The Colorado Supreme Court agreed on Monday that Fort Collins police lacked probable cause to arrest a man for a child sex offense based on his presence in a public park around the time they intended to meet with their unknown suspect.

In May 2021, police interviewed a 14-year-old girl who alleged she met a man online the prior year. The two exchanged explicit photos and videos, even though he knew she was a child. She said the man:

• Went by “Ashton”
• Had a last name that started with “Mc”
• Was likely in his thirties
• Had a March 29 birthday
• Touched her inappropriately in Rolland Moore Park
• Rode a scooter to the park

Through the girl’s father, police arranged online to meet with the suspect at the park. The suspect said he would be riding a scooter.

Twenty-four minutes after the scheduled meeting time, police saw a man in his thirties riding a scooter in the park. They immediately handcuffed and questioned the man, Austin Rhys McGee. They learned his birthdate was March 29, and he made incriminating statements to officers.

Police obtained search warrants and seized his electronic devices. Based on the evidence, prosecutors charged McGee with several sexual offenses.

The defense moved to block the evidence from being used against McGee, arguing the officers did not have probable cause to arrest him in the park.

Then-Chief Judge Susan Blanco agreed with McGee, ruling the officers did not have probable cause to believe McGee was their suspect at the time they arrested him.

The district attorney’s office appealed directly to the Supreme Court, but the justices upheld Blanco’s order.

“True, the police had specific information related to the suspect: his birth date and the fact that his last name begins with ‘Mc.’ But they did not arrest McGee based on this information,” wrote Justice Brian D. Boatright in the March 9 opinion. “Instead, they arrested McGee because he was a male in his thirties who arrived on a scooter at Rolland Moore Park within twenty-four minutes of the scheduled meeting time. Indeed, the officers based their arrest exclusively on this information.”

Boatright added that police only investigated who McGee was after he was in custody. At the point of arrest, though, they only knew they had arrested a male in his thirties who was riding a scooter in a park within 30 minutes of the rendezvous time.

“Thus, when viewed in the light of the facts and circumstances of the arrest,” wrote Boatright, “the description of the suspect lacked the specificity to satisfy the belief of a reasonably cautious officer intent on making a warrantless arrest that they would be arresting the particular person who had committed the crime.”

Blanco was recently sworn in as a member of the Supreme Court. She did not participate in the court’s opinion.

The case is People v. McGee.