Tattered Cover, Inc. v. City of Thornton

• Decision Date: 08 April 2002
• Docket Number: No. 01SA205.,01SA205.
• Parties: TATTERED COVER, INC., d/b/a the Tattered Cover Bookstore, Plaintiff-Appellant, v. The CITY OF THORNTON; and Thornton Police Officer Randy Goin, in his official capacity, Defendants-Appellees.
• Court: Colorado Supreme Court

44 P.3d 1044

TATTERED COVER, INC., d/b/a the Tattered Cover Bookstore, Plaintiff-Appellant, v. The CITY OF THORNTON; and Thornton Police Officer Randy Goin, in his official capacity, Defendants-Appellees.

No. 01SA205.

Supreme Court of Colorado, En Banc.

April 8, 2002.

As Modified on Denial of Rehearing April 29, 2002.¹

Recht & Kornfeld, P.C., Daniel N. Recht, Richard K. Kornfeld, Denver, Colorado, Attorneys for Plaintiff-Appellant.

Nathan, Bremer, Dumm & Myers, P.C., J. Andrew Nathan, Paige K. Hogan, Allyson C. Hodges, Denver, Colorado, Attorneys for Defendants-Appellees.

Faegre and Benson, LLP, Thomas B. Kelley, Steven D. Zansberg, Denver, Colorado, Attorneys for Amici Curiae American Booksellers Foundation for Free Expression, Mountain and Plains Booksellers Association, American Library Association, Freedom to Read Foundation, The Association of American Publishers, The International Periodical Distributors Association, The Periodical and Book Association of America, Inc., The Publishers Marketing Association, Pen American Center, American Society of Journalists and Authors, Colorado Freedom of Information Council, Thomas Jefferson Center for Freedom of Expression, National Coalition Against Censorship, and Feminists for Free Expression.

Holland & Hart LLP, A. Bruce Jones, Susannah W. Pollvogt, Nicholas M. Billings, ACLU Foundation of Colorado, Mark Silverstein, Denver, Colorado, Attorneys for Amicus Curiae American Civil Liberties Union of Colorado.

Justice BENDER delivered the Opinion of the Court.

I. INTRODUCTION

With this case, we recognize that both the First Amendment to the United States Constitution and Article II, Section 10 of the Colorado Constitution protect an individual's fundamental right to purchase books anonymously, free from governmental interference. Law enforcement officials implicate this right when they seek judicial approval of a search warrant authorizing seizure of customer purchase records from an innocent, third-party bookseller. This case requires us to decide what test should be applied to balance the constitutional rights of individuals and bookstores against the duty of law enforcement officials to investigate crime.

We hold that the Colorado Constitution requires that the innocent bookseller be afforded an opportunity for an adversarial hearing prior to execution of a search warrant seeking customer purchase records. At that hearing, the court must apply a balancing test to determine whether the law enforcement need for the search warrant outweighs the harm to constitutional interests caused by its execution. In order for law enforcement officials to prevail, they must demonstrate a compelling governmental need for the specific customer purchase records that they seek. When conducting the balancing test, the court may consider whether there are reasonable alternative methods of meeting the government's asserted need, whether the search warrant is unduly broad, and whether law enforcement officials seek the purchase records for reasons related to the content of the books bought by any particular customer.

Applying this balancing test, we hold that the search warrant in this case is not enforceable and should not have issued. The plaintiff, Tattered Cover, Inc., is an independent bookstore. The defendants are the City of Thornton and one of the city's police officers ("the City").

The City argues that the information sought is necessary: (1) to prove that the operator of an illicit drug lab acted with the level of intent necessary to secure a conviction under state statute; (2) to prove the identity of the perpetrator; and (3) to "connect" a suspect to the lab. We consider the City's arguments within the factual context of this case. The City currently has significant evidence as to who committed the crime, as well as reasonable additional means, other than serving the Tattered Cover with a search warrant, of discovering additional proof as to the identity of the perpetrator. The execution of the City's search warrant could substantially chill the exercise of fundamental state constitutional rights, primarily because at least one of the reasons why the City seeks the suspect's customer purchase record is related to the contents of the books that he may have purchased.

Thus, we conclude that the City has failed to demonstrate that its need for the Tattered Cover's customer purchase record is sufficiently compelling to outweigh the harm that would be caused to constitutional interests if the search warrant were executed. Therefore, we reverse the decision of the trial court.

II. FACTS AND PROCEEDINGS BELOW

The following facts, most of which are undisputed, are gleaned from the record of the hearing below. As part of an ongoing drug investigation, the North Metro Task Force and an agent of the federal Drug Enforcement Administration ("DEA"), Diversion Investigator Timothy McFarland ("DI McFarland"), were cooperatively monitoring a trailer home in unincorporated Adams County in March of 2000. These law enforcement officials suspected that a methamphetamine lab was being operated out of the trailer. Officer Randy Goin was the lead investigator on the case.

The police believed that Suspects A, B, C, and D probably lived in the trailer.² Suspects A and C (both males) were registered with the trailer park's management as residents. The officers guessed, based on their surveillance, that Suspect A and Suspect B were involved in an intimate relationship. Suspect D received mail at the trailer home.

On March 13, 2000, DI McFarland searched through some garbage from the trailer home. In doing so, he found evidence of drug operations. Additionally, he discovered a mailing envelope from the Tattered Cover addressed to Suspect A.³ The label on the mailer listed the invoice number, order number, and customer phone number corresponding to whatever books had been shipped in the envelope. There was no clue, however, as to the titles of the particular books that the mailer had contained.

The following day, based upon a variety of evidence discovered during the course of the investigation, Officer Goin obtained a search warrant for the trailer home. With the assistance of the Adams County SWAT team, Officer Goin and DI McFarland executed this search warrant.

In the trailer's master bedroom, the police found a methamphetamine laboratory and a small quantity of the manufactured drug. Because of the location of the lab, the question of which suspect or suspects resided in the master bedroom became the focus of the police's investigation.

The officers believed that Suspects A and B occupied the master bedroom, but were unable to make a conclusive determination on this question. Relevant to this issue, the police noted the presence, in the master bedroom, of male and female clothes; Suspect A's personal address book; other papers bearing the names of Suspects A, B, and C; mail and bills belonging to various additional people; some firearms; printed instructions on how to manufacture a firearm silencer; and two books.⁴

The only objects from the room that were processed for fingerprints were the glassware from the methamphetamine lab, the firearms, and the two books. The record made at the time of the hearing, nine months after the search was executed, does not reflect whether the police ever attempted to match the fingerprints found on the glassware or the firearms to any of the suspects. No usable prints were recovered from the two books.

When the police executed the search warrant, they found two people in the trailer home. Neither of these two people, referred to here as Person E (a male) and Person F (a female), resided in the home, though Person E had keys to a shed on the property. The parties debate the extent to which the police questioned Persons E and F. Person E, a transient, indicated that he did not know anything about the lab and that he just left some property at the trailer.⁵ Person F said that she had just stopped by to see her boyfriend and could not provide any information. The police apparently did not specifically ask either Person E or Person F who resided in the master bedroom of the trailer.

After the search, Officer Goin believed that he had probable cause to arrest Suspect A. However, he wanted to accumulate more evidence of Suspect A's guilt before making the arrest.

The two books seized from the master bedroom were entitled Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture, by Uncle Fester, and The Construction and Operation of Clandestine Drug Laboratories, by Jack B. Nimble. Officer Goin noticed that the books appeared to be new.⁶ DI McFarland thought that there might be a connection between the Tattered Cover mailer found in the trash and these two new books. Officer Goin then noticed that the new books appeared to fit the dimensions of the mailer.

Officer Goin searched the Tattered Cover's webpage and discovered that it offered both books for sale. He and DI McFarland then served the Tattered Cover with a DEA administrative subpoena. This subpoena demanded the title of the books corresponding to the order and invoice numbers of the mailer, as well as information about all other book orders ever placed by Suspect A.⁷ Using such a subpoena was ordinarily a successful technique for DEA officers, though such a subpoena lacks any legal force or effect.

Joyce Meskis, the owner of the Tattered Cover, instructed her attorney to tell the police that the bookstore would not comply with the subpoena, based on its concerns for its customers' privacy and First Amendment rights.

Instead of attempting to obtain an enforceable subpoena, Officer Goin approached prosecutors from the Adams County District Attorney's office to get a search warrant for the Tattered Cover. Several prosecutors at the Adams County DA's office refused to sign off on the warrant, voicing concerns about its scope and subject matter. Finally, a chief deputy...