Fort Collins police acted constitutionally when they viewed and collected files depicting illegal activity from a defendant’s computer without a warrant, Colorado’s second-highest court ruled last week.

The case questioned whether the Fourth Amendment, which prohibits unreasonable searches and seizures, applies when a private party shows a video on another person’s device to law enforcement – provided the person had a right to use the device in the first place. 

Although no precedent existed among Colorado’s courts, a three-judge panel for the Court of Appeals reviewed federal cases and concluded an electronic search by someone not connected to the government, even when they later turn over evidence to police, is constitutional.

Officers “do not violate the Fourth Amendment by viewing the same files that the independent private party previously viewed and made available to them,” wrote Judge Karl L. Schock in the panel’s March 23 opinion.

Fort Collins police responded to an apartment Brendan Morse shared with the victim. Morse had given her permission to play games on his computer, but she came across a video, recorded without her consent, of Morse sexually assaulting her while she was unconscious. She first showed the video to a friend, who copied it onto a USB drive to give to law enforcement.

The responding officer saw the video. Then a forensic analyst arrived to collect files from the computer and other hard drives. The viewing of the video and copying of files occurred prior to any warrant.

Morse sought to suppress evidence from the computer from being used at trial, alleging the search was constitutionally unreasonable. Larimer County District Court Judge Stephen J. Jouard disagreed, finding police had acted in accordance with four exceptions to the Fourth Amendment’s warrant requirement:

? the “private search doctrine,” in which law enforcement did not exceed the victim’s own search

? the “need to preserve the evidence”

? the fact that the computer was in “plain view” of officers

? the “independent source doctrine,” meaning officers would have eventually discovered the evidence legitimately as part of their investigation

Morse’s jury saw the video and subsequently convicted him in 2021 of sexual assault and invasion of privacy for sexual gratification.

On appeal, Morse contested Jouard’s findings. The appellate panel declined to say whether the plain view or evidence-preservation rationales applied, and instead focused on the private search and independent source doctrines.

In 1984, the U.S. Supreme Court decided United States v. Jacobsen, in which Federal Express workers examined a damaged package pursuant to company policy and found what appeared to be narcotics. They contacted federal agents, who arrived to search and test the contents. Law enforcement determined it was cocaine and they arrested the recipients of the package.

The court’s majority concluded that, as long as the the government did not exceed the private party’s own search, an officer’s “viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment.”

Colorado’s appellate panel, without speculating what would happen if the private party were not authorized to access the incriminating video file, determined the officers’ lawfully viewed Morse’s video after the victim showed it to them.

Even if police had exceeded the victim’s own search when they copied Morse’s files, Schock elaborated, the independent source doctrine allowed them to do so. The later application for a search warrant contained the victim’s own testimony of what she saw and Morse’s incriminating statements made to the victim.

“This information – none of which was obtained from officers’ purported search of the computer – established probable cause to believe that the computer … contained evidence of a crime,” Schock wrote.

The panel rejected Morse’s other claims on appeal, as well.

The case is People v. Morse.