Colorado Sex Crimes Law – The Seizure And Search Of Computers – Can The Police Seize My Computers Without A Search Warrant?

H. Michael Steinberg Colorado Sex Crimes Criminal Defense Lawyer – Attorney

Colorado Sex Crimes Law – The Seizure And Search Of Computers – Can The Police Seize My Computers Without A Search Warrant? – In a Colorado sex crime investigation – for example for Sexual Exploitation Of A Child (18-6-403) – more familiarly known as possession of child pornography, the investigation centers almost immediately on the location and the search of the suspects computers. This article examines the right of the police to seize those computers based on probable cause but without a search warrant.

A Computer Is Treated As A Container For The Purposes Of The Fourth Amendment

To understand how Colorado criminal law treats the seizure of computers under the Fourth Amendment, one needs to first understand that the law treats the warrantless seizures of computers as if they not computers at all – but rather – closed containers .

The Law Of Warrantless Seizures of Containers Under the Fourth Amendment

The analysis:

1. The Fourth Amendment to the United States Constitution prohibits the unreasonable searches and seizures of personal property. U.S. Const. amend. IV.

2. A warrantless seizure of personal property such as a container is presumptively unreasonable, and hence invalid, under the Fourth Amendment.

3. If computers are containers for purposes of search and seizure law under the Fourth Amendment – the established law – already existing – the traditional closed container cases already decided under Colorado law…. will apply.

4. The Fourth Amendment demands only reasonableness, not perfection. The warrant requirement applicable to container seizures is subject to certain reasonable exceptions.

5. One of those exceptions that would permit the warrantless seizure of a computer is called the Plain View Exception.

The Plain View Exception To The Warrant Requirement For The Seizure Of Closed Containers 

The plain view exception can legally justify the warrantless seizure of a laptop.

The plain view exception to the requirement of a search warrant means the State of Colorado  must “fit” the presumptively illegal seizure of a computer (any seizure of a computer in the absence of a warrant see above) to that exception:

Under the plain view exception, a warrantless seizure of a computer (the container) is reasonable for Fourth Amendment purposes if the police investigators observed the computer container in plain view and if that seizure satisfies the following three requirements:

First – the police were lawfully in the position from which they viewed the container,

Second – the incriminating nature of the container was immediately apparent, and

Third – the police had a lawful right of access to the container.

Understanding The Concept Of Probable Cause

To seize an item of evidentiary value that is in plain view the seizing officer mst have probable cause to associate the item with criminal activity without the need for conducting a further search.

The second requirement for the seizure of an item in plain view – the immediately apparent requirement – is legally interpreted to relate only to probable cause, not certainty. If the police are able to establish probable cause that the object is a fruit, instrumentality or evidence of a crime without searching it this is all that is required.

There is no requirement that the police KNOW that child pornography will be found on the computer, as probable cause is a flexible standard taken from a common sense concept of reasonableness and not absolute certainty. Reasonableness is the touchstone under the Fourth Amendment. Therefore probable cause is…

“measured not by a more likely true than false level of certitude, but by a commonsense, non-technical standard of reasonable cause to believe.”

Do The Police, From The Evidence Developed In An Investigation, Have Probable Cause to Believe the Laptop Contained Child Pornography

If the police have evidence that amounts to probable cause – for example – to believe child pornography (child pornography under Colorado Law 18-6-403(3)(b.5), C.R.S.) would be found on a suspect’s computer, they can seize that computer if it is found in plain view. BUT they are also required to later obtain a warrant to search and view the contents of that computer.

Summary And Conclusion – Colorado Sex Crimes Law – The Seizure And Search Of Computers – Can The Police Seize My Computers Without A Search Warrant?

If the Trial Judge finds from the facts and circumstances known at the time of the seizure of the computer that that computer is suspected to contain contraband such as child pornography and that seizure was supported by probable cause, that is probable cause to believe the laptop is associated with criminal activity), AND the computer is in “plain view” only THEN is there a right to a warrantless seizure of the laptop under the Fourth Amendment. To search the contents of the computer after it has been seized, a search warrant is required.

Colorado Sex Crimes Law – The Seizure And Search Of Computers – Can The Police Seize My Computers Without A Search Warrant?

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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Sex Crimes Law – The Seizure And Search Of Computers – Can The Police Seize My Computers Without A Search Warrant?