Colorado’s second-highest court concluded last month that police relied on an illegal search warrant to obtain evidence against a La Junta man despite having no probable cause for a crime.

A three-judge panel for the Court of Appeals reversed the theft and attempted trespass convictions of David Leon Gearhart based on the Fourth Amendment’s requirement that warrants be issued only for probable cause. In Gearhart’s case, a La Junta detective applied for a search warrant of Gearhart’s property because of his belief that Gearhart was stealing things generally, and without reference to the specific incident under investigation.

In March 2019, the owner of a home under construction reported some damage to the back door and window screen of the house, and said a DeWalt toolbox and tools were missing. Video footage from a home camera showed a man kicking the door and manipulating the lock on March 12, apparently unsuccessfully. Two days later, the man returned in the early morning to once more try to kick in the door. That night, he arrived once again, although the video did not depict him entering the home or show what happened to the missing toolbox.

Officers believed the man on the video was Gearhart and on March 20, there was a warrant issued for Gearhart’s arrest. Two days later, Detective John Haley, who was working the burglary case, went to the home of a parolee to assist with her arrest. While Haley was there, the woman said Gearhart had brought allegedly-stolen items to her home over the past few days, including propane tanks, a heater and a dolly. None of those things were reported missing from the house under construction.

Gearhart arrived at the parolee’s home while police were still there, and officers arrested him. Haley then applied for a warrant to search Gearhart’s garage, relying on what the parolee told him.

“Seeing that some of the stolen property appears to be at (the parolee’s home), it would make sense for remaining/additional stolen property to be at the suspects residence,” wrote Haley.

A search of Gearhart’s home turned up a DeWalt toolbox, but not the missing tools. Prosecutors charged Gearhart with burglary, theft and attempted trespassing. Jurors acquitted him of burglary, but convicted him of the remaining charges. Gearhart received 18 months of probation.

On appeal, Gearhart contended Otero County District Court Chief Judge Mark A. MacDonnell mistakenly allowed evidence of the recovered DeWalt toolbox to be used at trial. Gearhart claimed the police affidavit in support of the search warrant lacked probable cause and was unlawful, requiring the suppression of any evidence stemming from the search.

“Haley merely concluded that because a parolee under arrest for a new crime said Mr. Gearhart had brought stolen items to her house before, Mr. Gearhart was (1) guilty of that accusation, (2) had stolen other items in the community, (3) was storing stolen items at his shared residence, and (4) had taken unknown and undescribed items from (the burglarized) home and was keeping those specific items,” wrote Deputy State Public Defender Sarah Rowlands. “These are mere conclusions based on multiple inferences that cannot support a probable cause finding.”

Rowlands also argued the warrant was defective for failing to state the correct location of the search or the items to be seized. She said that given the jury’s choice to acquit Gearhart of burglary, it was plausible they would have also acquitted him of theft if not for the evidence of the DeWalt toolbox.

The government acknowledged some defects with the warrant, but the lack of probable cause was not one of them. The Colorado Attorney General’s Office believed Haley’s affidavit provided a “substantial basis” for thinking the stolen toolbox and tools would be at Gearhart’s home.

The Court of Appeals panel agreed with Gearhart that Haley’s affidavit was “bare-bones.” Judge Ted C. Tow III wrote in the June 30 opinion that it was unreasonable to believe Gearhart’s act of storing allegedly-stolen items at the parolee’s home meant Gearhart was also storing the missing toolbox and tools at his own home.

“There is no nexus between the fact that Gearhart had brought unrelated stolen property to (the parolee’s) home and the conclusory (and speculative) assertion that it ‘would make sense’ for the stolen property related to this particular break-in to still be at Gearhart’s home,” Tow wrote.

The panel ordered a new trial for Gearhart.

The case is People v. Gearhart.