In 2008, the Weld County Sheriff's Office raided Amalia's Translation and Tax Service in Greeley as part of Operations Numbers Game, an effort to bust identity thieves who were also undocumented immigrants. The ACLU filed suit over the action -- and this week, Weld District Attorney/almost-senator Ken Buck approved a $295,000 payout to settle the matter. But he also engaged in spin that strikes ACLU of Colorado legal director Mark Silverstein as alternately suspect or inaccurate.
Operations Numbers Game netted authorities around 5,000 tax returns, from which 1,338 suspects were ID'd and 142 criminal cases spawned. However, the ACLU argued that the approach violated the privacy rights of all the other clients, and courts at the district court level agreed, as did the Colorado Supreme Court.
In a Greeley Tribune article about the settlement, which covers ACLU attorney costs, Buck noted that the Colorado Supreme Court decision was close -- a 4-3 vote against Weld County. And he maintained that "three Supreme Court justices agreed it was a valid search."
Not true, says Silverstein.
"Only one of the seven Supreme Court justices thought the search was legal," he notes. "Two others said the evidence should have been admissible in a criminal case even though the search was illegal," under the so-called exclusionary rule's good faith exception. "And the four-person majority said the search was illegal, and that it was so illegal that the evidence could not be used."
This ruling was made even though a judge signed a search warrant in advance of the raid, Silverstein points out. "That's one of the limits of the good-faith exception -- if a warrant is so defective and so wholly lacking in probable cause that any reasonable officer should have known not to rely on it even if a judge signed the warrant."
In the Tribune piece, Buck went on to argue that the ACLU shouldn't have filed the lawsuit in the first place, because the criminal cases would have been tossed anyhow due to the Supreme Court ruling. "But what that overlooks," Silverstein maintains, "is that we filed the case to represent the rights of all the customers whose records were seized. When we filed the lawsuit, the defendants" -- among them the county sheriff's office -- "were retaining electronic copies of all those records, including the records of thousands who were never suspected of any crime. The lawsuit was filed to make the defendants give up all their copies and forbid them from ever using that information in any way.
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"The search violated the privacy rights of thousands of innocent taxpayers who weren't suspected of wrongdoing," he continues. "In serving this search warrant, they asserted the right to comb through thousands of records from a tax preparer on the theory that some of the clients might be doing something wrong. And if they can do that, none of our private information is safe. It was the equivalent of a house-by-house search of innocent homeowners in order to find a suspect somewhere in the neighborhood. And what this lawsuit reaffirmed is that the constitutional right of privacy protects us from that kind of blanket, general search."
Silverstein hopes the hefty settlement and the rebuke of the policy handed Weld County by the courts "will send a message to any government official who wants to try a similar end run around the right of privacy, and around the Fourth Amendment. Law enforcement officers have to obey the law while they're enforcing the law."
More from our News archive: "Boulder County pays ACLU $65,000 to settle lawsuit over postcard-only jail policy."