A Fremont County judge incorrectly barred evidence from being used against a defendant based upon a Cañon City officer’s failure to unmute his body-worn camera, the Colorado Supreme Court decided on Monday.

Under a comprehensive police accountability law enacted in 2020, law enforcement officers are generally required to wear and use body-worn cameras when interacting with members of the public. If they do not, there is a “permissive inference” that the missing footage would have reflected the officer’s misconduct. Further, if the prosecution relies on statements or actions that occurred during the unrecorded encounter, there is a “rebuttable presumption of inadmissibility.”

The question before the Supreme Court was whether evidence obtained from a criminal defendant’s hotel room could be used against him after the investigating officer failed to audio-record a single statement by a motel employee identifying the defendant’s room number.

In October 2024, officers were monitoring a Motel 6 for a specific suspect driving a white vehicle. When they pulled the vehicle over for an alleged traffic violation, they realized their target was not in the car. Nonetheless, they arrested the occupant, Thomas James Havens, on outstanding warrants.

After finding alleged drug evidence in the vehicle, officers questioned Havens. He told Officer Austin Modlin he was staying in room 220 at the Motel 6. Modlin spoke with a motel employee who stated that Havens was in room 223. Based on the discrepancy, Modlin obtained a search warrant and uncovered additional evidence of criminal activity in the room.

The defense sought to bar the motel room evidence from being used against Havens, noting that Modlin failed to unmute his body camera to record the motel employee’s statement.

At a hearing in May, District Court Judge Lauren Swan excluded the evidence through a series of logical steps. First, she noted the police accountability law created an assumption that the missing audio reflected misconduct.

“Misconduct by a police officer is exculpatory information,” Swan said. “How could it not be in a criminal investigation?”

Then she observed that the criminal rules require the prosecution to disclose evidence favorable to the defense. Despite the prosecution being on notice of an issue “for almost over five months,” it had not done so.

Allowing Modlin to testify about his actions “for the very first time” would put the defense at a disadvantage, Swan continued. Therefore, she did not permit Modlin to testify as to why he muted his body camera.

Without Modlin’s testimony, the assumption of misconduct remained, and there was no evidence beyond the employee’s statement that led police to Havens’ room number. Omitting it from the warrant undermined probable cause and, consequently, the evidence could not be used against Havens.

The district attorney’s office immediately appealed to the Supreme Court.

“The body-worn camera statute does not create an affirmative duty upon law enforcement or the prosecution to document why an officer muted or failed to unmute his body-worn camera,” the prosecution argued. “The court erred when it read this requirement into the statute.”

The Supreme Court agreed.

The prosecution has no obligation “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,” wrote Justice Maria E. Berkenkotter in the Dec. 22 opinion.

That mistake led Swan to omit the clerk’s statement, find fault with the search warrant, and exclude the evidence from the motel room. In reality, the prosecution should have been allowed to demonstrate that the motel employee’s statement was properly included despite the muted footage.

“We express no opinion on how the district court should rule after its hearing on remand,” concluded Berkenkotter.

Justice Melissa Hart did not participate in the decision. She has been on a health-related leave of absence since Oct. 28 and announced last week that she is stepping down in January.

The case is People v. Havens.