Colorado Supreme Court Opinions || April 8, 2002 Colorado Supreme Court -- April 8, 2002 No. 01SA205. Tattered Cover, Inc. v. City of Thornton. Recht & Kornfeld, P.C. Daniel N. Recht Richard K. Kornfeld Denver, Colorado Attorneys for Plaintiff-Appellant Nathan, Bremer, Dumm & Myers, P.C. J. Andrew Nathan Paige K. Hogan SUPREME COURT, STATE OF COLORADO Two East 14th Avenue Denver, Colorado 80203 Transfer from the Colorado Court of Appeals, Case No. 00CA2150 District Court, City and County of Denver, Case No. 00CV1761 Honorable J. Stephen Phillips, Judge Case No. 01SA205 Plaintiff-Appellant: TATTERED COVER, INC., d/b/a THE TATTERED COVER BOOKSTORE, v. Defendants-Appellees: THE CITY OF THORNTON; and THORNTON POLICE OFFICER RANDY GOIN, in his official capacity. JUDGMENT REVERSED AND CASE REMANDED EN BANC April 8, 2002 Page 1 of 21No. 01SA205. Tattered Cover, Inc. v. City of Thornton. - April 8, 2002 - Colorado Supre...11/15/2007http://www.cobar.org/opinions/opinion.cfm?OpinionID=560Allyson C. Hodges Denver, Colorado Attorneys for Defendants-Appellees Faegre and Benson, LLP Thomas B. Kelley Steven D. Zansberg Denver, Colorado Attorneys for Amici Curiae American Booksellers Foundation for Free Expression, Mountain and Plains Booksellers Association, American Library Association, Freedom to Read Foundation, The Association of American Publishers, The International Periodical DistributorsAssociation, The Periodical and Book Association of America, Inc., The Publishers Marketing Association, Pen American Center, American Society of Journalists and Authors, Colorado Freedom of Information Council, Thomas Jefferson Center for Freedom of Expression, National Coalition Against Censorship, and Feminists for Free Expression Holland & Hart LLP A. Bruce Jones Susannah W. Pollvogt Nicholas M. Billings Denver, Colorado ACLU Foundation of Colorado Mark Silverstein Denver, Colorado Attorneys for Amicus Curiae American Civil Liberties Union of Colorado Page 2 of 21No. 01SA205. Tattered Cover, Inc. v. City of Thornton. - April 8, 2002 - Colorado Supre...11/15/2007http://www.cobar.org/opinions/opinion.cfm?OpinionID=560JUSTICE BENDER delivered the Opinion of the Court. JUSTICE COATS does not participate. I. INTRODUCTION With this case, we recognize that both the First Amendment to the United States Constitution and Article II, Section 10 of the Colorado Constitution protect an individual’s fundamental right to purchase books anonymously, free from governmental interference. Law enforcement officials implicate this right when they seek judicial approval of a search warrant authorizing seizure of customer purchase records from an innocent, third-party bookseller. This case requires us to decidewhat test should be applied to balance the constitutional rights of individuals and bookstores againsthe duty of law enforcement officials to investigate crime. We hold that the Colorado Constitution requires that the innocent bookseller be afforded an opportunity for an adversarial hearing prior to execution of a search warrant seeking customer purchase records. At that hearing, the court must apply a balancing test to determine whether the law enforcement need for the search warrant outweighs the harm to constitutional interests causedby its execution. In order for law enforcement officials to prevail, they must demonstrate a compelling governmental need for the specific customer purchase records that they seek. When conducting the balancing test, the court may consider whether there are reasonable alternative methods of meeting the government’s asserted need, whether the search warrant is unduly broad, and whether law enforcement officials seek the purchase records for reasons related to the contentof the books bought by any particular customer. Applying this balancing test, we hold that the search warrant in this case is not enforceable and should not have issued. The plaintiff, Tattered Cover, Inc., is an independent bookstore. The defendants are the City of Thornton and one of the city’s police officers ("the City"). The City argues that the information sought is necessary: (1) to prove that the operator of an illicitdrug lab acted with the level of intent necessary to secure a conviction under state statute; (2) to prove the identity of the perpetrator; and (3) to "connect" a suspect to the lab. We consider the City’s arguments within the factual context of this case. The City currently has significant evidence as to who committed the crime, as well as reasonable additional means, other than serving the Tattered Cover with a search warrant, of discovering additional proof as to the identity of the perpetrator. The execution of the City’s search warrant could substantially chill the exercise of Page 3 of 21No. 01SA205. Tattered Cover, Inc. v. City of Thornton. - April 8, 2002 - Colorado Supre...11/15/2007http://www.cobar.org/opinions/opinion.cfm?OpinionID=560fundamental state constitutional rights, primarily because at least one of the reasons why the City seeks the suspect’s customer purchase record is related to the contents of the books that he may have purchased. Thus, we conclude that the City has failed to demonstrate that its need for the Tattered Cover’s customer purchase record is sufficiently compelling to outweigh the harm that would be caused to constitutional interests if the search warrant were executed. Therefore, we reverse the decision of the trial court. II. FACTS AND PROCEEDINGS BELOW The following facts, most of which are undisputed, are gleaned from the record of the hearing belowAs part of an ongoing drug investigation, the Thornton police and an agent of the federal Drug Enforcement Administration ("DEA"), Diversion Investigator Timothy McFarland ("DI McFarland"), were cooperatively monitoring a trailer home in Thornton in March of 2000. These law enforcementofficials suspected that a methamphetamine lab was being operated out of the trailer. Officer RandyGoin was the lead investigator on the case. The police believed that Suspects A, B, C, and D probably lived in the trailer.1 Suspects A and C (both males) were registered with the trailer park’s management as residents. The officers guessed, based on their surveillance, that Suspect A and Suspect B were involved in an intimate relationship. Suspect D received mail at the trailer home. On March 13, 2000, DI McFarland searched through some garbage from the trailer home. In doing so, he found evidence of drug
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