Wednesday, October 26, 2016

Possession of Child Pornography, the Guilty Plea and Restitution

This post examines an opinion from the Court of Appeals of Wisconsin:  State v. Tarlo, 2016 WL 5794352 (2016). The court begins the opinion by explaining that
David Tarlo challenges the circuit court's award of restitution to the mother of a victim of child pornography. He argues the court erred in concluding the mother met her burden of proving  the claimed loss was the result of his criminal conduct. . . .
State v. Tarlo, supra.
The opinion goes on to explain that Tarlo was
charged with five counts of possession of child pornography in relation to five images found on his computer. According to the criminal complaint, a Wisconsin Department of Justice analyst concluded most of the images were viewed in November and December 2009 and March 2011. Tarlo pled guilty to one of the counts with the other counts being dismissed but read in at sentencing.

The mother of a child alleged to be in one of the images on Tarlo's computer sought $60,000 in restitution from Tarlo for lost income. She claimed at the restitution hearing before a court commissioner in this case that she was deprived of that amount in income support due to her husband's earlier arrest and ultimate incarceration for producing child pornography, including pornographic images of her daughter. The mother provided testimony from which the court commissioner concluded that one of the images possessed by Tarlo was an image of the daughter that was produced by her husband. The State argued that the restitution request was appropriate because Tarlo had viewed and possessed the image.

The court commissioner ultimately recommended Tarlo pay restitution of $10,000. It reached this amount by dividing the $60,000 requested by six, which is the total number of people that the mother testified had been caught possessing a pornographic image of the daughter. The circuit court subsequently adopted this recommendation as its own. Tarlo moved for reconsideration, which was denied. He appeals.
State v. Tarlo, supra.
The opinion goes on to explain that
Tarlo argues the circuit court erroneously exercised its discretion in ordering him to pay $10,000 because `the family's lost income is not related to [his] possession’ of the daughter's image. He asserts the mother failed to meet her burden of demonstrating that the lost income support she sustained was a result of Tarlo's crime of viewing and possessing her daughter's image. Based upon the evidence presented at the restitution hearing, we must agree.

At a restitution hearing, `[t]he burden of demonstrating by the preponderance of the evidence the amount of loss sustained by a victim as a result of a crime considered at sentencing is on the victim.’ Wisconsin Statutes § 973.20(14)(a) (2013–14) (emphasis added). As Tarlo points out, `[b]efore restitution can be ordered' . . . there must be “a causal nexus” between the “crime considered at sentencing” and the damage.’ State v. Rash, 2003 WI App 32, ¶ 6, 260 Wis.2d 369, 659 N.W.2d 189 (Wisconsin Court of Appeals 2003) (citation omitted).

`In proving causation, a victim must show that the defendant's criminal activity was a “substantial factor” in causing damage. The defendant's actions must be the “precipitating cause of the injury” and the harm must have resulted from “the natural consequence[s] of the actions.”’ Id.(alteration in original; citation omitted). `Circuit courts have discretion . . . in determining whether the defendant's criminal activity was a substantial factor in causing any expenses for which restitution is claimed.’ State v. Johnson, 2002 WI App 166, ¶ 7, 256 Wis.2d 871, 649 N.W.2d 284 (Wisconsin Court of Appeals 2002) (citing State v. Canady, 2000 WI App 87, ¶¶ 6, 12, 234 Wis.2d 261, 610 N.W.2d 147). A discretionary decision `should only be disturbed when there has been an erroneous exercise of that discretion.’ State v. Madlock, 230 Wis.2d 324, 329, 602 N.W.2d 104 (Wisconsin Court of Appeals 1999). A court erroneously exercises its discretion if it exercises its discretion `under an erroneous view of the law,’ id., or fails to `logically interpret[ ] the facts.’ State v. Johnson, supra.
State v. Tarlo, supra.
The opinion goes on to explain that
[w]hile we are to `construe the restitution statute broadly and liberally in order to allow victims to recover their losses,’ those losses must still be shown to be `as a result of a defendant's criminal conduct.’ State v. Longmire, 2004 WI App 90, ¶ 11, 272 Wis.2d 759, 681 N.W.2d 534 (Wisconsin Court of Appeals 2004) (citation omitted). It is a `bedrock principle’ that restitution should reflect, and a defendant should be made liable for, `the consequences of the defendant's own conduct,’ `not the conduct of others.’ Paroline v. United States, 134S.Ct. 1710 (2014).
State v. Tarlo, supra.
The Court of Appeals then began its analysis of the issue in this case, noting, initially, that
[h]ere, the evidence presented at the restitution hearing establishes only financial losses incurred as a result of the earlier conduct of the mother's husband in producing the child pornography; it does not establish that any of the losses resulted from Tarlo's criminal conduct, or even general trafficking of the daughter's image over the Internet. The mother presented evidence that she incurred the $60,000 of lost income support as a result of her husband's arrest and incarceration for his production of child pornography. Of that amount, approximately $45,000 was lost due to her husband's lost employment and $15,000 was lost due to her own lost employment because, as the court commissioner found, the mother `needed to quit her jobs to supervise her children and transport them to their treatment sessions.’ The court commissioner noted, `In reality, this amount could be much higher, but the victims are only seeking $60,000.’ The amount could have been much higher because, according to the mother's testimony, $60,000 was the amount of loss incurred `every year’ since 2010, when it was discovered her husband produced the child pornography.

According to the complaint,  most of the images of child pornography on Tarlo's computer were viewed in November and December 2009 and in March 2011. The mother indicated at the restitution hearing, and the record otherwise supports, that she first learned of the viewing and possession of her daughter's image—by Tarlo and five other individuals—at some point in approximately the year leading up to the June 2, 2014 restitution hearing.

However, even if the court had awarded the mother the $10,000 it did in relation to lost income for that year immediately preceding the restitution hearing, the evidence nonetheless still failed to establish a `causal nexus’ between the lost income and the viewing and possession of the image. The evidence established that the income was lost due to the husband's earlier production of child pornography and related arrest and incarceration; no evidence was presented from which the court could reasonably infer that the viewing and possession of the daughter's image by Tarlo or others caused any of the income loss for which the mother sought restitution. See Wisconsin Statutes § 973.20(14)(a).
State v. Tarlo, supra.
The opinion then explains that
mother also testified she and her children had participated in individual counseling as a result of her husband's production of the child pornography; but she made no request for restitution related to any counseling, provided no testimony or other evidence of any counseling costs, and indicated that the counseling was provided at no cost to her through `crime victim assistance’ in relation to her husband's crime. When asked by the court commissioner if she anticipated any future expenses related to Tarlo's crime, such as `other expenses for treatment or therapy that you think is not going to be covered,’ she could only indicate that `[t]here could be’ other expenses, but provided no suggested financial costs, past or present, upon which any treatment-related restitution award could be based.

The mother did testify her daughter is revictimized every time an individual views her image and she (the mother) feels revictimized every time she is notified of an individual viewing the image. The mother's and daughter's revictimization cannot be doubted. See Paroline v. United States, supra, (`[E]very viewing of child pornography is a repetition of the victim's abuse’). That said, evidence still needed to be presented from which the circuit court could conclude that financial losses claimed by the mother resulted from the viewing and possession of her daughter's image—and not just the earlier criminal conduct of her husband. No such evidence was presented at the restitution hearing.
State v. Tarlo, supra.
The court went on to explain that
[w]ith virtually no analysis or analogizing of the case to this one, the State provides large block quotes from Paroline to support its assertion that `[f]ederal case law supports the concept of holding consumers of child pornography liable for restitution to victims even though the pornography is created elsewhere and long ago.’ While that assertion is generally correct, Paroline does not aid the State here.

The uncle of the victim in Paroline sexually abused the victim when she was eight and nine years old in order to produce child pornography. Paroline v. United States, supra. He was convicted of the offense and required to pay $6000 in restitution. Id. The victim participated in therapy in 1998 and 1999 until the therapist determined she was `back to normal.’ Id. The victim suffered `a major blow to her recovery,’ however, when she learned at age seventeen `that images of her abuse were being trafficked on the Internet.’ Id. The possessors of her images `easily number[ed] in the thousands,’ and the knowledge that her images `were circulated far and wide’ renewed her trauma and `made it difficult for her to recover from her abuse.’ Id.
State v. Tarlo, supra.
The opinion continued outlining the analysis that applied here, explaining that
Paroline later was convicted in relation to possessing between 150 and 300 images of child pornography, including two which depicted the victim. Id. at 1717–18. The victim sought restitution under 18 U.S. Code § 2259 (1996) in the amount of nearly $3 million in lost income and $500,000 in future treatment and counseling expenses. Paroline v. United States, supra. The district court declined to award restitution, holding that the government failed to establish losses proximately caused by Paroline's crime. Id. On appeal, the Supreme Court struggled with the question of causation and how courts could properly award restitution in cases where `a particular defendant . . . is one of thousands who have possessed and will in the future possess the victim's images.’ Paroline v. United States, supra. The Court continued, `In determining the amount of general losses a defendant must pay under § 2259 the ultimate question is how much of these losses were the “proximate result,” § 2259(b)(3)(F), of that individual's offense.’ Paroline v. United States, supra. The Court discussed factors federal district courts should consider, as`“rough guideposts,’ in determining an appropriate amount of restitution, and it remanded the matter back to the district court. Paroline v. United States, supra.

Ultimately, under the federal statute at issue in that case, Paroline allows a victim in the `special context’ of child pornography to recover restitution from a possessor of the pornographic image even though `none of [the victim's] claimed losses flowed from any specific knowledge about [the possessor] or his offense conduct,’ so long as the victim's losses are shown to have been the result of trafficking in the image in general. Paroline v. United States, supra.  In Paroline, `the victim's costs of treatment and lost income result[ed] from the trauma of knowing that images of her abuse [were] being viewed over and over,’ Paroline v. United States, supra, and the evidence discussed by the Court indicates the restitution sought by the victim related to the `major blow to her recovery’ which occurred when she learned at age seventeen that her image was being viewed on the Internet, by individuals such as Paroline. Paroline v. United States, supra. By contrast, in the case before us, there simply was no evidence presented of income lost or treatment costs incurred, or of income that will be lost or costs that will be incurred, as a result of Tarlo or others viewing and possessing the daughter's image.
State v. Tarlo, supra.
The court also pointed out that
[s]ignificantly, the Paroline Court noted that a victim's `losses sustained as a result of the initial physical abuse’ are to be `disaggregat [ed]’ from `aggregate losses, including the costs of psychiatric treatment and lost income, that stem from the ongoing traffic in her images as a whole.’ Paroline v. United States, supra. Again, here the mother testified only as to the loss of income resulting from her husband's initial abuse of her children, including her daughter, and provided no testimony of losses `stem[ming] from’ Tarlo or others viewing and possessing her daughter's image. Her testimony only supports the conclusion that she would have incurred all the financial losses to which she testified at the restitution hearing even if no one had ever viewed or possessed an image of her daughter via computer.
State v. Tarlo, supra.
The court then explained that,
[n]evertheless, the State argues that Tarlo's conduct was a substantial factor in the loss of both the mother's and her husband's income. According to the State, this causal nexus was established because

`Tarlo's role as a consumer [of the child pornography] retrospectively encouraged the creation and distribution of the victim's sexually explicit images by [the mother's] husband who believed there would be consumers like Tarlo out there, so he created the images and put them on the internet for those consumers to enjoy. (Emphasis added.)’

The court commissioner, and by adoption the circuit court, rested its decision on similar reasoning, which we find flawed. It may be that when he produced the child pornography, the husband believed, based on his prior Internet experience, that the images eventually would be circulated on the Internet and viewed by other persons. It may also be that this belief contributed to his decision to produce the child pornography, which production resulted in his arrest, imprisonment, and loss of employment. It cannot be said, however, that Tarlo's actions, which occurred after the husband produced the pornography, caused the husband to produce it. Indeed, there is no evidence whatsoever to suggest the husband would not have produced the pornography if Tarlo or the others had not subsequently viewed and possessed it.
State v. Tarlo, supra (emphasis in the original).
The court then articulated its holding in the case, explaining that the
restitution statute places on the victim the burden of proving that any losses sustained were “a result of a crime considered at sentencing.” Wis. Stat. § 973.20(14)(a). A `result’ of a crime follows from the commission of the crime; the result does not precede the crime. See Result, BLACK'S LAW DICTIONARY (10th ed.2014) (defining `result’ as `[a] consequence, effect, or conclusion,’ `[t]hat which is achieved, brought about, or obtained, esp. by purposeful action,’ and `t]o be a physical, logical, or legal consequence; to proceed as an outcome or conclusion’); Result, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1993) (defining `result’ as `to proceed, spring, or arise as a consequence, effect, or conclusion’); see also Paroline v. United States, supra (`[T]o say one event proximately caused another . . .  means the former event caused the latter.
(emphasis added)).
Child pornography is a scourge upon children, families, and our nation. Nevertheless, courts still must make decisions based upon evidence presented. In this case, the mother failed to meet her burden of proving she incurred any losses as a result of Tarlo's conduct; she only presented evidence she incurred losses as a result of her husband's conduct of producing the child pornography. Accordingly, the restitution order was in error, and we remand this matter to the circuit court to enter an amended judgment of conviction vacating the restitution award.
State v. Tarlo, supra (emphasis in the original).
If you would like to read the Supreme Court's opinion in Paroline, you can find it here. 

Monday, October 24, 2016

The Guilty Plea, “Unlawful Sexual Intercourse with a Minor” and Constitutional Overbreadth

This post examines a recent opinion from the Court of Appeal– Fourth District, California: People v. Nachbar, 2016 WL 5799785 (2016). The opinion begins by explaining that
Steven Nachbar pleaded guilty to one count of unlawful sexual intercourse with a minor more than three years younger (California Penal Code § 261.5(c)).  The court placed him on formal probation and required him to register as a sex offender. Defendant now challenges four of the conditions to his probation: that he (1) not have photographic equipment; (2) not have toys, video games, or similar items that attract children; (3) obtain approval of his residence from his probation officer; and (4) submit to warrantless and suspicionless searches of his computers and recordable media. 
People v. Nachbar, supra.
The Court of Appeals began its analysis by noting that Nachbar “forfeited his challenges to the conditions regarding toys and residence approval because he did not object to them in the trial court.” People v. Nachbar, supra.  In other words, the court would not consider those issues because Nachbar did not object to them when the court imposed those conditions as part of his probation. This post only examines the fourth probation condition, e.g., that Nachbar “submit to warrantless and suspicionless searches of his computers and recordable media.” People v. Nachbar, supra.
As courts usually do, the Court of Appeal begin its analysis of the issue by explaining how, and why, Nachbar was placed on probation:
In April 2014, when defendant was 22 years old, he was placed on summary probation for having unlawful sexual intercourse with a minor, a 17–year–old girl. While on probation for that offense, defendant met the victim in this case, a 15–year–old girl. They met through a mutual friend, became friends on Facebook, and exchanged text messages. Several of defendant's text messages were sexually explicit and indicated he wanted to have sex with the victim. Some of the victim's responses were `OMG,’ `LOL,’ and that defendant was too old for her.

The victim's parents are divorced and live down the street from each other. On September 14, 2014, the victim told her father she would be staying at her mother's house that night. Her mother was out of town. The victim and defendant arranged to meet at the mother's house, but she told him he could not stay too long because it was a school night. Defendant arrived around 8:00 p.m. and they tried to watch a movie in the victim's bedroom on her cell phone. When they were unable to do so, the victim asked defendant to leave. Defendant said he wanted to cuddle, but the victim asked him to come back another time.

Instead of leaving, defendant grabbed the victim's breasts; she asked him to stop. Defendant moved his hands toward the victim's pants; she attempted to push his hands away. Defendant removed the victim's shirt and fondled her breasts. He reached underneath the victim's pants and underwear and digitally penetrated her vagina several times; she continued to tell defendant to stop. Defendant removed the victim's pants and underwear, got on top of her, and penetrated her vagina with his penis. The victim asked defendant to stop and was eventually able to push him off of her. She asked defendant to leave, and he exited her bedroom. The victim believed defendant had left the house.

The victim put on her clothes and informed a friend by text message that defendant had just raped her. The friend notified the victim's father, who notified law enforcement. When the victim left her bedroom, she saw defendant sleeping on the couch. When sheriff's deputies arrived, they found the victim crying on the driveway and defendant asleep on the couch.
People v. Nachbar, supra.
The opinion then explains that
[d]eputies woke, arrested, and admonished defendant. He initially denied having any sexual contact with the victim, stating he knew it would be wrong because she was only 15 years old. However, during transport, defendant admitted he digitally penetrated the victim's vagina and had sexual intercourse with her. He denied the victim ever told him `no.’ Defendant said he was `”coming down”’ from having smoked methamphetamine before meeting with the victim.
People v. Nachbar, supra.
Finally, the Court of Appeal outlined the charges that were subsequently brought against Nachbar, the disposition on those charges and the sentence imposed on him:
Defendant was charged in a four-count felony complaint with forcible rape (California Penal Code § 261, subd. (a)(2)); sexual penetration using force (California Penal Code § 289, subd. (a)(1)(A)); unlawful sexual intercourse with a minor more than three years younger (California Penal Code § 261.5(c)) and penetration by a foreign object (California Penal Code § 289, subd. (i)). Pursuant to a plea agreement, defendant pleaded guilty to the unlawful sexual intercourse count and the remaining counts were dismissed.

The probation officer's presentencing report assessed defendant as having a moderate to high risk of committing another sexual offense if released on probation, but stated that his chances of success would likely improve if he were `managed on formal probation with intensive monitoring and case planning. . . .’

The trial court sentenced defendant to 381 days in custody (which was set off by custody credits) and placed him on formal probation for three years. As relevant, the conditions of defendant's probation provide that he (1) not have photographic equipment; (2) not have toys, video games, or similar items that attract children; (3) obtain approval of his residence from his probation officer; and (4) submit to warrantless and suspicionless searches of his computers and recordable media.
People v. Nachbar, supra.
Finally, the opinion explains that the trial court judge
also exercised its discretion to require that defendant register as a sex offender. The court explained that although it understood the Act required that defendant register for life, and that the court thought requiring registration for `10 years or something like that would be appropriate,’ the court nonetheless required that defendant register because of how quickly he reoffended after his prior offense. Both the order granting formal probation and the judgment state defendant is to `[r]egister per . . . [California Penal Code § 290.’
People v. Nachbar, supra.
The Court of Appeal then took up the fourth probation condition imposed on Nachbar, e.g., that he Nachbar “submit to warrantless and suspicionless searches of his computers and recordable media.”  People v. Nachbar, supra.  It began by addressing the “applicable legal principles and standard of review”, as is outlined below.  People v. Nachbar, supra. 
`Following a defendant's conviction of a crime, the sentencing court may choose among a variety of dispositional options. One option is to release the offender on probation. “Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.” [Citation.] A grant of probation is “qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither `punishment’ [citation] nor a criminal `judgment’ [citation]. Instead, courts deem probation an act of clemency in lieu of punishment [citation], and its primary purpose is rehabilitative in nature [citation].”’ (People v. Moran (California Court of Appeal 5th District 2016) 1 Cal.5th 398, 402, 205 Cal.Rptr.3d 491, 376 P.3d 617 (Moran).) Accordingly, `a grant of probation is an act of grace or clemency, and an offender has no right or privilege to be granted such release.’ (Ibid.) `Stated differently, ‘[p]robation is not a right, but a privilege.’” (Ibid.)

Consequently, a sentencing court may impose conditions to further the rehabilitative and protective purposes of probation. (Moran, supra, 1 Cal.5th at pp. 402–403, 205 Cal.Rptr.3d 491, 376 P.3d 617.) Under People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 (Lent), `”[a] condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. . . .”’ (People v. Olguin (2008) 45 Cal.4th 375, 379, 87 Cal.Rptr.3d 199, 198 P.3d 1, quoting Lent at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545.) `This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.’ (Olguin, at p. 379, 87 Cal.Rptr.3d 199, 198 P.3d 1; Moran, at p. 403, 205 Cal.Rptr.3d 491, 376 P.3d 617.)
People v. Nachbar, supra.
The opinion went on to explain that a
‘probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as constitutionally overbroad.’ [Citation.] ‘The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.’ (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346, 159 Cal.Rptr.3d 335.)

`As a general rule, failure to challenge a probation condition on constitutional or Lent grounds in the trial court waives the claim on appeal.” (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033, 100 Cal.Rptr.2d 218; People v. Welch (1993) 5 Cal.4th 228, 237, 19 Cal.Rptr.2d 520, 851 P.2d 802 (Welch); In re Sheena K. (2007) 40 Cal.4th 875, 889, 55 Cal.Rptr.3d 716, 153 P.3d 282.)

We generally review the imposition of probation conditions for an abuse of discretion, and constitutional challenges to probation conditions de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723, 199 Cal.Rptr.3d 637 (Appleton)).
People v. Nachbar, supra.
The Court of Appeal then began its analysis of Nachbar’s challenge to the probation condition that required him to submit his computers and “recordable media” to “suspicionless searches” by law enforcement personnel.  People v. Nachbar, supra.   More precisely, it began by noting that Nachbar argued that the “the probation condition that requires him to submit his computers and recordable media to suspicionless searches is unconstitutionally overbroad.”  People v. Nachbar, supra.
The opinion goes on to explain that to
support his position, defendant cites the Sixth District Court of Appeal's recent decision in Appleton, supra, 245 Cal.App.4th 717, 199 Cal.Rptr.3d 637. The defendant in that case pleaded guilty to false imprisonment by means of deceit as part of a plea bargain after initially being charged with oral copulation with a minor, whom he had met via a social media smartphone application. (Id. at pp. 719–720, 199 Cal.Rptr.3d 637.) The defendant was placed on probation, one of the conditions of which provided that the defendant's electronic devices `shall be subject to forensic analysis search for material prohibited by law.’ (Id. at p. 721, 199 Cal.Rptr.3d 637.) The defendant appealed this condition on Lent and constitutional grounds. (Id. at pp. 721–722, 199 Cal.Rptr.3d 637.)

The Court of Appeal found the electronics-search condition did `not run afoul of the first Lent factor requiring ‘no relationship to the crime’ (Appleton, supra, 245 Cal.App.4th at p. 724, 199 Cal.Rptr.3d 637), but concluded the condition was unconstitutionally overbroad (id. at pp. 725–727, 199 Cal.Rptr.3d 637). The court reasoned the condition `would allow for searches of vast amounts of personal information unrelated to defendant's criminal conduct or his potential future criminality’ (id. at p. 727, 199 Cal.Rptr.3d 637), such as his `medical records, financial records, personal diaries, and intimate correspondence with family and friends’ (id. at p. 725, 199 Cal.Rptr.3d 637). In reaching this conclusion, the Appleton court relied on the Supreme Court's rationale in Riley v. California (2014) 134 S.Ct. 247 (Riley), which held that a warrantless search of a suspect's cell phone incident to arrest implicated and violated his Fourth Amendment rights. (Riley, at p. 2493.) The Supreme Court emphasized the wealth of information contained in modern cell phones. (Id. at pp. 2489–2490.) The Appleton court struck the probation condition and remanded for the trial court to fashion one more narrowly tailored. (Appleton, at pp. 728–729, 199 Cal.Rptr.3d 637.)
People v. Nachbar, supra.
The opinion went on to explain that,
[m]ore recently, in In re J.E. (2016) 1 Cal.App.5th 795, 205 Cal.Rptr.3d 28, our colleagues in the Court of Appeal for the First District, Division Four, concluded the Riley court's privacy concerns in the context of a search incident to arrest are inapposite in the context of determining the constitutional reasonableness of probation conditions allowing searches of electronic devices. (In re J.E., at pp. 803–804, 205 Cal.Rptr.3d 28.) As the In re J.E. court explained, unlike the defendant in Riley `who at the time of the search had not been convicted of a crime and was still protected by the presumption of innocence,’ a probationer does not enjoy  ‘“the absolute liberty to which every citizen is entitled.’” (In re J.E., at p. 804, 205 Cal.Rptr.3d 28.) That is, “ ‘Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.’ ” (Ibid. quoting United States v. Knights (2001) 534 U.S. 112, 119).

The court recognized that although electronics may be a `”bottomless pit”’ of personal information, `courts have historically allowed . . . probation officers significant access to other types of searches, including home searches, where a large amount of personal information—from medical prescriptions, banking information, and mortgage documents to love letters, photographs, or even a private note on the refrigerator—could presumably be found and read.’ (Id. at p. 804, fn. 6, 205 Cal.Rptr.3d 28.) The court noted the absence of evidence in the record indicating the probationer's electronics contained any of these types of sensitive information. (Ibid.) The court further noted that the Supreme Court in Riley clarified that although cell phone data is subject to Fourth Amendment protection, it is not `”immune from search.”’ (In re J.E., at p. 804, 205 Cal.Rptr.3d 28, quoting Riley, supra, 134 S.Ct. at p. 2493.) The In re J.E. court thus concluded that although the probationer's right to privacy was implicated by the electronics search condition, the right was not violated under the circumstances. (Id. at p. 805.)
People v. Nachbar, supra (emphases in the original).
The Court of Appeal therefore found the court’s decision in In re J.E.
persuasive. As a defendant who has pleaded guilty to a felony and accepted probation in lieu of additional punishment, defendant has a diminished expectation of privacy as compared to law-abiding citizens or those subject to searches incident to arrest. Thus, we conclude the privacy concerns voiced in Riley are inapposite in the context of evaluating the reasonableness of a probation condition.

We further conclude the probation condition is suitably tailored in light of the substantial protective and rehabilitative concerns demonstrated by the record. The condition is related to defendant's crime because he communicated with his victim via social media, sent her sexually explicit text messages, and intended to watch a movie with her on a mobile device on the date of the offense.5 Defendant reoffended with a younger victim within a matter of mere months, while already on probation. His psychological evaluation revealed he is sexually attracted to adolescents and `has some emotional difficulties and anxieties regarding interpersonal relationships that place him at a higher risk for engaging in sexual acts with younger persons.’ And the probation officer reported defendant had a moderate to high risk of reoffending if released on probation, and his chances of success would likely improve if he were `intensive[ly] monitor[ed].’ Under these circumstances, we conclude the probation condition allowing searches of defendant's computers and recordable media is reasonable.
People v. Nachbar, supra.
The Court of Appeal therefore affirmed the judgment of the lower court. People v. Nachbar, supra.


Friday, October 21, 2016

“Possession of Unauthorized Access Devices,” Aiding and Abetting and the “Search”

This post examines a recent opinion from the U.S. Court of Appeals for the 5th Circuit:  U.S. v. Turner, 2016 WL 5947247 (2016). As courts usually do, the court begins by explaining how, and why, the prosecution arose:
Courtland Turner was riding in a car driven by Roderick Henderson that was pulled over for lacking a visible license plate light. Henderson failed to show the officer a valid driver's license, providing him instead with a Texas identification card. Turner likewise provided the officer with an identification card.

The officer retreated to his patrol car to conduct a records check and verify Turner's and Henderson's identities. In doing so, he discovered that Turner had an active arrest warrant for possession of marijuana. As a result, the officer asked Turner to exit the vehicle; he complied. As Turner exited the vehicle, the officer observed an opaque plastic bag partially protruding from the front passenger seat. It appeared to the officer that someone attempted to conceal the bag by pushing it under the seat.

After placing Turner in the patrol car while dispatch confirmed the warrant, the officer asked Henderson what was inside the bag. Henderson handed the officer the bag and said that `we’—apparently referring to Turner and himself—purchased gift cards. The officer opened the bag and saw approximately 100 gift cards. He then asked Henderson whether he had any receipts for the gift cards. Henderson responded that he did not and that `we’ bought the gift cards from another individual who sells them to make money.

After conferring with other officers about past experiences with stolen gift cards, the officer seized the gift cards as evidence of suspected criminal activity. Henderson was ticketed for failing to display a driver's license and signed an inventory sheet that had an entry for 143 gift cards. Turner was arrested pursuant to his warrant.

The officer, without obtaining a search warrant, swiped the gift cards with his in-car computer. Unable to make use of the information shown, the officer turned the gift cards over to the Secret Service. A subsequent scan of the gift cards revealed that at least forty-three were altered, meaning the numbers encoded in the card did not match the numbers printed on the card. The investigating officer also contacted the stores where the gift cards were purchased—a grocery store and a Walmart in Bryan, Texas. The stores provided photos of Henderson and Turner purchasing gift cards.
U.S. v. Turner, supra.
The opinion goes on to explain that
Turner was charged with aiding and abetting the possession of unauthorized access devices. He moved to suppress evidence of the gift cards, challenging both the roadside seizure of the cards and the subsequent examination of the magnetic stripes. The district court denied Turner's motion, finding that, although Turner had standing to seek suppression, there was no constitutional violation because (1) Henderson provided consent for the seizure of the gift cards and (2) the later examination of the cards did not constitute a search. Turner entered a conditional guilty plea, reserving his right to appeal the suppression ruling.
 U.S. v. Turner, supra.
The Court of Appeals prefaced its analysis of the issues in the appeal by explaining that
`When examining a district court's ruling on a motion to suppress, we review questions of law de novo and factual findings for clear error.’ U.S. v. Hearn, 563 F.3d 95, 101 (5th Circuit  2009). We view the evidence in the light most favorable to the prevailing party, U.S. v. Hernandez, 279 F.3d 302, 306 (5th Cir. 2002), and may `affirm the district court's ruling ... based on any rationale supported by the record.’ United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005).
As the party seeking suppression, Turner `has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights.’ U.S. v. Smith, 978 F.2d 171, 176 (5th Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 133–34 (1978)). That burden includes establishing standing to contest the evidence, U.S. v. Iraheta, 764 F.3d 455, 460–61 (5th Cir. 2014), and showing that the challenged government conduct constitutes a Fourth Amendment search or seizure. U.S. v. Smith, supra.
U.S. v. Turner, supra.
The Court of Appeals then began its analysis of the issues in the case by explaining that
[w]e agree with the district court that Turner may challenge the seizure of the gift cards. He jointly possessed the cards with Henderson, and the bag containing them was found underneath where he was sitting. See U.S. v. Iraheta, supra (explaining that passengers of a vehicle have standing to challenge seizure of their luggage); U.S. v. Miller, 608 F.2d 1089, 1101 (5th Cir. 1979) (treating a plastic portfolio as personal luggage subject to Fourth Amendment search requirements).
Turner agrees that by handing the bag to the officer in response to his question about its contents, Henderson consented to the officer's initial seizure of, and look inside, the bag. But he disagrees with the district court's conclusion that Henderson's consent extended to the officer's taking permanent possession of the gift cards. We need not resolve this dispute over the scope of Henderson's consent, because we find another lawful basis for the seizure of the gift cards.
U.S. v. Turner, supra.
The opinion went on to explain that the
taking of physical items like gift cards is a seizure that requires either a warrant or some other justification that renders such an intrusion reasonable under the Fourth Amendment. See U.S. v. Paige, 136 F.3d 1012, 1022 (5th Cir. 1998). One situation in which a warrant may not be required occurs when police `seize evidence in plain view.’ Arizona v. Hicks, 480 U.S. 321, 326 (1987) (emphasis omitted) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971)). For a plain-view seizure to be lawful, the officer must have had lawful authority to be in the location from which he viewed the evidence, and the incriminating nature of the item must be `immediately apparent.’ Horton v. California, 496 U.S. 128, 136 (1990) (quoting Coolidge v. New Hampshire, supra). As the officer obviously had authority to be standing on the side of the road when he observed the gift cards (the lawful authority requirement typically arises when the police observe the item while inside a home), Turner contests only whether it was immediately apparent that the cards were instrumentalities of a crime.
U.S. v. Turner, supra.
The Court of Appeals then explained that the
`[t]he incriminating nature of an item is immediately apparent if the officers have probable cause to believe that the item is either evidence of a crime or contraband.’ U.S. v. Buchanan, 70 F.3d 818, 826 (5th Cir. 1996). To have probable cause, `it is not necessary that the officer know that the discovered res is contraband or evidence of a crime, but only that there be “a “practical, nontechnical” probability that incriminating evidence is involved.”’ U.S. v. Espinoza, 826 F.2d 317, 319 (5th Cir. 1987) (quoting Texas v. Brown, 460 U.S. 730, 742–43 (1983)). When reviewing probable cause determinations, we `consider the totality of the circumstances—including the officers' training and experience as well as their knowledge of the situation at hand.’ U.S. v. Buchanan, supra.
U.S. v. Turner, supra.
The Court of Appeals then began its analysis of the issue in this case, explaining that the
circumstances here were as follows: the plastic bag contained approximately 100 gift cards and appeared to have been concealed under the front passenger seat. Henderson admitted not having receipts for the gift cards and further stated that he and Turner purchased the gift cards from an individual who sells them for a profit. The officer, upon learning this, conferred with other officers who had experience with large numbers of gift cards being associated with drug dealing, fraud, and theft. We conclude that these facts support probable cause to believe the gift cards were contraband or evidence of a crime. See U.S. v. Watson, 273 F.3d 599, 602 (5th Cir. 2001) (describing probable cause as a `fair probability’ that a crime occurred, which is `more than a “bare suspicion” but less than a preponderance of the evidence’ (quoting U.S. v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999))).

Turner counters that a finding of probable cause is at odds with the officer's view that during the stop there was insufficient evidence to arrest Henderson for a gift card crime. This does not control our inquiry for a couple reasons. The existence of probable cause is an objective one that does not turn on the subjective beliefs of an officer. And even if the officer's view was a reasonable assessment of the evidence, he could seize the gift cards so long as there was probable cause to believe they were evidence of a crime, even if that crime could not yet be tied to a particular suspect.
U.S. v. Turner, supra.
The Court of Appeals then explained that
[h]aving concluded that the gift cards were lawfully seized, we must decide whether it was lawful for law enforcement to scan the magnetic stripes on the cards to see the information encoded therein.
U.S. v. Turner, supra.
The opinion then goes on to explain that
[o]nce seized, most items do not give rise to a separate Fourth Amendment search inquiry. Think of a firearm or a marijuana plant. The evidentiary value of those items is the object itself, so seizing them is all law enforcement needs to do. Some items, however, conceal other items. Even when law enforcement lawfully seizes a suitcase, for example, it still needs a warrant (or some other recognized justification) to open it. U.S. v. Place, 462 U.S. 696, 699–700 (1983). That is because, in addition to the Fourth Amendment possessory interest a person has in a suitcase, there is an additional Fourth Amendment privacy interest in its contents.
When it comes to technology that allows law enforcement to obtain information embedded in an item, it can be more difficult to determine whether there is a separate privacy interest located within an item that already enjoys constitutional protection from unlawful seizure. Such a privacy interest exists in the electronic contents of computers and cell phones. See Riley v. California, 134 S.Ct. 2473 (2014). Yet, other applications of technology that reveal information not visible to the naked eye—for example, using a special light to detect ultraviolet ink on currency or examining the metadata located within an electronic image already in the lawful possession of the government—have not been thought to constitute a search. See U.S. v. Post, 997 F. Supp.2d 602, 606 (S.D. Tex. 2014); U.S. v. Medina, 2009 WL 3669636, at *10 (U.S. District Court for the Southern District of Florida Oct. 24, 2009), report and recommendation adopted in part, rejected in part sub nom. United States v. Duarte, No. 09–20717–CR, 2009 WL 3669537 (S.D. Fla. Nov. 4, 2009). What about the information encoded in the magnetic stripe on the back of gift cards?
U.S. v. Turner, supra.
The court went on to explain that a
Fourth Amendment privacy interest is infringed when the government physically intrudes on a constitutionally protected area or when the government violates a person's `reasonable expectation of privacy.’ U.S.v. Jones, 132 S.Ct. 945, 949–50, (2012). Although technology can sometimes involve the former, see id. at 949 (finding that placement of a GPS tracking device on a car amounted to an unlawful trespass), it more often involves the latter. Indeed, the “reasonable expectation of privacy” approach arose from wiretapping. See Katz v. U.S., 389 U.S. 347 (1967).
U.S. v. Turner, supra.
Turner argues that scanning the gift cards amounted to a search under the `reasonable expectation of privacy’ inquiry. That requires `first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.”’ Katz v. U.S., supra (Harlan, J., concurring). The reasonableness of an expectation of privacy turns on our `societal understanding’ about what deserves `protection from government invasion.’ 978 F.2d at 177 (quoting Oliverv. U.S., 466 U.S. 170, 178 (1984)). Analogizing to the cell phones the Supreme Court discussed in Riley, Turner contends that society recognizes as reasonable an expectation of privacy in a gift card's magnetic stripe because it is an electronic storage device that contains personal information.
U.S. v. Turner, supra. 
At this point, it is helpful to describe the electronic information encoded in the typical gift card. The record lacks much detail about this, a deficiency that hurts Turner as he bears the burden of establishing a privacy interest. Useful information can be found, however, in other cases addressing whether scanning credit or gift cards amounts to a search. One such court has explained that the typical magnetic stripe has `three data strips which hold only 79 alphanumeric characters, 40 numeric characters, and 107 numeric characters, respectively.’ See U.S. v. Bah, 794 F.3d 617, 633 (U.S. Court of Appeals for the 6th Circuit Court of Appeals 2015). For credit cards, most of which have more information than a gift card, that limited space usually contains the `account number, a bank identification number, the card's expiration date, a three digit “CSC” code, and, at times, the cardholder's first and last name.’ U.S. v. Bah, supra. Of course, it is the issuing institution, not card users, that initially codes and stores this information on the magnetic stripe. See U.S. v. Alabi, 943 F.Supp.2d 1201, 1279 (U.S. District Court for the District of New Mexico 2013). Users do have the ability to re-encode the cards, but need an uncommon device to do so. See U.S. v. Alabi, supra. The time and expense it takes to purchase and use a re-encoding device to change at most a few lines of characters means it will rarely be worth doing for a lawful purpose. U.S. v. Alabi, supra; U.S. v. Bah, supra. U.S. v. DE L'Isle, 825 F.3d 426, 432–33 (U.S. Court of Appeals for the 8th Circuit 2016). The incentive to re-encode exists, however, when a fraudster changes the account number encoded in a gift card to match one with a higher balance than the card he purchased or counterfeited. See U.S. v. Alabi, supra.
U.S. v. Turner, supra.
The Court of Appeals explained that a
number of these features lead us to conclude that there is no reasonable expectation of privacy in the magnetic stripe of a gift card. For starters, the few lines of characters encoded in a gift card are infinitesimally smaller than the `immense storage capacity’ of cell phones or computers. Riley v. California, supra. The Supreme Court described that capacity as `[o]ne of the most notable distinguishing features of modern cell phones’ that had `several interrelated consequences for privacy,’ including that `a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record.’ Riley v. California, supra.  
Even more important is that the vast gulf in storage capacity between gift cards and cell phones reflects their different purposes. A primary purpose of modern cell phones, and certainly of computers, is to store personal information. See Riley v. California, supra.  The purpose of a gift card is to buy something. See See U.S. v. Alabi, supra. The issuer of a gift card places the information on it, which can only be altered using a device that few Americans know about and even fewer own. As one court has put it, `[r]ather than using credit and debit cards to manipulate and store the data contained in the cards' magnetic strips, individuals and society put to use the magnetic strips by using the data that the issuer encoded on them . . . to facilitate a financial transaction and purchase goods and services.’ See U.S. v. Alabi, supra. . . .
U.S. v. Turner, supra.
The opinion concludes with these observations:
The technology of today will not, however, be the technology of tomorrow. The Supreme Court has noted the need to take account of rapidly evolving capabilities when applying the Fourth Amendment to other Information Age technologies. See Kyllo v. U.S., 533 U.S. 27, 33–34 (2001) (“`t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.... The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy’). . . .
As other courts deciding this issue have, we thus limit our holding to the gift cards of today, which are not intended to be used for—and rarely are used for—storing information entered by the user. See U.S. v. Bah, supra (`Our holding today is limited in scope ... we do not address hypothetical magnetic strips of the future that may have greater storage capacity and tend to store more private information’). . . . And even with the gift cards of today, law enforcement can view the encoded information only after coming into lawful possession of the cards.
U.S. v. Turner, supra.

The Court of Appeals therefore affirmed the U.S. District Court Judge’s denial of Turner’s motion to suppress. U.S. v. Turner, supra.