Law enforcement in Clear Creek County was in the process of executing a search warrant at a Silver Plume home, looking for devices containing child pornography, when they encountered Kevin M. Dhyne, a tenant in the house’s basement.

Dhyne volunteered to a detective that he used his landlord’s Internet – an admission that would culminate in Dhyne’s conviction on felony sexual exploitation charges.

Last week, a three-judge panel of the Court of Appeals upheld Dhyne’s convictions, disagreeing with Dhyne’s argument that police violated his constitutional right against unreasonable searches and seizures when they “basically stumbled upon him” during an investigation that was focused elsewhere.

Although the appellate panel and the trial judge all agreed the evidence collected against Dhyne from his home was admissible at his trial, there was not unanimity on why that was so. In total, the various judges endorsed three different justifications for the constitutionality of the search.

Judge Neeti Vasant Pawar, in the panel’s majority opinion, called the ruling narrow because of the unique facts of the case. Specifically, Dhyne had told police – who were otherwise unaware – that he used the same Internet network the investigators were targeting.

“Without that admission,” Pawar wrote on Oct. 20, “Dhyne’s separate residence would not have fallen within the warrant’s showing of probable cause.”

Officials with the Jefferson County Sheriff’s Office were investigating sexually exploitative material involving children in May 2016. They tracked the material to an Internet protocol, or IP, address in Silver Plume. IP addresses identify a specific network and device using a series of numbers.

Using the IP address, police obtained a search warrant for the entire property, where they knew a registered sex offender was living. Once there, upon learning Dhyne also lived on the premises and used the house’s Internet service, police believed they were authorized to search Dhyne’s living area. They seized multiple devices of his, which contained sexually exploitative images and video.

Dhyne attempted to suppress the evidence from being used at trial, arguing the police search ran afoul of the Fourth Amendment’s requirement that warrants describe the specific place to be searched. Because his basement unit was not mentioned, Dhyne contended that police should have obtained a search warrant that covered his particular home.

Then-District Court Judge D. Wayne Patton conceded law enforcement should not have searched Dhyne’s quarters. However, he believed the evidence was admissible under the “inevitable discovery” exception – meaning police would have lawfully discovered the evidence on Dhyne’s devices through their routine investigation. Patton had “no doubt” police would have obtained a search warrant eventually for Dhyne’s basement unit.

Following his conviction, Dhyne argued on appeal that law enforcement had not, in fact, pursued any investigation related to him by the time they encountered him at the Silver Plume house. The only name appearing in the search warrant was that of the registered sex offender living at the home, not Dhyne.

“If the warrant says you can search anything this IP address relates to, you’re not searching the IP address. You’re searching the physical structure from which the IP address is connected,” Pawar observed during oral arguments before the appellate panel.

“In this case, clearly we had an investigation into an IP address,” added Judge Jaclyn Casey Brown, “or at least the equipment that could access a particular IP address. Is that enough?”

Michael S. Sager, a lawyer for Dhyne, responded that the warrant “needs to at least identify Mr. Dhyne.”

Assistant Attorney General Trina K. Kissel argued that regardless of the trial judge’s findings about the police search, the warrant did, in fact, apply to the basement where Dhyne lived.

“If the whole property is described, and the whole property can contain the evidence being searched for, and the whole property is supported by probable cause,” she said, “then the whole property can be searched without offending the Fourth Amendment.”

The Court of Appeals panel declined to adopt Patton’s view that Dhyne’s devices would inevitably have been discovered. Instead, Pawar, writing for herself and Brown, believed the police lawfully searched the basement unit because Dhyne revealed his Internet use was linked to the IP address at the center of the warrant. Pawar called that admission to the police “critical.”

“Because police had information that the IP address linked to the subscriber’s physical address (the basis for probable cause) was commonly used by Dhyne in his separate residence at that physical address,” she wrote, “the search of Dhyne’s apartment was authorized by the warrant, notwithstanding his separate unit.”

Judge David J. Richman wrote separately to say he also believed the search was constitutional, but not because of the inevitable discovery exception or the fact Dhyne admitted to using the Internet at the Silver Plume house. Richman referenced a 2011 federal court decision from Maryland which held that, where Internet usage is an issue, the “entire premises” are suspect when the Internet connection is open to others.

“Given the nature of the evidence that the officers were searching for and the information they had about the subscriber’s house, the entire premises were suspect, including Dhyne’s unit, once he admitted to using the subscriber’s IP address,” Richman explained.

The panel rejected Dhyne’s other challenges to his convictions, including his argument he should have been able to introduce evidence that the registered sex offender at the house was an alternate suspect.

The case is People v. Dhyne.