I.                    WHETHER THE FOUR-PART TEST APPLIED BY THE DISTRICT COURT TO DETERMINE THE LEGALITY OF A SEARCH WARRANT SERVED UPON A BOOKSTORE FOR CUSTOMER BOOK PURCHASING RECORDS COMPORTS WITH CONSTITUTIONAL JURISPRUDENCE? 

II.         WHETHER THE DISTRICT COURT ERRED IN DETERMINING THAT LAW ENFORCEMENT’S NEED FOR RECORDS PERTAINING TO THE BOOK BUYING HABITS OF A CUSTOMER OUTWEIGHED PRESUMPTIVELY VALID FIRST AMENDMENT PROTECTIONS ATTENDANT TO THOSE RECORDS?

STATEMENT OF THE CASE

Nature Of The Case

At issue is a crucial constitutional matter of first impression in Colorado, i.e., how courts should balance an individual’s constitutionally protected right to access expressive materials and a bookstore’s First Amendment right to distribute such materials, with law enforcement’s desire to aggressively investigate criminal violations.  This case involves a police attempt to search without warning Denver’s Tattered Cover Book Store for purchasing records of a bookstore customer.  The store’s owner, Joyce Meskis (“Meskis”), is a longtime and vocal advocate of the First Amendment rights of booksellers and their customers to access and sell expressive materials.  The police maintain their need for this material outweighs First Amendment protections claimed by the Tattered Cover on behalf of itself, its customers and the population of readers as a whole.  The Tattered Cover argues that the police have failed to demonstrate a compelling need for the records and a sufficient nexus between the records and the criminal investigation.

Course Of Proceedings

On April 11, 2000, the Tattered Cover filed a motion in Denver District Court for a temporary restraining order to enjoin execution of the search warrant, which was granted by stipulation of the parties.  On October 17, 2000, Chief District Court Judge J. Stephen Phillips held a bench trial regarding the Tattered Cover’s request for a preliminary injunction.  After taking evidence on the issue, the court granted the restraining order with respect to the request for the suspect’s 30-day purchasing history, but ruled that “the warrant here in question in part meets the ‘exacting scrutiny’ test as a minimal but necessary intrusion into the purchasing records”, and granted the request for the content of the shipping envelope. (V1, p. 222).

On November 7, 2000, the Tattered Cover filed a timely notice of appeal. (V1, pp. 226-33).  On that same date, the district court granted the parties’ request to stay execution of the warrant pending a final appellate resolution.  (V1, pp. 223-25).

STATEMENT OF FACTS

Thornton Police Search A Small-Scale Methamphetamine Lab

The present case emanates from law enforcement’s investigation of a small-scale methamphetamine laboratory located in a bedroom of a trailer home in Adams County.  Officer Randy Goin of the Thornton Police Department (“Officer Goin”) was the lead investigator.  (V2, p.82)  The investigation focused on Suspect A[1] and the trailer home in which Suspect A lived.  (V2, p.79)  Officer Goin received a search warrant for the trailer home from a judge in Adams County.  That same day, Officer Goin, Drug Enforcement Administration (“DEA”) Special

Agent Timothy McFarland (“Agent McFarland”) and members of the Adams County SWAT team executed the warrant at the trailer home.  (V2, p.82)  In the trailer’s master bedroom, the police found a small methamphetamine laboratory.  (Id.)

In the course of searching the master bedroom, the police found the following two books: Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture, by Uncle Fester, and Construction and Operation of Clandestine Drug Laboratories, Second Edition, by Jack B. Nimble.  (V2, pp.138-139)  The day before the search of the trailer home, Agent McFarland found an empty mailer from the Tattered Cover in the trash outside the trailer home addressed to Suspect A.  (V2, pp.109,140).  The empty mailer indicated an invoice number, but not what was purchased or what was contained originally in the envelope.  (Defendant’s Exhibit from the trial).  Officer Goin believed the two books regarding manufacturing of methamphetamine found in the master bedroom may have been mailed to Suspect A by the Tattered Cover in that mailing envelope. 

      Lack Of Follow-Up Investigation By Law Enforcement

When Officer Goin and fellow agents executed the search warrant, there were two people in the house.  One was a man named John Vetter (“Vetter”), and the other was a woman.  (V2, p.84)  However, no one ever comprehensively questioned Vetter regarding the methamphetamine lab despite Vetter’s close ties to the trailer home.  (V1, p.93)  Further, as of the date of the search warrant, agents never attempted to interview the female regarding the methamphetamine laboratory.   (V2, p.94) 

Officer Goin believed that Suspects A, B, C and D probably lived in the trailer.  (V2, pp.95,150)  Officer Goin believed that Suspect A, who is male, was involved in an intimate relationship with Suspect B, who is female.  (V2, p.83)  Officer Goin also believed that Suspects A and B shared the master bedroom in which the laboratory was located.  (Id.)  Officer Goin thought he could prove Suspect A resided in the master bedroom because personal effects, including Suspect A’s address book, were found there.  (V2, p.150)  However, possessions from four or five different people were found in the master bedroom.  (V2, pp.106-107)  Although the identities of Suspects A, B, C and D, were known to Officer Goin, he chose not to interview any of them with regard to the use and/or possession of the methamphetamine laboratory.  (V2, pp.97,104)

Law Enforcement Forum Shops To Obtain Search Warrant For Tattered Cover

Officer Goin did not make any investigative effort to determine who purchased the two books, apart from his pursuit of the Tattered Cover.  Once he discovered, via an internet search, that the Tattered Cover offered both titles for sale, he focused all of his energy on forcing the store to give him the “puzzle piece” he wanted.  (V2, p.134)  He and Agent McFarland decided to serve the Tattered Cover with a document entitled “Administrative Subpena”.  Meskis, the owner of the Tattered Cover, instructed her lawyer to inform Agent McFarland that the bookstore would not comply with the demand for production, based upon its concern for its customer’s privacy and First Amendment rights, and because this “subpena” was without legal force and effect.  (V2, pp.48, 179, 181) 

Instead of attempting to obtain an enforceable subpoena, Officer Goin next approached prosecutors in the Adams County District Attorney’s office to obtain a search warrant for the Tattered Cover.  (V2, p.115)  The first prosecutor he approached refused to approve the affidavit as it was written and instructed him to make substantive changes.  (V2, p. 116)  The second prosecutor Officer Goin approached also refused to sign off on the warrant, despite the changes, until he first conferred with a superior.  (V2, p.116)  Then, Fran Wasserman (“Wasserman”), a chief deputy in the prosecutor’s office, reviewed the affidavit and voiced his concerns about it. (V2, pp.116-117)  Ultimately, the warrant request became a heated issue between the North Metro Task Force and the Adams County District Attorney’s Office.  (V2. p.117)  When Wasserman and Officer Goin met on March 30, 2000, Wasserman refused to sign off on the affidavit.[2]  (V2, pp.117-118)

In an effort to avoid having the Tattered Cover searched, Wasserman sensibly suggested Officer Goin attempt to interview the suspects he had thus far avoided, in order to see if they could furnish information regarding who ran the laboratory and lived in the bedroom.  (V2, p.119)  Officer Goin, however, believed that Wasserman was not entitled to tell him how to run his investigation.  (Id.)  Wasserman also told Officer Goin that he planned to contact the bookstore’s lawyer to see if the information could be provided without using a search warrant, and asked Officer Goin to hold off a few days until Wasserman talked to the bookstore’s lawyer.  (V2, pp. 120-121)

Shortly thereafter, without informing Wasserman, Officer Goin surreptitiously took the affidavit Wasserman had rejected to a prosecutor in the Denver District Attorney’s Office, without informing the prosecutor of Wasserman’s ongoing efforts to resolve the issue with the Tattered Cover.  (V2, p.122)  Officer Goin was specifically instructed by his superiors to engage in this forum shopping and to conceal his activities in this regard from Wasserman and the Adams County District Attorney’s office.  (V2, p.122)  After approval “as to form” by the Denver prosecutor, then Denver County Court Judge Celeste C de Baca authorized the warrant, and Officer Goin proceeded to the bookstore with four other officers.  (V2, p.123)

Despite Wasserman’s suggestion to do so, prior to obtaining the search warrant, Officer Goin made no effort to talk to five of the six people who apparently had knowledge of who resided in the trailer’s master bedroom.  Further, because of his failure to contact or interview Suspect A, Officer Goin never determined whether Suspect A would simply consent to his examination of Suspect A’s purchase record from the Tattered Cover.  Officer Goin knew the identities of the people in the trailer and who bought all the precursor chemicals.  He also fingerprinted the glassware seized from the laboratory and was in the process of analyzing it at the time he sought to search the Tattered Cover. (V2, p.151)[3]  Because both suspects A and B have extensive criminal histories, there are certainly comparison prints from them to assist in this analysis.  (V2, p.131)

Agents Execute Search Warrant On The Tattered Cover

On April 5, 2000, five officers led by Goin entered the Tattered Cover unannounced with a search warrant, which sought the names of books purchased by a specific Tattered Cover customer, Suspect A.  (Id).  Meskis, the owner of the bookstore, was frightened and dumbfounded when the police entered her office demanding access to one of her customer’s

purchase information.  (V2, p.50)  She challenged the officers’ actions on First Amendment / privacy grounds, and this case ensued. 

Goin’s Rationale For Seeking Search Warrant Of The Tattered Cover

Officer Goin believed that determining who purchased the two books would tie the purchaser to the master bedroom and the laboratory.  (V2, p.106)  When pressed to articulate the importance of the identity of the purchaser of the books, Officer Goin at first claimed that he could use the contents of the book to show “more concretely that Suspect A is residing in that bedroom, that it’s his meth lab, that he’s using that stuff [the books], not only for his reading enjoyment, but to assist him in illegal activity.”  (V2, pp.152-153)  Whatever persuasive force this conjecture might have originally possessed was undercut when Officer Goin admitted that his own fingerprint expert determined only the covers of the books had ever been handled.  (V2, pp.108-109)

Further, Officer Goin admitted this information was no more than one “piece of the puzzle” of the clandestine drug manufacturing mosaic he was seeking to assemble.[4]  (V2, pp,107-108)  Officer Goin conceded the tenuous connection between putting something in the master bedroom and living in the master bedroom, especially in light of his claim that a number of other people had possessions in that room.  (V2, p.107)

The Parties Go To Court

On October 17, 2000, Chief Denver District Court Judge J. Stephen Phillips presided over a bench trial regarding the Tattered Cover’s request for a preliminary injunction.  At the hearing, Meskis testified that in the over twenty years she has owned The Tattered Cover, she has never received more letters and other communications from the public than she has on this issue. The responses were overwhelmingly in support of her First Amendment and privacy position.  (V2, p.54)  Meskis went on to explain how the bookstore and its customers would be burdened by complying with the search warrant.  (Id.)  She discussed the chilling effect the disclosure would have, and how customers would be afraid to purchase controversial material that would “have a detrimental effect on the freedom to read in our society.”  (V2, p.57) 

The court also heard testimony from Judith Krug (“Krug”), a librarian and director of the Office for Intellectual Freedom of the American Library Association,[5] who explained why violating the reader’s right to privacy would ultimately erode public dissemination of information.  (V2, pp.183-184,188,198)  Charles Robinson (“Robinson”), a Washington bookseller who has belonged to the American Booksellers Association for twenty years [including two terms as its president, and who served as founding vice-president and is a current board member of the American Booksellers Foundation for Free Expression (ABFFE)] also testified about the heavy and far-reaching burden compliance with this search warrant would present.  (V2, pp.202-204)  Taken together, the evidence adduced from the testimony of Meskis,

Krug and Robinson demonstrated the chilling effect this search warrant, if executed, would have on the reading public.  The defendants presented no evidence to the contrary from any source.       

The trial court granted the restraining order with respect to the request for the suspect’s 30-day purchasing history, but allowed the police to obtain from the Tattered Cover what was contained in the shipping envelope. (V1, p. 233).  On November 7, 2000, the Tattered Cover filed a timely notice of appeal. (V1, pp. 226-33).  On that same date, the district court granted the parties’ joint request to stay execution of the warrant pending a final appellate resolution.  (V1, pp. 223-25).

SUMMARY OF ARGUMENT

This case presents crucial questions regarding the interplay between the government’s power to investigate crimes by compelling a bookstore to divulge presumptively confidential records pertaining to customer purchasing habits, and the First Amendment rights of individuals and entities like bookstores to possess and to provide access to expressive materials without the fear of reprisal or interference from the State.  The question of how to balance these competing interests is one of first impression in Colorado.

The district court announced a four-part test aimed at balancing the rights and interests of the Thornton Police Department, on the one hand, and the Tattered Cover and its customers on the other.  Unfortunately, the test devised by the district court fundamentally misinterpreted well-settled First Amendment jurisprudence inasmuch as the first prong of the district court’s test substitutes the “compelling need” test, as recognized by a series of cases and as most recently articulated by a federal district court in In Re Grand Jury Subpoena to Kramerbooks and Afterwords, Inc., 26 Media L. Rep. 1599 (D.D.C. 1998), with what it called the “legitimate and significant government interest” test. 

This misinterpretation of well-settled First Amendment case law resulted in a significant diminution of the key element the government needs to satisfy in order to have its interests outweigh the First Amendment protections afforded to the confidentiality of the Tattered Cover’s records of customer book purchases. 

In addition, the district court erred in determining that the search warrant at issue justified a “minimal but necessary intrusion” into the First Amendment rights of both the Tattered Cover and its customer.[6]  Having essentially agreed with law enforcement’s defective but central premise that the material one reads is indicative of an individual’s propensity to commit crime, the district court improperly narrowed the application of its four-part test to determine the legitimate interest (as opposed to the compelling need) of the police in determining what book or books a particular individual purchased.  Instead, the gravamen of law enforcement’s factual inquiry and, by extension, the district court’s, should have been who was manufacturing drugs in the bedroom, not which books one of the known inhabitants purchased.  Further, the district court exacerbated its error in excusing the police officers’ failure to attempt to ascertain the information via alternative investigative techniques that do not involve the invasion of the First Amendment, and in failing to weigh the potential value of the evidence and the relative importance of the criminal case against the First Amendment principles at stake.

In applying a watered-down “ legitimate and significant” interest test to a suspect factual inquiry, the district court improperly constructed an analytical framework under which the interests of law enforcement in investigating crime will always outweigh the First Amendment rights of bookstores like the Tattered Cover and its customers. 

This case calls upon this Court to decide what test the lower courts shall apply in balancing First Amendment rights against the duty of law enforcement to investigate criminal activity.  The Tattered Cover believes precedent dictates that a court at least apply the compelling need standard.  However, even if this Court applies the four-prong analysis employed by the district court, which is faulty for the reasons stated herein, the First Amendment must still prevail over the desire of law enforcement to obtain the book purchasing records sought via search warrant. 

ARGUMENT

I.                    STANDARD OF REVIEW

As the trier of fact at the October 17, 2000 hearing, the district court made a number of factual findings.  While such findings ordinarily may be accorded deference upon appellate review, this case is unique in that it involves the undisputed assertion of rights protected by the First Amendment.  “First Amendment questions of constitutional fact compel de novo appellate review.”  Wilder v. Board of Educ., Jefferson County, 944 P.2d 598, 603 (Colo. App. 1997); see also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 510-11 (1984); Lewis v. Colorado Rockies Baseball Club, Ltd., 941 P.2d 266, 271 (Colo. 1997); Riddick v. Craig, 719 P.2d 340 (Colo. App. 1985); Kuhn v. Tribune-Republic Publishing Co., 637 P.2d 315, 318 (Colo. 1981); Russell v. McMillen, 685 P.2d 255, 258 (Colo. App. 1984).  As the Supreme Court noted in New York Times v. Sullivan, 376 U.S. 254 (19­­64), in cases involving the First Amendment, courts “must make an independent examination of the whole record…so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.”  New York Times, 376 U.S. at 285.  This standard of review is applicable to both legal issues raised herein.

II.         THE SEARCH OF THE TATTERED COVER IMPLICATES CORE FIRST AMENDMENT/FREE SPEECH VALUES

The Tattered Cover takes pride in promoting free exchange and access to a wide variety of ideas.  The store is as well-known for its book signings, author readings, children’s story time and children’s bookmark coloring contest as it is for its abundant inventory and knowledgeable staff.   The Tattered Cover’s reputation is predicated upon a relationship of trust between the store and its customers.   This bond, which transcends a simple buyer/seller commercial relationship, has been fundamentally threatened by law enforcement’s desire to search customer records, and the attendant fear that customers’ reading habits could be the subject of government intrusion and investigation.

A.        General Applicable Constitutional Principles

Like any bookstore, the Tattered Cover is engaged in constitutionally protected expressive activity in distributing books and other expressive materials presumptively protected by the First Amendment.  The “constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication.”  Bantam Books, Inc. v. Sullivan, 372 U.S. at 65 n.6 (1963) (citations omitted); see also, FW/PBS v. City of Dallas, 110 S.Ct. 596 (1990) (sale, exhibition and distribution of expressive material is presumptively protected by the First Amendment); Smith v. California, 361 U.S. 147, 152 (1959) (state has no power to “restrict the dissemination of books which are not obscene”); Lovell v. City of Griffin, 303 U.S. 444 (1938) (distribution of expressive material is constitutionally protected).[7]

Similarly, the Tattered Cover’s customers are engaged in constitutionally protected activity when they go to the store to seek knowledge, research topics and/or expand themselves intellectually.  See Reno v. ACLU, 521 U.S. 844, 874 (1997).  The Tattered Cover has standing to contest the government’s attempt to discover evidence of the book purchasing of certain customers.  Virginia v. American Booksellers Assn., 484 U.S. 383, 392-93 (1988) (booksellers have standing to allege infringement of the First Amendment rights of book buyers); see also, Kramerbooks, supra at p. 1599, n. 1; Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) (publishers can assert rights of distributors).  The First Amendment to the United States Constitution protects the right to receive information and ideas, regardless of social worth, and to receive such information without government intrusion or observation.  Stanley v. Georgia, 394 U.S. 557 (1969); Lamar v. Postmaster General, 381 U.S. 301 (1965).

In its Order dated October 28, 2000, the district court noted that “[w]hat is being sought here is the record of a purchase of reading material from a private vendor,” and properly recognized the dangerous nature of such a governmental search to individual freedoms by quoting United States v. Rumley, 345 U.S. 41, 57-58 (1953) (Douglas, J., concurring):

Once the government can demand of a publisher the names of the purchasers of his publications, the free press as we know it disappears.  Then the spectre of a government agent will look over the shoulder of everyone who reads.  The purchase of a book or pamphlet today may result in a subpoena tomorrow.  Fear of criticism goes with every person into the bookstall.  The subtle, imponderable pressures of the orthodox lay hold.  Some will fear to read what is unpopular, what the powers-that-be dislike.  When the light of publicity may reach any student, any teacher, inquiry will be discouraged.  The books and pamphlets that are critical of the administration, that preach an unpopular policy in domestic or foreign affairs, that are in disrepute in the orthodox school of thought will be suspect and subject to investigation.  The press and its readers will pay a heavy price in harassment.  But that will be minor in comparison with the menace of the shadow which government will cast over literature that does not follow the dominant party line.  If the lady from Toledo can be required to disclose what she read yesterday and what she will read tomorrow, fear will take the place of freedom in the libraries, bookstores, and homes of the land.  Through the harassment of hearings, investigations, reports, and subpoenas government will hold a club over speech and over the press.

(V1, pp. 220-221)

B.         The Colorado Constitution Is More Protective Of First Amendment Rights Than The United States Constitution

The principles of free speech receive even greater protection under the Colorado Constitution.  Article II, Section 10 of the Colorado Constitution states that “[n]o law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject.”  The Colorado Supreme Court has held that the Colorado Constitution “provides greater protection of free speech than does the First Amendment.”  Lewis v. Colorado Rockies Baseball Club, Ltd., 941 P.2d at 271 (citing Bock v. Westminster Mall Co., 819 P.2d 55, 59 (Colo. 1991) (recognizing that Article II, Section 10 of the Colorado Constitution provides greater protection of free speech than does the First Amendment to the United States Constitution))[8]

C.        Any Intrusion Upon The First Amendment Is Subject To Exacting Scrutiny

Because of the First Amendment protections attendant to records regarding book distribution, courts apply exacting scrutiny to governmental intrusion into such records.  For example, in the case of grand jury subpoenas implicating the First Amendment, the government must demonstrate a compelling need in the information sought or a compelling need for the information sought.  In Re Grand Jury Subpoena Duces Tecum, 78 F.3d 1307, 1312 (8th Cir 1996) (“a grand jury subpoena will be enforced despite a First Amendment challenge if the government can demonstrate a compelling interest in…the information sought”), cert denied, 117 S.Ct. 432 (1996); In Re Grand Jury Proceedings, 776 F.2d 1099, 1102-03 (2nd Cir. 1985) (state’s need must be compelling and able to survive exacting scrutiny as to whether they are sufficiently important to outweigh the possibility of infringement of the First Amendment); In Re Grand Jury Subpoena, 701 F.2d 115, 119 (10th Cir. 1983) (if court determines enforcement of subpoena would chill associational rights, the government must show a compelling need to obtain documents identifying petitioners’ members).

Courts have also held that in addition to showing a compelling need for such materials, the government must demonstrate a sufficiently close nexus between the information sought and the investigation.  In Re Grand Jury Subpoena Duces Tecum, 78 F.3d at 1312  (“a grand jury subpoena will be enforced despite a First Amendment challenge if the government can demonstrate…a sufficient nexus between the information sought and the subject matter of its investigation”).

In Kramerbooks, supra, the Office of Independent Counsel, in the course of its investigation of President Clinton, sought to obtain records of the book-buying habits of Monica Lewinski via a grand jury subpoena issued to a Washington, D.C. bookstore.  In determining the validity of a grand jury subpoena for book purchase records pertaining to a particular customer, the district court applied a two-part test: first, “the government must demonstrate a compelling interest in the information sought or a compelling need for the information sought,” Kramerbooks, 26 Media L. Rep. at 1601 (citations omitted); second, “the government must also show a sufficient connection between the information sought and the grand jury investigation where there is a First Amendment challenge to a grand jury subpoena.”  Id.  See also, In Re Grand Jury Subpoena to First Nat’l Bank, Englewood, Colo., 701 F.2d 115, 117 (10th Cir. 1983).

The court in Kramerbooks held that the subpoena placed a burden on the First Amendment rights of both the bookstore and the customer.  Recognizing that Supreme Court precedent required the balancing of the First Amendment interests against the interests in the law enforcement process, the district court for the District of Columbia adopted the test utilized by most federal circuits, including the Tenth Circuit, in assessing these competing interests.  That court held the government could not obtain records of Ms. Lewinski’s book purchases unless it demonstrated a compelling need for the materials sought, and the nexus between the information sought and the grand jury investigation.  Kramerbooks, supra at 1601.[9] 

Colorado courts have not specifically adopted the Kramerbooks standard and, in fact, have not specified an applicable standard.  However, the need is great.  The First Amendment interests are even more pressing in the present case which concerns even more drastic use of police power - the execution of unannounced search warrants. 

In the present case, law enforcement agents employed a search warrant in order to obtain book-purchasing records.  Any search warrant requires a showing of probable cause. See Colo.R.Crim.P. 41(c)(IV); People v. Brethauer, 482 P.2d 369 (Colo. 1971).  Implicit in a law enforcement officer’s assertion of probable cause is the notion that there exists a legitimate and significant governmental interest in acquiring the information in that the affiant is asserting, in essence, that the facts and circumstances within the officer’s knowledge are sufficient to warrant an individual of reasonable caution in the belief that an offense has been, or is being, committed.  People v. Brethauer, supra; Finley v. People, 488 P.2d 883 (Colo. 1971).

A police officer’s desire to obtain information that is protected by the First Amendment requires more than merely a showing of probable cause and, by extension, a legitimate and significant government interest.  Indeed, regardless of whatever standard is applicable to search warrants in ordinary contexts, stricter standards apply where, as here, the information sought by the government burdens and infringes upon First Amendment rights.  See, e.g., A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 211-212 (1964) (different standards control searches and seizures of allegedly obscene books than control other contraband); Marcus v. Search Warrant, 367 U.S. 717, 731 (1961) (“a state is not free to adopt whatever procedures it pleases for dealing with obscenity…without regard to the possible consequences for constitutionally protected speech”); Roaden v. Kentucky, 413 U.S. 496, 501 (1973) (“[a] seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material”).

As the district court correctly recognized, when the government seeks the production of constitutionally protected materials, it must show a strong nexus between the materials and its investigation.  Stated another way, determining whether a search warrant is permissible requires “balanc[ing] the burden of compliance, on the one hand, against the governmental interest in obtaining the documents on the other.”  United States v. R. Enterprises, 498 U.S. 292, 302 (1991).

III.       THE TEST APPLIED BY THE DISTRICT COURT TO DETERMINE THE LEGALITY OF THE SEARCH WARRANT WAS INCORRECTLY FORMULATED AND MISAPPLIED

After recognizing that “any intrusion by government into organizational or individual records of reading or other informational materials has been subject to ‘exacting scrutiny,’” the trial court adopted a four-part test to account for the extraordinary interests at stake in this case:

1)      Is there a legitimate and significant government interest in acquiring

      the information? and,

2)      Is there a strong nexus between the matter being investigated and the

material being sought? and,

3)      Is the information available from another source? and,

4)      Is the intrusion limited in scope so as to prevent exposure of other

constitutionally protected matters?

(V1, p.232).  Colorado courts had not previously announced a balancing test applicable to this factual scenario.  The district court constructed this four-part test that has no precedent anywhere in the country. 

A.        The District Court Diluted The Applicable Constitutional Standard And Erred In Finding The Police Had Demonstrated A Compelling Need For The Materials Sought From The Tattered Cover

1.         Prong One Of The District Court’s Test

While the district court properly cited and articulated most of the applicable First Amendment precepts, it erred in a very significant manner in its articulation of the first prong of the test.  The district court’s application of the “legitimate and significant government interest” test greatly diminishes the government’s burden and, in so doing, negates a bedrock First Amendment principle, i.e. that the government must show more than a legitimate and significant interest by demonstrating a compelling need for the materials.

In the present case, the first prong of the district court’s test fails to recognize the compelling need standard and instead simply requires an almost self-evident and, therefore, meaningless standard, i.e. the “legitimate and significant government interest” standard.  The danger in substituting a legitimate interest standard for a compelling need standard is that the two tests are not synonymous.  In essence, the fact law enforcement is pursuing and investigating a particular case, piece of evidence, or suspect indicates, almost by definition, that the investigation is “legitimate and significant.”  One is hard-pressed to imagine a criminal investigation that would not be defined as being “legitimate” and “significant.”  Therefore, whenever there is “probable cause” to believe a search warrant could yield evidence that might aid law enforcement officials in prosecuting crimes, the district court’s watered-down standard would be satisfied even in cases where the government has no “compelling need” to obtain the information sought through the search warrant. 

In the due process context, Colorado courts have recognized that when challenged legislation infringes on a fundamental liberty or property interest, the state must show a compelling government interest. Collins v. Jaquez, 15 P.3d 299, 303 (Colo. App. 2000); People v. Turman, 659 P.2d 1386, 1371 (Colo. 1983).  By way of contrast, where no fundamental right is implicated, the challenged legislation is subject to due process evaluation pursuant to the rational basis test.  Id.  See also, Kistler v. Industrial Commission, 556 P.2d 895, 897 (Colo. 1976) (citing Skinner v. Oklahoma, 316 U.S. 535 (1942); Shapiro v. Thompson, 394 U.S. 618 (1969)).  The very fact such a distinction exists between compelling need and rational basis is indicative of the fact that compelling need is a much more exacting standard than rational basis or its semantic cousin, legitimate interest.

The Tenth Circuit has recognized the applicability of the “compelling need” test in the context of disclosure of materials protected by the First Amendment.  In In Re Grand Jury Subpoena to First Nat’l Bank, Englewood, Colo., supra, the court held that the government must demonstrate a compelling need for a membership list of an anti-tax organization, and a substantial relationship between the material sought and legitimate governmental goals, in order to successfully obtain the list via a grand jury subpoena.  Recognizing the potential chilling effect on the right of free association, the court indicated that “we have long recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate government interests…We also have insisted that there be a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed.”  701 F.2d at 117.  (citing Buckley v. Valeo, 424 U.S. 1, 64 (1976)).

The present case directly implicates a fundamental liberty interest, i.e. the First Amendment right to sell, receive and possess expressive materials.  Therefore, the district court should and must have applied the “compelling need” test as articulated in Kramerbooks and numerous other precedents, and not the “legitimate and significant government interest” standard.  In utilizing this diminished standard in prong one of its test, the district court erred by diminishing the legal hurdle the government had to overcome in the present case in order to obtain the search warrant it served on the Tattered Cover.  Unlike the Thornton Police Department, this Court must be mindful that the right to engage in expressive activities like buying books, without revealing one’s identity to the government or to the public at large, is a fundamental component of the First Amendment right to free expression.  As the Supreme Court has made clear, “[a]nonymity is a shield from the tyranny of the majority…It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.”  McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995).

While the Tattered Cover certainly takes issue with the assumption that what one reads is indicative of an individual’s propensity to commit crime, it is equally true that reading and other expressive materials may constitute relevant evidence, pursuant to CRE 401, in a criminal case.[10]  Therefore, the crux of the issue is not whether the evidence simply is “relevant” to law enforcement since this broad definition of relevance suggests, if not demands, that the police would always have a compelling need for the evidence they seek.

Indeed, one cannot interpret compelling need as applying to the question of whether the police require relevant evidence, since the answer inevitably will be a resounding yes.  Similarly, compelling need cannot apply to the question of whether law enforcement and society as a whole

have a compelling need to enforce the criminal laws or to investigate crimes.  Again, the answer to that question always will be yes.  “The compelling state interest must consist in disclosure of the very materials or information which would otherwise be protected.”  Martinelli v. District Court, 612 P.2d 1083, 1092 (Colo. 1980) (en banc) (emphasis supplied).  Thus, the question must be whether the police have a compelling need for the particular materials in the context of the specific case, which is much narrower than asking whether the police had “a strong interest in the enforcement of criminal laws and the accurate identification of an offender.”  (V1, pp. 221-222).

While the police certainly have a need to enforce criminal laws, the important question the district court failed to ask, and the government failed to answer, is whether there was a compelling need for the book-purchasing records in the present case.  Not only did officers recover two books on methamphetamine production but, more significantly, they also identified numerous witnesses who presumably may had knowledge of who operated the lab and lived in the bedroom where the lab was located.  Therefore, the police were in a position to conduct witness interviews in order to determine who had access to the bedroom and who was manufacturing illegal drugs in the bedroom.  The records pertaining to the books recovered in the bedroom constitute evidence that is so tangential to identifying the drug manufacturers that the government cannot demonstrate a compelling need for this information.  While the book-purchasing records might be relevant under CRE 401 and might constitute a piece of the evidentiary puzzle, the evidentiary value of such records is de minimis. Under the facts of the present case, there is no compelling state interest “in disclosure of the very materials or information which would otherwise be protected.” Martinelli v. District Court, 612 P.2d at 1092.  Further, the government is not permitted to engage in a fishing expedition, Silkwood v. Kerr McGee, 563 F.2d 433 (10th Cir. 1977), because it has not demonstrated a likelihood that: a) the books received in the Tattered Cover mailer addressed to Suspect A were the two books on methamphetamine production: or b) even if Suspect A had ordered and/or purchased those books, that he actually read them. 

2.         Prong Two Of The District Court’s Test

Prong two of the district court’s test, which states, “Is there a strong nexus between the matter being investigated and the material being sought?” is very similar to the second prong of the Kramerbooks test, which requires the government to also “show a sufficient connection between the information sought and the grand jury investigation where there is a First Amendment challenge to a grand jury subpoena.”  Kramerbooks, supra at 1601.  See also, In Re Grand Jury Subpoena to First Nat’l Bank, Englewood, Colo., 701 F.2d at 117.  What is key about both the district court’s and the Kramerbooks articulation of this nexus concept is they both assume the necessity not just of a nexus or connection, but rather a “strong” or “sufficient” relationship between the material sought and the investigation.  While the strength or sufficiency of the nexus is a factual determination unique to each individual case, the core concept is that in order to infringe upon an individual’s First Amendment rights, law enforcement must demonstrate a direct and significant connection between the evidence and the investigation, as opposed to simply stating the obvious, i.e. that the material sought relates to the investigation.  A “remote and tenuous relationship to the subject of the investigation” is not sufficient.  Branzburg v. Hayes, 408 U.S., 665, 710 (1972) (Powell, J. concurring). 

The entirety of the district court’s factual findings regarding the second prong of its test was that there was a “strong nexus” between the records and the investigation since “[w]ho purchased the ‘how to’ books is a highly important piece of evidence and the fact that the books appeared to be new, coupled with the recent mailing envelope from the book vendor, makes [sic] it likely that the books were purchased under that invoice.”  (V1, pp. 221-22).

However, the court erred in agreeing with Officer Goin, who attempted to characterize the identity of the book purchaser as absolutely critical to the investigation. 

As discussed above, the nexus between the Tattered Cover purchase records and any investigative goal is even more tenuous than would appear at first blush.  Evidence regarding who purchased unread books will not prove who had the knowledge and/or intent to operate an illegal drug lab.  Law enforcement’s only theory of relevance with respect to the books at issue is that whoever owned certain objects in a room must have lived in the room, and whoever resided in the room must have operated the lab contained therein.  This theory of relevance is strained in that: 1) it rests on the flawed assumption that, in a multi-resident trailer, objects found in one room will only belong to the residents of that room; and 2) it requires at least two deductive leaps to establish any connection between ownership of objects in the room and the identity of the operator of the illegal drug lab.  Therefore, the nexus between the material sought and the purported investigative goal is both attenuated and weak, and certainly not of the nature justifying such a profound invasion of fundamental First Amendment rights.

3.         Prong Three Of The District Court’s Test

The third prong of the district court’s test, i.e. “Is the information available from another source?”, suggests that before the police attempt to gain information that is otherwise protected by the First Amendment, officers should first consider whether that information is otherwise available.  While the district court did not articulate this prong of its test as an exhaustion requirement per se, it did recognize that officers should have considered obtaining the evidence via alternative investigative techniques that do not impinge upon constitutionally protected rights, before they compel the disclosure of constitutionally protected materials.  This prong of the district court’s test is analogous to the second prong of the Colorado Newsperson Privilege Statute, C.R.S. § 24-72.5-104.  This statute, which provides a test for determining the propriety of subpoenas directed to newspersons to obtain “news information,” requires law enforcement officers to make the following showing in order to subpoena news information from a newsperson:

1)      That the news information is directly relevant to a substantial issue involved in the proceeding;

2)      That the news information cannot be obtained by any other reasonable means; and

3)      That a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the First Amendment to the United States Constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information.

C.R.S. § 24-72.5-104(a)-(c).[11] 

The second prong of the news privilege statute codifies the notion that law enforcement agents must consider and attempt less intrusive investigative means before seeking to pierce an individual’s First Amendment rights through the use of an investigative tool, in this case a subpoena.  See Gordon v. Boyles, 9 P.3d 1106, 1118 (Colo. 2000) (a party seeking to overcome

the newsperson’s statutory privilege must demonstrate through competent evidence “both that no other reasonably available sources of the information exist and that [he] has exhausted [all of] the reasonably available sources that might provide the information sought.”)  More significantly, the First Amendment itself recognizes such an exhaustion requirement.  See, e.g., Silkwood v. Kerr-McGee Corp., 563 F.2d at 438; Re/Max Int’l v. Century 21, 846 F.Supp 910, 911-912 (D.Colo. 1994). 

The same logic and analysis applies to the use of search warrants to obtain customer book-purchasing records from a bookstore.  It is imperative that the Tattered Cover’s roster of customers, as well as the book-purchasing habits of those customers, remain confidential absent law enforcement’s satisfaction of each prong of the test.[12]  While it may be easier and more efficient for the police to search the Tattered Cover rather than to interview a half-dozen witnesses, such practical considerations do not obviate the need for the police to comply with the Constitution.  See, Branzburg, 408 U.S. at 680-81 (subpoena should not be enforced when impact on First Amendment is “unnecessary”); Bursey v. United States, 466 F.2d 1059, 1063 (9th Cir. 1972) (government must show the “means of obtaining the information is not more drastic than necessary to forward the government’s interest.”)

The district court erred in determining that “the information is not really available from another source.”  (V1, p. 222).  In fact, the police willfully chose not to exhaust all other sources available to help determine who lived in the bedroom and who ran the drug lab contained therein.  Officer Goin and his fellow investigators initially failed to contact the woman who was with Vetter when the warrant was executed on March 14, 2000 to see if she had information about the drug lab and its owner.  (V2, p. 91).[13]  Officers similarly chose not to attempt to interview the woman known as Suspect D, even though agents had observed her car arriving and departing the trailer at various times, and her name appeared on mail found in the bedroom. (V2, pp. 96-97, 102, 143).  Similarly, Officer Goin and his colleagues never attempted to interview suspects A, B and C, all of whose whereabouts were known to the police.  (V2, pp. 97-100).

Officer Goin’s failure to interview Suspect A is especially difficult to understand in light of his admission that the only definitive evidence of Suspect A’s residence in the bedroom could come not from book-purchasing records, but rather from Suspect A’s own acknowledgment of this fact. (V2, pp. 107-08).  When Adams County Deputy District Attorney Wasserman told Officer Goin to try to interview these suspects, Goin refused and instead forum-shopped by bringing the search warrant to a Denver County deputy district attorney for review.  Officer Goin could not provide a valid reason for these omissions.  (V2, p. 148).  Similarly, he could not explain why he did not pursue the fingerprint analysis he ordered of component parts recovered in the drug lab, despite the fact these results could have indicated who handled the glassware used to manufacture the drugs. (V2, p. 151).

In short, the police failed to demonstrate a pursuit, much less an exhaustion, of other sources of the information it sought via the search warrant.  Indeed witness interviews and fingerprint analysis are but two standard investigative techniques that are applicable to the present case and less intrusive than a search warrant.  Law enforcement’s willful refusal to explore readily available sources of information that do not implicate the First Amendment cannot be excused, much less validated, by this Court.  Put simply, government intrusion on fundamental rights protected by the constitution must be a last resort, not the first option employed by the police.  Shoen v. Shoen, 5F.3d at 1297 (“compelled disclosure from a journalist must be a last resort after pursuit of [all] other opportunities have failed” (quoting Carey v. Hume, 492 F.2d 631, 639 (D.C. Cir 1974)). 

4.         Prong Four Of The District Court’s Test

The final prong of the district court’s test, i.e. “Is the intrusion limited in scope so as to prevent exposure of other constitutionally protected matters?”, reflects a judicial attempt to minimize the constitutional impact of such a search warrant, and to balance law enforcement’s need for the information against the constitutional rights of the citizenry.[14]  It is precisely because the First Amendment presumptively protects the material sought by the police that such a balancing test is required.  As the Supreme Court has noted, a court’s task is “balanc[ing] the burden of compliance, on the one hand, against the governmental interest in obtaining the documents on the other.”  United States v. R. Enterprises, 498 U.S. at 302.

Assuming the government proved a compelling need, strong nexus and unavailability from another source, this Court still must attempt to balance the constitutional intrusion against the importance of the evidence sought via search warrant.  In the present case, the district court correctly determined that law enforcement’s desire for customer book-purchasing records for a 30-day period was overbroad.  However, the district court failed to engage in any meaningful balancing test in analyzing the propriety of any intrusion into the First Amendment rights of both the Tattered Cover and its customer.

In contrast to the significant First Amendment infringement inherent in the execution of the search warrant, the government’s need for the book-purchasing records is negligible.  By Officer Goin’s own admission, he had proof Suspects A, B and C lived in the house, and that the bookstore records would, at best, merely constitute a “piece of the puzzle” by purportedly proving Suspect A slept in the bedroom containing the lab.  (V2, pp. 83, 105, 107-08, 152-53).[15]  Further, the fact that one of the books still was wrapped and fingerprint analysis could not prove anyone had opened either book undermined Officer Goin’s alternate claim that he wanted the records in order to prove the purchaser actually read and used information contained in the books to manufacture methamphetamine. (V2, pp. 152-53).  At no point did the officer describe the records as constituting anything more than one of many puzzle pieces (as opposed to being a central piece of evidence).  Accordingly, the government fell well short of proving the need for

the records outweighed the constitutional interests at stake.  See Re/Max Int’l v. Century 21, 846 F.Supp at 912, (First Amendment right not overcome where evidence sought by subpoena is merely cumulative of other evidence available to establish some point, even where proponent of subpoena assert, the information sought is more credible or persuasive than other available evidence). 

Moreover, searches of bookstores will create a chilling effect upon bookstore customers.  The Tattered Cover elicited testimony from the store’s owner, Meskis, as well as from Judith Krug, a librarian and director of the Office for Intellectual Freedom of the American Library Association, and Charles Robinson, a Washington bookseller who has served two terms as president of the American Booksellers Association.  All three testified that bookstore customers and library patrons would be chilled from reviewing, purchasing and/or borrowing expressive materials if they believed such intellectual interests were open to inspection and interpretation by law enforcement agents.  (V2, pp. 54-57, 188-98, 202-204).  The defendants presented no evidence to the contrary. 

CONCLUSION

For all the foregoing reasons and authorities, Plaintiff/Appellee the Tattered Cover respectfully requests this Court reverse that portion of the trial court’s ruling allowing the government to execute a search warrant upon the Tattered Cover for book-purchasing records.

Respectfully submitted,

RECHT & KORNFELD, P.C.

_____________________________

Daniel N. Recht, #11569

Richard K. Kornfeld, #24198

Attorneys for Plaintiff-Appellee

1600 Stout Street, Suite 1350

Denver, CO  80202

(303) 573-1900

Fax: (303) 446-9400

rklaw@rmi.net

 CERTIFICATE OF SERVICE

I hereby certify that on this _____ day of June, 2001, a true and correct copy of the foregoing Opening Brief was placed in the United States Mail, correct postage prepaid, and addressed to the following:

Gary C. Jacobson

Assistant City Attorney

P.O. Box 291220

Thornton, CO 80229-1220

Paige K. Hogan

J. Andrew Nathan

Nathan, Bremer, Dumm and Myers, P.C.

3900 E. Mexico Ave., Ste. 1000

Denver, CO 80210

_______________________________