People v. Gutierrez

Justice BENDER delivered the Opinion of the Court.

RICE, J., dissenting.

I believe that the police officers' reliance on the warrant was objectively reasonable under the circumstances. Because I would hold that the police officers acted in good faith when they seized the tax records, I find it unnecessary to consider whether the affidavit supporting the warrant failed to establish probable cause.¹Therefore, I respectfully dissent. Both the Federal and Colorado Constitutions secure "[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." U.S. Const. amend.IV; Colo. Const. art.II, §7. For most of the twentieth century, the exclusive mechanism by which a judge or magistrate could enforce this provision was the exclusionary rule.²However, inUnited States v. Leon,468 U.S. 897,104 S.Ct. 3405,82 L.Ed.2d 677(1984), the United States Supreme Court changed course. It held that the exclusionary rule unfairly penalized police officers who, acting with objective good faith, obtained a search warrant from a judge or magistrate and acted within its scope.Id.at 920-21,104 S.Ct. 3405.³

Various state and federal courts set about modifying the exclusionary rule to maximize its deterrent effect while facilitating truth finding.Leon,468 U.S. at 906-08,104 S.Ct. 3405⁴;People v. Altman,960 P.2d 1164,1168(Colo. 1998).⁵The result was the good faith exception. Unlike the exclusionary rule, which deters police misconduct by excluding evidence obtained via unconstitutional searches and seizures,⁶the good faith exception promotes proper conduct by creating a presumption that evidence collected by officers in compliance with constitutional prerequisites will be admissible at trial.Leon,468 U.S. at 920-21,104 S.Ct. 3405. TheLeonCourt found that "we have expressed a strong preference for warrants and declared that `in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.'"Leon,468 U.S. at 914,104 S.Ct. 3405(quotingUnited States v.Ventresca,380 U.S. 102,106,85 S.Ct. 741,13 L.Ed.2d 684(1965)). Similarly, this court's stated policy is to "encourage officers to obtain warrants before invading individual privacy."Altman,960 P.2d at 1170.Page 946

Aware of this sea change in judicial thought, the Colorado General Assembly codified its version of the good faith exception⁷and the "objectively reasonable" standard⁸in section16-3-308, C.R.S. (2009). Declaring it to be public policy in the State of Colorado that truth finding shall be favored over exclusion of evidence, §16-3-308(4)(a), the General Assembly established a strong presumption of good faith where a police officer obtains evidence "pursuant to and within the scope of a warrant," §16-3-308(4)(b). TheLeoncourt identified four scenarios where a police officercannotreasonably rely upon a warrant.⁹Of these, the majority determines that the fourth — where an affidavit lacks evidence of probable cause to the extent that believing probable cause exists would be entirely unreasonable (e.g., a bare bones affidavit) — applies.Leon,468 U.S. at 923,104 S.Ct. 3405. Because the majority concludes the affidavit is bare bones, it holds without further consideration that the police officer's reliance on the warrant was objectively unreasonable.

I respectfully disagree. I believe that it is both more sensible and more consistent with this court's precedent to find that the affidavit is not bare bones. Whether a police officer's reliance on an affidavit is objectively reasonable requires careful examination of the facts.¹⁰The majority sets forth three principle facts in support of its holding that the affidavit in this case is bare bones: (1) the affidavit failed to establish a sufficient nexus between the alleged criminal activity and the place searched; (2) the police officers examined the affidavit for probable cause without undue time pressure; and (3) the reviewing judges unanimously found that the warrant lacked probable cause. I will examine each in turn. The majority determines that, because the affidavit failed to indicate the exact percentage of Amalia's Tax Service's clients who used fake SSNs, an insufficient nexus existed between the alleged criminal conduct (identity theft and criminal impersonation) and thePage 947place searched (Amalia's Tax Service).¹¹Although I agree that an exact percentage,¹²were it available, would contribute to a probable cause determination, I do not believe its absence makes it "entirely unreasonable" for the police officers to have believed that the affidavit would support a warrant.

The affidavit details Trejo's statements that he purchased a SSN when he illegally entered the United States, used the false SSN to obtain employment, hired Amalia's Tax Service to help him with his tax returns, and ultimately filed returns using an ITIN.¹³The affidavit further recalls the statements of Cerrillo, the proprietor of Amalia's Tax Services. Cerrillo stated that she prepared taxes for undocumented workers, explained that "anyone who applies for an ITIN is an [undocumented worker]," and acknowledged thatnearlyallundocumented workers who supply her with wage information used a false SSN.

The majority argues that the most the police officers could reasonably infer from the affidavit is that "some unknown number of other clients" may have provided similarly false information. Maj. op. at 943. This conclusion ignores the fact that Cerrillo indicated that more than one of her clients was an undocumented worker and that "almost all" of her clients in this category used a false SSN. Nor does it take into account that Trejo corroborated Cerrillo's statement when he acknowledged that his tax record, then located at Amalia's Tax Service, contained information regarding criminal activity.

From the affidavit, the police officers knew with certainty that multiple criminal acts occurred. They further knew that information regarding these criminal acts was kept in the tax records then located at Amalia's Tax Service. Therefore, in my view, it is not "entirely unreasonable" for the police officers to have determined that a nexus existed between the criminal conduct alleged and Amalia's Tax Service. The majority finds that, because Cerrillo cooperated with the police officers and never indicated that she would conceal or destroy the evidence sought, the officers could have asked her to specifically identify clients she suspected of using false SSNs. The majority's conclusion is, in this regard, speculative. However, because I do not believe that this fact is outcome determinative, I will not discuss it further here. Finally, the majority finds that, because the judges who reviewed the affidavit found that it failed to establish probable cause, it would be entirely unreasonable for the police officers to rely upon the warrant issued therefrom.

I find this argument troubling for several reasons. First, the district court judge who issued the warrant was satisfied that the affidavit sufficiently established probable cause. In this regard, we owe the district court's judgment "great deference" and should not cast it aside lightly.Leon,468 U.S. at 914,104 S.Ct. 3405¹⁴;People v. Hebert,46 P.3d 473,481(Colo. 2002). Nor does the majority take into account the disagreementPage 948among the members of this court. To my mind, this lack of consensus suggests that sufficient evidence exists to "create disagreement among thoughtful and competent judges as to the existence of probable cause."Leon,468 U.S. at 926,104 S.Ct. 3405.

Furthermore, "[p]olice officers are not appellate judges."Altman,960 P.2d at 1170. So what is entirely unreasonable for an appellate judge provided the benefit of a complete record may differ considerably from what is entirely unreasonable for a police officer embroiled in an ongoing investigation.See id.at 1169-70. This court has held that "by operation of precedent and common sense, a warrant that has failed appellate scrutiny can nonetheless form the basis for good faith execution by a reasonable police officer."Id.at 1170. I believe the search in this case should be so treated.

For these reasons, I would find that it was not "entirely unreasonable" for the police officer in this case to rely upon the affidavit. Therefore, the categorical exceptions to the good faith rule announced inLeondo not apply here.Leon,468 U.S. at 923,104 S.Ct. 3405. Having determined that the affidavit supporting the warrant in this case is not a bare bones affidavit, I now consider whether it was objectively reasonable for the police officers to rely upon the warrant so issued.

When an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope, excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty.Leon,468 U.S. at 920,104 S.Ct. 3405(quotingStone,428 U.S. at 498,96 S.Ct. 3037(Burger, C.J., concurring)). When viewed together with the General Assembly's express declaration that truth finding shall be favored over exclusion, §16-3-308(4)(a), the clear policy of this state must be to accord "great deference" to the issuing judge's determination.Leon,468 U.S. at 914,104 S.Ct. 3405.

Consistent with that policy, Colorado law establishes a strong presumption of good faith where the evidence at issue was obtained pursuant to a warrant. §16-3-308(4)(b).¹⁵Because I believe that the police officers' reliance on the warrant was objectively reasonable, I would find good faith here.

To hold, as the majority does, that the good faith exception does not apply, penalizes the police officers for a decision belonging to the district court judge. As doing so cannot logically contribute to the deterrence of police misconduct, I respectfully dissent from the majority opinion.

I am authorized to state that JUSTICE EID joins in this dissent.

Justice COATS, dissenting.

Not only do I disagree with the majority's analysis of the problem it sets for itself, but I am also convinced that a number of mistaken presumptions about the effects of federal legislation have led it to address a theoretical problem arguably more thorny than the one actually presented by the search in this case. The majority seems to consider it self-evident that federal statutes permitting the issuance of individual tax identification numbers and requiring the payment of income taxes, irrespective of immigration status, effectively shield tax-preparers from criminal liability for aiding taxpayers to knowingly report income earned under social security numbers belonging to someone else; and in addition, it unselfconsciously presumes that federal statutes limiting the circumstances under which tax information may be lawfully disclosed effectively create, at one and the same time, a constitutionally protected expectation of privacy in each individual taxpayer. Because I would not only reverse the district court's suppression order as a misapplication of the good faith exception to theFourthAmendment exclusionary rule, but would also find that the search in this casePage 949conformed to the dictates of theFourthAmendment, I write separately to express my views.

The majority distinguishes existing Supreme Court precedent concerning searches of offices housing multiple client files and considers this case to rest in an area of law with sparse precedent of any kind, on the premise that no criminal conduct was alleged against the tax-preparer whose office was to be searched. Whether this presumption flows from the majority's understanding of federal tax statutes or state criminal statutes, or simply the prosecution's failure to claim otherwise, I believe it is a mistake that fundamentally distorts the majority'sFourthAmendment analysis.¹

In this jurisdiction, intentionally assisting someone to use the personal identifying information of another to obtain money (or any other thing of value for that matter) is a felony.See§18-1-603, C.R.S. (2009) (complicity theory of liability); §18-5-902, C.R.S. (2009) (crime of identity theft). The affidavit supporting the warrant at issue here not only asserted the tax-preparer's awareness of mismatches but also expressly included an admission of her awareness that most of the clients for whom she secured individual tax identification numbers and filed returns using the ITIN process provided her with a social security number belonging to someone else. This admission not only evidenced a misprision but provided grounds to believe the files in her office would point to her own complicity in multiple crimes of identity theft.

The federal statutes referenced by the majority admittedly provide a method for those without social security numbers, regardless of the reason for this shortcoming, to nevertheless meet their federal income tax obligations; and they clearly prohibit tax-preparers from unilaterally disclosing the tax information provided to them. It may even be the case, as the amici assert, that the Internal Revenue Service deliberately publicizes its own lack of interest in discovering the immigration status of individuals filing tax returns and actually promotes various filing techniques or methods to prevent this information from coming to its attention. But nothing in the federal statutes purports to shield either taxpayers or tax-preparers from prosecution for criminal conduct.

Properly analyzed, the affidavit in this case alleged, on the basis of information from witnesses with first-hand knowledge, not only probable cause to believe that the office to be searched would contain evidence of identity theft by some as yet unknown taxpayers but also that this evidence would probably implicate the tax-preparer herself; be pervasive in scope; and expose to more than cursory inspectiononlythose returns with easily ascertainable conflicting identification numbers. Following the Supreme Court's lead inAndresen v. Maryland,427 U.S. 463,96 S.Ct. 2737,49 L.Ed.2d 627(1976), numerous courts have approved the search of multiple client files, including attorney files and medical files, upon a showing of probable cause that evidence of a crime committed by the service provider is in some of the files, despite any privacy interest the clients may have in their files.See, e.g., Andresen,427 U.S. at 478-84,96 S.Ct. 2737(upholding a search of the files in the office of an attorney who was suspected of criminal activity);In reImpounded Case (Law Firm),840 F.2d 196,200(3d Cir. 1988) (noting that "courts have consistently allowed searches of law offices when the attorneys involved were the targets of criminal investigations" and upholding the search of all of a law firm's personal injuryPage 950files for evidence of the attorneys' suspected corporate tax crimes);United States v. Lievertz,247 F.Supp.2d 1052,1063(S.D.Ind. 2002) (noting that "the government had a compelling interest in identifying illegal activity and in deterring future criminal misconduct, an interest which outweighs the privacy rights of those whose records were turned over to the government" and upholding the search of all of a doctor's medical files for evidence that the doctor was involved in a scheme to overprescribe and distribute controlled substances). At least under the unique circumstances of this case, the majority should have found the affidavit and warrant sufficient to pass constitutional muster, without requiring particularized information about named taxpayers, according to well-established principles ofFourthAmendment jurisprudence.See United States v. Abrams,615 F.2d 541,545(1st Cir. 1980) ("In the first place, if an affidavit contains an averment by an employee that fraudulent practices were regularly pursued during his or her employment, and the term of such employment is set forth, the warrant could authorize the seizure of all records of Medicare and Medicaid services billed and purportedly performed during that period. In the second place, if the means of identification required some analysis and matching, e.g., by comparing patients' invoices with records of actual tests performed, this is a sufficient guarantee of particularity.");See also Andresen,427 U.S. at 478-84,96 S.Ct. 2737;People v. Roccaforte,919 P.2d 799,803(Colo. 1996) (recognizing that a warrant may even authorize the seizure of all of a business's records where there is probable cause to believe that evidence will be found in most or all business documents).

In any event, however, the majority also presumes that the existence of federal legislation prescribing criminal penalties for the unauthorized disclosure of individual tax information creates a constitutionally significant expectation on the part of each individual taxpayer that his tax information is safe from disclosure. It does this even though both the United States Supreme Court and this court have previously concluded that it is not reasonable, forFourthAmendment purposes, for a taxpayer to expect freedom from governmental intrusion into information given to a tax-preparer.See Couch v.United States,409 U.S. 322,335-36,93 S.Ct. 611,34 L.Ed.2d 548(1973);Losavio v. Robb,195 Colo. 533,540,579 P.2d 1152,1157(1978) (concluding that a subpoena duces tecum for an income tax return "does not invade any constitutional rights" because "[t]heFourthAmendment's prohibition against unreasonable searches and seizures does not protect documents already in the public domain, such as income tax returns."). The counterintuitive, and in fact anomalous, effect of this proposition is that by statutorily proscribing the disclosure of individual tax information under specific and limited circumstances, Congress necessarily creates a reasonable expectation on the part of individual taxpayers that their tax information may be disclosed to law enforcement officers only upon satisfaction of the requirements of theFourthAmendment. For hopefully obvious reasons, this proposition has been widely rejected by those courts considering it.

In related contexts, in which the Supreme Court has found there to be no constitutionally cognizable expectation of privacy, claims that subsequent congressional action prohibiting disclosure without a court order effectively creates such a constitutionally cognizable expectation have been uniformly rejected by the federal courts. Following the Supreme Court's conclusion, for example, inUnited States v. Miller,425 U.S. 435,96 S.Ct. 1619,48 L.Ed.2d 71(1976), that individuals lack any protectedFourthAmendment interest in records held by their banks, the Fifth Circuit Court of Appeals flatly rejected, with regard to the enactment of12 U.S.C. §§ 3401-3422, reasoning virtually identical to that adopted by the majority today.See United States v. Kington,801 F.2d 733,737(5th Cir. 1986) ("While it is evident that Congress has expanded individuals' right to privacy in bank records of their accounts, appellees are mistaken in their contention that the expansion is of constitutional dimensions. The rights created by Congress are statutory, not constitutional.");See generally, United States v.Thomas, No. 88-6341, 878 F.2d 383,1989 WL 72926at *2 (6th Cir. July 5, 1989) ("We agree with all other courts addressing the issue and hold that courts arePage 951not required to suppress evidence obtained as a result of the government's unauthorized access to a defendant's bank records."). Similarly, following the Supreme Court's holding inSmith v. Maryland,442 U.S. 735,99 S.Ct. 2577,61 L.Ed.2d 220(1979), several circuits have essentially rejected this same reasoning with regard to congressional action requiring court orders for pen registers.²SeeUnited States v. German,486 F.3d 849,854(5th Cir. 2007) (declining to suppress evidence gathered in violation of18 U.S.C. §§ 3121-3127);United States v. Thompson,936 F.2d 1249,1251-52(11th Cir. 1991) (same);see alsoNat'l City Trading Corp. v. United States,635 F.2d 1020,1026n. 3 (2d Cir. 1980) ("The fact that Congress has now enacted the Privacy Protection Act of 1980, Pub.L. No.96-440,94 Stat. 1879(Oct. 13, 1980), which limits the circumstances under which documentary material may be seized from journalists and authors, does not affect the Supreme Court's interpretation of the requirements of theFourthAmendment inZurcher.").

Since its enactment, every circuit court to address the statute limiting disclosure by the IRS,26 U.S.C. § 6103, has concluded that, because the statute provides its own express remedies, suppression of evidence in a criminal case is not a permissible remedy.See, e.g., United States v.Orlando,281 F.3d 586,596(6th Cir. 2002). For the same reason, suppression of tax records is not an appropriate remedy for any violation of26 U.S.C. § 7216by tax-preparers.See United States v. Ware,161 F.3d 414,424-25(6th Cir. 1998) (holding that the exclusionary rule did not apply to alleged violations of18 U.S.C. § 201(c)(2), which establishes criminal penalties for paying a witness to testify, noting that "[g]enerally, when Congress has designated a specific remedy for violation of one of its acts, courts should presume that Congress has engaged in the necessary balancing of interests to determine the appropriate penalty").

Unlike the majority, I therefore think it clear that the defendant had no constitutionally cognizable expectation of privacy in either his tax-preparer's copy of his tax returns or any tax information he gave her for the express purpose of providing it to the federal (and presumably state) government. Similarly, I would find that the federal statutes relied on by the majority, which purport on their face to provide only a limited expectation of non-disclosure and include specific penalties for violations, do not contemplate the exclusion of evidence from a criminal proceeding.

Even if the Supreme Court were to ultimately reject the reasoning of these federal appellate courts and accord Congress the power to create constitutionally protected expectations of privacy, improbable as I consider that to be, I would nevertheless take issue with the majority's treatment of the search of a tax-preparer's records as if it were a search of individual taxpayers themselves. In part because human beings, unlike inanimate objects, are generally capable of moving and adding or shedding possessions at will, their mere presence at a searchable location will rarely justify a search of their person as well.See Ybarra v. Illinois,444 U.S. 85,100 S.Ct. 338,62 L.Ed.2d 238(1979) (patron within tavern);United States v. Di Re,332 U.S. 581,68 S.Ct. 222,92 L.Ed. 210(1948) (passenger within car). Privacy expectations in writings meriting particularly strong protection, even if tax records were to fall within that class,See Stanford v.Texas,379 U.S. 476,485n. 16,85 S.Ct. 506,13 L.Ed.2d 431(1965) (distinguishing writings containing ideas from writings simply chronicling criminal activity), are, however, separately and adequately protected by rigid adherence to the particularity requirement, which the majority apparently considers satisfied here.See, e.g., People v. Hearty,644 P.2d 302,313(Colo. 1982) ("We believe that rigid adherencePage 952to the particularity requirement is appropriate where a lawyer's office is searched for designated documents."). The majority's remarkable addition of a requirement that suspicion be sufficiently particularized to justify a search of each individual taxpayer himself is without analog in the jurisprudence of either this court or the Supreme Court. Cf.Tattered Cover, Inc. v. City of Thornton,44 P.3d 1044,1055(Colo. 2002) ("The Supreme Court's pronouncements inZurchercan be read to mean that, beyond the `scrupulous exactitude' requirement, theFirstAmendment places no special limitation on the ability of the government to seize expressive materials under theFourthAmendment.").

By contrast, containers, regardless of ownership, may very well be subjected to a search as the result of their mere presence at a location for which a search is authorized.SeeHoughton, 526 U.S. at 299-307,119 S.Ct. 1297 (concluding that if there is probable cause to search a car, police officers may search any container in the car capable of concealing the object of the search regardless of its owner and without individualized probable cause that the object will be found in any particular container). While the invasion of spaces within the exclusive control of innocents must always remain a countervailing consideration, there is no suggestion that the tax returns at issue here were owned or controlled by the individual taxpayers at all, much less to the exclusion of others. In any event, the warrant in this case authorized only the search of returns evidencing the assignment of both a social security number and an ITIN to the same taxpayer; and for aught that appears in the record, the warrant was executed with care not to invade the contents of any other returns by more than cursory inspection for this identifying information. Despite the fact that a large number of returns bore signs of probable criminal wrongdoing and were therefore subjected to a search, under these circumstances I consider the majority's caution against general warrants to be entirely out of place.

Finally, although raising the specter of "writs of assistance" may subtly suggest otherwise, I feel compelled to emphasize my view that immigration status is not in any way at issue in this case. The tax files at issue here were not searched to discover evidence that individuals were not lawfully in the county. As the majority makes clear, federal law provides a mechanism by which even those individuals may comply with their federal tax obligations with some assurance that the IRS will not automatically turn that information over to law enforcement agencies. Rather, the files were searched for evidence of identity theft and criminal impersonation, serious crimes that create considerable negative consequences for their victims. An individual's immigration status cannot excuse the commission of such independent, criminal conduct, even if it was motivated by that immigration status or an attempt to conceal it.

At issue in this case is the question whether a tax-preparer's admission that she helped taxpayers earning income under social security numbers known to belong to other people to obtain (and file tax returns under) different individual tax identification numbers provides probable cause to search her office and seize those tax returns reflecting both kinds of identification number. Because I believe it does, I respectfully dissent.