Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Court of Appeals unanimously affirmed a decision connected to warrants and physical and internet protocol addresses.
Kevin Dhyne appealed his conviction on two counts of sexual exploitation of a child. According to court records, a detective discovered child pornography was being downloaded to an IP address assigned to an internet subscriber in their jurisdiction. After further investigation, the officer learned the subscriber’s son, B.C., lived with the subscriber and was a registered sex offender.
The officer obtained a search warrant associated with computers and computer systems which included the house, garage or any outbuildings at the subscriber’s address. The affidavit provided there was belief of probable cause that computers at the physical address could contain images of child pornography and B.C. was a possible suspect.
Police executed the warrant, and while outside the property, authorities encountered Dhyne, who emerged from what appeared to be a basement dwelling unit at the house. Dhyne told police he rented the basement apartment and shared internet access with the subscriber.
After searching the premises, including Dhyne’s apartment, police seized several computers, including a laptop Dhyne admitted was his. A later search of this computer found sexually exploitative material involving children.
Dhyne was charged with two counts of sexual exploitation of a child. Dhyne moved before trial to suppress material found on his computer, arguing it was discovered in violation of the Fourth Amendment. The district court denied the motion concluding the search of Dhyne’s apartment exceeded the scope of the warrant, but argued the material found on his computer was admissible because it would have been discovered through lawful means anyway.
After being found guilty at a bench trial, Dhyne appealed on multiple grounds, including arguing the district court misapplied the inevitable discovery exception to the Fourth Amendment’s exclusionary rule and erred in denying his motion to suppress. The prosecutors assert the search of Dhyne’s apartment was lawful, and the inevitable discovery exception applies. The appeals court concluded it didn’t have to address the inevitable discovery issue because the search didn’t exceed the scope of the warrant.
After applying the rule of common use or occupation, the appeals court found the search of a separate residence was within the scope of the warrant based on the information the IP address that formed the basis for probable cause was shared.
In 2019, the Colorado General Assembly created a statute addressing lawsuits aimed at stifling or punishing First Amendment rights to free speech and petitioning the government known as the Strategic Lawsuits Against Public Participation. This case required the appeals court to consider special motions to dismiss under the anti-SLAPP statute.
According to court records, L.S.S. asserted defamation and related claims against S.A.P. after she reported he might be sexually abusing their five-year-old child. L.S.S. denied the allegations, with agencies concluding there was insufficient evidence to go further with the alleged matter.
After that, L.S.S. filed a lawsuit against S.A.P. asserting defamation claims, knowingly making a false claim of child abuse and extreme and outrageous conduct. S.A.P. then filed a motion to dismiss under the anti-SLAPP statute. The trial court denied the motion following the two step-analysis outlined in California courts. First, the court concluded S.A.P.’s statements involved matters of public concern and fell within the protection of the statute. Under step two, the trial court also concluded L.S.S. had presented enough evidence to proceed with his claims.
S.A.P. appealed the trial court’s decision contending the court resolved the first step correctly but applied the incorrect standard and reached the wrong result in the second step. L.S.S. disagreed seeking affirmance under either or both steps.
The appeals court concluded to withstand a special motion to dismiss where a plaintiff’s defamation claim requires showing actual malice at trial, the plaintiff needs to establish a probability they will be able to produce clear and convincing evidence of actual malice at trial. After applying that framework, the appeals court concluded the trial court properly denied the special motion to dismiss.
The order was unanimously affirmed and remanded to the trial court for further proceedings concerning L.S.S.’s claims.