Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Court of Appeals unanimously affirmed a judgment connected to the private search doctrine.
According to court records, Brendan Morse gave his girlfriend, named in court documents as A.A., permission to play a game on his computer. When A.A. was using the computer, she found a video of Morse allegedly sexually assaulting her while she was unresponsive due to alcohol consumption.
A.A. said she didn’t remember the incident and didn’t consent to Morse’s actions or the recording. A.A. discovered on Morse’s Google account several other similar videos of women, apparently taken without their knowledge, according to court records. A.A. showed the videos to a friend and they copied the video of A.A. to a USB drive and called authorities.
An officer responded to the apartment A.A. shared with Morse and he wasn’t home. A.A. showed the video to the officer involving her. A computer forensic analyst arrived to collect and preserve the data on the computer that would be lost if it was unplugged.
Photos of the computer setup, the computer screen and open computer windows were taken by authorities and the programs running on the computer were also documented. Officers seized the USB drive and computer until they could get a warrant to search both.
Later that day at the direction of a detective, A.A. called Morse confronting him about the videos. Morse admitted to recording A.A. without her permission. Morse also admitted to recording other women without their consent. Morse made similar admissions to the detective during an interview.
The detective got a search warrant for Morse’s computer, a hard drive, two USB drives (including the one with A.A.), Morse’s cell phone and Google account. The Google warrants found minimal additional information and none of the videos A.A. previously found.
Morse was charged with sexual assault of a physically helpless victim, invasion of privacy for sexual gratification and sexual assault of a victim incapable of appraising the nature of the victim’s conduct. The charges were based on the video of A.A.
Morse moved to suppress the evidence from his computer and Google account, claiming the officer’s viewing of such material was a warrantless search that violated the Fourth Amendment. The district court denied the motion on four alternative ground findings: the officers could search the computer under the private search doctrine; authorities could seize the computer under the plain view exception; officers could seize and search the computer under the exigent circumstances exception; and, even if the search and seizure was unlawful, the evidence could be admissible under the independent source doctrine because officers got a warrant later to search the computer.
The video of A.A. was admitted at trial and played for the jury. The district court excluded all evidence and testimony about explicit videos of other women. A jury found Morse guilty of sexual assault (victim incapable of appraising conduct) and invasion of privacy for sexual gratification. Morse was found not guilty of sexual assault (physically helpless victim).
Morse made multiple arguments on appeal, including that the district court erred in denying his motion to suppress. The Colorado Court of Appeals wrote about 40 years ago, in U.S. v. Jacobsen, the U.S. Supreme Court held officers are not conducting a search within the Fourth Amendment when they view what an independent private party has already uncovered and made available to them for inspection.
The appeals court held since the private party’s actions didn’t implicate the Fourth Amendment, and because the prosecution didn’t seek to introduce any evidence exceeding the scope of the private search, the district court was correct to deny the motion to suppress. The judgment was affirmed.