People v. Gall

Decision Date05 March 2001
Docket NumberNo. 00SA101.,00SA101.
Citation30 P.3d 145
PartiesThe PEOPLE of the State of Colorado, Plaintiff/Appellant, v. Michael John GALL, Defendant/Appellee.
CourtColorado Supreme Court

Mary W. Keenan, District Attorney, Twentieth Judicial District, William F. Nagel, Chief Deputy District Attorney, Bryan W. Quiram, Deputy District Attorney, Boulder, CO, Attorneys for Plaintiff-Appellant.

Paul Grant, Englewood, CO, Attorney for Defendant-Appellee.

Justice COATS delivered the Opinion of the Court.

The People appealed pursuant to section 16-12-102(2), 6 C.R.S. (2000), and C.A.R. 4.1, challenging the district court's order suppressing all of the evidence seized during a search of the defendant's residence. Because the executing officers acted in reasonable reliance upon a search warrant and the seizure of five laptop computers, later determined to be stolen, was authorized by the warrant, the district court's order is reversed and the case is remanded for further proceedings consistent with this opinion.


Following the seizure of numerous items, including suspected bomb-making materials; hundreds of documents referencing guns, explosives, and bomb making; writings about the defendant's personal feelings; and a number of desktop and laptop computers; the defendant was arrested and charged with one count of felony theft by receiving1 and three counts of felony possession of explosives and incendiary devices and parts2. The defendant moved to suppress everything seized from his residence on the ground that the supporting affidavit failed to articulate probable cause for the search. In addition, he challenged the seizure of five laptop computers, later determined to be stolen, on the ground that they were outside the scope of the warrant.3

At the February 7, 2000 hearing on the defendant's suppression motion, the People presented a copy of the warrant authorizing the search and the six-page, typewritten, supporting affidavit, as well as the testimony of Detective Hartkopp, who authored and presented the affidavit, and Detective Spraggs, who helped execute the search warrant. In the affidavit, Hartkopp outlined his investigation from June 24-26, 1999, into an alleged conspiracy between the defendant, Michael John Gall, and a co-worker, Byron Kyle Dorethy, to murder two of their supervisors at Amgen Incorporated. Detective Hartkopp was assigned to the case following a report to the Boulder Police Department by several Amgen supervisors. An employee named Israel Ramirez had advised them that the defendant and Dorethy, both security guards at Amgen, had been talking about shooting fellow employees at work, including two of the security supervisors named David Barley and Debbie Payne. In subsequent interviews with the police, Ramirez gave details about the alleged co-conspirators' plans to use explosives during an attack at the Amgen facility and their specific threats to shoot Barley and Payne. Ramirez specifically told Detective Hartkopp that the defendant claimed to have used explosives in the past and to have in his possession an AK-47 high-powered rifle, an AR-15 rifle, and a Beretta handgun.

The affidavit also recounted conversations with another employee named Dan Brunson. Although Brunson was unsure of any specific plans to hurt anyone or damage property, he indicated that the defendant had talked about keeping a fully automatic AK-47, an AR-15, and a Beretta handgun at his residence; that once while criticizing someone else for improperly handling explosives, the defendant had explained to Brunson how to make a bomb; and that Dorethy was an emotionally unstable and disgruntled employee. In addition, the affidavit described the discovery by Amgen supervisors of a five-page computer printout in a paperwork box belonging to Dorethy. The final page of the printout was dated the evening of June 23, and contained the address of David Barley, including detailed directions and time of travel from the Amgen building to Barley's residence. The full printout also contained multiple references to AR-15 and AK-47 rifles and other weapons; laudatory comments about the effects of the recent mass shooting at Columbine High School; characterization of the author's own thoughts about killing as "unhealthy;" and use of the name "Mike" in reference to the person to whom his comments were directed. The defendant was the only person with the first name "Mike" known to the security supervisors to be working at the Amgen facility at the same time as Dorethy.

The affidavit also included a number of corroborating details learned by the police during their investigation. These included comments by co-workers about the anger of both the defendant and Dorethy at the impending replacement of the security guards at Amgen by another service; discovery that the work schedules of the defendant and Dorethy placed them as the only two guards in the security office on the shift immediately preceding the discovery of the computer printout; and learning from the FBI that the defendant did not have a permit allowing him to possess a fully automatic weapon. Finally, the affidavit listed a street address as the defendant's residence, learned through the telephone directory, and a second street address, which named officers had personally visited and observed.

Detective Spraggs testified that he participated in the execution of the warrant for the defendant's residence. Although he did not recall seeing the affidavit prior to executing the warrant, he was aware that it authorized the seizure of writings, journals, and other information involving the use of explosives, reflecting the thoughts of the defendant, or otherwise referencing a plan to execute some type of "event" at Amgen.4 In addition to hundreds of written documents and other things seized during the execution of the warrant, the police also seized two desktop model computers and five laptop computers. Additional warrants were later obtained to search the hard drive memories of these computers for evidence of the suspected conspiracy.

At the conclusion of the hearing, the court delayed its ruling to consider questions concerning the identification of the defendant's residence that had not previously been addressed by the parties. On February 11, it issued a written order concluding that the search warrant for the defendant's apartment was invalid and that the executing officers could not have relied on it in good faith because of the supporting affidavit's failure to identify the defendant's street address as an apartment complex or to specify his apartment number. The district court therefore suppressed everything seized in the search.

On February 23, the People requested a rehearing, without objection, making clear their intent to appeal and asking that the court rule as well on the original grounds asserted in the defendant's motion to suppress, in order to avoid piecemeal litigation of the suppression issues. The court set the rehearing for April 4, almost two months later. While not opening the hearing for additional evidence, the court heard argument and completed its ruling on the defendant's motion to suppress. Specifically, it addressed the defendant's challenge to the seizure of the five laptop computers. In this subsequent ruling, the district court found that although the computers were lawfully viewed by the police, there was nothing in their immediate appearance giving the officers any reason to connect them with criminal behavior. The court indicated that it was unable to conclude that a computer is analogous to a writing, journal, notebook, letter, or any other type of document. It ruled that the People failed to prove that this was the basis for the seizure of the computers and that the computers were lawfully within the scope of the warrant.

On April 14, the People filed their notice of interlocutory appeal in this court pursuant to C.A.R. 4.1.5


After the suppression hearing, the district court determined from its own observations that the affidavit, as distinguished from the warrant presented along with it, did not indicate that the defendant's address was an apartment complex or specify the number of the defendant's apartment. After articulating grounds to believe that both the defendant and Dorethy were involved in the conspiracy, and that items connected to the crime would be found at their respective residences, the affidavit stated that officers determined from the telephone directory that the defendant, Michael John Gall, lived at 3161 Madison in Boulder. It then described a second residence in greater detail at 664 Tantra Drive, noting that it was actually visited by the police. However, each page of the affidavit also contained the annotation, "Search Warrant: 3161 Madison N302," and the warrant presented to the magistrate along with the affidavit identified the premises to be searched as 3161 Madison Avenue, Apt. N302. The warrant further described that address as a "four-story apartment building, constructed of brick with brown siding and beige trim," and indicated that apartment "N302" was located on the "North/West side" of the building, with an east front entrance, and that it had a rust colored door with a window, beige trim, a brass door handle, and rust colored numbers "N302" on its right side. The warrant also specifically incorporated by reference the affidavit of Detective Hartkopp, and both the warrant and affidavit cross-referenced Attachment A, containing the list of items for which seizure was authorized by the warrant.

Rather than finding that the affidavit failed to establish probable cause to believe the defendant was committing a crime or that items connected to the crime would be discovered at his residence, the district court found that Hartkopp's affidavit failed to identify the specific apartment that was the defendant's residence and failed to request a warrant to search that apartment. The court ultimately concluded that...

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