People v. Morse.
2023 COA 27. No. 21CA1542. Fourth Amendment—Searches and Seizures—Warrantless Search—Motion to Suppress—Private Search Doctrine—Independent Source Doctrine—Sufficiency of Evidence—Admissibility of Evidence.
March 23, 2023
Morse allowed his girlfriend A.A. to use his computer to play a game. While A.A. was using the computer, she found a video of Morse having sex with her while she was unresponsive from alcohol consumption (A.A. video). A.A. later stated that she did not remember the incident, did not consent to Morse having sex with her while she was passed out, and did not consent to Morse recording her. A.A. also discovered on Morse’s Google account several other videos of women who were naked or having sex, apparently taken without the women’s knowledge. A.A. showed the A.A. video to law enforcement officers. Police obtained search warrants for Morse’s computer, a hard drive, two USB drives (including the one containing the A.A. video), Morse’s cell phone, and his Google account. Based on the A.A. video, Morse was charged with two counts of sexual assault and one count of invasion of privacy for sexual gratification. He moved to suppress the evidence from his computer and Google account. The district court denied the motion on four alternative grounds, concluding that (1) officers could search the computer under the private search doctrine; (2) officers could seize the computer under the plain view exception; (3) officers could search and seize the computer under the exigent circumstances exception; and (4) even if the search and seizure were not lawful, the evidence would be admissible under the independent source doctrine, because officers later obtained a warrant to search the computer. The A.A. video was admitted at trial and played for the jury, but the district court excluded all evidence and testimony about explicit videos of other women. The jury found Morse guilty of sexual assault (victim incapable of appraising conduct) and invasion of privacy for sexual gratification. It found him not guilty of sexual assault (physically helpless victim).
On appeal, Morse argued that the district court erred in denying his motion to suppress. Officers do not violate the Fourth Amendment by viewing the same files that an independent private party previously viewed and made available to them. Here, it is undisputed that officers lawfully viewed the same video that A.A. had already viewed and made available to them, so the officers’ viewing of the A.A. video did not exceed the scope of the private search. But even if it did, the evidence found on the computer and USB drive would be admissible under the independent source doctrine. Accordingly, the district court properly denied the motion to suppress. The court of appeals did not decide whether the search and seizure would also have been permitted under the plain view or exigent circumstances exceptions to the warrant requirement.
Morse also argued that the district court abused its discretion in limiting the cross-examination of A.A. about a text message exchange between Morse and A.A. regarding a prior sexual encounter because the text messages were (1) relevant to A.A.’s capacity to appraise the nature of her conduct and Morse’s knowledge thereof; (2) inconsistent with A.A.’s prior testimony; and (3) admissible as res gestae. However, the messages were not relevant to A.A.’s capacity to appraise the nature of her conduct during the charged assault and had no bearing on Morse’s knowledge of A.A.’s state during the charged event. Further, the statements referenced in the cross-examination questions were not inconsistent with A.A.’s testimony, and the res gestae doctrine has been abolished in criminal cases in Colorado. Therefore, the district court did not abuse its discretion.
Morse further contended that the district court abused its discretion by admitting three photos showing the file path for the A.A. video. He maintained that the photos should have been excluded under CRE 403 because their probative value was substantially outweighed by the danger of unfair prejudice. However, it is undisputed that this evidence was relevant, and it was necessary to establish that the video of the illegal activity, which was the central piece of evidence at trial, came from Morse’s computer. And the risk of unfair prejudice was low. Accordingly, the district court did not abuse its discretion.
Morse also argued that his conviction for sexual assault (victim incapable of appraising conduct) under CRS § 18-3-402(1)(b) was unsupported because the evidence was insufficient to prove beyond a reasonable doubt that A.A. was incapable of appraising the nature of her conduct and that Morse knew she was incapable. However, the video of the assault, as reflected in witness testimony about that video, was quantitatively and qualitatively sufficient to sustain Morse’s conviction under this statute. Further, his acquittal on other charges is not inconsistent with the guilty verdict.
Lastly, Morse argued that the district court erred by not affording him a preliminary hearing when the prosecution amended the complaint and information to add the charge for sexual assault of a victim incapable of appraising the nature of their conduct. But Morse failed to pursue available remedies to bring this challenge, so this claim is moot.
The judgment was affirmed.