State Supreme Court smacks DA -- Again

[madamesilverspurs]

(Ken Buck is still considering a run for Senate. He is a former campaign manager for erstwhile congresswoman Musgrave. The cost of his defense in this action exceeds $150k, paid for out of the county's general fund; he famously squandered $250+k in an unsuccessful prosecution of the unhappy constituent who delivered dried dog poo to Musgrave's office.)


Wrong number: State Supreme Court rules Operation Number Games illegal

Sharon Dunn

In a split decision, the Colorado Supreme Court on Monday put an end to Weld County's roundup of more than 1,300 identity theft suspects.

Writing on behalf of the court, Justice Michael Bender ruled that the controversial operation, known as Operation Number Games, was illegal and violated the suspects' Fourth Amendment rights. The Fourth Amendment guarantees freedom from unreasonable search and seizure.

“I'm disappointed. We have 1,338 people whose identities are being used, and we can't even notify them they are the victims of identify theft,” Weld District Attorney Ken Buck said Monday before a press conference on the matter. “We had hoped to make an impact on identify theft in Weld, and I think that won't happen at this point, and it's a serious problem in Weld County.”

The November 2008 operation was a joint effort by the Weld District Attorney's Office and Weld County Sheriff's Office to catch identity theft suspects through their tax records.

The 4-3 ruling puts to end the yearlong saga, in which four District Court judges had previously thrown out cases within Operation Number Games because of the constitutional issue. Buck and Weld Sheriff John Cooke appealed the rulings, and all prosecutions of such cases were put on hold pending the outcome of the higher court's decision.

The case was essentially a new test of existing law and mixed it with illegal immigration, which until last year was a hot-button political issue across the country and in Weld. But it's also a test of an old doctrine — the Fourth Amendment, created to prevent abuses by police and government.

“The long-term implication is you have to follow the rules,” said Kevin Strobel, chief of the Weld office of the State Public Defender. “Even when you're dealing with non-citizens, the constitutional rights apply. You have to do it legally or else you're going to be in a police state.

“If you allow it in this situation and turn your head and say because we're so concerned about identity theft, we'll let them bend the Fourth Amendment, pretty soon we're living in police state, where we're allowing agencies to go out and rummage through anyone's records,” Strobel said.

Buck said it was ridiculous to think he or anyone in law enforcement would bend the laws.

“It took a lot of resources and a lot of time to do this,” Buck said of the operation. “We would not have done this if we thought we were not complying with law. More than anything in this office, we're very, very careful to comply with the law. To suggest that I or anyone in office wants to live in a police state in Weld is ludicrous.”

The court ruled — with justices Allison Eid, Nancy Rice and Nathan Coats dissenting — that Ramon Gutierrez, one of the criminal defendants in the case, had a reasonable expectation of privacy when it came to his tax records, which were seized in a raid on Amalia's Translation and Tax Service, 1501 9th St. in Greeley.

He was among 1,338 eventual suspects whose tax records were used to charge them with criminal impersonation and identity theft. The suspects were accused of using stolen or fake Social Security numbers to work, yet filed taxes through an Individual Tax Identification Number authorized by the Internal Revenue Service.

Using a warrant signed by Weld District Court Judge Marcelo Kopcow authorizing the search of tax records at Amalia's for 2006 and 2007, Weld sheriff's deputies seized 4,900 tax records to look for suspected illegal aliens in the raid, and found about 1,300 suspects in total. More than 100 arrest warrants were issued, and about 70 people were prosecuted, resulting in about 20 convictions and deportations before Weld District Court judges began to throw the cases out because they didn't have enough probable cause.

Kopcow did not return an e-mail or phone call seeking comment on the ruling.

The court ruled that Gutierrez, who was not named as a defendant in the search warrant of Amalia's, had a Fourth Amendment right not to have his private information searched, and that police couldn't have reasonably relied on that search warrant because it was lacking the probable cause needed.

“To overcome that expectation of privacy, a search warrant must show probable cause that the tax records contain evidence of criminal wrongdoing by the taxpayer or tax preparer,” the court wrote, noting the warrant did not name anyone specifically. “Rather, the warrant relied solely on the fact that Amalia's Tax Service prepared tax returns pursuant to the requirements of federal law, which permit a taxpayer who does not have a Social Security number to file a tax return using a tax identification number.”

The court in part used a 2009 federal appellate court case involving Major League Baseball to determine its findings. In that case, authorities, while seeking information on 10 players accused of using steroids, seized drug testing records of hundreds of players from a drug lab, the court noted.

That court also criticized authorities, stating it was “an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause,” the ruling stated.

The court chided police in this situation, stating that even on a basic level, they should have known they were on a “fishing expedition.”

Buck said it was a hard point to pin down because they were dealing with people who had stolen other's identities.

“The crime of identity theft involves people using different identities ... so how can we identify the name of the file in the filing cabinet in the return preparer's office?” Buck said. “It's harder to meet the particularity requirement with this type of crime.”

Attorneys for Cooke and Buck argued before the court last month that it was impossible for them to be more specific in their search because it involved identity theft. Their warrant only named only one defendant, who said “everyone” knew to go to Amalia's to file their returns, and Amalia Cerrillo, herself, acknowledged to deputies in their investigation that she was aware of some clients using false numbers.

Cerrillo did not return phone calls Monday.

The IRS requires all people in the United States, legal or illegal, to file tax returns, and allows illegal workers means to do so through ITIN numbers.

“For Amalia, it's against the law for her to disclose” those clients, Strobel said. “Even if she were to come forward, she's under a legal duty not to disclose that information under the tax laws. She could be subjected to civil and criminal penalties.”

Buck said he cannot appeal the ruling, as it was based on Colorado law. If it were based on federal law, he would have that option.

The Colorado Immigrant Rights coalition applauded the ruling: “Sadly, this, like so many other local attempts to enforce federal immigration laws, was wrong-headed, costly and did great damage to the community,” according to a prepared release. “This case demonstrates why we need solutions to our broken immigration system. In a country of outdated immigration laws, people will continue to suffer. With an untenable situation at hand, we need our leaders to take this issue up urgently, passing immigration reform legislation in the coming months.”

Buck said he will continue to seek ways to find justice for the victims of identity theft, even if it has to move at the slow pace of individual victims coming forward.

“The Supreme Court has now decided the case law in Colorado, but we will continue to try to develop strategies to deal with identity theft in Weld County,” Buck said.

At Monday's press conference, Buck was asked about the T-shirts he had printed with the messages “The ACLU sued my District Attorney & Sheriff” on the front and “Weld County standing up for Americans” on the back. He said, “we still have some” of the T-shirts after an additional order was placed after the original order of 160 sold out.

The shirts were ordered, he said, as a reaction to the ACLU's statements accusing Weld authorities of violating constitutional rights.

“It wasn't something I would do again. The T-shirts were what they were,” Buck said, adding that sales of the shirts raised money for the county victims defense fund.

“I think ultimately rhetoric on both sides unfortunately took away from the central issue in this case, and that is that we have a huge gap in federal policy that needs to be filled,” he said.

— Tribune reporter Chris Casey contributed to this report.


Excerpts from the ruling
Throughout its 76-page ruling, which includes the dissenting judges' opinions, the Colorado Supreme Court discusses state and federal guarantees of protections of someone's personal tax information in the hands of their tax preparer.

» “These laws not only facilitate compliance with a tax system heavily dependent on voluntary reporting but also constitute a fundamental recognition that the information taxpayers are asked to disclose ... is of the most intimate nature and therefore should be afforded a degree of protection correspondingly solemn,” the court wrote.

» “It is difficult to understand how reasonably well-trained officers searching through 5,000 different individuals' client files, the substantial majority of which were free from any evidence of wrongdoing, would not, on some basic level, be aware that their endeavor was essentially a fishing expedition.”

» “It would contradict the spirit of this statutory scheme and the Fourth Amendment itself to permit local law enforcement to circumvent these protections by searching and seizing thousands of individuals' tax returns, without specific probable cause, simply because those returns were located in the offices of a tax preparer who, in full compliance with the law, helped an unknown number of undocumented workers prepare their taxes. To permit such a search would effectively eviscerate the protections established by Congress and the Constitution.”


From the minority opinions
» I believe the police officers' reliance on the warrant was objectively reasonable under the circumstances. Because I would hold that the police officers acted in good faith when they seized the tax records, I find it unnecessary to consider whether the affidavit supporting the warrant failed to establish probable cause. Therefore, I respectfully dissent.” — Justice Nancy Rice (Justice Allison Eid concurs)

» Not only do I disagree with the majority's analysis of the problem it sets for itself, but I am also convinced that a number of mistaken presumptions about the effects of federal legislation have led it to address a theoretical problem arguably more thorny than one actually presented by the search in this case. The majority seems to consider it self-evident that federal statutes permitting the issuance of individual tax identification numbers and requiring the payment of income taxes, irrespective of immigration status, effectively shield tax prepares from criminal liability for aiding taxpayers to knowingly report income earned under Social Security numbers belonging to someone else; and in addition, it unselfconsciously presumes that federal statutes limiting the circumstances under which tax information my be lawfully disclosed effectively create, at one and the same time, a constitutionally protected expectation of privacy in each individual taxpayer. Because I would not only reverse the district court's suppression order as a misapplication of the good faith exception to the Fourth Amendment exclusionary rule, but would also find that the search in this case conformed to the dictates of the Fourth Amendment, I write separately to express my views.” — Justice Nathan Coats.


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