People v. Seymour.

2023 CO 53. No. 23SA12. Fourth Amendment—Searches and Seizures—Internet—Probable Cause—Expectation of Privacy—Possessory Interests—Particularity—Nexus—Warrants—Good Faith—First Amendment—Expressive Conduct.

October 16, 2023

Exercising its original jurisdiction under C.A.R. 21, the Supreme Court addressed the constitutionality of law enforcement’s use of a reverse-keyword warrant to obtain from Google certain user-account data related to a suspected arson that resulted in the deaths of five people. The Court discharged its rule to show cause for several reasons. First, the Court concluded that, under the Colorado Constitution, Seymour has a constitutionally protected privacy interest in his Google search history even when revealed only in connection with his IP address and not his name, and that, under both the Colorado Constitution and the Fourth Amendment, he also has a constitutionally protected possessory interest in that same history. Second, the Court concluded that Seymour’s Google search history implicates his right to freedom of expression; thus, the constitutional protections must be applied with “scrupulous exactitude.” Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)). Third, a majority of the Court concluded that the warrant at issue adequately particularized the place to be searched and the things to be seized. Fourth, the majority assumed without deciding that the warrant required individualized probable cause and that its absence here rendered the warrant constitutionally defective. Finally, the majority concluded that law enforcement obtained and executed the warrant in good faith, so the evidence shouldn’t be suppressed under the exclusionary rule.