that “[u]nusual traffic at a

residence may not, in itself, constitute probable cause to justify the issuance of a

warrant authorizing a search of that residence for drugs”). Further, while Gurich

compiled a list of names of casino guests frequenting the hotel room, the affidavit

does not relate that he or any officer investigated whether any of these persons are

known drug users or known to be associated with unlawful drug activity. Moreover,

there was no report that any witness actually saw Gravatt or Tenold, or anyone else

frequenting their hotel room, with what appeared to be unlawful drugs.

[¶36.] Second, while the affidavit purported to relate a firsthand account of a

solicitation (as opposed to an actual) drug transaction, this account did not include

any detailed information regarding the time, date, and location of the customer’s

purported encounter with Gravatt, or when the customer’s information was initially

provided to the unidentified casino employee. Therefore, there was no way to

determine the time interval between the alleged solicitation and the request for the

-17-
#28725

search warrant. Similarly, the affidavit only generally described the informant as a

casino “customer” and did not relate any evidence of corroboration of this

unidentified customer’s claims or any other basis upon which the customer’s

veracity or reliability could be assessed. In essence, the affidavit merely relates a

tip of “possible drug activity” (aptly described by the officer in the first paragraph of

the affidavit) communicated through three other parties (casino employee to Gurich

to Agent Snyder) before being provided to law enforcement.3

[¶37.] In contrast to the affidavit here, the affidavit we upheld in Raveydts,

provided considerably more detail related to the anonymous tips. See

, ¶ 10,

691 N.W.2d at 294

. In Raveydts, the first informant related that he

resided in the same apartment building as the defendant, and in addition to a

general description of frequent traffic in and out of the defendant’s apartment, the

informant gave a physical description of a particular visitor who left the apartment

“with something small and plastic clutched in her hand.”

 This informant also

provided a list of license plate numbers he had observed in the last few days at the

apartment, and the investigating officer verified that some of these license plate

numbers belonged to persons arrested for possession of marijuana or were identified

in debriefs with law enforcement as persons known to have been involved in illegal


3.       Contra United States v. Salsberry,

771 Fed. Appx. 710

, 710–11 (8th Cir. 2019)
         (affidavit indicated hotel room was rented by a known drug user, informant
         twice told officer that defendant was selling drugs in the area, and hotel staff
         had discovered items related to the use and distribution of drugs); United
         States v. Good, No. 8:18CR49,

2018 WL 3543910

, at *1–3 (D. Neb. June 29,
         2018) (affidavit indicated informant told officer within 72 hours that
         informant had observed defendant in possession of a firearm, cash, and drugs
         at a specific location; and the officer related his familiarity with the
         informant in the affidavit).

                                           -18-
#28725

drug trafficking activity. Id.; accord State v. Gilmore,

2009 S.D. 11

, ¶ 15,

762 N.W.2d 637, 643

 (finding sufficient corroboration where law enforcement

corroborated a confidential informant’s tip by verifying that the individuals with

whom Gilmore was previously and currently associating were known to be drug

users or distributors).

[¶38.]       The second anonymous informant in Raveydts relayed personal

experience with illicit drugs and reported that the odor of marijuana could be

detected from the defendant’s apartment. The informant also reported a

transaction on a specific date where a male known to the informant as a drug dealer

arrived at the apartment, after which several vehicles arrived and left shortly

thereafter. Raveydts,

, ¶ 10,

691 N.W.2d at 294

.

[¶39.]       Notably, in Raveydts, we looked to People v. Titus,

880 P.2d 148

, 151–

52 (Colo. 1994), as an example of a scenario in which an anonymous informant’s

information was insufficiently corroborated to support a finding of probable cause.

, ¶ 13,

691 N.W.2d at 295

. The informant in Titus had provided a list

of license plate numbers of alleged drug buyers who frequented a suspect’s home.

Titus,

880 P.2d at 151

. The police in Titus corroborated only the fact that the

license plate numbers on the list matched the description of the vehicles given by

the informant.

 This was insufficient, the court explained, because “there must

be something more than the mere fact that people are coming and going in order to

support the belief that criminal activity is occurring.”


[¶40.]       Similarly, here, Gurich only provided information relating that he

observed individuals frequent Tenold and Gravatt’s hotel room and that he


                                          -19-
#28725

identified those individuals from “players club information.” Officer McKeon’s

affidavit did not relate any investigative attempts to corroborate the suggestion that

the individuals on the list were engaging in drug transactions. Notably, Officer

Olson candidly admitted at the suppression hearing that he did not “progress any

further in [his] investigation of it” because he “had a lot to confirm of what [the

informant] was saying.” As we noted in Raveydts, “[a]bsent any additional

corroboration—for example, that the owners of the vehicles were involved in illegal

activity—[the affidavit] was insufficient to support a finding of probable cause.”