cerrillo v. buck: opening brief from ken buck's attorneys

8/14/2019 Cerrillo v. Buck: Opening Brief from Ken Buck's attorneys

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RECEWEDAUG S 2co9

JACOBS CHASE FRICKKLEINKOPF&KEL FYCertification o or , 5

SUPREME COURT, STATE OF COLORADO a COURT USE ONLY aColorado State Judicial Building2 East Fourteenth Ave., Fourth Floor Case Number: 09SC341Denver, CO 80203Colorado Court of AppealsCase No. 09CA0796Weld County District CourtHonorable James A. Hiatt, District Court JudgeCivil Action No. 2009-CV-100Petitioners:AMALIA CERI{ILLO; LUIS NORIEGA, onbehalf of himself and as class representative; JOHNDOE, on behalf of himself and as classrepresentative; FRANK DOE, on behalf of himselfand as class representative; ROBERT DOE, onbehalf of himself and as class representative;v.Respondent:KENNETH R. BUCK, in his official capacity asDistrict Attorney for the Nineteenth Judicial District;JOHN COOKE, in his official capacity as WeldCounty Sheriff,


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Attorneys for Respondent Kenneth R. Buck:Lisa Hogan, #14 132Richard P. Barkley, #17161BROWNSTEIN HYATT FARBERSCHRECK, LLP410 Seventeenth Street, Suite 2200Denver, CO 80202-4437Phone: 303-223-1100; Fax: 303-223-1111Email: rbarkley@bhfs. corn;lhoganbhfs.com

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

broughamdhallevans.com;

OPENING BRIEF OF APPELLANTS-RESPONDENTS

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TABLE OF CONTENTS

PageTABLE OF AUTHORITIES iiiISSUES PRESENTED FOR REVIEW 1STATEMENT OF THE CASE 1

A. Nature of the Case 1B. Course of Proceedings and Disposition Below 1

STATEMENT OF FACTS 2A. Background on Identity Theft 2B. Colorados Identity Theft Statute 3C. The Investigation of Evidence of Identity Theft at the Business 4D. Obtaining the Waifant 6E. The Search 7

PROCEDURAL HISTORY 10SUMMARY OF THE ARGUMENT 12ARGUMENT 13I. INTRODUCTION 13II. THEAFFIDAVIT AND SEARCH WARRANT SATISFIED THE

REQUIREMENTS OF THE UNITED STATES AND COLORADOCONSTITUTIONS 15A. The Search Warrant Was Based on Probable Cause 16

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TABLE OF CONTENTS

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

Things tO Be Seized 18II. THE COURTS RULING THAT THE WARRANT DII) NOT MEET THE

REQUIREMENTS OF THE CONSTITUTIONAL PROVISIONS WASERRONEOUS 20A. The Ruling That Probable Cause Requires identification of SpecificIndividuals is Contrary to Fourth Amendment Law 21B. Probable Case Does Not Require Identification of Specific Files 22C. The Courts Imposition of a Heightened Specificity Standard Becausethe Business Was Not Suspected of Criminal Conduct Was Error 25D. The Warrants Authorization to Seize and Search the BusinessComputers and Electronic Equipment Was Not Overly Broad 27

III. THE COURT ERRED IN HOLDING THAT THE SEARCH WASUNREASONABLY OVERBROAD AS TO THE 5,000 FILES 30A. The SheriffDid Not Exceed the Scope of the Warrant by Performing aCursory Review of All of the Business Files 30B. The SheriffAppropriately Conducted Its Sorting Off-Site 33

IV . EVEN IF THE WARRANT WERE OVERLY BROAD, THE COURTERRED IN ORDERING THE RETURN OF ALL MATERIAL 38A. The Remedy for an Insufficiently Particular Warrant is Return of theEvidence Seized Improperly, Not a Return of All Evidence 39B. The Remedy for an Overly Broad Seizure Is Generally Limited to theSuppression of Items Outside the Warrants Scope 40

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TABLE OF CONTENTS

Page

CONCLUSION .41

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TABLE OF AUTHORITIES

PageFEDERAL 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, 25United States v. Abboud,

438 F.3d 554 (6th Cir. 2006) 22-23United States v. Barker,

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

United States v. Conley,4 F.3d 1200 (3d Cir. 1993) 32United 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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United794


Page

States v. Hayes,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

United906

States v. Riley,F.2d 841 (2d Cir. 1990) 23-24, 31

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

United States v. Schandi,947 F.2d 462 (1 lth Cir.

United States v. Shilling,826 F.2d 1365 (4th Cir.

United States v. Slocum,708 F.2d 587 (11th Cir.

United States v. Tamura,694 F.2d 591 (9th Cir. 1

United States v. Tehfe,722 F.2d 1114 (3rd Cir.

United States v. Upham,

1985) 34-35

1991) 35-36

1987) 35

1983) 31

982) 31-32,41

1983) 27

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

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PageZurcher v. Stanford Daily,

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

K1inenstein v. State,624 A.2d 532 (Md.App. 1992) 40People v. Alameno,193 P.3d 830 (Cob. 2008) 19-20People v. Ball,

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

165 P.3d 848 (Colo.App. 2007) 39

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

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

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

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

473 P.2d 698 (Cob. 1970) 18People v. Slusher,844 P.2d 1222 (Cobo.App. 1992) 22

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Page

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

Tattered Cover, Inc. v. City of Thornton,44 P.3d 1044 (Cob. 2002) 27

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ISSUE PRESENTED FOR REVIEW

Whether the search and seizure of records from the office of anunincorporated tax preparation business violated the rights of either the businessowner or her clients under the Colorado or United States Constitution.

STATEMENT OF THE CASEA. Nature of the CaseThis case concerns the constitutionality of an authorized search of and

seizure of records from a tax preparation business (Search) with the trade nameof Amali&s Translation and Tax Services (Business). After the Weld CountySheriffs Office (Sheriff) uncovered information that the Business maintained taxrecords for customers that showed they were using social security numbers(SSN) that were stolen or otherwise did not belong to them, the Sheriff obtainedand executed a search warrant (Warrant). Evidence from the Search showed thatseveral hundred of the Business customers possessed, and were using, false orstolen SSNs.

B. Course of Proceedings and Disposition BelowMore than three months after the Search and after the District Attorney for

the Nineteenth Judicial District (DA) had obtained indictments against more than100 individuals Amalia Cerrillo, the Business owner (Cerrillo), and three


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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 violatedthe Fourth Amendment to the United States Constitution and Article II, 7 and25 of the Colorado Constitution.

After a hearing on a motion for a preliminary injunction, the court grantedthe requested preliminary injunction.

STATEMENT OF FACTSA. 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 identitytheft. Identity Theft Victims Rights: Hearing Before the H. Oversight andGovernment Reform Comm., 111th Cong. (July 17, 2009) (statement of Jason M.Weinstein, Deputy Asst Atty Gen. of the United States). By 2008, that numberhad 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 theColorado Constitution in their complaint, they did not contend that the analysisunder those constitutional provisions differed from the Fourth Amendmentanalysis. Accordingly, the DA and the Sheriff treat the state and federalconstitutional provisions as coextensive here.

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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, Coloradoranked eighth per capita among the fifty states in the number of identity theftcomplaints; Federal Trade Commission, Identity Theft Victim Complaints Trendsby State, January 1-December 31, 2007, http://www.ftc.gov/bcp/edu/microsites/idthefi/downloads/cy2007/statemap.pdf and the Greeley, Colorado metropolitanarea had the second highest number of identity theft complaints per capita of anymetropolitan area in the United States. Federal Trade Commission, ConsumerFraud and Identity Theft Complaint Data January December 2007 (Feb. 2008)http ://www.flc.gov/sentinel/reports/sentinel-annual-reports/sentinel-cy2007.pdf.

B. Colorados 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 ., NationalConference of State Legislatures Identity Theft Statutes & Criminal Penalties,(2007) http://www.ncsl.org!?Tab1d12538. In Colorado, the General Assembly

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

Knowingly use[] the personal identifying information ... of anotherwithout 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 anotherwithout permission or lawfUl authority, with the intent to use or to aidor permit some other person to use such information or device toobtain cash, credit, property, services, or any other thing of value or tomake a financial payment; ... [or]Knowingly use[] or possess[] the personal identifying information ofanother without permission or lawfUl authority with the intent toobtain 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 theBusiness. According to Trejo, when he entered the United States, he purchased aSSN and name. [Trans.No.23477721, Affat3.] The Business prepared and filedtax returns for him. (j4.) The Business requested from the Internal RevenueService (IRS) an Individual Tax Identification Number (ITIN) for Trejo, using

2olorado has also enacted C.R.S. 18-5-113, which prohibits CriminalImpersonation. The Affidavit stated that evidence of both crimes existed at theBusiness.

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in. She also confirmed that she retained a copy of the [clients] tax returns, wageinformation, 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 hadbeen 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 oncomputers could not be readily accessed at the location the computer is seizedfrom. (Id. at 6) Rather, any computers would need to be removed and processedin a forensic laboratory setting. (RI.) Processing the computer on scene,Detective Ford warned, may result in an incomplete examination and could resultin 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. TheSheriff prepared an Affidavit for Search Warrant (Affidavit) [Trans.No.23477721], seeking to search the Business and seize (a) all tax returns for 2006 and2007 in which the ITEM name and number d[id] not match the wage earningsdocumentation; as well as paper and electronic documents related to those tax

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returns; and (b) computer systems, computer equipment, computer storage devices,and documents relating to use of the computers. On October 16, 2008, JudgeMarcelo Adrian Kopcow authorized the search warrant.

E. The SearchOn 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.] When they arrived, Cerrillo and others weremoving furniture, equipment, and supplies from the office because she wasremodeling. [Trans.No.25967467, 2Tr.89: 11.] Cerrillo stated that she wasextremely concerned about [Sheriff officers] being present in her office becauseshe would start losing clients. [Trans.No.25967467, 2Tr.89:21-24.] Cerrillo toldthe Sheriff that if they gave her a couple of days, she could go ahead and sortthem [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 quicklyif she could identif where the 2006 and 2007 files were. Cerrillo said she couldnot 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 20063he March 9, 2009 Transcript is cited as lTr.; the March 10, 2009 Transcript iscited as 2Tr.; and the April 13, 2009 Transcript is cited as 3Tr.

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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. Thefiles were not well-organized; in the words of Detective Noonan, Everything wasjust in complete disarray. [Trans.No.25967467, 2Tr.91:l3-25.] Although itlooked like somebody tried to put them in alphabetical order ... for the most partthey were not in alphabetical order. [Trans.No.25967467, 2Tr.92:7-9.]

Afier surveying the files to be searched, the Sheriff determined that becauseof the perceived disruption of the Business:[T]he reasonable thing to do would be to remove the items from theoffice .... Rather than locking down her putting her out of businessfor several days ... to complete the search warrant, we would removeall the files and boxes, complete the search at the Sheriffs Office andthen return the documents to her as quickly as possible.

[Trans.No.25967467, 2Tr.94:7-15.] The Sheriff packed up 49 boxes between4,000 and 5,000 tax return files for somewhere between 650 and 750 people fromthe Business. [Trans.No.25967467, 2Tr.96:23-98:ll.] The boxes of files were pu tin a locked room at the Sheriffs Office, and when that space was hill, in a lockedcloset next door. [Trans.No.25967467, 2Tr.98:18-24.]

The Sheriff then conducted a cursory review of each individual file todetermine whether it fell within the scope of the Waifant. Officer Noonandescribed the process as follows:

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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 8879form, and if it [had] an JuN number on it, then we would lookfurther into it to see if there was any tax years that fell within thescope of the warrant.

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

A. Correct.Q. If you found a form that had an ITIN on it, you looked further?A. Yes.Q. What happened if you didnt 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 thepaper documents took more than five days to complete, and the copying of fileswith ITIN numbers took an additional three or four days. [Trans.No.25967467,2Tr.lO0:22-101 :5; 2Tr.105:l-2.].]

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[T]hree computers, several CDs or DVDs and maybe some floppy disk s

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 acursory 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 withoutthe necessary software; and (b) the hard drives contained a customer list for theBusiness. The customer list which fell within one of the categories of documentsidentified in the Warrant was copied onto a CD and placed in to evidence.Otherwise, no search of the hard drives was conducted, and no evidence wasobtained from the computers.

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

complaint sought a declaration that the Search violated the Colorado and theUnited States Constitutions.

4ith respect to the storage media, the disks that were determined to containmaterial unrelated to tax returns were returned to the Business without beingcopied. The few disks that appeared to contain tax records were copied, and theoriginals were returned to the Business. The information contained on those diskswas not searched.

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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 motionon March 9 and 10, 2009. On April 13, 2009, the court ruled that the Search wasunconstitutional, and granted the injunction. The court held:

The warrant lacked particularity as to what was to be seized; that itfailed to identif or establish probable cause for a specific criminal act.It was in fact a barebones general search. It was an exploratoy searchthat was authorized by this warrant, and it was improper.... [T]heaffidavit established probable cause to believe that somewhere in [theBusiness] records, in the records of some customer, or customers wedont know who and we dont know how many there would beevidence of some crime by someone. There was not probable cause asto a specific individual, as to specific files, as to a specific crime....[To establish probable cause to search a specific customers file] therewould [have to] be [evidence] that that person or that persons recordswould 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 wasunreasonably overbroad as to the 5,000 files. The warrant itselfwas overbroad tothe extent it dealt with computer and related records. [Trans.No.25967467,3Tr. 15:2-5.]

Subsequently, the DA and the Sheriff (Officials) appealed the injunctionruling to the Court of Appeals. Cerrillo and the Customers responded bypetitioning for immediate certiorari review by this Court. The Court granted thepetition.

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SUMMARY OF THE ARGUMENT

In this case, substantial evidence existed that the numerous customer taxfiles maintained by the Business contained evidence of the crimes of identity theftand criminal impersonation. Despite this, the court ruled that the Warrantauthorizing a search of the Business files lacked probable cause because it was notspecific either to the individuals who committed the crimes, or to the files thatcontained evidence of the crimes. The court held that such specificity was requiredbecause there was no evidence that the Business owner had committed any crime.

The courts probable cause analysis is contrary to well-settled law. TheUnited States Supreme Court has expressly rejected a more stringent probablecause requirement because the person owning or possessing the material to beseized is not guilty of a crime. The Court has similarly held that identification ofthe culpable individual is not a requirement under the Fourth Amendment. Andnumerous courts have held that a warrant is not required to have the specificityrequired by the trial court with respect to the files in which the material to beseized can be found.

The court also ruled that the Warrant was overly broad with respect to thesearch of the Business computers and electronic storage devices. The courtmisapprehended the Warrant. The seizure of the computers was necessary to

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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 inthe Affidavit and Warrant and thus was equivalent to the search of the paper fileslocated at the Business.

The court also ruled that the scope of the Search was not authorized by theWarrant because the Sheriff searched all of the Business files even though onlytwenty-five percent of them contained evidence of identity theft. But when acursory review of a file is necessary to determine whether it falls within theWarrants scope, it is permitted. Moreover, this Court has recognized, that suchfiles 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 theWarrant, or the Search, were overly broad, absent a flagrant disregard of theconstitutional 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.

ARGUMENTI. INTRODUCTION

No dispute exists here that the Affidavit supporting the Warrant containedsubstantial, reliable evidence from both Trejo and Cerrillo that the Businessobtained ITII4s, and prepared tax returns, for numerous customers who were using

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

Similarly, no dispute exists here that the use of SSNs by customers of theBusiness who also obtained TINs almost certainly violated Colorados identitytheft and criminal impersonation statutes. Witnesses called by petitioners andrespondents alike agreed that an ITIN could only be obtained when an individualdid not have a valid SSN and that the fact that a tax return listed both a SSN and anITIN 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 acrime [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 showthat the place to be searched possessed evidence of criminal conduct and,nothwithstanding the fact that identity theft was the crime being investigated, it

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also would have to show the identity of the person whose records wouldsubstantiate the claim and would be in violation of the law.

In other words, a warrant to search the Business records could never beobtained. Instead, a warrant could only authorize a search of files maintained bythe Business for a specific individual, and then only upon a showing that probablecause existed that the specific individual had committed a crime and the file likelycontained evidence of the crime.

Neither the United States Constitution, nor the Colorado Constitutionmandates 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 theperpetrator the specificity requirement that the district court seeks to imposewould be, as a practical matter, virtually impossible to obtain. Accordingly, theSheriff and the DA request the Court to reverse the district courts ruling, and tohold that the Warrant and Search complied with the Constitutional Provisions.II. THE AFFIDAVIT AND WARRANT SATISFIED THE UNITEDSTATES AND COLORADO CONSTITUTIONS.

The Constitutional Provisions protect individuals from unreasonablesearches and seizures by requiring a search warrant (a) to be based on probablecause, and (b) to describe particularly the place to be searched and the person or

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things to be seized. People v. Gall, 30 P.3d 145, 149 (Cob. 2001). The Warranthere 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.2d1078, 1082 (Cob. 1982). The probable cause analysis does not lend itself tomathematical certainties or bright line rules; rather, it involves a practical,common-sense determination whether a fair probability exists that a search of aparticular place will reveal contraband or other evidence of criminal activity.People v. Miller, 75 P.3d 1108, 1113 (Cob. 2003). Accordingly, probable causeexists so long as an affidavit alleges facts that would lead a person of reasonablecaution to believe contraband or material evidence of criminal activity [wa]slocated on the premises to be searched. Ball, 639 P.2d at 1082.

[T]he public policy encouraging warrants dictates that probable cause bereviewed with deference to the issuing [Judge]. Gall, 30 P.3 d at 150. Theappropriate question for a reviewing court is whether the issuing magistrate had asubstantial basis for issuing the search warrant rather than whether the reviewingcourt would have found probable cause in the first instance. Id.; see also Peoplev. Reed, 56 P.3d 96, 101 (Cob. 2002). Application of that standard here

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establishes that the Affidavit which contained information from multiple sources

that evidence of the crimes of identity theft and criminal impersonation was likelyto be found in the Business files unquestionably provided a substantial basis forissuing the search wan ant. First, Trejo provided information that (a) he had

(a) she filed tax returns for immigrants who were working illegally in the UnitedStates; (b) almost all of these employees provided her with wage recordscontaining a SSN that belongs to someone else; (c) she would obtain ITIIJs, andthen file tax returns, for the employees; and (d) she retained in her files evidenceshowing (i) the true identity of these employees, and (ii) that they were using falseSSNs. Fourth, Agent Bratton established that tax returns with mismatched SSNsand ITINs could be filed electronically, corroborating Trejos information that

learned from word of mouth that the Business would assist him in preparing andfiling 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 theBusiness with evidence of identity theft by him; and (d) the Business had recentlystarted F-Filing his tax returns. Second, documents located as part of aconsensual search of Trejos residence showed that the Business had filed, andbeen paid to file several tax returns fo r Trejo. Third, Cerrillo acknowledged that

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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 andthe 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 theBusiness and provided a very detailed physical description of the building.[Trans.No.2347772 1 ,Warrant at 2-3.] Indeed, neither Cerrillo nor the Customerschallenged the adequacy of the description given of the Business location in thetrial court, and the district court did not rule that the description was insufficient.

Second, the Affidavit adequately described the things to be seized. A s

numerous courts have recognized, the necessary particularity for a search warrantvaries according to the circumstances and type of items involved. Also, built intothis standard is a practical margin of flexibility. Ark. Chronicle v. Murphy, 183Fed. Appx. 300, 306 (4th Cir. 2006); see also People v. Schmidt, 47 3 P.2d 698,700 (Cob. 1970) (particularity requirement should be given a reasonableinterpretation commensurate with the type of property sought to be seized);United States v. Hill, 459 F.3d 966 at 97 3 (9th Cir. 2006) (A warrant describing acategory of items is not invalid if a more specific description is impossible.).Here, the Warrant satisfied the particularity requirement both with respect to the

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documents that were to be searched, and the electronic equipment that was to beseized. The documents to be searched were identified quite specifically. Theywere (a) tax returns filed with an Individual Tax Identification Number (ITIN) fortax years 2006 and 2007 in which the ITfN name and number do not match thewage 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 anyconfusion, either by the Sheriff or by the Business, about the physical documentsthat fell within the scope of the Warrant. When the warrant was executed, Cerrillowas told that the Sheriff was seeking files that [she] had in [her] offices whichrelated 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 wherethe Business tax files were located. Thus, the Warrant was sufficiently particularin that it enable[d] the executing officer and the Business owner reasonablyto ascertain and identifi the things authorized to be seized. People v.Roccaforte, 919 P.2d 799 at 803 (Cob. 1996).

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

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

seized. As explained in the Affidavit, because of the need to preserve electronicinformation, the computers had to be seized and taken to a controlled environmentwhere they could be copied and searched for documents within the scope of theWarrant. The Warrant identified as equipment to be seized as all (a) computersystems, (b) electronic storage devices, (c) computer peripheral devices,(d) computer programs and software, and (e) documents relating to the operation ofthe computers. Again, both the Sheriff and Cerrillo were able to ascertain andidenti& the things authorized to be seized, id., and no confUsion existed as to thecomputer equipment that fell within the scope of the Warrant.II. THE COURTS 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 probablecause 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).6he courts assertion that the Affidavit fails to establish probable cause as to aspecific crime is baffling. The Affidavit identified specifically two crimes:identity theft and criminal impersonation. [Trans.No.23477721,Aff. at 6.]

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Second, the Warrant was overbroad to the extent it dealt with computer andrelated records. Both rulings were erroneous.

A. Probable Cause Does Not Require Identification of SpecificIndividuals Is Contrary to Fourth Amendment Law.The courts ruling that that the Warrant was unconstitutional because it did

not identify the specific individuals whose files contained evidence of crimes iscontrary to well-settled law. The Supreme Court held in Zurcher v. StanfordDaily, 436 U.S. 547 (1978), that the identification of specific individuals in asearch warrant was unnecessary to satisfy the Fourth Amendment:

Search warrants are not directed at persons; they authorize the searchof place[s] and the seizure of things, and as a constitutional matterthey need not even name the person from whom the things will beseized.... [A] search warrant may be issued on a complaint which doesnot identify any particular person as the likely offender. Because thecomplaint for a search warrant is not filed as the basis of a criminalprosecution, it need not identify the person in charge of the premisesor name the person in possession or any other person as the offender.

Id. at 555, 556 n.6 (citations omitted).Moreover, the courts insistence on the identification of specific individuals

is especially untenable given that the Sheriff was investigating identity theft andcriminal impersonation. Those crimes necessarily include an attempt to hide orfalsify the identities of those customers using fraudulent SSNs. As Cerrillo

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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 abusinesss records, a description of the categories of documents to be seized isentirely appropriate. Where the precise identity of the goods cannot beascertained at the time the warrant is issued, naming only the generic class of itemswill suffice. United States v. Abboud, 438 F.3d 554, 57 5 (6th Cir. 2006)(quotation omitted); se e also United States v. Davis, 226 F.3d 346, 352 (5th Cir.2000). Courts applying this rule have consistently upheld warrants that are far lessspecific than the Warrant here. See, e.g., United States v. Harris, 90 3 F.2d 770,774 (l0thCir. 1990); United States v. Majors, 19 6 F.3d 1206, 1216 (11th 1999).

Further, [tjhe degree of specificity required when describing the goods tobe seized will vary with the level of information available to the police an d thetype of items involved. People v. Slusher, 844 P.2d 1222, 1228 (Colo.App.1992). Accordingly, a warrant satisfies the particularity requirement when itdescribes the items to be seized as specifically as possible under thecircumstances. Harris, 903 F.2d at 775 (quotation omitted). This approach

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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 containinformation 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 courts insistence on the identification of specific files ignores thispractical reality. For example, consider the more common situation in which lawenforcement searches for documents; where documents may reveal the sale ofillegal drugs. Once police have probable cause to suspect evidence of drug crimesare contained in a file cabinet, would police need to identif the specific file headerto conduct a search? Of course not. Once the items to be seized are identified withparticularity, and the premises containing such items identified, police may sortthrough the cabinet. See generally Gall, 30 P.3d at 154.

Numerous cases have rejected the specific file requirement imposed by thecourt. In United States v. Riley, 906 F.2d 841 (2d Cir. 1990), for example, policesearched a home for evidence of drug transactions, including bank records,business records, and safety deposit box records. 906 F.2d at 844. The SecondCircuit rejected the defendants particularity argument, holding: No doubt thedescription, even with illustrations, did not eliminate all discretion of the officers

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executing the warrant, as might have occurred, for example, if the warrantauthorized seizure of the records of defendants account at a named bank. But theparticularity requirement is not so exacting. 14 at 844-45. Just as police need notidentify the name of the bank involved in laundering drug money, the Sheriff heredid not need to identify the specific names on the Business files that containedevidence of criminal impersonation and identity theft.

Similarly, in United States v. Hayes, 794 F.2d 1348 (9th Cir. 1986), thecourt considered a warrant authorizing the seizure of all records which documentthe purchasing, dispensing and prescribing of controlled substances from amedical office. j at 1355. The defendant complained that the warrant permittedofficers to sort through 10,000 patient files in order to find the documentsidentified, and argued that the search should have been limited to specifically-named patient files. The Ninth Circuit rejected the specific file approach tomandate by the court here:

We also conclude that the warrants need not have been more narrowlydrawn. [Defendant] contends that the officers possessed informationconcerning 58 cases of potential violations involving Schedule IIdrugs and that the warrants should have been limited to those 58patient files. Such a conclusion, however, ignores the magistratesfmding, unchallenged on appeal, of probable cause to seize alldocuments concerning controlled substances. The 58 known casescould fairly be considered as representative of more pervasiveviolations of the Act.

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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 thedocuments 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 anIndividual Tax Identification Number (ITIN) for tax years 2006 and 2007 in whichthe ITflJ name and number do not match the wage earning documentation.[Trans.No.2347772 1 ,Warrant at 1] and the Affidavit provides the relevantcontext for seizing these documents by describing why files with both ITINs andSSNs are evidence of criminal activity. That is all the Constitutional Provisionsrequire.

C. The Courts Imposition of a Heightened Specificity StandardBecause the Business Was Not Suspected of Criminal ConductWas 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.] Thisfact, the court opined:

is an extremely important fact and really is the focus of the discussionin terms of the Fourth Amendment, and whether this action was

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reasonable or not. The fact that she was not herself the target removesthis case from the holding of many other cases where professionaloffices that have been a target have been involved with the searchwarrants.... And that goes to issues of specificity, where the itemsmight 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, theUnited States Supreme Court expressly considered the recurring situation wherestate authorities have probable cause to believe that fruits, instrumentalities, orother evidence of crime is located on identified property but do not then haveprobable cause to believe that the owner or possessor of the property is himselfimplicated in the crime that has occurred or is occurring. 436 U.S. at 553. TheCourt concluded that the validity of the warrant was unaffected by the lack ofculpability of the owner or possessor:

[V]alid warrants may be issued to search any property, whether or notoccupied by a third party, at which there is probable cause to believethat fruits, instrumentalities, or evidence of a crime will be found....The Warrant Clause speaks of search warrants issued on probablecause and particularly describing the place to be searched, and thepersons or things to be seized. In situations where the State does notseek to seize persons but only those things which there is probablecause to believe are located on the place to be searched, there is noapparent basis in the language of the [Fourth) Amendment for alsoimposing the requirements for a valid arrest-probable cause to believethat the third party is implicated in the crime.

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

1985) (The Supreme Court has made clear that [t]he critical element in areasonable search is not that the owner of the property is suspected of crime butthat there is reasonable cause to believe that the specific things to be searched fo rand seized are located on the property to which entry is sought.) (quotingZurcher, 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, onceagain, contrary to well-settled law.

B. The Warrants Authorization to Seize and Search the BusinessComputers and Electronic Equipment Was Not Overly Broad.

The Court also ruled that the Warrant was overbroad to the extent it dealtwith computer and related records. [Trans.No.25967467, 3Tr.15:35.] Althoughthe court failed to elaborate on its statement, the court may have accepted theargument, made by Cerrillo and the Customers, that the Warrant did not limit thecomputer files that could be searched. If so, the court misapprehended the Warrant

7n Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Cob. 2002), this Courtdeclined to construe the Colorado Constitution in accordance with the ZurcherCourts interpretation of the Fourth Amendment when the search implicated rightsof fundamental rights of free expression. See Tattered Cover, 44 P.3d a t 1055-56.This case implicates no such rights. Accordingly, Tattered Cover provides nobasis for arguing and Cerrillo and the Customers have not argued that ArticleII, 7 of the Colorado Constitution provides greater protections than the FourthAmendment in this case.

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in three respects. First, it failed to distinguish between the seizure of thecomputers, and the search for documents contained on the computers. Asexplained more fUlly in the Affidavit, the seizure of the computers was to protectthe integrity of the information stored in them, and thus the entire computers wereseized. The search for documents stored on the computers, by contrast, waslimited to the same categories as paper documents. In fact, the Warrant draws nodistinction between electronic documents and paper documents. Thus, the searchof the computers was analogous to the search of the paper files located at theBusiness. See, e.g., Gall, 30 P.3d at 153-55.

Second, even if that were not the case, the Waifant must be read in acommon 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 theSheriff understood the Warrant to authorize only a search for documents related tomismatched social security numbers, whether in electronic or paper form. Indeed,that is the only plausible reading of the Warrant. The Warrant and supportingAffidavit describe the Sheriffs Office investigation of identity theft and criminalimpersonation, and the specific type of documents evidencing these crimes.[Trans.No.23477721,Warrant at 1, 3; Aff. at 1, 4-5.] The Affidavit specificallystates that the Warrant is seeking evidence of Identity Theft and Criminal

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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 thepermissible sorting fo r the specified evidence; and the conduct of the SheriffsOffice in handling the electronic records demonstrates its understanding that thewarrant did not authorize it to search electronic records that were unrelated to taxrecords. [Trans.No.25967467,2Tr. 108:1-14.]

Third, the Affidavit describes the basis for removing computer storagemedia from the site of the search. Forensic demands require that such media becopied and searched in a laboratory setting. [Trans.No.23477721,Aff. at 6.] TheAffidavit 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 needto seize all computer media in order to sift the documents related to mismatchedsocial security numbers in its forensics laboratory. The Warrants listing of allcomputers and storage devices thus was intended to advise Cerrillo that the Sheriffwould be removing these items from the premises. The Warrant did not containthe same notice with respect to paper documents because it was not until theSheriff began the search that it became clear on-site sorting was impractical. (SeeTrans.No.25967467,2Tr.94:7- 15).

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III. THE COURT ERRED IN HOLDiNG THAT THE SEARCH WASUNREASONABLY 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 act ions,the court stated, were not some preliminary or precursor activity or anything otherthan a search.... They were al l 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 thatthe search conducted by the Sheriff was unreasonably overbroad as to the 5,000files. 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 determinewhich of them fell within the scope of the Warrant; or (b) the Warrant did notauthorize the seizure, and removal, of all 5,000 files so they could be reviewedelsewhere. In either event, the courts ruling was incorrect.

A. The Sheriff Did Not Exceed the Scope of the Warrant byPerforming a Cursory Review of All of the Business Files.In conducting a search fo r documents, common sense dictates that law

enforcement officials will come into contact with documents outside the scope of awarrant. To determine whether a document falls inside or outside a warrantsscope, it must be briefly inspected. As the Second Circuit noted, few people keep

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documents of their criminal transactions in a folder marked drug records. UnitedStates v. Riley, 906 F.2d 841, 845 (2d Cir. 1990). Because documentary evidenceof criminal activity is often intermingled with other papers, courts have uniformlyheld that a cursory inspection of all business records does not transform a validwarrant into a general warrant. As a result, in searches for papers, it is certainthat some innocuous documents will be examined, at least cursorily, in order todetermine 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 filesmay be inspected during a search, provided that sufficiently specific guidelines fo ridentifying the documents sought are provided in the search warrant and arefollowed by the officers conducting the search. United States v. Tamura, 694F.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 FourthAmendment prohibits a search merely because it cannot be performed withsurgical precision. United States v. Conley, 4 F.3d 1200, 1208 (3d C ir. 1993)(quotation omitted).

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

officers attempted to narrow the search by asking Cerrillo where the documentscovered by the Waifant were located. She informed the officers that thedocuments were not segregated, but were mixed with other files. As a result, tolocate the documents that fell within the scope of the Warrant, the Sheriff wasrequired to investigate cursorily all of the Business files, including those that weredetermined to be outside the scope of the Warrant. That investigation did notimpact the propriety of the search, however, because the Warrant providedsufficiently specific guidelines for identiing the documents sought. Tamura,694 F.2d at 595.

If an officer conducting an authorized search for documents could notreview files to determine whether they were covered by the Warrant, searcheswould be rendered ineffectual. Documents sought by a Warrant could be insulatedfrom a search through the mere artifice of intermingling them with documents thatwere not within the scope of the Warrant. This is not, and cannot be, the case.Accordingly, to the extent the Courts ruling holds that the Waifants scope wasexceeded by the cursory examination of 5,000 files to identi the 1,300 coveredfiles, the ruling is contrary both to the law and to practical reality.

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

As shown in the preceding section, law enforcement personnel are entitled toconduct a cursory review of documents to determine whether they fall within thescope of a search warrant. They are not, however, required to conduct such sortingat the searched premises. As the Colorado Supreme Court held, the removal of agroup of documents

which may amount to an over-seizure, is not only authorized butpreferred in limited circumstances, including where the sorting out ofthe described items from the intermingled undescribed items wouldtake so long that it is less intrusive merely to take that entire group ofitems 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, theEleventh Circuit reasoned:

Given that the officers were entitled to examine the documents whilethey remained in the home, we cannot see how [Defendant]s privacyinterest was adversely affected by the agents examination of thedocuments off the premises, so long as any items found not to berelevant were promptly returned. Indeed, as we previously found .to require an on-premises examination under such circumstanceswould significantly aggravate the intrusiveness of the search byprolonging the time the police would be required to remain in thehome.

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

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

removed boxes of tax documents in order to determine which files containedmismatched ITINs and social security numbers (SSNs) powerful an dunambiguous evidence of criminal impersonation and identity thefi. During thesearch, Cerrillo indicated that the Business did not keep its files segregated by taxyear. (See Trans.No.25967467,lTr.129:19-24.) Likewise, the Business did notsegregate the files containing fraudulent SSNs from those containing the co rrectSSN for the person filing the return. (See Trans.No.25967467,2Tr.24:l-13.) AsCerrillo herself testified, officers needed to conduct a cursory examination of all ofher files to determine which documents fe ll within the scope of the Waifant.[Trans.No.25967467, 1 Tr. 129:1 9-l 30:6.] CernIlo also expressed concern that theSheriffs Office s presence would frighten away cl ients.[Trans.No.25967467,2Tr.61 :2162:18.18

Under these circumstances, it was entirely appropriate for the SheriffsOffice to sort the documents off-site. (2Tr.94:7-15); se e United States v. Hargus,

8errillo testified that she told the officers conducting the search that theyd haveto give me a couple of days so I can go ahead and sort them [he r files] out.[Trans.No. 25967467,lTr.129:17-18.] In fact , it took the Sheriff five days, usingsix 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 ofitems to another location and do the sorting there. Gall, 30 P.3d at 154.

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128 F.3d 1358, 1363 (lothCir. 1997) (off-site sorting of filing cabinetspermissible); United States v. Shilling, 826 F.2d 1365, 1369-70 (4th Cir. 1987)(same). Moreover, the Sheriffs Office handled the files properly by returningpromptly all records, without copying them, that were not related to mismatchedsocial security numbers. (2Tr.99:3-100:8); Santarelli, 778 F.2d at 616. Withrespect to documents that were determined to fall within the scope of the wan ant,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 computerequipment and electronic storage media. The Colorado Supreme Court has heldthat the rule permitting off-site sorting is not only applicable but in factcompelling with regard to computers because searching computers ofien requiresa 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, 947F.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, acomputer forensic specialist, that information contained on computer mediacannot be readily accessed from the location the computer is seized from. (Aff.

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at 6.) Accordingly, Detective Ford concluded that the computer will need to beremoved, and processed in a forensic laboratory setting. (Id.)

In United States v. Hill, 459 F.3d 966 (9th Cir. 2006), the court addressedwhether a search warrant was overly broad because it authorized the officers toseize and remove from [the defendants] home his computer and storage mediawithout 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 clonemedium tower personal computer .. . [and] [a]ll storage media belonging to eitheritem . . Id . The defendant contended that the waifant was overly broadbecause it authorized seizure of storage media whether or not they contained childpornography, and argued that the warrant should have authorized seizure only ofmedia containing child pornography. j4. The court disagreed:

[Ijt is impossible to tell what a computer storage medium contains justby looking at it. Rather, one has to examine it electronically, using acomputer that is running the appropriate operating system, hardwareand software. The police had no assurance they would find such acomputer at the scene. . . or that, if they found one, they could bypassany security measures and operate it.

Id. The court also rejected the argument that the police should have brought theirown laptop computer so they could have seized only the files that containedillegal material. The court concluded that the police were not required to bringwith them equipment capable of reading computer storage media and an officer

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

would create significant technical problems, make the search more intrusive,an d create significant risks that the search might damage the storage medium orcompromise the integrity of the evidence by attempting to access the data at thescene. Id.. Additionally, the court found that the process of searching the files atthe scene can take a long time, which would impose a significant and unjustifiedburden on police resources and also make the search more intrusive. Id. Basedon these considerations, the court ruled that the warrant was not fatally defectivein failing to require an onsite search an d isolation of child pornography beforeremoving storage media wholesale. IdY

In this case, as in Hill, the Sheriff adopted the most feasible, leastburdensome, and least intrusive approach with respect to computer media. Inobtaining the Warrant, the Sheriff explained why it was necessary to remove themedia off-site to protect them. In executing the Warrant, the Sheriff removed allcomputer media so they could be sorted, protected an d preserved properly. Theoff-site activities of the Sheriff were limited to sorting the media storage devices9he court upheld the warrant at issue even though the affidavit did not contain anexplanation why the seizure of the entire computer was necessary. The courtsuggested in dicta, however, that such an explanation should ordinarily becontained in the supporting affidavit. Here, the Affidavit explains the necessity fo rthe seizure. ($ Trans.No.23477721,Aff. at 6.)

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into those that contained tax records and those that did not. The Sheriffs Officepromptly returned the storage devices that did not contain tax records withoutcopying them. It copied media devices containing tax information whichincluded creating an image of the computer hard drive and then returned theoriginals 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 morethe Sheriff could have done other than to ignore the records showing criminalitycompletely to obtain evidence of criminal conduct while protecting the privacyof those whose records did not fall within the scope of the Warrant.IV. EVEN IF THE WARRANT WERE OVERLY BROAD, THE COURTERRED IN ORDERING THE RETURN OF ALL MATERIAL.

As shown above, the Waifant, and the Search, satisfied the requirements ofthe Constitutional Provisions. But even if that were not the case, the court erred inordering the return of all of the documents seized. Absent a flagrant disregard ofthe constitutional rights of Cerrillo and the Customers which does not exist here the remedy for an excessively broad Warrant or seizure is to suppress on ly theitems that fall outside the permissible scope.

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

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

When a portion of a warrant lacks sufficient particularity (or is otherwisedefective), it does not render the entire warrant invalid. Rather, under theseverance rule, the insufficient portion of a warrant may be severed, leaving theremainder intact:

[T]he invalidity of part of a search warrant does not require thesuppression of all the evidence seized during its execution. Moreprecisely, we hold that the infirmity of part of a warrant requires thesuppression of evidence seized pursuant to that part of the warrant(assuming such evidence could not otherwise have been seized, as fo rexample on plain-view grounds during the execution of the validportions of the warrant), but does not require the suppression ofanything described in the valid portions of the warrant (or lawfiillyseized on plain-view grounds, for example during their execution).

United States v. Fitzgerald, 72 4 F.2d 633, 63 7 (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 particularityrequirement and was supported by probable cause. Even if the Court were todetermine otherwise, however, the remedy would not be the wholesale return ofeverything that was seized that the court ordered. Rather, the proper remedy wouldbe the return of only the items seized pursuant to the defective portion of th eWarrant. For example, if the Court were to rule that the portion of the Warrant

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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 tothe Suppression of Items Outside the Warrants 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 concludedafter surveying both federal and state decisions on the issue:

[I] t appears to be universally recognized that under the FourthAmendment the exclusionary rule does not act to suppress evidenceseized within the scope of a warrant simply because evidence outsidethe scope of a warrant was unlawfUlly seized. In other words, thegeneral rule is that only those items which were unconstitutionallyseized are to be suppressed; those which were constitutionally seizedmay 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 fo r the terms of the warrant.llgrgM, 128 F.3d at 1363. These courts hold that the where police officersexecuted a warrant with flagrant disregard for its limits, the exclusion of all se izedevidence is justified. See United States v. Foster, 100 F.3d 846, 852 & n.9(lothCir. 1996) (finding flagrant disregard based, in particular, on testimony ofpolice officer that it is standard procedure to igno re the particularityrequirement of search warrants and to seize anything of value). But as the Foster

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court emphasized, the extreme remedy of blanket suppression should only beimposed in the most extraordinary of cases.

Here, Cerrillo and the Customers cannot point to any flagrant disregard ofthe scope of the Warrant that would make th is one of the most extraordinary ofcases. To the contrary, the undisputed evidence establishes that the Sheriffsactions were motivated by practical concerns, and that a diligent effort was madeto comply fUlly with the applicable constitutional requirements. The Foster courthas specifically suggested that such actions do not justify the extreme remedy ofblanket suppression. at 852 n.9 (citing Tamura, 694 F.2d at 597 for theproposition that the blanket suppression of evidence is inappropriate where [the]governments wholesale seizures were motivated by considerations of practicalityrather than by a desire to engage in indiscriminate fishing.). Accordingly, even ifthe Sheriff erred in seizing records that were outside the scope of the Warrant, theonly remedy would be the return of the improperly seized records.

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

reverse the courts grant of a preliminary injunqtion to Cerrillo and the Customers,and to rule that the Warrant and the Search satisfied the requirements of theConstitutional Provisions. Alternatively, the DA and Sheriff request the Court to

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

returned to Cerrillo, and the properly seized and searched documents andequipment may be retained by the Sheriff and the DA.

Dated: August 3, 2009.BROWNSTEN HYATT FARBER SCHRECK, LLP

By:

_

ichdrd P. arkley, #17161Lisa Hogan, 4132410 Seven ent Street, Suite 2200Denver, Co do 80202(303) 223-1100

ATTORNEYS FOR DEFENDANTKENNETH R. BUCK

HALL & EVANS, L.L.CDavid R. Brougham, #1950Thomas J. Lyons, #83811125 Seventeenth Street, Suite 600Denver, CO 80202-2052

ATTORNEYS FOR DEFENDANT JOHN COOKE

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 3rd day of August, 2009, a trueand correct copy of the foregoing OPENING BRIEF OF APPELLANTS-RESPONDENTS was delivered via hand delivery to:N. Reid NeureiterElizabeth L. HarrisJacobs Chase Frick Kleinkopf& Kelley, LLC1050 17th Street, Suite 1500Denver, Colorado 80265and via United States Mail postage pre-paid to the following:Mark SilversteinTaylor S. PrendergrassAmerican Civil Liberties Union Foundation of Colorado400 Corona StreetDenver, Colorado 80218Michael Joseph GladeInman Flynn Biesterfeld Brentlinger & Moritz PC1660 Lincoln Street, Suite 1700Denver, Colorado 80264-1701Shannon LyonsCollins, Liu & Lyons LLP812 8th StreetGreeley, Colorado 80631Thomas J. LyonsHall & Evans, L.L.C.1125 17th Street, Suite 600Denver, CO 80202-2052