Holland & Hart appellate partner Chris Jackson shares insights with several media outlets discussing the Colorado Supreme Court’s recent decision upholding a Denver police “reverse keyword search warrant,” that identified teenagers accused of killing five family members with an intentionally set house fire based on keywords in their Google search histories. In a 5-2 decision, the court found that in this instance, Denver police acted in good faith, so the court did not decide whether searching digital data requires probable cause for a warrant, an emphasized the ruling is not a “broad proclamation about the propriety of reverse-keyword warrants.” The majority also held that Coloradans have a constitutionally protected expectation of privacy in Google search histories.
In a Colorado Politics article, Jackson commented, “I think it's very hard to be the first court to issue a decision, and then try to make it a broad pronouncement about ‘This is just the way things work now,’” adding, “the increasing ubiquity of digital technology and the internet in people’s lives has called into question long-standing case law about privacy expectations in protections against unreasonable searches and seizures.” Jackson said, “That is what makes Fourth Amendment jurisprudence so difficult. It's trying to map on the constitutional text and a lot of long-standing case law onto very new technologies, where the analogies often don't line up very well or break down in some sense.”
He also discussed the ruling with The Denver Post, sharing, “To ‘assume without deciding’ is a way for courts to avoid ruling on one part of an argument in a larger legal case,” adding, “In this case, the justices punted on the issue of the reverse keyword search warrant’s individualized probable cause and skipped straight to the good faith exception.” “So this is very, very new and it’s very unclear where this is going to go,” Jackson said. “Because the court assumed without deciding the issue of probable cause, we don’t know yet where we are going to end up.”
Read the Colorado Politics article here: “Colorado Supreme Court upholds search warrant in 2020 arson case that led to teenage suspects,” October 16, 2023 (subscription needed).
Read The Denver Post article here: "Colorado Supreme Court upholds controversial Google search warrant in deadly Green Valley Ranch arson case,” October 13, 2023 (subscription needed).