2017 COA 146
Colo. Ct. App.2017Background
- Victim saw a man outside her living-room window on two occasions (six months apart); she later identified Folsom at a police show-up and he was arrested nearby.
- Police searched Folsom incident to arrest and seized two iPod Touches; without a warrant they reviewed and introduced videos from the devices at trial (some showing voyeuristic/peeping content).
- Prosecutor disclosed evidence shortly before trial identifying another neighborhood suspect (D.P.) linked to multiple peeping incidents at the victim's house and elsewhere.
- Trial court admitted the iPod videos and excluded most evidence about D.P.; jury convicted Folsom of stalking (serious emotional distress) and two counts of attempted invasion of privacy for sexual gratification.
- On appeal the court considered Fourth Amendment search issues (post‑Riley), admissibility of alternate‑suspect evidence, sufficiency of stalking evidence, due‑process challenges to the show‑up ID, and a facial vagueness challenge to the stalking statute.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Folsom) | Held |
|---|---|---|---|
| Warrantless search of iPods (search‑incident‑to‑arrest) | Search valid as incident to arrest and under controlling precedent at the time | iPods are like cell phones; Riley requires a warrant to search their data | Admission of iPod videos violated Fourth Amendment under Riley; error not harmless as to voyeuristic videos; reversal and suppression required on retrial |
| Exclusion of alternate‑suspect evidence (D.P.) | Evidence insufficiently connected; would confuse jury | D.P. had multiple similar incidents in same area/timeframe and a prior conviction; evidence highly probative of misidentification | Trial court applied wrong legal test and abused discretion; excluding D.P. deprived Folsom of a fair trial; reversal and new trial required |
| Sufficiency of stalking conviction | Evidence (victim testimony, two intrusions) sufficient to prove repeated conduct causing serious emotional distress | Argued prior contact accidental and did not cause serious emotional distress | Viewing evidence in light most favorable to prosecution, there was substantial evidence to support stalking conviction (this claim rejected) |
| Show‑up and in‑court identifications (due process) | Show‑up identification reliable; no due‑process violation | Show‑up was suggestive and victim’s description conflicted with Folsom’s appearance | Although show‑up was suggestive, totality of circumstances supported reliability; no due‑process violation found |
| Facial vagueness of stalking statute | Statute is constitutional on its face | Challenged facial and as‑applied vagueness (as‑applied deferred) | Statute not unconstitutionally vague on its face; as‑applied challenge declined for trial‑court factfinding |
Key Cases Cited
- Riley v. California, 573 U.S. 373 (2014) (cell‑phone data search incident to arrest generally requires a warrant; privacy interests in modern devices are heightened)
- Davis v. United States, 564 U.S. 229 (2011) (good‑faith reliance on binding precedent can limit exclusionary‑rule relief)
- Griffith v. Kentucky, 479 U.S. 314 (1987) (new constitutional rules on direct appeal apply retroactively to cases on review)
- Stone v. Powell, 428 U.S. 465 (1976) (exclusionary rule is judicially created remedy for Fourth Amendment violations)
- Manson v. Brathwaite, 432 U.S. 98 (1977) (due‑process test: suppress identification only when very substantial likelihood of irreparable misidentification exists)
- Perry v. New Hampshire, 565 U.S. 228 (2012) (suggestive identification procedures do not automatically violate due process; reliability and adversarial testing matter)
- Neil v. Biggers, 409 U.S. 188 (1972) (factors to assess reliability of eyewitness identifications)