The Colorado Supreme Court on Monday upheld a controversial search warrant that Denver police used to identify the teenagers accused of killing five people in a house fire three years ago, while also finding that Coloradans have a constitutionally-protected privacy interest in their Google search histories.
The justices found in a 5-2 decision that Denver police acted in good faith when they used a “reverse keyword search warrant,” which required Google to turn over the account information for any users who searched particular keywords in a particular time frame. Denver police used that information from Google to identify the teenagers now accused of setting the fatal fire in Green Valley Ranch.
The reverse keyword search warrant in this case might be legally flawed, but the evidence will still be allowed in court because police acted in good faith, the majority of justices found.
“In reaching these conclusions, we make no broad proclamation about the propriety of reverse-keyword warrants,” Justice William Hood wrote for the majority. “…Our finding of good faith today neither condones nor condemns all such warrants in the future. If dystopian problems emerge, as some fear, the courts stand ready to hear argument regarding how we should rein in law enforcement’s use of rapidly advancing technology.”
Chief Justice Brian Boatright and justices Richard Gabriel and Melissa Hart joined the majority opinion. Justice Maria Berkenkotter concurred with the majority’s judgment only, while justices Monica Márquez and Carlos Samour dissented.
In the dissent, Márquez wrote that she and Samour believe the warrant was unconstitutional and that the state Supreme Court’s ruling gives a broad green light to the future use of reverse keyword search warrants.
“Today, the court blesses law enforcement’s use of a powerful new tool of the digital age: the reverse-keyword warrant,” Márquez wrote. “…The warrant here was invalid… and the good-faith exception to the exclusionary rule cannot salvage its unconstitutionality.”
The justices also ruled that Coloradans have an expectation of privacy in their Google search histories, and found that Google search histories implicate a person’s right to freedom of expression and so are subject to stricter legal protections when law enforcement seeks search warrants.
The decision, which comes five months after the justices heard the case, will allow the criminal charges against two Denver teenagers accused of killing five people by setting their Green Valley Ranch home on fire to move forward after the case was delayed while the justices deliberated.
Kevin Bui and Gavin Seymour, both 19, each are facing first-degree murder charges in the August 2020 attack. The men, who were both 16 at the time, set fire to a home on Truckee Street because Bui mistakenly thought the person who stole his cellphone was inside and he wanted revenge. The fast-moving 3 a.m. blaze killed five family members, including an infant and toddler.
Police identified Bui, Seymour and a third teenager by serving Google with a search warrant that sought a list of any Google users who had searched for the home’s address in the 15 days leading up to the fire. The information Google provided led authorities to the three teenagers.
Bui and Seymour challenged the legality of the search warrant in Denver District Court, then Seymour appealed to the Colorado Supreme Court when the district court judge upheld the search warrant. The third teenager, who was 14 at the time, pleaded guilty to second-degree murder and was sentenced to 10 years of detention.
In Monday’s decision, the justices saw a potential issue with Denver police’s probable cause for the search warrant — that is, the specific facts they used to legally justify the warrant — because the probable cause was not specific to Seymour.
But the justices went on to find that because law enforcement acted in good faith, the probable cause issue does not matter in this case.
“We need not resolve today whether a search of such data requires probable cause individualized to a single Google account holder because even if we were to conclude that it does, for the reasons explained below, the evidence here would still be admissible under the exclusionary rule’s good-faith exception,” Hood wrote. “Therefore, because resolution of this issue doesn’t affect the outcome, we simply assume without deciding that the warrant lacked probable cause.”
To “assume without deciding” is a way for courts to avoid ruling on one part of an argument in a larger legal case, said Christopher Jackson, an appellate lawyer at Holland and Hart who reviewed Monday’s 74-page opinion and dissent.
“Sometimes it’s hard for a court to figure out who is right on Issue A — it’s really complicated or it’s unsettled — so courts will instead say, ‘A is hard, I’ll skip over that and go to Issue B; B is much easier and it’s very clear one side wins on B.’”
In this case, the justices punted on the issue of the reverse keyword search warrant’s individualized probable cause and skipped straight to the good faith exception, he said.
In the dissent, Márquez and Samour argued both that the warrant was unconstitutional and that the good faith exception doesn’t apply.
“In this case, law enforcement employed a reverse-keyword search precisely because it lacked probable cause with respect to any individual Google user,” Márquez wrote. “…Indeed, law enforcement admitted to having no more than a ‘hunch’ that a digital fishing expedition through Google’s entire collection of individuals’ private information might yield results where lawful investigative techniques had failed. We know, however, that ‘(a)n officer’s hunch’ is insufficient to establish probable cause.”
Jennifer Lynch, general counsel for the Electronic Frontier Foundation, which supported Seymour’s position that the warrant was unconstitutional, said Monday that the Colorado justices ignored the “heart of the issue” by bypassing the decision on probable cause.
“I’m a little disappointed in the results,” she said. “The Colorado Supreme Court had the opportunity to really break new ground on keyword search warrants, and I think it’s a pretty reserved opinion that unfortunately doesn’t provide much direction for the lower courts on how to analyze these warrants.”
The ruling essentially leaves open the issue of whether reverse keyword search warrants are constitutionally acceptable, Jackson said. The justices wrote in Monday’s opinion that no other state supreme court or federal appellate court has ruled on the constitutionality of such warrants.
“So this is very, very new and it’s very unclear where this is going to go,” Jackson said. “Because the court assumed without deciding the issue of probable cause, we don’t know yet where we are going to end up.”
Denver District Attorney Beth McCann, who is prosecuting the Green Valley Ranch killings, released a statement saying she was pleased by the ruling.
“The Court recognized that police officers exercised good faith in obtaining the warrant that led to the identification of the suspects,” she said. “We agree with that part of the court’s opinion and will now move forward with our cases.”
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