Peo v. Peterson

18CA1952 Peo v Peterson 01-27-2022 COLORADO COURT OF APPEALS Court of Appeals No. 18CA1952 Mesa County District Court No. 17CR889 Honorable Valerie J. Robison, Judge Honorable Richard T. Gurley, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Jeremy Peterson, Defendant-Appellant. JUDGMENT AFFIRMED Division IV Opinion by JUDGE RICHMAN Tow and Grove, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 27, 2022 Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant 1 ¶ 1 Defendant, Jeremy Peterson, appea ls the judgment of conviction entered on a jury verdic t finding him guilty of multiple counts of aggravated incest, sexual assault on a child, and sexual exploitation of a child. We aff irm the judgment. I. Background ¶ 2 When she was fourteen years old, A.P. told a trusted friend that Peterson, who is her father, had been engaging in sexual activities with her for as long as sh e could remember. Her friend’s mother called the police. A.P. and her mother, who is deaf, were interviewed by the police at the pol ice station that evening. ¶ 3 A.P. confirmed to Detective Mar k Post that Peterson had often made her do one or more acts on a list of “five sexual things” to gain his permission for her to leave the house. While the interview was in progress, Peterson, who is also d eaf, used a telephone relay service to call the police departmen t and inquire what was happening with his wife and child. Post told Peterson that the police would be coming to the fami ly’s apartment that night and they wanted to speak to him. ¶ 4 Around 3:00 in the morning, Pete rson’s wife accompanied police to the apartment and let them in. In addition to Post and an 2 agent from child protective servic es, three other officers (including one in uniform) were present. Pete rson was asleep on the sofa. His wife woke him up and, using sign l anguage, explained why the group was there. 1 Post began com municating with Peterson using a notepad and pen. As relevant here , the following written exchange took place as Peterson sat on the sofa and Post stood in front of him: Post: My name is Detective Post. I’m sorry we don’t sign and we will try to hurry. Can I ask you a few questions[?] Peterson: Ok but not [without] law yer and certified interpreter. Sorry. Its St ate/Federal law requires for it [sic]. Post: We are here involving allegat ions involving [A.P.]. We are not here t o violate your [r]ights. We would like to disc uss this at a later time if you are willing. We will investigate this as quickly as we c an. [W]e hope for your [and mother’s] coope ration. [W]e will work as quick as we can. For safety reasons[,] we need to place your c hildren into monitored care. Peterson: Really? We are being coo perated [sic]. Ok I may have time for discu ssion just for less than 15 mins. 1 A.P. is the oldest of three children in the Peterson family. The two other children were in the apartme nt that morning. 3 Post: Are you offering to make a st atement? Peterson: OK Post: I am getting a form if you wa nt to do a statement that I need you to read [and] unde[rstand]. THIS [w]ill NOT cha nge the situation [with] your children. . . . Peterson: [T]here is no point to “mo nitored care[.]” You’ll have no proper proc edure like get interpreter or lawyer. Post: We have tried for assistance with an interpreter and have not found one [.] [W]e have to go forward with this [beca use the] Department of human services has custody at this time . . . . [A.P.] has said yo u do sexual things to her. For those reasons[, ] a safety plan has been enacted [f]or [a]ll the kids. Peterson: Instead of monitored ca re, take me instead? . . . Post: We are not arresting you. We have to look into this matter. Why shoul d we take you? Peterson: Cuz we rather this baby stays. Post: Again that is not an option. ¶ 5 After this exchange, several witnes ses testified that Peterson reviewed and signed a Miranda advi sement form. However, at the time of the suppression hearing, the form could not be located and, therefore, it is not part of the recor d. 4 ¶ 6 Once the children were removed f rom the apartment, the written exchange between Post and Peterson resumed: Post: I am sorry for all this. Do y ou remember the form you signed? Peterson: Yes Post: Are you willing to make a stat ement still? Peterson: OK Post: Tell me about what happens with [A.P.] . . . . Peterson: So basically, I made mist akes. I know I was wrong to do sexual thi ng/abuse. I was stupid, OK. . . . Is this off the record? Post: NO this is on reco[rd]. What happened with [A.P.]? ¶ 7 Peterson responded by describing multiple incidents of sexual contact with A.P. At 5:40 a.m., pol ice placed Peterson under arrest. Of the approximately two hours an d forty minutes that had passed since the group’s arrival, twenty t o thirty minutes were spent gathering the children’s personal it ems and removing the children from the apartment. No interrogati on occurred during that time. ¶ 8 The day after Peterson’s arrest, Post interviewed A.P. She told Post that Peterson took sexually e xplicit photos of her and saved them to a hidden file on a black ha rd drive in her brother’s room. 5 Police secured a warrant to search the apartment. While executing the warrant, police seized several di gital storage devices, including the hard drive. They also seized four handwritten paper notes. Their subsequent 2 search of the har d drive revealed sexually explicit photos and videos of A.P. ¶ 9 Prior to trial, in separate motions, Peterson moved to suppress (1) his written exchange with Post, arguing that the statements contained therein were involunta ry and procured in violation of the Fifth Amendment protections recog nized in Miranda v. Arizona , 384 U.S. 436 (1966), and the American s with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134 ; (2) the four handwritten notes because they were not within the scope of t he warrant or in plain view; and (3) as relevant here, items discover ed during the search of the hard drive because the supporting warran ts were overbroad. ¶ 10 Concluding that Peterson was not in custody, his statements were voluntarily made, and non-c ompliance with the ADA did not provide a legal basis for suppressi on, the trial court declined to 2 A warrant executed after the searc h of the hard drive authorized police to search “all files containe d on any of the seized devices.” 6 suppress the written statements. The court did grant suppression of one “handwritten letter” becaus e it was not within the scope of the warrant, and the People did no t demonstrate it was in plain view. The court did not address t he other handwritten notes. It declined to suppress items reveale d in the search of digital media, determining that the warrants wer e not overbroad because they “expressly identify the type of evid ence to be searched” — child pornography. ¶ 11 On appeal, Peterson contends that the trial court reversibly erred insofar as it denied his moti ons to suppress. We address each type of evidentiary item in turn. II. Standard of Review ¶ 12 Motions to suppress raise mixed q uestions of fact and law. We defer to a trial court’s findings of f act so long as the record supports them, but we review its legal concl usions de novo. People v. Allen , 199 P.3d 33, 35 (Colo. App. 2007). We may also rely on facts that were not included in the trial court’s findings but are undisputed in the record. People v. Garcia , 2017 CO 106, ¶ 18 . We consider only the record of the suppression hear ing. People v. Thompson , 2021 CO 15, ¶ 16. 7 III. Suppression of the Written St atements ¶ 13 We first address Peterson’s conten tion that his written statements were procured through violations of his Fifth Amendment privilege and his stat utory rights as a person with a disability. A. The Fifth Amendment Privilege ¶ 14 The Fifth Amendment protects a c riminal defendant’s right not to make compelled statements in w hich he serves as a witness against himself. U.S. Const. amen ds. V, XIV, § 1. To ensure that state actors respect this right w hen they question suspects, a court must suppress all statements ma de during custodial interrogation unless a criminal defendant has w aived his Fifth Amendment privilege after being advised of his Miranda rights. People v. Hankins , 201 P.3d 1215, 1218 (Col o. 2009). But, the police are not required to give Miranda warnings to everyone they question. Id. Warnings need only be given to p eople whose freedom has been so restricted as to render them “in cu stody.” Id. (quoting Oregon v. Mathiason , 429 U.S. 492, 495 (197 7)). On the other hand, even absent custodial interrogation, only statements that are voluntarily made are admissible. People v. Coke , 2020 CO 28, ¶ 17 . 8 ¶ 15 Here, as in the trial court, Peterson asserts that he was in custody when Post interrogated him , and even if he was not, his statements were made involunta rily. B. Custody ¶ 16 “A person is in custody for Mira nda purposes if [he] has been formally arrested or if, under the t otality of the circumstances, a reasonable person in the suspect’s position would have felt that [his] freedom of action had been c urtailed to a degree associated with formal arrest.” Garcia , ¶ 20. To aid courts in determining whether a defendant was in custod y for Miranda purposes, the supreme court has outlined a non -exclusive list of material factors. They are: (1) the time, place, and purpose of t he encounter; (2) the persons present during the interrogation; (3) the words s poken by the officer to the defendant; (4) the officer's tone of voice and general demeano r; (5) the length and mood of the interrogatio n; (6) whether any limitation of movem ent or other form of restraint was placed on the defendant during the interrogation; (7) the officer's response to any questions asked by the defendant; (8) whether direc tions were given to the defendant during the interrogation; and (9) the defendant 's verbal or nonverbal response to s uch directions. 9 People v. Matheny , 46 P.3d 453 , 465- 66 (Colo. 2002) (citation omitted). No one factor is disposit ive. Garcia , ¶ 20. ¶ 17 For several reasons, we conclude that Peterson was not in custody when Post interrogated him. ¶ 18 First, the time and place of the enc ounter were not coercive when viewed in light of the full record. Although officers arrived at 3 a.m. — a time when an individu al might be caught by surprise and, thus, feel that his options wer e limited — Peterson himself initiated communication with t he police and was told that they would be coming to talk to him. The trial court also found that Peterson’s wife “could and did freel y communicate with [him] using sign language the entire time every one was in the apartment,” and it is undisputed that she let the police into the apartment, a neutral location for questioning. Id. at ¶ 22. ¶ 19 Second, the purpose of the enco unter was twofold: to remove the children from the home and to question Peterson. While the intent to question Peterson shows t hat police considered him a criminal suspect, an expectation of eventual arrest does not turn a non-custodial circumstance into a custodial one. Hankins , 201 P.3d at 1219 (noting that “expect ation, apprehension, or knowledge 10 of inevitable arrest are not the Mi randa triggers; custody is”). And police were also there to address chi ld welfare concerns, a neutral purpose. Garcia , ¶ 27 (determinin g that the defendant was not in custody because, among other fact ors, police were present to conduct a welfare check). ¶ 20 Third, the trial court found, with re cord support, that the written exchange between Post and Peterson was courteous and professional, the non-verbal con duct of the police was not aggressive or threatening, and the police did not direct Peterson to do anything except read the Mira nda advisement. See Matheny , 46 P.3d at 467 (citing the “polite” an d “reasonable” tone as a factor weighing against a finding of custo dy); see also People v. Clark , 2020 CO 36, ¶ 31 (noting that an officer’s conversational tone militated against the conclusion t hat the defendant was in custody). ¶ 21 In addition, the officers never threa tened him, and made no promises other than that they would attempt to complete the investigation quickly. Post also inform ed Peterson that his agreement to speak with the polic e would not change the situation with the children. When he aske d whether the exchange was “off the record,” Post told him that t he conversation was “on record.” 11 ¶ 22 Fourth, although some factors mig ht appear to weigh in favor of the conclusion that Peterson was in custody, the potential coercive effect of these factors is mi tigated by the context. At the time of questioning, four police off icers stood near the defendant, including one officer who leaned ag ainst the front door. Although the number of officers standing ne ar Peterson was large, the trial court found that the reason for the officers’ proximity was the tight layout of the apartment and the fact that it was packed with boxes due to a recent move. There is n o evidence that the police hovered over Peterson in an attempt to prev ent his escape. ¶ 23 Moreover, while there were four officer s present, only one of them communicated with Peterson . Garcia , ¶¶ 30-31 (noting that courts have often distinguished be tween the number of officers present at the scene and the num ber of officers focused solely on the defendant); see also Cla rk , ¶ 33. True, as a safety precaution, one officer followed Peterson and h is wife around the apartment while they gathered items for the children, but the undisputed testimony was that the officer di d not draw his weapon or try to ask Peterson any questions or physical ly restrain him. 12 ¶ 24 Fifth, according to the undisputed rec ord, Peterson asked Post to “take [him] instead” of the child ren. Post responded, “We are not arresting you. We have to look int o this matter.” Thus, Post indicated that the police were not prepared to arrest Peterson until they had additional information. Such an exchange would not give a reasonable person the impression that he was under arrest. People v. Sampson , 2017 CO 100, ¶ 29 (concluding the defendant was not in custody during question ing because an officer informed the defendant that he would be a rrested at a later time); see also Clark , ¶ 32. ¶ 25 Finally, while acknowledging that the custody test is an objective one, our review of the t otality of the circumstances requires that we consider Peterson’s deafness and the limitations his disability might have presente d. See J.D.B. v. North Carolina , 564 U.S. 261, 278 (2011) (noting the state’s concession that a suspect’s personal characteristics — for example, blindness — may be relevant to the custody analysis and finding age to be a relevant factor in some circumstances). As Peterson has argued, and as a division of this court has recognize d, deafness may severely impair a person’s ability to understand En glish. People v. James , 937 P.2d 13 781, 783 (Colo. App. 1996). In fact , English is a second language for many deaf people. Aviva Twersky -Glasner, Miranda Warnings and Deaf Suspects: It is Not Just a Matter of Translation , 42 No. 5 Crim. Law Bulletin 4 (Fall 2006). Therefore, written communication may or may not be an effective mea ns of communicating with a deaf person, depending on his level of E nglish literacy. We recognize that an inability to communicate w ith officers might impair a person’s understanding that he is not under arrest. Id. ¶ 26 However, other than raising his sta tus as a deaf person, Peterson presented no evidence t hat he had difficulties understanding written English . The trial court was able to examine the contents of his written communi cations with Post, as are we. Our review of the exchange reveals that Peterson understood English rather well. He responde d appropriately to Post’s questions and answers, and he asked several clarifying questions. He never indicated that, despite Post’s cla rifications, he could not understand what was happening. ¶ 27 Moreover, in cases involving defen dants who spoke English as a second language, other divisions of this court have concluded that basic English skills are sufficient t o effect a valid waiver of Miranda 14 rights. See, e.g. , People v. Delga do , 832 P.2d 971, 973 (Colo. App. 1991). We similarly conclude that any alleged linguistic deficits did not demonstrably prevent Peterson from comprehending the conversation he had with Post. ¶ 28 Peterson was not in custody when Post interrogated him. Therefore, further analysis of the s ufficiency of the Miranda advisement, or the validity of the w aiver, is unnecessary. C. Voluntariness ¶ 29 Peterson contends that his writt en statements were involuntary because Post ignored his request for a lawyer and interpreter, and he used the remo val of the children to compel Peterson to answer questions. ¶ 30 When determining whether statem ents were involuntary, we consider the totality of the circum stances. Coke , ¶ 18. The analysis involves a two-step proces s. We first consider whether police conduct was coercive. I d. at ¶ 19; see Colorado v. Connelly , 479 U.S. 157, 167 (1986) (noting that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’”). We then consider whet her coercive police conduct played a significant role in inducin g Peterson to make the 15 challenged statements. If such co nduct did not play a significant role, the statement will be consi dered voluntary. Coke , ¶¶ 19, 31. ¶ 31 When determining whether police conduct was coercive, courts should evaluate (1) whether the defendant was in c ustody; (2) whether the defendant was free to leave; (3) whether the defendant was aware of the situation; (4) whether the police re ad Miranda rights to the defendant; (5) whethe r the defendant understood and waived Miranda rights; (6) whether the defendant had an opportunity to confer with counsel or anyone else prior to or during the interroga tion; (7) whether the statement was made d uring the interrogation or volunteered later; (8) whether the police threatened [the] defendant or promised anything directly or impli edly; (9) the method of the interrogation; (10) the defendant’s mental and physical condit ion just prior to the interrogation; (11) the len gth of the interrogation; (12) the location of the interrogation; and (13) the physica l conditions of the location where the interrogat ion occurred. Id. at ¶ 20 (citation omitted). Cou rts may also consider other factors, bearing in mind that phy sical abuse is not necessary to support a finding of coercion. A st atement is not voluntary if it is extracted by threats or improper i nfluence or is the product of direct or implied promises to the d efendant. People v. Gennings , 16 808 P.2d 839, 843 (Colo. 1991); Pe ople v. Marston , 2021 COA 14, ¶ 13. ¶ 32 Based on the totality of the circumst ances, we agree with the trial court’s conclusion that Peters on’s statements were voluntary. ¶ 33 As noted above, Peterson was not in custody and he was in a neutral location when Post interro gated him. Although he was given a Miranda advisement form a nd he read and signed it, 3 the trial court made no finding regardi ng whether he understood the contents of the form. We therefo re do not proceed under the premise that the advisement form functioned as a full advisement of rights. ¶ 34 Even so, the fact that the police ga ve Peterson the advisement form militates against the concl usion that they acted in a coercive manner. At a minimum, it shows that the police attempted to ensure Peterson understood he had ce rtain rights. Peterson’s wife 3 The fact that Post chose to give Pe terson an advisement form does not undercut our conclusion that he was not in custody. An advisement alone does not preclud e a finding that a defendant was not in custody based on the total ity of the circumstances. People v. Sampson , 2017 CO 100, ¶ 31 (noti ng that although the defendant was given an advisement, he was n ot in custody). 17 testified that he told her the advise ment form concerned his “confidentiality rights.” Thus, he k new that the police gave him a form to explain his rights. ¶ 35 Peterson asserts that the police, no netheless, attempted to coerce him by pairing information about removal of the children with a request to ask him question s. The record belies this assertion. Post made no promise s or threats related to the children. In fact, he told Peterson that his decision to answer questions would not change that situation. We are not persuaded that Post used the children’s removal to indu ce Peterson’s statement. ¶ 36 We are similarly unpersuaded by Pete rson’s contention that police coerced him to speak by f ailing to provide an interpreter or an attorney. While Peterson initiall y asked for an attorney and an interpreter, he was not in custody at the time and no clear precedent mandated that Post stop interrogating him. See United States v. Bautista , 145 F.3d 114 0, 1147 (10th Cir. 1998); see also People v. Trujillo , 773 P.2d 1086, 1092 (Colo. 1989) (holding that the release of a defendant who has pre viously invoked his right to counsel while in police custody ter minates the constraint that interrogation must cease until an attorney is present because “the 18 defendant is no longer under the in herently compelling pressures of continuous custody”). Despite tha t fact, Post told Peterson in response to his request for an atto rney, “We would like to discuss this at a later time if you are willin g.” It was Peterson who then volunteered to give a statement, impliedly without an attorney or interpreter, while police were at the apartment. ¶ 37 Further, although the interrogation was rather long — at least two hours — it was conducted entirely in writing, a form of communication that is not terribly efficient. Given the consistently polite tenor of the extended writt en exchange, we are not convinced that this factor, alone, demonstrat es police coercion. ¶ 38 For these reasons, we conclude tha t Peterson’s written statements were voluntary, and t he trial court properly declined to suppress them. D. Statutory Law ¶ 39 Peterson argued in the trial court that the failure to provide an interpreter violated the ADA, 4 requi ring suppression of his 4 Peterson does not specify which se ction of the ADA he relies on. However, based on the language q uoted in the opening brief, it appears he relies on 42 U.S.C. §§ 12112 (b)(5)(A),12131-12132. 19 statements. On appeal, he also arg ues that the failure to provide an interpreter violated section 13- 90-204(1)(d), C.R.S. 2021. ¶ 40 In support of his assertion that a violation of the ADA may trigger suppression of evidence, Pe terson cites only one case, Seremeth v. Bd. of Cnty. Comm’rs , 673 F.3d 333 (4th Cir. 2012). He asserts that in Seremeth , “the Fourth Circuit has held that police investigations are subject to the ADA’s framework.” Seremith does so hold. Id. at 338-39. However, Seremith is a civil case and the opinion does not address whether violation of the ADA may support suppression of evidence in a crimi nal case. ¶ 41 Even if we assume police conduct violated the ADA, it is not clear that an ADA violation trigger s suppression of evidence in the criminal context. Nathan v. Muni cipality of Anchorage , 955 P.2d 528, 532-33 (Alaska. 1998) (concl uding that a violation of the ADA did not trigger the exclusionary r ule because it did not necessarily impair a deaf defendant’s ability to exe rcise his constitutional rights); State v. Piddington , 607 N. W.2d 303, 309-10 (Wis. Ct. App. 2000) (same). Peterson makes no a ttempt to explain why a violation of the ADA supports such a remed y. We do not address skeletal 20 arguments and decline to do so he re. People v. Leverton , 2017 COA 34, ¶ 65. ¶ 42 Similarly, although section 13-90- 204(1)(d) requires “[a]n appointing authority” to “provide a qualified auxiliary services provider to interpret” proceedings “[w]hen a person who is deaf, hard of hearing, or deafblind is ar rested and taken into custody,” Peterson was not in custody during the relevant time period. He makes no argument that section 13-90-204(1)(d) applies outside the custodial context. Given the lack of substantive argument, we decline to address the implications of this statute. Leverton , ¶ 65. IV. Suppression of the Notes ¶ 43 We next address Peterson’s conten tion that the trial court should have suppressed two more of the four handwritten notes seized in the initial search. Althou gh these notes were admitted at the suppression hearing upon the People’s motion, defense counsel did not make any arguments specif ic to them and the trial court did not address them in its suppressio n order. ¶ 44 At trial, A.P. testified to multiple in cidents of sexual abuse. As relevant here, she testified that , during one incident, Peterson came to her room and wanted her to do “[t he] five [sexual things].” She 21 pretended to go to sleep. The next morning, he made her pick one of the five acts and do it. After t his testimony, the People showed A.P. the first handwritten note. It said, “[A.P], Wake me up when you wake up please. The promise! Thx Daddy.” The note was admitted without objection. A.P. t estified that “this note was during the incident when I had pretende d to go to sleep. He made me promise to do one of the five t hings . . . he had wrote this note telling me to wake him up when I got up.” ¶ 45 The People next showed A.P. the second note, which said, “Mom, I’m just outside. I’ll keep ch eck[ing] in every hour. B[y the way], dad said okay for me to go o utside + play[.] [Heart] u, [A.P.]” She testified that she wrote the second note when she “had wanted to go han[g] out with my friends o utside so I’d asked my dad for permission and he told me that if I wanted to go outside . . . I had t o do one of the five things with hi m.” The note was admitted over foundation and relevance objections. ¶ 46 The next day, defense counsel rais ed a concern that while the two notes were given to him in disc overy, “the explanations that were elicited from the witness abou t how those notes corresponded to specific sexual acts is found now here in discovery.” Counsel 22 asserted “some sort of violation her e of discovery and Mr. Peterson’s due process” and “if the significan ce of these notes had been anywhere in discovery . . . I w ould have moved to suppress those two notes . . . because they were fo und in the same manner as the [suppressed letter].” Counsel later clarif ied, “My request i[s] that the Court find that there is a Rule 16 violation because the Prosecution specifically elicited a st atement from a witness that was not disclosed.” The court denied t he request. ¶ 47 Peterson now argues that, upon le arning that the notes were found in the same manner as the suppressed letter, the trial court had an obligation to construe co unsel’s Crim. P. 16 motion as a Crim. P. 41(e) motion to suppress. A. Law ¶ 48 A Rule 41(e) motion to suppress is a claim that a defendant’s Fourth Amendment rights were vi olated. People v. Cunningham , 2013 CO 71, ¶ 10 . By contrast, a Rule 16 motion to exclude is a claim that the court should orde r sanctions because materials were not disclosed in violation of a rule of criminal procedure. See Crim. P. 16(III)(g). Thus, when a party m akes a motion under Rule 16, he is not necessarily raising a constit utional claim. 23 ¶ 49 Further, a Rule 41(e) motion “shall be made and heard before trial unless an opportunity therefo r did not exist or the defendant was not aware of the grounds for t he motion, but the court, in its discretion, may entertain the moti on at the trial.” Crim. P. 41(e). Thus, trial courts have discretion to entertain midtrial motions to suppress, but they may deny late-fi led motions if the grounds cited were known or “reasonably disce rnible” before trial. People v. Tyler , 874 P.2d 1037, 1039 (Colo. 199 4). “Ordinarily, a trial court is not required to entertain a suppressi on motion at trial.” People v. Cornelius , 41 Colo. App. 182, 186 , 585 P.2d 295, 298 (1978). B. Analysis ¶ 50 Peterson has not cited, and we ha ve not found, any case standing for the proposition that when “due process” is mentioned, a trial court must convert a proce dural motion to a constitutional one. Because the legal grounds f or these motions are different and defense counsel’s arguments focus ed only on discovery issues, we cannot fault the trial court for faili ng to divine Peterson’s Fourth Amendment argument from his brief mention of “due process.” In addition, even if the court had perc eived that Peterson was 24 impliedly proceeding under Rule 4 1(e), he does not explain why the court was required to hear his late- filed motion. ¶ 51 Thus, we conclude that counsel f ailed to preserve the argument that admission of the no tes violated Peterson’s Fourth Amendment rights or that the court was required to hear a midtrial Rule 41(e) motion. People v. Ta llent , 2021 CO 68 , ¶ 12 (“To preserve a claim, a party must make an object ion ‘specific enough to draw the trial court’s attention to the asserted error.’”) (citation omitted). We review only for plain error. I d. An error is plain when it is obvious, and it “so undermines the fundamental fairness of the trial itself as to cast serious doubt on re liability of the judgment of conviction.” Id. at ¶ 20 (citing Crim. P. 52(b)); see also Hagos v. People , 2012 CO 63, ¶ 14 . ¶ 52 Any error was not obvious. Pete rson made no substantive argument based on the Fourth A mendment. Further, the notes were of ancillary importance in the trial. They supported A.P.’s testimony that one particular inci dent had occurred and her general assertion that she was made to t rade sexual favors for childhood privileges. This testimony was det ailed and compelling on its own, and although relevant, the notes did not substantially add to the 25 explicit evidence presented. There fore, the reliability of the judgment of conviction is not in doubt. If the trial court erred by failing to suppress the notes, the error was not plain. V. Suppression of Digital Materials ¶ 53 We next address Peterson’s argum ent that the trial court should have suppressed photos an d videos of A.P. found on the hard drive because the supporting warrant was overbroad. ¶ 54 The search of the hard drive was su pported by a warrant that authorized the seizure of: [A]ll hard drives, computers, laptops, tablets, Apple devices, android devices, ext ernal media storage devices, smartphones, flas h drives, and any other device which might store digital files and media; any visual depictio n of minor(s) engaged in sexually expli cit conduct or child erotica in any format or me dia including, but not limited to, photo graphs, magazines, photocopies or photogr aphs, videocassette tapes, photographi c and motion picture film, and computer images. It further authorized police to acqu ire and examine “all files contained on any of the seized devi ces.” A. Law ¶ 55 When police conduct a search purs uant to a warrant, it is generally deemed “reasonable” an d therefore compliant with the 26 Fourth Amendment. Thompson , ¶ 18. However, the Fourth Amendment requires that warrants “particularly describ[e] the place to be searched, and the persons or things to be seized.” Id. at ¶ 17 (quoting U.S. Const. amend. IV). G eneral exploratory searches are not permitted. Id. at ¶ 18. ¶ 56 A general search is one in which the warrant permits officers to conduct a “general, exploratory rummaging in a person’s belongings.” People v. Herrera , 2015 CO 60, ¶ 19 (quoting People v. Roccaforte , 919 P.2d 799, 802 (C olo. 1996)). By contrast, a warrant is sufficiently particular if it “enables the executing officer to reasonably ascertain and identif y the things authorized to be seized.” Roccaforte , 919 P.2d at 803 . What makes a warrant sufficiently particular varies accord ing to the information available to the police and the type of items to be seized. People v. Hearty , 644 P.2d 302, 312 (Colo. 1982). Searches of computers must be limited to evidence of specific crime s or types of material. United States v. Riccardi , 405 F.3d 852 , 8 62 (10th Cir. 2005). ¶ 57 An affidavit can cure an overbroad warrant if the warrant incorporates the affidavit by refer ence, both documents are presented to the issuing magistrate or judge, and the curative 27 affidavit accompanies the warrant du ring its execution or the warrant is executed by the affiant. Roccaforte , 919 P.2d at 803 ; People v. Staton , 924 P.2d 127 , 1 32 (Colo. 1996). The parties do not appear to dispute that all three of these criteria are met in this case. B. Analysis ¶ 58 In the warrant at issue here, the description of which devices could be seized was undoubtedly broad. It included any “device which might store digital files and media.” The trial court construed this broad description a s limited by the subsequent description of the type of items so ught. They included “any visual depiction of minor(s) engaged in se xually explicit conduct or child erotica in any format or media.” In other words, child pornography. ¶ 59 This reading of the warrant is butt ressed by the affidavit, which stated that (1) Peterson had shown A.P. pornography; (2) asked her to do some of the thi ngs shown; (3) used his laptop to take pictures of A.P. complying; and (4) stored the images on a hard drive. It further stated that Peterso n had told Post he started engaging in sexual contact with A.P. when she was approximately six years old. Based on these and ot her allegations, the affidavit asserted there was probable cause to believe that between June 28 2009 and May 2017, the crime of s exual exploitation of a child had been committed. ¶ 60 When read together, we conclude t hat the warrant and affidavit were limited to the search and seizure of items created during a certain time period and to a certain type of evidence — child pornography. The broad sc ope of the warrant was necessitated in part by the inform ation available to police, who had reason to believe that Peterson’s criminal conduct spanned nearly eight years, and that he had store d multiple images of child pornography on one or more digital devices. Under these circumstances, the affidavit cure d any potential deficiencies and we conclude that the warrant was not overbroad. ¶ 61 Peterson insists that we should rel y on case law addressing the scope of permissible cell phone searches. See Riley v. California , 573 U.S. 373 , 401 (2014 ); Coke , ¶ 37; Herrera , ¶ 1. These cases may be distinguishabl e as a class because Colorado case law has recognized that, given a cell phone’s unique portability and functionality, cell phone searches raise special privacy concerns under the Fourth Amen dment. Thompson , ¶ 19. 29 ¶ 62 Even so, they are also distinguisha ble on their facts. Riley concerned the permissible scope of warrantless cell phone searches. 573 U.S. at 401. Here, police had a warrant. In Coke , a warrant was deemed insufficiently particula r because it did not specify an alleged victim or time period, and it authorized the search of multiple types of data and databas es, including phone records, contact lists, and all data constituti ng evidence of ownership or possession. Coke , ¶ 38. Here, the affidavit defined the relevant time period and the warrant only a uthorized a search for child pornography. Similarly, Herrera prohibits the general search of cell phones for all “indicia of ownershi p.” Herrera , ¶ 4. In this case, the People did not rely on a such a bro ad and amorphous justification. Rather, they had specific informat ion that Peterson possessed child pornography and they sought auth orization to search for that kind of evidence. ¶ 63 Accordingly, we conclude that t he warrant did not violate the Fourth Amendment’s particularity requirement. VI. Conclusion ¶ 64 We affirm the judgment. JUDGE TOW and JUDGE GROVE concur.