People v. Seymour

536 P.3d 1260

In re: The PEOPLE of the State of Colorado, Plaintiff,

v.Gavin SEYMOUR, Defendant.

Supreme Court Case No. 23SA12

Supreme Court of Colorado.

October 16, 2023

Attorneys for Plaintiff: Beth McCann, Denver District Attorney, Katherine A. Hansen, Senior Deputy District Attorney, Joseph M. Morales, Chief Deputy District Attorney, Courtney L. Johnston, Chief Deputy District Attorney, Denver, Colorado

Attorneys for Defendant: Stinson Law Office, Jenifer Stinson, Denver, Colorado, The Juba Law Office, PLLC, Michael S. Juba, Denver, Colorado, National Association of Criminal Defense Lawyers, Michael W. Price, Washington, District of Columbia

Attorneys for Respondent District Court, City and County of Denver: Natalie Hanlon Leh, Chief Deputy Attorney General, Trina K. Kissel, Senior Assistant Attorney General, Peter G. Baumann, Assistant Attorney General, Denver, Colorado

Attorneys for Amicus Curiae Colorado Attorney General: Philip J. Weiser, Attorney General, Jillian J. Price, Deputy Attorney General, Helen Norton, Special Assistant Attorney General, Brock J. Swanson, Senior Assistant Attorney General, Matthew J. Worthington, Assistant Attorney General, Denver, Colorado

Attorneys for Amicus Curiae Colorado District Attorneys' Council: Kevin E. McReynolds, Senior Appellate Deputy District Attorney, Golden, Colorado, Thomas R. Raynes, Denver, Colorado

Attorneys for Amicus Curiae Electronic Frontier Foundation: Proff Law, LLC, Hannah Seigel, Proff Denver, Colorado, Jennifer Lynch, San Francisco, California

Attorneys for Amicus Curiae Electronic Privacy Information Center: Calli Schroeder, Washington, District of Columbia

En Banc

JUSTICE HOOD delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE GABRIEL, and JUSTICE HART joined. JUSTICE BERKENKOTTER concurred in the judgment. JUSTICE MÁRQUEZ, joined by JUSTICE SAMOUR, dissented.

JUSTICE HOOD delivered the Opinion of the Court.

¶1 Two months after an apparent arson left five people dead, the Denver Police Department ("DPD") still had no suspects. Their leads exhausted, they employed an unconventional investigative technique: a "reverse-keyword warrant." After some back and forth about the language in the warrant, Google disclosed to DPD a list that included five Colorado internet protocol ("IP") addresses associated with devices that had searched for the location of the fire in a roughly two-week period before it occurred. Based in part on this information, law enforcement eventually charged Gavin Seymour and two others with multiple counts of first degree murder.

¶2 Before trial, Seymour moved to suppress the fruit of the warrant, arguing that it lacked two essential constitutional ingredients: probable cause and particularity. The trial court denied Seymour's suppression motion. We granted Seymour's petition to review that order by issuing a rule to show cause.

¶3 We discharge the rule to show cause (and thus, essentially affirm the trial court's order), albeit on slightly different grounds. First, we conclude that, under the Colorado Constitution, Seymour has a constitutionally protected privacy interest in his Google search history even when revealed only in connection with his IP address and not his name and that, under both the Colorado Constitution and the Fourth Amendment, he also has a constitutionally protected possessory interest in that same history. Second, we conclude that Seymour's Google search history implicates his right to freedom of expression; thus, the constitutional protections must be applied with "scrupulous exactitude." Zurcher v. Stanford Daily, 436 U.S. 547, 564, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965) ). Third, we conclude that the warrant at issue adequately particularized the place to be searched and the things to be seized. Fourth, we assume without deciding that the warrant required individualized probable cause and that its absence here rendered the warrant constitutionally defective. Finally, we conclude that law enforcement obtained and executed the warrant in good faith, so the evidence shouldn't be suppressed under the exclusionary rule.

¶4 In reaching these conclusions, we make no broad proclamation about the propriety of reverse-keyword warrants. As is often true when we examine what is reasonable under the search-and-seizure provisions of the federal and state constitutions, much is fact-dependent. 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. Today, we proceed incrementally based on the facts before us.

I. Facts and Procedural History

¶5 On August 5, 2020, a fire broke out at a Denver home, killing five people. Investigators suspected arson because they concluded that an accelerant had been used to start the fire, and a neighbor's home-security surveillance footage showed three masked individuals with what appeared to be a gas canister at the house when the fire started.

¶6 In the following weeks, DPD investigators interviewed neighbors, reviewed surveillance footage from nearby gas stations, and obtained at least twenty-three search warrants, but these efforts proved unfruitful. After more than two months of rigorous investigation, law enforcement had exhausted all their leads without identifying a single suspect.

¶7 Despite this dead end, investigators surmised that the perpetrators had intentionally targeted the address. In pursuing this theory, they inferred that the perpetrators would have researched the property before burning it down or, at the very least, looked up directions to get there. So, investigators sought and obtained a series of reverse-keyword warrants, which required Google, the dominant search-engine company, to identify users who had searched the address within a specified period.¹

¶8 The first warrant requested a list of any users who had searched one of nine variations of "5312 N. Truckee St.," the address in question, in the fifteen days before the fire. Investigators sought each user's full name, date of birth, email address, physical address, phone number, and IP address.²

¶9 Google's privacy policies, however, stood in the way. In a sworn declaration to the trial court, a Google policy specialist explained that, to protect its users' legal and privacy interests, Google uses a staged process to respond to warrants. The company first provides law enforcement with a "de-identified," or anonymized, list of responsive searches. Then, if law enforcement concludes that any of the anonymous results are relevant to the investigation, Google will identify the users if court-ordered to do so. Because the first warrant here ordered Google to immediately produce identifying information, complying with the warrant would have violated Google's policies. So, the company refused to produce the requested records. Ultimately, DPD withdrew the first warrant.

¶10 DPD then obtained a second warrant seeking the same list of users. Instead of requesting personally identifying information like names and birth dates, DPD requested two days of location data for each account. Google again refused to comply because of privacy concerns, and investigators again withdrew the warrant.

¶11 Finally, to address Google's concerns, law enforcement obtained a third warrant, requesting that Google produce an anonymized list containing "an identifier assigned by Google representing each device ... along with the associated IP address" "[f]or any Google accounts that [searched the address during the fifteen-day period before the fire] while using Google Services (i.e., Google Chrome, Google Maps, or any other Google service)." Google complied with this third warrant and produced a spreadsheet of sixty-one searches made by eight accounts.

¶12 Five of the eight accounts had Colorado-based IP addresses. DPD then successfully retrieved the names and other personal information associated with those five Colorado accounts through another warrant, to which Google submitted without objection. One individual was eliminated as a suspect because she was related to the alleged victims. DPD also sent warrants to social media platforms and internet service providers to obtain information about the remaining four people. Based on this information, DPD was able to rule out another suspect.

¶13 Seymour, one of the remaining three suspects, was eventually charged with numerous felonies, including multiple counts of first degree murder, arson, and burglary.

¶14 Before trial, Seymour moved to suppress all evidence resulting from the search executed under the reverse-keyword warrant, arguing that it was unconstitutional because it was not adequately particularized and lacked individualized probable cause. The trial court denied Seymour's motion.

¶15 Seymour then filed a C.A.R. 21 petition asking us to intervene, and we issued a rule to show cause.³

II. Analysis

A. Original Jurisdiction under C.A.R. 21

¶16 The decision to exercise original jurisdiction under C.A.R. 21 "is an extraordinary remedy limited in purpose and availability," People v. Owens, 2018 CO 55, ¶ 4, 420 P.3d 257, 258, and rests within this court's sole discretion, People v. Kelley, 2023 CO 32, ¶ 22, 530 P.3d 407, 412. We exercise original jurisdiction when "an appellate remedy would be inadequate, a party may suffer irreparable harm, or a petition raises an issue of first impression that has significant public importance." People v. A.S.M., 2022 CO 47, ¶ 9, 517 P.3d 675, 677.

¶17 The constitutionality of reverse-keyword warrants presents an issue of first impression in Colorado. Indeed, to our knowledge, no state supreme court or federal appellate court has addressed the constitutionality of such warrants.⁴ Nor have we previously determined whether individuals have a reasonable expectation...