State supreme court hears arguments in tax ID search
Operation Number Games goes under legal microscope
By Chris Casey
The Greeley Tribune (CO), November 6, 2009
Denver — The nature of a warrant for seizure of tax documents in Greeley whether it was valid or constituted a 'fishing expedition' was at the center of arguments when the high-profile Operation Number Games met Colorado's high court Thursday.
The constitutionality of a search of thousands of tax returns at Amalia's Translation and Tax Service in Greeley went before the Colorado Supreme Court.
Weld County law enforcement authorities argued they didn't break the law when they seized the documents to build their case. They said it was impossible for them to be more specific in their search because it involved identity theft.
The Weld County Public Defender's Office and American Civil Liberties Union argued the search and investigation, which resulted in about 100 people being arrested on fraud charges, was illegal because it violated privacy rights and lacked probable cause.
It is expected to be several weeks before the court rules on the criminal and civil cases, which were heard back to back Thursday.
Weld Public Defender James Merson, arguing the criminal case, said, 'police officers in this case executed an open-ended inventory search unlimited discretion to seize whatever they wanted.' He noted authorities seized tax documents beyond those in tax years 2006-07 specified in the warrant.
Weld Assistant District Attorney Mike Rourke, meanwhile, argued that the warrant contained sufficient probable cause for the search at Amalia's, 1501 9th St. in Greeley. He said an investigation into a specific identity theft case led to Amalia's, where authorities had cause to look for the potential of people using false Social Security numbers. 'Our position is the officers acted reasonably in reliance on the warrant,' he said.
The civil proceeding, brought by the ACLU, asked the high court to rule on the legality of the effort by Weld District Attorney Ken Buck and the Weld County Sheriff's Office to prosecute illegal immigrants who were working using stolen IDs and filing taxes using Individual Tax Identification Numbers. The ACLU's position is that Weld authorities violated the privacy rights of as many as 4,900 taxpayers by keeping copies of confidential information. The ACLU seeks that the injunction on use of the tax filings, ruled by a Larimer District Court judge in April, be upheld.
In the criminal matter, the state high court will review the case against a particular suspect, Ramon Gutierrez, whose tax records were seized. The justices will determine if the search violated his Fourth Amendment rights against unlawful search and seizure. The justices also will rule if they should suppress evidence in the case; that would happen if they determine that no reasonable police officer could have exerted 'good faith,' or relied on the search warrant.
After Weld District Court Judge James Hartmann earlier this year ruled the search violated Gutierrez's rights, Larimer District Court Judge James Hiatt in April also ruled the search was illegal. Buck appealed Gutierrez's case to the Colorado Supreme Court.
The validity of the initial search warrant, which was granted by Weld District Judge Marcelo Kopcow, was the focus of much argument on both sides Thursday, especially in the civil case.
Richard Barkley, a Denver attorney arguing on behalf of Weld authorities, said the specification of two potential crimes identity theft and criminal impersonation was expressly made in the affidavit, 'so all requirements of probable cause were made.'
Elizabeth Harris, the Denver attorney arguing on behalf of the ACLU, focused on the scope of the search. She said 'there are 5,000 spheres of privacy that are constitutionally protected,' and that the Weld authorities' search went beyond reasonable probable cause standards of the Fourth Amendment. 'This is a classic fishing expedition,' she said.
In Operation Number Games, Weld prosecutors allege as many as 1,300 defendants used false or stolen Social Security numbers to work in Weld and then obtained tax returns with Amalia's help. They were able to do so because the IRS issues nonresidents an ITIN for purposes of filing taxes. According to IRS regulations, Amalia's Tax Service was following the law.
Rourke argued that Gutierrez's constitutional rights were not violated.
'What we were looking for here was information as to who was using the Social Security numbers, and it wasn't information that was otherwise available to law enforcement at the time of the search,' he said after the hearing.
A couple justices noted that the facts of the case make it appear that any facility containing tax records could be the target for a similar search.
'Wouldn't the IRS have all that information in the same way (Amalia's) did?' asked Justice Nancy Rice.
Barkley responded that if the IRS were to have a location in Weld, 'yes, I believe I could' get the information for the investigation.
The matter of 'good faith' has bearing on the criminal case because that's where evidence may or may not be suppressed. The civil case is centered simply on whether the search itself was legal.
Still, during the civil hearing, a couple justices had questions about a police officer acting on good faith in relation to a district judge's warrant. Justice Nathan Coats asked: Couldn't police be acting reasonably if they knew that even a panel, such as the Supreme Court itself, were divided about the validity of the warrant?
After the hearing, Harris said, 'what (Coats) essentially saying is, Don't (police) necessarily exhibit good faith relying on this warrant if reasonable minds could disagree about the constitutionality of the search?' '
She said she doesn't know how to answer that.
'These cases are often in sort of a gray zone of whether or not a search is constitutional,' Harris added. 'Judges often have to make very hard decisions about whether the officer really should have known one way or the other that the search was reasonable.'
In the civil case, Harris said the crux of the ACLU's argument is that the search wasn't reasonable because the level of suspicion authorities lacked a specific person's tax record they were looking for didn't match the level of intrusion into people's privacy.
Buck, who listened to the proceedings from the front row of the almost-full courtroom, viewed it differently.
'There have been hundreds of hours of attorney time put into briefing these cases,' he said after the hearing. 'There are seven justices sitting right now trying to decide whether this was a good warrant. We're talking about IRS law, we're talking about administrative law, federal criminal law. And a police officer was supposed to second-guess a district court judge and whether that warrant is valid or not?'
Amalia Cerrillo, owner of the tax preparer's office, also attended the hearings. 'I feel the outcome is going to be good,' she said, in terms of keeping her clients' tax documents private.
Buck was asked if the large-scale identity theft investigation would resume if the Supreme Court rules in his favor.
'I don't know the answer to that,' he said after the session. 'It's a large resource strain, and we'd have to look at whether we'd want to talk to the sheriff's office about whether we'd want to do something like this again.'
Colorado Supreme Court hears ID theft arguments
By Ivan Moreno
The Associated Press, November 6, 2009