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Colorado’s supreme court made one of the first forays into an area of infrequently decided law on April 8 when it quashed a search warrant requiring a bookstore to turn over a list of purchases by an online customer suspected of operating a methamphetamine lab. The unanimous court in Tattered Cover Inc. v. City of Thornton, No. 00CA2150, held that bookstores must be given two protections not usually accorded to the targets of search warrants, lest free speech be chilled. First, state courts may not issue a warrant without giving the bookstore a hearing beforehand. Second, prosecutors must show a compelling need for the customer records. Although the court rested its decision on the Colorado constitution — not the First Amendment — the case may have national implications, both because of its novelty and because the court gave a boost to the view that free speech implies a right to anonymity. In 2000, police in Thornton, Colo., found a methamphetamine lab in a trailer inhabited by four people. Outside the trailer, police found a Tattered Cover bookstore envelope addressed to one of the residents, “Suspect A.” In the bedroom where the lab was located, police also found two how-to manuals on methamphetamine production. After learning that Tattered Cover offered the manuals for sale through its Web site, police obtained the warrant, hoping to prove that Suspect A ordered the manuals, connecting him to the bedroom and establishing that he acted with intent. But the Colorado Supreme Court held that police failed to demonstrate compelling need, noting that the lab itself was proof of intent and that police could have connected Suspect A to the bedroom by interviewing the other residents, taking fingerprints, or tracing clothes and other objects found in the bedroom to him. Tattered Cover’s attorney, Daniel N. Recht of Denver’s Recht & Kornfeld, said that the decision prevents police from using bookstore warrants as an investigative shortcut. “The court didn’t say no warrants, but it did establish that police have to go the bookstore last, after they’ve exhausted other avenues.” He added that the hearing requirement exists nowhere else in the country and effectively erases the distinction between warrants and subpoenas. Thornton’s attorney, J. Andrew Nathan of Denver’s Nathan, Bremer, Dumm & Myers, said that a mistaken view of the facts may have led the court to find no compelling need, claiming, for example, that the fingerprints that the court felt could have been analyzed were in fact unusable. Jonathan Turley, a George Washington University law professor, said he was pleased that the court recognized that the right to free speech entails a right to anonymity in some cases. He sees the court’s reliance on the Colorado constitution as an implicit criticism of the U.S. Supreme Court’s reluctance to protect anonymity under the First Amendment, but added that the federal court may have to confront that issue in a pending case, Watchtower Bible Society v. Village of Stratton, dealing with a local ordinance requiring registration of door-to-door solicitors.

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