County District Court No. 13CR585 Honorable D.D. Mallard,
Judge Honorable Andrew R. Macdonald, Judge
Cynthia H. Coffman, Attorney General, John T. Lee, Senior
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Inga K.
Nelson, Deputy State Public Defender, Denver, Colorado, for
1 In this "peeping" case, a jury convicted Nimroid
Boles Folsom of stalking (serious emotional distress), and
two counts of attempted invasion of privacy for sexual
gratification. Folsom's principal defense at trial was
2 On appeal he contends that (1) the seizure, search, and
later admission into evidence of videos the police found on
his iPods violated the Fourth Amendment; (2) the trial court
erred when it prohibited the introduction of alternate
suspect evidence; (3) the evidence presented at trial was
insufficient to convict him of stalking; (4) the victim's
show-up and in-court identifications violated his right to
due process; (5) the stalking statute is unconstitutional;
and (6) the habitual criminal statute is
3 We conclude that based on a United States Supreme Court
case that was decided after Folsom's trial, the admission
of the videos found on his iPods violated the Fourth
Amendment and was not harmless beyond a reasonable doubt. We
also conclude that the trial court applied an erroneous test
for the admission of alternate suspect evidence and that,
under the circumstances, the prohibition of alternate suspect
evidence deprived Folsom of a fair trial. Accordingly, we
reverse and remand for a new trial.
Relevant Facts and Procedural History
4 The victim was walking through her living room one night
after taking a shower when she noticed that the blinds of her
living room window were open. She walked toward the window to
close the blinds and saw a man standing outside the window.
She only saw the side of his face, pretended not to see him,
closed the blinds, and dressed. She then went upstairs to see
if the man was still there; he was. She saw him jump the
fence into her neighbor's yard and then re-enter her
yard. She called the police and described the man as a
"tanned Caucasian" man, wearing a black hooded
sweatshirt, jeans, and glasses.
5 A few minutes later police officers saw Folsom in an alley
less than two blocks from the victim's house. After they
watched Folsom apparently looking into windows of apartments
along the alley, the officers stopped him. When asked what he
was doing, Folsom told officers that he was looking for a
place to plug in his van's electric heater. At the time
he was stopped, Folsom, a dark- skinned African-American man,
was wearing a dark brown leather jacket, green cargo pants, a
multi-colored knit cap, and glasses.
6 Meanwhile, the 911 operator on the phone with the victim
told her that an officer was in contact with "whoever
was outside of [her] house, " and that police would
arrive shortly to speak with her. The police then took the
victim to where Folsom was being detained for a show-up
7 At the show-up the victim identified Folsom as the person
she saw outside her window that evening, stating that she
recognized his glasses. She also told police that she
recognized him from a previous incident at her home nearly
six months prior.
8 Based on the victim's identification, the police
arrested Folsom and conducted a search incident to arrest.
The police seized two iPod devices that Folsom was carrying.
They searched both devices and found numerous videos, which
were admitted into evidence against him.
Admission of the Videos from Folsom's iPods Violated the
Fourth Amendment and Requires Reversal
9 Folsom argues that the warrantless search of his iPods
violated the Fourth Amendment and that because the videos
were admitted into evidence against him, the trial was
infected by constitutional error. We agree.
10 The arresting officers found two iPods on Folsom's
person. Without obtaining a warrant, they searched the iPods
and discovered seventeen videos of two general types. One set
of videos showed fully clothed women walking in public places
- the videos focused on the lower half of the women's
bodies. The second set of videos showed a partially clothed
woman changing clothing and masturbating in a bedroom. These
latter videos appeared to have been taken through a window.
11 Folsom moved to suppress the videos found on his iPods as
a product of an unconstitutional search. The trial court
denied his motion, concluding that the search was a valid
search incident to arrest. All of these videos were admitted
12 The United States Constitution protects individuals from
unreasonable searches and seizures of their homes or
property. U.S. Const. amend. IV. Warrantless searches are
presumptively unreasonable unless they fall under one of the
established exceptions to the warrant requirement. People
v. Dumas, 955 P.2d 60, 62 (Colo. 1998).
13 A search incident to arrest is one such exception.
People v. Marshall, 2012 CO 72, ¶ 10. This
exception "allows law enforcement officers, when making
a lawful arrest, to search an arrestee's person and the
area within the arrestee's immediate control."
People v. Gothard, 185 P.3d 180, 184 (Colo. 2008).
14 Not surprisingly, the application of the Fourth Amendment
to advanced technological devices - some of which are, in
reality, portable computers with amazing storage and other
capabilities - has been difficult. While ordinarily the
police may search a person incident to arrest and seize
contraband or other evidence of a crime without further
justification, courts have recognized that the warrantless
seizure of a person's computer or similar device raises
acute Fourth Amendment issues. See Riley v.
California, 573 U.S.__, __, 134 S.Ct. 2473, 2498 (2014);
United States v. Ganoe, 538 F.3d 1117, 1127 (9th
Cir. 2008); United States v. Turner, 169 F.3d 84
(1st Cir. 1999).
15 In Riley, decided after Folsom's trial, the
Supreme Court held that data stored on a cell phone could not
be searched incident to arrest, and therefore a warrant was
required to search the phone. 573 U.S. at__, 134 S.Ct. at
16 The privacy concerns implicated by searching technological
devices such as smart phones - which are much more
sophisticated than a standard cell phone - are qualitatively
different than privacy concerns "implicated by the
search of a cigarette pack, a wallet, or a purse."
Id. at__, 134 S.Ct. at 2488-89. Modern devices have
large storage capacities and can hold a person's
photographs, text messages, emails, videos, internet browsing
history, calendars, and more. See id. at__, 134
S.Ct. at 2489. "The sum of an individual's private
life can be reconstructed through a thousand photographs
labeled with dates, locations, and descriptions; the same
cannot be said of a photograph or two of loved ones tucked
into a wallet." Id.
17 Just as smart phones are essentially minicomputers - that
happen to have the ability to be used as a telephone,
id. - so are iPods. While an iPod does not have
telephonic capabilities, the arresting officer testified that
the iPods in this case could store videos, photographs, and
music, and access the internet. As relevant here, an iPod is
the Fourth Amendment equivalent of the device addressed in
18 The Attorney General argues that the search of
Folsom's iPods does not require reversal, regardless of
Riley, because the officers relied in good faith on
binding appellate precedent at the time of the search.
Relying on Davis v. United States, 564 U.S. 229, 241
(2011), the Attorney General observes that evidence obtained
when police "conduct a search in objectively reasonable
reliance on binding judicial precedent" is not subject
to the exclusionary rule, and that Davis requires us
to uphold the admission of the videos.
19 We reject the Attorney General's argument because the
judicial opinion relied on, People v. Taylor, 2012
COA 91, abrogated by Riley, 573 U.S.__, 134 S.Ct.
2473, does not address or validate the police conduct at
20 In Taylor, the division held that a warrantless
search of the call history of a cell phone seized
incident to an arrest did not violate the Fourth Amendment.
Taylor, ¶ 17. But, the facts of Taylor
are materially different than the facts presented in this
case. Here, the police did not merely access a call list, as
in Taylor, but instead conducted a full search of
Folsom's iPods (one of which was password protected) and
found the videos, which were introduced at trial. The
division in Taylor specifically noted that it was
"applying the narrower view proposed by some courts that
officers may not search all data contained in a cell
phone" upon arrest. Id. at ¶ 18 (emphasis
added). Because Taylor did not validate the broad
search of a technological device that occurred here, the
Davis good faith exception is inapplicable.
21 Riley held "that a warrant is generally
required before . . . a search [of information on a cell
phone], even when a cell phone is seized incident to
arrest." People v. Omwanda, 2014 COA 128,
¶ 15 (quoting Riley, 573 U.S. at__, 134 S.Ct.
at 2493). Because Riley was decided while
Folsom's convictions were on direct appeal, we must apply
its constitutional holding to this case. Griffith v.
Kentucky, 479 U.S. 314, 328 (1987).
22 Applying Riley, suppression of the videos is
required. See Stone v. Powell, 428 U.S. 465, 482
(1976) ("The exclusionary rule was a judicially created
means of effectuating ...