CO: REP in Google search history which also implicates freedom of expression

“First, the court concludes that, under the Colorado Constitution, the defendant 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, the court concludes that the defendant’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 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)). Third, a majority of the court concludes that the warrant at issue adequately particularized the place to be searched and the things to be seized. Fourth, the majority assumes without deciding that the warrant required individualized probable cause and that its absence here rendered the warrant constitutionally defective. Finally, the majority concludes that law enforcement obtained and executed the warrant in good faith, so the evidence shouldn’t be suppressed under the exclusionary rule.” People v. Seymour, 2023 CO 53, 2023 Colo. LEXIS 991 (Oct. 16, 2023):

[*P1] 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.

[*P2] 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.

[*P3] 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 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (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.

[*P4] 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.

Reason: Can Copying Data Be a Fourth Amendment Seizure If Accessing It Is Not a Search? by Orin Kerr; Reason: Odd Colorado Ruling Upholds Internet Keyword Search Warrant J.D. Tuccille (“Court says the warrant was “constitutionally defective” but grants police a good faith exception.”)