Peo v. Mason

24CA0784 Peo v Mason 12-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0784
Weld County District Court No. 16CR2268
Honorable Meghan Patrice Saleebey, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Mason,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE FREYRE
Pawar and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 24, 2025

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Frank Law Office LLC, Adam Frank, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Daniel Mason, appeals the postconviction court’s

order denying his Crim. P. 35(c) motion for postconviction relief

after an evidentiary hearing. We affirm.

I. Background

¶2 In 2015, the United States Homeland Security Investigations

Cyber Crimes Center’s Child Exploitation Investigations Unit (CEIU)

joined an ongoing child pornography investigation. This

investigation involved multiple individuals across the United States

who were members of an internet-based bulletin board dedicated to

the advertisement, distribution, and production of child

pornography. CEIU identified an IP address, associated with an

internet subscriber located in Colorado (the Subject Property), that

was used to download child pornography. Mason lived at the

Subject Property with his parents and two siblings.

¶3 Based on this information, CEIU obtained and executed a

search warrant for the Subject Property, seizing multiple computers

and electronic storage devices, including a desktop computer

belonging to Mason that was found in his bedroom. A forensic

examination of Mason’s computer located files in several places on

the computer’s hard drive containing sexually exploitative material.

1
¶4 In October 2016, Mason was charged with nine counts of

sexual exploitation of a child. Following a jury trial, Mason was

convicted of one count. The jury was unable to reach a verdict on

the remaining counts. The trial court sentenced Mason to seven

years of probation.

¶5 Mason appealed his conviction. Trial counsel represented

Mason on appeal.1 A division of this court affirmed. See People v.

Mason, (Colo. App. No. 19CA2168, Sept. 9, 2021) (not published

pursuant to C.A.R. 35(e)).

¶6 Mason then filed a Crim. P. 35(c) motion. After a two-day

evidentiary hearing, the postconviction court denied Mason’s

motion.

¶7 On appeal, Mason contends that prior counsel was ineffective

because (1) he did not move to suppress evidence seized from

Mason’s computer under the Fourth Amendment’s particularity

requirement, and (2) he failed to appeal the trial court’s incomplete

Batson inquiry. We disagree.

1 Because trial and appellate counsel are the same, we refer to

counsel as “prior counsel” throughout the opinion for clarity.

2
II. Ineffective Assistance of Counsel

¶8 “A criminal defendant is constitutionally entitled to effective

assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76

(Colo. 2003). To succeed on an ineffective assistance claim, the

defendant must establish that (1) counsel’s performance was

deficient, meaning it fell below an objective standard of

reasonableness; and (2) counsel’s deficient performance prejudiced

the defendant, meaning that a reasonable probability exists that,

but for counsel’s deficient performance, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668,

687-88 (1984); Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo.

2007). In considering the reasonableness of counsel’s performance,

a court must make “every effort . . . to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689. Additionally,

counsel enjoys a “strong presumption” that his conduct falls within

the wide range of reasonable professional assistance. Id. A

postconviction court may reject an ineffective assistance claim if a

3
defendant fails to demonstrate either deficient performance or

prejudice. People v. Aguilar, 2012 COA 181, ¶ 9.

¶9 We review the denial of a Crim. P. 35(c) motion after a hearing

as a mixed question of fact and law, People v. Corson, 2016 CO 33,

¶ 25, deferring to the postconviction court’s factual findings but

reviewing de novo the court’s ultimate conclusions regarding

performance and prejudice, People v. Sharp, 2019 COA 133, ¶ 12.

The postconviction court determines the weight and credibility to be

given to the testimony of witnesses in a Crim. P. 35(c) hearing.

People v. Hardin, 2016 COA 175, ¶ 39. Accordingly, “[w]here the

evidence in the record supports the findings and holding of the

postconviction court that presided over an evidentiary hearing, the

judgment will not be disturbed on review.” People v. Wardell, 2020

COA 47, ¶ 27.

A. Particularity of Warrant

¶ 10 Mason contends that prior counsel provided ineffective

assistance by not moving to suppress evidence found on Mason’s

computer because the warrant was not particularized. We are not

persuaded.

4
1. Additional Background Information

¶ 11 As relevant here, the search warrant authorized the seizure

and search of “computer(s), digital storage media, or digital storage

devices,” located within the Subject Property, including information

about the IP address “that constitute[d] evidence of the commission

of, contraband, the fruits of the crime, or instrumentalities of

violations of Title 18, United States Code, Sections 2252(a)(1), (2),

and (4) and 2252A(a)(1), (2), (3), and (5).”

¶ 12 The affidavit contained the following information:

• The affiant had been a special agent with the United

States Immigration and Customs Enforcement’s

Homeland Security Investigations branch since 2007. As

part of his duties, the affiant investigated criminal

violations relating to child exploitation and child

pornography. The affiant previously conducted and

participated in numerous child exploitation and child

pornography investigations, search warrants, interviews,

and forensic examinations.

• Digital software or hardware exists that allows people to

share digital access over wired or wireless networks

5
allowing multiple people to browse the Internet from the

same IP address.

• The majority of individuals who collect child pornography

rarely dispose of their sexually explicit materials and may

go to great lengths to conceal and protect their collection.

• Mason resided at the Subject Property and had a driver’s

license registered to the Subject Property.

¶ 13 Before trial, Mason filed a motion to suppress all evidence

seized when CEIU searched the Subject Property. Mason asserted

that the affidavit in support of the warrant “lacked the requisite

probable cause to justify the intrusion.”

¶ 14 At the motions hearing, prior counsel rested on his motion.

The trial court found:

In regarding the search warrant, I would
certainly note that much of the search warrant
really does go to the officer’s training and what
different things mean in the context of child
pornography, how that sharing happens, how
people who view that may kind of try to hide
that fact, and again, in terms of kind of the
layers that ultimately the officer lays out in the
warrant in terms of what you have to go
through to ultimately try to get to the
information as to what specific IP address it is,
where that computer may be physically
located.

6
I do find based upon the four corners of the
affidavit, however, that there was probable
cause for the Court to issue the search
warrant. I do find that it was particular as to
the specific IP address in that it was supported
by the information as well, by the specific
information that was able to be obtained prior
to the search warrant for the house, as well as
the general information that the agent had to
again pull everything together to believe that
ultimately that specific physical address was
the home of the IP address that is ultimately
listed.

So I am going to deny the motion to suppress
the search.

(Emphasis added.)

¶ 15 In his postconviction motion, Mason alleged that prior counsel

was ineffective for failing to challenge the breadth of the search

warrant. Specifically, relying on People v. Herrera, 2015 CO 60,

Mason argued that the warrant violated the particularity

requirement because the application lacked “even a scintilla” of

information “particular to Mr. Mason, anyone in his family, or

anyone who had ever accessed an electronic device in the Mason

household suggesting that Mr. Mason or anyone else might have

taken any action to conceal the nature of any files on any electronic

device on the Mason property.”

7
¶ 16 At the evidentiary hearing, Eric Klein, an expert on the

standards for effective assistance of counsel, testified regarding

counsel’s performance. Klein testified that prior counsel was

ineffective because the warrant was not particularized to “search in

the electronic device for places that the file may be located” and

because there was no nexus establishing probable cause to believe

the evidence would be found on Mason’s computer.

¶ 17 The postconviction court found that (1) prior counsel filed a

motion to suppress, and (2) the motion asserted that the warrant

lacked probable cause under the Fourth Amendment to “justify the

intrusion.” While the motion did not cite or rely on People v.

Herrera, prior counsel “did raise the issue of breadth and asserted

that the search violated his client’s constitutional rights.”

Moreover, the postconviction court found:

The issue for the Court is not whether [prior
counsel] should have performed in and
approached the case in the same manner as
Defense Expert Mr. Klein who has a significant
breadth of experience and was properly
qualified as an expert. Nor is the issue,
whether, because a case such as Herrera, can
be found during a quick search of Westlaw
that the failure to cite such a case amounts to
ineffective assistance of Counsel.

8
....

The four corners of the Affidavit in this case,
unlike in Herrera do establish the mechanisms
by which computers and computer networks
are used to facilitate crimes such as the sexual
exploitation of children, including that the
nature of the crime itself involves the folders,
use of third-party sites, search engines and
bulletin boards that often involve concealment.
The fact remains that, while not in the manner
that an expert such as Mr. Klein would
recommend, the search warrant was
challenged by [prior counsel] and the Court
conducted an independent review of the same.

2. Applicable Law

¶ 18 The Fourth Amendment protects individuals from an

unreasonable search or seizure of personal property by the

government. U.S. Const. amend. IV. A warrant may be issued only

if there is probable cause for a search or seizure. Id.

¶ 19 A “general warrant[]” is one that permits “general, exploratory

rummaging in a person’s belongings.” People v. Coke, 2020 CO 28,

¶ 34 (quoting Andresen v. Maryland, 427 U.S. 463, 480 (1976)).

General warrants are prohibited under the Fourth Amendment. Id.

Thus, a warrant must be supported by probable cause that a crime

has been committed, and the scope of the warrant must be

“sufficiently particular that it enables the executing officer to

9
reasonably ascertain and identify the things authorized to be

seized.” People v. Rodriguez-Ortiz, 2025 COA 61, ¶ 22 (quoting

People v. Roccaforte, 919 P.2d 799, 803 (Colo. 1996)). A warrant

lacks particularity if it does not describe with specificity the place to

be searched, and the persons or things to be seized. United States

v. Suggs, 998 F.3d 1125, 1132 (10th Cir. 2021).

¶ 20 When evaluating whether a warrant is sufficiently particular,

the reviewing court must look at the “totality of the circumstances,”

Rodriguez-Ortiz, ¶ 21, reviewing the warrant and any

“accompanying affidavits” in a “practical, common sense fashion” to

determine if probable cause exists, id. at ¶ 23 (quoting Roccaforte,

919 P.2d at 804).

3. Analysis

¶ 21 Mason contends that prior counsel was deficient for failing to

challenge the evidence seized from Mason’s computer in four ways:

(1) the warrant was general; (2) the warrant and accompanying

affidavit authorized a complete search of all shared property; (3) the

warrant and affidavit authorized a complete search of Mason’s

computer in violation of Herrera; and (4) the warrant and affidavit

10
did not describe a nexus between the illegal activity law

enforcement discovered and Mason’s computer.

¶ 22 However, as previously described, prior counsel did file a

motion to suppress the seized evidence, arguing that the affidavit

“lacked the requisite probable cause to justify the intrusion,” and

the trial court made a finding of particularity. Mason does not

provide, and we are not aware of, any authority requiring prior

counsel to file a more specific motion to suppress. Moreover, as the

trial court noted, the issue was not whether prior counsel would

have presented the same legal arguments as Klein. “There are

countless ways to provide effective assistance in any given case,”

and “[e]ven the best criminal defense attorneys would not defend a

particular client in the same way.” Strickland, 466 U.S. at 689.

Thus, because prior counsel raised the challenge by filing a motion

to suppress the evidence seized, and the trial court made specific

findings on particularity, we discern no error in the postconviction

court’s finding that prior counsel provided effective assistance.

¶ 23 Additionally, Mason failed to establish prejudice. Mason’s

reliance on Herrera and Coke is misplaced.

11
¶ 24 In Herrera, the defendant was suspected of having sexual

interactions with an underage girl, F.W., including via text

messages. Herrera, ¶ 7. After receiving the defendant’s phone

number from F.W.’s mother, a detective began texting the

defendant, posing as a fourteen-year-old girl. Id. at ¶ 8. The texts

led to the defendant’s arrest several weeks later. Id. The detective

applied for, and was granted, a search warrant for the defendant’s

phone. Id. at ¶ 9. The warrant permitted a search of the phone for

“(1) texts sent between [the defendant] and [the detective], (2)

photographs sent between [the defendant] and [the detective] that

were attached to the text messages, and (3) indicia of ownership to

show the phone belonged to [the defendant].” Id.

¶ 25 A second detective, who wasn’t the affiant, searched the phone

and clicked on a text message folder that referenced F.W. Id. at

¶ 13. Based on the contents of that folder, the defendant was

charged with several sexual crimes against a child. Id. at ¶14.

However, because there was no link between the folder and the

phone number of the undercover detective, the trial court

suppressed the evidence from that folder. Id. at ¶ 16.

12
¶ 26 The supreme court upheld the trial court’s suppression ruling,

concluding that the People’s rationale “transform[ed] the warrant

into a general warrant that fail[ed] to comply with the Fourth

Amendment’s particularity requirement.” Id. at ¶ 18. The supreme

court determined that the warrant had no limiting principle. Id. at

¶ 19 (“[T]he People’s rationale would permit officers to ‘rummage

through’ the entirety of an individual’s private information

contained in his phone, without limitation.”).

¶ 27 Mason likens his case to Herrera, arguing that the affidavit

contained no evidence he mislabeled files or attempted to conceal

illegal material on his computer. However, the supreme court noted

that, in other contexts, courts have recognized that defendants can

easily conceal contraband by mislabeling files. Id. at ¶ 33. In such

cases, courts have upheld broad search warrants, reasoning that

warrants cannot be limited to certain computer file names when

“illegal activity may . . . well be coded or otherwise disguised.”

United States v. Burgess, 576 F.3d 1078, 1093 (10th Cir. 2009); see

also United States v. Richards, 659 F.3d 527, 536, 541–42 (6th Cir.

2011) (upholding a search of all the files on a computer when the

investigator specifically testified that, in his experience, suspects

13
frequently mislabeled files). In this case, the affiant established

that searching computers for evidence of child pornography may

require a range of data analysis techniques because individuals

may attempt to conceal evidence or activity by hiding files or giving

them deceptive names.

¶ 28 Moreover, unlike the warrant in Coke — which allowed police

to search all information without limitation — the warrant here

limited the search to data related to the criminal activity described

in the affidavit. Cf. Coke, ¶ 38.

¶ 29 Accordingly, we perceive no error in the postconviction court’s

decision to deny Mason’s claim.

B. Incomplete Batson Inquiry

¶ 30 Mason next contends that prior counsel was ineffective

because he failed to appeal the trial court’s incomplete Batson v.

Kentucky, 476 U.S. 79 (1986), inquiry. We disagree.

1. Additional Background Information

¶ 31 After the prosecution used its fourth peremptory challenge the

following colloquy ensued:

DEFENSE COUNSEL: Judge, I’m going to
challenge that peremptory on Batson, [Mr. R.]
There’s three Hispanics. I think [Mr. H.] was

14
Hispanic or Latino; the Prosecution kicked [Mr.
H.] off. The only other Hispanic is [Mr. C.], so I
am asking the Court to reseat [Mr. R.] and not
allow that peremptory.

TRIAL COURT: First of all, I don’t know that
[Mr. H.] . . . is in fact Hispanic, but I will take
[that] at face value.

....

PROSECUTOR: So in regards to [Mr. R.], the
reason that I excused him is first he expressed
a criminal history, which is concerning to the
People. Also, when he was in chambers he
was not giving very articulate answers. He was
kind of giving one-word answers, which in my
mind indicated a level of intelligence that isn’t
going to be able to appreciate or grasp the
technical evidence that this jury is going to
hear.

TRIAL COURT: At this time I do find the record
made by the People, one, to be supported by
the evidence but also to be sufficient, and so I
will deny the request to reseat [Mr. R.]

¶ 32 After trial, prior counsel filed a motion for a new trial under

Crim. P. 33. Prior counsel argued:

Under [Batson,] the prosecution impermissibly
struck a Latino male, [Mr. R.,] after striking
another Latino male who was still in high
school, [Mr. H.] Counsel for Mr. Mason
objected and the prosecution claimed some
intellectual deficit in not being able to answer
questions as a reason for striking [Mr. R.]
However, [Mr. R.] met with the Court and both
counsel in chambers during voir dire, and [Mr.

15
R.] never exhibited any trouble answering
questions and certainly did not express any
difficulty. During the panel voir dire with the
other jurors, [Mr. R.] again expressed no
difficulty understand[ing] the proceedings, the
law or the Court’s instructions. Further,
neither the Court nor the prosecution inquired
into whether [Mr. R.] in fact had any
intellectual difficulty at any point during the
proceedings — in chambers or in the panel
voir dire. Thus, the impermissible strike
violated Mr. Mason’s right to a fair trial and
due process. Furthermore, the impermissible
strike violated [Mr. R.]’s right as a citizen to sit
on a jury panel.

¶ 33 The trial court denied the motion, and Mason appealed. On

appeal, the division determined that the record supported the trial

court’s decision to deny Mason’s Batson challenge. The court noted

that Mason did not assert on appeal that he should have been given

an opportunity to rebut the prosecution’s reasons but argued,

without more, that the court “did not allow” him to provide a

rebuttal. The division concluded this argument was undeveloped

and that the record supported the trial court’s ruling denying the

challenge.

¶ 34 In his postconviction motion, Mason argued that prior counsel

was ineffective for failing to object when the trial court did not

conduct the required third step under Batson and for failing to

16
make a record of information refuting the prosecutor’s purported

reasons for using a peremptory challenge on Mr. R. After prior

counsel testified at the postconviction hearing, the postconviction

court found:

[T]o the extent that this Court wishes to
consider the claim and make the record clear,
as to the narrow issue, of whether the
purported failure of [prior counsel] to more
fully argue that the Court should have allowed
him to rebut the prosecution’s neutral
explanation pursuant to cases such as People
v. Beauvais, 2017 CO 34, was ineffective, the
Court cannot find that this meets the first
prong of Strickland. Certainly, raising the
Batson issue on appeal and in a motion for a
new trial is certainly within the “wide range” of
reasonable performance by [prior counsel].
The court is highly deferential when reviewing
trial counsel’s performance and “must indulge
a strong presumption that counsel’s conduct
falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S.
at 689. And, even if the Court found the first
prong, the Court cannot find that there is a
reasonable probability that raising this
argument would have changed the outcome of
the opinion of the Court of Appeals and/or
impacted the motion for a new trial.

¶ 35 On appeal, Mason contends that “[a]ll prior counsel had to do

to win a remand was to argue that the trial court conducted an

incomplete Batson inquiry.” He argues that counsel’s opening brief

17
was only half the permitted length, so this issue could have been

raised without omitting others, and he argues there was no

justification for counsel’s omission. He also argues that prior

counsel’s deficient performance deprived him of a reasonable

probability to win a new trial on remand.

2. Standard of Review and Applicable Law

¶ 36 The same two-pronged Strickland test applies to claims of

ineffective assistance of appellate counsel. People v. Long, 126 P.3d

284, 286 (Colo. App. 2005).

¶ 37 To establish the performance prong, “the defendant must show

that counsel failed to present the case effectively” — for example, by

“ignor[ing] issues that are clearly stronger than those presented.”

Id. But “[a]ppellate counsel is not required to raise on appeal every

nonfrivolous issue a defendant desires to raise. People v. Trujillo,

169 P.3d 235, 238 (Colo. App. 2007). “‘[O]nly when ignored issues

are clearly stronger than those presented, will the presumption of

effective assistance of counsel be overcome’ even in the context of a

direct appeal.” Id. (alteration in original) (quoting Ellis v. Hargett,

302 F.3d 1182, 1189 (10th Cir. 2002)).

18
¶ 38 To establish the prejudice prong based on a failure to raise

specific issues on appeal, the defendant must show that, but for

counsel’s errors, the appeal would have prevailed. See Long, 126

P.3d at 286; Trujillo, 169 P.3d at 238-29.

¶ 39 During the jury selection process, a party may not

discriminate based on a prospective juror’s race or ethnicity. See

Batson, 476 U.S. at 85-87. If a party raises a Batson challenge

alleging racial discrimination, the trial court engages in a three-step

analysis. People v. Toro-Ospina, 2023 COA 45, ¶ 16. First, the

court must determine if the objecting party made a prima facie

showing that the peremptory strike was based on race; second, if

the first step is met, the striking party must offer a race-neutral

reason for the removal of the prospective juror; and third, the court

must determine whether the objecting party has shown by a

preponderance of evidence that the strike was purposefully

discriminatory on the basis of race. Id.; see People v. Ojeda, 2022

CO 7, ¶¶ 21-27.

¶ 40 “[T]he proper remedy for an inadequate inquiry into a Batson

challenge . . . is to remand the case to the trial court with directions

19
to . . . make the required factual findings.” People v. Rodriguez,

2015 CO 55, ¶ 21.

3. Analysis

¶ 41 We agree with the postconviction court that prior counsel’s

decision to raise the Batson issue on direct appeal and in the

motion to dismiss falls within the “wide range” of reasonable

performance. Again, Mason does not provide any authority that

requires prior counsel to have made the specific arguments in the

direct appeal that he now advances. In contrast, counsel is

generally considered the “captain of the ship” and may decide which

issues to pursue upon appeal. People v. Smith, 2024 CO 3, ¶ 28

(citation omitted); see also People v. Rodriguez, 914 P.2d 230, 303

(Colo. 1996) (rejecting claim that appellate counsel rendered

ineffective assistance by failing to raise all available issues on

appeal).

¶ 42 We are similarly unpersuaded that Mason established

prejudice. Mason contends that, had the case been remanded, and

if the trial court had been unable to make the required factual

findings due to the passage of time or other factors, he would have

been granted a new trial. However, we conclude that such

20
speculation does not establish prejudice, and Mason provides no

additional information concerning what prior counsel would have

argued in rebuttal to substantiate a claim of purposeful

discrimination on remand.2

¶ 43 To the extent Mason argues that prior counsel was ineffective

due to a lack of extensive appellate experience, we disagree. The

record shows that prior counsel sought guidance from other

attorneys in filing the appeal. As the postconviction court found,

“[b]ecause an appeal was not successful and/or because in

hindsight, another attorney might have made a different argument,

under the Strickland test, is not ineffective.” Moreover, the

postconviction court found that prior counsel, through his

testimony, “demonstrated that he made strategic considerations

during the appellate process.” See Hardin, ¶ 39 (the postconviction

court determines the weight and credibility to be given to the

testimony of witnesses).

2 In his direct appeal, Mason provided the responses he would have

made at step three, and the division concluded that they did not
warrant reversal of the trial court’s ruling. People v. Mason, slip op.
at ¶¶ 12-16 (Colo. App. No. 19CA2168, Sept. 9, 2021) (not
published pursuant to C.A.R. 35(e)).

21
¶ 44 Again, we perceive no error in the postconviction court’s denial

of Mason’s motion.

III. Disposition

¶ 45 The order is affirmed.

JUDGE PAWAR and JUDGE YUN concur.

22