People v. Havens (2025 CO 65): No Crim. P. 16 “Failure-to-Record” Report Requirement and Mandatory Opportunity to Rebut BWC Inadmissibility Presumption

1. Introduction

People v. Havens sits at the intersection of Colorado’s body-worn camera (“BWC”) regime and pretrial criminal discovery. The case arose after officers searched a motel room pursuant to a warrant whose location component rested on an unrecorded statement from a motel clerk. The statement went unrecorded because an officer had muted his BWC audio and failed to unmute it during the clerk interaction. The district court suppressed the fruits of the motel-room search, reasoning (1) the prosecution committed a Crim. P. 16 discovery violation by not producing a report explaining the failure to record, and (2) the BWC statute rendered the clerk-based location information inadmissible, leaving the warrant without probable cause.

The Colorado Supreme Court reversed, holding that the district court misread both the BWC statute, section 24-31-902, C.R.S. (2025), and Crim. P. 16. Critically, the court also emphasized process: because the BWC statute creates a rebuttable presumption of inadmissibility for unrecorded statements or conduct, the prosecution must be afforded an opportunity to rebut that presumption before the evidence is excluded and a warrant is effectively dismantled.

Key parties and issues

• Plaintiff-Appellant: The People of the State of Colorado.
• Defendant-Appellee: Thomas James Havens.
• Core issues:
  • Does section 24-31-902 or Crim. P. 16 require the prosecution to produce a report/documentation explaining an officer’s failure to unmute BWC audio?
  • When the BWC statute’s rebuttable presumption of inadmissibility applies, must the prosecution be given a hearing/opportunity to rebut before exclusion?
  • Can a court impose discovery sanctions (excluding testimony) based on a perceived non-disclosure when no discovery duty exists?
  • What are the consequences for probable cause when the only location evidence in a warrant affidavit is an unrecorded third-party statement?

2. Summary of the Opinion

The court recognized that Officer Modlin should have reactivated his BWC audio when speaking to the motel clerk, triggering the BWC statute’s evidentiary consequences: a permissive inference that missing footage would have shown officer misconduct, and a rebuttable presumption of inadmissibility for unrecorded statements/conduct the prosecution seeks to introduce. But the statute does not itself impose an affirmative “explanation report” requirement for non-malfunction failures to record, and Crim. P. 16 does not independently create such a duty.

Because the district court prevented the prosecution from presenting evidence explaining the failure to unmute and what was said, it prematurely treated the presumption as effectively irrebuttable and then suppressed all fruits of the motel-room search. The Supreme Court corrected that approach: the prosecution must be allowed to attempt rebuttal as contemplated by the statute.

3. Analysis

3.1 Precedents Cited

People v. Hyde, 2017 CO 24

The court invoked People v. Hyde for the standard framework governing suppression review: suppression orders present mixed questions of fact and law; appellate courts defer to supported factual findings but review the legal effect of those facts de novo. In Havens, this mattered because the pivotal errors were legal—how the district court interpreted section 24-31-902 and Crim. P. 16, and how it used those interpretations to justify exclusion of testimony and suppression of evidence.

People v. Munoz-Gutierrez, 2015 CO 9

The opinion relied on People v. Munoz-Gutierrez for the principle that legal conclusions may be corrected if the trial court applied an erroneous legal standard. Havens is a textbook application: the district court’s premise (that a missing “explanation report” is a discovery violation warranting testimonial exclusion) was not grounded in either the BWC statute or Crim. P. 16.

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

Franks v. Delaware appears because Havens challenged the veracity of the search warrant affidavit, arguing that the affidavit’s room-location statement (“had rented room 223”) lacked veracity and should be “set to one side.” The district court’s suppression reasoning effectively mimicked a Franks excision: without admissible evidence of the clerk’s statement, the affidavit purportedly could not support probable cause for room 223.

The Supreme Court did not decide a full Franks merits question; instead it addressed the antecedent evidentiary error: the district court excluded the officer’s testimony via an improper discovery sanction and without permitting rebuttal of the statutory presumption of inadmissibility. Because that exclusion drove the excision-like outcome, the Franks-adjacent suppression analysis was premature.

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

The court cited People v. Bueno for the proposition that Crim. P. 16(I)(a)(2) codifies constitutional disclosure duties associated with Brady v. Maryland. This pairing served a specific function in Havens: it framed what “exculpatory information” means and, by contrast, why an officer’s failure to unmute BWC audio is not inherently exculpatory within the meaning of the rule. The failure to record, standing alone, does not “tend to negate the guilt of the accused” or reduce punishment; it instead triggers evidentiary consequences under a separate statute (section 24-31-902).

People v. Whittington, 2024 CO 65

People v. Whittington was cited to support the proposition that Crim. P. 16 authorizes sanctions, including exclusion of evidence, for noncompliance with discovery obligations. In Havens, that authority was not disputed—its predicate was. The Supreme Court’s point was that a sanction power cannot be exercised where the supposed obligation does not exist.

3.2 Legal Reasoning

A. What the BWC statute does—and does not—require

Section 24-31-902 imposes operational requirements: officers must wear and activate BWCs during law-enforcement/public interactions, and may turn them off to avoid recording personal information not related to a case. When an officer fails to activate/reactivate as required, the statute supplies two evidentiary mechanisms:

• Permissive inference: factfinders may infer the missing footage would have reflected officer misconduct.
• Rebuttable presumption of inadmissibility: statements or conduct not recorded due to the failure are presumed inadmissible, but the presumption can be overcome.

The Supreme Court emphasized a negative implication: the statute “does not require an explanation for a failure to activate or reactivate a BWC.” The opinion also noted a distinct malfunction-related documentation pathway in the statute (where evidentiary consequences may not apply if there was a malfunction unknown to the officer and agency documentation shows the officer checked functionality at shift start). But that exception did not apply, because the officer said he forgot to unmute; he did not claim malfunction.

B. Why the district court’s approach collapsed a rebuttable presumption into an automatic exclusion

The district court barred Officer Modlin from testifying (i) why he failed to unmute, and (ii) what the clerk said. Having excluded that testimony, the court then concluded the permissive inference of misconduct was unrebutted and the clerk’s statement could not support probable cause. The Supreme Court identified the procedural flaw: if a presumption is rebuttable, the proponent (here, the prosecution) must have a fair opportunity to present rebuttal evidence. Excluding the only witnesses/evidence that could rebut the presumption effectively makes the presumption irrebuttable, contrary to the statute’s design.

C. Why Crim. P. 16 did not justify discovery sanctions

The Supreme Court analyzed the specific discovery categories invoked by Havens and the district court:

• Crim. P. 16(I)(a)(1)(IV) (“tangible objects held as evidence”): A failure to unmute audio is not a tangible object.
• Crim. P. 16(I)(a)(1)(VIII) (“substance of any oral statements made … by the accused”): The missing information concerned a third-party motel clerk, not Havens’s statements.
• Crim. P. 16(I)(a)(2) (exculpatory information / Brady): The mere failure to unmute does not itself negate guilt or reduce punishment; it instead triggers statutory evidentiary rules.

Because no discovery duty attached, the court held the district court erred in imposing a discovery sanction that barred testimony. The sanction, in turn, drove the suppression outcome.

D. The remedy: remand for the statutorily contemplated hearing

The Supreme Court did not decide whether the prosecution ultimately can rebut the presumption of inadmissibility or whether the search warrant will withstand scrutiny after a proper hearing. It reversed and remanded so the district court can conduct a hearing and evaluate rebuttal evidence consistent with section 24-31-902.

3.3 Impact

1) Clarification of the BWC statute’s procedural posture at suppression litigation

Havens signals that section 24-31-902 operates as an evidentiary framework, not as a self-executing suppression device. Trial courts must distinguish between:

• the statute’s consequences for missing recordings (inference + rebuttable inadmissibility), and
• the process for applying those consequences (allowing rebuttal rather than default exclusion).

2) Limits on using Crim. P. 16 to police BWC compliance

The decision restricts attempts to recast BWC noncompliance as a freestanding discovery violation absent a specific discovery category. Exclusionary sanctions under Crim. P. 16 remain available, but only when the prosecution fails to disclose something it is required to disclose.

3) Search-warrant litigation: preventing “backdoor Franks excision” via premature evidentiary rulings

Where an unrecorded statement supplies a key warrant fact, Havens suggests courts should not effectively excise that fact without first applying the statute’s rebuttal mechanism. This is especially important in location-based probable cause disputes, where a single fact can determine whether a search is authorized at all.

4) Practical influence on law enforcement and prosecution practice

Although the court held no “explanation report” is required by statute or Crim. P. 16, the case underscores that failures to record can trigger significant evidentiary friction. Agencies and prosecutors may still adopt internal documentation practices to strengthen rebuttal showings and reduce litigation risk—though Havens makes clear those practices are not mandated by Crim. P. 16 in this context.

4. Complex Concepts Simplified

• C.A.R. 4.1 interlocutory appeal: A procedure allowing the prosecution to appeal certain pretrial orders (like suppression) before the case goes to trial.
• Permissive inference: A legal “you may infer” rule. The judge or jury is allowed—but not required—to conclude the missing recording would show officer misconduct.
• Rebuttable presumption of inadmissibility: The default is exclusion of unrecorded statements/conduct, but the party offering the evidence can overcome (rebut) that default by presenting sufficient countervailing evidence in a hearing.
• Suppression: Excluding evidence from use in court—often because it was obtained in violation of constitutional or statutory rules.
• Probable cause (for a warrant): A fair probability, based on sworn facts, that evidence of a crime will be found in the place to be searched.
• Franks challenge: A procedure to contest whether a warrant affidavit contains intentional or reckless falsehoods; if proven, the false material is set aside and the remainder must still establish probable cause.
• Crim. P. 16 / Brady material: Pretrial disclosure obligations. “Brady” refers to the constitutional requirement to disclose material favorable evidence; Crim. P. 16 codifies related disclosure duties in Colorado.

5. Conclusion

People v. Havens establishes a clear procedural and doctrinal boundary: Colorado’s BWC statute imposes evidentiary consequences for failures to record, but it does not require the prosecution to generate or disclose an explanatory “failure-to-record” report; nor can Crim. P. 16 be stretched to create that obligation. Equally significant, when the statute creates a rebuttable presumption of inadmissibility, trial courts must allow the prosecution a meaningful opportunity to rebut it before excluding testimony and unraveling a warrant’s factual basis.

On remand, the district court retains discretion to decide whether the presumption is rebutted and how the warrant analysis resolves, but it must do so through the hearing process contemplated by section 24-31-902—rather than through discovery sanctions untethered to an actual Crim. P. 16 duty.