CDR: Denver Judge rules Cops can seize bookstore records

Wed Oct 25 10:45:23 PDT 2000

"If we can save but one child from the awful scourge of drugs..."

Of course, the real issue here is why the bookstore was keeping such
personalized records in the first place.

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Judge: Cops can seize bookstore records
http://www.denverpost.com/news/news1021b.htm

By Susan Greene
Denver Post Staff Writer

Oct. 21, 2000 - Police will be allowed to search customer purchase records
at the Tattered Cover Book Store to investigate a narcotics case, a Denver
judge ordered Friday.

Civil libertarians decried the order - believed to be the first of its
kind nationwide - for protecting law enforcement's ability to obtain
evidence over individual rights to read without interference from
authorities.

Tattered Cover owner Joyce Meskis said the order could have a "chilling
effect" on the First Amendment and on store patrons, who might hesitate to
buy books knowing that police have access to their purchase records. She
is considering an appeal.

"A bookstore is a house of ideas," she said. "We certainly have the
responsibility to protect customers' rights to those ideas, and the right
to privacy that goes along with that."

Law enforcers hailed the order as a victory.

"If it only takes one or two records from a bookstore to help us eliminate
drugs on the street, then so be it," said Lt. Lori Moriarty, commander of
the North Metro Drug Task Force, which is seeking the Tattered Cover
records. "We need all the tools possible to help law enforcement do its
job."

The controversy stems from a March 14 raid on an Adams County mobile home
in which task force members found a methamphetamine lab and two books:
"The Construction and Operation of Clandestine Drug Laboratories" by "Jack
B. Nimble," and "Advanced Techniques of Clandestine Psychedelic and
Amphetamine Manufacture" by "Uncle Fester."

Investigators also found a bookshipping envelope containing an invoice
number from the Tattered Cover in Lower Downtown Denver. They are hoping
bookstore records will help pinpoint which of the six people who
frequented the mobile home bought the books and, presumably, operated the
lab.

The task force first sought a search warrant from the Adams County
district attorney's office, which rejected the request partially on
grounds that executing it would give police a public relations "black
eye."

Task force members then turned to the Denver DA's office, which granted
the warrant.

Meskis blocked police from going through her store's records, saying they
should instead use other investigative measures such as fingerprinting to
find their suspect.

Denver District Court temporarily blocked the task force from seizing the
records, pending the outcome of a hearing before Judge Stephen Phillips.

Most states have laws protecting public libraries from police searches
except under exceptional circumstances, but there is no special law that
protects bookstores.

The issue made headlines in 1998, when independent counsel Kenneth Starr
subpoenaed two Washington, D.C., bookstores for information on gifts
exchanged between President Clinton and White House intern Monica
Lewinsky. Barnes & Noble and Kramerbooks hired lawyers and challenged the
subpoena in federal court.

A federal judge quashed Starr's request for the records. Lewinsky,
meantime, agreed to testify in exchange for immunity, rendering the whole
issue moot.

Still, the case was a watershed for bookstore owners and privacy
advocates, who have been watching the Tattered Cover's legal battle with
intense interest.

Phillips, in his order, recognized the First Amendment right to "receive
information and ideas, regardless of social worth," but he cited a legal
balancing test weighing such rights against the importance of law
enforcement to investigate crimes.

Phillips ruled that the identity of the drug lab operators is "of
significant public interest" and that "the purchase of how-to books is a
highly important piece of evidence."

The judge wrote that there's no other reasonable way, aside from seizing
store records, for investigators to obtain the information they're
seeking. He lauded the task force for asking only for specific invoices,
not "stumbl(ing) through other private records."

Phillips deemed the Tattered Cover case "dramatically different" than the
Lewinsky case, about which he wrote: "The subpoenas were exploratory in
nature, and the government was unable to show any need nor any nexus to a
criminal event."

And so Phillips denied investigators' broad request for a month's worth of
records that might show all titles purchased by the unnamed suspects.
Still, he granted police access to the specific invoice whose number
appeared on the book mailer.

Meskis has 15 days to appeal before the task force seizes her records.

Moriarty insists it was never her unit's intent to comb through reading
records of the general public. Rather, she said, Phillips' order will give
investigators "an important piece of a puzzle" needed to nab their
suspect.

Critics say one arrest is a high price to pay for allowing a war against
drugs to chip away at civil rights.

"Key principles of the right to privacy and freedom of speech have
ultimately been compromised in the decision," said Sue Armstrong,
executive director of the American Civil Liberties Union in Colorado.

Judith Krug, director of the Office for Intellectual Freedom at the
American Library Association, said she worries that drug investigators
unfairly are "making the connection between what people read and what they
do."

"Just because you read a book on homosexuality, for example, doesn't mean
you're gay. And reading a book on the symptoms of cancer doesn't mean you
have the disease," Krug said.

"Our concern is that what people read, what goes into their heads will no
longer remain private."

KEY QUESTIONS:

Denver District Judge Stephen Phillips posed four key questions as part of
a legal balancing test in his ruling:

1. Is there a legitimate and significant government interest in acquiring
the information?

2. Is there a strong nexus between the matter being investigated and the
material being sought?

3. Is the information available from another source?

4. Is the intrusion limited in scope so as to prevent exposure of other
constitutionally protected matters?

Related:
Bookstore fights search warrant
http://www.denverpost.com/news/news1018d.htm