People v. Slusher.
2026 COA 30. No. 23CA1161. Fourth Amendment—Searches and Seizures—Electronic Devices—Peer-to-Peer File Sharing—Torrential Downpour Software—Motion to Suppress—Motion for Disclosure—Sufficiency of Evidence—Jury Selection—Challenge for Cause.
April 30, 2026
An investigator used Torrential Downpour, proprietary government software, to download files containing sexually exploitative material from a specific internet protocol (IP) address through BitTorrent, a peer-to-peer file-sharing network. Subsequent investigation linked that IP address to a group home where Slusher lived with several other men. Law enforcement obtained a search warrant for the home and seized three computers that were discovered to contain sexually exploitative material: SI-6, found in a backyard shed where Slusher and other residents kept their belongings; and two shared desktop computers in the living room, SI-9 and SI-10. All three computers were connected to Slusher. Slusher was charged with two counts of sexual exploitation of a child: one for possession with the intent to distribute sexually exploitative material, and one for possession of sexually exploitative material. He was also charged with two habitual sex offender against children sentence enhancers. Slusher moved to suppress evidence of the files the investigator downloaded through Torrential Downpour and all other evidence resulting from the search warrant, arguing that the use of Torrential Downpour was an unconstitutional warrantless search and trespass. The district court denied the motion, concluding that while Slusher had a reasonable expectation of privacy in his computer, he did not have a privacy interest in the files he sent and received over the peer-to-peer file sharing program or in the IP address he used to share those files. Slusher also moved for production of the Torrential Downpour software and source code. The district court balanced law enforcement’s interest in not compromising its investigations against Slusher’s interest in being able to evaluate how the program works and concluded that the latter did not outweigh the former. The court denied the motion. Slusher was convicted as charged.
On appeal, Slusher argued there was insufficient evidence to prove that he knowingly possessed sexually exploitative material because he did not have access to the files in the computers’ unallocated space, and he did not have exclusive control over the files on SI-9 and SI-10. He did not dispute that the evidence would support a finding that he had exclusive control over SI-6 or that sexually exploitative material was found in the unallocated space on SI-6 and on SI-9. As relevant here, “possession” means nonexclusive control or dominion over sexually exploitative material. And a person acts “knowingly” with respect to conduct or a circumstance if they are aware that the conduct is of such nature or that such circumstance exists. As to SI-6, there was testimony that Slusher had the most user information on the computer and had been the exclusive user before the investigation, and there was no evidence that the images in SI-6’s unallocated space could have gotten there without the user’s knowledge. Additionally, both SI-6 and SI-9 had other data indicating that there were files consistent with sexually exploitative material previously located on or accessed from those computers. Further, SI-6 and SI-9 had a file-sharing program installed allowing these computers to share files through BitTorrent. And files in SI-9’s unallocated space were screenshots of videos that the investigator had downloaded from the home’s IP address through that program, and to be shareable, those videos must have been in a shared folder rather than in unallocated space at the time. From this evidence, a jury could reasonably infer that Slusher knowingly possessed the files in the unallocated space before deleting them.
Slusher also contended there was insufficient evidence to prove that he knowingly possessed the sexually exploitative material on SI-9 and SI-10 because those computers were in shared space that other residents of the home could access. But the fact that others also had access to the computers and may also have knowingly possessed the files does not make the evidence insufficient to support Slusher’s conviction. Here, there was sufficient evidence to support a finding that Slusher had at least nonexclusive control over SI-9 and SI-10 and thus knowingly possessed the sexually exploitative material on those computers, including that Slusher was the registered owner of both computers and that his email account was used consistently on both.
Slusher further challenged the sufficiency of the evidence, maintaining that his possession conviction violates the Ex Post Facto Clauses of the US and Colorado Constitutions because he was charged under a version of CRS § 18-6-403(3)(b.5) that wasn’t effective until two months after the beginning of the charged date range of his offense. However, the evidence was sufficient to support a conviction under the statute’s pre-amendment version, so the amendment does not affect the sufficiency of the evidence analysis. And the amendment did not punish an act that was not a crime when it was committed or otherwise change the legal consequences of Slusher’s acts. Accordingly, the amendment is not an ex post facto law as applied to Slusher.
Slusher also asserted that the district court erred by denying his motion to suppress the evidence resulting from the investigator’s use of Torrential Downpour. A person has a reasonable expectation of privacy in their personal computer, but that expectation does not include files the person makes available through a file-sharing software. And Slusher cited no authority to support the proposition that a person can publicly share illegal files while maintaining a reasonable expectation of privacy in the location from which those files were shared. Accordingly, when Slusher made the files available to everyone on the BitTorrent network, he lost any reasonable expectation of privacy he had in those files. Further, there was no trespass, because by using BitTorrent and keeping files in a shared folder, Slusher consented to other users downloading content from that folder. Lastly, the investigator did not conduct an unconstitutional seizure by downloading the files because the investigator’s use of Torrential Downpour was legitimate, and the investigator had a lawful right to access the files in that folder. The district court thus did not err by denying Slusher’s motion to suppress.
Slusher further argued that the district court violated his constitutional rights by denying his motion for disclosure of the Torrential Downpour software to the defense. A defendant is entitled to discovery only as specifically authorized by law. Here, Slusher failed to establish that the Torrential Downpour software would have been favorable to his defense or that he was denied a reasonable opportunity to present evidence casting doubt on his guilt. And the court let defense counsel extensively cross-examine prosecution witnesses about how Torrential Downpour functions. Therefore, Slusher’s constitutional rights were not violated, nor did the district court otherwise abuse its discretion by not requiring the prosecution to disclose Torrential Downpour.
Lastly, Slusher asserted that the district court abused its discretion by not excusing four jurors for cause based on their responses during voir dire. Slusher waived his argument as to two of the jurors by not challenging them. As to the other two jurors, their responses to questions did not compel an inference that they could not decide the issues fairly. And to the extent the jurors’ responses initially indicated some preconceived inclination or confusion, the record supports the district court’s determination, following its clarification of the correct legal principles, that the jurors no longer persisted in their initial views. The court thus did not abuse its discretion by declining to remove the challenged jurors for cause.
The judgment was affirmed.