People v. Swietlicki

• Decision Date: 23 November 2015
• Docket Number: Supreme Court Case No. 15SA129
• Citation: 2015 CO 67,361 P.3d 411
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellant, v. John Mikall Paul SWIETLICKI, Defendant–Appellee.
• Court: Colorado Supreme Court

361 P.3d 411

2015 CO 67

The PEOPLE of the State of Colorado, Plaintiff–Appellant,

v.John Mikall Paul SWIETLICKI, Defendant–Appellee.

Supreme Court Case No. 15SA129

Supreme Court of Colorado.

November 23, 2015

Attorneys for Plaintiff–Appellant: George H. Brauchler, District Attorney, Eighteenth Judicial District, L. Andrew Cooper, Chief Deputy District Attorney, Centennial, Colorado.

Attorneys for Defendant–Appellee: Douglas K. Wilson, Public Defender, Matt Mulch, Deputy Public Defender, Castle Rock, Colorado.

Opinion

JUSTICE HOODdelivered the Opinion of the Court.

¶ 1 In this interlocutory appeal, the People challenge the trial court's order suppressing evidence obtained from defendant Swietlicki's laptop computer. Police seized the laptop without a warrant and held it until a search warrant issued, at which time they searched the laptop and found child pornography. Because the seizure was justified under the plain view exception to the warrant requirement, we reverse the suppression order.

I. Facts and Procedural History

¶ 2 In January 2014, Detective Weaver of the Douglas County Sheriff's Office (“DCSO”) responded to a middle school's report regarding J.M., a twelve-year-old female student. School staff had begun questioning J.M. about a Facebook posting of J.M. drinking what seemed to be an alcoholic beverage. They quickly became worried there was more to the situation and contacted police. Upon his arrival, Detective Weaver spoke to J.M. but elicited no additional information. Later that day, J.M.'s mother called the DCSO to say J.M. wanted to talk. During the next two-and-a-half weeks, J.M. and her mother separately participated in a series of video-recorded interviews.

¶ 3 J.M.'s interviews with Detective Weaver and a forensic interviewer occurred on January 21 and January 30, 2014, respectively. During these interviews, J.M. said John Swietlicki, her mother's then-fiancé, had been having regular sexual contact with her since she was approximately eight years old. The contact included vaginal touching, oral sex, and vaginal intercourse. She claimed that the most recent encounters had occurred earlier that month—January 2014—while J.M.'s mother was on a business trip.

¶ 4 J.M. said Swietlicki sometimes showed her pornography on his computers during these encounters. That pornography depicted “kids.” She described how Swietlicki used a “black and gray flash drive” to transfer pornography from his desktop computer to his laptop. Swietlicki used the laptop so that he and J.M. could view the pornography in locations other than the room off their garage, where Swietlicki kept his desktop computer.

¶ 5 During Detective Weaver's interviews with J.M.'s mother, she corroborated various details surrounding J.M.'s allegations. For example, she acknowledged owning, and physically produced, lingerie matching the description of lingerie J.M. said Swietlicki had asked her to wear for him, and she confirmed the occurrence, travel route, and timing of a trip J.M. and Swietlicki took to California, which was one of the specific instances in which J.M. alleged abuse.

¶ 6 Although Swietlicki went into hiding shortly after the investigation began, he maintained contact with J.M.'s mother via text messages. J.M.'s mother said Swietlicki had asked her to send him photographs of the room off the garage. Swietlicki gave J.M.'s mother the password to his desktop computer located there, but she discovered the computer had been wiped clean.

¶ 7 She also disclosed that Swietlicki's only current source of income was unemployment benefits and that his behavior during their five-year relationship suggested he had no other liquid assets to speak of.

¶ 8 A consent search of the couple's house revealed Swietlicki's laptop was missing.

¶ 9 The district attorney filed sexual assault charges against Swietlicki and the court issued a nationwide warrant for his arrest. In March 2014, Deputy Jorgenson—a DCSO deputy assigned to the U.S. Marshals Task Force in Colorado—asked Deputy Clauss, a U.S. Marshal stationed in Wisconsin, to investigate whether Swietlicki was staying with relatives in Wisconsin. Deputy Clauss conducted surveillance on multiple relatives' addresses and decided to interview Swietlicki's cousin, Chad Saegert, first.¹On March 18, 2014, Clauss went to Saegert's home and spoke with him.

¶ 10 Saegert said he'd had no contact with Swietlicki for approximately two years. However, after Deputy Clauss explained the charges against Swietlicki and notified Saegert that harboring a fugitive and lying to law enforcement are crimes, Saegert revealed Swietlicki was sleeping in Saegert's bedroom. Deputy Clauss then arrested Swietlicki and took him to a local jail.

¶ 11 At Deputy Jorgenson's request, Clauss returned to Saegert's home forty-five to ninety minutes later to ask about Swietlicki's vehicle. Saegert invited Clauss inside the house, where two other relatives were then present. Saegert pointed to a laptop sitting on a table and said the laptop was Swietlicki's.²

¶ 12 Deputy Clauss immediately called Deputy Jorgenson, who in turn contacted Detective Weaver, to ask about the laptop. At Weaver's behest, Clauss seized the laptop because of J.M.'s statements concerning child pornography. Weaver and Jorgenson brought Swietlicki and the laptop to Colorado after Swietlicki was cleared for extradition.

DCSO later obtained a warrant, searched the laptop, and found child pornography on it. The People brought additional charges against Swietlicki based on this discovery.

¶ 13 Swietlicki moved to suppress all evidence found on the laptop. The trial court granted the motion, finding that the police lacked probable cause to seize the laptop. The court further found both the plain view and exigent circumstances exceptions to the warrant requirement inapplicable.

¶ 14 The People appeal under section 16–12–102(1), C.R.S. (2014), and C.A.R. 4.1.

II. Standard of Review

¶ 15 “When reviewing a suppression order, we defer to the trial court's findings of fact if they are supported by competent evidence in the record.”People v. Sotelo,2014 CO 74, ¶ 18, 336 P.3d 188, 191. “We review the trial court's legal conclusions de novo and reverse if the trial court applied an erroneous legal standard or came to a conclusion of constitutional law that is not supported by the factual findings.” Id.

III. Analysis

¶ 16 We begin by discussing the Fourth Amendment as it applies to warrantless seizures of containers. We next analyze the plain view exception to the warrant requirement in this context. We conclude that the warrantless seizure of Swietlicki's laptop did not violate the Fourth Amendment³because it was justified under the plain view exception.

A. Warrantless Seizures of Containers Under the Fourth Amendment

¶ 17 The Fourth Amendment to the United States Constitution prohibits “unreasonable searches and seizures” of personal property. U.S. Const. amend. IV. Warrantless seizures of personal property are presumptively unreasonable, and hence invalid, under the Fourth Amendment. Illinois v. McArthur,531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001); People v. Gothard,185 P.3d 180, 183 (Colo.2008). This general rule holds true where the property seized is a closed container the contents of which remain concealed. United States v. Place,462 U.S. 696, 700–01, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); see also Horton v. California,496 U.S. 128, 133–34, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); United States v. Jacobsen,466 U.S. 109, 113–14, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). We have previously characterized computers as containers for purposes of search and seizure law. E.g., People v. Gall,30 P.3d 145, 153 (Colo.2001)(finding “container rationale” of prior Fourth Amendment cases “equally applicable to nontraditional, technological ‘containers' ” such as the laptop computers at issue there); cf. People v. Herrera,2015 CO 60, ¶ 31, 357 P.3d 1227, 1232–33(analogizing a text message folder to a closed container). However, because the Fourth Amendment demands only reasonableness, the warrant requirement applicable to such container seizures is subject to “certain reasonable exceptions.” See Kentucky v. King,563 U.S. 452, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011).

¶ 18 The People argue that one such exception—plain view—applies here.⁴

B. The Plain View Exception Justified Seizing the Laptop

¶ 19 Under the plain view exception, a warrantless seizure of a container is reasonable for Fourth Amendment purposes if police observed the container in plain view and if the seizure satisfies three requirements: (1) the police were lawfully in the position from which they viewed the container, (2) the incriminating nature of the container was immediately apparent, and (3) the police had a lawful right of access to the container. See Minnesota v. Dickerson,508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); People v. Koehn,178 P.3d 536, 537 (Colo.2008).

¶ 20 The trial court found, and Swietlicki concedes, that the first and third requirements were satisfied but decided that the incriminating nature of the laptop was not immediately apparent. We disagree.

1. “Immediately Apparent” Means Probable Cause

¶ 21 Both Swietlicki and, to a lesser extent, the trial court emphasize the phrase “immediately apparent” in analyzing plain view. Thus, before turning to the merits, we take this opportunity to clarify the “immediately apparent” language first enunciated in Coolidge v. New Hampshire,403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)(plurality opinion), and frequently reiterated in our plain view cases. A naked reading of this phrase could fairly lead to the conclusion that, for the incriminating nature of an object to be “immediately apparent,” the seizing officer must experience a split-second revelation—a product not of thought but of reflex—in which he knows,at the moment he lays eyes upon the object, that the object is incriminating. But more than three decades of jurisprudence conclusively...