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People v. Folsom

Court of Appeals of Colorado, Third Division

November 30, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Nimroid Boles Folsom, Defendant-Appellant.

         Boulder 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 Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Inga K. Nelson, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          BERGER JUDGE.

         ¶ 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 misidentification.

         ¶ 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 unconstitutional.[1]

         ¶ 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.

         I. 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 identification.

         ¶ 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[2] that Folsom was carrying. They searched both devices and found numerous videos, which were admitted into evidence against him.

         II. The 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.

         A. Additional Facts

         ¶ 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 at trial.

         B. Law and Analysis

         ¶ 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 2493.

         ¶ 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 Riley.

         ¶ 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 issue here.

         ¶ 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 ...

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