People v. Slusher

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
April 30, 2026

2026COA30

No. 23CA1161, People v. Slusher — Constitutional Law —
Fourth Amendment — Searches and Seizures — Electronic
Devices or Information — Peer-to-Peer File Sharing —
Torrential Downpour

A division of the court of appeals holds that law enforcement’s

use of Torrential Downpour, proprietary government software, to

download files from the defendant’s computer over a peer-to-peer

file-sharing network was not a search under the Fourth

Amendment or the Colorado Constitution. The division also holds

that the district court did not err by declining to order disclosure of

the software to the defense team where the defendant presented no

evidence that it would have been favorable to his defense.
COLORADO COURT OF APPEALS 2026COA30

Court of Appeals No. 23CA1161
Arapahoe County District Court No. 22CR376
Honorable Eric White, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Floyd David Slusher,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE SCHOCK
Grove and Yun, JJ., concur

Announced April 30, 2026

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Floyd David Slusher, appeals his convictions on

two counts of sexual exploitation of a child — one for possession

with intent to distribute sexually exploitative material and one for

possession of such material. He contends that the evidence was

insufficient to support his convictions and that the district court

erred by (1) denying his motion to suppress; (2) denying his motion

for disclosure of a computer program used in the investigation; and

(3) failing to remove four jurors for cause. We affirm the judgment.

I. Background

¶2 Using proprietary government software called Torrential

Downpour, an investigator downloaded several files containing

sexually exploitative material from a particular internet protocol (IP)

address through a peer-to-peer file-sharing network called

BitTorrent. Subsequent investigation connected that IP address to

a group home where Slusher lived with several other men. The

home had five bedrooms, and its residents changed often.

¶3 Law enforcement obtained a search warrant for the home and

seized three computers that were later discovered to contain

sexually exploitative material. The first was a laptop (identified as

“scene item 6,” or SI-6) found in a shed in the backyard where

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Slusher and other residents kept their belongings. The other two

were shared desktop computers in the living room (identified as SI-9

and SI-10). All three were connected to Slusher, as detailed below.

A. SI-6

¶4 The registered owner of SI-6 — meaning the person who

initially registered and logged into the computer — was Ronald

Campbell, another recent resident of the home. But Campbell

testified that he gave the computer to Slusher and never used it.

¶5 There was a substantial amount of data on SI-6 indicating

that Slusher had used the computer, and he appeared to have been

the exclusive user in the month before the investigation. In

particular, there were more than 13,000 “Windows event logs”

associated with Slusher’s email address, indicating actions taken —

“a file that was created, a video that was viewed, [or] a website that

was logged into” — under that email address. There were also

several accounts on SI-6 under Slusher’s name or email address.

¶6 A computer forensic analyst found ten videos containing

sexually exploitative material in the “unallocated space” of SI-6.

Unallocated space is where files go after they are lost or deleted.

Although files in unallocated space are not accessible by the user,

2
they may sometimes be recovered with forensic tools. In addition to

the files in unallocated space, other data on SI-6 indicated that files

with titles indicative of child sex abuse material had recently been

opened or accessed, though they were no longer on the computer.

¶7 The forensic analyst also identified two programs that were

installed on SI-6: (1) “qBittorrent,” an application that permits a

user to send or receive files over a peer-to-peer file-sharing network

like BitTorrent; and (2) “Eraser,” an “anti-forensic tool” that can be

used to inhibit the discovery and recovery of deleted items.

B. SI-9

¶8 Slusher was the registered owner of SI-9, and his email and

username were associated with it. Although the computer was in

the living room, the manager of the group home testified that

Slusher was “probably the only one” who used it, and the forensic

analyst found no indication that anyone else regularly used it.

¶9 More than 200 files of sexually exploitative material were

found in the unallocated space of SI-9. Four of those files were

screenshots from videos that the investigator had downloaded from

the home’s IP address using Torrential Downpour.

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¶ 10 In addition, two such files — created one week before the

investigator’s downloads — were found in SI-9’s recycle bin. The

forensic analyst testified that a file goes to the recycle bin when the

user moves it there or deletes it. The file remains accessible until it

is deleted again, at which point it is in unallocated space.

¶ 11 There were also hundreds of “link files” with titles indicative of

child sex abuse material on SI-9. According to the forensic analyst,

link files are “essentially shortcut files” that are created when a file

is accessed, opened, or viewed. Although the files themselves were

no longer on SI-9, the existence of a link file on a computer means

the associated file “was at one point in time on that device.”

¶ 12 As with SI-6, qBittorrent was also installed on SI-9.

C. SI-10

¶ 13 Slusher was also the registered owner of SI-10. His Microsoft

OneDrive account was set up on the computer, and his email

account “showed up consistently” on it. SI-10 contained one file of

sexually exploitative material in the form of a “thumb [cache]” — a

“remnant” of “what used to be a thumbnail,” or “a small jpeg that

[a] computer creates to display to [the user] what is inside of a

folder.” Like SI-6, SI-10 had the Eraser program installed on it.

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D. Charges and Convictions

¶ 14 Slusher was charged with two counts of sexual exploitation of

a child — one for possession with the intent to distribute sexually

exploitative material and the other for possession of sexually

exploitative material — as well as two habitual sex offender against

children sentence enhancers. A jury convicted Slusher as charged.

II. Sufficiency of the Evidence

¶ 15 Slusher argues that the evidence was insufficient to prove he

knowingly possessed sexually exploitative material. He contends

that (1) the files in the unallocated space cannot show knowing

possession because he did not have access to them, and (2) the files

on SI-9 and SI-10 cannot show his knowing possession because he

did not have exclusive control over those computers. We disagree.

A. Standard of Review and Applicable Law

¶ 16 In reviewing the sufficiency of the evidence, we review the

record de novo to determine whether the evidence was sufficient in

both quantity and quality to sustain the conviction. Johnson v.

People, 2023 CO 7, ¶ 13. We do not “serve as a thirteenth juror and

consider whether [we] might have reached a different conclusion.”

People v. Harrison, 2020 CO 57, ¶ 33. Instead, we view the evidence

5
as a whole and in the light most favorable to the prosecution to

determine if it is “substantial and sufficient to support a conclusion

by a reasonable mind that the defendant is guilty of the charge

beyond a reasonable doubt.” Johnson, ¶ 13 (citation omitted).

¶ 17 As relevant in this case, a person commits sexual exploitation

of a child if that person knowingly “[p]ossesses or controls any

sexually exploitative material,” § 18-6-403(3)(b.5), C.R.S. 2020,1 or

if they knowingly “[p]ossess[] with the intent to deal in, sell, or

distribute, including but not limited to distributing through digital

or electronic means, any sexually exploitative material,” § 18-6-

403(3)(c). Sexually exploitative material includes a photograph or

video that “depicts a child engaged in, participating in, observing, or

being used for explicit sexual conduct.” § 18-6-403(2)(j).

¶ 18 In this context, “possession” means “the non-exclusive control

or dominion over sexually exploitative material.” People v. Marsh,

396 P.3d 1, 8 (Colo. App. 2011) (Marsh I), aff’d, 2017 CO 10M

(Marsh II). A person acts “knowingly” with respect to conduct or a

1 We cite the version of the statute in effect at the beginning of the

charged date range of Slusher’s offenses.

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circumstance if “he is aware that his conduct is of such nature or

that such circumstance exists.” § 18-1-501(6), C.R.S. 2025.

B. Unallocated Space

¶ 19 Slusher does not dispute that the evidence would support a

finding that he had exclusive control over SI-6. Nor does he dispute

that sexually exploitative material was found in the unallocated

space on that computer (and on SI-9). But he relies on Marsh II and

State v. Ballantyne, 543 P.3d 1152, 1160 (Kan. Ct. App. 2024), to

argue that the presence of such material in a computer’s

unallocated space cannot alone establish knowing possession.

¶ 20 In Marsh II, the supreme court held that internet cache files

stored on a defendant’s hard drive — images that are “automatically

downloaded when an image is viewed online” — may constitute

some evidence that the defendant knowingly possessed those

images. Marsh II, ¶ 29. But such files were not alone sufficient to

prove knowing possession where “numerous people had access to

the computer” and there was evidence that “viruses, hacking, and

other means” could cause a computer to display and download

sexually exploitative images without the user’s knowledge. Id. at

¶ 35; see also Ballantyne, 543 P.3d at 1160 (“[T]he mere presence of

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child pornography in a computer’s cache or unallocated space,

without more, is not sufficient to establish knowing possession.”).

¶ 21 There are a couple differences between Marsh II and this case.

First, other than the evidence that Campbell initially set up SI-6,

there was no evidence that “numerous people had access to the

computer.” Marsh II, ¶ 35. To the contrary, Campbell testified that

he never used it, and the forensic analyst testified that Slusher had

“the most information as a user” on the computer and had been the

exclusive user before the investigation. Second, there was no

evidence that the images in SI-6’s unallocated space could have

gotten there without the user’s knowledge — whether through a

virus, hacking, or other means. See id. at ¶¶ 30, 35; see also

Ballantyne, 543 P.3d at 1158, 1171 (noting testimony that internet

cache files could be downloaded onto computer “through some

automatic function” without picture ever being visible on screen).

Rather, the forensic analyst testified that the files in the unallocated

space “were on the device at some point” and then deleted.

¶ 22 But even assuming that Marsh II’s holding concerning internet

cache files applies to all files in unallocated space, this case

involves more than the mere presence of such files. As addressed

8
below, another computer that Slusher regularly used (SI-9) had files

containing sexually exploitative material in the recycle bin. See

Marsh II, ¶ 36 (holding that the evidence was sufficient where other

images in the defendant’s deleted files were sexually exploitative).

And both SI-6 and SI-9 had other data — “most recently opened”

data and link files — indicating that files with titles consistent with

sexually exploitative material had previously been located on, or

accessed from, those computers. Cf. id. at ¶ 35 (noting other

evidence of the defendant’s access to child pornography, including

that child pornography websites were saved to internet “Favorites”).

¶ 23 Moreover, both SI-6 and SI-9 had a file-sharing program

installed that allowed those computers to share files through

BitTorrent, and four of the files in SI-9’s unallocated space were

screenshots of videos that the investigator had downloaded from the

home’s IP address through that program. To be shareable, those

videos must have been in a shared folder — not unallocated

space — at the time. From this evidence, a jury could have

reasonably inferred that Slusher knowingly possessed the files in

the unallocated space before deleting them. See Lee v. State, 507

P.3d 483, 489 (Alaska Ct. App. 2022) (holding that presence of

9
BitTorrent on defendant’s computer was evidence that he possessed

files in shared folder before he deleted them); People v. Cook, 197

P.3d 269, 279 (Colo. App. 2008) (holding that evidence was

sufficient where, among other things, “there was a file sharing

program on one computer that contained defendant’s profile”).

¶ 24 Slusher asserts that the specific files the investigator

downloaded through Torrential Downpour were not found on any of

the computers (though screenshots from those videos were). But

such direct evidence is not required. See People v. Martinez, 165

P.3d 907, 915 (Colo. App. 2007) (holding that circumstantial

evidence was sufficient to prove knowing possession of child

pornography). The evidence that the files were downloaded from a

computer at the IP address — along with the evidence that both

SI-6 and SI-9 had a file-sharing program that allowed them to share

such files — was sufficient to support a conclusion that those files

were on one of those computers at some point. And although

Slusher cites Campbell’s testimony that he gave SI-6 to Slusher

after the summer of 2021, there was also testimony that Slusher

exclusively was using the computer before then. It was for the jury

to resolve any inconsistencies in the evidence. See Harrison, ¶ 33.

10
¶ 25 In light of this evidence, Slusher’s contention that he did not

access the files or know they existed while they were in unallocated

space misses the point. Viewed in the light most favorable to the

prosecution, the evidence is sufficient to support a jury finding

beyond a reasonable doubt that Slusher knowingly possessed the

sexually exploitative material before it was deleted and moved to

unallocated space. See Marsh II, ¶¶ 34-36; Lee, 507 P.3d at 489.

C. Nonexclusive Possession of SI-9 and SI-10

¶ 26 We also reject Slusher’s contention that the evidence was

insufficient to prove that he knowingly possessed the sexually

exploitative material on SI-9 and SI-10 because those computers

were in shared space and accessible by other residents of the home.

¶ 27 Possession under section 18-6-403 “need not be exclusive.”

Marsh I, 396 P.3d at 8; see also Martinez, 165 P.3d at 915 (holding

that jury was “correctly instructed that proof of exclusive

possession was not required”). All that is required is that the

defendant knowingly had control or dominion over the sexually

exploitative material. Marsh I, 396 P.3d at 8.

¶ 28 There was ample evidence to support a finding that Slusher

exercised at least nonexclusive control over SI-9 and SI-10 and, in

11
so doing, knowingly possessed the sexually exploitative material on

those computers. He was the registered owner of both computers,

his email account was used consistently on both, the username on

SI-9 consisted in part of his initials, and his OneDrive account was

set up on SI-10. See Martinez, 165 P.3d at 915 (holding that the

evidence was sufficient where the defendant “used [the] computer

and account profile” that the sexually exploitative material was on).

The home’s property manager testified that although there was a

“community computer in the living room,” Slusher was “probably

the only one that did use it.” And there was no evidence that

anyone other than Slusher regularly accessed or used SI-9.

¶ 29 Beyond the evidence of Slusher’s extensive use of the

computers, Slusher told an investigator he knew what “torrents”

were — the type of file-sharing program that was installed on SI-9

and that had been used to share the sexually exploitative files that

were downloaded by the investigator. He also volunteered that his

cell phone had once “browsed the internet for how to install

BitTorrent” (though he claimed it had been accidental).

¶ 30 Even without direct evidence that Slusher accessed or viewed

the sexually exploitative material on SI-9 and SI-10, this evidence

12
was sufficient to prove that he knowingly possessed that material.

See id. The fact that others also had access to the computers and

may also have knowingly possessed the files does not render the

evidence insufficient to support Slusher’s conviction. Id.

D. Ex Post Facto Law

¶ 31 Slusher also embeds within his challenge to the sufficiency of

the evidence an argument that his conviction for possession violates

the Ex Post Facto Clauses of the United States and Colorado

Constitutions because he was charged under a version of section

18-6-403(3)(b.5) that did not become effective until two months

after the beginning of the charged date range of his offense.

¶ 32 Specifically, the charged date range for Slusher’s possession

offense was July 1, 2021, to November 30, 2021. In July 2021,

section 18-6-403(3)(b.5) prohibited knowingly “[p]ossess[ing] or

control[ling] any sexually exploitative material.” But effective

September 7, 2021, the statute was amended to add “[a]ccesses

with intent to view” and “views.” Ch. 446, sec. 2, § 18-6-403(3)(b.5),

2021 Colo. Sess. Laws 2941. Both the complaint and the jury

instructions included the language added by the amendment.

13
¶ 33 Because the evidence was sufficient to support a conviction

under the pre-amendment version of the statute, the amendment

has no bearing on the sufficiency of the evidence analysis.

¶ 34 To the extent Slusher asserts his ex post facto argument as a

stand-alone basis for vacating his possession conviction, it would

appear at first blush to have some merit. See People v. Luman, 994

P.2d 432, 436-37 (Colo. App. 1999) (holding that application of

statute to date range beginning before its enactment violated

prohibition on ex post facto laws). But Marsh II held that the prior

version of the statute — the one in effect at the beginning of the

charged date range — already prohibited accessing and viewing

sexually exploitative material. Marsh II, ¶ 28 (“[K]nowingly seeking

out and viewing child pornography on the internet constitutes

knowingly possessing or controlling it under the statute.”).

¶ 35 Thus, the September 2021 amendment did not “impose[]

punishment for an act which was not a crime when it was

committed” or otherwise “change the legal consequences of

[Slusher’s] acts completed before its effective date.” People v.

Gholston, 26 P.3d 1, 12 (Colo. App. 2000). It is therefore not an ex

post facto law as applied to Slusher. See id. at 12-13.

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III. Motion to Suppress

¶ 36 Slusher next contends that the district court erred by denying

his motion to suppress the evidence resulting from the

investigator’s use of Torrential Downpour. We again disagree.

A. Additional Background

¶ 37 Slusher moved to suppress evidence of the files the

investigator downloaded through Torrential Downpour and all other

evidence resulting from the ensuing search warrant. He argued

that the use of Torrential Downpour was an unconstitutional

warrantless search and trespass because it “exploit[ed] an opening

in the user’s network” created by the BitTorrent software to “hack[]

into SI-6” and download entire files from that computer.

¶ 38 At the evidentiary hearing on the motion to suppress, the

investigator testified as follows about BitTorrent and Torrential

Downpour. BitTorrent is a peer-to-peer file-sharing program that

can be installed on a phone or computer. It allows users on the

BitTorrent network to send and receive files to and from other

users. The files are broken up into multiple pieces so that when a

user downloads a file, they are not necessarily receiving all pieces of

that file from the same other user. Instead, BitTorrent connects to

15
multiple users at the same time and receives pieces of the file from

each user, which increases the speed of the download.

¶ 39 When a user installs BitTorrent, the program creates a “shared

folder” on the computer. Files downloaded through BitTorrent go

into this folder, and anything in the folder is accessible to other

BitTorrent users. A BitTorrent user can only access files in other

users’ shared folders, not other files on their computers.

¶ 40 The process of one BitTorrent user connecting to another is

called a “handshake.” When this handshake occurs, each user may

download files from the other and send files (or pieces of files) that

the other user is looking for. Generally, the BitTorrent network

“tries to enforce sharing,” meaning that if a user only downloads

files without sharing files in return, the user may get “choked out.”

¶ 41 Torrential Downpour is a proprietary government software

program that connects with BitTorrent users seeking to share and

download child sex abuse material. It identifies files known to

contain such material and IP addresses known to have sought out

such files.2 It then reaches out to an identified IP address to see if

2 More precisely, the identification of IP addresses is completed by a

related program called Torrential Downpour Receptor.

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it is sharing any of the identified files. If it is, Torrential Downpour

downloads the files from the other user’s shared folder. Like

BitTorrent, Torrential Downpour cannot download files from

another user unless those files are in the other user’s shared folder.

¶ 42 Torrential Downpour operates differently than a typical

BitTorrent user in two primary ways. First, Torrential Downpour

does not share any files. It “offer[s] to share,” but because it never

has anything the other user needs, it makes it “seem like [it’s]

sharing but [it’s] not.” Second, Torrential Downpour connects to

only one computer at a time, which allows it to download an entire

file from a single source. Torrential Downpour also differs from a

typical BitTorrent user in that it targets specific IP addresses.

¶ 43 After the hearing, the district court denied Slusher’s motion to

suppress. It concluded that although Slusher had a reasonable

expectation of privacy in his computer, he did not have any privacy

interest in the files he sent and received over the peer-to-peer file-

sharing program or in the IP address he used to share those files.

B. Standard of Review and Applicable Law

¶ 44 A ruling on a motion to suppress presents a mixed question of

fact and law. People v. Seymour, 2023 CO 53, ¶ 19. We defer to the

17
district court’s factual findings if they are supported by competent

evidence and review the legal effect of those findings de novo. Id.

¶ 45 Both the United States and Colorado Constitutions prohibit

“unreasonable searches and seizures.” U.S. Const. amend. IV;

Colo. Const. art. II, § 7. A search occurs when the government

infringes on an individual’s “reasonable expectation of privacy.”

Seymour, ¶ 20. To determine if a claimed privacy interest warrants

constitutional protection, courts consider (1) whether the individual

“exhibited an actual (subjective) expectation of privacy”; and

(2) whether, objectively, “the expectation [is] one that society is

prepared to recognize as ‘reasonable.’” Id. at ¶ 22 (citation omitted).

¶ 46 A search also occurs when the government physically intrudes

in a constitutionally protected area in order to obtain information.

United States v. Jones, 565 U.S. 400, 404-05, 407 (2012).

C. Reasonable Expectation of Privacy

¶ 47 As Slusher appears to acknowledge, he had no reasonable

expectation of privacy in the files that he shared on the BitTorrent

network. Although a person has a reasonable expectation of

privacy in their personal computer, that expectation does not

encompass files that the person makes available through a file-

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sharing software. People v. Phipps, 2016 COA 190M, ¶¶ 26, 30.

Thus, when Slusher made the files available to everyone on the

BitTorrent network, he lost any reasonable expectation of privacy he

had in those files. See United States v. Ewing, 140 F.4th 1339,

1348 (11th Cir. 2025) (holding that the defendant had no

reasonable expectation of privacy in files he shared on BitTorrent

because everyone on the BitTorrent network had access to the files).

¶ 48 Relying on United States v. Horton, 863 F.3d 1041, 1047 (8th

Cir. 2017), and Kyllo v. United States, 533 U.S. 27, 40 (2001),

Slusher asserts that the government’s use of technology to discover

those files was still a search. In Horton, law enforcement sent

computer code to the defendants’ computers that “searched those

computers for specific information and sent that information back

to law enforcement.” 863 F.3d at 1047. In Kyllo, the government

used technology to “explore details of the home that would

[otherwise] have been unknowable.” 533 U.S. at 40. In other

words, both cases involved government infiltration of areas in which

the defendant otherwise had a reasonable expectation of privacy.

¶ 49 The investigator’s use of Torrential Downpour was different.

Although the program itself is “not in general public use,” id., it did

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not “go” anywhere Slusher had not already invited the public. It

simply allowed the investigator to download files that Slusher had

already made publicly available — files that any BitTorrent user

could have downloaded. See Ewing, 140 F.4th at 1349-50 (holding

that the government’s use of Torrential Downpour was not a search

and citing cases concluding that the government does not conduct a

search “when it downloads files that a person shares over a public

network”); United States v. Hoeffener, 950 F.3d 1037, 1044 (8th Cir.

2020) (reaching the same conclusion regarding Torrential

Downpour and rejecting the defendant’s “attempt to distinguish

BitTorrent software from other peer-to-peer programs”).

¶ 50 Slusher nevertheless asserts that he had a reasonable

expectation of privacy in his “identity and address” because that

information was not shared with other BitTorrent users. By that,

we understand him to mean his IP address — the unique string of

numbers assigned to an individual computer or network that helps

identify a specific user or user’s location. Seymour, ¶ 8 n.2; see

also id. at ¶¶ 28-32 (holding that individuals have a reasonable

expectation of privacy in their internet search histories “when

viewed . . . in connection with an anonymized IP address”).

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¶ 51 As an initial matter, we question whether the record supports

Slusher’s premise — that his IP address was not shared with other

BitTorrent users. It is true that the investigator testified that

regular BitTorrent users cannot seek out files from a particular IP

address the way that Torrential Downpour does. But he also

testified that when two computers exchange information through a

“handshake,” they “would know [each other’s] IP address.” He

explained that, in a handshake, the two computers “tell each other

what [their] IP addresses are, what port [they’re] using, and then

they report what pieces [of the requested file] they have.”

¶ 52 We also note that this argument appears to confuse the

sequence by which law enforcement connected the shared files to

Slusher’s group home. The investigator did not download the files

and then identify the IP address of the computer that had sent

them. Rather, he targeted a particular IP address (that had

previously been identified as seeking child sex abuse material3) and

3 We recognize that these IP addresses are identified by Torrential

Downpour Receptor, another government program. But Slusher did
not challenge this first step in the process, which consists merely of
logging the IP addresses of computers that request particular files
from a government computer on the BitTorrent network.

21
downloaded files that IP address had publicly shared. Another

investigator then identified the physical address of that subscriber

through a different court order (which Slusher does not challenge).

¶ 53 In any event, we conclude that Slusher did not have a

reasonable expectation of privacy in the IP address, distinct from

the shared files. In Seymour, the supreme court first concluded

that the defendant had a reasonable expectation of privacy in his

Google search history. Seymour, ¶¶ 26, 32. It then concluded that

the government had infringed on that privacy interest, even though

the search history it received was tied to an IP address and not the

defendant himself. Id. at ¶ 31. In contrast, Slusher had no

reasonable expectation of privacy in the files the investigator

downloaded. Slusher cites no authority to support the proposition

that someone can publicly share illegal files while maintaining a

reasonable expectation of privacy in the location (physical or digital)

from which those files were shared. We decline to so hold.

D. Trespass

¶ 54 For similar reasons, we also reject Slusher’s contention that

the investigator’s use of Torrential Downpour physically intruded,

22
or trespassed, onto Slusher’s computer. See Jones, 565 U.S. at

404-05; Florida v. Jardines, 569 U.S. 1, 5 (2013).

¶ 55 Unlike in Jardines, the investigator did not go anywhere or do

anything that Slusher had not authorized the public to go and do.

See 569 U.S. at 8-9 (holding that officer exceeded scope of implicit

invitation to knock on front door by using drug-sniffing dog to

explore area around home). By using BitTorrent and holding files

in a shared folder, Slusher consented to other users downloading

content from that folder. See Ewing, 140 F.4th at 1347. That is all

the investigator did. There was no evidence that he “hacked” into

the computer or accessed any information beyond files in the

shared folder. See id. The only difference is that he reached out to

Slusher’s computer instead of ending up there by chance. But once

there, the investigator did “no more than any private [BitTorrent

user] might do.” Jardines, 569 U.S. at 8 (citation omitted).

E. Seizure

¶ 56 Finally, Slusher asserts that the investigator conducted an

unconstitutional seizure by downloading the files. See Seymour,

¶ 34 (holding that copying a user’s digital data is a seizure).

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¶ 57 But law enforcement can lawfully seize evidence of a crime in

plain view if (1) the initial intrusion was legitimate; (2) law

enforcement had a reasonable belief that the evidence seized was

incriminating; and (3) law enforcement had a lawful right of access

to the object seized. People v. Glick, 250 P.3d 578, 585 (Colo. 2011).

In short, “as long as the incriminating character of an item is

immediately apparent and the officer seizing it is lawfully located in

a place from which he can both plainly see and lawfully access it, a

warrantless seizure does not offend the Fourth Amendment.” Id.

¶ 58 Even assuming that downloading files Slusher had made

available for download was a seizure, the plain view doctrine is

satisfied. The investigator’s use of Torrential Downpour to access

Slusher’s shared folder was legitimate, and the investigator had a

lawful right to access the files in that folder. And Slusher does not

dispute that the incriminating nature of those files was readily

apparent. See People v. Alameno, 193 P.3d 830, 836 (Colo. 2008)

(“[T]he content of pornography is generally apparent on its face.”).

¶ 59 Thus, because the investigator’s use of Torrential Downpour

was not a warrantless search and any seizure was lawful, the

district court did not err by denying Slusher’s motion to suppress.

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IV. Motion for Disclosure of Torrential Downpour

¶ 60 Slusher also contends that the district court violated his

constitutional rights by denying his motion for disclosure of the

Torrential Downpour software to the defense. We disagree.

A. Additional Background

¶ 61 The same day that Slusher filed his motion to suppress, he

also filed a motion for production of the Torrential Downpour

software and source code. He argued that disclosure of the

program was necessary to allow his counsel and expert to verify

that it worked as described, noting, among other things, that the

files allegedly downloaded through Torrential Downpour were not

found on Slusher’s computers. He proposed the entry of a

protective order limiting disclosure to his defense team and expert.

¶ 62 Although the prosecution produced raw data and reports

generated through Torrential Downpour, it opposed disclosure of

the program itself. It argued that Torrential Downpour is a

proprietary program and that the “compelling government interest”

in keeping the program confidential outweighed any probative value

to the defense. As to the source code, the prosecution argued that

it likely would not even have had the ability to disclose it.

25
¶ 63 As described above, the prosecution’s forensic analyst testified

extensively at the evidentiary hearing and was subject to extensive

cross-examination about how Torrential Downpour works.4 Among

other things, he testified that the program (1) only receives files and

does not send them; (2) only accesses files in a user’s shared folder;

and (3) generates “extensive logging” to confirm that the files were

downloaded from a single source. The analyst explained that it is

“fairly common” for files downloaded through Torrential Downpour

not to be found on the target device because the user can delete

them before law enforcement is able to execute a search warrant.

¶ 64 After the evidentiary hearing, the district court denied the

motion for disclosure. It applied a “balancing test,” weighing law

enforcement’s interest in not compromising its investigations

against Slusher’s interest in “being able to . . . vet” how the program

works, concluding that the latter did not outweigh the former. It

explained that any questions about how the program works, and

any discrepancies in the evidence, would be for the “jury to decide.”

4 The district court held a combined evidentiary hearing on the

motion to suppress and the motion for production.

26
B. Applicable Law and Standard of Review

¶ 65 There is no general constitutional right to discovery in a

criminal case. People in Interest of E.G., 2016 CO 19, ¶ 23. Rather,

a defendant is entitled to discovery only as specifically “authorized

by the Constitution, the rules, or by statute.” Id. at ¶ 13.

¶ 66 The Due Process Clause entitles a defendant to discovery of

evidence that is “both constitutionally material and favorable to the

accused.” Id. at ¶ 24 (citation omitted). The constitutional right to

present a defense entitles the defendant to “all reasonable

opportunities to present evidence that might tend to create doubt as

to the defendant’s guilt.” People v. Elmarr, 2015 CO 53, ¶ 26.

Crim. P. 16(I)(d)(1) grants a district court discretion to “require

disclosure to the defense of relevant material and information . . .

upon a showing by the defense that the request is reasonable.”

¶ 67 We review a district court’s discovery order in a criminal case

for an abuse of discretion. E.G., ¶ 6. We review alleged due process

violations de novo. People v. Burlingame, 2019 COA 17, ¶ 11.

C. Analysis

¶ 68 Slusher grounds his argument exclusively in his constitutional

rights to due process and to present a defense. But he failed to

27
establish either that the Torrential Downpour software would have

been favorable to his defense — at most offering speculation as to

why it might have been — or that he was denied a reasonable

opportunity to present evidence casting doubt on his guilt. See

E.G., ¶ 24; Elmarr, ¶ 26. To the contrary, defense counsel was

permitted to extensively cross-examine prosecution witnesses about

how Torrential Downpour functions. Cf. People v. Eason, 2022 COA

54, ¶¶ 48-49 (holding that destruction of body camera recording did

not violate due process where defendant’s assertion that it had

exculpatory value was “conclusory and speculative” and defendant

was otherwise able “to effectively cross-examine key witnesses”);

People v. McLean, 661 P.2d 1157, 1159 (Colo. 1983) (holding that,

to obtain disclosure of a confidential informant, an accused must

make “a minimal showing,” beyond “[c]onjecture and speculation,”

that disclosure “may be needed to present an adequate defense”).

¶ 69 In arguing that he should have been permitted to examine the

software to test the prosecution witnesses’ assertions, Slusher relies

on United States v. Budziak, 697 F.3d 1105, 1112-13 (9th Cir.

2012) — a case that ordered disclosure of a similar government

program under a federal rule, not the Constitution. In Budziak, the

28
court recognized that the defendant was required to make a

“threshold showing of materiality” under the federal rule. Id. at

1111 (citation omitted). But it concluded that the defendant had

met that burden by presenting (1) evidence suggesting that the FBI

may have only downloaded fragments of files; (2) evidence

suggesting that the FBI could have used its software to override the

defendant’s sharing settings; and (3) a declaration from a computer

forensics expert stating that discovery of the software could reveal

information helpful to the defense. Id. at 1112-13, 1112 n.1.5

¶ 70 Slusher made no such showing. Although his counsel

hypothesized about ways in which Torrential Downpour’s operation

might be problematic — such as if it downloaded files from multiple

sources or accessed parts of the computer that were not publicly

shared — the forensic analyst refuted each of those theories. And

Slusher presented no evidence to the contrary. The most that

5 Slusher also cites State v. Pickett, 246 A.3d 279, 284 (N.J. Super.

Ct. App. Div. 2021), in which the court ordered production of a
“novel probabilistic genotyping software” used by the prosecution’s
DNA expert to opine that the defendant’s DNA was present. The
court allowed the defendant access to the software for the purpose
of challenging the reliability of the expert’s testimony. Id. We deem
those circumstances sufficiently distinguishable from the
circumstances of this case that we do not address Pickett further.

29
defense counsel did was point out that the downloaded files were

not on Slusher’s devices four months later when the search warrant

was executed — a point the forensic analyst reasonably explained

by saying the files could have been deleted during that time.

¶ 71 That makes this case more like Hoeffener and United States v.

Pirosko, 787 F.3d 358, 365-66 (6th Cir. 2015), than Budziak. In

Hoeffener, the court held that the defendant was not entitled to

disclosure of Torrential Downpour and its source code where he

had offered “mere speculation that the software program could

possibly access non-public areas of his computer or that there was

a possibility that it malfunctioned during the officers’ investigation.”

950 F.3d at 1044. In Pirosko, the court distinguished Budziak

because the defendant did not produce any evidence of government

wrongdoing, “simply alleging that he might have found such

evidence had he been given access to the government’s programs.”

787 F.3d at 365. Slusher presented no more evidence to support

his motion than did the defendants in Hoeffener and Pirosko.

¶ 72 Without such a showing, the district court did not violate

Slusher’s constitutional rights or otherwise abuse its discretion by

failing to require the prosecution to disclose Torrential Downpour.

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V. Denial of Juror Challenges for Cause

¶ 73 Slusher’s final argument is that the district court abused its

discretion by not excusing four jurors for cause based on their

responses during voir dire. We perceive no abuse of discretion.

A. Additional Background

¶ 74 During voir dire, defense counsel told the venire that the case

was a child pornography case and that it was going to be presented

with videos and photographs that were “quite severe in nature,”

including “images and videos of adult men . . . penetrating very

young children maybe as young as perhaps two.” She then asked:

Is there anyone here who is feeling like based
on kind of the description that I gave, the idea
of having to sit on the jury and swear that
you’re going to pay attention, keep an open
mind and all those things is an overwhelming
expectation and something that you’re not
really sure you can do?

Several prospective jurors raised their hands, including jurors K.G.,

P.D., J.B., and P.C.

¶ 75 Defense counsel then asked several questions to individual

jurors about whether they would be willing to find a defendant not

guilty if the prosecution proved only six of seven elements of the

crime beyond a reasonable doubt. Two jurors indicated that if the

31
prosecution failed to prove only one element of the crime — such as

where the offense happened — they would still find the defendant

guilty because to do otherwise would be a “technicality.” Defense

counsel asked who agreed with them. Although several prospective

jurors raised their hands, none of the four jurors at issue did.

¶ 76 One prospective juror then explained: “[W]hat if these six

elements that are proven are the kind that make me want to cry

and throw up and the other one is . . . whatever, it would be really

hard for me to not convict. I would venture to say impossible,

especially if I was . . . that disturbed by the events themselves.”

Again, defense counsel asked who agreed and felt the same way,

and twenty jurors raised their hands, including J.B. and P.D.

¶ 77 After defense counsel’s voir dire, the district court told the

venire that it had observed a “collective[] . . . visceral reaction” to

defense counsel’s description of the potential evidence in the case.

The court then explained several principles, including that (1) the

prosecution bears the burden of proof beyond a reasonable doubt;

(2) the jury would have a “checklist of each element” that had to be

proved beyond a reasonable doubt; and (3) if the prosecution did

not prove each element, the jury must find the defendant not guilty.

32
¶ 78 The court continued:

The other part of this has to do with where I
started this conversation and that’s this
reaction that everybody has . . . . The question
is not whether or not that may be disturbing,
whether it’s something you don’t want to see,
because I think pretty much every human in
this room goes, I don’t want to see that. . . .
The question is whether or not if you see it
you’ll say, ah, the People don’t have to prove
any of the rest of their case, I saw this. They
don’t have to prove the elements. . . . I’m going
to give the prosecution a freebie because I saw
that picture. That’s the question, okay? And I
want to make sure that you folks are clear,
that’s what you’re being asked, will you be fair.
Will you be able to judge this based upon the
evidence and the law and hold the prosecution
to its burden. Don’t give them a pass. Make
them prove their case beyond a reasonable
doubt. That’s the question, okay?

¶ 79 The court then asked if there was “anybody who still feels . . .

if the prosecution blows it, doesn’t prove an element, I’m convicting

him anyway.” Several jurors raised their hands but not the four at

issue. The court then asked: “[I]s just looking at [the] pictures . . .

going to make you say, well, I don’t care what else the prosecution

proves, I saw the picture and he’s guilty.” Again, several jurors

raised their hands but not the four at issue. The district court

removed every juror who raised their hand to either question.

33
¶ 80 Defense counsel then challenged for cause all jurors who had

raised their hands in agreement with the prospective juror’s

comment about having difficulty not convicting if the prosecution

proved six of seven elements (including P.D.). The district court

denied the challenges (with one exception). It explained that the

jurors appeared “confused” and that the court had subsequently

“clarified and reminded the jurors of the burden of proof.” It said it

was “satisfied that upon its further discussion with the jurors that

had they persisted in the views they expressed, mostly without

comment . . . they would have made the [c]ourt aware of it.”

¶ 81 Defense counsel then challenged for cause three additional

jurors (including J.B.) who had raised their hands in response to

the question about their ability to pay attention and keep an open

mind given the subject matter. Again, the district court denied the

challenges. Defense counsel did not challenge K.G. or P.C., though

they had also raised their hands in response to that question.

¶ 82 K.G., P.D., J.B., and P.C. all served on the jury.

B. Applicable Law and Standard of Review

¶ 83 To protect a defendant’s constitutional right to a fair trial by

an impartial jury, the district court must sustain a challenge for

34
cause to a prospective juror who is biased or otherwise “unwilling or

unable to accept the basic principles of criminal law and to render a

fair and impartial verdict.” Marko v. People, 2018 CO 97, ¶ 20

(citation omitted); see also § 16-10-103(1)(j), C.R.S. 2025 (“The

court shall sustain a challenge for cause” if a juror’s state of mind

“evinc[es] enmity or bias toward the defendant or the state.”). But a

court must not excuse a juror for cause “if the court is satisfied,

from the examination of the juror or from other evidence, that [the

juror] will render an impartial verdict according to the law and the

evidence submitted to the jury at the trial.” § 16-10-103(1)(j).

¶ 84 Thus, “[a] prospective juror’s expression of concern or

indication that he or she possesses a preconceived belief as to some

aspect of the case does not . . . mandate exclusion of that juror for

cause.” Marko, ¶ 21. Rather, when a juror initially expresses such

a belief, the district court should explain the correct legal principles

and then determine whether the juror can fairly and impartially

follow the law. People v. Clemens, 2017 CO 89, ¶¶ 16-17. In

making this determination, the district court must evaluate the

juror’s state of mind based on their responses, demeanor, and body

language throughout voir dire. Marko, ¶ 21. Absent rehabilitation,

35
a challenge for cause must be granted when the juror’s statements

“compel the inference that he or she cannot decide crucial issues

fairly.” People v. Merrow, 181 P.3d 319, 321 (Colo. App. 2007).

¶ 85 We review the district court’s denial of a challenge for cause

for an abuse of discretion. Marko, ¶ 22. In doing so, we grant the

district court great deference because it is in “a superior position to

evaluate the ‘juror’s credibility, demeanor, and sincerity.’” Id.

(citation omitted). And we consider the district court’s ruling in the

context of the entire voir dire. People v. Ambrose, 2021 COA 62,

¶ 30. A district court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair. Marko, ¶ 22.

C. Preservation

¶ 86 Slusher groups K.G., P.D., J.B., and P.C. together and argues

that all four should have been removed for cause. But he did not

challenge K.G. or P.C. Although both raised their hands in

response to the question about their ability to pay attention and

keep an open mind, defense counsel did not identify either in the

challenges for cause based on that question. Slusher thus waived

36
any challenge to those jurors.6 See Richardson v. People, 2020 CO

46, ¶ 25 (“[D]efense counsel must ‘challenge an allegedly biased

juror to preserve the issue for appellate review.’” (citation omitted)).

D. Analysis

¶ 87 We conclude that the district court did not abuse its discretion

by denying Slusher’s challenges for cause to P.D. and J.B.7

¶ 88 Both jurors raised their hands in response to defense

counsel’s questions about (1) whether they were “not really sure”

they could “pay attention” and “keep an open mind” and (2) whether

it would be “really hard . . . to not convict” if six of seven elements

were proved. But in context, those responses did not “compel the

inference” that the jurors could not decide the issues fairly.

Merrow, 181 P.3d at 321. As the district court noted, the first

response indicated a “visceral reaction” to defense counsel’s

6 Slusher asserts that he challenged P.C. before voir dire based on

her written response to the questionnaire. But the written response
he cites — that the juror’s “job as an advocate may make [them]
biased on the side of the alleged victim” — was actually given by a
different prospective juror, who did not serve as a juror at trial.

7 To the extent Slusher’s challenge for cause to all jurors who raised

their hands in response to the two questions at issue could be
construed to include K.G. and P.C. — even though defense counsel
did not identify them — our analysis would apply equally to them.

37
description of the evidence and the “overwhelming expectation” that

came with it. See People v. Rabes, 258 P.3d 937, 944 (Colo. App.

2010) (holding that juror’s recognition of “danger that he would

convict based on his reaction to explicit photos” did not require

removal for cause). And the district court found that the second

indicated confusion rather than an inability to follow the law.

¶ 89 Moreover, to the extent the jurors’ responses initially indicated

some preconceived inclination or confusion, the district court

clarified the correct legal principles, including the prosecution’s

burden of proof as to each element. See Clemens, ¶ 17. After doing

so, the court asked the jurors again whether they would be unable

to apply the law. And while several jurors still indicated they could

not, neither P.D. nor J.B. (nor K.G. nor P.C.) did. See id. at ¶ 22

(holding that jurors’ silence in response to a similar question

demonstrated a willingness to follow the law). Based on this lack of

response and the jurors’ conduct throughout voir dire, the court

found that the jurors no longer persisted in their initial views. The

district court was in the best position to make that determination

based on the context of the entire voir dire. See Marko, ¶ 22.

38
¶ 90 Thus, because the record supports the district court’s

determination, we conclude that the court did not abuse its

discretion by declining to remove the challenged jurors for cause.8

VI. Disposition

¶ 91 The judgment is affirmed.

JUDGE GROVE and JUDGE YUN concur.

8 Slusher also asserts in a single sentence that the district court

abused its discretion by failing to submit his proposed jury
questionnaire to the venire and failing to grant him more time for
voir dire. Because he does not develop these arguments, we do not
address them. See People v. Stone, 2021 COA 104, ¶ 52.

39