*1 ju- of and ments,-the Accordingly, because boards education legislative, executive judicial per- hearing nor officers dicial;and person collection of neither officers no or responsibility for hir- powers primary of have teacher charged with the exercise sons retention, depart- in belonging ing, of their school properly to one these dismissal districts, any power properly appeals of be af- exеrcise the court cannot ments shall others, Nonetheless, as except actions belonging to either of the firmed. the Board’s or expressly upheld directed it can be in this constitution cannot be unless review are permitted. determined that Board’s conclusions of to dis- consistent with notice intent power from the improper transfer of The miss. a viola- appeals to the court effects Board powers distribution of doctrine. tion authority exercise not have
Courts do legislative powers. See General
executive or Co., 469, 50 at 390- 281 U.S. at S.Ct.
Electric
91; Hufnagel, Kort
(Colo.1986). termi- The to retain or decision judicial public is not a
nate school teacher not power and therefore is one Colorado, PEOPLE State ability expertise to exer- courts have the nor Plaintiff-Appellant, power grants A a court the cise. statute judgment,” choosing be- its to use “own supports, tween two decisions that record Jr., Daniel ROCCAFORTE Michael S. or empowers political court resolve Petroleum, Roccaforte Martin policy and thus makes public matters Inc., Defendants-Appellees. political actor-the an- the ultimate judgments be of how court should titheses No. 96SA52. political Unlike arbitrators exercised. Colorado, Supreme Court branches, upon are to make courts called En Banc. genesis have their a rec- rulings that will principle provide product ognized legal June intellеctually reasoning that that reflects politically Legal rea- coherent and neutral. judg-
soning appeals’ should bind the court nonjudi- ability not the to exercise
ments and subscribe, effect, to power. I
eial cannot
authority that violates the distribution III provisions of Article of our state
powers
constitution.
IV sum, cannot agree appeals
In I the court of However, remand affirmed. whether on otherwise, Heimer, a Jan teacher service,
twenty-five years of dis- cannot be reviewing long the Board as as the
missed any irregularity” record.
court “finds
Here, the did include the record not stаtuto- Notice; hence,
rily required cannot dismissal out in with the
be carried accordance 22-63-302(10)(c), addition,
Act. section (1995), separation pow-
C.R.S. violates doctrine of the
ers Colorado Constitution. *2 Norton, Attorney General, Stephen
Gale A ErkenBraek, K. Deputy Attorney Chief Gen- eral, Timothy Tymkovich, M. Solicitor Gener- al, Dailey, Deputy Attorney John Daniel General, A Gillespie, Terrence First Assis- General, tant Attorney Radetsky, Steve As- General, Attorney sistant Special Prosecu- Unit, Section, tions Criminal Enforcement Denver, Plaintiff-Appellant. Budd, P.C., Aurora, Budd, Rick Rick Roccaforte, Daniel S. Jr. P.C., Berger, Berger,
Robert S. Robert S. Denver, for Michael Roccafortе. in MPI’s not accounted for motor Opinion of was delivered KOURLIS Justice department. filed with the She tax returns the Court. arranged with Daniel Roccaforte to audit interlocutory brings this prosecution 21,1995. returns on June MPI’s fuel 16-12-102(2), 8A appeal pursuant to section *3 (1986), challenging the and 4.1 C.A.R. C.R.S. 21, however, the defendants had By June ob- suppressing order evidence trial court’s their business and had moved closed down Defendant Daniel searches of tained from records to Daniel Rocca- MPI’s business storage space of a and Roeeaforte’s residence storage to a rental forte’s residence and Petroleum, Inc. by Martin rented Defendant space. Consequently, the audit was not con- Roccaforte, Jr., Michael Daniel Defendants Agent gain could not ducted because Shaw Petroleum, Inc. were and Martin Roccaforte July 7, Agent On to MPI’s records. access theft,1 conspiracy,2 filing false charged with to the Criminal In- Shaw referred case returns,3 evasion,4 and failure to tax tax the Tax and vestigation Section of Audit pay taxes.5 truthfully account for and over Depart- Division Compliance Colorado all suppress evidence moved to Defendants assigned was to ment of Revenue. The case by authorized search obtained from searches Agent Floyd O. Leonard. Department to the Colorado warrаnts issued 29,1995, July Agent appeared Leonard County On Agents by the Larimer of Revenue County the Larimer Court to obtain before war- trial found that the Court. The home warrant for the of Daniel one search particularity require- rants failed meet storage for the and another rental Roccaforte to the Unit- of the Fourth Amendment ment space. support In the submitted in affidavit hold that Constitution. We warrants, Agent Leonard sufficiently particular searсh warrants were that the defendants believe scrutiny under constitutional withstand collect, willfully failed account for and had Accordingly, re- we the facts of case. special pay gasoline and over Colorado suppression order and the trial court’s verse Department of These tax to the Revenue. proceedings con- the case for further remand by Agent supported allegations were Shaw’s opinion. with this sistent department rec- preliminary investigation I. by relocation of MPI’s and defendants’ ords avoided audit. The records which business Petroleum, 1993, Inc. Prior to June Martin authorized searches for: issued warrants (“MPI”) had been a wholesale fuel distribu- place of business principal tor its with including registers, and books records [A]ll by Dan- MPI was owned 60% Fort Collins. delivery slips, journals, bills ledgers, Anna, wife, Dan- iel Roeeaforte’s 40% invoices, orders, purchase purchase lading, son, Michаel Roccaforte. iel Roccaforte’s checks, bank deposits, of bank records Daniel, Anna, in the all worked and Michael statements, identification deposit safe box business. leases, information, contracts, correspon- reg- dence, wage withholding Department photographs, April, Colorado statements, returns, isters, tax financial Agent conducted Karen Shaw Revenue contracts, orders, worksheets, billing work department preliminary rec- examination funds, invoices, records of transfers MPI’s state fuel in an effort to reconcile ords related documents had other business liability amount fuel it tax with the name(s) Petroleum, of Martin Inc. January period distributed Anna Roccaforte February Daniel Roccaforte Jr. 1992, through 1993. period 700,- Roccaforte for June tax for or Michael that the over Shaw determined 30,1993. 1,1991 through June period gallons of fuel distributed (1994). 39-21-118(1), (1994 l(2)(d), C.R.S. Supp.). §4. 16B §1. 8B C.R.S. 18-4-40 18-2-206, (1986 8B & §§ C.R.S. 2. 18-2-201 аnd 39-21-118(2), (1994). C.R.S. §5. 16B Supp.). 39-21-118(4), (1994). § 16B C.R.S. 1986), Cardwell, Agent Leonard stated in affidavit that his United States (9th Cir.1982), these records and support documents were seizable F.2d of its hold as material evidence of a crime. He stated ing. pertinent that the items would be to a com- Lastly, dealt the trial court with the issue putation of the Colorado fuel not truthful- tax Exception of whether the Good-Faith ly reported and would be used demon- requirement applied. Citing dictum willfully strate that the defendants acted Leon, in United States v. 468 U.S. required by the relevant statutes.6 (1984), S.Ct. L.Ed.2d the court Upon depart- issuance of the Exception that the held Good-Faith did not agents, along ment from officials apply general, because the warrants were *4 Department, Fort Collins Police conducted executing “all records” and the offi- warrants searches of Daniel Roccaforte’s home and of reasonably they could not cers have believed storage space. During
the of the search the Thus, finding were valid. the fa- warrants residence, computer equipment printouts and cially light in of the defective Fourth Amend- connected with MPI’s were business discov- ment, the court all ordered the evidence 30, ered July but not seized. On suppressed. from seized the searches We again appeared county Leonard the before disagree with the trial court’s conclusions. court and obtained a third search identically adding worded to the but first two II.
“electronically stored data” the list to of things preponderance to be seized. The of The Warrants Clause of the Fourth ultimately items seized of boxes consisted of Amendment states that a warrant “par must computer equipment documents and with ticularly persons things ... the describ[e] data for the then defunct MPI. to be seized.” U.S. Const. Amend. IV. The ruling In its on defendants’ motions to primary particularity function of require the evidence, suppress the the trial court con of ment the Warrants Clause is to ensure were, cluded that the search warrants in government that searches are “confined effect, court, “all records” warrants. The scope particularly described re evidence Lewis, (Colo. citing People v. 710 1110 P.2d lating specific to a crime is there App.1985), stated that “all records” warrants probable demоnstrated cause.” v. Voss are available when of “evidence the al 402, (10th Bergsgaard, 774 F.2d 404 Cir. leged arguably crimes would permeate the 1985). policy requirement The behind the is landscape” entire financial of the business. prevent conducting “gener officers from a case, In this the trial court that found the al, exploratory rummaging person’s in a be allegations of fuel tax fraud were narrow in longings.” Coolidge Hampshire, Newv. 403 scope implicated only part a discrete of 443, 467, 2022, 2038, U.S. 91 S.Ct. 29 L.Ed.2d Accordingly, the defendants’ business. it (1971). principal 564 The of means effectuat reasoned that the search warrants should ing requirement suppress is to all evi have narrowly. been drafted more Since “all overbroad, seized gen dence an justified records” warrants were not under Christine, eral warrant. United States v. circumstances, the court held that (3d Cir.1982). F.2d 757 an warrants allowed overbroad search vio latiоn of the Fourth Amendment. States, Marron v. United 275 U.S. 74, 76, (1927)
Further, 72 L.Ed. response prosecution’s to the frequently forth argument sets the most parts that cited rationale overbroad severed, particularity requirement: warrant should be the court held “The re facially quirement that particularly since the warrants that warrants shall were invalid things due to of particularity, gen their lack describe the to be seized doctrine makes salvage impossible severance could not them. eral searches under them cases, prevents cited two Ninth thing Circuit United the seizure one under (9th Spilotro, States v. describing F.2d 959 Cir. warrant As is another. to what supra 6. See notes 1-5. question they dispositive whether
taken, left the discretion nothing is sufficiently particularized to be valid. lauda executing the This warrant.” officer impractical, tory goal proven somewhat has appropri An “all warrant is records” however, point at some because there is believe ate where executing must exercise officer search encompasses the en crime language applying judgment her his or operation and that evidence will tire business premises to be to the the warrant most be found in or all business documents. LaFave, Wayne R. Search See searched. 1104, 1110 Bentley, 825 F.2d United States Fourth A Treatise and Seizure: (7th Cir.1987); People v. Lewis 710 P.2d (3d ed.1996). 4.6(a) Amendment, § 551-52 (Colo .App.1985). In Thus, prac have turned to more the courts disagree fraud. alleged crime is fuel tax We description in a tical standard: whether the trial court’s conclusion that al sufficiently it en particular encompassed only part leged a small fraud reasonably as executing officer to ables the the defendants’ business. identify things authorized certain and (1994), 39-27-102, 18B C.R.S. Section F.2d Leary, States v. seized. United 39-27-202, (1994), impose section 16B C.R.S. (10th Cir.1988); United fuel, gas special taxes on the sales of *5 (10th 750, 752 Cir. Wolfenbarger, 696 F.2d respectively, which are collected at various 1982); Wuagneux, F.2d 683 United States v. points during transactional transfer fuel Noble, (11th Cir.1982); 1343, People 1348 v. refinery the consumer from the market. (Colo.1981). 203, 209 635 P.2d Thus, potentially every impli- fuel transaction tax. consist- cates the Since MPI’s business A. transactions, the we find that fuel war tax, fraud, that the alleged widely Defendants contend and hence the was general ease “all records” throughout opera- rants this were implicated MPI’s business par entirely fail to meet the warrants which not the This is a case where fraud tion. ticularity Amend requirement of the Fourth only portion to a alleged was limited such, Roche, that all argue As ment. defendants See United States v. 614 business. Cir.1980) (where war (1st seized to the alleged of the evidence 6 fraud F.2d correctly trial suppressed insurance, was only rants pertained to auto warrant scope, “all certainly broad in court. While authorizing seizure of all records of diversi- automatically broad); fail do not records” warrants company was too In fied insurance particularity requirement because “the Lafayette Academy, Application 610 re (1st Cir.1979) (where quantity of items in a search warrant alleged listed 1 F.2d fraud during quantity documents, seized or the of items only loan pertained student necessarily not execution of a warrant doеs authorizing of all business seizure . validity broad). any bearing on the of the academy have of the was too documents Tucci, People v. 179 Colo. search itself.” Further, argues many prosecution that (1972). 375, 815, 373, P.2d 816 500 warrant, in the while of the documents listed many may seized “It is not how items discrepancies, tax not direct evidence validity a search. that determines they may be linked to the crime because against general exploratory The rule willful and thе defendants’ inten- relate to against quantity, nor not aimed searches is agree. pay the taxes. We tional failure protect property quanti- designed to even making ruling, the trial court fo- its When but, instead, pre- tatively, designed to revenue only on the materials the cused seizures searches and vent indiscriminate unpaid compute agents need to would privacy.” that invade prosecu- taxes. It did not consider that only required prove not Id., Anglin v. tion was (quoting at 816-17 500 P.2d Institution, taxes, Director, unpaid the defen- but also 439 F.2d amount of Patuxent Cir.1971)). government. (4th Thus, To agree dants’ intent defraud while we 1342 case, docu- essentially prosecution needed prove its at issue were that warrants directly showing that the defendants finding is not ments “all records” 804 trate, officer, pay the and also
failed to
tax
documents
rather
than the
determined
showing,
example,
for
unpaid
where the
what
towas
be seizеd.” United States v.
Thus,
(3d
funds were transferred.
the Christine,
749,
Cir.1982).
while
687 F.2d
753
nature,
warrants
this case
broad in
were
permissible.
we find
their breadth was
C.
B.
complain
Defendants further
support
argument
In
of their
that the
the warrant
its face
not even
did
limit the
broad,
warrants were too
defendants cite
search to documents which are connected to
Cardwell,
(9th
United States v.
because
knew
it
documents
4.6(a)
§
*6
558.
since the affida
it
previously
needed since
had
an
conducted
incorporated
warrant,
vit was
into each
a
part
audit as
investigation.
on-sitе
of the
reading
common sense
of the two documents
Cardwell,
Justice acting pursuant cer lawful by probable and were join “supported I in Justice Kourlis’s well-reasoned Nonetheless, I or as judgment majority. not overbroad defective.” оpinion and states, govern- opinion emphasize Justice Kourlis’s separately write Maj. op. search, here, good at ment faith. place which took was conducted demonstrated Barring faith, misrep- 12-13. It is Leonard a obvious under warrant. bad resentations, stay the confines of each illegal part attempted on within or conduct officer, warrant, discovering potential magistrate police upon issuing or the yet an- defiсiency, appropriately he obtained “properly is the evidence obtained admissible Furthermore, the officer act- ‘good ex- other warrant. under a limited constitutional faith cause, despite the fact exclusionary People ception’ rule.” things 816. 500 P.2d at seizure of 179 Colo. If search resulted fraud, being actually seized is used none of the evidence unrelated to fuel tax then such evidence This, however, prove аny prosecution than other crime properly suppressed. has no Tucci, bearing validity fuel tax fraud. of the warrants. that a better crafted warrant would have
provided greater particularity, the officer reasonably conducting
acted the search. faith, good purposes
Given the officer’s exclusionary would rule not be fur- officers, by discouraging general,
thered carrying
from out their tasks to later have evidence excluded magisterial
because of It error. would if rulings discouraged po-
unfortunate
lice from seeking authority officers aof purposes for the of a search houses, persons, papers,
seizure of ef-
fects.
COLORADO DEPARTMENT OF REVE-
NUE; Tipton, J. John in His Official Ca-
pacity as Executive Director of the Department Revenue;
Colorado Buchanan,
Amelie A. in Her Official Ca-
pacity Deputy Director of the Department Revenue,
Colorado Peti-
tioners,
WOODMEN OF THE WORLD and/or Association,
Assured Life
Respondents.
No. 95SC15.
Supreme Colorado, Court of
En Banc.
July 1, 1996.