People v. Gall

Colorado, The PEOPLE of the State of

Plaintiff/Appellant, GALL,

Michael Defendant/Appellee. John

No. 00SA101.

Supreme Colorado, Court of

En Banc.

March 2001. Keenan, Attorney, Twen-

Mary District W. District, Nagel, F. William ticth Judicial Attorney, Bryan W. Deputy District Chief Boulder, Attorney, Quiram, Deputy District CO, Plaintiff-Appellant. Attorneys for Grant, CO, Englewood, Attorney Paul alleged conspiracy defendant, between the Defendant-Appellee. Gall, Michael co-worker, John Byron

Kyle Dorethy, to murder two super- of their Opinion Justice COATS delivered the Amgen visors at Incorporated. Detective the Court. Hartkopp assigned was following the case report to the Department Boulder Police People appealed pursuant The to section by Amgen several supervisors. employee An 16-12-102(2), (2000), 4.1, 6 C.R.S. and C.A.R. named Israel Ramirez had advised them that challenging the district sup- court's order the Dorethy, defendant and security both pressing all of the during evidence seized guards Amgen, at had talking about been search of the defendant's residence. Be- shooting work, employees fellow at including executing cause officers acted reason- security two of the supervisors named David upon able reliance a search warrant and the Barley Payne. and subsequent Debbie In laptop computers, seizure of five later deter- police, interviews with the gave Ramirez de- stolen, mined to be was authorized tails about alleged co-conspirators' plans the district court's order is reversed explosives to use during an attack at the and the case is pro- remanded for further Amgen facility specific and their threats to ceedings with opinion. consistent Barley Payne. shoot and specifical- Ramirez ly told Hartkopp Detective the defen- L. dant claimed to have explosives used Following items, the seizure of numerous рast and possession to have in his an AK-47 including suspected materials; bomb-making high-powered rifle, an AR-15 and a rifle, hundreds of referencing guns, documents ex handgun. Beretta plosives, making; writings bomb about The affidavit also recounted conversations personal feelings; defendant's and a with employee another named Dan Brunson. number desktop laptop computers; Although Brunson any specific was unsure of the defendant was charged arrested and with plans anyone to hurt damage property, he felony one count of by receiving theft indicated that the defendant had talked about felony possession three counts of explo keeping fully AK-47, AR-15, automatic an incendiary sives and parts.2 devices and and a handgun residence; Beretta at his The suppress defendant moved to everything criticizing once while someone else for im- seized from ground his residence on the properly handling explosives, the defendant the supporting affidavit failed to articulate explained had to Brunson how to make a addition, cause for the search. In bomb; Dorethy and that emotionally was an challenged he laptop seizure of five com unstable disgruntled employee. In addi- puters, stolen, later determined to be on the tion, the affidavit discovery by described the ground seope outside the of Amgen supervisors five-page the warrant.3 printout paperwork in a belonging box At February hearing Dorethy. on the page The final printout of the suppression motion, defendant's People evening dated the of June and contained presented copy of the warrant authorizing Barley, the address of including David de- the sеarch and tailed directions and time of travel from the six-page, typewritten, testimony Amgen affidavit, supporting building Barley's as well as the residence. The Hartkopp, Detective who authored and full printout multiple also contained refer- presented affidavit, and Detective ences to AR-15 and AK-47 rifles and other Spraggs, helped who execute weapons; the search laudatory war- comments about the ef- rant. Hartkopp outlined his fects of the recent shooting mass at Colum- investigation 24-26, 1999, from June High School; into an bine characterization of the 18-4-410(1), (2000). 3., §1. 6 C.R.S. day suppression On the hearing, of the granted court the defendant's motion to sever the felony by receiving theft count from the three 18-12-109(6), §2. 6 C.R.S. felony possession explosives counts of incendiary parts. devices and hearing, killing "un- the court as thoughts about At the conclusion own author's "Mike" questions con- the name ruling use of to consider healthy;" and delayed com- the defendant's to whom his person cerning the identification reference defendant was ad- previously been were directed. had not ments residence "Mike" name the first only person February parties. On dressed security supervisors concluding that the a written order known issued facility the same Amgen working at the apart- the defendant's search warrant Dorethy. as executing offi- time that the ment was invalid faith good it in a number have relied on included could not cers The affidavit failure supporting affidavit's learned corroborating details address identify included defendant's street investigation. These during their anger apart- specify the of his complex about or to co-workers an comments Dorethy the im- at therefore court the defendant number. The district both ment security guards of the replacement everything in the search. pending suppressed service; discovery that Amgen another at requested a People February the On defendant of the schedules the work making objection, clear rehearing, without only guards as the two Dorethy placed them asking that the appeal and intent their immediately the shift security office on ' original grounds the rule as well on court discovery of the preceding the sup- motion to in the defendant's asserted the learning the FBI that from printout; and litigation piecemeal in order to avoid press, allowinghim permit a did not have defendant court set the issues. The suppression the of Finally, weapon. fully possess automatic a months rehearing April almost two for as the address listed street the affidavit hearing the opening not later. While through the residence, learned defendant's evidence, argu- the court heard additional ad- directory, and a second street telephone ruling the defen- completed ment personally dress, officers had named which Specifically, it suppress. motion to dant's and observed. visited challenge to the defendant's addressed the partici he Spraggs that testified Detective computers. In this laptop of the five seizure for the of the warrant pated in the execution ruling, court found subsequent the district Although he did residence. defendant's lawfully although computers were that the executing seeing prior the affidavit recall nothing in police, the there was viewed warrant, that it authorized aware he was the giving the offi- appearance their immеdiate journals, and other writings, the seizure crimi- any connect them with reason to cers explosives, involving the use that it was The court indicated nal behavior. defendant, or thoughts the reflecting the is analo- to conclude that unable referencing plan to execute some otherwise notebook, letter, journal, or writing, gous to a Amgen.4 In addition to type of "event" that It ruled any type of document. other and other documents hundreds of written prove that this was People failed during the execution things seized computers and seizure of the for the basis desktop seized two lawfully within were laptop computers. computers and five model seope of the warrant. later obtained to Additional warrants of these hard drive memories People filed their April On suspected con computers for evidence of interlocutory court appeal notice spiracy. or precise language the warrant authorized devices or 4. The nition, incendiary explosive parts; the seizure of: printed which Any or material and all written ammunition; and all firearms Any physi- physical or an to do harm devices, shows intent incendiary explosives Any or and all building; any person damage against or cal 18-12-109; under CRS or as defined parts, Any materials that show documents or printed Any or material and all written premises and ve- occupier possessor of the concerning examples provides instructions or hicle. ammu- firearms, or use production C.A.R, pursuant to 4.1.5 items connected to the crime would be residence,

discovered at his the district court found that Hartkopp's affidavit failed to iden- IL tify specific apartment de- suppression After the hearing, the district fendant's residence and request failed to court determined from its own observations apartment. search that The court distinguished from the ultimately concluded that the affidavit "was presented it, along did not indi- lacking so indicia of cause as to cate that the defendant's address was an executing render the officer's reliance entire- apartment complex specify the number of ly unreasonable." apartment. the defendant's After articulat- The Fourth Amendment to the United ing grounds to believe that both the defen- States protects Constitution individuals from Dorethy dant and were involved in the con- unreasonable searches and seizures. U.S. spiracy, and that items connected to the IV.; Altman, Const. People amend. crime would respective be found at their (Colo.1998). P.2d Although residences, the affidavit stated that officers required warrants are not by the text telephone determined from directory Amendment, of the Fourth jurisprudence defendant, Gall, Michael John lived at Supreme Court consistently has ex 3161 Madison in Boulder. It then described pressed strong a preference for warrants a greater second residence detail at 664 by issued magistrates neutral United Drive, Tantra noting that actually it was Leon, 897, 914, States v. 468 U.S. 104 S.Ct. However, police. visited page each 3405, (1984); 82 L.Ed.2d 677 United States v. annotation, the affidavit also contained the Ventresca, 102,106-07, 380 741, U.S. 85 S.Ct. N302," "Search Warrant: 3161 Madison and (1965); 13 LEd.2d Wayne LaFave, 684 2 R. presented the warrant magistrate to the Search and Seizure A Treatise on the along with the premis- affidavit identified the 3.1(a) (8d § Fourth Amendment ed. 1996 & es to be Avenue, searched as 8161 Madison Supp.2001). Even the text of the Fourth Apt. N8302. The warrant further described specifies, however, Amendment that war "four-story address as a may only rants upon probable issue cause building, constructed of brick with brown particularly must place describe siding trim," beige and indicated that be person searched things and the apartment "N8302" was located on the seized. U.S. Const. amend. IV. side" of building, "North/West with an entrance, east front and that it had a rust Probability, certainty, is the window, trim, colored door with beige a a touchstone of reasonableness under handle, brass door and rust colored numbers Amendment, Fourth probable cause in right "N302" on its side. The warrant also probabilities volves similar to the factual and specifically incorporated by reference the af- practical questions everyday upon life fidavit of Hartkopp, Detective and both the which prudent persons reasonable and act. and affidavit cross-referenced At- Grazier, People (Colo. 1149, v. 992 P.2d 1153 A, tachment containing the list of items for 2000); MacCallum, People 758, v. 925 P.2d which seizure was authorized the warrant. (Colo.1996). 762 Similarly, the information finding Rather than upon that can be probable relied to establish probable failed to establish cause to believe evidence, cause need not be admissible but the defendant committing was relatively a crime or complex developed rules have con- 5. The defendant contends that this court lacks in the People time limitations of C.A.R. 4.1. jurisdiction interlocutory appeal hear this be- (Colo.1996); Melton, 910 672, P.2d 675 n. 5 Peo- People cause J.C., failed ple 1185, to file their notice of in the Interest 844 P.2d 1188 appeal days (Colo.1993). within 10 of the district court's ini- It is even more clear that ac- February tial order of previously i1. We cepting have complete an invitation to an earlier rul- only permitted held that a trial ing court is not but suppress, on a motion to a trial court demon- under duty certain circumstances has a to recon- strates later, rather than the earlier, ruling completed ruling constitutes sider on orders, and if it so, does suppression prosecution may motion, appeal ruling its modified with- appeal may from which an be taken.

150 pro particular criminal in the outcome informa sources of cerning the nature cannot be ceedings, threat of exclusion sufficiently reliable. may considered be tion modify their behav 109, significantly expected to tresca, 85 S.Ct. at 380 U.S. Ven 8405; 916, Leon, 104 S.Ct. at ior. Furthermore, probable cause to unlike 741. (Erick Deitchman, at 1152 695 P.2d merely sufficient see arrest, entails (Dubofsky, C.J., 1160 son, concurring); id. at commit a crime was grounds to believe Therefore, where a it, J., concurring). Mac suspect committed ted and that facially valid on a good faith officer relies 762, Callum, cause for probable 925 P.2d at exclusionary rule warrant, purpose of the requires both sufficient implicitly suppression of rele by the furthered items to is not sought-after grounds to connect Leon, 468 U.S. probative evidence. items vant and those grounds to believe a crime Deitchman, 926, 3405, 695 P.2d 104 S.Ct. at place to be searched located will be J., concurring). (Dubofsky, Quintana, search, at 1160 People v. time of (Colo.1990). P.2d presumed that an itWhile exceptions to the Although good faith if he was acting in officer narrowly de recognized requirement warrant, § 16-3- see acting pursuant to a cireumstances, branch executive where fined (2000); 801(1), Randolph, 4 P.3d at 6 C.R.S. grounds for a search present their officers 1169-70, Altman, see also 483; P.2d at judicial rely judicial magistrate Cardall, F.2d States v. United than cause rather probable determination Cir.1985) (Leon principle good faith encouraging own, policy war public their an officer presumption that when creates cause be re dictates that rants acting in upon a the officer relies issuing magis with deference viewed faith), called for when good exclusion is still Gates, 462 U.S. Illinois v. trate. See grounds "lacks reasonable the officer ever L.Ed.2d 527 properly believing the warrant was for review question for a court appropriate The 923, Leon, 104 S.Ct. at 468 U.S. issued." is a warrant authorized ing a search Leon, Altman, 3405, P.2d at 1169-70. 960 magistrate issuing had whether therefore in which specified four situations the Court issuing the search for basis a substantial lacks An officer the case. this would be reviewing rather than whether (1) the warrant grounds where reasonable probable cause found would have court deliberately false on the basis was issued Ventresa, Id.; 380 see first instance. (2) judge affidavit; issuing magistrate or 741; 109, People v. Ran at 85 S.Ct. U.S. wholly his or her neutral has abandoned (Colo.2000); Quinta 477, 482 dolph, 4 P.3d (8) facially role; is so the warrant detached na, 937. 785 P.2d at executing cannot officer deficient valid; is or reasonably the warrant believe However, no substantial where even (4) lacking in of a search indicia support found to issuance affidavit is so basis is not be in its exis exclusionary rule will official belief probable cause that Leon, at 468 U.S. costly is unreasonable. tence purposes would be more applied if its beneficial, 923, 920-21, Leon, 104 S.Ct. 3405. Where at than there is no facially. and the deficient exclusionary rule is not 3405. 104 S.Ct. police suggestion of misbehavior and to designed deter misconduct exclusionary rule will there magistrate, accountable for branch hold the executive purposes unless generally fail its fore 916, 104 Id. at police misconduct. official reasonably well- 1170; apparent Altman, Peo would be 3405; P.2d at 960 S.Ct. inade affidavit was Deitchman, officer that 1152 trained 695 P.2d ple v. Altman, 3405; 926, 104 S.Ct. (Colo.1985)(Erickson, C.J., quate. Id. at concurring). Be (officer's good reli- faith 960 ‍​‌‌​‌​​​​​‌‌​​​​‌‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌​​‌‌​​​‌​‍P.2d at judicial have no stake neutral officers cause Hayden, a crime. Warden evidence" of with a connection 6. The notion of sufficient 294, 301, L.Ed.2d 782 S.Ct. beyond U.S. long ago expanded contra- crime was Torand, (1967); crime, 622 P.2d People v. band, and instrumentalities fruits of (Colo.1981). crime, to include even "mere commit a used to impugned ance "entirely not Regardless unless of the form of the docu unreasonable" to believe the sup- ments, however, affidavit a search warrant must be warrant). ported supported by probable issuance of the cause to search a specific place. Randolph, 4 P.3d at 481. testimony argument After the at the requires This sufficient permit information to original suppression hearing, the district issuing magistrate to evaluate the source court observed what neither counsel de- had reliability of the affiant's information. body affidavit, tected. In the the Gates, 2317; U.S. at 103 S.Ct. Ran street address attributed to the defendant dolph, 4 P.3d at 484. While the information telephone from the directory did not include contained the affidavit and warrant in this apartment Moreover, an number. the affida- adequately case identified a specific aрart specific request vit made a for a warrant to ment residence, as the defendant's it never address, search the Tantra Drive theless failedto indicate the affiant's source Madison Avenue Focusing address. on the of that respect information. With to this distinction between the warrant and the affi- single link in the chain of required inferences davit, the district court concluded that probable cause to search particular identify failed to request itself searched, that was the affidavit a warrant to search the apart- defendant's was silent and arguably therefore failed to ment and that the information included in the provide a substantial issuing basis for the warrant could not be remedy considered to magistrate's action. that omission. cireumstances, Even under however, these the exelusionary sanction should not have The distinction between a search war applied been unless the affidavitwas so lack rant a supporting however, ing in indicia of cause that official not so technical or performs inflexible. Each belief in its existence was unreasonable. function, separate but the Amend Fourth Leon, 3405; U.S. Alt ment does not mandate that certain informa man, 960 P.2d at 1169-70. Such an affidavit appear tion entitled, in a document "War has been characterized as a "bare bones" rant," and other appear in a affidavit, referring to conclusory nature. entitled, Here, document "Affidavit." both 482; Randolph, Altman, 4 P.3d at 960 P.2d prepared by documents were the same offi Although at 1170. a well-trained officer presented cer and magistrate at the expected must be magistrate to know that a same time. There can be nо doubt that the given must be sufficient information to en affidavit, which every page contained on magistrate able the to evaluate the conclu annotation, "Search Warrant: 83161 Madison by affiant, sions asserted a number of N302," accompanied and which unsigned an easy courts have found it to understand how Apartment warrant to search N302 of the officer, an and issuing magistrate, even an four-story apartment complex at 3161 Madi might point overlook a lack of detail on a Boulder, son Avenue in was an affidavit in is so public common or it can often be (and issuance) support requesting of the war by telephone established or the book rant apartment. to search that Under these name on a-smailbox. See United States v. cireumstances, any danger there was never Shutters, (6th 331, Cir.1998) 163 F.3d 337-338 of confusion specific apartment about the for (where affidavit describes defendant's ad which the search Similarly, was authorized. with particularity dress such the com when the warrant and annotation are consid mon sense personally inference is the affiant along ered body with the in statement residence, observed or determined identifying affidavit the defendant's ad through investigation defendant was associat Madison, as dress 8161 there can be no doubt premises, ed with the omission does not ren effectively affiant apart identified bones"), denied, der the affidavit "bare cert. 1077, ment N302 at 8161 Madison Avenue as the 1480, 526 U.S. 119 S.Ct. 143 L.Ed.2d residence, defendant's (1999); one of the two resi 563 Procopio, United States v. 88 dences for the search of which the affidavit F.3d (Ist 21, Cir.1996) (affidavit 28 is not provided probable cause. only "bare bones" where omission is affiant's

152 suspect stealth rangements or reason to given address he knew express how failure to the location of his defendant's, "easy deception regard to to under with as it was Furthermore, neither applying for the officer residence. how both stand might a magistrate magistrate overlook the omission when noticed and nor point often established on a issued, lack of detail neither the at- was the warrant name on a mail specifically or the telephone book court torneys the district nor denied, 1138, 117 S.Ct. the source of problem box"), U.S. identified 519 cert. (1997); number, suppression 1008, see also Unit even at L.Ed.2d 886 136 (1st Cir.) 658, Shea, hearing appeal. onor ed States v. provid (while expressly whether questioning at every of insufficient Not instance defendant's resi knowledge of ing basis officers, any more by police to detail tention required link in the dence affidavit attorneys judges, is unreasonable. than if chain, ultimately that even concluded court Deitchman, (Dubofsky, of this infor See necessary link omission P.2d at 1158 it was (failure affiant to include necessarily J., concurring) minor, in and not mation was was not so defendant's address how he knew encompassed the Leon frequent, error — denied, the war "egregious" to render reliance on U.S. as exception), cert. good faith (2001); 1101, unreasonable"). —, L.Ed.2d 973 good "entirely 121 S.Ct. If the rant Brown, exclusionary ap rule exception F.2d to the v. faith States United Cir.1987) (officer's that warrant belief to which reasonable plied only to matters as search, containing differ, nothing though even it would add authorized minds could linking conclusory defen of review that only a statement standard the substantial basis searched, objec where, was premises development. At least predated dant to here, merely provide exception fails to good faith the affidavit tively reasonable denied, seemingly applied), easily cert. an obtained and support for (1988); State v. Varna information, 99 L.Ed.2d 243 that omission piece of obvious (officer (La.1996) do, 268, 270-71 675 So.2d an otherwise detailed does not render notice omission of magistrate's failure to affidavit. a "bare bones" complex affidavit linking the defendant any evidence of a deliber In the absence objectively reason residence was searched by the ately abandonment false exclusionary rule application able duty, facially deficient war judge his or a purpose); Braxton no remedial could serve rant, discovered the exclusion of evidence State, A.2d Md.App. case reliance on the search (1998) (where reasonably implied improper. defendant's, to be searched was residence search defen probable cause existed to IIL residence, fill good doctrine could faith dant's under gap in the factual basis any potential chal- separate reasons the defendant For assertions). lying the affiant's laptop computers, lenged the of five seizure to be stolen and were later determined which case, not unidenti- suspect was In this felony charge for a of provided the basis fied, justice, or a transient fugitive from a suppression hear- by receiving. At the theft quarters He a regular living was without in addi- ing, Spraggs testified that Detective very compa- employed security guard, writings and of bomb-mak- tion to hundreds living investigation, at an ny initiating the materials, desktop police two ing city, complex in the with an ad- had assembled computers that been telephone book. The affi- listed in the dress room, comput- living laptop co- five with his defendant's recounted conversations davit carrying on the three-day in cases ers found individual supervisors over workers closets, a fax description of gave detailed floor of one the defendant's investigation and machine, Spraggs also re- projector. and a clearly apartment, re- his of the exterior of understanding warrant au- first-hand observations. that the quiring someone's lated his suggests thorized six-page Nothing in the any printed written or the seizure of living guns, explosives, ar- irregularity in the defendant's pertaining items to

153 making explosives, of person- the defendant's container equally applicable rationale is to nontraditional, thoughts, plans technological "containers" al type execute some of reasonably that are likely to hold information Amgen. "event" at He further made clear awareness, personal prior executing his tangible in less forms. See United States v. warrant, Meriwether, (6th that the Internet could be used 955, Cir.1990) 917 F.2d 958 to obtain and download materials on bomb (upholding "pager" search of where warrant Gomez-Soto, making people routinely and that use com- authorized phone numbers); puters processors 3 F.2d at 654-55 (upholdingsei as word and for the ex- 72 change of e-mail. zure tapes of cassette where warrant autho books, diaries, rized seizure of papers, Although initially the trial court did not receipts). Similarly a warrant cannot be ex challenge, rule on this ultimately ruled that pected anticipate every form an item or computers analogous writings, were not repository take, of computers and therefore seizure of the therefore courts have affirmed the seizure of seope outside the of the warrant. The court things to, that are similar or the "functional premised ruling on its recollection that equivalent" of, items enumerated in a war People presented any had not evidence rant, as well as containers indicating that type thing this was "the of reasonably likely Hill, to be found. See 19 typically computer," stored on a and that the (check F.3d at 987-89 stubs as functional People proven by had not preponderance of equivalent journals), of cash disbursement the evidence that purpose this was the denied, 929, 320, cert. 513 U.S. 115 S.Ct. 130 seizing computers. these (1994); Word, L.Ed.2d 281 United States v. deciding whether items dis (6th 658, Cir.1986) 806 F.2d 661 (patient sign- during covered the execution of a search sheets, receptionist sheets, day encounter warrant are seope within the forms, sheets and and admission records obliged officers are not interpret deemed to equivalent be the functional narrowly. Hill, terms United States v. 19 records, payment records, medical ap (5th 984, F.3d Cir)(quoting 987 United pointment records), denied, cert. 480 U.S. Stiver, (3d 298, States v. 9 F.3d 302-03 Cir. 922, 1383, (1987); 107 S.Ct. 94 L.Ed.2d 697 1993)), denied, 929, cert. 513 U.S. 115 S.Ct. Reyes, 380, United States v. 798 F.2d 320, (1994); 180 L.Ed.2d 281 see also United (10th Cir.1986) (cassette tapes as functional Somers, (7th 1279, States v. 950 F.2d equivalent writings.); ‍​‌‌​‌​​​​​‌‌​​​​‌‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌​​‌‌​​​‌​‍United States v. Cir.1991), denied, 917, cert. U.S. Musson, 525, 531-32, F.Supp. 1959, (1992); S.Ct. 118 L.Ed.2d 561 United (D.Colo.1986) (computer diary disks and Lucas, States v. 1215-16 equivalent functional specified various Cir.), denied, cert. types documents, writings, and records 116 LEd.2d They may evidencing money laundering or narcotics search the location authorized the war trafficking); LaFave, see supra, rant, including any cоntainers at that location 4.11(c), § at 692. reasonably likely that are to contain items D.F.L., described the warrant. See In re Contrary holding (Colo.1997); 931 P.2d court, 451-52 People v. trial found in the defen Press, 633 P.2d (Colo.App.1981) reasonably dant's closet were likely to serve (upholding subsequent officer's removal and writings, as "containers" for or the functional equivalent search of defendant's safe at material," printed "written or another location reasonably where safe was type believed to con enumerated in the warrant. The exe cuting sought tain pursuant officerswere authorized to seize mate items to a valid search warrant); see also United States v. provided Gomez- rials that examples instructions or Soto, 649, (9th Cir.1984) 723 F.2d 654-55 concerning production any or use of fire (upholding arms, seizure of ammunitions, briefcase where war explosive and or incendi books, rant authorized seizure of papers, ary dia parts, devices or as well as materials ries, denied, receipts), 977, and cert. showing 466 U.S. physical an intent to do harm or 2360, 104 S.Ct. 80 L.Ed.2d 831 physical damage This against any person or build- 154 permissible location at another net for search in a not found computers were

ing. The made in cabinets of documents way suggesting where volume any inor packaged state pur im for the used documents have been for authorized they not search could on-site designed. U.S., 1043, denied, 108 484 poses for which cert. practical), (1988); of 777, an abundance United already found L.Ed.2d 863 had 98 S.Ct officers resi defendant's (8th in the materials Johnson, 515, written 516 709 F.2d v. States Cir.1983) described to remove that were for officers (permissible dence testimony Detective of unchallenged contain rеasonably to believed safe locked consider his conscious clear Spraggs made from pursuant to valid sought items corre usefulness computers' ation it location where to another premises Abrahams, from downloading information spondence and v. United States opened); could be subjective event, In (S.D.N.Y.1980) Internet. 310, 313 F.Supp. 93 4 inconsequen executing officer motive of an (reasonable locked safe to remove for officers pursuant to items of the seizure tial "con filing these cabinet where locked mo ulterior policeman's A search warrant. sought via likely items hold could tainers" within a search no more bar could tive exigent circumstances search warrant than could issued warrant scope properly aof loca at different for search justify removal scope him to exceed entitle pure heart his tion). Ewain, 88 v. States United of the warrant. denied, (9th Cir.), jurisdictions have found 519 U.S. 689, cert. in other F.3d 694 Courts (1996); of and removal 244 for the seizure 332, this rationale 944, 136 L.Ed.2d 117 S.Ct. States, in fact only applicable but 517 U.S. not v. United containers see also Whren 1769, computers. 89 regard 135 L.Ed.2d 806, 813, compelling 116 S.Ct. (1996) police officers and com (subjective intentions of of volume problems addition to technological sorting docu mingling, ordinary, probable-cause role in play no v. Unit analysis); Scott Amendment Fourth performed may require a search ments 137-38, 1717, 128, S.Ct. States, 98 re 436 U.S. that action ed "because location at another (officer's actions, (1978) 168 beyond L.Ed.2d 56 degree expertise quires a motivation, are underlying intent or LaFave, not his officers," supra, executing analy Amendment in a Fourth determinative 4.11(a), 686, only find the documents § not Altman, 146. sis.); P.2d аt oversearching. avoid destruction but 532, 168 F.3d Upham, v. States See United to "search" attempting than Rather (1st Cir.) agents to (permissible for 535-36 scene, the officers computers at the equipment, computer, seize sought fur computers and merely premises could not on the search disks where their con inspect ther warrants search denied, 527 U.S. cert. readily performed), reasons, the re policy For various tents. (1999); 2353, 1011, 144 L.Ed.2d 249 119 S.Ct. container, a sealed moval of (11th Schandl, v. United States "over-seizure," only au amount to an Cir.) agents to conduct (holding to force cireum- in limited preferred but thorized large of writ thorough volume search sorting out of stances, including "the where computer dises on-site documents ten intermingled from described items intrusive to more actually amount would long take so items would undescribed substantially longer amount requiring search merely that entire to take intrusive is less denied, 975, 112 time), S.Ct. 504 U.S. cert. and do location group of items to another (1992); States 2946, United 119 L.Ed.2d 4.11(a), § LaFave, supra, sorting there." 1:99-CR-138, 2000 Scott-Emuakpor, No. v. Hargus, 128 686; v. States p. see also United 2000) (sei (W.D.Mich, Jan. Cir.1997) (seizure WL (10th 1358, 1363 F.3d permissible where warrant zure of off-site rea filing for later cabinets computer files" "certain authorized through all impractical to sift where sonable necessary perform the could not and officer denied, site), cert. records on on-site); United (1998); these files to locate 140 L.Ed.2d Hunter, F.Supp.2d v. States Shilling, 826 F.2d United States seizure (affirming the wholesale Cir.1987) (seizure filing cabi-

15§ computer computer authorized a search and apartment. equipment on of that Al- though grounds the affidavitfailed to include informa- simply impractical that it often is computers site; search recognizing tiоn magistrate from which the could inde- computers extremely pendently vulnerable to tam evaluate the affiant's identification pering, destruction; hiding, apartment and stating and N302 as the defendant's resi- dence, technology that "until and law under enforcement the cireumstances of this case omission expertise was understandable and not so computer render on-site records searching possible egregious both practical, and as to whole render official belief in the seizures, adequately probable sale if existence of safeguarded, cause unreasonable. occur"); Finally, Sissler, must United present here, States v. cireumstances No. 1:90-CR-12, (W.D.Mich. 1991 WL 239000 laptop five discovered in the 1991) defendant's closet reasonably likely were Aug. (concluding computer contain warrant, items functions as a identified in container for written "ree- and ords," holding their seizure reasonable for officers was authorized the warrant. Therefore, seize district court subsequent dises for order suppressing everything performed seized from the at de- another location by computer expert). residence, fendant's including laptop the five computers, reversed, and the case is re- fact, In the more problem substantial manded for proceedings further consistent may properly arise is limiting a search of the opinion. this contents of a lawfully computer, is not at issue here. See In Subpoena re MARTINEZ, J., dissents, and HOBBS and Tecum, Duces F.Supp. 13-14 BENDER, JJ., join in the dissent. (S.D.N.Y.1994) (quashing subpoena as too Justice MARTINEZ dissenting: broad noting technical methods of nar rowing search of data to balance majority holds that the search warrant privaсy in irrelevant documents intertwined issued in this authorizing case a no-knock with relevant sought by documents govern search does not violate the Fourth Amend- ment); Raphael Winick, Searches and Sei ment. reaching result, In majority Computers zures Data, Computer reasons that probable the absence of cause in Harvy. J.L, 75, 78, & Tech. particular affidavit for a apartment is Here, merely the officers seized and invento insignificant, perhaps believe ried the computers subsequent for a supplemented by infor- pursuant second, to a more detailed warrant. mation in the search warrant form submitted At least where the executing judge. to the approving After a no-knock search warrant authorizing the affidavit, search based on a deficient written typically materials composed, sent, majority powerful holds that complex received, or stored on a personal computer, computer equipment may be seized because and the executing actually officers had found it is included in the printed term "written or written materials the defendant's resi particularly material" described in the war- seope dence within it was rant. reasonably likely apparently operable view, my In the failure of the affidavit here personal computers also found at that resi provide specific cause to search a dence would contain similar materials or grave apartment unaccepta- created the their equivalent. functional Seizure of the ble risk that uninvolved persons, innocent computers was therefore authorized who live in the building indicated warrant. affidavit, mistakenly subject- would be ed addition, to a no-knock search. In even IV. when the the search warrant sum, issuing magistrate pre- form, presented which was judge sented specific request with a possible for a warrant signature, improperly considered to search 8161 Madison Apartment Avenue together with the proba- there is no N302, and signed the warrant specifically he ble cause to incriminating believe that evi- L. apart- particular in the may be found dence Finally, the in the warrant. specified ment ruling trial court's People appeal the The printed computers as "written apart- found at the suppress certain items to protected interests privacy violates material" Gall, the defendant. of Michael ment home Accordingly, Amendment. by the Fourth resi- search of the defendant's In a no-knock I dis- areas where three critical there are documents, items, including dence, numerous majority reasoning of the the agree with compo- desktop computer writings, various opinion. nents, laptop computers, were five suppress items re- to Gall moved seized. mag- required that a First, always have we residence, arguing that the from his moved partic- to probable cause find istrate prob- failed to articulate supporting affidavit of the the four corners within apartment ular items and that the for the search able cause issuing a warrant. before supporting affidavit beyond scope of the search the seized were simply does not case in this The affidavit warrant. specific and to search a probable cause state This deficient affida- apartment. identifiable majority forth the information The has set apart- an supplemented with vit cannot repeat it I do not in detail and in the affidavit description exteri- of the and a ment number information abundance of There is an here. inexplicablyappears that apartment addition, or of the residence Gall's implicating Gall. magis- issued the in warrant place the search where implicated as a specifically permit. trate, majority appears to firearms, as the that including at least one kept Gall possess. him illegal for have been would Second, majority that reliance the believes in affidavit related only reference The unreason- is not upon deficient affidavit computer print- five-page computers is to exception to good faith and satisfies the able the address of one that contained out rule, exclusionary perhaps because weap- to some of supervisors, references supplemented permit that affidavit ons, many very disturbing remarks. form in the search the information investiga- However, affidavit states However, judge. that was submitted paperwork in "a box printout tors found information the search even if the Byron Dorethy, a co-worker belonging to" together with improperly considered appeared to be Gall's, printout and that information that combined deficient by him. produced than at Gallrather directed probable cause believe provide fails to that the a statement The affidavit contains specified is the particular apartment probable cause that sufficient feels "Lalffiant defendant, it was where apartment of the issu- to the court for the presented has been incriminating would bе likely evidence 664 Tantra of a search warrant ance found. descrip- contains a The Drive." Third, different computers are given by the the Tantra Drive location tion of kind, I degree writings, from both such the residence. No visited officer who authorizing the seizure that a warrant believe given description is about statement or specifically. state so should building the search was apartment where computer and the of a Both seizure ultimately conducted. separate and computer's data body in the only information The privacy. of individual intrusions serious is a state- apartment affidavit about Gall's Therefore, seizure permitting the a warrant advised the affiant had been ment include measures computers mus' at 8161 that Gall resided another officer comput- subsequent search of direct the been Madison, information had and that this designed protect in manner er's data body telephone book. from obtained properly intermingled that is not indicate the affidavit does search, subject building, apartment an location is Madison Gall's, majority building agree I do not Because informationwas obtained. or how such areas, respectfully I dissent. in these critical margin In the bottom page, of each in a probable there was no cause to associate the body affidavit, smaller font than the of the laptops any five alleged eriminal activi language "Search Warrant: 3161 Madi- ty. N802," appears any explanation. son without

We have before regarding us no information IL. put who that information on the they may so, when have done or where the matter, As a threshold I observe that there information was obtained. question is no that the affidavit shows that probable there is illegal cause to believe that In suppression hearing, the same firearms judge be found in who had Gall's residence. earlier issued the warrant However, question before us is different: found that the pre- affidavit was insufficient whether the probable affidavit shows cisely cause descrip- because did not include the apartment support tion of the complex address as an the search warrant issued for specific apartment and the apartment number. This N302 at 3161 Madison. Accord- judge explained ingly, that I begin my analysis "[blecause the affidavit with a discussion apartment does not link alleged N802 to the principle probable established that crimes, issuing an judge could not make an specific place cause for the to be searched independent probable determination that must be established within the four corners cause property listed on of the affidavit. To determine whether the existed to search the the face of the cause, judge affidavit warrant." The probable demonstrates further I do explained that the affidavit was deficient be- initially analyze the information con- cause it identify particular failed to unsigned tained in the and unsworn search apartment in way such a as to assure that presented Thus, warrant form judge. to the executing "an officer the warrant could with I conclude that the affidavit fails to establish reasonable effort ascertain identify probable cause to specific apart- search the apartment place as the correct to search." However, ment authorized in the warrant. I judge alsо commented that "it was for- next consider the unsigned information tuitous correct was together with the affidavit I searched." majority may believe that the have improper- ly unsigned relied on the warrant. I con- subsequent hearing, the trial court clude that even with the addressed the computers1 seizure of the warrant, probable cause is still not estab- found at Gall's residence. The trial court did request so lished to People specific apartment, search that so that this N302. subsequent issue could ap be addressed on

peal if the trial court's determination of no probable cause was reversed. At this hear A. ing, the trial court comput indicated that the A search may only upon be issued ers were not mentioned as items to be seized showing probable cause, "supported by there was no nexus affirmation, oath particularly describ laptop computers between the suspected conduct, ing place searched, criminal computers persons to be were not and the subject things writings, warrant as and there seized." U.S. Const. amend. IV; presented II, § no evidence see support also Colo. Const. art. 7. When a notion computers reviewing contained in court examines a search warrant formation relevant suspected valid, the erimes after the fact to determine if it was that court must assess whether the the Accordingly, warrant. the trial court concluded that provided must also a "substantial basis" for the conclu suppressed sion that be ground cause ‍​‌‌​‌​​​​​‌‌​​​​‌‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌​​‌‌​​​‌​‍existed. Illinois v. on the additional ruling by Thus, 1. The oral the trial only court on this issue laptops case. the five seized are at specifically laptop computers addressed the five issue here. However, of the issues analysis during the execution of the search war- applies equally laptop involved to both and desk- rant sup- because the defendant did not move to top computers. press desktop computer components in this of the information the source Gates, upon because U.S. unknown. completely Ran (1983); People v. see L.Ed.2d 527 (Colo.2000). The Unit 4 P.8d dolph, sup- affidavit must corners of the The four requires prob Supreme Court ed States incrimina- to believe that probable cause ply warrant must a search cause for able particular in a ting could be found evidence in the affidavit. by information established here, the affidavit must so place. To do 705, 719, Karo, U.S. States See United believingthat 8161Mad- basis establish (1984)("IIlf 3296, 530 82 LEd.2d 104 S.Ct. Although home. is Gall's ison Avenue N302 presented was untainted evidence sufficient to enough information provides the affidavit probable to establish affidavit in the warrant reasonably magistrate be- to cause a neutral valid."); cause, nevertheless the warrant illegal could be found firearms lieve that 465, 474, Powell, 96 S.Ct. 428 U.S. v. Stone residence, kind provide not it does Gall's (1976)(rejectingpeti 3037, 1067 49 LEd.2d information that and detailed specific per police should be contention tioner's magistrate to determine allow would information contained supplement mitted to located. While residence was Gall's where warrant). We for a search affidavit in an personally affiant that the the affidavit states require interpreted this consistently have discover- officer who had spoke another that, determining probable in ment to mean in Boul- lived at 8161 Madison ed that Gall the informa cause, is limited to magistrate apartment number der, specify an it does not the four corners of contained within tion given is an that the address indicate or even 481; Peo Randolph, 4 P.3d at See affidavit. building. only The detail apartment (Colo.1998). 481, Meraz, 483 961 P.2d ple v. apartment number evidences the potentially read that courts should not mean This does 3161 Warrant: inclusion of "Search is the manner, but hypertechnical in a affidavits margin each in the bottom Madison N302" rather, logic to determine use should no other There is page of the affidavit cause is established. probable not whether or suggests specific provided that information 102, Ventresca, v. States See United should be searched. apartment (1965). 109, 741, 684 13 L.Ed.2d to the are entitled Apartment dwellers against un protections constitutional analysis same leads Amendment Fourth persons liv and seizures lawful searches unsigned search war that an clear conclusion Ar family People v. ing single in homes. signature, rant, judge for presented to a 1248, 432, 434, nold, 1249 509 P.2d 181 Colo. cause, probable but to establish not be used (1973); People Avery, v. 173 Colo. see may only [an] "on affidavit issue instead (1970). 310, 319, The P.2d 312 478 judge." affirmed before to or sworn related that an (2000). in Arnold Allowing affidavit examined 16-3-302, § 6 CRS. forms, signed informant which are not that the defen told officers search warrant drugs, illicit affiant, possession in support dants were by inade or sworn drugs at specific informant had observed exceptionfor a broad quate creates affidavits lived in the defendants Ogden, and that contrary require affidavits deficient manager's apartments; particular that "no two in the Colorado Constitution ments apartment 3 at 2018 No. probable apаrtment, ... ... shall issue without warrant Arnold, re cause, by oath or affirmation 509 P.2d at supported Ogden. 181 Colo. at Arnold, evi suppressed the II, § we 7. 1249. writing." Const. art. Colo. duced searches, holding that not case was unsigned in the dence infor in, that the although the affidavit related to, incorporated reference attached marijuana "speed" some the mant observed affidavit, is not verified and thus building Ogden, the at 2018 P.2d where People Campbell, affiant. See any specific indication give failed at (Colo.App.1983)(documents multiple-occupaneystruc in that as to where incorporated reference tached to Thus, affi drugs the four corners of located. fall within were an affidavit ture the facts from to relate sufficient affidavit). failed information that davit Simply put, the prob- issuing magistrate could find relied form cannot be in the warrant appears able cause to believe drugs unsigned revealed. The warrant and affida- located within each of the apart- defendant's vit cannot establish cause to search ments. Id. at 509 P.2d at 1250. An apartment N302 without merely provides affidavit that probable cause connecting apartment Gall to N8302. apartment search an apartment an The majority that, concludes despite the house will not support suffice as for a war- affidavit, deficient the exclusion of evidence rant particular to search a unit. See discovered in reliance on the search warrant Seigure Wayne LaFave, R. Search and A in this case was improper. In reaching this Treatise on the Fourth 8.7(d), § Amendment conclusion, the majority apparently relies (8d at 386 ed. 1996 Supp.2001). & upon unsigned together casе, In this the affidavit did identify with the good looks to the faith Madison as an building, exception as detailed in United States v. Leon, it also specifically failed to U.S. apart- 104 S.Ct. 3405 state which ment was Gall's. The inclusion Claiming of error, "Search minor the majority holds Warrant: 8161Madison N802" in margin the that the deficient, warrant was not so nor of the affidavit is of no assistance. any There is was there suggestion of misbehavior nothing in the the magistrate, explaining put such that the exclu who this information in margin the or when it sionary rule should have been invoked. may have put been there. marginal This Thus, the majority holds that good under the faith exception appear does not to in exclusionary rule, body the the the performed search the affidavit hardly and can pursuant to the warrant regarded be Moreover, here was constitutional. verified the affiant. apart- ment number in margin the is not associated good Under doctrine, the faith the exclu- any way Thus, with Gall. because the four sionary sanction should not applied unless corners of the affidavit did not reveal that an affidavit lacking is so proba- indicia of apartment Madison is an building, nor ble cause that officialbelief in its existence is that specific N302 is a apartment within that Leon, unreasonable. 468 U.S. at building, magistrate a neutral could not have S.Ct. 3405. I do not believe this case falls had sufficient facts to probable establish good under the faith exception to the exelu- cause to issue a search warrant for that sionary rule. For the reasons outlined particular apartment. Accordingly, I must above, I believe that the affidavit lacked conclude that the affidavit fails to establish probable indicia of cause tо the extent that probable support cause to the search warrant official belief in its existence was unreason- apartment issued for N302. my view, able. In even improperly when relying upon information in unsigned the

B. warrant, search it is unreasonable to believe probable that Thus, The cause existed. majority appears good the rely upon to the exception faith unsigned does not allow the search unreason- warrant to determine that able search and probable seizure here. While cause apartment existed to search However, application of the N302. even exelusionary when we improperly may rule lead to the undesirable result of losing consider evidence information in unsigned that guilt tend to show a serious information, together with the case, disturbing I believe we are bound to information in does not demon- apply the law and affirm the trial court's strate cause to apartment search suppression of the N302. evidence. The conjunction warrant viewed in with the affidavit provide any does not basis TIL to believe that Gall's is number N302. The merely warrant deciding After that the describes apart- search of apartment building and the exterior apart- ment constitutional, N802 was majority ment N802. It does not associate Gall with holds language that the in the warrant autho- specific apartment. addition, In rizing the search of printed "written or mate- source of information in the warrant is not sufficiently rial" is particular to include com- People describing another. a warrant under is based conclusion majority's The puters. (Colo.1986). In Hart, P.2d v. es computer is determination on its Amend the Fourth comply with ordеr Thus, writings. storage device sentially a specify must ment, warrant a search computers seizure majority allows particulari with sufficient seized items the sei only authorize warrants

when the discretion nothing left to is ty, so writings.2 zure of People v. warrant. executing the officer insuffi- here was view, the warrant my P.2d Lindholm, 197 Colo. the seizure justify cient the warrant case because in this seized evidence Computers question of whether The computers. writings, not sought ultimately seope of the within than versatile complex and more far are seized, signifi- items purpose their the substance writings and turns mere the item. United attached the label not storing just a container from cantly different 984, 988 Hill, authorizing States such, writings. As added). Fifth Cir sufficiently Cir.1994)(emphasis writings was the seizure stubs check whether re-We in Hill considered computers. cuit to include particularized warrant seek under properly describe particularly a warrant quire found journals, and disbursement ing to avoid cash in order things be seized purpose, same items served both in the seizure inherent privacy harm to running ac search. subject of a maintained not the both items that disposition of the and traced are balance computers if count not served is purpose This Thus, Fifth the Id. Finally, account. sought. out of that cash writings are when seized were check stubs the concluded intermin- are Circuit objects to be seized the when dis the cash equivalent the functional are objects that other gled with therefore journals, and measures search, special bursement subject aof the warrants.3 under properly material. seized unrelated protect to required and sei- the search Therefore, I believe too determining a warrant whether In specifically au- must be computer zure of particularity met the properly or has general, such and that warrant in the search thorized to be property of the the nature requirement, to direct measures include must a warrant Lindholm, 197 must be considered. seized computer's data. aof subsequent search Here, 1035. 275, P.2d at 591 Colo. this war under property nature of A. comput important, since particularly rant nature, special raise ers, unique by their par describe must warrant A search pro computers Because concerns. privacy and searched place to be ticularity the effects, they and information personal U.S. Const. seized. cess things to be or persons under protection heightened require II, § 7. The art. IV; Const. Colo. amend. unreasonable against Amendment Fourth is to requirement particularity purpose Winick, Raphael Staton, or seizures. searches People v. general searches. prevent Computers and Mary (Colo.1996)(citing and Seizures 127, 131 Searches P.2d 75, 80- Data, Tech. J.L. & 8 Harv. Computer Garrison, land particu (1994). raise "[Clomputers also pur Another 1013, L.Ed.2d 72 versatility." of their larity concerns thing of one the seizure prevent is to pose premises occupier possessor of or show the language in the search complete 2. The vehicle. and is: printed material or Any all written and dissented, arguing check stubs judge 3. One concerning examples or provides instructions cash dis- equivalent of functional are not firearms, ammu- or use of production interpretation journals, and that bursement [incendiary devices nition, [elxplosive or and were, scope of expanded the improperly they printed mate- or Any all written parts. particulari- in violation the search physical harm to do an intent which shows rial C.J., (Politz, dis- requirement. Id. at 991-92 ty any person or damage against physical senting). Any or materials building. documents Hunter, United States v. F.Supp.2d The intentional deletion of a file does not (D.Vt.1998). The Tenth Circuit has ree- permanently erase the file See Andrew Johnson-Laird, ognized Smoking Guns storage capacity that the comput Spin Disks, ning requires Computer special approach No. 8 ers Law. *5 to searches of computer files. Carey, See United States v. (Aug.1994). Instead, computer internally Cir.1999)(police needed, marks the file as not and clears scope space exceeded storage of search warrant for com of other files. Id. The puter drug files related erasure of only information transactions when occurs when the computer officer found pornography child files overwrites the file with and con another then, file. Id. fragments tinued search Even obtaining without additional warrant). explain may In order why be if retrievable entire file is not overwritten. Id. Furthermore, the nature of at *5-6. requires spe- such a processing word approach, programs clalized generally may I have saved discuss com portions or puters versions of regardless documents and then consider how differ of whether the user writings intentionally from saves the writings. containers of

final version. Thus, general, a file or document B. not be removed from the hard drive of a until However, discussion, it is reformatted. I describe some of many then, may functions and even computer. possible uses of a I partially explain that a recover doсuments or stores or access- files removed from a data, es programs utilizes process drive, hard depending on how the drive was present Further, reformatted. that data in potential a useable fashion. for de leted material drive, stored on a hard Probably the most common function of a with or without saving by intentional computer is its processor. use as a word user, is not limited to processing word docu Generally speaking, word processing pro- ments, applies but programs other grams that, assemble data printed, when computer functions of a as well. See United may be considered a document of one form Upham, (1st States v. or another. When a intentionally user saves Cir.1999)(discussinggovernment's spe use of document, such a computer the stores infor- utility program cialized previously to search mation that gather it can process and to images computer); deleted United States reproduce Thus, the document. in this limit- Scott-Emuakpor, v. 1:99-CR-188, No. sense, computer ed a is similar to a contain- *3, WL at 2000 U.S. Dist. LEXIS er, in that it has capacity the reproduce to 3118,at "6 (W.D.Mich.2000){notingthat com writings from information that it has stored. puter analyst was able to previously restore deleted files from computer during search of However, aspects other of processing word pursuant warrant); contents to search programs very just different from a con- Commonwealth v. Copenhefer, 526 Pa. tainer writings are intentionally (1991)(warrant 587 A.2d 1354-57 autho example, stored. For processing pro- word rizing computer sufficient grams generally provide for retention of contents, including deleted materials deleted documents. Most word proсessing drive). on hard programs bin, use some recycle form of a into which documents are transferred when computer A may also function as a trans- Thus, computer deleted. is also like a mail, mitter of electronic or e-mail. E-mail wastebasket of discarded material. In order transmissions, aspects which combine of cor- attempt respondence permanently phone delete such conversa- doeu- recorded ments, recycle bin emptied. tions, must be present special privacy issues. See However, emptying even recycle may bin Loundy, David J. Computer E-Law4: Infor- actually not Systems mation delete the document or file be- System Law and Operator still remain on the Liability, 21 Seattle Univ. LR. cause the information computer's hard drive. (1998) [hereinafter In addition to e- a server over, computer could in use to- computers most capabilities, mail a network. computers on use rais- other Internet access. internet day have magnitude due complex issues es com- appearance Finally, physical ability to available, (CPU), information unit processing central puter, or its computer, onto information such download it is in which manner not reveal does computer's storage within well as as majority indicates example, For used. on the a user visited sites memory of the along with five computers, desktop two internet. during the were seized computers, laptop How- here. the search execution functions these various Computers serve desktop that a ever, suggests record databases to access using programs during was seized with two CPU's presenta- in a useful information assеmble warrant. the search execution horizontally structured ais A database tion. components of various appearance outward infor- integrated collection vertically employed. reveal how not does Safier, Between Seth data. See or mation physical unlike a is way, a Privacy Line: Bottom and the Big Brother objects held container, types of where 6, 151 & Tech. 5 Va. J.L. Cyberspace, Instead, comput- apparent. may be inside in- also collections Programs are provides no infor- appearance outward er's organized formation, information but may be what extent of regarding the mation Programs computer. instructions through otherwise accessible stored inside com- information are the and databases computer. may access computers store, although puters for data- programs computers for complex other discussed Having generally con- Databases id. bases. See on their commented computers and nature of information array of uses, a vast tain I next con- functions multitude manner. useful particularly in a organized mere writ- differ from how sider sort, process, organize, are used to Programs ings and containers. in various display information modify, and C. id.; generally see See presentations. useful Background Adm'r Court State Info. something limited nature writing is A (Colo.1999)(discussing Servs., 994 P.2d writing is produced. A already been that has of court database complexities of state-wide visible to letters of ideas expression "Itlhe raised issues privacy potential records and ob- an outward giving of eye. The data, protect- when releasing even bulk contract, will, etc., by mеans jective form to database). If from is deleted ed parch- upon paper, placed marks letters or from a da- actually produced are documents Black's ment, substance." material or other and in differ, in form tabase, may both they ed.1990). (6th A com- Dictionary 1609 Law contain, from of information the nature from a writ- fundamentally different puter is intentionally may have a user any document of its writings, because a container ing, or stored. array of information vast to hold a capacity network, forms, sort, process, to part of a many may also be different Computers database, provide to in a data transfer essentially an extension is which e-mail, and to via for communication sys a means computer in each individual contained A internet. any given user computers, connect is a series A network tem. ‍​‌‌​‌​​​​​‌‌​​​​‌‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌​​‌‌​​​‌​‍variety a wide comprised of wires, may be computer or data telephone usually linked via information, including but not personal from resources to access often used most documents, finan- E-Law4, processing supra, to word computer,. See limited another records, electronic records, business may cial Networked 1077-79. previously paths, mail, access internet expand programs. Networks share these differ- Because materials. sending deleted use, to include computer's range of a many raises computer ences, of a the seizure ma e-mail, between direct communications pertain to might beyond those files, issues sharing transferring chines, or writings. mere More- at 1077-80. downloading Id. files. example, seizing record);

For computer may a in- Reyes, United States v. privacy trude into thе Cir.1986)(cassette interests of individuals tape subjects other than the record). intended due to e- seized as mail particular transmissions to and from a While these support cases the notion that computer. Similarly, when a networked pagers tapes and cassette may analyzed be computer subject search, may to a law, under container it does not follow that

possible to examine comput- interactions with this reasoning apply computers, should ers that being are networked to the one pager since both a and a tape cassette are Moreover, computer searched. the use of a functionally computer. different from a Un- to access the internet also raises issues re- computer, like a pager both a and a cassette garding potential computer, of that tape contain a finite amount of information of as the hard drive stores information about type limited apparent from the by internet sites that have been visited nature of the device. Therefore, the user. comput- the search of a majority The also cites United States v. implicate er privacy could concerns of many people specific Musson, who did not use a com- F.Supp. (D.Colo.1986), puter physically, but in fact used such com- support computer its view that is the func puter electronically. Furthermore, equivalent tional writing. Musson, the sei- diskettes, computer oc zure of a computer may disrupt networked curred in approved part under a war all or of a network and interfere many other users. authorizing rant "any the seizure of records writings showing whatsoever nature Aside from the clear differences between a any business or financial transactions." Id. writing computer, analogy that the Only at 581. computer diskettes were seized majority applies, considering computers as Musson, and searched in comput not entire simply writings, containers of is not warrant Moreover, ers. produced diskettes notes, ed container majority law. As the earlier, very were of limited ca likely containers to hold items in a described pacity and bear little resemblance modern may be seized and searched high-powered computers or even to modern pursuant warrant, to a valid search long so Musson, disks. The rationale in as the type containers within which was based specific on the detail in the which the might items named in the warrant compared computer diskettes D.F.L., reasonably be found. In re 931 P.2d tapes. cassette I do not find Musson useful (Colo.1997). Despite complex ato consideration of the issues raised computers, majority nature of applies the full-scale computer. seizure of a computers, container rule to reasoning the container already expanded rule has been majority The support also looks for in a nature, intangible to include items of an such line holding of cases that seizure of contain phone pager, numbers recording on a or a ers sought believed to hold items a search on a tape. cassette premises be removed from the majority cases cited apply in order to later search the contents. These approved analysis cases have pagers such seizures where container and cassette tapes not, my opinion, do provide support searching premises may the contents on the expansion for the further analy of container impractical be due to the volume of materials computers. sis to eg., See United States v. seized, or the potentially extensive time re Meriwether, (6th 955, 917 F.2d quired contents, through to search the or Cir.1990)(seizure of the defendant's tele when a search of the contents at the site is phone number from person's pager another impossible due to resistance of individuals valid); Gomez-Soto, United States v. present 723 eg., at a search. See United States (9th Cir.1984)(a 649, (10th F.2d 655 Hargus, Cir.1997); microcassette v. 128 F.3d 1358 (4th "by Shilling, very United States v. 826 F.2d 1365 recording nature a device information," 1987) properly 4; and was Johnson, seized as a Cir United States v. 709 Shilling, 4. In the Fourth Circuit noted its relue- tance to allow removal of file cabinets from the 164 lawfully and disks computer hard drives Cir.1983); v. United States 515 F.2d warrant, since (S.D.N.Y.1980). scope the of within

Abrahams, F.Supp. 310 493 without look- for files dispense with not search police could do not Generally, these cases Hunter, disks); ing through state hard drives a warrant requirement (warrant authorizing Rather, F.Supp.2d 574 things seized. 13 particular com- things computers, de all of of all subsequent search and seizure search concern warrant, devices, computer soft- and all storage particularity puter scribed warrant, sufficientlyparticular- purview systems, was not clearly ware within good computers, but of allow seizure properly seized. ized to execution of applied to save exception faith majority Nonetheless, contends sufficiently limit- warrant con to cases analysis extended has been language of the the brоad to overcome ed citing to computers, of cerning seizure warrant). 532, v. States F.3d United 168 Upham, (11th Cir.1991), Schandl, Scott F.2d 462 ma- contrast, support does In Sissler Dist. 2000 U.S. Emuakpor, 2000WL Sissler, 1991 WL jority's view. See Hunter, 13 Stissler, v. States United LEXIS 16465. LEXIS Dist. 1991 U.S. (D.Vt.1998), States and United F.Supp.2d 574 computer concluded court the district 1:90-CR-12, Sissler, 1991WL No. properly seized computer were and a disks (W.D.Mich. LEXIS 16465 Dist. 1991 U.S. looking for of a warrant during the execution Sissler, 1991). these exception of With transactions, as- records of drug of "records that a proposition support do not cases marijua- of proceeds purchased with sets off a later search computers for seizure identifying mar- transactions, and records na by a search warrant is authorized site Id., 1991 suppliers." ijuana customers In computers. include specifically does not *1, Dist. LEXIS 1991 U.S. at WL 239000 stead, that seizure cases maintain these justi- further The district court at *7. cir required under some computer prac- considerations the seizure under fied the search to facilitate order cumstances "4, Id., ticality. 1991 WL au specifically a warrant when its contents *12. 16465at Dist. LEXIS U.S. comput and seizure of thorizes the search First, only it is I not follow Sissler. would Upham, 168 F.8d generally er. See decision, court a district authored one (warrant and seizure authorizing search val- precedential Michigan, with no judge in hardware, disks, and software, computer Second, limit- reasoning in Sissler is ue. specified to allow drives sufficient proposition states the simply in that it ed comput premises of items, where search Finally, in analysis. little adopts, with that it materials, er, previously deleted including into view, not take simply does my Sissler (warrant Schandl, feasible); F.2d 462 computers. nature of account the cоmputer authorizing and seizure array of the vast devices, Accordingly, because of and main disks, memory storage functions, materials, processing specified, of items frame sufficient for seizure contained scope of information been immeasurable would have premises search on since much, much computers, a removing items from disruptive than more merely a container of documents subsequent more than thorough, premises for more Therefore, writings. the search search); 2000 WL Scoit-Emuakpor, sei- authorizing the search and (ander in this case Dist. LEXIS sufficiently particular- files, writings is not zure of records, including all seeking by sealing the documents be avoided stating "we tions can subject premises to a search warrant. obtaining an additional easily wholesale removal condone the cannot Circuit Shilling, at 1369. The Fourth covered documents not file cabinets and legitimate were however, that there concluded, More Shilling, F.2d at 1369. warrant." prompted the removal of practical concerns that over, approval the Circuit noted the Fourth not based v. Tamu in United States cabinets, and the seizure Circuit's decision the file Ninth fishing expedition. engage a (9th Cir.1982), intent in ra, suggesting that on an F.2d 591 Thus, Circuit held the Fourth sorting intermingled Id. at 1369-70. are so when documents lawfully Id. seized. feasible, had been that the documents viola- Amendment Fourth site not is ized computers. to include A "writing" perilous is step a supporting argument an simply particular enough not computer may to warrant a a be both seized and searched person reasonable to conclude general that it includes under a warrant authorizing only the and seizure "writings." computer writing because a computer and a fundamentally are two things, different both computer Because a analogous not to a degree in in and kind. It is unreasonable to container, the computer seizure of a should computer conclude that a is the "functional analyzed not be under the container rule. In equivalent" writing. The Fourth fact, the law review article cited the ma- protect Amendment serves to citizens from jority supports position, this specifically ar- unreasonable searches and seizures the guing application of container law to U.S, government. IV; Const. amend. Colo. computers improper simplifies II, Moreover, § Const. art. 7. Fourth inappropriately recognize fails to the dis- analysis Amendment regarding the search tinctions between a mere container and a computers ap- must be computer. Winick, supra, See at In 88-89. proached cautiously narrowly because of article, argues Winick that courts should important privacy the concerns inherent in apply special doctrine that has been devel- computers, the nature of and because the oped by jurisdictions, at least two addressing technology in rapidly this area is growing the "intermingled problem, document" Here, changing. the seizure of the de- computers. Id. 104. computers fendant's under the search war- intermingled The problem document arises rant at issue was unreasonable. when subject documents to lawful search or seizure intermingled private with other D. subject documents not to search or seizure. The majority suggests that computers Id. The intermingled problem document has may writings, be seized as taking without been respect addressed with large volumes into complexity account computers, only, computers. However, materials regarding because issues the search of the reasoning adopted prob- address this computers' lem, contents need not be addressed in specifically government can Here, this case. violating police avoid the Fourth obtained a subse- Amendment quent prior search warrant to actually sealing holding pending documents searching the contents of the comput- magistrate's approval of a search, further However, ers. majority's under the analysis, should be extended to searches. computers may be writings Tamura, seized as See (govern F.2d at 595-97 based on an examining interest the con- ment can violating avoid Fourth Amendment tent writings.5 of those logical The implica rights by sealing documents pending issu majority's tion of approach is that ance of search detailing further contents of a computer may explored. search); be Shilling, (regard 826 F.2d at 1369 Therefore, by analogizing ing cabinets, to a file government adopt should writings, container of majority has procedure taken outlined Tamura and re- agree majority 5. I with the question that the sought guidance superiors regard- from his proper whether a objective seizure was is one of ing laptops. whether to seize the testimony This subjec- reasonableness, and is not based on the suggests searching suspected that the officer tive executing intent of an officer a warrant. laptops believing were stolen instead of that the States, 128, 138, Scott v. United computers subject were to seizure under the lan- not, however, 56 L.Ed.2d 168 I do guage Moreover, of the search warrant. if the agree majority's reading with the of the record. computers were seized because the officer majority computers credits the seizure of the thought writings, then it is unclear "unchallenged" this case to the testimony of why police necessary found it to obtain a searching suggests officer and that the offi- subsequent search warrant for the contents. In- subjective knowledge cer's correspondence stead, if the believed computers that the regarding and internet searches bomb materials writings, could be seized as likely they it seems prompted found on Gall's thought they would have then "look" could at the fact, computers. seizure of the the record writings by searching comput- contents that the same indicates officer testified that he ers. thought it was laptops, unusual that Gall had five search, which is warrant). avoiding general thereby a Although subsequent search

quire with not decided Fourth Amendment. Shilling were prohibited Tamura cases of these computers, both respect IV. materials, and rec- large of volumes involved by warrants authorized ognized that searches Amendment, a search the Fourth Under Amendment Fourth raise serious nonetheless probable cause unless not issue warrant Therefore, special limitations. issues without of an affida- the four corners stated within is article, pro- cases, along with Winiek's these Thus, prohibits Fourth Amendment vit. unique and handling guidance vide unsigned, un- in an the use of respect raised important issues warrant to show sworn computers. involving and seizures searches did not in this case The affidavit cause. magistrate for a evidence provide sufficient have addressed cases More recеnt probable cause searches that there was are raised to determine unique problems that Further- any apartment. limita suggested specific have to search computers, and of warrant possible more, are both if the information searches even tions on such along affi- may be with the example, improperly considered necessary. searches For apart- showing that searching davit, files not included no there was limited to avoid it was "observing types specified was the one where files ment in the key might directory, doing incriminating a evidence be likely that in the titles listed terms, reading warrant did Consequently, the search found. for relevant word search issue, memory." here was in the and the search properly file stored not portions of each trial 1276; affirm the also United I would see unreasonable. Carey, 172 F.3d 1143, 1147-48 the evi- suppression order because Campos, court's States (10th Carey pursuant that lim to the search warrant Cir.2000)(agreeing with found dence of an unconstitutional scope product searches of itations cireumstances); Win under certain search. proper

ick, supra, at 107. addi- Additionally, if the affidavit contained sufficiently supported con- tional information computers, I would regard to With warrant, I would hold requirement the search particularity clude the warrant should computers seized under protect rigorous in order to more should be here The search warrant suppressed. intrusion. governmental against unreasonable searching could seize officers specified that Thus, warrant seek- require I a search would materials, comput- any printed equip- written or computers or ing to seize language in the search warrant items. ers. specify that it covers such ment sufficiently particular to include Moreover, inherently personal here is not computers, I wholesale seizure computers, complex nature of highly than complex and versatile are much more must include the warrant also believe Computers not be writings. should of mere subsequent search direct the measures to concept writings Thus, specifi- included within could computer. a warrant a merely containers regarded as computer's con- should not be cally direct the search Instead, support an affidavit in writings. specific require a more or it could tents for the seizure search. of a warrant prior such requesting clearly specify that it is 112; Winick, Davis v. should see also supra, at 108 Moreover, computers. Cir.1997)(sepa- the seizure Gracey, F.3d authorizing search warrant of contents required for search rate warrant specify whether a search of computers should pur- computer seized computer files where authorized or warrant). computers' is also data requirement This suant to search necessary. inter- whether second warrant uses the separate search warrant of a protect privacy concerns model, properly order mingled documents doctrine computers, complex nature of inherent scope of the search it limits the computer's data to search specifi- authorization to that which is computer's contents intru- search so as to avoid direct that should in the additional cally indicated intermingled sion into information that is not subject Accordingly, ‍​‌‌​‌​​​​​‌‌​​​​‌‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌​​‌‌​​​‌​‍of the search. I suppression affirm the trial

would court's seized. BENDER, JJ., join

HOBBS

dissent. DeHERRERA,

Elizabeth as mother and DeHerrera,

next friend of Lucas

minor, Petitioner, COMPANY,

SENTRY INSURANCE

Respondent.

No. 99SC379. Colorado,

Supreme Court of

En Banc.

April30,2001.

Case Details

Case Name: People v. Gall

Court Name: Supreme Court of Colorado

Date Published: Mar 5, 2001

Citation: 30 P.3d 145

Docket Number: 00SA101

Court Abbreviation: Colo.