RECEWED

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JACOBS CHASE FRICK
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Certification o or ‘5 ,

SUPREME COURT, STATE OF COLORADO a COURT USE ONLY a

Colorado State Judicial Building
2 East Fourteenth Ave., Fourth Floor Case Number: 09SC341
Denver, CO 80203

Colorado Court of Appeals

Case No. 09CA0796
Weld County District Court
Honorable James A. Hiatt, District Court Judge
Civil Action No. 2009-CV-100

Petitioners:
AMALIA CERI{ILLO; LUIS NORIEGA, on
behalf of himself and as class representative; JOHN
DOE, on behalf of himself and as class
representative; FRANK DOE, on behalf of himself
and as class representative; ROBERT DOE, on
behalf of himself and as class representative;

v.

Respondent:
KENNETH R. BUCK, in his official capacity as
District Attorney for the Nineteenth Judicial District;
JOHN COOKE, in his official capacity as Weld
County Sheriff,
Attorneys for Respondent Kenneth R. Buck:
Lisa Hogan, #14 132
Richard P. Barkley, #17161
BROWNSTEIN HYATT FARBER
SCHRECK, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202-4437
Phone: 303-223-1100; Fax: 303-223-1111
Email: rbarkley@bhfs. corn;
lhoganbhfs.com

Attorneys for Respondent John Cooke:

David R. Brougham, #1950
Thomas J. Lyons, #8381
HALL & EVANS, L.L.C.
1125 Seventeenth Street Suite 600
Denver, CO 80202-2052
Phone: 303-628-3300; Fax: 303-628-3368
Email: lyonsthallevans .com;
broughamdhallevans.com;

OPENING BRIEF OF APPELLANTS-RESPONDENTS

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 TABLE OF CONTENTS

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TABLE OF AUTHORITIES iii

ISSUES PRESENTED FOR REVIEW 1

STATEMENT OF THE CASE 1

A. Nature of the Case 1

B. Course of Proceedings and Disposition Below 1

STATEMENT OF FACTS 2

A. Background on Identity Theft 2

B. Colorado’s Identity Theft Statute 3

C. The Investigation of Evidence of Identity Theft at the Business 4

D. Obtaining the Waifant 6

E. The Search 7

PROCEDURAL HISTORY 10

SUMMARY OF THE ARGUMENT 12

ARGUMENT 13

I. INTRODUCTION 13

II. THEAFFIDAVIT AND SEARCH WARRANT SATISFIED THE

REQUIREMENTS OF THE UNITED STATES AND COLORADO
CONSTITUTIONS 15

A. The Search Warrant Was Based on Probable Cause 16

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B. The Warrant Properly Described in the Place to Be Searched and the

Things tO Be Seized 18

II. THE COURT’S RULING THAT THE WARRANT DII) NOT MEET THE
REQUIREMENTS OF THE CONSTITUTIONAL PROVISIONS WAS
ERRONEOUS 20

A. The Ruling That Probable Cause Requires identification of Specific

Individuals is Contrary to Fourth Amendment Law 21

B. Probable Case Does Not Require Identification of Specific Files 22

C. The Court’s Imposition of a Heightened Specificity Standard Because

the Business Was Not Suspected of Criminal Conduct Was Error 25

D. The Warrant’s Authorization to Seize and Search the Business’

Computers and Electronic Equipment Was Not Overly Broad 27

III. THE COURT ERRED IN HOLDING THAT THE SEARCH WAS

“UNREASONABLY OVERBROAD AS TO THE 5,000 FILES” 30

A. The Sheriff Did Not Exceed the Scope of the Warrant by Performing a
Cursory Review of All of the Business’ Files 30

B. The Sheriff Appropriately Conducted Its Sorting Off-Site 33

IV. EVEN IF THE WARRANT WERE OVERLY BROAD, THE COURT

ERRED IN ORDERING THE RETURN OF ALL MATERIAL 38

A. The Remedy for an Insufficiently Particular Warrant is Return of the

Evidence Seized Improperly, Not a Return of All Evidence 39

B. The Remedy for an Overly Broad Seizure Is Generally Limited to the

Suppression of Items Outside the Warrant’s Scope 40

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CONCLUSION .41

111
 TABLE OF AUTHORITIES

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FEDERAL CASES

Ark. Chronicle v. Murphy,

183 Fed. Appx. 300, 306 (4th Cir. 2006) 18

Andresen v. Maryland,
427 U.S. 463 (1976) 31

In re Grand Jury Subpoena (Under Seal),

920 F.2d 235 (4th Cir. 1990) 23, 25

United States v. Abboud,

438 F.3d 554 (6th Cir. 2006) 22-23

United States v. Barker,

623 F. Supp. 823 (D. Cob. 1985) 27

United States v. Conley,

4 F.3d 1200 (3d Cir. 1993) 32

United States v. Davis,

226 F.3d 346 (5th Cir. 2000) 22

United States v. Fitzgerald,

724 F.2d 633 (8th Cir. 1983) 39

United States v. Foster,

100 F.3d 846 (bothCir. 1996) 40-41

United States v. Hargus,

128 F.3d 1358 (lOthCir. 1997) 35, 40

United States v. Harris,

903 F.2d 770 (l0thCir. 1990) 22-23

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United States v. Hayes,

794 F.2d 1348 (9th Cir. 1986) 24-25, 31

United States v. Hill,

459 F.3d 966 (9th Cir. 2006) 18, 36-37

United States v. Majors,

196 F.3d 1206(11th 1999) 22

United States v. Riley,

906 F.2d 841 (2d Cir. 1990) 23-24, 31

United States v. Santarelli,

778 F.2d 609 (11th Cir. 1985) 34-35

United States v. Schandi,

947 F.2d 462 (1 lth Cir. 1991) 35-36

United States v. Shilling,

826 F.2d 1365 (4th Cir. 1987) 35

United States v. Slocum,

708 F.2d 587 (11th Cir. 1983) 31

United States v. Tamura,

694 F.2d 591 (9th Cir. 1 982) 31-32,41

United States v. Tehfe,

722 F.2d 1114 (3rd Cir. 1983) 27

United States v. Upham,

168 F.3d 532 (1st Cir. 1999) 35

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Zurcher v. Stanford Daily,

436 U.S. 547 (1978) 21, 26-27

STATE CASES

K1inenstein v. State,
624 A.2d 532 (Md.App. 1992) 40

People v. Alameno,
193 P.3d 830 (Cob. 2008) 19-20

People v. Ball,
639 P.2d 1078 (Cob. 1982) 16

People v. Eirish,
165 P.3d 848 (Colo.App. 2007) 39

People v. Gall,
30 P.3d 145 (Cob. 2001) passim

People v. Miller,
75 P.3d 1108 (Cob. 2003) 16

People v. Reed,
56 P.3d 96 (Cob. 2002) 16

People v. Roccaforte,
919 P.2d 799 (Cob. 1996) 19

People v. Schmidt,
473 P.2d 698 (Cob. 1970) 18

People v. Slusher,
844 P.2d 1222 (Cobo.App. 1992) 22

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People v. Staton,
924 P.2d 127 (Cob. 1996) 28

Tattered Cover, Inc. v. City of Thornton,

44 P.3d 1044 (Cob. 2002) 27

vii
 ISSUE PRESENTED FOR REVIEW

Whether the search and seizure of records from the office of an

unincorporated tax preparation business violated the rights of either the business

owner or her clients under the Colorado or United States Constitution.

STATEMENT OF THE CASE

A. Nature of the Case

This case concerns the constitutionality of an authorized search of — and

seizure of records from — a tax preparation business (“Search”) with the trade name

of Amali&s Translation and Tax Services (“Business”). After the Weld County

Sheriffs Office (“Sheriff’) uncovered information that the Business maintained tax

records for customers that showed they were using social security numbers

(“SSN”) that were stolen or otherwise did not belong to them, the Sheriff obtained

and executed a search warrant (“Warrant”). Evidence from the Search showed that

several hundred of the Business’ customers possessed, and were using, false or

stolen SSNs.

B. Course of Proceedings and Disposition Below

More than three months after the Search — and after the District Attorney for

the Nineteenth Judicial District (“DA”) had obtained indictments against more than

100 individuals — Amalia Cerrillo, the Business’ owner (“Cerrillo”), and three
unidentified customers of the Business (“Customers”), filed an action in Weld

County District Court (“court”) against the DA and the Sheriff The complaint —

which sought declaratory and injunctive relief — alleged that the Search violated

the Fourth Amendment to the United States Constitution and Article II, § 7 and

25 of the Colorado Constitution.

1

After a hearing on a motion for a preliminary injunction, the court granted

the requested preliminary injunction.

STATEMENT OF FACTS

A. Background on Identity Theft.

Identity theft has been described as the fastest growing crime in the United

States. In 2005, approximately 8.3 million Americans were victims of identity

theft. Identity Theft Victims Rights: Hearing Before the H. Oversight and

Government Reform Comm., 111th Cong. (July 17, 2009) (statement of Jason M.

Weinstein, Deputy Ass’t Att’y Gen. of the United States). By 2008, that number

had increased twenty-five percent, to 10 million. (RI.) The direct financial losses

‘Although Cerrillo and the Customers referred to Article II, §7 and 25 of the
Colorado Constitution in their complaint, they did not contend that the analysis
under those constitutional provisions differed from the Fourth Amendment
analysis. Accordingly, the DA and the Sheriff treat the state and federal
constitutional provisions as coextensive here.

2
from identity theft — without considering indirect costs and damage — are ‘in the

billions of dollars.” (Id.)

Identity theft has been a pervasive problem in Colorado, and, particularly in

Weld County. In 2007, the last fhll year before the Search at issue here, Colorado

ranked eighth per capita among the fifty states in the number of identity theft

complaints; Federal Trade Commission, Identity Theft Victim Complaints Trends

by State, January 1-December 31, 2007, http://www.ftc.gov/bcp/edu/microsites/

idthefi/downloads/cy2007/statemap.pdf and the Greeley, Colorado metropolitan

area had the second highest number of identity theft complaints per capita of any

metropolitan area in the United States. Federal Trade Commission, Consumer

Fraud and Identity Theft Complaint Data January — December 2007 (Feb. 2008)

http ://www.flc.gov/sentinel/reports/sentinel-annual-reports/sentinel-cy2007 .pdf.

B. Colorado’s Identity Theft Statute.

To combat identity theft, the federal government — and forty-nine of the fifty

states — have enacted criminal statutes prohibiting identity theft. See, e.g., National

Conference of State Legislatures Identity Theft Statutes & Criminal Penalties,

(2007) http://www.ncsl.org!?Tab1d12538. In Colorado, the General Assembly

3
enacted C.R.S. § 18-5-901 through 905 in 2006,2 which makes it a class four felony

to:

Knowingly use[] the personal identifying information of another

...

without permission or lawfUl authority to obtain cash, credit, property,

services, or any other thing of value or to make a financial payment;

Knowingly possess[] the personal identifying information of another

...

without permission or lawfUl authority, with the intent to use or to aid

or permit some other person to use such information or device to
obtain cash, credit, property, services, or any other thing of value or to
make a financial payment; ...[or]

Knowingly use[] or possess[] the personal identifying information of

another without permission or lawfUl authority with the intent to
obtain a government-issued document.

C.R.S. §18-5-902(1)(a), (b), (e) (2008 Pocket Part).

C. The Investigation of Evidence of Identity Theft at the Business.

In August 2008, the Sheriffs Office learned from a detainee, Servando Trejo

(“Trejo”), that evidence of identity theft was likely in the possession of the

Business. According to Trejo, when he entered the United States, he purchased a

SSN and name. [Trans.No.23477721, Affat3.] The Business prepared and filed

tax returns for him. (j4.) The Business requested from the Internal Revenue

Service (“IRS’) an Individual Tax Identification Number (“ITIN”) for Trejo, using

2
C olorado has also enacted C.R.S. § 18-5-113, which prohibits Criminal
Impersonation. The Affidavit stated that evidence of both crimes existed at the
Business.

4
his real name. When the Business received the ITTN, it filed tax returns using

Trejo’s real name and ITIN, but attaching the W-2 forms with his false name and

SSN. (Id.) Trejo stated that he had used the Business to file returns for several

years, and that “recently [it had] started E-Filing his tax returns.” Trejo said that he

learned through “word of mouth” that the Business would assist illegal immigrants

using false identities in filing tax returns, and that it was widely known within the

community that illegal immigrants could “go to [the Business] for their taxes.”

(IdjThe Sheriff conducted a consensual search of Trejo’s residence and found

“several tax returns filed by [the Business], an advertisement for the [B]usiness and

receipts Trejo paid for the tax services.” (Id. at 4.))These documents corroborated

the information provided by Trejo.

Subsequently, an agent with the Colorado Department of Revenue, Stephen

Bratten, interviewed Cerrillo about the Business’ practice of filing tax returns for

illegal immigrants. Cerrillo said that the Business “knowingly prepar[ed tax

returns] for individuals who are undocumented workers/illegal aliens.” (Id.)

Cerrillo acknowledged that “with this type of client, almost all of them provide her

with wage information W-2/l099 with a [SSN] that belongs to someone else.”

(Id.) Cerrillo stated that “generally on the wage document W-2/1099 she w[ould]

cross out the fake name and SSN and input the real information before sending it

5
in.” She also confirmed that she retained “a copy of the [client’s] tax returns, wage

information, W-7 form and their real picture ID.” (Id.)

Bratten told the Sheriff that it was possible to file tax returns electronically

(as Trejo had said was being done) even though the person to whom the ITIN had

been issued was different from the person to whom the SSN had been issued.

at 5.)Detective Ford, a specialist in “forensic examinations of digital devices,”

expressed the opinion that the tax returns and related documents stored on

computers could not “be readily accessed at the location the computer is seized

from.” (Id. at 6) Rather, any computers would “need to be removed and processed

in a forensic laboratory setting.” (RI.) “Processing the computer on scene,”

Detective Ford warned, “may result in an incomplete examination and could result

in destruction of data present on the media.” (j4.)

P. Obtaining the Warrant.

Based on its investigation, the Sheriff concluded that probable cause existed

that the Business possessed evidence of multiple instances of identity theft. The

Sheriff prepared an Affidavit for Search Warrant (“Affidavit”) [Trans.No.

23477721], seeking to search the Business and seize (a) all tax returns for 2006 and

2007 “in which the ITEM name and number d[id] not match the wage earnings

documentation;” as well as paper and electronic documents related to those tax

6
returns; and (b) computer systems, computer equipment, computer storage devices,

and documents relating to use of the computers. On October 16, 2008, Judge

Marcelo Adrian Kopcow authorized the search warrant.

E. The Search

On the morning of October 17, 2008, officers employed by the Sheriff

served the Warrant on Cerrillo and conducted a search of the Business.

[Trans.No.25967467, 2Tr.89:2-8.]
3 When they arrived, Cerrillo and others were

moving furniture, equipment, and supplies from the office because she was

“remodeling.” [Trans.No.25967467, 2Tr.89: 11.] Cerrillo stated that she was

“extremely concerned about [Sheriff officers] being present in her office” because

“she would start losing clients.” [Trans.No.25967467, 2Tr.89:21-24.] Cerrillo told

the Sheriff that if they gave her “a couple of days,” she could “go ahead and sort

them [the files] out.” [Trans.No.25967467, 1 Tr. 129:17-18.]

The Sheriff was unwilling to wait “a couple of days” to complete the Search.

Instead, the officers responded that the Search would be completed more quickly

“if she could identif’ where the 2006 and 2007 files were.” Cerrillo said she could

not do that because her files were arranged alphabetically, not by year. [Trans.No.

25967467, 2Tr.90:20.] Cerrillo identified a file cabinet where “most of [the 2006

3
T he March 9, 2009 Transcript is cited as lTr.; the March 10, 2009 Transcript is
cited as 2Tr.; and the April 13, 2009 Transcript is cited as 3Tr.

7
and 2007] files might be.” [Trans.No.25967467, 2Tr.90:20-23.] Cerrillo also

identified files and file cabinets in the basement that contained tax records. The

files were not well-organized; in the words of Detective Noonan, “Everything was

just in complete disarray.” [Trans.No.25967467, 2Tr.91:l3-25.] Although it

“looked like somebody tried to put them in alphabetical order ... for the most part

they were not in alphabetical order.” [Trans.No.25967467, 2Tr.92:7-9.]

Afier surveying the files to be searched, the Sheriff determined that because

of the perceived disruption of the Business:

[T]he reasonable thing to do would be to remove the items from the

office .... Rather than locking down her putting her out of business
—

for several days ... to complete the search warrant, we would remove
all the files and boxes, complete the search at the Sheriffs Office and
then return the documents to her as quickly as possible.

[Trans.No.25967467, 2Tr.94:7-15.] The Sheriff packed up 49 boxes — between

4,000 and 5,000 tax return files for somewhere between 650 and 750 people — from

the Business. [Trans.No.25967467, 2Tr.96:23-98:ll.] The boxes of files were put

in a locked room at the Sheriffs Office, and when that space was hill, in a locked

closet next door. [Trans.No.25967467, 2Tr.98:18-24.]

The Sheriff then conducted a cursory review of each individual file to

determine whether it fell within the scope of the Waifant. Officer Noonan

described the process as follows:

8
 Q. ... What did you do to be able to look at these files?

A. We would look at the tax return documents, the 1040 or 8879

form, and if it [had] an JuN number on it, then we would look
further into it to see if there was any tax years that fell within the
scope of the warrant.

Q. So let me see if I have the sequence right. You get a file. You
look to see is there a form in this file that would contain an
ITfN?

A. Correct.

Q. If you found a form that had an ITIN on it, you looked further?

A. Yes.

Q. What happened if you didn’t find a form that had an ITIN?

A. Went on to the next file.

Q. You quit the inquiry?

A. Yes....

Q. Was any copying of those files done?

A. No.

[Trans.No.25967467, 2Tr. 99:6-100:21.] According to Noonan, the review of the

paper documents took more than five days to complete, and the copying of files

with ITIN numbers took an additional “three or four” days. [Trans.No.25967467,

2Tr.lO0:22-101 :5; 2Tr.105:l-2.].]

9
 [T]hree computers, several CDs or DVDs and maybe some floppy disks”

were also taken from the Business, and delivered to the Sheriffs forensic lab.

There, the computers were imaged and then returned to the Business. Except for a

cursory review of the hard drive, no search of the computer files occurred.

[Trans.No.25967467, 2Tr. 107:2-108:14.] The cursory examination revealed (a)

that tax records existed on the computers, although they could not be read without

the necessary software; and (b) the hard drives contained a customer list for the

Business. The customer list — which fell within one of the categories of documents

identified in the Warrant — was copied onto a CD and placed into evidence.

Otherwise, no search of the hard drives was conducted, and no evidence was

obtained from the computers.

4

PROCEDURAL HISTORY

On January 26, 2009, Cerrillo and four Customers filed this action. The

complaint sought a declaration that the Search violated the Colorado and the

United States Constitutions.

4
W ith respect to the storage media, the disks that were determined to contain
material unrelated to tax returns were returned to the Business without being
copied. The few disks that appeared to contain tax records were copied, and the
originals were returned to the Business. The information contained on those disks
was not searched.

10
 Cerrillo and the Customers also moved for a mandatory injunction directing

the Officials to turn over to the court “all materials seized” in the Search.

[Trans.No.23477721; Compl. 20-21.] A hearing was held on the injunction motion

on March 9 and 10, 2009. On April 13, 2009, the court ruled that the Search was

unconstitutional, and granted the injunction. The court held:

The warrant lacked particularity as to what was to be seized; that it

failed to identif’ or establish probable cause for a specific criminal act.
It was in fact a barebones general search. It was an exploratoy search
that was authorized by this warrant, and it was improper.... [T]he
affidavit established probable cause to believe that somewhere in [the
Business’] records, in the records of some customer, or customers we —

don’t know who and we don’t know how many — there would be
evidence of some crime by someone. There was not probable cause as
to a specific individual, as to specific files, as to a specific crime....
[To establish probable cause to search a specific customer’s file] there
would [have to] be [evidence] that that person or that person’s records
would substantiate the claim and would be in violation of the law.

[Trans.No.25967467, 3Tr.15:15-16:15.] The court also ruled that the search was

“unreasonably overbroad as to the 5,000 files. The warrant itself was overbroad to

the extent it dealt with computer and related records.” [Trans.No.25967467,

3Tr. 15:2-5.]

Subsequently, the DA and the Sheriff (“Officials”) appealed the injunction

ruling to the Court of Appeals. Cerrillo and the Customers responded by

petitioning for immediate certiorari review by this Court. The Court granted the

petition.

11
 SUMMARY OF THE ARGUMENT

In this case, substantial evidence existed that the numerous customer tax

files maintained by the Business contained evidence of the crimes of identity theft

and criminal impersonation. Despite this, the court ruled that the Warrant

authorizing a search of the Business’ files lacked probable cause because it was not

specific either to the individuals who committed the crimes, or to the files that

contained evidence of the crimes. The court held that such specificity was required

because there was no evidence that the Business’ owner had committed any crime.

The court’s probable cause analysis is contrary to well-settled law. The

United States Supreme Court has expressly rejected a more stringent probable

cause requirement because the person owning or possessing the material to be

seized is not guilty of a crime. The Court has similarly held that identification of

the culpable individual is not a requirement under the Fourth Amendment. And

numerous courts have held that a warrant is not required to have the specificity

required by the trial court with respect to the files in which the material to be

seized can be found.

The court also ruled that the Warrant was overly broad with respect to the

search of the Business’ computers and electronic storage devices. The court

misapprehended the Warrant. The seizure of the computers was necessary to

12
preserve and protect the integrity of the information, and thus was appropriate.

The search of the computers was limited to a search for the documents identified in

the Affidavit and Warrant and thus was equivalent to the search of the paper files

located at the Business.

The court also ruled that the scope of the Search was not authorized by the

Warrant because the Sheriff searched all of the Business’ files even though only

twenty-five percent of them contained evidence of identity theft. But when a

cursory review of a file is necessary to determine whether it falls within the

Warrant’s scope, it is permitted. Moreover, this Court has recognized, that such

files can be removed off-site to conduct such a review.

Finally, the court erred in ordering the return of all of the files. Even if the

Warrant, or the Search, were overly broad, absent a flagrant disregard of the

constitutional rights of Cerrillo and the Customers — which does not exist here —

the remedy is to suppress only the items that fall outside the permissible scope.

ARGUMENT

I. INTRODUCTION

No dispute exists here that the Affidavit supporting the Warrant contained

substantial, reliable evidence — from both Trejo and Cerrillo — that the Business

obtained ITII’4s, and prepared tax returns, for numerous customers who were using

13
SSNs belonging to others. The district court acknowledged as much, ruling that

Trejo had provided evidence “that not only he, but others who used [the tax]

service” of the Business “had filed taxes using ITIN[s] and possibly using [SSNs]

that did not belong to [Trejo], or in the case of the others, did not belong to these

bthers.” [Tran.No.25967467, 3Tr.8:21-9:1.]

Similarly, no dispute exists here that the use of SSNs by customers of the

Business who also obtained TINs almost certainly violated Colorado’s identity

theft and criminal impersonation statutes. Witnesses called by petitioners and

respondents alike agreed that an ITIN could only be obtained when an individual

did not have a valid SSN and that the fact that a tax return listed both a SSN and an

ITIN for a single taxpayer was prima facie evidence of fraudulent behavior.

[Trans.No.25967467; 2Tr.135:5-136:7; lTr.142:16-143:2; 144:15-23; 147:10:17;

2Tr.8:25-l0:14.]

Nonetheless, because neither the Business nor its owner was “suspected of a

crime” [Trans.No.25967467, 3Tr.12:2-3), the district court imposed a different,

heightened “specificity” standard for probable cause. [Trans.No.25967467,

3 Tr. 12:21-22.] Under this new standard, an affidavit would not only have to show

that the place to be searched possessed evidence of criminal conduct and,

nothwithstanding the fact that identity theft was the crime being investigated, it

14
also would have to show the identity of the person whose “records would

substantiate the claim and would be in violation of the law.”

In other words, a warrant to search the Business’ records could never be

obtained. Instead, a warrant could only authorize a search of files maintained by

the Business for a specific individual, and then only upon a showing that probable

cause existed that the specific individual had committed a crime and the file likely

contained evidence of the crime.

Neither the United States Constitution, nor the Colorado Constitution

mandates such detailed, specific, information for the issuance of a search warrant.

In fact, in the context of identity theft — which seeks to hide the true identity of the

perpetrator the specificity requirement that the district court seeks to impose

would be, as a practical matter, virtually impossible to obtain. Accordingly, the

Sheriff and the DA request the Court to reverse the district court’s ruling, and to

hold that the Warrant and Search complied with the Constitutional Provisions.

II. THE AFFIDAVIT AND WARRANT SATISFIED THE UNITED

STATES AND COLORADO CONSTITUTIONS.

The Constitutional Provisions protect individuals from unreasonable

searches and seizures by requiring a search warrant (a) to be based on probable

cause, and (b) to describe particularly the place to be searched and the person or

15
things to be seized.” People v. Gall, 30 P.3d 145, 149 (Cob. 2001). The Warrant

here meets these requirements.

A. The Search Warrant Was Based on Probable Cause.

A valid search warrant must be based on probable cause. The touchstone of

probable cause, however, is probability, not certainty. People v. Ball, 639 P.2d

1078, 1082 (Cob. 1982). The probable cause analysis “does not lend itself to

mathematical certainties or bright line rules; rather, it involves a practical,

common-sense determination whether a fair probability exists that a search of a

particular place will reveal contraband or other evidence of criminal activity.”

People v. Miller, 75 P.3d 1108, 1113 (Cob. 2003). Accordingly, probable cause

exists so long as an affidavit alleges facts that would lead “a person of reasonable

caution” to believe “contraband or material evidence of criminal activity [wa]s

located on the premises to be searched.” Ball, 639 P.2d at 1082.

“[T]he public policy encouraging warrants dictates that probable cause be

reviewed with deference to the issuing [Judge].” Gall, 30 P.3 d at 150. The

appropriate question for a reviewing court is “whether the issuing magistrate had a

substantial basis for issuing the search warrant rather than whether the reviewing

court would have found probable cause in the first instance.” Id.; see also People

v. Reed, 56 P.3d 96, 101 (Cob. 2002). Application of that standard here

16
establishes that the Affidavit — which contained information from multiple sources

that evidence of the crimes of identity theft and criminal impersonation was likely

to be found in the Business’ files — unquestionably provided “a substantial basis for

issuing the search wanant.” First, Trejo provided information that (a) he had

learned from “word of mouth” that the Business would assist him in preparing and

filing tax returns even though he was using the identity of another person;

(b) “everyone knows to go to [the Business] for their taxes;” (c) he provided the

Business with evidence of identity theft by him; and (d) the Business had recently

“started F-Filing his tax returns.” Second, documents located as part of a

consensual search of Trejo’s residence showed that the Business had filed, and

been paid to file “several tax returns” for Trejo. Third, Cerrillo acknowledged that

(a) she filed tax returns for immigrants who were working illegally in the United

States; (b) “almost all” of these employees provided her with wage records

containing a SSN “that belongs to someone else;” (c) she would obtain ITII’Js, and

then file tax returns, for the employees; and (d) she retained in her files evidence

showing (i) the true identity of these employees, and (ii) that they were using false

SSNs. Fourth, Agent Bratton established that tax returns with mismatched SSNs

and ITINs could be filed electronically, corroborating Trejo’s information that

17
recent tax returns would be found on the Business’ computers. This evidence, all

of which was contained in the Affidavit, was sufficient to establish probable cause.

B. The Warrant Properly Described the Place to Be Searched and

the Things to Be Seized.

The Warrant also satisfied the other constitutional requirements. First, it

described in exhaustive detail the “place to be searched.” It gave the address of the

Business and provided a very detailed physical description of the building.

[Trans.No.2347772 1 ,Warrant at 2-3.] Indeed, neither Cerrillo nor the Customers

challenged the adequacy of the description given of the Business’ location in the

trial court, and the district court did not rule that the description was insufficient.

Second, the Affidavit adequately described the “things to be seized.” As

numerous courts have recognized, “the necessary particularity for a search warrant

varies according to the circumstances and type of items involved. Also, built into

this standard is a practical margin of flexibility.” Ark. Chronicle v. Murphy, 183

Fed. Appx. 300, 306 (4th Cir. 2006); see also People v. Schmidt, 473 P.2d 698,

700 (Cob. 1970) (particularity requirement “should be given a reasonable

interpretation commensurate with the type of property sought to be seized”);

United States v. Hill, 459 F.3d 966 at 973 (9th Cir. 2006) (“A warrant describing a

category of items is not invalid if a more specific description is impossible.”).

Here, the Warrant satisfied the particularity requirement both with respect to the

18
documents that were to be searched, and the electronic equipment that was to be

seized. The documents to be searched were identified quite specifically. They

were (a) “tax returns filed with an Individual Tax Identification Number (ITIN) for

tax years 2006 and 2007 in which the ITfN name and number do not match the

wage earning documentation,” and (b) “Proofis] of identification,” “Receipts,”

“Contracts,” “W-7 Forms,” “Wage and tax earning documentation,” and “[a]l1

[other] documents associated with the ITIN tax returns.”

[frans.No.23477721,Warrant at 1 (category nos. 1-7).] Nor was there any

confusion, either by the Sheriff or by the Business, about the physical documents

that fell within the scope of the Warrant. When the warrant was executed, Cerrillo

was told that the Sheriff was seeking “files that [she] had in [her] offices which

related to mismatches of Social Security numbers and ITINs for 2006 and 2007.”

[Trans.No.25967467,2Tr.29:l3-l6.] Cerrillo then pointed out to the Sheriff where

the Business’ tax files were located. Thus, the Warrant was “sufficiently particular

in that it enable[d] the executing officer” — and the Business’ owner — reasonably

to “ascertain and identifi the things authorized to be seized.” People v.

Roccaforte, 919 P.2d 799 at 803 (Cob. 1996).

5
1 n the hearing, Cerrillo and the Customers contended that tax records for years
other than 2006 and 2007 were seized. Their seizure, however, was authorized by
the plain view doctrine because the Sheriff “had a reasonable belief that the

19
 The Warrant was equally specific as to the electronic equipment to be

seized. As explained in the Affidavit, because of the need to preserve electronic

information, the computers had to be seized and taken to a controlled environment

where they could be copied and searched for documents within the scope of the

Warrant. The Warrant identified as equipment to be seized as all (a) computer

systems, (b) electronic storage devices, (c) computer peripheral devices,

(d) computer programs and software, and (e) documents relating to the operation of

the computers. Again, both the Sheriff and Cerrillo were able to “ascertain and

identi& the things authorized to be seized,” id., and no confUsion existed as to the

computer equipment that fell within the scope of the Warrant.

II. THE COURT’S RULING THAT THE WARRANT DID NOT MEET
THE CONSTITUTIONAL REQUIREMENTS WAS ERRONEOUS.

The court ruled that the Waifant was constitutionally infinn for two reasons.

First, the Warrant was deficient because the Affidavit failed to establish probable

cause “as to a specific individual, as to specific files, as to a specific crime. •••,,6

evidence seized was incriminating.” People v. Alameno, 193 P.3d 830, 834 (Cob.
2008).

6
T he court’s assertion that the Affidavit fails to establish probable cause as to a
“specific crime” is baffling. The Affidavit identified specifically two crimes:
identity theft and criminal impersonation. [Trans.No.23477721,Aff. at 6.]

20
Second, the Warrant was “overbroad to the extent it dealt with computer and

related records.” Both rulings were erroneous.

A. Probable Cause Does Not Require Identification of Specific

Individuals Is Contrary to Fourth Amendment Law.

The court’s ruling that that the Warrant was unconstitutional because it did

not identify the specific individuals whose files contained evidence of crimes is

contrary to well-settled law. The Supreme Court held in Zurcher v. Stanford

Daily, 436 U.S. 547 (1978), that the identification of specific individuals in a

search warrant was unnecessary to satisfy the Fourth Amendment:

Search warrants are not directed at persons; they authorize the search
of “place[s]” and the seizure of “things,” and as a constitutional matter
they need not even name the person from whom the things will be
seized.... [A] search warrant may be issued on a complaint which does
not identify any particular person as the likely offender. Because the
complaint for a search warrant is not ‘filed as the basis of a criminal
prosecution,’ it need not identify the person in charge of the premises
or name the person in possession or any other person as the offender.”

Id. at 555, 556 n.6 (citations omitted).

Moreover, the court’s insistence on the identification of specific individuals

is especially untenable given that the Sheriff was investigating identity theft and

criminal impersonation. Those crimes necessarily include an attempt to hide or

falsify the identities of those customers using fraudulent SSNs. As Cerrillo

21
acknowledged, even if the Sheriff had specific W-2s, the names on them would not

match the names on her files. [Trans.No. 25967467, 2Tr.24:14-20.]

B. Probable Cause Does Not Require Identification of Specific Files.

The Constitutional Provisions also do not require an Affidavit to identify the

specific files that contain evidence of a crime. To the contrary, in a search of a

business’s records, a description of the categories of documents to be seized is

entirely appropriate. “Where the precise identity of the goods cannot be

ascertained at the time the warrant is issued, naming only the generic class of items

will suffice.” United States v. Abboud, 438 F.3d 554, 575 (6th Cir. 2006)

(quotation omitted); see also United States v. Davis, 226 F.3d 346, 352 (5th Cir.

2000). Courts applying this rule have consistently upheld warrants that are far less

specific than the Warrant here. See, e.g., United States v. Harris, 903 F.2d 770,

774 (l0thCir. 1990); United States v. Majors, 196 F.3d 1206, 1216 (11th 1999).

Further, “[tjhe degree of specificity required when describing the goods to

be seized will vary with the level of information available to the police and the

type of items involved.” People v. Slusher, 844 P.2d 1222, 1228 (Colo.App.

1992). Accordingly, a warrant satisfies the particularity requirement when it

describes “the items to be seized as specifically as possible under the

circumstances.” Harris, 903 F.2d at 775 (quotation omitted). This approach

22
simply recognizes the practical fact that law enforcement officials cannot know “at

the time [they] appl[yj for the warrant what precise records and files would contain

information concerning the” crime under investigation. Abboud, 438 F.3d at 575;

see also In re Grand Jury Subpoena (Under Seal), 920 F.2d 235, 239 (4th Cir.

1990).

The court’s insistence on the identification of specific files ignores this

practical reality. For example, consider the more common situation in which law

enforcement searches for documents; where documents may reveal the sale of

illegal drugs. Once police have probable cause to suspect evidence of drug crimes

are contained in a file cabinet, would police need to identif the specific file header

to conduct a search? Of course not. Once the items to be seized are identified with

particularity, and the premises containing such items identified, police may sort

through the cabinet. See generally Gall, 30 P.3d at 154.

Numerous cases have rejected the “specific file” requirement imposed by the

court. In United States v. Riley, 906 F.2d 841 (2d Cir. 1990), for example, police

searched a home for evidence of drug transactions, including “bank records,

business records, and safety deposit box records.” 906 F.2d at 844. The Second

Circuit rejected the defendant’s particularity argument, holding: “No doubt the

description, even with illustrations, did not eliminate all discretion of the officers

23
executing the warrant, as might have occurred, for example, if the warrant

authorized seizure of the records of defendant’s account at a named bank. But the

particularity requirement is not so exacting.” 14 at 844-45. Just as police need not

identify the name of the bank involved in laundering drug money, the Sheriff here

did not need to identify the specific names on the Business’ files that contained

evidence of criminal impersonation and identity theft.

Similarly, in United States v. Hayes, 794 F.2d 1348 (9th Cir. 1986), the

court considered a warrant authorizing the seizure of “all records which document

the purchasing, dispensing and prescribing of controlled substances” from a

medical office. j at 1355. The defendant complained that the warrant permitted

officers to sort through 10,000 patient files in order to find the documents

identified, and argued that the search should have been limited to specifically-

named patient files. The Ninth Circuit rejected the specific file approach to

mandate by the court here:

We also conclude that the warrants need not have been more narrowly
drawn. [Defendant] contends that the officers possessed information
concerning 58 cases of potential violations involving Schedule II
drugs and that the warrants should have been limited to those 58
patient files. Such a conclusion, however, ignores the magistrate’s
fmding, unchallenged on appeal, of probable cause to seize all
documents concerning controlled substances. The 58 known cases
could fairly be considered as representative of more pervasive
violations of the Act.

24
Id. at 1356 (footnote omitted); see also In re Grand Jury Subpoena (Under Seafl,

920 F.2d 235, 239 (4th Cir. 1990) (“Likewise, there is no flaw in the fact that the

documents covered by the warrant did not have specific time periods attached.

The dates of specific documents could not have been known to the Government

..“) (quotation omitted).

As shown previously (see supra pp.-J, the Warrant identified very specific

categories of documents to be seized — those relating to “tax returns filed with an

Individual Tax Identification Number (ITIN) for tax years 2006 and 2007 in which

the ITfl’J name and number do not match the wage earning documentation.”

[Trans.No.2347772 1 ,Warrant at 1] — and the Affidavit provides the relevant

context for seizing these documents by describing why files with both ITINs and

SSNs are evidence of criminal activity. That is all the Constitutional Provisions

require.

C. The Court’s Imposition of a Heightened Specificity Standard

Because the Business Was Not Suspected of Criminal Conduct
Was Error.

In its Ruling, the court repeatedly emphasized that the Business’ owner,

Cerrillo, was “not suspected of a crime.” [Trans.No.25967467, 3Tr.12:2-3.] This

fact, the court opined:

is an extremely important fact and really is the focus of the discussion

in terms of the Fourth Amendment, and whether this action was

25
 reasonable or not. The fact that she was not herself the target removes
this case from the holding of many other cases where professional
offices that have been a target have been involved with the search
warrants.... And that goes to issues of specificity, where the items
might be found, how specific the warrant is, et cetera.

[Trans.No.25967467, 3Tr. 12:9-22; see also 3Tr. 12:23-13:14; 16:1-21,9-22.]

The distinction drawn by the court, and its imposition of a heightened

specificity standard based on that standard, were legal errors. In Zurcher, the

United States Supreme Court expressly considered the “recurring situation where

state authorities have probable cause to believe that fruits, instrumentalities, or

other evidence of crime is located on identified property but do not then have

probable cause to believe that the owner or possessor of the property’ is himself

implicated in the crime that has occurred or is occurring.” 436 U.S. at 553. The

Court concluded that the validity of the warrant was unaffected by the lack of

culpability of the owner or possessor:

[V]alid warrants may be issued to search any property, whether or not

occupied by a third party, at which there is probable cause to believe
that fruits, instrumentalities, or evidence of a crime will be found....
The Warrant Clause speaks of search warrants issued on “probable
cause” and “particularly describing the place to be searched, and the
persons or things to be seized.” In situations where the State does not
seek to seize “persons” but only those “things” which there is probable
cause to believe are located on the place to be searched, there is no
apparent basis in the language of the [Fourth) Amendment for also
imposing the requirements for a valid arrest-probable cause to believe
that the third party is implicated in the crime.

26
7 at 554. See, e.g., United States v. Barker, 623 F. Supp. 823, 843 (D. Cob,
Id.

1985) (“The Supreme Court has made clear that ‘[t]he critical element in a

reasonable search is not that the owner of the property is suspected of crime but

that there is reasonable cause to believe that the specific ‘things’ to be searched for

and seized are located on the property to which entry is sought.”) (quoting

Zurcher, 436 U.S. at 556); United States v. Tehfe, 722 F.2d 1114, 1118 (3rd Cir.

1983). Accordingly, the heightened standard imposed by the court was, once

again, contrary to well-settled law.

B. The Warrant’s Authorization to Seize and Search the Business’

Computers and Electronic Equipment Was Not Overly Broad.

The Court also ruled that the Warrant “was overbroad to the extent it dealt

with computer and related records.” [Trans.No.25967467, 3Tr.15:35.] Although

the court failed to elaborate on its statement, the court may have accepted the

argument, made by Cerrillo and the Customers, that the Warrant did not limit the

computer files that could be searched. If so, the court misapprehended the Warrant

7
1 n Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Cob. 2002), this Court
declined to construe the Colorado Constitution in accordance with the Zurcher
Court’s interpretation of the Fourth Amendment when the search implicated rights
of fundamental rights of free expression. See Tattered Cover, 44 P.3d at 1055-56.
This case implicates no such rights. Accordingly, Tattered Cover provides no
basis for arguing and Cerrillo and the Customers have not argued that Article
— —

II, § 7 of the Colorado Constitution provides greater protections than the Fourth
Amendment in this case.

27
in three respects. First, it failed to distinguish between the seizure of the

computers, and the search for documents contained on the computers. As

explained more fUlly in the Affidavit, the seizure of the computers was to protect

the integrity of the information stored in them, and thus the entire computers were

seized. The search for documents stored on the computers, by contrast, was

limited to the same categories as paper documents. In fact, the Warrant draws no

distinction between electronic documents and paper documents. Thus, the search

of the computers was analogous to the search of the paper files located at the

Business. See, e.g., Gall, 30 P.3d at 153-55.

Second, even if that were not the case, the Waifant must be read in a

common sense fashion, and in light of the supporting Affidavit. See People v.

Staton, 924 P.2d 127 at 132-33 (Cob. 1996). Here, there is no question that the

Sheriff understood the Warrant to authorize only a search for documents related to

mismatched social security numbers, whether in electronic or paper form. Indeed,

that is the only plausible reading of the Warrant. The Warrant and supporting

Affidavit describe the Sheriffs Office investigation of identity theft and criminal

impersonation, and the specific type of documents evidencing these crimes.

[Trans.No.23477721,Warrant at 1, 3; Aff. at 1, 4-5.] The Affidavit specifically

states that the Warrant is seeking “evidence of Identity Theft and Criminal

28
Impersonation.” [Trans.No.23477721,Aff. at 6.] It would be wholly unreasonable

to read the Warrant as implying a power over electronic records other than the

permissible sorting for the specified evidence; and the conduct of the Sheriffs

Office in handling the electronic records demonstrates its understanding that the

warrant did not authorize it to search electronic records that were unrelated to tax

records. [Trans.No.25967467,2Tr. 108:1-14.]

Third, the Affidavit describes the basis for removing computer storage

media from the site of the search. Forensic demands require that such media be

copied and searched in a laboratory setting. [Trans.No.23477721,Aff. at 6.] The

Affidavit thrther explains that evidence can be stored on a wide variety of media.

(Id.) Accordingly, the Sheriffs Office knew prior to the search that it would need

to seize all computer media in order to sift the documents related to mismatched

social security numbers in its forensics laboratory. The Warrant’s listing of all

computers and storage devices thus was intended to advise Cerrillo that the Sheriff

would be removing these items from the premises. The Warrant did not contain

the same notice with respect to paper documents because it was not until the

Sheriff began the search that it became clear on-site sorting was impractical. (See

Trans.No.25967467,2Tr.94:7- 15).

29
III. THE COURT ERRED IN HOLDiNG THAT THE SEARCH WAS
“UNREASONABLY OVERRROAD AS TO THE 5,000 FILES.”

In its Ruling, the court concluded that the Sheriffs cursory review of the

5,000 flIes maintained by the Business was a search of them. The Sheriffs actions,

the court stated, were “not some preliminary or precursor activity or anything other

than a search.... They were — all the materials were reviewed. They were evaluated,

albeit in some instances briefly, and they were searched.”

{Trans.No.25967467,3Tr.13:17-25.] Based on this ruling, the court then held that

the search conducted by the Sheriff was “unreasonably overbroad as to the 5,000

files.” Although the court did not elaborate, it could have been ruling either that

(a) the Warrant did not authorize the Sheriff to review all of the files to determine

which of them fell within the scope of the Warrant; or (b) the Warrant did not

authorize the seizure, and removal, of all 5,000 files so they could be reviewed

elsewhere. In either event, the court’s ruling was incorrect.

A. The Sheriff Did Not Exceed the Scope of the Warrant by

Performing a Cursory Review of All of the Business’ Files.

In conducting a search for documents, common sense dictates that law

enforcement officials will come into contact with documents outside the scope of a

warrant. To determine whether a document falls inside or outside a warrant’s

scope, it must be briefly inspected. As the Second Circuit noted, “few people keep

30
documents of their criminal transactions in a folder marked ‘drug records.” United

States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990). Because documentary evidence

of criminal activity is often intermingled with other papers, courts have uniformly

held that a cursory inspection of all business records does not transform a valid

warrant into a “general warrant.” As a result, “in searches for papers, it is certain

that some innocuous documents will be examined, at least cursorily, in order to

determine whether they are, in fact, among those papers authorized to be seized.”

Andresen v. Maryland, 427 U.S. 463, 482 n.l 1(1976).

Recognizing this reality, courts uniformly hold that “all items in a set of files

may be inspected during a search, provided that sufficiently specific guidelines for

identifying the documents sought are provided in the search warrant and are

followed by the officers conducting the search.” United States v. Tamura, 694

F.2d 591, 595 (9th Cir. 1982); see also United States v. Slocum, 708 F.2d 587, 604

(11th Cir. 1983); United States v. Hayes, 794 F.2d 1348, 1356 (9th Cir. 1986);

People v. Gall, 30 P.3d 145, 154 (Cob. 2001). “[N]o tenet of the Fourth

Amendment prohibits a search merely because it cannot be performed with

surgical precision.” United States v. Conley, 4 F.3d 1200, 1208 (3d Cir. 1993)

(quotation omitted).

31
 That is the precise situation here. At the very beginning of the search,

officers attempted to narrow the search by asking Cerrillo where the documents

covered by the Waifant were located. She informed the officers that the

documents were not segregated, but were mixed with other files. As a result, to

locate the documents that fell within the scope of the Warrant, the Sheriff was

required to investigate cursorily all of the Business’ files, including those that were

determined to be outside the scope of the Warrant. That investigation did not

impact the propriety of the search, however, because the Warrant provided

“sufficiently specific guidelines for identiing the documents sought.” Tamura,

694 F.2d at 595.

If an officer conducting an authorized search for documents could not

review files to determine whether they were covered by the Warrant, searches

would be rendered ineffectual. Documents sought by a Warrant could be insulated

from a search through the mere artifice of intermingling them with documents that

were not within the scope of the Warrant. This is not, and cannot be, the case.

Accordingly, to the extent the Court’s ruling holds that the Waifant’s scope was

exceeded by the cursory examination of 5,000 files to identi the 1,300 covered

files, the ruling is contrary both to the law and to practical reality.

32
 B. The Sheriff Appropriately Conducted Its Sorting Off-Site.

As shown in the preceding section, law enforcement personnel are entitled to

conduct a cursory review of documents to determine whether they fall within the

scope of a search warrant. They are not, however, required to conduct such sorting

at the searched premises. As the Colorado Supreme Court held, the removal of a

group of documents

which may amount to an “over-seizure,” is not only authorized but

preferred in limited circumstances, including where the sorting out of
the described items from the intermingled undescribed items would
take so long that it is less intrusive merely to take that entire group of
items to another location and do the sorting there.

Gall, 30 P.3d at 154 (and cases cited therein).

The authority to conduct an on-site sorting of documents necessarily implies

the ability to conduct less-intrusive off-site sorting. In addressing this issue, the

Eleventh Circuit reasoned:

Given that the officers were entitled to examine the documents while
they remained in the home, we cannot see how [Defendant]’s privacy
interest was adversely affected by the agents’ examination of the
documents off the premises, so long as any items found not to be
relevant were promptly returned. Indeed, as we previously found .

to require an on-premises examination under such circumstances

would significantly aggravate the intrusiveness of the search by
prolonging the time the police would be required to remain in the
home.

United States v. Santarelli, 778 F.2d 609, 616 (11th Cir. 1985).

33
 Here, two categories of evidence were sorted off-site. First, the Sheriff

removed boxes of tax documents in order to determine which files contained

mismatched ITINs and social security numbers (“SSNs”) — powerful and

unambiguous evidence of criminal impersonation and identity thefi. During the

search, Cerrillo indicated that the Business did not keep its files segregated by tax

year. (See Trans.No.25967467,lTr.129:19-24.) Likewise, the Business did not

segregate the files containing fraudulent SSNs from those containing the correct

SSN for the person filing the return. (See Trans.No.25967467,2Tr.24:l-13.) As

Cerrillo herself testified, officers needed to conduct a cursory examination of all of

her files to determine which documents fell within the scope of the Waifant.

[Trans.No.25967467, 1 Tr. 129:1 9-l 30:6.] CernIlo also expressed concern that the

Sheriffs Office’s presence would frighten away clients.

[Trans.No.25967467,2Tr.61 :2162:18.18

Under these circumstances, it was entirely appropriate for the Sheriffs

Office to sort the documents off-site. (2Tr.94:7-15); see United States v. Hargus,

8
C errillo testified that she told the officers conducting the search that ‘they’d have
to give me a couple of days so I can go ahead and sort them [her files] out.”
[Trans.No. 25967467,lTr.129:17-18.] In fact, it took the Sheriff five days, using
six to eight employees, to conduct the sorting. [Trans.No. 25967467,2Tr.100:23-
25.] Because of the intrusiveness of an on-site search under these circumstances,
the “preferred” approach was to do what was done: “to take that entire group of
items to another location and do the sorting there.” Gall, 30 P.3d at 154.

34
128 F.3d 1358, 1363 (lothCir. 1997) (off-site sorting of filing cabinets

permissible); United States v. Shilling, 826 F.2d 1365, 1369-70 (4th Cir. 1987)

(same). Moreover, the Sheriffs Office handled the files properly by returning

promptly all records, without copying them, that were not related to mismatched

social security numbers. (2Tr.99:3-100:8); Santarelli, 778 F.2d at 616. With

respect to documents that were determined to fall within the scope of the wanant,

the Sheriffs Office made copies and returned the originals. [Trans.No.

25967467,2Tr.l00:9-21.]

The second category of evidence that was taken off-site was computer

equipment and electronic storage media. The Colorado Supreme Court has held

that the rule permitting off-site sorting is “not only applicable but in fact

compelling with regard to computers” because searching computers ofien “requires

a degree of expertise beyond that of the executing officers.” Gall, 30 P.3d at 154

(citation omitted); see also United States v. Upham, 168 F.3d 532, 53 5-36 (1st Cir.

1999) (off-site sorting of computer data permissible); United States v. Schandl, 947

F.2d 462 (11th Cir. 1991) (off-site sorting of computer storage media permissible).

That was the case here. The Affidavit contained the opinion of Detective Ford, a

computer forensic specialist, that “information contained on computer media

cannot be readily accessed from the location the computer is seized from.” (Aff.

35
at 6.) Accordingly, Detective Ford concluded that the “computer will need to be

removed, and processed in a forensic laboratory setting.” (Id.)

In United States v. Hill, 459 F.3d 966 (9th Cir. 2006), the court addressed

whether a search warrant was overly broad “because it authorized the officers to

seize and remove from [the defendant’s] home his computer and storage media

without first determining whether they actually contained” evidence of a crime. Id.

at 974. In Hill, the warrant authorized the search and seizure of “[a]n IBM ‘clone’

medium tower personal computer ... [and] [a]ll storage media belonging to either
.“
item . Id. The defendant contended that the waifant was overly broad

because “it authorized seizure of storage media whether or not they contained child

pornography,” and argued that the warrant should have authorized “seizure only of

media containing child pornography.” j4. The court disagreed:

[Ijt is impossible to tell what a computer storage medium contains just

by looking at it. Rather, one has to examine it electronically, using a
computer that is running the appropriate operating system, hardware
and software. The police had no assurance they would find such a
computer at the scene. . or that, if they found one, they could bypass
.

any security measures and operate it.

Id. The court also rejected the argument that the police should have “brought their

own laptop computer” so they could have seized only the files that contained

illegal material. The court concluded that “the police were not required to bring

with them equipment capable of reading computer storage media and an officer

36
competent to operate it.” Id. at 975. Such a requirement, the court recognized,

would create “significant technical problems,” make the search “more intrusive,”

and create significant risks that the search “might damage the storage medium or

compromise the integrity of the evidence by attempting to access the data at the

scene.” Id.. Additionally, the court found that “the process of searching the files at

the scene can take a long time,” which would impose a “significant and unjustified

burden on police resources” and “also make the search more intrusive.” Id. Based

on these considerations, the court ruled that “the warrant was not fatally defective

in failing to require an onsite search and isolation of child pornography before

removing storage media wholesale.” IdY

In this case, as in Hill, the Sheriff adopted the most feasible, least

burdensome, and least intrusive approach with respect to computer media. In

obtaining the Warrant, the Sheriff explained why it was necessary to remove the

media off-site to protect them. In executing the Warrant, the Sheriff removed all

computer media so they could be sorted, protected and preserved properly. The

off-site activities of the Sheriff were limited to sorting the media storage devices

9
T he court upheld the warrant at issue even though the affidavit did not contain an
explanation why the seizure of the entire computer was necessary. The court
suggested in dicta, however, that such an explanation should ordinarily be
contained in the supporting affidavit. Here, the Affidavit explains the necessity for
the seizure. ($ç Trans.No.23477721,Aff. at 6.)

37
into those that contained tax records and those that did not. The Sheriffs Office

promptly returned the storage devices that did not contain tax records without

copying them. It copied media devices containing tax information — which

included creating an image of the computer hard drive — and then returned the

originals of the devices. [Trans.No.25967467,2Tr. 106:24-108:14.] 10 Otherwise,

the Sheriff did not search the computer media. It is hard to understand what more

the Sheriff could have done — other than to ignore the records showing criminality

completely — to obtain evidence of criminal conduct while protecting the privacy

of those whose records did not fall within the scope of the Warrant.

IV. EVEN IF THE WARRANT WERE OVERLY BROAD, THE COURT

ERRED IN ORDERING THE RETURN OF ALL MATERIAL.

As shown above, the Waifant, and the Search, satisfied the requirements of

the Constitutional Provisions. But even if that were not the case, the court erred in

ordering the return of all of the documents seized. Absent a flagrant disregard of

the constitutional rights of Cerrillo and the Customers — which does not exist here

— the remedy for an excessively broad Warrant or seizure is to suppress only the

items that fall outside the permissible scope.

10 customer list on the computer hard drive was also copied to a disk, although it
A
was not otherwise searched. The customer list falls within the scope of the
Warrant. (See Trans.No.23477721,Warrant ¶J2, 3.)

38
 A. The Remedy for an Insufficiently Particular Warrant is Return of
the Evidence Seized Improperly, Not a Return of All Evidence.

When a portion of a warrant lacks sufficient particularity (or is otherwise

defective), it does not render the entire warrant invalid. Rather, under the

“severance” rule, the insufficient portion of a warrant may be severed, leaving the

remainder intact:

[T]he invalidity of part of a search warrant does not require the

suppression of all the evidence seized during its execution. More
precisely, we hold that the infirmity of part of a warrant requires the
suppression of evidence seized pursuant to that part of the warrant
(assuming such evidence could not otherwise have been seized, as for
example on plain-view grounds during the execution of the valid
portions of the warrant), but does not require the suppression of
anything described in the valid portions of the warrant (or lawfiilly
seized on plain-view grounds, for example during their execution).
— —

United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983) (en banc). Colorado,

along with all federal circuit courts, has explicitly adopted the severability rule.

People v. Eirish, 165 P.3d 848, 856 (Colo.App. 2007) (collecting cases).

As shown above, each portion of the Warrant complied with the particularity

requirement and was supported by probable cause. Even if the Court were to

determine otherwise, however, the remedy would not be the wholesale return of

everything that was seized that the court ordered. Rather, the proper remedy would

be the return of only the items seized pursuant to the defective portion of the

Warrant. For example, if the Court were to rule that the portion of the Warrant

39
authorizing seizure of computer equipment was invalid, such a holding would not

require that copies of the paper documents be returned.

B. The Remedy for an Overly Broad Seizure Is Generally Limited to

the Suppression of Items Outside the Warrant’s Scope.

The same rule applies generally with respect to the seizure of evidence that

falls outside the scope of a warrant. As the Maryland Court of Appeals concluded

after surveying both federal and state decisions on the issue:

[I]t appears to be universally recognized that under the Fourth

Amendment the exclusionary rule does not act to suppress evidence
seized within the scope of a warrant simply because evidence outside
the scope of a warrant was unlawfUlly seized. In other words, the
general rule is that only those items which were unconstitutionally
seized are to be suppressed; those which were constitutionally seized
may stand.

Klingenstein v. State, 624 A.2d 532, 536 (Md.App. 1992) (and cases cited therein).

Some courts, including the Tenth Circuit, have created an exception to the

general rule where “there was a flagrant disregard for the terms of the warrant.”

llgrgM, 128 F.3d at 1363. These courts hold that the where police officers

executed a warrant with flagrant disregard for its limits, the exclusion of all seized

evidence is justified. See United States v. Foster, 100 F.3d 846, 852 & n.9

(lothCir. 1996) (finding flagrant disregard based, “in particular,” on testimony of

police officer that “it is standard procedure” to “ignore the particularity

requirement of search warrants and to seize anything of value”). But as the Foster

40
court emphasized, “the extreme remedy of blanket suppression should only be

imposed in the most ‘extraordinary’ of cases.”

Here, Cerrillo and the Customers cannot point to any flagrant disregard of

the scope of the Warrant that would make this one of the “most ‘extraordinary’ of

cases.” To the contrary, the undisputed evidence establishes that the Sheriffs

actions were motivated by practical concerns, and that a diligent effort was made

to comply fUlly with the applicable constitutional requirements. The Foster court

has specifically suggested that such actions do not justify the “extreme remedy of

blanket suppression.” at 852 n.9 (citing Tamura, 694 F.2d at 597 for the

proposition that the blanket suppression of evidence is “inappropriate where [the]

government’s ‘wholesale seizures were motivated by considerations of practicality

rather than by a desire to engage in indiscriminate fishing.”). Accordingly, even if

the Sheriff erred in seizing records that were outside the scope of the Warrant, the

only remedy would be the return of the improperly seized records.

CONCLUSION

For the reasons set forth above, the DA and Sheriff request the Court to

reverse the court’s grant of a preliminary injunqtion to Cerrillo and the Customers,

and to rule that the Warrant and the Search satisfied the requirements of the

Constitutional Provisions. Alternatively, the DA and Sheriff request the Court to

41
 _______________

rule that only the documents or equipment improperly searched or seized must be

returned to Cerrillo, and the properly seized and searched documents and

equipment may be retained by the Sheriff and the DA.

Dated: August 3, 2009.

BROWNSTEN HYATT FARBER SCHRECK, LLP

By:

‘ichdrd P. arkley, #17161

Lisa Hogan, 4132
410 Seven ent Street, Suite 2200
Denver, Co do 80202
(303) 223-1100

ATTORNEYS FOR DEFENDANT

KENNETH R. BUCK

HALL & EVANS, L.L.C

David R. Brougham, #1950
Thomas J. Lyons, #8381
1125 Seventeenth Street, Suite 600
Denver, CO 80202-2052

ATTORNEYS FOR DEFENDANT JOHN COOKE

42
 CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 3rd day of August, 2009, a true
and correct copy of the foregoing OPENING BRIEF OF APPELLANTS-
RESPONDENTS was delivered via hand delivery to:

N. Reid Neureiter
Elizabeth L. Harris
Jacobs Chase Frick Kleinkopf& Kelley, LLC
1050 17th Street, Suite 1500
Denver, Colorado 80265

and via United States Mail postage pre-paid to the following:

Mark Silverstein
Taylor S. Prendergrass
American Civil Liberties Union Foundation of Colorado
400 Corona Street
Denver, Colorado 80218

Michael Joseph Glade

Inman Flynn Biesterfeld Brentlinger & Moritz PC
1660 Lincoln Street, Suite 1700
Denver, Colorado 80264-1701

Shannon Lyons
Collins, Liu & Lyons LLP
812 8th Street
Greeley, Colorado 80631

Thomas J. Lyons
Hall & Evans, L.L.C.
1125 17th Street, Suite 600
Denver, CO 80202-2052

Melissa Nelson
Paralegal

43