Monday, October 05, 2015

Robberies, Probation and Passwords

On September 21, 2014, despite the fact he was on probation, seventeen-year-old Malik J. collaborated with “one or two companions” to assault and rob “three different women near the MacArthur Street BART station” in Alameda County California.  In re Malik J., 2015 WL 5698460 (California Court of Appeals – First District 2015).  The probation conditions imposed on Malik J. when he was adjudicated delinquent in 2012 required, among other things, that Malik “`submit person and any vehicle, room or property under your control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.’” In re Malik J., supra.
When the crimes, and Malik J.’s involvement in them, came to light, the
Alameda County District Attorney filed a notice of probation violation alleging that Malik committed three robberies and possessed eight baggies of marijuana. At the dispositional hearing, Malik admitted the probation violations. The court ordered him detained at juvenile hall pending out of home placement and continued all previously ordered terms and conditions of probation, `[i]ncluding the search clauses.’
In re Malik J., supra.
At that point, the prosecutor
interjected that Malik had been working with two other individuals, which `would indicate electronic devices might be used to coordinate with other people, and one of these robberies involved an iPhone, which means electronic devices on his person might be stolen.’ In response, over a defense objection, the court added additional probation conditions that required Malik and possibly his family to provide all passwords and submit to searches of electronic devices and social media sites.

`So you're to—and the family—is to provide all passwords to any electronic devices including cell phonescomputers and notepads within your custody and control, and submit to search of devices at any time to any peace officer. And also provide any passwords to any social media sites, including [F]acebook, Instagram, and submit those [s]ites to any peace officer with or without a warrant.’

The signed minute order states this probation condition somewhat differently, omitting the references to Malik's family and social media sites. It states: `Minor is ordered to provide all passwords to any electronic devices, including cell phonescomputers or [notepads], within your custody or control, and submit such devices to search at any time without a warrant by any peace officer.’
In re Malik J., supra.  Malik J. appealed the order.  In re Malik J., supra.
The Court of Appeals began its analysis of Malik J.’s appeal by explaining that
Welfare and Institutions Code section730 authorizes the juvenile court to `impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.’ (Welfare & Institutions Code, § 730, subd. (b).) In planning conditions of probation, the juvenile court must consider the minor's entire social history, in addition to the circumstances of the offense. (In re Todd L. (1980) 113 Cal.App.3d 14 (Todd L.).)

The juvenile court has broad discretion to formulate probation conditions. . . . Because juvenile probation conditions are imposed on the minor to ensure his rehabilitation, `[a] condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.’ (Todd L., supraIn re Frankie J. (California Court of Appeals1988) 198 Cal.App.3d 1149). Indeed, a juvenile court may impose a condition of probation that would be unconstitutional in an adult context, `so long as it is tailored to specifically meet the needs of the juvenile.’ (In re Josh W. (1997) 55 Cal.App.4th 1, 5.)  `This is because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may ‘curtail a child's exercise of the constitutional rights . . .  [because a] parent's own constitutionally protected “liberty” includes the right to “bring up children” [citation] and to “direct the upbringing and education of children.’[. . . (In re Antonio R. (2000) 78 Cal. App. 4th 937)

But the juvenile court's discretion is not unlimited. A probation condition is invalid if 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. Lent (1975) 15 Cal.3d 481 (Lent).) In addition, a juvenile court may not adopt probation conditions that are constitutionally vague or overbroad. (In re Sheena K. (2007) 40 Cal.4th 875, 889–891 (Sheena K.); In re Victor L. (2010) 182 Cal.App.4th 902, 910(Victor L.).)

While we generally review the court's imposition of a probation condition for abuse of discretion, we review constitutional challenges to probation conditions de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) In an appropriate case, a probation condition that is not sufficiently precise or narrowly drawn may be modified in this court and affirmed as modified. (See, e.g., Sheena K., supra, 40 Cal.4th at p. 892; People v. Lopez (1998) 66 Cal.App.4th 615, 629.)
In re Malik J., supra.
The court then took up Malik J.’s challenge to the imposition of the electronics probation condition, explaining that Malik J. claimed that the electronics condition failed under the court’s decision in People v. Lent, supra:
[T]he electronics condition fails under Lent because it bears no reasonable relationship to his criminality, and restricts his constitutional rights of privacy and freedom of expression without being narrowly tailored. The People maintain the condition is justified by Malik's history of robbing people of their cell phones and his claim that he does not himself own a cell phone. `[I]t is manifestly reasonable to impose the probation search condition so that, if [Malik] were found in possession of a cell phone, a probation or police officer could check the phone to determine whether it had been stolen.’

True, as far as it goes. But the electronics search condition goes considerably farther than permitting police to search a cell phone to determine whether Malik is the owner. It also requires him to turn over his passwords to, and authorizes unfettered searches of, all of his electronic devices and all of his social media accounts. As Malik observes, identifying whether an electronic device is stolen has no relationship to accessing the content of his social media accounts.
In re Malik J., supra.
The court went on to explain that under the
overbreadth doctrine, `conditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.’ (Victor L., supra, 182 Cal.App.4th at p. 910; Sheena K., supra, 40 Cal.4th at p. 890.) The mismatch here is of concern, because the threat of unfettered searches of Malik's electronic communications significantly encroaches on his and potentially third parties' constitutional rights of privacy and free speech.

`Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life[.]” . . . The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.’ (Riley v. California(2014) [134 S.Ct. 2473, 2494–2495]. . . In view of these significant privacy implications, the electronics search condition must be modified to omit the requirement that Malik turn over passwords to social media sites and to restrict searches to those electronic devices found in his custody and control.
In re Malik J., supra.
The Court of Appeals also noted, however, that
this does not mean that officers would have the unfettered right to retrieve any information accessible from any phone or computer in Malik's possession. The probation condition allowing officers to search property in Malik's control is nominally broad enough to allow the search of electronic devices. Such a condition allows warrantless searches of a probationer's property so long as they are not arbitrary, capricious or harassing. (In re Jaime P., supra, 40 Cal.4th at p. 136.) While a search condition diminishes a juvenile probationer's reasonable expectation of privacy, it does not entirely preclude it. . . . As is evident here, the ubiquitous advent of cell phones and their capacity both to store and to remotely access vast quantities of personal information (see Riley v. California, supra) require us to consider the extent to which an officer may search such devices pursuant to a probation search condition without violating the probationer's diminished privacy interests.

As observed in Riley, `it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. . . . Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.’ Riley v. California, supra. The exact measure of a probationer's expectation of privacy in the context of electronic devices is further complicated by the fact that `the data a user views on many modern cell phones [and other devices] may not in fact be stored on the device itself.’ Riley v. California, supra.  Information stored in a remote location cannot be considered in the probationer's possession nor entirely within his or her control.
In re Malik J., supra.
The court went on to explain that
[r]emotely stored information may also implicate the privacy interests of third parties who are not otherwise subject to search or court supervision. This remains true even if the information is posted to a social networking website or a large group of people. There are hundreds of social networking websites, but all essentially have the same characteristics. They allow users to create their unique personal profile, and establish their own network of friends or join existing groups with common interests. Although a user's personal profile is potentially viewable by anyone, the websites have privacy features that allow users to set limits on who may access their information and what information may be shared generally.

Some websites default their settings to allow broad public access, while others default to more private access. (Abilmouna, Social Networking Sites: What An Entangled Web We Weave (2012) 39 W. St. U. L.Rev. 99). In recognition that users of electronic media have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility, congress passed the Stored Communications Act (18 U.S. Code § 2701 et seq.). User information stored by social networking sites is protected by the act, and several courts have recognized that users have a reasonable Fourth Amendment expectation of privacy in electronic communications, and that a warrant based upon probable cause may be required to obtain their content. (Facebook v. Superior Court (2015) [2015 WL 5244640, 6, 7].)
In re Malik J., supra.
The Court of Appeals then returned to Malik J. and the arguments he made:
These principles usefully inform the application of a search clause to electronic devices within a probationer's control or possession. Officers must be able to determine ownership of any devices in a probationer's custody or within his or her control, and search them if they belong to the probationer or if officers have a good faith belief that he or she is a permissive user. But in performing such searches, officers must show due regard for information that may be beyond a probationer's custody or control or implicate the privacy rights of the probationer or third parties.

Officers should not be allowed to conduct a forensic examination of the device utilizing specialized equipment that would allow them to retrieve deleted information that is not readily accessible to users of the device without such equipment. They should also first disable the device from any internet or cellular connection. These measures will limit a search to information that is stored on the device and accessible to the probationer, and thus in the probationer's possession and subject to his or her control.
In re Malik J., supra.
The court, though, went on to explain that
we reject Malik's contention that it is unreasonable even to require him to provide passwords for electronics found in his custody and control because officers can identify a phone's legal owner by using identifying numbers and codes found on the devices. `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.’ (In re E.O. (2010) 188 Cal.App.4th 1149.) That officers could potentially determine whether a phone or computer has been stolen without obtaining the password does not make it an abuse of discretion to require Malik to provide it for that limited purpose.

We also reject Malik's claim that the electronics search condition is unconstitutionally vague because the phrase `any electronic devices’ could be interpreted to encompass Kindles, Playstations, and iPods, or the codes to his car, home security system, or ATM card. `A restriction is unconstitutionally vague if it is not “`”sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.”’” . . . A restriction failing this test does not give adequate notice—‘fair warning’—of the conduct proscribed. . . .(In re E.O., supra, 188 Cal.App.4th at p. 1153.)

`”In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that “abstract legal commands must be applied in a specific context,” and that, although not admitting of “mathematical certainty,” the language used must have “‘reasonable specificity.’” ‘ . . . . (In re Shaun R., supra, 188 Cal.App.4th at p. 1144.) Here, the court imposed the electronics search condition in response to concerns that Malik might use cell phones to coordinate with other offenders, and that he had previously robbed people of their iPhones. The court listed cell phonescomputers and notepads as examples of the devices subject to search.

We think it was reasonably clear that the condition applies to similar electronic devices within Malik's custody and control that might be stolen property, and not, as Malik conjectures, to authorize a search of his Kindle to see what books he is reading or require him to turn over his ATM password. `[C]onditions [of probation] need not be spelled out in great detail in court as long as defendant knows what they are[.]’ (In re Frankie J., supra, 198 Cal.App.3d 1149 at p. 1155.)
In re Malik J., supra.
In the next, relatively brief section of the opinion, the Court of Appeals agreed with Malik J. that the
extension of the electronics and social media search condition to his family violates his family's Fourth Amendment and due process rights because the juvenile court had no jurisdiction over Malik's family members; his family had no notice that they were being stripped of their Fourth amendment protections; and it was fundamentally unfair to Malik because his family members could refuse to abide by it. If that was the court's intent, we agree. Only Malik was adjudicated to be in violation of the law. It goes without saying that only Malik was being placed on probation and, therefore, could be directly subjected to the conditions of probation.
In re Malik J., supra.
The Court of Appeals therefore ordered that the electronics condition in J. Malik’s probation be modified to
omit reference to Malik's family and passwords to social media sites, and to authorize warrantless searches of electronic devices in Malik's custody and control only after the device has been disabled from any internet or cellular connection and without utilizing specialized equipment designed to retrieve deleted information that is not readily accessible to users of the device. As so modified, the judgment is affirmed.
In re Malik J., supra.

Friday, October 02, 2015

The Sealed Search Warrant, “Particularity” and a Search Protocol

This post examines an opinion recently issued by a U.S. District Court Judge who sits in the District Court for the District Court of Utah:  U.S. v. Vafeades, 2015 WL 5675279 (2015).  According to the court’s docket, Timothy Jay Vafeades was indicted on federal charges on March 26 of 2014.  U.S. v. Vafeades, supra. I cannot find the indictment online, but a Huffington Post story on the case says the charges “against him include kidnapping, transportation for illegal sexual activity and possession of child pornography, and they could bring a life sentence if he is convicted.”  
If you would like to read more about the facts in this very bizarre case, you can check out the news stories you can find here, here, and here. You might want to check them out -- they put the charges into context. 
The District Court Judge begins his opinion by explaining that Vafeades moved to
suppress evidence obtained from a search warrant executed on electronic devices seized from him following his arrest on November 26, 2013. The United States filed its opposition on June 5, 2015. As directed, both parties submitted their positions in the form of draft orders. Vafeades contends that the search warrant lacks particularity, and therefore, authorized an overly broad search of his electronic devices. Vafeades also argues that the search warrant failed to sufficiently specify or restrict the search of his electronic devices. But Vafeades provides no briefed challenge to the affidavit, application or the actual search procedure used.
U.S. v. Vafeades, supra. Vafeades’ motion was made under the Fourth Amendment, which outlaws “unreasonable” searches and seizures. U.S. v. Vafeades, supra.
The judge went on to explain that
Minnesota State Patrol troopers arrested Vafeades on November 26, 2013, at the Red River Weigh Station in Moorehead, Minnesota. After his arrest, an Apple iPhone, an Apple Mac Book Pro, and five external hard drives were seized from Vafeades. On February 24, 2014, FBI Special Agent Daniel P. Horan submitted a sealed and sworn application and affidavit for a search warrant, and a search warrant and two attachments to Magistrate Judge Dustin Pead. Magistrate Judge Pead issued the sealed search warrant and its attachments the same day.

Based on the facts set forth in his affidavit, SA Horan stated that there was probable cause to believe evidence of five federal crimes—transportation, possession, receipt or distribution of child pornography; kidnapping; and transportation for illegal sexual activity—would be found on Vafeades's electronic devices. Attachment A to the search warrant lists the electronic devices referenced above as the items to be searched, along with the devices' serial numbers, and notes that the electronic devices were in the possession of the Clay County Sheriff's Office in Moorehead, Minnesota. Attachment B lists the items to be seized and in most paragraphs includes references to definitions related to child pornography; references to the federal statutes for kidnapping and for transportation for illegal sexual activity are found in paragraph 2 of Attachment B.
U.S. v. Vafeades, supra.  If you would like to see an application for a federal search warrant with Attachments, you can find one here.  
The judge goes on to explain what happened next:
SA Horan submitted the electronic devices to the Intermountain West Regional Computer Forensics Laboratory (IWRCFL) on March 5, 2014, along with the IWRCFL's service request form. SA Horan attached the search warrant and his affidavit to the IWRCFL service request form. In the explanation portion of the service request form, SA Horan wrote: `Please image and search for child porn and evidence of kidnapping. I will help review to find evidence.’ The search warrant was executed on March 5, 2014, at the IWRCFL. A search of Vafeades's cell phone revealed text messages between Vafeades and Victim A, and photographs of Victim A and Victim B. A search of Vafeades's computer and hard drives revealed hundreds of images and videos of possible child pornography, as well as additional photos of the victims in this case.
U.S. v. Vafeades, supra. 
The judge then began his analysis of Vafeades’ motion to suppress, explaining that the
Fourth Amendment ensures `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures’ and that `no [w]arrants shall issue but upon probable cause . . . and particularly describing the place to be searched, and the persons or things to be seized.’ Warrants that contain no limitation, for example, warrants authorizing the search of all information and data, or all electronic devices, have been held invalid. However, `warrants may pass the particularity test if they limit their scope either ‘to evidence of specific federal crimes or [to] specific types of material.’

As the Tenth Circuit has noted, `efforts to apply the Fourth Amendment's particularity requirement to computer searches are still relatively new.’ Thus, the vast array of items that can be stored on personal computers `makes the particularity requirement that much more important.’  While the particularity requirement applies equally to searches of electronic devices such as computers and cell phones, the requirement has never `been understood to demand a warrant of technical precision or elaborate detail, but only practical limitations affording reasonable specificity.’

`While officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant, a computer search may be as extensive as reasonably required to locate the items described in the warrant based on probable cause.’  Because of the vast array of one's personal information stored in computers, `warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material.’
U.S. v. Vafeades, supra. 
The District Court Judge then began his analysis of Vafeades’ first argument, which was that “the search warrant is invalid because it authorized a limitless search of his electronic devices.” U.S. v. Vafeades, supra.  He found that argument to be “without merit”. U.S. v. Vafeades, supra.  The judge went on to explain that Vafeades contends
the warrant is not valid because it does not identify the statutory provisions he violated. While the warrant itself does not list the statutes, the warrant refers to the application for the warrant, which on its face lists three violations of the United States Code: 18 U.S. Code § 1201(a)(1), Kidnapping; 18U.S. Code § 2421, Transportation for Unlawful Sexual Activity; and 18 U.S.Code § 2252, Child Pornography. The Application incorporates by reference the Affidavit which contains the statutory provisions for which evidence is sought. The Warrant refers to Attachment B, which lists evidence to be seized and includes several references to the specific crimes under investigation and definitions under the child pornography statutes. Investigators had ample information as to what the search warrant permitted them to seize.
U.S. v. Vafeades, supra. 
The judge then explains that, in order to
support his argument, Vafeades cites U.S. v. Cassady, 567 F.3d 628 (U.S. Court of Appeals for the 10th Circuit 2009), and Mink v. Knox, 613 F.3d 995 (U.S. Courtof Appeals for the 10th Circuit 2010), alleging that the warrant here endorses a `general search for evidence of crimes not specifically listed in the warrant.’ The facts in Cassady and Mink, however, differ significantly from this case.

In Cassady, a local sheriff challenged the district court's denial of qualified immunity from liability for his and his department's search for marijuana in a local farmer's home and his entire property. In affirming the district court's denial of qualified immunity, the Tenth Circuit examined the search warrant and accompanying affidavit for Cassady's property and held that the search warrant was invalid because, among other things, it authorized the search of his entire farm, including his home, the seizure of `[a]ny and all illegal contraband,’ and `all other evidence of criminal activity.’ In Mink, another case involving qualified immunity, the Tenth Circuit held the search warrant for the plaintiff's computer was overly broad because `there was no reference anywhere in the warrant to any particular crime.’

Unlike the search warrants in Cassady and Mink, the warrant in this case specifically listed particular crimes. The search warrant here does not authorize the `general rummaging’ the court criticized in Cassady. Instead, the attachments to the search warrant specify the electronic devices to be searched, along with their serial numbers if available. The search warrant and its attachments also specify the types of evidence to be seized, specifically, evidence related to child pornography and kidnapping. In twelve of the fifteen paragraphs listed in Attachment B `List of Items to Be Seized’ there is a specific reference to either child pornography or to kidnapping.
U.S. v. Vafeades, supra.  If you would like to read more about drafting search warrants, check out this site.
The judge then explained that Vafeades also took issue with
specific paragraphs in Attachment B to the search warrant, which lists the items to be seized. Vafeades argues that the statutory definitions referred to in paragraphs 3, 5, 8 through 10, and 12 through 14 are not a substitute for the actual statutory provisions he is alleged to have violated. His argument is incorrect. `[O]ur case law requires that “warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material.”’ The references to the specific statutory violations and the related definitions in paragraphs 3, 5, 8 through 10, and 12 through 14 provided sufficient guidance as to exactly what evidence the forensic examiner was permitted to seize. Similarly, although paragraphs 4, 7 and 11 do not cite a statutory violation and do not refer to a statutory definition, those paragraphs directed the forensic examiner to seize only evidence of minors engaged in sexually explicit conduct.

Vafeades contends that written depictions of child pornography referred to in paragraphs 12 through 14 cannot be criminalized, and therefore, render the search warrant invalid. It is correct that certain writings about child pornography, such as the advocacy of child pornography, cannot be criminalized. However, writings may be admissible to show a defendant knowingly possessed child pornography or to link a defendant to the computer on which child pornography was found.
U.S. v. Vafeades, supra. 
And he noted that Vafeades claimed
paragraphs 1 and 6 lack any particularity at all. As an initial matter, Vafeades's argument regarding paragraph 6 is moot because the United States did not find any evidence that falls under paragraph 6; that is, any records, documents, invoices or materials related to any accounts with an internet service provider or social networking website. Even if the United States found evidence responsive to paragraph 6, the lack of particularity in paragraph 6 does not render the entire search warrant invalid. Read in context, the structure of Attachment B suggests that paragraph 6 is subject to the same limitations as the paragraphs that reference either specific statutory violations or specific statutory definitions.

Paragraph 1 lists eleven items to be seized `[f]or any computer or storage medium whose seizure is otherwise authorized by this warrant and any computer or storage medium that contains or in which is stored records or information that is otherwise called for by this warrant.’ Thus, paragraph 1 directs the person seizing items from the electronic devices to only seize those items that the warrant explicitly authorizes in paragraphs 2 through 14.
U.S. v. Vafeades, supra. 
The  judge went on to note that Vafeades
acknowledges that paragraph 2 of Attachment B meets the Fourth Amendment's particularity requirement, but contends that paragraph 2 cannot be severed because paragraph 1, and paragraphs 3 through 14 lack sufficient particularity. It is not necessary to decide whether paragraph 2 can be severed from the warrant because Attachment B does not lack sufficient particularity. One paragraph refers specifically to statutory violations, seven paragraphs refer to statutory definitions relating to the child pornography statute, and three paragraphs refer to evidence of minors engaging in sexually explicit conduct. Even assuming for argument's sake that the warrant lacked sufficient particularity, it was not so overbroad that a reasonable officer would have known that the search warrant was illegal.
U.S. v. Vafeades, supra. 
Finally, the District Court Judge took up Vafeades’ argument that the search warrant was
invalid because the search warrant did not identify a valid search protocol. To support his request, Vafeades relies on two memoranda and orders from magistrate judges outside of this district who have required search protocols for electronic devices such as computers and cell phones. The U.S. Court of Appeals for the 10th] Circuit, however, does not and `has never required warrants to contain a particularized computer search strategy.’  Simply because a warrant does not contain a search protocol does not mean the `warrant is per se overbroad.’ While the 10th Circuit's `efforts to apply the Fourth Amendment's particularity requirement to computer searches are relatively new and [the court's] existing treatment is far from comprehensive,’ the court has suggested `that it is “unrealistic to expect a warrant to prospectively restrict the scope of a search by directory, filename or extension or to attempt to structure search methods—that process must remain dynamic,”’  as file or directory names may or may not alert one to illegal activity.

Vafeades has not made a sufficient argument that the search protocol here was deficient. Paragraph 15 of Attachment B to the search warrant explains various search procedures that SA Horan anticipated might be used.  Additionally, when SA Horan submitted Vafeades's electronic devices with the IWRCFL Service Request form, he also submitted the search warrant and his affidavit, and wrote in the explanation section that the forensic examiner was to look for evidence of child pornography and kidnapping.
U.S. v. Vafeades, supra. 
The judge concluded by explaining that
[o]ther than suggesting that the government should have returned to a magistrate judge with a `sophisticated technical explanation’ of the search, Vafeades fails to explain exactly what search protocol should have been used or `how protocols the government followed in this case were unreasonable or insufficiently particular.’ Without more guidance, it is not possible to `assess rationally [Vafeades's] challenge to the government's search procedures in this case.’ If the actual search procedures had been challenged, the IWRCFL Service Request form would likely be dispositive.
U.S. v. Vafeades, supra. 

He therefore denied Vafeades’ motion to suppress.  U.S. v. Vafeades, supra.  If you would like to read more about drafting search warrants, check out this article

Thursday, October 01, 2015

Rape, Juror Misconduct and Facebook Friends

This post examines a recent opinion from the Indiana Court of Appeals:  Slaybaugh v. State, 2015 WL 5612205 (2015).  The court begins by explaining that it was
to review a novel issue in Indiana -- whether a juror, who was apparently not asked about her Facebook usage or friendships, engaged in juror misconduct when she did not disclose during voir dire that a witness's relative was among her expansive list of Facebook friends.
Slaybaugh v. State, supra.  You can, if you are interested, read more about how Slaybaugh’s prosecution arose and how he came to be convicted in the news stories you can find here and here.
The Court of Appeals begins its analysis of Slaybaugh’s appeal by explaining that
Kastin E. Slaybaugh appeals his conviction, following a jury trial, for Class B felony rape. After trial, but before sentencing, Slaybaugh filed a motion for mistrial based on alleged juror misconduct. Specifically, Slaybaugh alleged that one of the jurors may have lied during voir dire about not knowing the victim, and he based his allegation on the fact that the victim's sister was one of the juror's Facebook friends. Upon the trial court's order, the parties conducted a deposition of the juror, who testified that she did not recognize the victim's name during voir dire, did not recognize her when she testified, and did not know the victim. The juror also testified that she had more than 1,000 Facebook friends and that she did not personally know all of her Facebook friends.

After holding a hearing and considering the juror's deposition as well as Facebook materials and affidavits submitted, the trial court determined that the juror was truthful in her assertion that she had no knowledge of the victim or her family and denied Slaybaugh's motion for mistrial.

On appeal, Slaybaugh challenges the trial court's denial of his post-trial motion for mistrial, claiming that the trial court erred by determining that the juror truthfully stated that she did not know the victim. Concluding that Slaybaugh failed to show that the juror engaged in misconduct (let alone gross  misconduct that likely harmed him) and that his challenge on appeal is nothing more than a request to reweigh the trial court's credibility determination, we affirm the trial court's denial of Slaybaugh's motion for mistrial.
Slaybaugh v. State, supra.  Slaybaugh was convicted of violating Indiana Code § 35–42–4–1(a).  Slaybaugh v. State, supra. 
The court then took up the issue Slaybaugh raised on appeal, i.e., “[w]hether the trial court abused its discretion by denying Slaybaugh's post-trial motion for mistrial based on alleged juror misconduct.”  Slaybaugh v. State, supra.  It began its analysis by explaining how the prosecution arose:
In January 2014, Slaybaugh was staying in the garage of his friend, Jenelle Bader. . . . On January 16, 2014, Slaybaugh and K.W. were hanging out in the garage. K.W. had known Slaybaugh for approximately seventeen years and had been childhood friends with his younger sister. During that evening, Slaybaugh and K.W. `drank vodka’ and `smoked some spice.’ . . . Bader later went into the garage and observed that K.W. was `[h]eavily’ intoxicated. . . . K.W. passed out, Bader left the garage, and Slaybaugh then had sex with K.W. When Bader returned to the garage approximately thirty minutes later, she found Slaybaugh, naked and sitting at the end of a sofa with a blanket around him. K.W. was unresponsive on the sofa with her pants off and her knees up by her shoulders. Bader then called the police.

The State charged Slaybaugh with Class B felony rape, specifically alleging that Slaybaugh had sexual intercourse with K.W. when she was `unaware that the sexual intercourse was occurring[.]’ . . . The trial court held a jury trial on August 26–27, 2014. During the trial, K.W. testified that she remembered drinking vodka and smoking spice with Slaybaugh, but she did not remember anything else until she woke up in the hospital. The jury found Slaybaugh guilty as charged, and the trial court entered judgment of conviction.
Slaybaugh v. State, supra. 
The court then explained how the issue Slaybaugh relied on in his appeal came to light:
The day after the trial and subsequent days thereafter, Slaybaugh's mother, Katina Slaybaugh emailed Slaybaugh's trial counsel, J. Michael Trueblood (`Trueblood’) and his investigator, Bill Tindblom. . . . In her emails, Katina expressed her concern that one of the jurors, Juror # 2767 or Juror K.A. (`the Juror’), may have lied during voir dire about not knowing the victim, K.W. Katina's allegation was based on a search of Slaybaugh's Facebook profile and his list of Facebook `friends.’ Specifically, Katina stated that the Juror was a Facebook friend of one of Slaybaugh's Facebook friends, Zach Anderson, whom she believed to be a step-sibling of K.W. Katina also alleged that the Juror was a Facebook friend of Stephani Anderson, who was a step-sibling of K.W. Katina also emailed screenshots from the Facebook profiles of the Juror, Zach, and Stephani. Tindblom responded to Katina and informed her that Attorney Trueblood would look into the information.

Thereafter, on September 4, 2014, Katina sent a letter to Amy Hutchinson (`Hutchinson’), who was Slaybaugh's defense counsel from another offense. In this letter, Katina complained about Attorney Trueblood's representation of Slaybaugh at trial, and she stated that she thought that the Juror was friends with or related to K.W.'s siblings and that the Juror had committed `possible perjury[ ]’ by claiming that she did not know K.W. . . . Katina also sent a copy of this letter to the trial judge presiding over Slaybaugh's rape case.
Slaybaugh v. State, supra. 
The next development came on September 15, 2015, when the trial judge entered an
order (`September 15 Order’), directing Hutchinson and Trueblood to review Katina's letter and file a response with the court within thirty days. On September 17, 2014, Trueblood responded to the trial court's September 15 Order. In his response, Trueblood stated that he had reviewed the emails and Facebook information that Katina had submitted to him and had `determined that there was insufficient credible information to raise an allegation of Juror Misconduct’ because the Juror `swore no knowledge’ of K.W. or any individual identified as a potential witness during voir dire. . . . He also pointed out that the Juror `did not indicate any knowledge’ of K.W. when she took the witness stand and testified at trial. . . . Attached to the response, Trueblood submitted copies of the emails between himself and Katina, the Facebook photographs, and information that she had emailed him.

Thereafter, on September 24, 2014, Slaybaugh, represented by Hutchinson, filed a Motion for a Mistrial Based on Juror Misconduct and to Set Aside the Verdict (`motion for mistrial’). In this motion, `Slaybaugh and his family . . . respectfully move[d] th[e] Court to review the issue of juror misconduct, to conduct a hearing, and to declare a mistrial and set aside the verdict and grant the defendant a new trial.’ . . . The crux of Slaybaugh's motion for mistrial was that the Juror had committed misconduct because she did not reveal during voir dire or at trial that she knew K.W. In support of his motion, Slaybaugh attached the following to his motion: (1) forty-seven pages of screenshots from the Facebook pages of K.W., the Juror, Zach, and Stephani; (2) affidavits from Slaybaugh, his mother, his sister, and a fellow inmate; and (3) a copy of Trueblood's response to the trial court's September 15 Order and the attachments to that response.
Slaybaugh v. State, supra. 
Then, on September 25, 2014, the trial judge who had the case held a hearing on
Slaybaugh's motion for mistrial. Thereafter, the trial court ordered the parties to conduct a deposition of the Juror. After the hearing, the trial court, on its own motion, found that Slaybaugh's motion for mistrial contained confidential information and sealed the relevant information. The trial court, however, did not seal the actual motion; submitted legal authority; affidavits from Slaybaugh's sister, mother, and fellow jail inmate; and Attorney Trueblood's response.

On October 8, 2014, Katina sent a letter to the trial court, stating that she was concerned because the Juror was in both Slaybaugh's `circle of friends’ and K.W.'s `circle of friends’ on Facebook. . . . Katina also wrote that she was concerned because her oldest daughter went to school with the Juror from kindergarten to 6th grade. . . .
Slaybaugh v. State, supra. 
The next development was that on October 9, 2014, the parties to the litigation
conducted a deposition of the Juror. During the deposition, the Juror testified that she had over 1,000 Facebook friends but that did not personally know all of these people. She testified that she was a realtor and that she had `friended’ most of her 1,000 plus Facebook friends for `networking’ purposes. . . . The Juror also testified that she did not know Stephani or Zach, but she acknowledged that she `could be’ friends with Stephani on Facebook. . . . Additionally, the Juror testified that she did not read all of the posts from her more than 1,000 Facebook friends and she used Facebook to post on her own profile and to `network’ and `post on [her] business page[.]’ . . . The Juror testified that she did not know K.W. before or during trial. She confirmed that she had told the trial court during voir dire that she did not know K.W.  She also testified that she did not know K.W. or recognize her when she testified at trial. Finally, the Juror, who went to Lafayette Jefferson High School, stated that she did not know Slaybaugh, who apparently was in a younger class at the high school, and that she had not heard about him.
Slaybaugh v. State, supra. 
Five days later, on October 14, the prosecution filed a response to Slaybaugh’s motion
for mistrial and attached a copy of the Juror's deposition. In its response, the State asserted that `the juror has adamantly stated she did not know the victim prior to the trial[ ] and does not know of any connection to her whatsoever[,]’ and `the juror has now sworn twice under oath that she has no knowledge of the victim in this case.’ . . . The State also argued that the trial court should deny Slaybaugh's motion because he had failed to meet his `burden of proving that jury misconduct occurred, that it was a gross violation, and that it probably harmed’ him. . . .

On October 16, 2014, the trial court held a second hearing on Slaybaugh's motion for mistrial. That same day, Slaybaugh filed a motion, requesting the trial court to consider Katina's October 8 letter and a deposition from Amanda Jasper (`Amanda’), who went to school with Slaybaugh and was a Facebook friend of Slaybaugh, K.W., K.W.'s siblings, and the Juror. In this deposition, Amanda testified that, before trial, she saw K.W. and her siblings made `very vague’ comments with `no detail about anything’ that `it was going to be a long road’ and that `they were going to make sure that what happened to her was taken care of.’. . . Amanda also testified that she read Facebook posts about a warrant for Slaybaugh when he was a fugitive and that he was going to trial. However, she did not see whether the Juror had ever commented on the posts.

Thereafter, the trial court denied Slaybaugh's motion for mistrial, finding that `the juror in question truthfully stated that she had no knowledge of the defendant, the victim or the family of either.’ . . .  Thereafter, the trial court sentenced Slaybaugh to fifteen years in the Department of Correction.
Slaybaugh v. State, supra. 
The Court of Appeals began its analysis of Slaybaugh’s appeal by explaining that he did not “challenge the sufficiency of the evidence supporting his conviction or the propriety of his sentence. Slaybaugh's sole issue is that the trial court abused its discretion by denying his post-trial motion for mistrial based on alleged juror misconduct.” Slaybaugh v. State, supra.  It went on to explain that, in this case, it was being
called upon to review an issue of first impression in Indiana—whether a juror, who was apparently not asked about her Facebook usage or friendships, engaged in juror misconduct when she did not disclose during voir dire that the victim's relative, who had a different last name than the victim, was among her expansive list of Facebook friends. Given the prevalence of Facebook and the sheer number of people who use it, it should come as no surprise that a juror's Facebook use would be at the heart of an appeal. While we have numerous cases—both criminal and civil—in which a person's Facebook use (including posts or comments made thereon) has been discussed in terms of an evidentiary issue or just comprising part of the underlying facts, we have not had the opportunity to review the issue at hand.
Slaybaugh v. State, supra.
The Court of Appeals, though, found guidance in a decision from the Kentucky Supreme Court:  Sluss v. Commonwealth, 381 S.W.3d 215 (2012).  Slaybaugh v. State, supra.
The issue in Sluss was whether two jurors, who were Facebook friends with the mother of the victim in that case, committed juror misconduct did not inform the trial judge that they were Facebook friends with her.  Slaybaugh v. State, supra.  Like the juror in this case, they told the trial judge they did not know the victim or her family. Slaybaugh v. State, supra.  The Kentucky Supreme Court analyzed the juror misconduct issue and found that
`friendships’ on Facebook and other similar social networking websites do not necessarily carry the same weight as true friendships or relationships in the community, which are generally the concern during voir dire. The degree of relationship between Facebook `friends’ varies greatly, from passing acquaintanceships and distant relatives to close friends and family. The mere status of being a `friend’ on Facebook does not reflect this nuance and fails to reveal where in the spectrum of acquaintanceship the relationship actually falls. Facebook allows only one binary choice between two individuals where they either are `friends’ or are not `friends,’ with no status in between.

Indeed, some people have thousands of Facebook `friends,’ as was the case with [the victim's mother], which suggests that many of those relationships are at most passing acquaintanceships. This is further complicated by the fact that a person can become `friends' with people to whom the person has no actual connection. . . . Thus, a Facebook member may be `friends’ with someone in a strictly artificial sense.
Sluss v. Commonwealth, supra.
The Court of Appeals therefore found that
[b]ecause the voir dire process was not transcribed, we do not know for certain if the parties or the trial court questioned the jurors about their Facebook or other social media relationships with any of the potential witnesses. It appears that they did not. The trial court's preliminary instructions, however, have been included in the record. These instructions reveal that the trial court instructed the jurors that if, at any time during the trial, they realized they knew something about the case or knew a witness or the defendant, then they were required to `inform the bailiff privately at [the juror's] earliest opportunity.’ . . . In regard to the use of social media sites, such as Facebook, the trial court instructed the jurors that they were not to talk to anyone about the case, including `posting information, text messaging, email, Internet chat rooms, blogs, or social websites.’ . . .

Here, Slaybaugh alleged that the Juror had engaged in juror misconduct because she did not reveal during voir dire or at trial that she knew the victim. Upon receiving Slaybaugh's motion containing this allegation, the trial court scheduled a hearing and ordered the parties to depose the Juror. The trial court reviewed all supporting documents attached to Slaybaugh's motion and the State's response and determined that the Juror `truthfully stated that she had no knowledge of the defendant, the victim or the family of either.’
Slaybaugh v. State, supra.  The court therefore “affirm[ed] the trial court's denial of Slaybaugh's motion for mistrial based on juror misconduct.” Slaybaugh v. State, supra.