THE TATTERED COVER CASE:
A Limited Victory For Bookstores Seeking To Protect Customers' Purchase Records

In the case of Tattered Cover v. City of Thornton, the trial court had allowed law enforcement officials to serve a search warrant to the Tattered Cover bookstore to look at the book-purchasing records of a customer. On Monday, however, the Colorado Supreme Court reversed that decision.

The court held that a bookstore must have an opportunity for a hearing before a search warrant is executed that seeks to obtain its customers' book-purchasing records. The court also developed a balancing test that should be applied at such a hearing. The test is crafted to determine whether law enforcement officials have a sufficiently compelling need for the book purchase record that outweighs the harms associated with enforcement of the warrant.

This decision is significant, but not as significant as the bookstore's supporters have claimed. The Tattered Cover lawyer and its supporters have claimed the decision has "huge national significance." In fact, the decision, while a victory for the bookstore, will have a limited legal effect.

How the Tattered Cover Case Arose

The Tattered Cover case arose from a drug investigation. In March 2000, police and a DEA agent were monitoring a trailer home, in which four suspects lived, that they suspected was operated as a methamphetamine lab. One day, an investigator legally searched some garbage from the trailer home and found evidence of drug operations - as well as an empty envelope from the Tattered Cover bookstore addressed to one of the suspects and bearing a label that listed the invoice number, order number, and customer phone number for the books that had been shipped in the envelope, but not the books' titles.

The next day, the police obtained a search warrant for the trailer, and during the search found a methamphetamine laboratory in the master bedroom, and a small quantity of the drug. Because of the location of the lab, the question of which suspect or suspects lived in the master bedroom became the focus of the investigation.

Among other items found in the master bedroom were two books: Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture by Uncle Fester, and The Construction and Operation of Clandestine Drug Laboratories, by Jack B. Nimble. After the search, the officers believed they had probable cause to arrest the suspect whose name was on the envelope. However, they wanted to gather more evidence of his guilt before making the arrest. The officers thought the books might have been sent in the Tattered Cover envelope. Accordingly, they served the bookstore with a DEA administrative subpoena.

However, the bookstore owner refused to voluntarily comply with the subpoena. The police therefore obtained a warrant from the Denver DA to search the bookstore. The warrant authorized a search for information relating to the purchase of the two books by the suspect, and for records of any other transaction involving the suspect during the thirty-day period before the police searched the trailer.

The bookstore owner refused to allow the search, claiming that it violated the First Amendment. Police agreed not to execute the warrant pending a court ruling on its constitutionality.

Following a hearing last October, the trial judge ordered the Tattered Cover to turn over some of the information sought by the police. The court held that the government's attempt to secure all of the customer's records over a one-month period was unconstitutional. However, the court allowed the officers access to invoice information without requiring them to prove a compelling need for the records.

The bookstore appealed this decision and the case reached the Colorado Supreme Court, which, as mentioned above, held that the bookstore was entitled to a hearing.

The Colorado Holding Will Have A Limited Effect

First, and most importantly, the court stated that it was the broad Colorado Constitution, not the U.S. Constitution, that was decisive. Indeed, the court stated that were only the First Amendment of the U.S. Constitution at issue, it would have had to allow the search warrant. The court remarked that, at least arguably, "the First Amendment [of the U.S. Constitution] places no special limitation on the ability of the government to seize expressive materials under the Fourth Amendment."

Second, the court also limited its holding to the facts of this case, "emphasiz[ing] that a bookstore's customer purchase records are not absolutely protected from discovery and that this question must be decided on the particular facts of each case."

Third, the ruling makes clear that because enough probable cause existed to arrest the suspect, the government could have gotten the information it sought through other means - a subpoena duces tecum, which would have required the bookstore to provide, or the suspect to bring with him, book purchase-related documents. The court noted that a subpoena, in contrast with a warrant for a search of the bookstore, would have protected the rights of non-suspect Tattered Cover customers - making clear that innocent customers, not criminal suspects, were the court's real concern.

A Significant Holding: Buying a Book is Protected by the First Amendment

There is one important part of the opinion that does have effect outside of Colorado, however. The Colorado Supreme Court stated that the First Amendment (and the Colorado Constitution) protects the right to receive information and ideas, and that therefore, when a person "buys a book at a bookstore, he engages in activity protected by the First Amendment, because he is exercising his right to read and receive ideas and information."

Drawing upon Supreme Court cases which have upheld anonymity as being essential to the successful exercise of First Amendment rights, the court concluded that book-buying anonymity, too, is protected in order to preserve First Amendment.

This holding was far from a given. As Cornell University Law School professor Steven Shiffrin explained in a Dallas News article, another possible view goes as follows: "Police can go to the telephone company and get your telephone records. They can find out from the post office who's sending me mail and who I'm sending mail to. They can go through your garbage, and they can do that without probable cause. I don't see how a bookstore is in any different position from a telephone company or a bank."

The court's decision to hold, contrary to the argument Shiffrin sets forth, that bookstore records do implicate First Amendment concerns, is an important one. Statutes protect libraries by requiring that search warrants for borrower records include specific information, but bookstores do not enjoy similar protection. Protection for them can only come from the U.S. or state constitutions. For this reason, the court's holding that the U.S. Constitution's First Amendment provides this protection is significant. As to the rest of the opinion, however, its persuasive effect outside of Colorado remains to be seen.