Rebutting the Body‑Worn Camera Presumption: People v. Havens and the Limits of Discovery Sanctions in Colorado

I. Introduction

People v. Havens, 2025 CO 65, is a significant Colorado Supreme Court decision at the intersection of body‑worn camera (“BWC”) legislation, criminal discovery obligations, and Fourth Amendment search and seizure doctrine.

The case arises from a narcotics investigation in which a Canon City police officer muted the audio on his body‑worn camera during part of the investigation and failed to reactivate it while speaking to a motel clerk. That unrecorded conversation supplied the only factual basis in a search warrant affidavit linking the defendant, Thomas James Havens, to a particular motel room—room 223—where additional contraband was later found.

The district court suppressed all evidence seized from the motel room, reasoning that:

• the prosecution had violated its discovery obligations by not producing an explanation or separate report about the BWC audio failure;
• the officer’s testimony about why his BWC was muted and about the clerk’s statements was barred as a discovery sanction and by operation of the BWC statute’s rebuttable presumption of inadmissibility; and
• without the clerk’s statement, the warrant affidavit lacked probable cause, so the fruits of the room search had to be suppressed.

On interlocutory appeal, the Colorado Supreme Court reversed. The Court held that the discovery rules and the BWC statute did not require the prosecution to create or produce a report explaining the failure to unmute the BWC audio, and that the district court erred by excluding the officer’s testimony and suppressing the evidence without giving the prosecution an opportunity to rebut the statutory presumption of inadmissibility.

The decision establishes important principles about:

• What the Colorado BWC statute, § 24‑31‑902(1)(a), actually requires—and does not require—of prosecutors and officers in terms of documentation and discovery;
• How the statute’s permissive inference of officer misconduct and rebuttable presumption of inadmissibility should be applied; and
• The limits on using discovery sanctions and statutory presumptions to “rewrite” a search warrant affidavit in a way that eliminates probable cause.

II. Summary of the Opinion

The Colorado Supreme Court, in an opinion by Justice Berkenkotter, held that the district court misinterpreted both:

• the Colorado body‑worn camera statute, § 24‑31‑902(1)(a)(III), and
• Colorado Rule of Criminal Procedure 16 (“Crim. P. 16”).

Key conclusions:

1. No duty to create or disclose a “BWC failure report.” Neither the BWC statute nor Crim. P. 16 requires the prosecution to provide a report explaining an officer’s failure to activate or reactivate BWC audio. A muted BWC is not a “tangible object,” not a statement of the accused, and not inherently exculpatory material under Crim. P. 16.
2. Misuse of the BWC statute’s evidentiary presumptions. The statute creates:
   • a permissive inference that missing BWC footage (or audio) reflects officer misconduct; and
   • a rebuttable presumption of inadmissibility for unrecorded statements the prosecution seeks to introduce through that officer.
   Because the presumption is rebuttable, the prosecution must be afforded a hearing and an opportunity to introduce evidence explaining the BWC failure before the court excludes the statements or treats the presumption as conclusive.
3. Improper discovery sanctions. The district court wrongly treated the officer’s failure to unmute his BWC audio as a discovery violation and barred the officer from testifying about:
   • why the audio was muted, and
   • what the motel clerk told him about Havens’s room.
   Because there was no underlying Crim. P. 16 violation, those sanctions were an abuse of discretion.
4. Erroneous suppression of the warrant evidence. By excluding the motel clerk’s statement from consideration and then concluding that the warrant lacked probable cause, the district court improperly used its misreading of the BWC statute and discovery rules to invalidate the warrant. The suppression order was therefore reversed.
5. Remand for a BWC‑statute hearing. The Court remanded for the district court to hold the hearing “contemplated by the BWC statute,” giving the prosecution an opportunity to rebut the presumption of inadmissibility regarding the motel clerk’s statement. The Supreme Court expressly declined to state how the district court should ultimately rule after that hearing.

III. Detailed Analysis

A. Statutory and Procedural Framework

1. Colorado’s Body‑Worn Camera Statute

Section 24‑31‑902(1)(a), C.R.S. (2025), governs use of body‑worn cameras by local law enforcement and the Colorado State Patrol. The statute, as emphasized by the Court, includes several distinct components:

• BWC requirement. All covered agencies must provide a BWC for each peace officer who interacts with members of the public. § 24‑31‑902(1)(a)(I).
• Activation requirement. Officers must wear and activate their BWCs during interactions with the public for law enforcement or investigative purposes. § 24‑31‑902(1)(a)(II)(A).
• Permitted deactivation. Officers may turn off their BWCs (such as muting audio) to avoid recording personal, non‑case‑related information. § 24‑31‑902(1)(a)(II)(B).
• Consequences of failure to activate/reactivate. If an officer fails to activate or reactivate a BWC “as required by the statute,” two distinct evidentiary consequences follow (§ 24‑31‑902(1)(a)(III)):
  • there is a permissive inference in any investigation or legal proceeding that the missing footage “would have reflected misconduct by the officer”; and
  • any statements that the prosecution seeks to introduce through that officer that were not recorded due to the failure are subject to a rebuttable presumption of inadmissibility.
• No general documentation requirement. The statute does not require an officer or the prosecution to produce an explanation or special report every time an officer fails to activate or reactivate a BWC. As the Court notes, documentation is contemplated only in one specific scenario: where there was a malfunction of the BWC, the officer was unaware of it, and agency documentation shows the officer had properly checked functionality at the beginning of their shift. In that limited circumstance, the statute’s evidentiary consequences do not apply.

In Havens, the officer intentionally muted his BWC audio during personal conversations and later simply forgot to unmute it when speaking to the motel clerk. The case thus presents a straightforward non‑malfunction failure to comply with the activation requirement, squarely triggering the permissive inference and rebuttable presumption—without invoking the malfunction documentation exception.

2. Colorado Rule of Criminal Procedure 16

Crim. P. 16(I)(a) defines the prosecution’s core pretrial discovery obligations. Relevant provisions include:

• Tangible objects held as evidence in connection with the case must be disclosed. Crim. P. 16(I)(a)(1)(IV).
• The prosecution must disclose the substance of any oral statements made by the accused to law enforcement or the prosecution. Crim. P. 16(I)(a)(1)(VIII).
• The prosecution must also provide any exculpatory information in its possession or control—material that tends to negate guilt or reduce punishment. Crim. P. 16(I)(a)(2); this codifies the constitutional obligation recognized in Brady v. Maryland, 373 U.S. 83 (1963), as explained in People v. Bueno, 2018 CO 4.

If the prosecution fails to meet these discovery obligations, the court may impose sanctions, including prohibiting a party from introducing evidence that was not disclosed. Crim. P. 16(III)(g); see People v. Whittington, 2024 CO 65 (discussing such sanctions).

The key question in Havens was whether an officer’s failure to unmute BWC audio—and the absence of an explanation or report regarding that failure—falls within any of these categories and triggers discovery sanctions. The Court held that it does not.

3. Fourth Amendment, Probable Cause, and Franks v. Delaware

Although the Colorado Supreme Court did not fully reach the merits of the Franks challenge, it is important to understand the mechanism the defense attempted to use.

• Under Franks v. Delaware, 438 U.S. 154 (1978), a defendant may challenge the truthfulness of a search warrant affidavit. If the defendant proves by a preponderance of the evidence that:
  • the affidavit contains a false statement;
  • the false statement was made knowingly, intentionally, or with reckless disregard for the truth; and
  • after setting that statement “to one side,” the remaining content of the affidavit is insufficient to establish probable cause,
  then the warrant is invalid and the fruits of the search must be suppressed.
• In Havens, the defense argued that the officer’s statement in the affidavit that Havens “had rented room 223” lacked veracity because there was no recorded support for it due to the BWC audio failure. They contended that, under Franks, this statement should be excised, leaving no probable cause to search room 223.

The district court effectively accepted this reasoning, but only after excluding the officer’s testimony about what the motel clerk said and why the BWC audio was muted. The Supreme Court found that sequence legally flawed because it flowed from a misapplication of the BWC statute and Crim. P. 16.

B. The District Court’s Approach

The district court’s suppression order rested on a chain of reasoning with three crucial links:

1. Discovery Violation. The court treated the officer’s failure to explain in his report why he had muted his BWC audio—and the prosecution’s failure to provide an explanation—as a violation of Crim. P. 16 and/or the BWC statute’s supposed reporting requirements.
2. Discovery Sanction and Statutory Presumption. As a sanction, the court barred the officer from testifying:
   • about why his BWC audio was muted, and
   • about the motel clerk’s statements, including that Havens was in room 223.
   Independently, the court also concluded that the BWC statute’s rebuttable presumption rendered those statements inadmissible, and it did so without providing the prosecution an opportunity to rebut the presumption at an evidentiary hearing.
3. Probable Cause and Suppression. Once the court excluded the clerk’s statement from consideration, the warrant affidavit contained no remaining basis linking Havens to room 223. The court thus held that the warrant lacked probable cause and suppressed all evidence obtained from the room.

The Colorado Supreme Court identified errors at each step: there was no discovery violation, the BWC presumptions were misapplied, and the resulting suppression of evidence was unjustified.

C. Colorado Supreme Court’s Legal Reasoning

1. No Discovery Duty to Explain a Muted BWC

The Court first addressed whether Crim. P. 16 required the prosecution to disclose documentation or explanation concerning the failure to unmute the BWC audio.

It held that:

• A failure to unmute BWC audio is not a “tangible object” held as evidence. It is the absence of a recording, not an object that can be disclosed under Crim. P. 16(I)(a)(1)(IV).
• It is not the accused’s statement. Crim. P. 16(I)(a)(1)(VIII) applies to oral statements by the defendant to the police or prosecution, not to internal police omissions.
• The failure to unmute the audio is not inherently exculpatory. Exculpatory evidence is material that tends to negate guilt or reduce punishment. The mere fact that audio is missing, without more, does not necessarily help the defendant. As a result, the omission does not qualify as Brady‑type material under Crim. P. 16(I)(a)(2) and Brady v. Maryland.

Because none of the rule’s discovery categories were implicated, there was no Crim. P. 16 violation. And since there was no violation, the district court lacked a proper basis to impose the severe sanction of excluding the officer’s testimony. The Court emphasized that Crim. P. 16 permits sanctions only where there is a failure to comply with actual disclosure obligations.

2. Meaning of the BWC Statute’s Presumptions

The Court then turned to the BWC statute itself, particularly § 24‑31‑902(1)(a)(III).

The statutory scheme creates two distinct tools:

• A permissive inference of misconduct: When required BWC activation does not occur, factfinders may infer that the missing footage “would have reflected misconduct by the officer.” But “permissive” means the inference may be drawn; it is not mandatory or conclusive.
• A rebuttable presumption of inadmissibility: Unrecorded statements that the prosecution seeks to introduce through that officer are presumed inadmissible—unless the prosecution rebuts the presumption with evidence.

Two aspects of the Court’s reading are critical:

1. The presumption is rebuttable, not automatic exclusion.
   The district court treated the failure to record as essentially an automatic bar to admissibility, combined with discovery sanctions. The Supreme Court held that the prosecution must be given an opportunity to offer evidence explaining:
   • why the BWC was not recording, and
   • what the unrecorded statements were.
   Only after such a hearing can the court decide whether the presumption has been rebutted and whether the statements should be admitted or excluded.
2. No statutory duty to generate an “explanation report.”
   The Court expressly noted that the BWC statute “does not require an explanation for a failure to activate or reactivate a BWC,” except in the specific malfunction scenario (which did not apply here). Thus, the district court’s belief that such a report had to be created and turned over as a matter of statutory compliance was legally incorrect.

The Court’s bottom line: the officer’s failure to reactivate audio triggers certain evidentiary consequences, but it does not automatically exclude testimony or require suppression. The statute operates through inferences and presumptions, not categorical rules of exclusion.

3. Relationship to Probable Cause and the Search Warrant

The district court’s suppression ruling depended on first excluding the motel clerk’s statement from the warrant affidavit, then finding probable cause lacking under Franks. The Supreme Court framed this as a cascading error:

• Without a valid basis to exclude the officer’s testimony (no Crim. P. 16 violation; misapplied BWC presumptions), the motel clerk’s statement could not be automatically read out of the warrant affidavit.
• Because that clerk’s statement was the “sole basis” in the affidavit connecting Havens to room 223, excluding it was determinative of probable cause. The warrant rose or fell on that statement.
• By resolving the BWC evidentiary issues incorrectly and short‑circuiting the statute’s rebuttable‑presumption process, the district court prematurely invalidated the warrant.

The Supreme Court therefore concluded that the suppression of the fruits of the room search was erroneous as a matter of law.

4. Required Procedure on Remand

The Court did not decide whether the motel clerk’s statements must ultimately be admitted, or whether the warrant was supported by probable cause after proper application of the BWC statute. Instead, it remanded with instructions:

• The district court must hold a hearing “as contemplated by the BWC statute”, where:
  • the prosecution can present evidence explaining the failure to unmute the BWC audio; and
  • the content of the motel clerk’s statements can be explored.
• After that hearing, the district court must determine:
  • whether the prosecution has rebutted the presumption of inadmissibility for the clerk’s statement;
  • whether and to what extent that statement may be considered as part of the warrant affidavit; and
  • whether the affidavit, with whatever content remains, establishes probable cause.

The Supreme Court expressly “express[ed] no opinion” on how the district court should rule after that hearing, underscoring that its decision is about process and statutory interpretation, not the ultimate Fourth Amendment outcome.

D. Precedents and Authorities Discussed

1. Franks v. Delaware, 438 U.S. 154 (1978)

Franks provides the framework for challenging the truthfulness of search warrant affidavits. The opinion in Havens recites the key Franks principles:

• A defendant has a right to an evidentiary hearing if they make a substantial preliminary showing that the affidavit contains a false statement made knowingly, intentionally, or with reckless disregard for the truth.
• If, at the hearing, the defendant proves such falsity by a preponderance of the evidence, and the affidavit stripped of the false material does not establish probable cause, the warrant is void and the fruits of the search must be excluded.

In Havens, the defense tried to use the absence of BWC audio to undermine the veracity of the statement that Havens “had rented room 223.” The district court’s acceptance of that argument depended on excluding the motel clerk’s statement outright. The Supreme Court’s decision does not foreclose a Franks challenge; it simply holds that any such challenge must proceed under a correct application of the BWC statute and without improper discovery sanctions.

2. People v. Hyde, 2017 CO 24, and People v. Munoz‑Gutierrez, 2015 CO 9

These cases are cited for standard‑of‑review principles:

• Hyde confirms that review of a suppression order involves a mixed question of law and fact: appellate courts defer to factual findings if supported by the record, but they review legal conclusions de novo.
• Munoz‑Gutierrez reiterates that a trial court’s legal conclusions can be corrected if the court applied an erroneous legal standard to the facts.

In Havens, these authorities support the Court’s approach: it accepts (or does not disturb) the district court’s factual account of what occurred but independently evaluates whether the BWC statute and Crim. P. 16 were correctly interpreted and applied.

3. Brady v. Maryland, 373 U.S. 83 (1963) and People v. Bueno, 2018 CO 4

Brady established the constitutional rule that prosecutors must disclose exculpatory evidence to the defense. Bueno explains that Crim. P. 16(I)(a)(2) codifies that duty in Colorado, requiring disclosure of material that tends to negate guilt or reduce punishment.

In Havens, the Court invokes Brady and Bueno to clarify that not every omission or failure by the police is exculpatory. The mere absence of BWC audio, without more, does not inherently “tend to negate” guilt. Therefore, the failure to unmute the BWC audio is not, in itself, Brady‑type material that must be disclosed.

4. People v. Whittington, 2024 CO 65

Whittington is cited for the proposition that, when the prosecution fails to comply with its Crim. P. 16 obligations, courts may impose sanctions including preclusion of evidence.

The citation underscores a contrast: in Whittington, sanctions are appropriate where there is a genuine discovery violation; in Havens, there was no such violation because the omitted material fell outside the scope of Crim. P. 16. Thus, importing Whittington-style sanctions into this context was improper.

E. Impact and Implications

1. Clarifying the Reach of Colorado’s BWC Statute

Havens provides one of the clearest appellate interpretations of § 24‑31‑902(1)(a)(III)’s evidentiary consequences. Its practical guidance:

• The statute is not a strict‑liability exclusion rule. It does not automatically suppress unrecorded statements or invalidate prosecutions whenever BWC activation fails.
• Instead, it shifts burdens and creates tools for courts and litigants:
  • factfinders may infer misconduct from missing footage; and
  • the prosecution bears the burden to overcome a presumption of inadmissibility when it wants to use statements that were not recorded because of noncompliance.
• Courts must hold appropriate hearings, receive evidence on why activation failed, and then decide whether the presumption has been rebutted. A failure to record is a starting point for analysis, not the end of it.

2. Limits on Discovery‑Based Suppression

The decision also cabins the use of discovery rules to police BWC compliance:

• Trial courts cannot bootstrap BWC failures into discovery violations unless the failure relates to information that fits within Crim. P. 16’s defined categories (objects, defendant’s statements, or exculpatory material).
• Absent such a violation, courts lack authority to impose severe sanctions like witness preclusion or wholesale suppression of evidence based on supposed “non‑disclosure” of an explanation for BWC muting.
• In effect, Havens directs trial judges to treat BWC failures primarily as evidentiary issues governed by § 24‑31‑902, not as automatic discovery sanctions issues.

3. Guidance for Law Enforcement and Prosecutors

The opinion still affirms that officers must comply with the BWC statute and that failures to record have real consequences:

• The missing audio in Havens triggered a permissive inference of misconduct and a presumption of inadmissibility regarding the motel clerk’s statement. That alone may weaken the prosecution’s position on remand, depending on the court’s findings.
• Prosecutors who seek to use unrecorded statements must be prepared to:
  • explain why the BWC was not recording;
  • show that the failure was not intentional or egregious; and
  • persuade the court that fairness and reliability support admission despite the statutory presumption.
• Agencies still have strong institutional incentives to train officers to comply strictly with activation requirements. Even if suppression is not automatic, BWC failures increase litigation risk and may undermine factfinders’ confidence in officers’ credibility.

4. Guidance for Defense Counsel

For defense attorneys, Havens both clarifies tools and marks their limits:

• The BWC statute remains a powerful avenue for challenging officer conduct and the admissibility of unrecorded statements. Defense counsel can:
  • invoke the permissive inference of misconduct; and
  • force the prosecution to rebut the presumption of inadmissibility through live testimony and evidence.
• However, defense strategies cannot simply assume that any BWC failure equates to:
  • a categorical discovery violation, or
  • automatic suppression of evidence derived from the unrecorded interaction.
• In suppression litigation, Havens suggests that challenges to search warrants must proceed through the interplay of:
  • the BWC statute’s presumptions (to attack the reliability or admissibility of statements); and
  • Franks standards (to actually excise statements from an affidavit and undermine probable cause).

5. Institutional and Doctrinal Balance

More broadly, Havens reflects an attempt to balance two policy goals:

• Accountability and transparency. The BWC statute was designed to increase police accountability and create reliable records of interactions. The Court’s recognition of the permissive inference and rebuttable presumption preserves meaningful consequences for non‑compliance.
• Fairness and proportionality. At the same time, the Court resists turning every technical BWC misstep into a per se suppression rule or per se discovery violation. Instead, it insists on case‑by‑case evidentiary hearings and reasoned rulings.

IV. Complex Concepts Simplified

1. Body‑Worn Camera (BWC) Requirements

Colorado law requires most officers who interact with the public to wear and activate BWCs when enforcing laws or investigating possible violations. Turning the camera or audio off is only allowed in limited circumstances (e.g., to avoid capturing sensitive personal conversations not related to the case).

2. Permissive Inference

A permissive inference means a factfinder is allowed to infer something—but is not required to. In this context:

If an officer fails to record as required, the court or jury may infer that the missing footage would have shown officer misconduct. But they do not have to draw that conclusion; they must consider all the evidence.

3. Rebuttable Presumption of Inadmissibility

A rebuttable presumption starts the legal analysis at a particular conclusion unless someone successfully challenges it.

Here, when the prosecution wants to introduce a statement that was not recorded because the officer failed to comply with the BWC statute, that statement is presumed inadmissible. The prosecution can try to rebut that presumption by:

• presenting evidence about why the recording failure occurred; and
• persuading the court that fairness and reliability justify admitting the statement.

If the court finds the presumption rebutted, the statement may be admitted. If not, it is excluded.

4. Probable Cause and Search Warrants

Probable cause for a search warrant means there is a fair probability that:

• evidence of a crime; or
• contraband or fruits of a crime

will be found in the place to be searched.

In Havens, the key probable cause question was whether there was sufficient evidence that Havens was connected to room 223. The motel clerk’s unrecorded statement was the only link.

5. Franks Hearings

A Franks hearing is a special evidentiary hearing where the defense tries to show that a search warrant affidavit contained false statements made intentionally or recklessly. If the court agrees and the remaining truthful parts of the affidavit do not support probable cause, the warrant is invalid and evidence from the search is suppressed.

6. Interlocutory Appeal Under C.A.R. 4.1

An interlocutory appeal is an appeal taken before the final conclusion of a criminal case. Under Colorado Appellate Rule 4.1(a), the prosecution may appeal certain pretrial rulings, including suppression orders. That is how the People obtained review of the district court’s suppression decision in Havens.

7. Exculpatory Evidence and Brady

Exculpatory evidence is information that tends to show the defendant is not guilty or that would reduce their punishment. Under Brady v. Maryland and Crim. P. 16, the prosecution must provide such information to the defense.

In Havens, the Court held that the mere fact that BWC audio is missing is not, by itself, exculpatory; it does not directly show that the defendant is innocent or deserving of less punishment.

V. Conclusion

People v. Havens is a foundational case in Colorado’s developing body‑worn camera jurisprudence. The decision clarifies that:

• the BWC statute’s evidentiary consequences operate through a permissive inference and a rebuttable presumption, not through automatic exclusion or mandatory discovery duties;
• the prosecution is not required to generate or disclose explanatory reports every time BWC activation fails, absent a specific discovery rule triggering such a duty;
• trial courts must provide the prosecution an opportunity to rebut the presumption of inadmissibility before excluding unrecorded statements or excising them from warrant affidavits; and
• suppression remedies, particularly under Franks, cannot be grounded in misapplications of the BWC statute or discovery rules.

By reversing the suppression order and remanding for a proper statutory hearing, the Colorado Supreme Court reinforces a balanced approach: officers and prosecutors face significant evidentiary risks when BWC requirements are violated, but such violations do not automatically equate to discovery breaches or warrant invalidation. Instead, courts must engage in careful, evidence‑driven analysis that respects both the accountability goals of the BWC statute and the procedural fairness required by criminal law and the Constitution.