Interlocutory Appeal from the District Court. Douglas County District Court Case No. 14CR95. Honorable Richard Caschette, Judge.
In this interlocutory appeal, the supreme court reverses the trial court's order suppressing evidence found on defendant John Swietlicki's laptop computer after police seized the laptop without a warrant. The supreme court holds that the warrantless seizure was justified under the plain view exception to the warrant requirement. In so holding, the supreme court clarifies that the " immediately apparent" requirement of the plain view exception demands only that the seizing officer have probable cause to associate the item with criminal activity without conducting a further search. The supreme court also determines that the fellow officer rule applies to probable cause determinations in the context of plain view seizures.
For Plaintiff-Appellant: George H. Brauchler, District Attorney, Eighteenth Judicial District, L. Andrew Cooper, Chief Deputy District Attorney, Centennial, Colorado.
For Defendant-Appellee: Douglas K. Wilson, Public Defender, Matt Mulch, Deputy Public Defender, Castle Rock, Colorado.
[¶1] In this interlocutory appeal, the People challenge the trial court's order suppressing evidence obtained from defendant Swietlicki's laptop computer. Police seized the laptop without a warrant and held it until a search warrant issued, at which time they searched the laptop and found child pornography. Because the seizure was justified under the plain view exception to the warrant requirement, we reverse the suppression order.
I. Facts and Procedural History
[¶2] In January 2014, Detective Weaver of the Douglas County Sheriff's Office (" DCSO" ) responded to a middle school's report regarding J.M., a twelve-year-old female student. School staff had begun questioning J.M. about a Facebook posting of J.M. drinking what seemed to be an alcoholic beverage. They quickly became worried there was more to the situation and contacted police. Upon his arrival, Detective Weaver spoke to J.M. but elicited no additional information. Later that day, J.M.'s mother called the DCSO to say J.M. wanted to talk. During the next two-and-a-half weeks, J.M. and her
mother separately participated in a series of video-recorded interviews.
[¶3] J.M.'s interviews with Detective Weaver and a forensic interviewer occurred on January 21 and January 30, 2014, respectively. During these interviews, J.M. said John Swietlicki, her mother's then-fiancé, had been having regular sexual contact with her since she was approximately eight years old. The contact included vaginal touching, oral sex, and vaginal intercourse. She claimed that the most recent encounters had occurred earlier that month--January 2014--while J.M.'s mother was on a business trip.
[¶4] J.M. said Swietlicki sometimes showed her pornography on his computers during these encounters. That pornography depicted " kids." She described how Swietlicki used a " black and gray flash drive" to transfer pornography from his desktop computer to his laptop. Swietlicki used the laptop so that he and J.M. could view the pornography in locations other than the room off their garage, where Swietlicki kept his desktop computer.
[¶5] During Detective Weaver's interviews with J.M.'s mother, she corroborated various details surrounding J.M.'s allegations. For example, she acknowledged owning, and physically produced, lingerie matching the description of lingerie J.M. said Swietlicki had asked her to wear for him, and she confirmed the occurrence, travel route, and timing of a trip J.M. and Swietlicki took to California, which was one of the specific instances in which J.M. alleged abuse.
[¶6] Although Swietlicki went into hiding shortly after the investigation began, he maintained contact with J.M.'s mother via text messages. J.M.'s mother said Swietlicki had asked her to send him photographs of the room off the garage. Swietlicki gave J.M.'s mother the password to his desktop computer located there, but she discovered the computer had been wiped clean.
[¶7] She also disclosed that Swietlicki's only current source of income was unemployment benefits and that his behavior during their five-year relationship suggested he had no other liquid assets to speak of.
[¶8] A consent search of the couple's house revealed Swietlicki's laptop was missing.
[¶9] The district attorney filed sexual assault charges against Swietlicki and the court issued a nationwide warrant for his arrest. In March 2014, Deputy Jorgenson--a DCSO deputy assigned to the U.S. Marshals Task Force in Colorado--asked Deputy Clauss, a U.S. Marshal stationed in Wisconsin, to investigate whether Swietlicki was staying with relatives in Wisconsin. Deputy Clauss conducted surveillance on multiple relatives' addresses and decided to interview Swietlicki's cousin, Chad Saegert, first. On March 18, 2014, Clauss went to Saegert's home and spoke with him.
[¶10] Saegert said he'd had no contact with Swietlicki for approximately two years. However, after Deputy Clauss explained the charges against Swietlicki and notified Saegert that harboring a fugitive and lying to law enforcement are crimes, Saegert revealed Swietlicki was sleeping in Saegert's bedroom. Deputy Clauss then arrested Swietlicki and took him to a local jail.
[¶11] At Deputy Jorgenson's request, Clauss returned to Saegert's home forty-five to ninety minutes later to ask about Swietlicki's vehicle. Saegert invited Clauss inside the house, where two other relatives were then present. Saegert pointed to a laptop ...