CO: REP in one’s own tax preparer’s files

Defendant had standing to challenge the search of his tax preparer’s office for his tax returns because he has a reasonable expectation of privacy. The warrant as to him was general. People v. Gutierrez, 222 P.3d 925 (Colo. 2009), Court’s syllabus:

The Colorado Supreme Court holds that the trial court properly suppressed evidence obtained pursuant to an unlawful search of defendant Gutierrez’s tax returns and supporting documentation, which were found in his client file police seized from his tax preparer’s office. First, Gutierrez has standing under the Fourth Amendment to object to a search of his client file. A taxpayer has a reasonable expectation of privacy in his or her tax returns and return information, even when that information is in the custody of a tax preparer. This reasonable expectation of privacy is based on federal and state laws that protect the confidentiality of tax returns and return information. Second, Gutierrez’s client file was searched in violation of the Fourth Amendment. The affidavit supporting the warrant did not name Gutierrez or refer to him in any way and therefore failed to establish individualized probable cause to search his client file. Finally, the good faith exception to the exclusionary rule does not apply in this case because the affidavit supporting the warrant was so lacking in indicia of probable cause to search Gutierrez’s file that no reasonably well-trained officer could have relied upon it. Therefore, suppression of the evidence was appropriate.

News stories: Greeley Tribune, Law Week Colorado, AP.

Electric company had right to investigate theft of electricity, and taking a cop along did not make it a law enforcement search. United States v. Sanchez-Paz, 2009 U.S. Dist. LEXIS 115723 (M.D. Fla. November 24, 2009)*:

Here, law enforcement obviously knew of and acquiesced in Progress Energy’s inspection of the meter at 3630 Twisted Oak Court. The inquiry then focuses on the second requirement, that is, whether in conducting the search Progress Energy was motivated by assisting law enforcement or by furthering its own legitimate interests.

Progress Energy has a legitimate business interest in ensuring that its electricity is not stolen. It has a lawful right to enter the premises of its customers to inspect and maintain its meters and make sure that its meters are not being circumvented. It would not be unusual for these inspections to take place after receipt of a tip that electricity was being stolen, whether that tip comes from an anonymous citizen or from the police. When a tip is received from the police, Progress Energy’s inspector does not thereby become an agent of the police.

Here, while Detective Angulo did enter upon the property, he did so only after Farrans requested Angulo to do so and went only so far as necessary to keep Farrans and the pit bulls in sight for Farrans’ safety. This limited involvement on the part of Detectives Angulo and Edmiston does not make them participants in the search, or Farrans their agent.