Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Court of Appeals reversed an order involving a probation department’s monitoring of a defendant’s electronic devices and internet use.
Prior to trial, Justin Silvanic entered a written waiver and guilty plea to one count of criminal attempt to commit sexual assault on a child by one in a position of trust. That plea agreement called for a probationary sentence pursuant to Colorado’s Sex Offender Management Board standards and offense-specific treatment.
The court agreed to the probationary sentence and Silvanic was sentenced to 10 years of sex offender intensive supervision probation.
The proposed conditions included four requirements that are relevant in this case. Under condition five, Silvanic would submit to a search by a probation officer of his person or property, including any electronic devices, when there are reasonable grounds to search.
Condition 19 said he couldn’t use computer systems in a way that violated his supervision conditions. It also allowed the probation officer or other trained person to search computers or electronic devices used by Silvanic.
Condition 24 said Silvanic would only use or access computer systems for employment, school or other. None of the optional checkboxes were marked. Under condition 29, it stated Silvanic wouldn’t use any commercial social networking site except under conditions approved in advance and in writing by the probation officer.
Silvanic objected to the proposed conditions 24 and 29 arguing they violated his First and Fourth Amendment rights. After a briefing and hearing on the issue, a Weld County District Court entered a written order in July 2020 where it struck conditions 24 and 29.
In place of those conditions, the court entered less restrictive ones that wouldn’t unnecessarily infringe on Silvanic’s right to access the internet and use electronic devices. Under the order, Silvanic was permitted to use electronic devices and the internet, subject to the requirement he disclose the devices he was using along with associated usernames, emails and passwords to his probation officer.
In the July order, the court reiterated the conditions wouldn’t modify condition five which allowed a probation officer to search Silvanic’s property when there are reasonable grounds. Neither party appealed the July order.
After the July order, Silvanic’s probation officer ordered him to enroll, at his own expense, in a program to monitor his electronic devices. That proposed agreement said the employee of the monitoring company could view all content on the device that included data on his conversations with attorneys. That agreement also provided the information obtained by employees of the monitoring company could be provided to the supervision team. Silvanic, under the agreement, wouldn’t be given any logs or reports of the data collected on him without a court order.
Silvanic objected to the monitoring agreement, arguing it was inconsistent with the modified conditions of his probation and violated his Fourth Amendment right. Silvanic argued the monitoring agreement was ongoing surveillance and didn’t comply with condition five. Silvanic contended constant surveillance would inhibit all his communications and could reveal other sensitive information, including communications with his attorney.
Prosecutors contended the monitoring agreement was consistent with the probation conditions Silvanic agreed to.
The district court resolved the dispute, entering a written order in September 2020. The court construed the objection as pertaining to condition 19 and denied it, concluding Silvanic was at high risk of attempting to cover up illicit behavior and the monitoring condition was appropriate. The court didn’t address whether any of the concerns could be addressed in a manner that was less restrictive.
Silvanic appealed the September order, asking the appeals court to conclude the district court’s order was unnecessarily broad and infringed on his constitutional rights.
The appeals court said before imposing such a condition, the district court must make sufficient factual findings concerning the extent of the electronic monitoring to accomplish the purposes of probation and evaluate whether less restrictive means can achieve that. Since the lower court didn’t do that, according to the appeals court, it reversed the order. The appeals court didn’t reach Silvanic’s First and Fourth Amendment challenges.
Colorado Court of Appeals Court Judge Matthew Grove dissented. Grove wrote courts should have an appropriate balance between achieving the goals of probation and respecting the offender’s constitutional and statutory rights. Grove believed the balance was struck here and would have affirmed the district court’s imposition of the monitoring requirement.
City of Aurora v. Colorado Department of Revenue
The Colorado Court of Appeals unanimously affirmed a judgment involving local sales tax on cigarettes.
Local governments receive a share of state income tax revenue from cigarette sales if they don’t impose certain local taxes on cigarettes. The City of Aurora imposed a local sales tax on cigarettes and the Colorado Department of Revenue determined the sales tax disqualified Aurora from receiving a share of the state income tax revenue and discontinued payments to Aurora.
Aurora sued the revenue department wanting a declaratory judgment that it’s entitled to payments despite the sales tax and requesting injunctive relief requiring the revenue department to disburse past and future payments Aurora believed it was entitled to.
After receiving cross-motions for summary judgment, a Denver District Court ruled in favor of the revenue department. The court cited the plain language of the statute.
Aurora appealed, arguing the district court erred in interpreting the statute and the appeals court affirmed. The Colorado Court of Appeals looked at the legislative history of 2019 amendments to the statute and its language to make its determination.