18CA1952 Peo v Peterson 01-27-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 18CA1952
Mesa County District Court No. 17CR889
Honorable Valerie J. Robison, Judge
Honorable Richard T. Gurley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jeremy Peterson,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE RICHMAN
Tow and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 27, 2022
Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1
Defendant, Jeremy Peterson, appeals the judgment of
conviction entered on a jury verdict finding him guilty of multiple
counts of aggravated incest, sexual assault on a child, and sexual
exploitation of a child. We affirm the judgment.
I. Background
¶ 2
When she was fourteen years old, A.P. told a trusted friend
that Peterson, who is her father, had been engaging in sexual
activities with her for as long as she could remember. Her friend’s
mother called the police. A.P. and her mother, who is deaf, were
interviewed by the police at the police station that evening.
¶ 3
A.P. confirmed to Detective Mark Post that Peterson had often
made her do one or more acts on a list of “five sexual things” to gain
his permission for her to leave the house. While the interview was
in progress, Peterson, who is also deaf, used a telephone relay
service to call the police department and inquire what was
happening with his wife and child. Post told Peterson that the
police would be coming to the family’s apartment that night and
they wanted to speak to him.
¶ 4
Around 3:00 in the morning, Peterson’s wife accompanied
police to the apartment and let them in. In addition to Post and an
2
agent from child protective services, three other officers (including
one in uniform) were present. Peterson was asleep on the sofa. His
wife woke him up and, using sign language, explained why the
group was there.1 Post began communicating with Peterson using a
notepad and pen. As relevant here, the following written exchange
took place as Peterson sat on the sofa and Post stood in front of
him:
Post: My name is Detective Post. I’m sorry we
don’t sign and we will try to hurry. Can I ask
you a few questions[?]
Peterson: Ok but not [without] lawyer and
certified interpreter. Sorry. Its State/Federal
law requires for it [sic].
Post: We are here involving allegations
involving [A.P.]. We are not here to violate
your [r]ights. We would like to discuss this at
a later time if you are willing. We will
investigate this as quickly as we can. [W]e
hope for your [and mother’s] cooperation. [W]e
will work as quick as we can. For safety
reasons[,] we need to place your children into
monitored care.
Peterson: Really? We are being cooperated
[sic]. Ok I may have time for discussion just
for less than 15 mins.
1 A.P. is the oldest of three children in the Peterson family. The two
other children were in the apartment that morning.
3
Post: Are you offering to make a statement?
Peterson: OK
Post: I am getting a form if you want to do a
statement that I need you to read [and]
unde[rstand]. THIS [w]ill NOT change the
situation [with] your children. . . .
Peterson: [T]here is no point to “monitored
care[.]” You’ll have no proper procedure like
get interpreter or lawyer.
Post: We have tried for assistance with an
interpreter and have not found one[.] [W]e
have to go forward with this [because the]
Department of human services has custody at
this time . . . . [A.P.] has said you do sexual
things to her. For those reasons[,] a safety
plan has been enacted [f]or [a]ll the kids.
Peterson: Instead of monitored care, take me
instead? . . .
Post: We are not arresting you. We have to
look into this matter. Why should we take
you?
Peterson: Cuz we rather this baby stays.
Post: Again that is not an option.
¶ 5
After this exchange, several witnesses testified that Peterson
reviewed and signed a Miranda advisement form. However, at the
time of the suppression hearing, the form could not be located and,
therefore, it is not part of the record.
4
¶ 6
Once the children were removed from the apartment, the
written exchange between Post and Peterson resumed:
Post: I am sorry for all this. Do you remember
the form you signed?
Peterson: Yes
Post: Are you willing to make a statement still?
Peterson: OK
Post: Tell me about what happens with [A.P.]
. . . .
Peterson: So basically, I made mistakes. I
know I was wrong to do sexual thing/abuse. I
was stupid, OK. . . . Is this off the record?
Post: NO this is on reco[rd]. What happened
with [A.P.]?
¶ 7
Peterson responded by describing multiple incidents of sexual
contact with A.P. At 5:40 a.m., police placed Peterson under arrest.
Of the approximately two hours and forty minutes that had passed
since the group’s arrival, twenty to thirty minutes were spent
gathering the children’s personal items and removing the children
from the apartment. No interrogation occurred during that time.
¶ 8
The day after Peterson’s arrest, Post interviewed A.P. She told
Post that Peterson took sexually explicit photos of her and saved
them to a hidden file on a black hard drive in her brother’s room.
5
Police secured a warrant to search the apartment. While executing
the warrant, police seized several digital storage devices, including
the hard drive. They also seized four handwritten paper notes.
Their subsequent2 search of the hard drive revealed sexually explicit
photos and videos of A.P.
¶ 9
Prior to trial, in separate motions, Peterson moved to suppress
(1) his written exchange with Post, arguing that the statements
contained therein were involuntary and procured in violation of the
Fifth Amendment protections recognized in Miranda v. Arizona, 384
U.S. 436 (1966), and the Americans with Disabilities Act (ADA),
42 U.S.C. §§ 12131-12134; (2) the four handwritten notes because
they were not within the scope of the warrant or in plain view; and
(3) as relevant here, items discovered during the search of the hard
drive because the supporting warrants were overbroad.
¶ 10
Concluding that Peterson was not in custody, his statements
were voluntarily made, and non-compliance with the ADA did not
provide a legal basis for suppression, the trial court declined to
2 A warrant executed after the search of the hard drive authorized
police to search “all files contained on any of the seized devices.”
6
suppress the written statements. The court did grant suppression
of one “handwritten letter” because it was not within the scope of
the warrant, and the People did not demonstrate it was in plain
view. The court did not address the other handwritten notes. It
declined to suppress items revealed in the search of digital media,
determining that the warrants were not overbroad because they
“expressly identify the type of evidence to be searched” — child
pornography.
¶ 11
On appeal, Peterson contends that the trial court reversibly
erred insofar as it denied his motions to suppress. We address
each type of evidentiary item in turn.
II. Standard of Review
¶ 12
Motions to suppress raise mixed questions of fact and law. We
defer to a trial court’s findings of fact so long as the record supports
them, but we review its legal conclusions de novo. People v. Allen,
199 P.3d 33, 35 (Colo. App. 2007). We may also rely on facts that
were not included in the trial court’s findings but are undisputed in
the record. People v. Garcia, 2017 CO 106, ¶ 18. We consider only
the record of the suppression hearing. People v. Thompson, 2021
CO 15, ¶ 16.
7
III. Suppression of the Written Statements
¶ 13
We first address Peterson’s contention that his written
statements were procured through violations of his Fifth
Amendment privilege and his statutory rights as a person with a
disability.
A. The Fifth Amendment Privilege
¶ 14
The Fifth Amendment protects a criminal defendant’s right not
to make compelled statements in which he serves as a witness
against himself. U.S. Const. amends. V, XIV, § 1. To ensure that
state actors respect this right when they question suspects, a court
must suppress all statements made during custodial interrogation
unless a criminal defendant has waived his Fifth Amendment
privilege after being advised of his Miranda rights. People v.
Hankins, 201 P.3d 1215, 1218 (Colo. 2009). But, the police are not
required to give Miranda warnings to everyone they question. Id.
Warnings need only be given to people whose freedom has been so
restricted as to render them “in custody.” Id. (quoting Oregon v.
Mathiason, 429 U.S. 492, 495 (1977)). On the other hand, even
absent custodial interrogation, only statements that are voluntarily
made are admissible. People v. Coke, 2020 CO 28, ¶ 17.
8
¶ 15
Here, as in the trial court, Peterson asserts that he was in
custody when Post interrogated him, and even if he was not, his
statements were made involuntarily.
B. Custody
¶ 16
“A person is in custody for Miranda purposes if [he] has been
formally arrested or if, under the totality of the circumstances, a
reasonable person in the suspect’s position would have felt that
[his] freedom of action had been curtailed to a degree associated
with formal arrest.” Garcia, ¶ 20. To aid courts in determining
whether a defendant was in custody for Miranda purposes, the
supreme court has outlined a non-exclusive list of material factors.
They are:
(1) the time, place, and purpose of the
encounter; (2) the persons present during
the interrogation; (3) the words spoken by
the officer to the defendant; (4) the officer's
tone of voice and general demeanor; (5) the
length and mood of the interrogation; (6)
whether any limitation of movement or
other form of restraint was placed on the
defendant during the interrogation; (7) the
officer's response to any questions asked
by the defendant; (8) whether directions
were given to the defendant during the
interrogation; and (9) the defendant's
verbal or nonverbal response to such
directions.
9
People v. Matheny, 46 P.3d 453, 465-66 (Colo. 2002) (citation
omitted). No one factor is dispositive. Garcia, ¶ 20.
¶ 17
For several reasons, we conclude that Peterson was not in
custody when Post interrogated him.
¶ 18
First, the time and place of the encounter were not coercive
when viewed in light of the full record. Although officers arrived at
3 a.m. — a time when an individual might be caught by surprise
and, thus, feel that his options were limited — Peterson himself
initiated communication with the police and was told that they
would be coming to talk to him. The trial court also found that
Peterson’s wife “could and did freely communicate with [him] using
sign language the entire time everyone was in the apartment,” and
it is undisputed that she let the police into the apartment, a neutral
location for questioning. Id. at ¶ 22.
¶ 19
Second, the purpose of the encounter was twofold: to remove
the children from the home and to question Peterson. While the
intent to question Peterson shows that police considered him a
criminal suspect, an expectation of eventual arrest does not turn a
non-custodial circumstance into a custodial one. Hankins, 201
P.3d at 1219 (noting that “expectation, apprehension, or knowledge
10
of inevitable arrest are not the Miranda triggers; custody is”). And
police were also there to address child welfare concerns, a neutral
purpose. Garcia, ¶ 27 (determining that the defendant was not in
custody because, among other factors, police were present to
conduct a welfare check).
¶ 20
Third, the trial court found, with record support, that the
written exchange between Post and Peterson was courteous and
professional, the non-verbal conduct of the police was not
aggressive or threatening, and the police did not direct Peterson to
do anything except read the Miranda advisement. See Matheny, 46
P.3d at 467 (citing the “polite” and “reasonable” tone as a factor
weighing against a finding of custody); see also People v. Clark,
2020 CO 36, ¶ 31 (noting that an officer’s conversational tone
militated against the conclusion that the defendant was in custody).
¶ 21
In addition, the officers never threatened him, and made no
promises other than that they would attempt to complete the
investigation quickly. Post also informed Peterson that his
agreement to speak with the police would not change the situation
with the children. When he asked whether the exchange was “off
the record,” Post told him that the conversation was “on record.”
11
¶ 22
Fourth, although some factors might appear to weigh in favor
of the conclusion that Peterson was in custody, the potential
coercive effect of these factors is mitigated by the context. At the
time of questioning, four police officers stood near the defendant,
including one officer who leaned against the front door. Although
the number of officers standing near Peterson was large, the trial
court found that the reason for the officers’ proximity was the tight
layout of the apartment and the fact that it was packed with boxes
due to a recent move. There is no evidence that the police hovered
over Peterson in an attempt to prevent his escape.
¶ 23
Moreover, while there were four officers present, only one of
them communicated with Peterson. Garcia, ¶¶ 30-31 (noting that
courts have often distinguished between the number of officers
present at the scene and the number of officers focused solely on
the defendant); see also Clark, ¶ 33. True, as a safety precaution,
one officer followed Peterson and his wife around the apartment
while they gathered items for the children, but the undisputed
testimony was that the officer did not draw his weapon or try to ask
Peterson any questions or physically restrain him.
12
¶ 24
Fifth, according to the undisputed record, Peterson asked Post
to “take [him] instead” of the children. Post responded, “We are not
arresting you. We have to look into this matter.” Thus, Post
indicated that the police were not prepared to arrest Peterson until
they had additional information. Such an exchange would not give
a reasonable person the impression that he was under arrest.
People v. Sampson, 2017 CO 100, ¶ 29 (concluding the defendant
was not in custody during questioning because an officer informed
the defendant that he would be arrested at a later time); see also
Clark, ¶ 32.
¶ 25
Finally, while acknowledging that the custody test is an
objective one, our review of the totality of the circumstances
requires that we consider Peterson’s deafness and the limitations
his disability might have presented. See J.D.B. v. North Carolina,
564 U.S. 261, 278 (2011) (noting the state’s concession that a
suspect’s personal characteristics — for example, blindness — may
be relevant to the custody analysis and finding age to be a relevant
factor in some circumstances). As Peterson has argued, and as a
division of this court has recognized, deafness may severely impair
a person’s ability to understand English. People v. James, 937 P.2d
13
781, 783 (Colo. App. 1996). In fact, English is a second language
for many deaf people. Aviva Twersky-Glasner, Miranda Warnings
and Deaf Suspects: It is Not Just a Matter of Translation, 42 No. 5
Crim. Law Bulletin 4 (Fall 2006). Therefore, written communication
may or may not be an effective means of communicating with a deaf
person, depending on his level of English literacy. We recognize
that an inability to communicate with officers might impair a
person’s understanding that he is not under arrest. Id.
¶ 26
However, other than raising his status as a deaf person,
Peterson presented no evidence that he had difficulties
understanding written English. The trial court was able to examine
the contents of his written communications with Post, as are we.
Our review of the exchange reveals that Peterson understood
English rather well. He responded appropriately to Post’s questions
and answers, and he asked several clarifying questions. He never
indicated that, despite Post’s clarifications, he could not understand
what was happening.
¶ 27
Moreover, in cases involving defendants who spoke English as
a second language, other divisions of this court have concluded that
basic English skills are sufficient to effect a valid waiver of Miranda
14
1991). We similarly conclude that any alleged linguistic deficits did
not demonstrably prevent Peterson from comprehending the
conversation he had with Post.
¶ 28
Peterson was not in custody when Post interrogated him.
Therefore, further analysis of the sufficiency of the Miranda
advisement, or the validity of the waiver, is unnecessary.
C. Voluntariness
¶ 29
Peterson contends that his written statements were
involuntary because Post ignored his request for a lawyer and
interpreter, and he used the removal of the children to compel
Peterson to answer questions.
¶ 30
When determining whether statements were involuntary, we
consider the totality of the circumstances. Coke, ¶ 18. The
analysis involves a two-step process. We first consider whether
police conduct was coercive. Id. at ¶ 19; see Colorado v. Connelly,
479 U.S. 157, 167 (1986) (noting that “coercive police activity is a
necessary predicate to the finding that a confession is not
‘voluntary’”). We then consider whether coercive police conduct
played a significant role in inducing Peterson to make the
15
challenged statements. If such conduct did not play a significant
role, the statement will be considered voluntary. Coke, ¶¶ 19, 31.
¶ 31
When determining whether police conduct was coercive, courts
should evaluate
(1) whether the defendant was in custody; (2)
whether the defendant was free to leave; (3)
whether the defendant was aware of the
situation; (4) whether the police read Miranda
rights to the defendant; (5) whether the
defendant understood and waived Miranda
rights; (6) whether the defendant had an
opportunity to confer with counsel or anyone
else prior to or during the interrogation; (7)
whether the statement was made during the
interrogation or volunteered later; (8) whether
the police threatened [the] defendant or
promised anything directly or impliedly; (9) the
method of the interrogation; (10) the
defendant’s mental and physical condition just
prior to the interrogation; (11) the length of the
interrogation; (12) the location of the
interrogation; and (13) the physical conditions
of the location where the interrogation
occurred.
Id. at ¶ 20 (citation omitted). Courts may also consider other
factors, bearing in mind that physical abuse is not necessary to
support a finding of coercion. A statement is not voluntary if it is
extracted by threats or improper influence or is the product of
direct or implied promises to the defendant. People v. Gennings,
16
808 P.2d 839, 843 (Colo. 1991); People v. Marston, 2021 COA 14,
¶ 13.
¶ 32
Based on the totality of the circumstances, we agree with the
trial court’s conclusion that Peterson’s statements were voluntary.
¶ 33
As noted above, Peterson was not in custody and he was in a
neutral location when Post interrogated him. Although he was
given a Miranda advisement form and he read and signed it,3 the
trial court made no finding regarding whether he understood the
contents of the form. We therefore do not proceed under the
premise that the advisement form functioned as a full advisement of
rights.
¶ 34
Even so, the fact that the police gave Peterson the advisement
form militates against the conclusion that they acted in a coercive
manner. At a minimum, it shows that the police attempted to
ensure Peterson understood he had certain rights. Peterson’s wife
3 The fact that Post chose to give Peterson an advisement form does
not undercut our conclusion that he was not in custody. An
advisement alone does not preclude a finding that a defendant was
not in custody based on the totality of the circumstances. People v.
Sampson, 2017 CO 100, ¶ 31 (noting that although the defendant
was given an advisement, he was not in custody).
17
testified that he told her the advisement form concerned his
“confidentiality rights.” Thus, he knew that the police gave him a
form to explain his rights.
¶ 35
Peterson asserts that the police, nonetheless, attempted to
coerce him by pairing information about removal of the children
with a request to ask him questions. The record belies this
assertion. Post made no promises or threats related to the children.
In fact, he told Peterson that his decision to answer questions
would not change that situation. We are not persuaded that Post
used the children’s removal to induce Peterson’s statement.
¶ 36
We are similarly unpersuaded by Peterson’s contention that
police coerced him to speak by failing to provide an interpreter or
an attorney. While Peterson initially asked for an attorney and an
interpreter, he was not in custody at the time and no clear
precedent mandated that Post stop interrogating him. See United
States v. Bautista, 145 F.3d 1140, 1147 (10th Cir. 1998); see also
People v. Trujillo, 773 P.2d 1086, 1092 (Colo. 1989) (holding that the
release of a defendant who has previously invoked his right to
counsel while in police custody terminates the constraint that
interrogation must cease until an attorney is present because “the
18
defendant is no longer under the inherently compelling pressures of
continuous custody”). Despite that fact, Post told Peterson in
response to his request for an attorney, “We would like to discuss
this at a later time if you are willing.” It was Peterson who then
volunteered to give a statement, impliedly without an attorney or
interpreter, while police were at the apartment.
¶ 37
Further, although the interrogation was rather long — at least
two hours — it was conducted entirely in writing, a form of
communication that is not terribly efficient. Given the consistently
polite tenor of the extended written exchange, we are not convinced
that this factor, alone, demonstrates police coercion.
¶ 38
For these reasons, we conclude that Peterson’s written
statements were voluntary, and the trial court properly declined to
suppress them.
D. Statutory Law
¶ 39
Peterson argued in the trial court that the failure to provide an
interpreter violated the ADA,4 requiring suppression of his
4 Peterson does not specify which section of the ADA he relies on.
However, based on the language quoted in the opening brief, it
appears he relies on 42 U.S.C. §§ 12112(b)(5)(A),12131-12132.
19
statements. On appeal, he also argues that the failure to provide
an interpreter violated section 13-90-204(1)(d), C.R.S. 2021.
¶ 40
In support of his assertion that a violation of the ADA may
trigger suppression of evidence, Peterson cites only one case,
Seremeth v. Bd. of Cnty. Comm’rs, 673 F.3d 333 (4th Cir. 2012). He
asserts that in Seremeth, “the Fourth Circuit has held that police
investigations are subject to the ADA’s framework.” Seremith does
so hold. Id. at 338-39. However, Seremith is a civil case and the
opinion does not address whether violation of the ADA may support
suppression of evidence in a criminal case.
¶ 41
Even if we assume police conduct violated the ADA, it is not
clear that an ADA violation triggers suppression of evidence in the
criminal context. Nathan v. Municipality of Anchorage, 955 P.2d
528, 532-33 (Alaska. 1998) (concluding that a violation of the ADA
did not trigger the exclusionary rule because it did not necessarily
impair a deaf defendant’s ability to exercise his constitutional
rights); State v. Piddington, 607 N.W.2d 303, 309-10 (Wis. Ct. App.
2000) (same). Peterson makes no attempt to explain why a violation
of the ADA supports such a remedy. We do not address skeletal
20
arguments and decline to do so here. People v. Leverton, 2017 COA
34, ¶ 65.
¶ 42
Similarly, although section 13-90-204(1)(d) requires “[a]n
appointing authority” to “provide a qualified auxiliary services
provider to interpret” proceedings “[w]hen a person who is deaf,
hard of hearing, or deafblind is arrested and taken into custody,”
Peterson was not in custody during the relevant time period. He
makes no argument that section 13-90-204(1)(d) applies outside the
custodial context. Given the lack of substantive argument, we
decline to address the implications of this statute. Leverton, ¶ 65.
IV. Suppression of the Notes
¶ 43
We next address Peterson’s contention that the trial court
should have suppressed two more of the four handwritten notes
seized in the initial search. Although these notes were admitted at
the suppression hearing upon the People’s motion, defense counsel
did not make any arguments specific to them and the trial court did
not address them in its suppression order.
¶ 44
At trial, A.P. testified to multiple incidents of sexual abuse. As
relevant here, she testified that, during one incident, Peterson came
to her room and wanted her to do “[the] five [sexual things].” She
21
pretended to go to sleep. The next morning, he made her pick one
of the five acts and do it. After this testimony, the People showed
A.P. the first handwritten note. It said, “[A.P], Wake me up when
you wake up please. The promise! Thx Daddy.” The note was
admitted without objection. A.P. testified that “this note was during
the incident when I had pretended to go to sleep. He made me
promise to do one of the five things . . . he had wrote this note
telling me to wake him up when I got up.”
¶ 45
The People next showed A.P. the second note, which said,
“Mom, I’m just outside. I’ll keep check[ing] in every hour. B[y the
way], dad said okay for me to go outside + play[.] [Heart] u, [A.P.]”
She testified that she wrote the second note when she “had wanted
to go han[g] out with my friends outside so I’d asked my dad for
permission and he told me that if I wanted to go outside . . . I had to
do one of the five things with him.” The note was admitted over
foundation and relevance objections.
¶ 46
The next day, defense counsel raised a concern that while the
two notes were given to him in discovery, “the explanations that
were elicited from the witness about how those notes corresponded
to specific sexual acts is found nowhere in discovery.” Counsel
22
asserted “some sort of violation here of discovery and Mr. Peterson’s
due process” and “if the significance of these notes had been
anywhere in discovery . . . I would have moved to suppress those
two notes . . . because they were found in the same manner as the
[suppressed letter].” Counsel later clarified, “My request i[s] that
the Court find that there is a Rule 16 violation because the
Prosecution specifically elicited a statement from a witness that was
not disclosed.” The court denied the request.
¶ 47
Peterson now argues that, upon learning that the notes were
found in the same manner as the suppressed letter, the trial court
had an obligation to construe counsel’s Crim. P. 16 motion as a
Crim. P. 41(e) motion to suppress.
A. Law
¶ 48
A Rule 41(e) motion to suppress is a claim that a defendant’s
Fourth Amendment rights were violated. People v. Cunningham,
2013 CO 71, ¶ 10. By contrast, a Rule 16 motion to exclude is a
claim that the court should order sanctions because materials were
not disclosed in violation of a rule of criminal procedure. See Crim.
P. 16(III)(g). Thus, when a party makes a motion under Rule 16, he
is not necessarily raising a constitutional claim.
23
¶ 49
Further, a Rule 41(e) motion “shall be made and heard before
trial unless an opportunity therefor did not exist or the defendant
was not aware of the grounds for the motion, but the court, in its
discretion, may entertain the motion at the trial.” Crim. P. 41(e).
Thus, trial courts have discretion to entertain midtrial motions to
suppress, but they may deny late-filed motions if the grounds cited
were known or “reasonably discernible” before trial. People v. Tyler,
874 P.2d 1037, 1039 (Colo. 1994). “Ordinarily, a trial court is not
required to entertain a suppression motion at trial.” People v.
Cornelius, 41 Colo. App. 182, 186, 585 P.2d 295, 298 (1978).
B. Analysis
¶ 50
Peterson has not cited, and we have not found, any case
standing for the proposition that when “due process” is mentioned,
a trial court must convert a procedural motion to a constitutional
one. Because the legal grounds for these motions are different and
defense counsel’s arguments focused only on discovery issues, we
cannot fault the trial court for failing to divine Peterson’s Fourth
Amendment argument from his brief mention of “due process.” In
addition, even if the court had perceived that Peterson was
24
impliedly proceeding under Rule 41(e), he does not explain why the
court was required to hear his late-filed motion.
¶ 51
Thus, we conclude that counsel failed to preserve the
argument that admission of the notes violated Peterson’s Fourth
Amendment rights or that the court was required to hear a midtrial
Rule 41(e) motion. People v. Tallent, 2021 CO 68, ¶ 12 (“To preserve
a claim, a party must make an objection ‘specific enough to draw
the trial court’s attention to the asserted error.’”) (citation omitted).
We review only for plain error. Id. An error is plain when it is
obvious, and it “so undermines the fundamental fairness of the trial
itself as to cast serious doubt on reliability of the judgment of
conviction.” Id. at ¶ 20 (citing Crim. P. 52(b)); see also Hagos v.
People, 2012 CO 63, ¶ 14.
¶ 52
Any error was not obvious. Peterson made no substantive
argument based on the Fourth Amendment. Further, the notes
were of ancillary importance in the trial. They supported A.P.’s
testimony that one particular incident had occurred and her general
assertion that she was made to trade sexual favors for childhood
privileges. This testimony was detailed and compelling on its own,
and although relevant, the notes did not substantially add to the
25
explicit evidence presented. Therefore, the reliability of the
judgment of conviction is not in doubt. If the trial court erred by
failing to suppress the notes, the error was not plain.
V. Suppression of Digital Materials
¶ 53
We next address Peterson’s argument that the trial court
should have suppressed photos and videos of A.P. found on the
hard drive because the supporting warrant was overbroad.
¶ 54
The search of the hard drive was supported by a warrant that
authorized the seizure of:
[A]ll hard drives, computers, laptops, tablets,
Apple devices, android devices, external media
storage devices, smartphones, flash drives,
and any other device which might store digital
files and media; any visual depiction of
minor(s) engaged in sexually explicit conduct
or child erotica in any format or media
including, but not limited to, photographs,
magazines, photocopies or photographs,
videocassette tapes, photographic and motion
picture film, and computer images.
It further authorized police to acquire and examine “all files
contained on any of the seized devices.”
A. Law
¶ 55
When police conduct a search pursuant to a warrant, it is
generally deemed “reasonable” and therefore compliant with the
26
Fourth Amendment. Thompson, ¶ 18. However, the Fourth
Amendment requires that warrants “particularly describ[e] the place
to be searched, and the persons or things to be seized.” Id. at ¶ 17
(quoting U.S. Const. amend. IV). General exploratory searches are
not permitted. Id. at ¶ 18.
¶ 56
A general search is one in which the warrant permits officers
to conduct a “general, exploratory rummaging in a person’s
belongings.” People v. Herrera, 2015 CO 60, ¶ 19 (quoting People
v. Roccaforte, 919 P.2d 799, 802 (Colo. 1996)). By contrast, a
warrant is sufficiently particular if it “enables the executing officer
to reasonably ascertain and identify the things authorized to be
seized.” Roccaforte, 919 P.2d at 803. What makes a warrant
sufficiently particular varies according to the information available
to the police and the type of items to be seized. People v. Hearty,
644 P.2d 302, 312 (Colo. 1982). Searches of computers must be
limited to evidence of specific crimes or types of material. United
States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005).
¶ 57
An affidavit can cure an overbroad warrant if the warrant
incorporates the affidavit by reference, both documents are
presented to the issuing magistrate or judge, and the curative
27
affidavit accompanies the warrant during its execution or the
warrant is executed by the affiant. Roccaforte, 919 P.2d at 803;
People v. Staton, 924 P.2d 127, 132 (Colo. 1996). The parties do not
appear to dispute that all three of these criteria are met in this case.
B. Analysis
¶ 58
In the warrant at issue here, the description of which devices
could be seized was undoubtedly broad. It included any “device
which might store digital files and media.” The trial court
construed this broad description as limited by the subsequent
description of the type of items sought. They included “any visual
depiction of minor(s) engaged in sexually explicit conduct or child
erotica in any format or media.” In other words, child pornography.
¶ 59
This reading of the warrant is buttressed by the affidavit,
which stated that (1) Peterson had shown A.P. pornography; (2)
asked her to do some of the things shown; (3) used his laptop to
take pictures of A.P. complying; and (4) stored the images on a hard
drive. It further stated that Peterson had told Post he started
engaging in sexual contact with A.P. when she was approximately
six years old. Based on these and other allegations, the affidavit
asserted there was probable cause to believe that between June
28
2009 and May 2017, the crime of sexual exploitation of a child had
been committed.
¶ 60
When read together, we conclude that the warrant and
affidavit were limited to the search and seizure of items created
during a certain time period and to a certain type of evidence —
child pornography. The broad scope of the warrant was
necessitated in part by the information available to police, who had
reason to believe that Peterson’s criminal conduct spanned nearly
eight years, and that he had stored multiple images of child
pornography on one or more digital devices. Under these
circumstances, the affidavit cured any potential deficiencies and we
conclude that the warrant was not overbroad.
¶ 61
Peterson insists that we should rely on case law addressing
the scope of permissible cell phone searches. See Riley v.
California, 573 U.S. 373, 401 (2014); Coke, ¶ 37; Herrera, ¶ 1.
These cases may be distinguishable as a class because Colorado
case law has recognized that, given a cell phone’s unique portability
and functionality, cell phone searches raise special privacy
concerns under the Fourth Amendment. Thompson, ¶ 19.
29
¶ 62
Even so, they are also distinguishable on their facts. Riley
concerned the permissible scope of warrantless cell phone searches.
573 U.S. at 401. Here, police had a warrant. In Coke, a warrant
was deemed insufficiently particular because it did not specify an
alleged victim or time period, and it authorized the search of
multiple types of data and databases, including phone records,
contact lists, and all data constituting evidence of ownership or
possession. Coke, ¶ 38. Here, the affidavit defined the relevant
time period and the warrant only authorized a search for child
pornography. Similarly, Herrera prohibits the general search of cell
phones for all “indicia of ownership.” Herrera, ¶ 4. In this case, the
People did not rely on a such a broad and amorphous justification.
Rather, they had specific information that Peterson possessed child
pornography and they sought authorization to search for that kind
of evidence.
¶ 63
Accordingly, we conclude that the warrant did not violate the
Fourth Amendment’s particularity requirement.
VI. Conclusion
¶ 64
We affirm the judgment.
JUDGE TOW and JUDGE GROVE concur.
