24CA0784 Peo v Mason 12-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0784 Weld County District Court No. 16CR2268 Honorable Meghan Patrice Saleebey, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Daniel Mason,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE FREYRE Pawar and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 24, 2025
Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Frank Law Office LLC, Adam Frank, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Daniel Mason, appeals the postconviction court’s
order denying his Crim. P. 35(c) motion for postconviction relief
after an evidentiary hearing. We affirm.
I. Background
¶2 In 2015, the United States Homeland Security Investigations
Cyber Crimes Center’s Child Exploitation Investigations Unit (CEIU)
joined an ongoing child pornography investigation. This
investigation involved multiple individuals across the United States
who were members of an internet-based bulletin board dedicated to
the advertisement, distribution, and production of child
pornography. CEIU identified an IP address, associated with an
internet subscriber located in Colorado (the Subject Property), that
was used to download child pornography. Mason lived at the
Subject Property with his parents and two siblings.
¶3 Based on this information, CEIU obtained and executed a
search warrant for the Subject Property, seizing multiple computers
and electronic storage devices, including a desktop computer
belonging to Mason that was found in his bedroom. A forensic
examination of Mason’s computer located files in several places on
the computer’s hard drive containing sexually exploitative material.
1 ¶4 In October 2016, Mason was charged with nine counts of
sexual exploitation of a child. Following a jury trial, Mason was
convicted of one count. The jury was unable to reach a verdict on
the remaining counts. The trial court sentenced Mason to seven
years of probation.
¶5 Mason appealed his conviction. Trial counsel represented
Mason on appeal.1 A division of this court affirmed. See People v.
Mason, (Colo. App. No. 19CA2168, Sept. 9, 2021) (not published
pursuant to C.A.R. 35(e)).
¶6 Mason then filed a Crim. P. 35(c) motion. After a two-day
evidentiary hearing, the postconviction court denied Mason’s
motion.
¶7 On appeal, Mason contends that prior counsel was ineffective
because (1) he did not move to suppress evidence seized from
Mason’s computer under the Fourth Amendment’s particularity
requirement, and (2) he failed to appeal the trial court’s incomplete
Batson inquiry. We disagree.
1 Because trial and appellate counsel are the same, we refer to
counsel as “prior counsel” throughout the opinion for clarity.
2 II. Ineffective Assistance of Counsel
¶8 “A criminal defendant is constitutionally entitled to effective
assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76
(Colo. 2003). To succeed on an ineffective assistance claim, the
defendant must establish that (1) counsel’s performance was
deficient, meaning it fell below an objective standard of
reasonableness; and (2) counsel’s deficient performance prejudiced
the defendant, meaning that a reasonable probability exists that,
but for counsel’s deficient performance, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668,
687-88 (1984); Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo.
2007). In considering the reasonableness of counsel’s performance,
a court must make “every effort . . . to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689. Additionally,
counsel enjoys a “strong presumption” that his conduct falls within
the wide range of reasonable professional assistance. Id. A
postconviction court may reject an ineffective assistance claim if a
3 defendant fails to demonstrate either deficient performance or
prejudice. People v. Aguilar, 2012 COA 181, ¶ 9.
¶9 We review the denial of a Crim. P. 35(c) motion after a hearing
as a mixed question of fact and law, People v. Corson, 2016 CO 33,
¶ 25, deferring to the postconviction court’s factual findings but
reviewing de novo the court’s ultimate conclusions regarding
performance and prejudice, People v. Sharp, 2019 COA 133, ¶ 12.
The postconviction court determines the weight and credibility to be
given to the testimony of witnesses in a Crim. P. 35(c) hearing.
People v. Hardin, 2016 COA 175, ¶ 39. Accordingly, “[w]here the
evidence in the record supports the findings and holding of the
postconviction court that presided over an evidentiary hearing, the
judgment will not be disturbed on review.” People v. Wardell, 2020
COA 47, ¶ 27.
A. Particularity of Warrant
¶ 10 Mason contends that prior counsel provided ineffective
assistance by not moving to suppress evidence found on Mason’s
computer because the warrant was not particularized. We are not
persuaded.
4 1. Additional Background Information
¶ 11 As relevant here, the search warrant authorized the seizure
and search of “computer(s), digital storage media, or digital storage
devices,” located within the Subject Property, including information
about the IP address “that constitute[d] evidence of the commission
of, contraband, the fruits of the crime, or instrumentalities of
violations of Title 18, United States Code, Sections 2252(a)(1), (2),
and (4) and 2252A(a)(1), (2), (3), and (5).”
¶ 12 The affidavit contained the following information:
• The affiant had been a special agent with the United
States Immigration and Customs Enforcement’s
Homeland Security Investigations branch since 2007. As
part of his duties, the affiant investigated criminal
violations relating to child exploitation and child
pornography. The affiant previously conducted and
participated in numerous child exploitation and child
pornography investigations, search warrants, interviews,
and forensic examinations.
• Digital software or hardware exists that allows people to
share digital access over wired or wireless networks
5 allowing multiple people to browse the Internet from the
same IP address.
• The majority of individuals who collect child pornography
rarely dispose of their sexually explicit materials and may
go to great lengths to conceal and protect their collection.
• Mason resided at the Subject Property and had a driver’s
license registered to the Subject Property.
¶ 13 Before trial, Mason filed a motion to suppress all evidence
seized when CEIU searched the Subject Property. Mason asserted
that the affidavit in support of the warrant “lacked the requisite
probable cause to justify the intrusion.”
¶ 14 At the motions hearing, prior counsel rested on his motion.
The trial court found:
In regarding the search warrant, I would certainly note that much of the search warrant really does go to the officer’s training and what different things mean in the context of child pornography, how that sharing happens, how people who view that may kind of try to hide that fact, and again, in terms of kind of the layers that ultimately the officer lays out in the warrant in terms of what you have to go through to ultimately try to get to the information as to what specific IP address it is, where that computer may be physically located.
6 I do find based upon the four corners of the affidavit, however, that there was probable cause for the Court to issue the search warrant. I do find that it was particular as to the specific IP address in that it was supported by the information as well, by the specific information that was able to be obtained prior to the search warrant for the house, as well as the general information that the agent had to again pull everything together to believe that ultimately that specific physical address was the home of the IP address that is ultimately listed.
So I am going to deny the motion to suppress the search.
(Emphasis added.)
¶ 15 In his postconviction motion, Mason alleged that prior counsel
was ineffective for failing to challenge the breadth of the search
warrant. Specifically, relying on People v. Herrera, 2015 CO 60,
Mason argued that the warrant violated the particularity
requirement because the application lacked “even a scintilla” of
information “particular to Mr. Mason, anyone in his family, or
anyone who had ever accessed an electronic device in the Mason
household suggesting that Mr. Mason or anyone else might have
taken any action to conceal the nature of any files on any electronic
device on the Mason property.”
7 ¶ 16 At the evidentiary hearing, Eric Klein, an expert on the
standards for effective assistance of counsel, testified regarding
counsel’s performance. Klein testified that prior counsel was
ineffective because the warrant was not particularized to “search in
the electronic device for places that the file may be located” and
because there was no nexus establishing probable cause to believe
the evidence would be found on Mason’s computer.
¶ 17 The postconviction court found that (1) prior counsel filed a
motion to suppress, and (2) the motion asserted that the warrant
lacked probable cause under the Fourth Amendment to “justify the
intrusion.” While the motion did not cite or rely on People v.
Herrera, prior counsel “did raise the issue of breadth and asserted
that the search violated his client’s constitutional rights.”
Moreover, the postconviction court found:
The issue for the Court is not whether [prior counsel] should have performed in and approached the case in the same manner as Defense Expert Mr. Klein who has a significant breadth of experience and was properly qualified as an expert. Nor is the issue, whether, because a case such as Herrera, can be found during a quick search of Westlaw that the failure to cite such a case amounts to ineffective assistance of Counsel.
8 ....
The four corners of the Affidavit in this case, unlike in Herrera do establish the mechanisms by which computers and computer networks are used to facilitate crimes such as the sexual exploitation of children, including that the nature of the crime itself involves the folders, use of third-party sites, search engines and bulletin boards that often involve concealment. The fact remains that, while not in the manner that an expert such as Mr. Klein would recommend, the search warrant was challenged by [prior counsel] and the Court conducted an independent review of the same.
2. Applicable Law
¶ 18 The Fourth Amendment protects individuals from an
unreasonable search or seizure of personal property by the
government. U.S. Const. amend. IV. A warrant may be issued only
if there is probable cause for a search or seizure. Id.
¶ 19 A “general warrant[]” is one that permits “general, exploratory
rummaging in a person’s belongings.” People v. Coke, 2020 CO 28,
¶ 34 (quoting Andresen v. Maryland, 427 U.S. 463, 480 (1976)).
General warrants are prohibited under the Fourth Amendment. Id.
Thus, a warrant must be supported by probable cause that a crime
has been committed, and the scope of the warrant must be
“sufficiently particular that it enables the executing officer to
9 reasonably ascertain and identify the things authorized to be
seized.” People v. Rodriguez-Ortiz, 2025 COA 61, ¶ 22 (quoting
People v. Roccaforte, 919 P.2d 799, 803 (Colo. 1996)). A warrant
lacks particularity if it does not describe with specificity the place to
be searched, and the persons or things to be seized. United States
v. Suggs, 998 F.3d 1125, 1132 (10th Cir. 2021).
¶ 20 When evaluating whether a warrant is sufficiently particular,
the reviewing court must look at the “totality of the circumstances,”
Rodriguez-Ortiz, ¶ 21, reviewing the warrant and any
“accompanying affidavits” in a “practical, common sense fashion” to
determine if probable cause exists, id. at ¶ 23 (quoting Roccaforte,
919 P.2d at 804).
3. Analysis
¶ 21 Mason contends that prior counsel was deficient for failing to
challenge the evidence seized from Mason’s computer in four ways:
(1) the warrant was general; (2) the warrant and accompanying
affidavit authorized a complete search of all shared property; (3) the
warrant and affidavit authorized a complete search of Mason’s
computer in violation of Herrera; and (4) the warrant and affidavit
10 did not describe a nexus between the illegal activity law
enforcement discovered and Mason’s computer.
¶ 22 However, as previously described, prior counsel did file a
motion to suppress the seized evidence, arguing that the affidavit
“lacked the requisite probable cause to justify the intrusion,” and
the trial court made a finding of particularity. Mason does not
provide, and we are not aware of, any authority requiring prior
counsel to file a more specific motion to suppress. Moreover, as the
trial court noted, the issue was not whether prior counsel would
have presented the same legal arguments as Klein. “There are
countless ways to provide effective assistance in any given case,”
and “[e]ven the best criminal defense attorneys would not defend a
particular client in the same way.” Strickland, 466 U.S. at 689.
Thus, because prior counsel raised the challenge by filing a motion
to suppress the evidence seized, and the trial court made specific
findings on particularity, we discern no error in the postconviction
court’s finding that prior counsel provided effective assistance.
¶ 23 Additionally, Mason failed to establish prejudice. Mason’s
reliance on Herrera and Coke is misplaced.
11 ¶ 24 In Herrera, the defendant was suspected of having sexual
interactions with an underage girl, F.W., including via text
messages. Herrera, ¶ 7. After receiving the defendant’s phone
number from F.W.’s mother, a detective began texting the
defendant, posing as a fourteen-year-old girl. Id. at ¶ 8. The texts
led to the defendant’s arrest several weeks later. Id. The detective
applied for, and was granted, a search warrant for the defendant’s
phone. Id. at ¶ 9. The warrant permitted a search of the phone for
“(1) texts sent between [the defendant] and [the detective], (2)
photographs sent between [the defendant] and [the detective] that
were attached to the text messages, and (3) indicia of ownership to
show the phone belonged to [the defendant].” Id.
¶ 25 A second detective, who wasn’t the affiant, searched the phone
and clicked on a text message folder that referenced F.W. Id. at
¶ 13. Based on the contents of that folder, the defendant was
charged with several sexual crimes against a child. Id. at ¶14.
However, because there was no link between the folder and the
phone number of the undercover detective, the trial court
suppressed the evidence from that folder. Id. at ¶ 16.
12 ¶ 26 The supreme court upheld the trial court’s suppression ruling,
concluding that the People’s rationale “transform[ed] the warrant
into a general warrant that fail[ed] to comply with the Fourth
Amendment’s particularity requirement.” Id. at ¶ 18. The supreme
court determined that the warrant had no limiting principle. Id. at
¶ 19 (“[T]he People’s rationale would permit officers to ‘rummage
through’ the entirety of an individual’s private information
contained in his phone, without limitation.”).
¶ 27 Mason likens his case to Herrera, arguing that the affidavit
contained no evidence he mislabeled files or attempted to conceal
illegal material on his computer. However, the supreme court noted
that, in other contexts, courts have recognized that defendants can
easily conceal contraband by mislabeling files. Id. at ¶ 33. In such
cases, courts have upheld broad search warrants, reasoning that
warrants cannot be limited to certain computer file names when
“illegal activity may . . . well be coded or otherwise disguised.”
United States v. Burgess, 576 F.3d 1078, 1093 (10th Cir. 2009); see
also United States v. Richards, 659 F.3d 527, 536, 541–42 (6th Cir.
2011) (upholding a search of all the files on a computer when the
investigator specifically testified that, in his experience, suspects
13 frequently mislabeled files). In this case, the affiant established
that searching computers for evidence of child pornography may
require a range of data analysis techniques because individuals
may attempt to conceal evidence or activity by hiding files or giving
them deceptive names.
¶ 28 Moreover, unlike the warrant in Coke — which allowed police
to search all information without limitation — the warrant here
limited the search to data related to the criminal activity described
in the affidavit. Cf. Coke, ¶ 38.
¶ 29 Accordingly, we perceive no error in the postconviction court’s
decision to deny Mason’s claim.
B. Incomplete Batson Inquiry
¶ 30 Mason next contends that prior counsel was ineffective
because he failed to appeal the trial court’s incomplete Batson v.
Kentucky, 476 U.S. 79 (1986), inquiry. We disagree.
1. Additional Background Information
¶ 31 After the prosecution used its fourth peremptory challenge the
following colloquy ensued:
DEFENSE COUNSEL: Judge, I’m going to challenge that peremptory on Batson, [Mr. R.] There’s three Hispanics. I think [Mr. H.] was
14 Hispanic or Latino; the Prosecution kicked [Mr. H.] off. The only other Hispanic is [Mr. C.], so I am asking the Court to reseat [Mr. R.] and not allow that peremptory.
TRIAL COURT: First of all, I don’t know that [Mr. H.] . . . is in fact Hispanic, but I will take [that] at face value.
....
PROSECUTOR: So in regards to [Mr. R.], the reason that I excused him is first he expressed a criminal history, which is concerning to the People. Also, when he was in chambers he was not giving very articulate answers. He was kind of giving one-word answers, which in my mind indicated a level of intelligence that isn’t going to be able to appreciate or grasp the technical evidence that this jury is going to hear.
TRIAL COURT: At this time I do find the record made by the People, one, to be supported by the evidence but also to be sufficient, and so I will deny the request to reseat [Mr. R.]
¶ 32 After trial, prior counsel filed a motion for a new trial under
Crim. P. 33. Prior counsel argued:
Under [Batson,] the prosecution impermissibly struck a Latino male, [Mr. R.,] after striking another Latino male who was still in high school, [Mr. H.] Counsel for Mr. Mason objected and the prosecution claimed some intellectual deficit in not being able to answer questions as a reason for striking [Mr. R.] However, [Mr. R.] met with the Court and both counsel in chambers during voir dire, and [Mr.
15 R.] never exhibited any trouble answering questions and certainly did not express any difficulty. During the panel voir dire with the other jurors, [Mr. R.] again expressed no difficulty understand[ing] the proceedings, the law or the Court’s instructions. Further, neither the Court nor the prosecution inquired into whether [Mr. R.] in fact had any intellectual difficulty at any point during the proceedings — in chambers or in the panel voir dire. Thus, the impermissible strike violated Mr. Mason’s right to a fair trial and due process. Furthermore, the impermissible strike violated [Mr. R.]’s right as a citizen to sit on a jury panel.
¶ 33 The trial court denied the motion, and Mason appealed. On
appeal, the division determined that the record supported the trial
court’s decision to deny Mason’s Batson challenge. The court noted
that Mason did not assert on appeal that he should have been given
an opportunity to rebut the prosecution’s reasons but argued,
without more, that the court “did not allow” him to provide a
rebuttal. The division concluded this argument was undeveloped
and that the record supported the trial court’s ruling denying the
challenge.
¶ 34 In his postconviction motion, Mason argued that prior counsel
was ineffective for failing to object when the trial court did not
conduct the required third step under Batson and for failing to
16 make a record of information refuting the prosecutor’s purported
reasons for using a peremptory challenge on Mr. R. After prior
counsel testified at the postconviction hearing, the postconviction
court found:
[T]o the extent that this Court wishes to consider the claim and make the record clear, as to the narrow issue, of whether the purported failure of [prior counsel] to more fully argue that the Court should have allowed him to rebut the prosecution’s neutral explanation pursuant to cases such as People v. Beauvais, 2017 CO 34, was ineffective, the Court cannot find that this meets the first prong of Strickland. Certainly, raising the Batson issue on appeal and in a motion for a new trial is certainly within the “wide range” of reasonable performance by [prior counsel]. The court is highly deferential when reviewing trial counsel’s performance and “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. And, even if the Court found the first prong, the Court cannot find that there is a reasonable probability that raising this argument would have changed the outcome of the opinion of the Court of Appeals and/or impacted the motion for a new trial.
¶ 35 On appeal, Mason contends that “[a]ll prior counsel had to do
to win a remand was to argue that the trial court conducted an
incomplete Batson inquiry.” He argues that counsel’s opening brief
17 was only half the permitted length, so this issue could have been
raised without omitting others, and he argues there was no
justification for counsel’s omission. He also argues that prior
counsel’s deficient performance deprived him of a reasonable
probability to win a new trial on remand.
2. Standard of Review and Applicable Law
¶ 36 The same two-pronged Strickland test applies to claims of
ineffective assistance of appellate counsel. People v. Long, 126 P.3d
284, 286 (Colo. App. 2005).
¶ 37 To establish the performance prong, “the defendant must show
that counsel failed to present the case effectively” — for example, by
“ignor[ing] issues that are clearly stronger than those presented.”
Id. But “[a]ppellate counsel is not required to raise on appeal every
nonfrivolous issue a defendant desires to raise. People v. Trujillo,
169 P.3d 235, 238 (Colo. App. 2007). “‘[O]nly when ignored issues
are clearly stronger than those presented, will the presumption of
effective assistance of counsel be overcome’ even in the context of a
direct appeal.” Id. (alteration in original) (quoting Ellis v. Hargett,
302 F.3d 1182, 1189 (10th Cir. 2002)).
18 ¶ 38 To establish the prejudice prong based on a failure to raise
specific issues on appeal, the defendant must show that, but for
counsel’s errors, the appeal would have prevailed. See Long, 126
P.3d at 286; Trujillo, 169 P.3d at 238-29.
¶ 39 During the jury selection process, a party may not
discriminate based on a prospective juror’s race or ethnicity. See
Batson, 476 U.S. at 85-87. If a party raises a Batson challenge
alleging racial discrimination, the trial court engages in a three-step
analysis. People v. Toro-Ospina, 2023 COA 45, ¶ 16. First, the
court must determine if the objecting party made a prima facie
showing that the peremptory strike was based on race; second, if
the first step is met, the striking party must offer a race-neutral
reason for the removal of the prospective juror; and third, the court
must determine whether the objecting party has shown by a
preponderance of evidence that the strike was purposefully
discriminatory on the basis of race. Id.; see People v. Ojeda, 2022
CO 7, ¶¶ 21-27.
¶ 40 “[T]he proper remedy for an inadequate inquiry into a Batson
challenge . . . is to remand the case to the trial court with directions
19 to . . . make the required factual findings.” People v. Rodriguez,
2015 CO 55, ¶ 21.
¶ 41 We agree with the postconviction court that prior counsel’s
decision to raise the Batson issue on direct appeal and in the
motion to dismiss falls within the “wide range” of reasonable
performance. Again, Mason does not provide any authority that
requires prior counsel to have made the specific arguments in the
direct appeal that he now advances. In contrast, counsel is
generally considered the “captain of the ship” and may decide which
issues to pursue upon appeal. People v. Smith, 2024 CO 3, ¶ 28
(citation omitted); see also People v. Rodriguez, 914 P.2d 230, 303
(Colo. 1996) (rejecting claim that appellate counsel rendered
ineffective assistance by failing to raise all available issues on
appeal).
¶ 42 We are similarly unpersuaded that Mason established
prejudice. Mason contends that, had the case been remanded, and
if the trial court had been unable to make the required factual
findings due to the passage of time or other factors, he would have
been granted a new trial. However, we conclude that such
20 speculation does not establish prejudice, and Mason provides no
additional information concerning what prior counsel would have
argued in rebuttal to substantiate a claim of purposeful
discrimination on remand.2
¶ 43 To the extent Mason argues that prior counsel was ineffective
due to a lack of extensive appellate experience, we disagree. The
record shows that prior counsel sought guidance from other
attorneys in filing the appeal. As the postconviction court found,
“[b]ecause an appeal was not successful and/or because in
hindsight, another attorney might have made a different argument,
under the Strickland test, is not ineffective.” Moreover, the
postconviction court found that prior counsel, through his
testimony, “demonstrated that he made strategic considerations
during the appellate process.” See Hardin, ¶ 39 (the postconviction
court determines the weight and credibility to be given to the
testimony of witnesses).
2 In his direct appeal, Mason provided the responses he would have
made at step three, and the division concluded that they did not warrant reversal of the trial court’s ruling. People v. Mason, slip op. at ¶¶ 12-16 (Colo. App. No. 19CA2168, Sept. 9, 2021) (not published pursuant to C.A.R. 35(e)).
21 ¶ 44 Again, we perceive no error in the postconviction court’s denial
of Mason’s motion.
III. Disposition
¶ 45 The order is affirmed.
JUDGE PAWAR and JUDGE YUN concur.