v. N.T.B , 2019 COA 150 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
October 3, 2019
2019COA150
No. 18CA1613, People v. N.T.B. — Evidence — Admissibility —
Authentication — Hearsay — Machine-generated Records —
Hearsay Exceptions — Records of Regularly Conducted Activity
A division of the court of appeals addresses the admissibility of
evidence from a cloud storage account. First, the division holds
that an investigating detective could provide sufficient background
to authenticate records produced in response to a search warrant
served on the cloud storage and internet service providers under
CRE 901. Second, the division agrees with the trial court that
because these records include statements that constitute hearsay,
and because the prosecution had not listed a custodian to provide
necessary foundation under CRE 803(6), they were
inadmissible. The division distinguishes cases dealing with the
admissibility of electronic communications, such as emails and
Facebook postings.
COLORADO COURT OF APPEALS 2019COA150
Court of Appeals No. 18CA1613
El Paso County District Court No. 16CR4823
Honorable Robert L. Lowrey, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
N.T.B.,
Defendant-Appellee.
RULING APPROVED
Division III
Opinion by JUDGE WEBB
Dunn and Lipinsky, JJ., concur
Announced October 3, 2019
Daniel H. May, District Attorney, Oliver Robinson, Deputy District Attorney,
Tanya A. Karimi, Deputy District Attorney, Colorado Springs, Colorado, for
Plaintiff-Appellant
No Appearance for Defendant-Appellee
¶1 Evidence stored in an account on a remote cloud server raises
novel questions of authentication and the business-records
exception to the hearsay rule. The district attorney appeals the trial
court’s pretrial order dismissing all charges against N.T.B.1 The
court held that the prosecutor failed to present a witness to
authenticate records of the cloud storage custodian and internet
service provider, which were necessary to link N.T.B. to sexually
exploitative material stored in the cloud. And even if the
prosecution could have authenticated these records, the court held
that they contained inadmissible hearsay. Because the prosecutor
provided no basis for admitting them under the business-records
exception, the trial court refused to admit them. We agree with the
district attorney that the prosecutor proffered sufficient evidence of
authenticity but reject his contention that the documents were not
hearsay. Therefore, we approve the trial court’s ruling.
I. Background
¶2 Dropbox flagged a cloud-storage account that it suspected
contained child pornography. The company provided the National
1 N.T.B. has not entered an appearance in this court.
1
Center for Missing and Exploited Children with a video and an
account identification number, an email address, account activity
log, and internet protocol (IP) address tied to the upload. 2 The
Center forwarded this information to local police.
¶3 The police served a search warrant on Dropbox, which
produced everything stored in the account, and viewed the original
video. They also viewed other videos that they believed contained
sexually exploitative material, along with two still pictures of N.T.B.,
all of which were in the account. 3 The police traced the IP address
to Comcast, the internet service provider, which identified a
physical address for the internet account in response to a search
warrant. The account was owned by N.T.B.’s then-girlfriend and
his roommate.
2 People v. Garrison, 2017 COA 107, ¶¶ 23-29, ¶ 24 n.3, explains
that an IP number is a unique address assigned to a computer
connected to the internet, and how an IP address can be traced to a
residential address with information provided by an internet service
provider. See also United States v. Miller, No. CV 16-47-DLB-CJS,
2017 WL 2705963, at *1 (E.D. Ky. June 23, 2017) (explaining how
cloud storage providers identify suspected child pornography
through “hashing” technology and report their findings to the
Center).
3 The videos, photographs, and activity log are not in the appellate
record.
2
¶4 Next, the police executed a search warrant on their shared
residence, where one detective interviewed N.T.B. He admitted to
owning a Dropbox account associated with his work email address,
which was the email address that Dropbox had provided, and
watching pornography that others shared with him over Snapchat.
But he did not confirm the account number.
¶5 The prosecution charged N.T.B. with three counts of sexual
exploitation of a child under section 18-6-403(3)(b.5), C.R.S. 2019,
based on his possession or control of pornographic videos in the
account.
¶6 Before jury selection on the morning of trial, N.T.B. moved in
limine to exclude all records obtained from Dropbox and Comcast,
but not the videos. He argued that these documents were business
records that contained hearsay, which would be admissible only if
authenticated under either CRE 803(6) or by a certification that
complied with CRE 902(11). The prosecutor had neither endorsed a
records custodian to testify concerning the requirements of
CRE 803(6) nor provided an affidavit and notice under CRE 902(11).
¶7 The prosecutor responded that the records could be
authenticated under CRE 901(b)(1) and (4) based on testimony from
3
the investigating detective and distinctive information that
connected N.T.B. to the Dropbox account obtained through the
search warrants. He asserted that the records were not hearsay
because “[t]here [was] no declarant” and that N.T.B. had admitted
to owning a Dropbox account associated with his work email
address.
¶8 After hearing arguments from defense counsel and the
prosecutor, which included a proffer of the investigating detective’s
anticipated testimony, and taking a short recess to research the
issue, the court ruled that the records would not be admissible at
trial. It explained that “[t]here was no one to authenticate th[e]
documents”; additionally, the court held that these documents were
business records which contained hearsay. 4 And because the
4 At one point, the court indicated, “[The prosecutor] has posed the
notion that you can authenticate documents otherwise under [CRE]
901, specifically [Rule] 901(4). I suppose arguably that under [Rule]
901(b)(4) to 901(b)(1), testimony that the matter is what it is
claimed to be . . . . Authentication can be accomplished by
sufficient evidence to show that something is what it purports to
be . . . .” A bit later, in the court’s analysis of People v. Marciano,
2014 COA 92M-2, which was “the closest opinion [the court] found
to the issue raised” in this case, the trial court adopted the
Marciano court’s business records rationale for exclusion.
4
prosecutor had not endorsed a custodian to testify nor provided an
affidavit and notice, the trial court would not admit them.
¶9 The prosecutor conceded that without this evidence, the case
could not be proven, and only twelve days remained before the
speedy trial deadline would lapse. Then the court granted N.T.B.’s
motion to dismiss and sealed the case.
II. Jurisdiction and Standard of Review
¶ 10 Section 16-12-102(1), C.R.S. 2019, allows the prosecution to
appeal a “final order” in a criminal case “upon any question of law.”
An order that dismisses one or more counts of a charging document
before trial constitutes a final order. Id.; see also People v.
Gabriesheski, 262 P.3d 653, 656-57 (Colo. 2011) (requiring appeals
under section 16-12-102(1) to comply with the final judgment
requirement of C.A.R. 1). And an evidentiary ruling may be
appealed if the trial court made its ruling based on an allegedly
erroneous interpretation of the law. People v. Welsh, 176 P.3d 781,
791 (Colo. App. 2007); see also Gabriesheski, 262 P.3d at 658 (“[I]t
is enough here that [the prosecution’s issues] posed questions of
law and arose from decisions of a criminal court that had become
final, within the contemplation of section 16-12-102(1) . . . .”).
5
¶ 11 “Because we must always satisfy ourselves that we have
jurisdiction to hear an appeal, we may raise jurisdictional defects
sua sponte, regardless of whether the parties have raised the issue.”
People v. S.X.G., 2012 CO 5, ¶ 9. We review questions of law de
novo. See People v. Ross, 2019 COA 79, ¶¶ 2-10, 26.
¶ 12 The trial court held the Dropbox and Comcast records were
business records that it could not admit without testimony or an
affidavit from the custodians. See CRE 803(6), 902(11). The court
made no findings of fact and did not weigh the evidence proffered by
the prosecutor. Instead it relied entirely on its interpretation of the
rules of evidence and relevant case law. So, while the district
attorney is appealing an evidentiary ruling, that posture does not
preclude appellate jurisdiction under section 16-12-102(1) when the
question presented focuses on the proper application of the
controlling legal standard. Welsh, 176 P.3d at 792; see People v.
McLeod, 176 P.3d 75, 76 (Colo. 2008) (holding that a trial court’s
interpretation of the rape-shield statute presented an appealable
question of law under section 16-12-102(1)); see also People v.
Medina, 25 P.3d 1216, 1223 (Colo. 2001) (whether a statement
constitutes hearsay is a legal conclusion).
6
¶ 13 In sum, we have jurisdiction to hear this appeal.
III. Law
¶ 14 Principles of relevancy, authenticity, and hearsay govern the
admissibility of computer-generated records. People v. Huehn, 53
P.3d 733, 736 (Colo. App. 2002).
A. Relevancy
¶ 15 Only relevant evidence is admissible. CRE 402. Relevant
evidence is evidence “having any tendency to make the existence of
any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” CRE 401.
B. Authenticity
¶ 16 Authenticity is also a threshold requirement for admissibility.
People v. Baca, 2015 COA 153, ¶ 26. The proponent may satisfy
this requirement by presenting extrinsic evidence to show that the
proffered evidence is what the proponent claims it to be under
CRE 901. Huehn, 53 P.3d at 736. The burden to authenticate
presents a low bar; “only a prima facie showing is required[.]”
People v. Glover, 2015 COA 16, ¶ 13 (quoting United States v.
Hassan, 742 F.3d 104, 133 (4th Cir. 2014)). Once the proponent
7
meets this burden, the actual authenticity of the evidence and the
effect of any defects go to the weight of evidence and not its
admissibility. CRE 104; see People v. Lesslie, 939 P.2d 443 (Colo.
App. 1996).
¶ 17 CRE 901 does not definitively establish the nature or quantity
of proof required to authenticate evidence. The trial court must
make a fact-specific determination of whether the proof advanced is
sufficient to support a finding that the item in question is what its
proponent claims it to be. See Colo. Citizens for Ethics in Gov’t v.
Comm. for Am. Dream, 187 P.3d 1207, 1213 (Colo. App. 2008)
(“Whether a proper foundation has been established is a matter
within the sound discretion of the trial court . . . .”). CRE 901(b)
contains a nonexhaustive list of methods to authenticate by
extrinsic evidence. The list includes testimony by a witness with
personal knowledge of the proffered evidence. CRE 901(b)(1).
¶ 18 As relevant here, where a law enforcement investigator
possesses personal knowledge that proffered evidence was produced
in response to a search warrant, courts have allowed the
investigator to authenticate that evidence. See, e.g., United States
v. Whitaker, 127 F.3d 595, 601 (7th Cir. 1997) (holding that the
8
prosecution properly authenticated computer records seized during
the execution of a search warrant through the testimony of the
officer who retrieved them); United States v. Sliker, 751 F.2d 477,
488 (2d Cir. 1984) (allowing an investigating officer to authenticate
bank documents obtained through a search warrant); see also
People v. Marciano, 2014 COA 92M-2, ¶ 28 (cases from other
jurisdictions with similar rules of evidence are instructive for
interpreting Colorado Rules of Evidence).
¶ 19 Proponents tend to rely on CRE 901 to authenticate electronic
communications such as emails, texts, and messages sent through
social media platforms like Facebook. See People v. Heisler, 2017
COA 58, ¶¶ 15-23 (text messages); Glover, ¶¶ 21-34 (Facebook
messages); People v. Bernard, 2013 COA 79, ¶¶ 7-13 (emails).
¶ 20 But unlike emails, texts, and social media messages,
cloud-based files lack many of the readily identifiable
characteristics that often make authentication under CRE 901
possible. Specifically, files uploaded to remote servers are not
necessarily shared with other users, which forecloses the
opportunity for a recipient to authenticate them. And cloud storage
providers may not require detailed profiles of their users, which
9
eliminates another avenue to corroborate ownership of the
account’s contents. 5 See generally Lorraine v. Markel Am. Ins. Co.,
241 F.R.D. 534, 556-59 (D. Md. 2007) (discussing authentication
issues for electronically stored information, and noting that “courts
‘should . . . consider the accuracy and reliability of computerized
evidence’ in ruling on its admissibility.”) (citation omitted).6
C. Hearsay
¶ 21 Authenticity does not guarantee admissibility. See People v.
Morise, 859 P.2d 247, 250 (Colo. App. 1993) (“[T]he mere fact that a
document is authentic does not mean that it is also competent
evidence of the facts contained in that document.”); see also Fed. R.
Evid. 901(b) advisory committee’s note to 1972 proposed rules
5 Dropbox, for example, only requires a name, email address, and
password to create a free account. See Dropbox, Create an Account,
https://perma.cc/BX5T-S6KR.
6 See also Scott A. McDonald, Authenticating Digital Evidence from
the Cloud, Army Law. 40, 48 (2014) (concerning cloud storage, in
“the absence of an acknowledgement of authorship and authenticity
from a party with relevant knowledge . . . counsel should consider
gathering additional circumstantial evidence of authenticity to
satisfy the requirements of [Rule] 901”); Scott Moss & Ann England,
Evidentiary Foundation and ESI, in Colo. Bar. Ass’n CLE,
Information Security & Document Management 2/20 (July 25,
2018) (noting that presence on the internet does not suffice to
establish authenticity; “the proponent must show that it came from
the person or entity alleged to be the author or owner”).
10
(“[C]ompliance with requirements of authentication . . . by no
means assures admission of an item into evidence, as other bars,
hearsay for example, may remain[.]”).
¶ 22 As relevant here, authentic evidence may be excluded on the
basis that it is hearsay. See CRE 802. Hearsay “is a statement
other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted.” CRE 801(c). Still, not all computer-generated records
constitute hearsay. Even if a party introduces a
computer-generated record to prove the truth of its contents, that
record may not constitute hearsay if the computer created the
record automatically without human input or interpretation. People
v. Hamilton, 2019 COA 101, ¶¶ 24-26.
¶ 23 In contrast to the low threshold for authentication, under
which a court allows the jury to weigh questionably authentic
evidence, a hearsay objection presents a binary choice — courts
must exclude hearsay unless its proponent satisfies an exception.
Glover, ¶ 37.
¶ 24 Our rules of evidence recognize exceptions to the general
prohibition against admitting hearsay for certain inherently reliable
11
out-of-court statements. See CRE 803. One such exception allows
courts to admit business records that meet criteria intended to
ensure trustworthiness. See Henderson v. Master Klean Janitorial,
Inc., 70 P.3d 612, 617 (Colo. App. 2003) (“The business records
exception is founded on a presumption of accuracy that exists
because the information is reported by persons trained in the
importance of precision and checked for its correctness, and
because of the accuracy demanded by the nature of the business.”).
Hearsay subject to the business-records exception is
[a] . . . report, record, or data compilation, in
any form, of acts [or] events . . . made at or
near the time by, or from information
transmitted by, a person with knowledge, if
kept in the course of regularly conducted
business activity, and if it was the regular
practice of that business activity to make the
. . . report, record, or data compilation . . . .
CRE 803(6).
¶ 25 Examples of computer-generated records that have satisfied
the business-records exception include invoicing data from billing
software, activity records of an automated teller machine (ATM),
credit card statements, and checking account statements. State ex
rel. Coffman v. Robert J. Hopp & Assocs., LLC, 2018 COA 69M, ¶ 74
12
(invoicing data); Marciano, ¶¶ 24-31 (checking account statements);
Huehn, 53 P.3d at 737-38 (ATM records); People v. Berger-Levy, 677
P.2d 351, 351-52 (Colo. App. 1983) (credit card statements).
¶ 26 Business records may contain statements made by third
parties. Courts do not grant the same presumption of reliability to
these statements because the third party does not have a duty to
the business to report the information accurately. Henderson, 70
P.3d at 617. Still, third-party statements contained in business
records are admissible under the business-records exception when
the third party’s information is provided as “part of a business
relationship” between the business and third party, and evidence
shows that the business “substantially relied” on the information.
People in Interest of R.D.H., 944 P.2d 660, 665 (Colo. App. 1997).
But in Glover, ¶ 21, a division of this court held that Facebook
messages were not admissible as a third-party statement in a
business record because “even though an arguable business
relationship exists between Facebook and its users, there was no
evidence presented that Facebook substantially relies for any
business purpose on information contained in its users’ . . .
communications.”
13
IV. Application
A. Relevancy
¶ 27 Although the videos are not in the record, the probable cause
affidavit describes the sexually explicit content of six of them and
observes that the females depicted appear to be between five and
thirteen years old. Thus, the relevancy of the Dropbox and
Comcast records that identify the account containing the videos
and connect N.T.B. to that account could not be disputed. See
§ 18-6-403(3)(b.5) (proscribing possession of or control over
sexually exploitive material “for any purpose”).
B. Authenticity
¶ 28 The district attorney asserts that the trial court “found the
Dropbox records would not be admissible because there was no one
to authenticate” them, but that it erred “in failing to consider the
prosecution’s argument” about authentication. Whether the
investigating officer’s testimony provided a sufficient foundation
from which the jury could reasonably find that the Dropbox and
Comcast records were what the prosecution purported —
14
documents generated by these entities — presents a close
question. 7
¶ 29 The scant record shows that the trial court analyzed the
pertinent rules and acknowledged that the prosecution might have
authenticated the Dropbox and Comcast records under either CRE
901 or CRE 902. Thus, contrary to the district attorney’s
characterization, the trial court did consider the authentication
argument.
¶ 30 Turning to the merits of the argument, we agree with the
district attorney that the investigating officer’s proffered testimony
sufficed to support a finding that the records were what the
prosecution asserted them to be, although we do so on different
grounds than those argued by the district attorney on appeal. See
Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Recreation Dist.,
271 P.3d 587, 589 (Colo. App. 2011) (An appellate court may affirm
7 The district attorney’s brief focuses exclusively on the Dropbox
records, but because the Comcast record provides a step in the link
between N.T.B. and the sexually exploitive material stored on
Dropbox, we include it in our analysis, which applies equally to the
Comcast records.
15
a trial court’s ruling on “any grounds that are supported by the
record.”).
¶ 31 The district attorney’s brief leans heavily on the holding in
Glover that Facebook messages may not be authenticated and
admitted under CRE 803(6) or CRE 902 because they were not
business records of Facebook. But the argument that “the Dropbox
records . . . are similar to the Facebook entries” only goes so far.
¶ 32 True, the pictures of N.T.B. and N.T.B.’s email address are
arguably like Facebook messages insofar as they are all
user-generated. But N.T.B. specifically objected to “the written
documents” — i.e., the account identification number, the account
activity log, and the IP address used to make the uploads — which
were generated by Dropbox and Comcast and not the account user.
On this point, we distinguish the business records at issue here
from the Facebook messages in Glover.
¶ 33 But recall that CRE 901 is a flexible standard. The type and
quantity of evidence necessary to authenticate a particular piece of
evidence will always depend on context. For electronically stored
information that lacks an acknowledgement or other indicia of
authorship, persuasive authority suggests that the prosecution
16
should present evidence of accuracy and reliability to satisfy the
requirements of CRE 901. See Lorraine, 241 F.R.D. at 558-59;
Scott A. McDonald, Authenticating Digital Evidence from the Cloud,
Army Law. 40, 48 (2014).
¶ 34 In this case, the prosecution proffered such evidence. The
prosecutor made an offer of proof that the investigating detective
would testify that he caused search warrants to be issued and
served on Dropbox and Comcast; these entities provided him with
the records in response to the warrants; and N.T.B. acknowledged
to the detective that he owned a Dropbox account tied to his work
email address. So, the investigating detective had sufficient
personal knowledge indicating that the Dropbox and Comcast
records were authentic. See CRE 901(b)(1).
¶ 35 Even so, the court properly recognized that the prosecution
must overcome the hearsay objection.
C. Hearsay
¶ 36 The Dropbox account identification number, activity log, and
associated IP address, as well as the Comcast records connecting
the IP address to the physical address where N.T.B. resided, were
offered for the truth of the information. Through these records,
17
Dropbox and Comcast asserted that these accounts existed, the
Dropbox account was associated with N.T.B.’s email address, videos
had been uploaded into that account at various times from a
specific IP address, and the IP address was assigned to a Comcast
account at a residential street address. Simply put, what these
records say provided essential links between N.T.B. and the videos
in the Dropbox account.
¶ 37 Recall, the district attorney asserts that these records do not
constitute hearsay because “[t]here [was] no declarant.” To the
extent the district attorney is arguing that Dropbox and Comcast
created the records automatically without human input or
interpretation, this argument falls short for two reasons. First, as
indicated, the Dropbox and Comcast records were not included in
the record on appeal. When material portions of the record are
omitted, we presume that they support the trial court’s ruling. See
People v. Duran, 2015 COA 141, ¶ 12. Second, and more
importantly, the prosecutor’s proffer before the trial court did not
identify any basis for concluding that the records had been
18
generated automatically. 8 Thus, the records provided by Dropbox
and Comcast may have included human-generated input and
interpretation.
¶ 38 The district attorney argues that the trial court “misapplied
the law” by holding that the Dropbox and Comcast records were
business records “because they are content created by users, not
the business” and because the substance of that content is not
something upon which Dropbox “substantially relies.” But Dropbox
— not N.T.B. — generated the account identification number and
account activity log in which it recorded the IP address. Like bank
and credit card statements in Marciano and Berger-Levy, these
records were a compilation of data created in the regular course of
Dropbox’s business.
¶ 39 On this basis, the records at issue here can be distinguished
from the Facebook messages in Glover. There, the court relied on
the party-admission exception to overcome the defendant’s hearsay
8Consistent with People v. Hamilton, 2019 COA 101, this opinion
does not preclude a party from offering evidence to show that
computer records were generated automatically.
19
objection. By contrast, N.T.B. admitted only to owning a Dropbox
account associated with his work email address.
¶ 40 So, the trial court correctly analogized the account number,
activity log, and IP address to computer-generated account
statements that other divisions have analyzed as business records
in Robert J. Hopp & Assocs., Huehn, Berger-Levy, and Marciano.
And without testimony or an affidavit from the custodians showing
that the records were made in the regular course of business,
inputted accurately within a reasonable amount of time, and
transmitted by a reliable person with knowledge, the trial court
properly excluded these records.
¶ 41 The second part of the district attorney’s argument — that
Dropbox and Comcast do not “substantially rely” on their records —
misapplies that legal test. This facet of the business record analysis
applies only to information generated by a third-party. And of
course, to maintain the integrity of numerous separate accounts,
Dropbox and Comcast must rely on unique account numbers and
IP addresses.
¶ 42 In the end, the trial court correctly held that the Dropbox and
Comcast records contained inadmissible hearsay, essential to the
20
prosecutor’s “possesses or controls” theory, which it could not
admit without testimony from the records custodians or an
affidavit.
V. Conclusion
¶ 43 We approve the trial court’s ruling.
JUDGE DUNN and JUDGE LIPINSKY concur.
21