Peo v. Peterson

• Court: Colorado Court of Appeals
• Decided: January 27, 2022
• Docket: 18CA1952
• Status: Unknown

Opinion

18CA1952 Peo v Peterson 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA1952

Mesa County District Court No. 17CR889

Honorable Valerie J. Robison, Judge

Honorable Richard T. Gurley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jeremy Peterson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE RICHMAN

Tow and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 27, 2022

Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1

Defendant, Jeremy Peterson, appeals the judgment of

conviction entered on a jury verdict finding him guilty of multiple

counts of aggravated incest, sexual assault on a child, and sexual

exploitation of a child. We affirm the judgment.

I. Background

¶ 2

When she was fourteen years old, A.P. told a trusted friend

that Peterson, who is her father, had been engaging in sexual

activities with her for as long as she could remember. Her friend’s

mother called the police. A.P. and her mother, who is deaf, were

interviewed by the police at the police station that evening.

¶ 3

A.P. confirmed to Detective Mark Post that Peterson had often

made her do one or more acts on a list of “five sexual things” to gain

his permission for her to leave the house. While the interview was

in progress, Peterson, who is also deaf, used a telephone relay

service to call the police department and inquire what was

happening with his wife and child. Post told Peterson that the

police would be coming to the family’s apartment that night and

they wanted to speak to him.

¶ 4

Around 3:00 in the morning, Peterson’s wife accompanied

police to the apartment and let them in. In addition to Post and an

2

agent from child protective services, three other officers (including

one in uniform) were present. Peterson was asleep on the sofa. His

wife woke him up and, using sign language, explained why the

group was there.1 Post began communicating with Peterson using a

notepad and pen. As relevant here, the following written exchange

took place as Peterson sat on the sofa and Post stood in front of

him:

Post: My name is Detective Post. I’m sorry we

don’t sign and we will try to hurry. Can I ask

you a few questions[?]

Peterson: Ok but not [without] lawyer and

certified interpreter. Sorry. Its State/Federal

law requires for it [sic].

Post: We are here involving allegations

involving [A.P.]. We are not here to violate

your [r]ights. We would like to discuss this at

a later time if you are willing. We will

investigate this as quickly as we can. [W]e

hope for your [and mother’s] cooperation. [W]e

will work as quick as we can. For safety

reasons[,] we need to place your children into

monitored care.

Peterson: Really? We are being cooperated

[sic]. Ok I may have time for discussion just

for less than 15 mins.

1 A.P. is the oldest of three children in the Peterson family. The two

other children were in the apartment that morning.

3

Post: Are you offering to make a statement?

Peterson: OK

Post: I am getting a form if you want to do a

statement that I need you to read [and]

unde[rstand]. THIS [w]ill NOT change the

situation [with] your children. . . .

Peterson: [T]here is no point to “monitored

care[.]” You’ll have no proper procedure like

get interpreter or lawyer.

Post: We have tried for assistance with an

interpreter and have not found one[.] [W]e

have to go forward with this [because the]

Department of human services has custody at

this time . . . . [A.P.] has said you do sexual

things to her. For those reasons[,] a safety

plan has been enacted [f]or [a]ll the kids.

Peterson: Instead of monitored care, take me

instead? . . .

Post: We are not arresting you. We have to

look into this matter. Why should we take

you?

Peterson: Cuz we rather this baby stays.

Post: Again that is not an option.

¶ 5

After this exchange, several witnesses testified that Peterson

reviewed and signed a Miranda advisement form. However, at the

time of the suppression hearing, the form could not be located and,

therefore, it is not part of the record.

4

¶ 6

Once the children were removed from the apartment, the

written exchange between Post and Peterson resumed:

Post: I am sorry for all this. Do you remember

the form you signed?

Peterson: Yes

Post: Are you willing to make a statement still?

Peterson: OK

Post: Tell me about what happens with [A.P.]

. . . .

Peterson: So basically, I made mistakes. I

know I was wrong to do sexual thing/abuse. I

was stupid, OK. . . . Is this off the record?

Post: NO this is on reco[rd]. What happened

with [A.P.]?

¶ 7

Peterson responded by describing multiple incidents of sexual

contact with A.P. At 5:40 a.m., police placed Peterson under arrest.

Of the approximately two hours and forty minutes that had passed

since the group’s arrival, twenty to thirty minutes were spent

gathering the children’s personal items and removing the children

from the apartment. No interrogation occurred during that time.

¶ 8

The day after Peterson’s arrest, Post interviewed A.P. She told

Post that Peterson took sexually explicit photos of her and saved

them to a hidden file on a black hard drive in her brother’s room.

5

Police secured a warrant to search the apartment. While executing

the warrant, police seized several digital storage devices, including

the hard drive. They also seized four handwritten paper notes.

Their subsequent2 search of the hard drive revealed sexually explicit

photos and videos of A.P.

¶ 9

Prior to trial, in separate motions, Peterson moved to suppress

(1) his written exchange with Post, arguing that the statements

contained therein were involuntary and procured in violation of the

Fifth Amendment protections recognized in Miranda v. Arizona, 384

U.S. 436 (1966), and the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12131-12134; (2) the four handwritten notes because

they were not within the scope of the warrant or in plain view; and

(3) as relevant here, items discovered during the search of the hard

drive because the supporting warrants were overbroad.

¶ 10

Concluding that Peterson was not in custody, his statements

were voluntarily made, and non-compliance with the ADA did not

provide a legal basis for suppression, the trial court declined to

2 A warrant executed after the search of the hard drive authorized

police to search “all files contained on any of the seized devices.”

6

suppress the written statements. The court did grant suppression

of one “handwritten letter” because it was not within the scope of

the warrant, and the People did not demonstrate it was in plain

view. The court did not address the other handwritten notes. It

declined to suppress items revealed in the search of digital media,

determining that the warrants were not overbroad because they

“expressly identify the type of evidence to be searched” — child

pornography.

¶ 11

On appeal, Peterson contends that the trial court reversibly

erred insofar as it denied his motions to suppress. We address

each type of evidentiary item in turn.

II. Standard of Review

¶ 12

Motions to suppress raise mixed questions of fact and law. We

defer to a trial court’s findings of fact so long as the record supports

them, but we review its legal conclusions de novo. People v. Allen,

199 P.3d 33, 35 (Colo. App. 2007). We may also rely on facts that

were not included in the trial court’s findings but are undisputed in

the record. People v. Garcia, 2017 CO 106, ¶ 18. We consider only

the record of the suppression hearing. People v. Thompson, 2021

CO 15, ¶ 16.

7

III. Suppression of the Written Statements

¶ 13

We first address Peterson’s contention that his written

statements were procured through violations of his Fifth

Amendment privilege and his statutory rights as a person with a

disability.

A. The Fifth Amendment Privilege

¶ 14

The Fifth Amendment protects a criminal defendant’s right not

to make compelled statements in which he serves as a witness

against himself. U.S. Const. amends. V, XIV, § 1. To ensure that

state actors respect this right when they question suspects, a court

must suppress all statements made during custodial interrogation

unless a criminal defendant has waived his Fifth Amendment

privilege after being advised of his Miranda rights. People v.

Hankins, 201 P.3d 1215, 1218 (Colo. 2009). But, the police are not

required to give Miranda warnings to everyone they question. Id.

Warnings need only be given to people whose freedom has been so

restricted as to render them “in custody.” Id. (quoting Oregon v.

Mathiason, 429 U.S. 492, 495 (1977)). On the other hand, even

absent custodial interrogation, only statements that are voluntarily

made are admissible. People v. Coke, 2020 CO 28, ¶ 17.

8

¶ 15

Here, as in the trial court, Peterson asserts that he was in

custody when Post interrogated him, and even if he was not, his

statements were made involuntarily.

B. Custody

¶ 16

“A person is in custody for Miranda purposes if [he] has been

formally arrested or if, under the totality of the circumstances, a

reasonable person in the suspect’s position would have felt that

[his] freedom of action had been curtailed to a degree associated

with formal arrest.” Garcia, ¶ 20. To aid courts in determining

whether a defendant was in custody for Miranda purposes, the

supreme court has outlined a non-exclusive list of material factors.

They are:

(1) the time, place, and purpose of the

encounter; (2) the persons present during

the interrogation; (3) the words spoken by

the officer to the defendant; (4) the officer's

tone of voice and general demeanor; (5) the

length and mood of the interrogation; (6)

whether any limitation of movement or

other form of restraint was placed on the

defendant during the interrogation; (7) the

officer's response to any questions asked

by the defendant; (8) whether directions

were given to the defendant during the

interrogation; and (9) the defendant's

verbal or nonverbal response to such

directions.

9

People v. Matheny, 46 P.3d 453, 465-66 (Colo. 2002) (citation

omitted). No one factor is dispositive. Garcia, ¶ 20.

¶ 17

For several reasons, we conclude that Peterson was not in

custody when Post interrogated him.

¶ 18

First, the time and place of the encounter were not coercive

when viewed in light of the full record. Although officers arrived at

3 a.m. — a time when an individual might be caught by surprise

and, thus, feel that his options were limited — Peterson himself

initiated communication with the police and was told that they

would be coming to talk to him. The trial court also found that

Peterson’s wife “could and did freely communicate with [him] using

sign language the entire time everyone was in the apartment,” and

it is undisputed that she let the police into the apartment, a neutral

location for questioning. Id. at ¶ 22.

¶ 19

Second, the purpose of the encounter was twofold: to remove

the children from the home and to question Peterson. While the

intent to question Peterson shows that police considered him a

criminal suspect, an expectation of eventual arrest does not turn a

non-custodial circumstance into a custodial one. Hankins, 201

P.3d at 1219 (noting that “expectation, apprehension, or knowledge

10

of inevitable arrest are not the Miranda triggers; custody is”). And

police were also there to address child welfare concerns, a neutral

purpose. Garcia, ¶ 27 (determining that the defendant was not in

custody because, among other factors, police were present to

conduct a welfare check).

¶ 20

Third, the trial court found, with record support, that the

written exchange between Post and Peterson was courteous and

professional, the non-verbal conduct of the police was not

aggressive or threatening, and the police did not direct Peterson to

do anything except read the Miranda advisement. See Matheny, 46

P.3d at 467 (citing the “polite” and “reasonable” tone as a factor

weighing against a finding of custody); see also People v. Clark,

2020 CO 36, ¶ 31 (noting that an officer’s conversational tone

militated against the conclusion that the defendant was in custody).

¶ 21

In addition, the officers never threatened him, and made no

promises other than that they would attempt to complete the

investigation quickly. Post also informed Peterson that his

agreement to speak with the police would not change the situation

with the children. When he asked whether the exchange was “off

the record,” Post told him that the conversation was “on record.”

11

¶ 22

Fourth, although some factors might appear to weigh in favor

of the conclusion that Peterson was in custody, the potential

coercive effect of these factors is mitigated by the context. At the

time of questioning, four police officers stood near the defendant,

including one officer who leaned against the front door. Although

the number of officers standing near Peterson was large, the trial

court found that the reason for the officers’ proximity was the tight

layout of the apartment and the fact that it was packed with boxes

due to a recent move. There is no evidence that the police hovered

over Peterson in an attempt to prevent his escape.

¶ 23

Moreover, while there were four officers present, only one of

them communicated with Peterson. Garcia, ¶¶ 30-31 (noting that

courts have often distinguished between the number of officers

present at the scene and the number of officers focused solely on

the defendant); see also Clark, ¶ 33. True, as a safety precaution,

one officer followed Peterson and his wife around the apartment

while they gathered items for the children, but the undisputed

testimony was that the officer did not draw his weapon or try to ask

Peterson any questions or physically restrain him.

12

¶ 24

Fifth, according to the undisputed record, Peterson asked Post

to “take [him] instead” of the children. Post responded, “We are not

arresting you. We have to look into this matter.” Thus, Post

indicated that the police were not prepared to arrest Peterson until

they had additional information. Such an exchange would not give

a reasonable person the impression that he was under arrest.

People v. Sampson, 2017 CO 100, ¶ 29 (concluding the defendant

was not in custody during questioning because an officer informed

the defendant that he would be arrested at a later time); see also

Clark, ¶ 32.

¶ 25

Finally, while acknowledging that the custody test is an

objective one, our review of the totality of the circumstances

requires that we consider Peterson’s deafness and the limitations

his disability might have presented. See J.D.B. v. North Carolina,

564 U.S. 261, 278 (2011) (noting the state’s concession that a

suspect’s personal characteristics — for example, blindness — may

be relevant to the custody analysis and finding age to be a relevant

factor in some circumstances). As Peterson has argued, and as a

division of this court has recognized, deafness may severely impair

a person’s ability to understand English. People v. James, 937 P.2d

13

781, 783 (Colo. App. 1996). In fact, English is a second language

for many deaf people. Aviva Twersky-Glasner, Miranda Warnings

and Deaf Suspects: It is Not Just a Matter of Translation, 42 No. 5

Crim. Law Bulletin 4 (Fall 2006). Therefore, written communication

may or may not be an effective means of communicating with a deaf

person, depending on his level of English literacy. We recognize

that an inability to communicate with officers might impair a

person’s understanding that he is not under arrest. Id.

¶ 26

However, other than raising his status as a deaf person,

Peterson presented no evidence that he had difficulties

understanding written English. The trial court was able to examine

the contents of his written communications with Post, as are we.

Our review of the exchange reveals that Peterson understood

English rather well. He responded appropriately to Post’s questions

and answers, and he asked several clarifying questions. He never

indicated that, despite Post’s clarifications, he could not understand

what was happening.

¶ 27

Moreover, in cases involving defendants who spoke English as

a second language, other divisions of this court have concluded that

basic English skills are sufficient to effect a valid waiver of Miranda

14

rights. See, e.g., People v. Delgado, 832 P.2d 971, 973 (Colo. App.

1991). We similarly conclude that any alleged linguistic deficits did

not demonstrably prevent Peterson from comprehending the

conversation he had with Post.

¶ 28

Peterson was not in custody when Post interrogated him.

Therefore, further analysis of the sufficiency of the Miranda

advisement, or the validity of the waiver, is unnecessary.

C. Voluntariness

¶ 29

Peterson contends that his written statements were

involuntary because Post ignored his request for a lawyer and

interpreter, and he used the removal of the children to compel

Peterson to answer questions.

¶ 30

When determining whether statements were involuntary, we

consider the totality of the circumstances. Coke, ¶ 18. The

analysis involves a two-step process. We first consider whether

police conduct was coercive. Id. at ¶ 19; see Colorado v. Connelly,

479 U.S. 157, 167 (1986) (noting that “coercive police activity is a

necessary predicate to the finding that a confession is not

‘voluntary’”). We then consider whether coercive police conduct

played a significant role in inducing Peterson to make the

15

challenged statements. If such conduct did not play a significant

role, the statement will be considered voluntary. Coke, ¶¶ 19, 31.

¶ 31

When determining whether police conduct was coercive, courts

should evaluate

(1) whether the defendant was in custody; (2)

whether the defendant was free to leave; (3)

whether the defendant was aware of the

situation; (4) whether the police read Miranda

rights to the defendant; (5) whether the

defendant understood and waived Miranda

rights; (6) whether the defendant had an

opportunity to confer with counsel or anyone

else prior to or during the interrogation; (7)

whether the statement was made during the

interrogation or volunteered later; (8) whether

the police threatened [the] defendant or

promised anything directly or impliedly; (9) the

method of the interrogation; (10) the

defendant’s mental and physical condition just

prior to the interrogation; (11) the length of the

interrogation; (12) the location of the

interrogation; and (13) the physical conditions

of the location where the interrogation

occurred.

Id. at ¶ 20 (citation omitted). Courts may also consider other

factors, bearing in mind that physical abuse is not necessary to

support a finding of coercion. A statement is not voluntary if it is

extracted by threats or improper influence or is the product of

direct or implied promises to the defendant. People v. Gennings,

16

808 P.2d 839, 843 (Colo. 1991); People v. Marston, 2021 COA 14,

¶ 13.

¶ 32

Based on the totality of the circumstances, we agree with the

trial court’s conclusion that Peterson’s statements were voluntary.

¶ 33

As noted above, Peterson was not in custody and he was in a

neutral location when Post interrogated him. Although he was

given a Miranda advisement form and he read and signed it,3 the

trial court made no finding regarding whether he understood the

contents of the form. We therefore do not proceed under the

premise that the advisement form functioned as a full advisement of

rights.

¶ 34

Even so, the fact that the police gave Peterson the advisement

form militates against the conclusion that they acted in a coercive

manner. At a minimum, it shows that the police attempted to

ensure Peterson understood he had certain rights. Peterson’s wife

3 The fact that Post chose to give Peterson an advisement form does

not undercut our conclusion that he was not in custody. An

advisement alone does not preclude a finding that a defendant was

not in custody based on the totality of the circumstances. People v.

Sampson, 2017 CO 100, ¶ 31 (noting that although the defendant

was given an advisement, he was not in custody).

17

testified that he told her the advisement form concerned his

“confidentiality rights.” Thus, he knew that the police gave him a

form to explain his rights.

¶ 35

Peterson asserts that the police, nonetheless, attempted to

coerce him by pairing information about removal of the children

with a request to ask him questions. The record belies this

assertion. Post made no promises or threats related to the children.

In fact, he told Peterson that his decision to answer questions

would not change that situation. We are not persuaded that Post

used the children’s removal to induce Peterson’s statement.

¶ 36

We are similarly unpersuaded by Peterson’s contention that

police coerced him to speak by failing to provide an interpreter or

an attorney. While Peterson initially asked for an attorney and an

interpreter, he was not in custody at the time and no clear

precedent mandated that Post stop interrogating him. See United

States v. Bautista, 145 F.3d 1140, 1147 (10th Cir. 1998); see also

People v. Trujillo, 773 P.2d 1086, 1092 (Colo. 1989) (holding that the

release of a defendant who has previously invoked his right to

counsel while in police custody terminates the constraint that

interrogation must cease until an attorney is present because “the

18

defendant is no longer under the inherently compelling pressures of

continuous custody”). Despite that fact, Post told Peterson in

response to his request for an attorney, “We would like to discuss

this at a later time if you are willing.” It was Peterson who then

volunteered to give a statement, impliedly without an attorney or

interpreter, while police were at the apartment.

¶ 37

Further, although the interrogation was rather long — at least

two hours — it was conducted entirely in writing, a form of

communication that is not terribly efficient. Given the consistently

polite tenor of the extended written exchange, we are not convinced

that this factor, alone, demonstrates police coercion.

¶ 38

For these reasons, we conclude that Peterson’s written

statements were voluntary, and the trial court properly declined to

suppress them.

D. Statutory Law

¶ 39

Peterson argued in the trial court that the failure to provide an

interpreter violated the ADA,4 requiring suppression of his

4 Peterson does not specify which section of the ADA he relies on.

However, based on the language quoted in the opening brief, it

appears he relies on 42 U.S.C. §§ 12112(b)(5)(A),12131-12132.

19

statements. On appeal, he also argues that the failure to provide

an interpreter violated section 13-90-204(1)(d), C.R.S. 2021.

¶ 40

In support of his assertion that a violation of the ADA may

trigger suppression of evidence, Peterson cites only one case,

Seremeth v. Bd. of Cnty. Comm’rs, 673 F.3d 333 (4th Cir. 2012). He

asserts that in Seremeth, “the Fourth Circuit has held that police

investigations are subject to the ADA’s framework.” Seremith does

so hold. Id. at 338-39. However, Seremith is a civil case and the

opinion does not address whether violation of the ADA may support

suppression of evidence in a criminal case.

¶ 41

Even if we assume police conduct violated the ADA, it is not

clear that an ADA violation triggers suppression of evidence in the

criminal context. Nathan v. Municipality of Anchorage, 955 P.2d

528, 532-33 (Alaska. 1998) (concluding that a violation of the ADA

did not trigger the exclusionary rule because it did not necessarily

impair a deaf defendant’s ability to exercise his constitutional

rights); State v. Piddington, 607 N.W.2d 303, 309-10 (Wis. Ct. App.

2000) (same). Peterson makes no attempt to explain why a violation

of the ADA supports such a remedy. We do not address skeletal

20

arguments and decline to do so here. People v. Leverton, 2017 COA

34, ¶ 65.

¶ 42

Similarly, although section 13-90-204(1)(d) requires “[a]n

appointing authority” to “provide a qualified auxiliary services

provider to interpret” proceedings “[w]hen a person who is deaf,

hard of hearing, or deafblind is arrested and taken into custody,”

Peterson was not in custody during the relevant time period. He

makes no argument that section 13-90-204(1)(d) applies outside the

custodial context. Given the lack of substantive argument, we

decline to address the implications of this statute. Leverton, ¶ 65.

IV. Suppression of the Notes

¶ 43

We next address Peterson’s contention that the trial court

should have suppressed two more of the four handwritten notes

seized in the initial search. Although these notes were admitted at

the suppression hearing upon the People’s motion, defense counsel

did not make any arguments specific to them and the trial court did

not address them in its suppression order.

¶ 44

At trial, A.P. testified to multiple incidents of sexual abuse. As

relevant here, she testified that, during one incident, Peterson came

to her room and wanted her to do “[the] five [sexual things].” She

21

pretended to go to sleep. The next morning, he made her pick one

of the five acts and do it. After this testimony, the People showed

A.P. the first handwritten note. It said, “[A.P], Wake me up when

you wake up please. The promise! Thx Daddy.” The note was

admitted without objection. A.P. testified that “this note was during

the incident when I had pretended to go to sleep. He made me

promise to do one of the five things . . . he had wrote this note

telling me to wake him up when I got up.”

¶ 45

The People next showed A.P. the second note, which said,

“Mom, I’m just outside. I’ll keep check[ing] in every hour. B[y the

way], dad said okay for me to go outside + play[.] [Heart] u, [A.P.]”

She testified that she wrote the second note when she “had wanted

to go han[g] out with my friends outside so I’d asked my dad for

permission and he told me that if I wanted to go outside . . . I had to

do one of the five things with him.” The note was admitted over

foundation and relevance objections.

¶ 46

The next day, defense counsel raised a concern that while the

two notes were given to him in discovery, “the explanations that

were elicited from the witness about how those notes corresponded

to specific sexual acts is found nowhere in discovery.” Counsel

22

asserted “some sort of violation here of discovery and Mr. Peterson’s

due process” and “if the significance of these notes had been

anywhere in discovery . . . I would have moved to suppress those

two notes . . . because they were found in the same manner as the

[suppressed letter].” Counsel later clarified, “My request i[s] that

the Court find that there is a Rule 16 violation because the

Prosecution specifically elicited a statement from a witness that was

not disclosed.” The court denied the request.

¶ 47

Peterson now argues that, upon learning that the notes were

found in the same manner as the suppressed letter, the trial court

had an obligation to construe counsel’s Crim. P. 16 motion as a

Crim. P. 41(e) motion to suppress.

A. Law

¶ 48

A Rule 41(e) motion to suppress is a claim that a defendant’s

Fourth Amendment rights were violated. People v. Cunningham,

2013 CO 71, ¶ 10. By contrast, a Rule 16 motion to exclude is a

claim that the court should order sanctions because materials were

not disclosed in violation of a rule of criminal procedure. See Crim.

P. 16(III)(g). Thus, when a party makes a motion under Rule 16, he

is not necessarily raising a constitutional claim.

23

¶ 49

Further, a Rule 41(e) motion “shall be made and heard before

trial unless an opportunity therefor did not exist or the defendant

was not aware of the grounds for the motion, but the court, in its

discretion, may entertain the motion at the trial.” Crim. P. 41(e).

Thus, trial courts have discretion to entertain midtrial motions to

suppress, but they may deny late-filed motions if the grounds cited

were known or “reasonably discernible” before trial. People v. Tyler,

874 P.2d 1037, 1039 (Colo. 1994). “Ordinarily, a trial court is not

required to entertain a suppression motion at trial.” People v.

Cornelius, 41 Colo. App. 182, 186, 585 P.2d 295, 298 (1978).

B. Analysis

¶ 50

Peterson has not cited, and we have not found, any case

standing for the proposition that when “due process” is mentioned,

a trial court must convert a procedural motion to a constitutional

one. Because the legal grounds for these motions are different and

defense counsel’s arguments focused only on discovery issues, we

cannot fault the trial court for failing to divine Peterson’s Fourth

Amendment argument from his brief mention of “due process.” In

addition, even if the court had perceived that Peterson was

24

impliedly proceeding under Rule 41(e), he does not explain why the

court was required to hear his late-filed motion.

¶ 51

Thus, we conclude that counsel failed to preserve the

argument that admission of the notes violated Peterson’s Fourth

Amendment rights or that the court was required to hear a midtrial

Rule 41(e) motion. People v. Tallent, 2021 CO 68, ¶ 12 (“To preserve

a claim, a party must make an objection ‘specific enough to draw

the trial court’s attention to the asserted error.’”) (citation omitted).

We review only for plain error. Id. An error is plain when it is

obvious, and it “so undermines the fundamental fairness of the trial

itself as to cast serious doubt on reliability of the judgment of

conviction.” Id. at ¶ 20 (citing Crim. P. 52(b)); see also Hagos v.

People, 2012 CO 63, ¶ 14.

¶ 52

Any error was not obvious. Peterson made no substantive

argument based on the Fourth Amendment. Further, the notes

were of ancillary importance in the trial. They supported A.P.’s

testimony that one particular incident had occurred and her general

assertion that she was made to trade sexual favors for childhood

privileges. This testimony was detailed and compelling on its own,

and although relevant, the notes did not substantially add to the

25

explicit evidence presented. Therefore, the reliability of the

judgment of conviction is not in doubt. If the trial court erred by

failing to suppress the notes, the error was not plain.

V. Suppression of Digital Materials

¶ 53

We next address Peterson’s argument that the trial court

should have suppressed photos and videos of A.P. found on the

hard drive because the supporting warrant was overbroad.

¶ 54

The search of the hard drive was supported by a warrant that

authorized the seizure of:

[A]ll hard drives, computers, laptops, tablets,

Apple devices, android devices, external media

storage devices, smartphones, flash drives,

and any other device which might store digital

files and media; any visual depiction of

minor(s) engaged in sexually explicit conduct

or child erotica in any format or media

including, but not limited to, photographs,

magazines, photocopies or photographs,

videocassette tapes, photographic and motion

picture film, and computer images.

It further authorized police to acquire and examine “all files

contained on any of the seized devices.”

A. Law

¶ 55

When police conduct a search pursuant to a warrant, it is

generally deemed “reasonable” and therefore compliant with the

26

Fourth Amendment. Thompson, ¶ 18. However, the Fourth

Amendment requires that warrants “particularly describ[e] the place

to be searched, and the persons or things to be seized.” Id. at ¶ 17

(quoting U.S. Const. amend. IV). General exploratory searches are

not permitted. Id. at ¶ 18.

¶ 56

A general search is one in which the warrant permits officers

to conduct a “general, exploratory rummaging in a person’s

belongings.” People v. Herrera, 2015 CO 60, ¶ 19 (quoting People

v. Roccaforte, 919 P.2d 799, 802 (Colo. 1996)). By contrast, a

warrant is sufficiently particular if it “enables the executing officer

to reasonably ascertain and identify the things authorized to be

seized.” Roccaforte, 919 P.2d at 803. What makes a warrant

sufficiently particular varies according to the information available

to the police and the type of items to be seized. People v. Hearty,

644 P.2d 302, 312 (Colo. 1982). Searches of computers must be

limited to evidence of specific crimes or types of material. United

States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005).

¶ 57

An affidavit can cure an overbroad warrant if the warrant

incorporates the affidavit by reference, both documents are

presented to the issuing magistrate or judge, and the curative

27

affidavit accompanies the warrant during its execution or the

warrant is executed by the affiant. Roccaforte, 919 P.2d at 803;

People v. Staton, 924 P.2d 127, 132 (Colo. 1996). The parties do not

appear to dispute that all three of these criteria are met in this case.

B. Analysis

¶ 58

In the warrant at issue here, the description of which devices

could be seized was undoubtedly broad. It included any “device

which might store digital files and media.” The trial court

construed this broad description as limited by the subsequent

description of the type of items sought. They included “any visual

depiction of minor(s) engaged in sexually explicit conduct or child

erotica in any format or media.” In other words, child pornography.

¶ 59

This reading of the warrant is buttressed by the affidavit,

which stated that (1) Peterson had shown A.P. pornography; (2)

asked her to do some of the things shown; (3) used his laptop to

take pictures of A.P. complying; and (4) stored the images on a hard

drive. It further stated that Peterson had told Post he started

engaging in sexual contact with A.P. when she was approximately

six years old. Based on these and other allegations, the affidavit

asserted there was probable cause to believe that between June

28

2009 and May 2017, the crime of sexual exploitation of a child had

been committed.

¶ 60

When read together, we conclude that the warrant and

affidavit were limited to the search and seizure of items created

during a certain time period and to a certain type of evidence —

child pornography. The broad scope of the warrant was

necessitated in part by the information available to police, who had

reason to believe that Peterson’s criminal conduct spanned nearly

eight years, and that he had stored multiple images of child

pornography on one or more digital devices. Under these

circumstances, the affidavit cured any potential deficiencies and we

conclude that the warrant was not overbroad.

¶ 61

Peterson insists that we should rely on case law addressing

the scope of permissible cell phone searches. See Riley v.

California, 573 U.S. 373, 401 (2014); Coke, ¶ 37; Herrera, ¶ 1.

These cases may be distinguishable as a class because Colorado

case law has recognized that, given a cell phone’s unique portability

and functionality, cell phone searches raise special privacy

concerns under the Fourth Amendment. Thompson, ¶ 19.

29

¶ 62

Even so, they are also distinguishable on their facts. Riley

concerned the permissible scope of warrantless cell phone searches.

573 U.S. at 401. Here, police had a warrant. In Coke, a warrant

was deemed insufficiently particular because it did not specify an

alleged victim or time period, and it authorized the search of

multiple types of data and databases, including phone records,

contact lists, and all data constituting evidence of ownership or

possession. Coke, ¶ 38. Here, the affidavit defined the relevant

time period and the warrant only authorized a search for child

pornography. Similarly, Herrera prohibits the general search of cell

phones for all “indicia of ownership.” Herrera, ¶ 4. In this case, the

People did not rely on a such a broad and amorphous justification.

Rather, they had specific information that Peterson possessed child

pornography and they sought authorization to search for that kind

of evidence.

¶ 63

Accordingly, we conclude that the warrant did not violate the

Fourth Amendment’s particularity requirement.

VI. Conclusion

¶ 64

We affirm the judgment.

JUDGE TOW and JUDGE GROVE concur.