Friday, November 21, 2014

PokerStars, Murder and Habeas Corpus

Richard Read “was convicted of murder, following a jury trial, and subsequently was sentenced to fifty years incarceration”, after which he appealed his conviction to the Appellate Court of Connecticut.  Read v. Commissioner of Correction, 2014 WL 5836756 (Appellate Court of Connecticut 2014).  That court affirmed his conviction.  Read v. Commissioner of Correction, supra.
Read then filed an action an action in the Superior Court of Connecticut – Judicial District of Tolland, in which he filed a “petition for a writ of habeas corpus claiming that his trial counsel was ineffective in representing him at his jury trial by failing to present certain expert testimony and as a result, he was prejudiced.”  Read v. Warden, 2013 WL 656893 2013). 
As Wikipedia explains, habeas corpus is a
legal action . . . by means of which detainees can seek relief from unlawful imprisonment. The . . . United States Constitution specifically included the English common law procedure in Article One, Section 9, clause 2, which demands that `The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.’
United States law affords persons the right to petition the federal courts for a writ of habeas corpus. 
Habeas corpus petitions are generally filed as pro se cases, and the government (state or federal) is usually ordered by the court to respond. Individual states also afford persons the ability to petition their own state court systems for habeas corpus pursuant to their respective constitutions and laws when held or sentenced by state authorities.
The Superior Court denied his petition and in this case Read is arguing that the court erred in doing so.  Read v. Commissioner of Correction, supra.
The Appellate Court began its analysis of Read’s appeal by explaining that the
murder of which [he] was convicted occurred on October 21, 2005, at approximately 11:45 p.m. At [Read’s] criminal trial, both the defense and the prosecution utilized computer experts.

Each expert had examined the petitioner's computer, but neither was able to determine whether [Read] had been playing online poker on the evening of the murder. Trial counsel's investigator did not contact PokerStars, the online website used by [him], and neither the defense expert nor the state's expert contacted the website. 
At the habeas trial, [Read] presented another computer expert, Monique Mattei–Ferraro, who testified that (1) she was able to contact PokerStars via e-mail; (2) PokerStars had activity logs going back to the time of the murder; and (3) PokerStars' records showed that [Read’s] username had been logged into the web-site between 4:43 p.m. and 10:07 p.m. on October 21, 2005, and again between 2:02 a.m. and 4:10 a.m. on October 22, 2005. Mattei–Ferraro also testified that, in her opinion, this information would have been available at the time of [Read’s] trial in 2007, but that she had not made this specific inquiry of PokerStars.
Read v. Commissioner of Correction, supra. 
The Superior Court denied Read’s petition for a writ of habeas corpus because it found that he “failed to prove that there was a reasonable probability that the presentation of additional evidence or experts from the poker site would have changed the outcome of the trial.”  Read v. Commissioner of Correction, supra. 
The Appellate Court began its analysis of that court’s decision by explaining that
`[under] the familiar two part test for ineffective assistance of counsel enunciated by the United States Supreme Court in Strickland [v. Washington, 466 U.S. 668 (1984)] . . .  the . . . Court determined that the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.’(Internal quotation marks omitted). Gonzalez v. Commissioner of Correction, 308 Conn. 463, 68 A.3d 624 (Appellate Court of Connecticut 2013). . . .

`The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ (Internal quotation marks omitted). Peruccio v. Commissioner of Correction, 107 Conn. App. 66, 943 A.2d 1148 (Appellate Court of Connecticut 2008). `A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Strickland v. Washington,  supra.
Read v. Commissioner of Correction, supra. 
In this appeal, Read argued that the Superior Court “should have concluded that his trial counsel was ineffective for failing to direct and to prepare his computer expert properly in order to obtain and to present evidence that [Read] was playing poker online on October 21, 2005, the date of the murder.”  Read v. Commissioner of Correction, supra.  

The Appellate Court did not agree. Read v. Commissioner of Correction, supra.  In a footnote following the comment about Read’s playing poker online on the date of the murder, the Appellate Court notes that
[m]ore specifically, [Read] argues that even though the evidence demonstrated only that he was online prior to and following the time of the murder, it would have shown that he was telling the truth when he told police he had been online that night and would have deprived the state of an opportunity to attack his credibility during closing argument.
Read v. Commissioner of Correction, supra. 
The Appellate Court then explained that the
evidence presented against [Read] at the criminal trial was strong. The state presented evidence in the criminal trial that [Read] had spoken to the victim on the night of the murder, [Read’s] DNA was present on a cigarette butt and a Jack Daniels bottle found near the victim's body, [he] had access to a gun that was the same caliber as the murder weapon, ammunition of the same caliber was found in a pillowcase belonging to [Read] in a shed where he admitted to having been that night, [his] story of where he had been the night of the murder had changed several times and was somewhat far-fetched, and [Read] had admitted to a fellow inmate that he had shot the victim over a disagreement concerning a poker game.

The evidence that [Read] claims his trial counsel should have discovered and introduced at trial was that [his] username was logged onto PokerStars between 4:43 p.m. and 10:07 p.m. on October 21, 2005, and again between 2:02 a.m. and 4:10 a.m. on October 22, 2005.

Trial counsel testified at the habeas trial that he had pursued a reasonable doubt defense and that, even if he had known of the `new’ evidence, he would not have presented that evidence to the jury:

`No, that wouldn't . . . have helped my case at all. . . .  [I]f the state had been aware of this evidence, I would have stayed away from the topic of his potentially being on [PokerStars] altogether because it was a short distance from [Read’s]] home to where the body was found, and being off the computer at 10:07 or whatever it was and by -- there's plenty of time to be off the computer and accomplish the shooting.'  
The evidence demonstrated that [Read’s] username was not logged on for several hours before and after the murder, and the jury reasonably could have thought that the evidence was inculpatory. The habeas court did not err in concluding that [Read] was not prejudiced by the failure of his trial counsel to discover and enter into evidence facts that were detrimental to [Read’s] case.
Read v. Commissioner of Correction, supra. 
In another footnote that went to Read’s claims as to where he was at the time the murder was committed, the Appellate Court explained that Read “at one point said that he was in the shed sorting fishing poles for several hours at the time of the murder.”  Read v. Commissioner of Correction, supra. 
You can, if you are interested, learn more about Read’s trial in the news story you can find here.

Wednesday, November 19, 2014

The Judge, the Email and "Conduct Unbecoming a Member of the Bar"

As you probably know, to become a lawyer in the United States, individuals must graduate from law school, then (in most states) pass a bar exam and be admitted to practice in that state by the state Supreme Court.  
If a lawyer who has done all of that wants to also be admitted to practice in federal court, he or she, as Wikipedia explains, must go through an additional process:
Admission to a state bar does not automatically entitle an individual to practice in federal courts, such as the United States district courts or United States court of appeals. In general, an attorney is admitted to the bar of these federal courts upon payment of a fee and taking an oath of admission. An attorney must apply to each district separately. For instance, a Texas attorney who practices in federal courts throughout the state would have to be admitted separately to the Northern District of Texas, the Eastern District, the Southern District, and the Western District. To handle a federal appeal, the attorney would also be required to be admitted separately to the Fifth Circuit Court of Appeals for general appeals
Rule 46 of the Federal Rules of Appellate Procedure outlines what an attorney who is admitted to practice in at least one state, must do to qualify to practice before a U.S. Court of Appeals, like the Fifth Circuit.  It also specifies what conduct will result in an attorney’s being suspended or disbarred from federal appellate practice or in his/her being disciplined for “conduct unbecoming a member of the bar.”  Federal Rule of Appellate Procedure 46(c).
This post examines a recent opinion from the U.S. Court of Appeals for the Federal Circuit, in which it is deciding whether to discipline an attorney admitted to practice before it.  In re Reines, 2014 WL 5649959 (2014).  The court begins by explaining that Edward R. Reines
is a member of the bar of this court, having been admitted to practice on October 1, 1993. At that time, he took an oath to `comport [himself] as an attorney and counselor of this court, uprightly and in accordance with the law. . . . [Reines] has appeared frequently before this court, and has served as the chair of the court's Advisory Council.

This matter had its genesis in oral argument held on March 4, 2014, in two companion cases: Promega Corp. v. Life Technologies Corp., 2013–1011 and Promega Corp. v. Applied Biosystems, LLC, 2013–1454. [Reines] represented the appellants in both cases on appeal, and presented the oral arguments.

The next day, on March 5, 2014, at 3:24 p.m. EST, then-Chief Judge Rader sent a private email to [Reines]. In the email, then-Chief Judge Rader, who was not a member of either panel, stated that judges on the Promega panels at a judges-only lunch had praised [Reines’] performance at the oral arguments. The email referred to a special friendship between Reines and then-Chief Judge Rader. In the email, then-Chief Judge Rader referred to Reines as `my friend’ and said, `[i]n sum, I was really proud to be your friend today!’ Then–Chief Judge Rader closed with `[y]our friend for life.’ The email also added an effusive endorsement by then-Chief Judge Rader himself and contained an invitation to share the email with others.

[Reines] then circulated the email to no fewer than 35 existing and prospective clients, with accompanying comments soliciting their business based on the email. The majority of the more than 70 individuals who received it were lawyers, but some were non-lawyers. Respondent told some recipients that this type of feedback was `unusual’ or `quite unusual.’ . . .
In re Reines, supra.
On June 5, 2014, the Court of Appeals
ordered that [Reines] show cause as to why his actions associated with the email did not warrant discipline by this court, inter alia, because they violated Rule 8.4(e) of the American Bar Association's Model Rules of Professional Conduct. The Show Cause order is included as Attachment B to this order. Model Rule 8.4(e) provides that it is professional misconduct for a lawyer to `state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.’ Model Rules of Prof'l Conduct R. 8.4(e) (2014).

Reines responded to the show cause order on July 7, 2014. [He] acknowledged forwarding the email to clients and potential clients. Reines argued, inter alia, that he did not imply any improper influence under Model Rule of Professional Conduct 8.4(e); according to Reines, he forwarded the email `because information about [his] skill at oral advocacy is an appropriate consideration in the selection of counsel.’ Decl. of Edward R. Reines ¶ 19. 
[He] also argued that ordering discipline would be unconstitutional under the 1st Amendment. Reines included statements of experts in legal ethics to support his arguments. Reines did not request a hearing in this matter pursuant to Federal Rule of Appellate Procedure 46(c). . . .  
In re Reines, supra.
The court then outlined the standards that governed its resolution of this matter:
It is initially important to review the source of the court's authority. Federal Rule of Appellate Procedure 46 provides that a member of the bar of a court of appeals is subject to suspension or disbarment if he or she `is guilty of conduct unbecoming a member of the court's bar.’ Fed.R.App.P. 46(b)(1)(B). Similarly, any attorney who practices before the court may be subject to discipline `for conduct unbecoming a member of the bar.’ Fed.R.App.P. 46(c). The Supreme Court has interpreted Rule 46 to `require[ ] members of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice.’ In re Snyder, 472 U.S. 634 (1985). This court and other circuits have imposed discipline under Federal Rule of Appellate Procedure 46.

In determining whether an attorney's conduct constitutes `conduct unbecoming a member of the bar’ under Rule 46, courts are to be guided `by case law, applicable court rules, and ‘the lore of the profession,’ as embodied in codes of professional conduct.’ In re Snyder, supra. These sources of guidance include the code of professional conduct promulgated by the attorney's home state bar. While state ethics rules `do[ ] not by [their] own terms apply to sanctions in the federal courts,” a federal court “is entitled to rely on the attorney's knowledge of the state code of professional conduct. . . .’ In re Snyder, supra.

Here, [Reines] is a member of the State Bar of California. We have also adopted Federal Circuit Attorney Discipline Rules, establishing procedures for attorney discipline, but not elaborating on the substantive standard for imposing discipline.  We conclude that with respect to the email dissemination we should look to the Model Rules of Professional Conduct rather than to the rules of any individual state. We note that other circuits have imposed discipline by referring to the Model Rules of Professional Conduct.  We think that Model Rule 8.4(e) sets forth the relevant standard.
In re Reines, supra.
The Court of Appeals went on to explain that it had to consider whether
disseminating the email violated Model Rule of Professional Conduct 8.4(e). Rule 8.4(e) states that `[i]t is professional misconduct for a lawyer to . . . state or imply an ability to influence improperly a government agency or official to achieve results by means that violate the Rules of Professional Conduct or other law.’ Model Rules of Prof'l Conduct R. 8.4(e) (2014 ed.). `A lawyer who suggests that he or another lawyer is able to influence a judge or other public official because of a personal relationship violates Rule 8.4(e).’ Lawyers' Manual on Prof'l Conduct (ABA/BNA), at 101:703 (Mar. 30, 2011).

[Reines] argues that the dissemination of the email was not improper because it did not suggest an improper influence but instead was an `unusually generous compliment from an unnamed jurist . . . about [his] skill at oral advocacy.’ . . . .
In re Reines, supra.
The court began its analysis of whether Reines was subject to discipline, noting that
[w]hile the dissemination of complimentary comments by a judge contained in a public document would not itself constitute a violation of Model Rule 8.4(e),  we conclude [Reines’] actions violated the rule. First, the email both explicitly describes and implies a special relationship between [him] and then-Chief Judge Rader. The text of the email describes a close friendship between the two. The email included the language, `[i]n sum, I was really proud to be your friend today,’ and closed with `[y]our friend for life.’

The very fact that the email was a private communication rather than a public document implies a special relationship, and then-Chief Judge Rader's sharing of internal court discussions (which would be ordinarily treated as confidential) about the lawyer's performance in a pending case implies an unusually close relationship between [Reines] and the then-Chief Judge. [Reines’] comments transmitting the email also convey a special relationship with then-Chief Judge Rader and the Federal Circuit. [He] described the email as `unusual’ or `quite unusual’ in some of his accompanying comments, . . . and referenced his `stature’ within the court and his role as chair of the Federal Circuit's Advisory Council. . . .

Second, recipients of the email also viewed it as suggesting the existence of a special relationship between [Reines] and then-Chief Judge Rader and perhaps other judges of the court. Several responses referred to the high opinion then-Chief Judge Rader and judges in general had for Reines. Other responses specifically referenced the friendship between [him] and then-Chief Judge Rader.

Third, the transmission of the email did more than suggest that [Reines] should be retained because of his superior advocacy skills. It suggested his special relationship with the court should be taken into account. [Reines] touted his role as chair of this court's Advisory Council, and stated that his `stature’ within the court had helped `flip’ a $52 million judgment in favor of his client and that he `would love to help [the recipient of his message] do the same.’ . . . Another lawyer in [his] firm in forwarding the email stated that [Reines] `knows the judges extremely well.’ . . . Albeit [Reins] noted that he did not approve of the communication, he took no steps to advise the recipient of his disapproval. . . .

Fourth, in sending the email to clients and prospective clients, [Reins] sought to directly influence their decisions about retaining counsel. He typically stated, `[a]s you continue to consider us for your Federal Circuit needs, I thought the below email from Chief Judge Rader might be helpful.’ . . . Prospective clients likewise stated that they would consider it in making retention decisions.

Finally, the email itself and [Reines’] comments accompanying the sending of the email suggested that Federal Circuit judges would look favorably on the retention of [him]. Then–Chief Judge Rader invited [Reins] to distribute the email to others. [Reines] suggested that clients should `listen[ ] to . . . the Federal Circuit judges[.]’ . . .  
In re Reines, supra.
The court then found that 
[i]t would blink reality not to view [Reines’] action as suggesting his retention because his special relationship would help to secure a favorable outcome at the Federal Circuit. Under these circumstances, forwarding the email to clients and potential clients `impl[ies] an ability to influence improperly a government agency or official to achieve results by means that violate the Rules of Professional Conduct or other law’ ”Model Rules of Prof'l Conduct R. 8.4(e) (2014).
In re Reines, supra.
It then took up the issue of discipline:
In determining the discipline to impose, we look to `the existence of any aggravating or mitigating factors.’ ModelRules for Lawyer Disciplinary Enforcement R. 10(C)(4). In this respect, we consider that [Reines] is generally well-regarded in the legal community and has rendered important service to this court as the chair of its Advisory Council and in other capacities. It appears that he has never previously been disciplined. [Reines] has recognized that `it was a mistake to distribute the Email, and [he] apologize[d] for having done so.’ Personal Statement of Edward E. Reines. The violation involved an implicit suggestion rather than an explicit statement of ability to influence. Then–Chief Judge Rader's invitation to share the message with others also mitigates the impropriety of [his] action though it does not excuse it.

We note, however, that we are troubled by certain statements by Reines seeking to minimize his relationship with then-Chief Judge Rader. Certain record facts suggest that the relationship was closer than Reines' submissions indicate, suggesting that Reines did not fully describe the nature and extent of the relationship. Finally, the fact that Reines circulated the email extensively and that it became a matter of general public knowledge warrants a public response by this court.

Under the circumstances, and considering all the relevant circumstances, we conclude that a public reprimand is the appropriate discipline.
In re Reines, supra.
The Court of Appeals ended its opinion by noting that
[i]n the course of considering the email matter discussed above, we considered another matter relating to Reines. This additional matter is separate from and does not directly involve the email matter discussed above. This matter concerns the exchange of items of value between Reines and then-Chief Judge Rader. On Reines' side, he provided a ticket for one concert, at another concert arranged for upgrading to a standing area near the stage, and arranged for backstage access for then-Chief Judge Rader at both.

Then–Chief Judge Rader paid for accommodations. This occurred while Reines had cases pending before this court. We do not decide whether Reines' actions violated standards of professional responsibility. We have decided to refer this separate matter and the underlying relevant documents to the California bar authorities for their consideration.

In the ordinary course, having concluded that a public reprimand is warranted, we would disclose the full record of proceedings. See Fed. Cir. Attorney Disc. R. 10(b). We are authorized, however, to maintain confidentiality of portions of the record. In referring this matter to the California bar authorities, we have determined to enter a protective order and place the filings relating to the matter under seal since this does not concern a matter as to which we have imposed discipline.

Federal Circuit Attorney Discipline Rule 10(b) allows for placing a `permanent protective order prohibiting the disclosure of any part of the record to protect the interest of a complainant, a witness, a third party or nonparty, or the attorney’ even after an order has issued. . . . . The California rules also provide for confidentiality during the period of investigation. Cal. Bus. & Prof.Code § 6086.1(b). We leave it to the California bar authorities whether and when such materials should be disclosed.
In re Reines, supra.

If you are interested, you can read more about the facts in this case, and the outcome, in the news stories you can find here and here.

Monday, November 17, 2014

The Laptop, the Best Buy Technician and the Child Pornography

After Maximilian Paul Gingrich was charged with “two counts of possessing child sexually abusive material, [Michigan Compiled Laws] 750.145c(4), and two counts of using computers to commit a crime, [Michigan Compiled Laws] 752.796”, he filed a motion to suppress certain evidence.  People v. Gingrich, 2014 WL 5783091 (Court of Appeals of Michigan 2014).  The trial judge granted Gingrich’s motion to suppress
evidence of child pornography . . .  found on [Gingrich’s] laptop computer following a warrantless search by police after being notified by Best Buy employees of suspicious file names the employees saw while performing repairs to the computer. The circuit court ruled that a search without both probable cause and a warrant is generally unreasonable unless a recognized exception to the warrant requirement applied, and that in this case, the search and seizure was not permissible under the exigent circumstances, consent, plain view, or inevitable discovery exceptions. 
People v. Gingrich, supra.  The prosecution appealed the judge’s ruling, which is what Court of Appeals reviewed in this opinion.  People v. Gingrich, supra. 
The Court of Appeals began its analysis of the issue in question by explaining the facts that supported the charges against Gingrich:
At the preliminary examination, Chad Vandepanne, a computer repair technician for Best Buy, testified that he received a work order to perform a `diagnostic repair with a backup’ on [Gingrich’s] computer. The requested work required Vandepanne to physically remove the computer's hard drive, backup all of the data on the computer, and then perform a full hardware/software diagnostic, repairing any problems that were discovered. A machine performing the backup would display computer file names but not permit the files to be opened, as Vandepanne testified that Best Buy's policy did not permit employees to open any customer computer files. 
During the backup of [Gingrich’s] computer, Vandepanne noticed files entitled, `12–year old Lolita’ and `12–year–old female virgin's pussy,’ which led him to suspect the files might be child pornography. After seeing the file names, Vandepanne informed his manager of what he saw. Kent County Sheriff's Deputy Gary Vickery arrived 15 minutes later and Vandepanne pointed out the suspicious file names while the backup . . . was still running. 
According to both Vandepanne and Vickery, when the backup process ended Vickery requested that Vandepanne open the suspicious files. To do so, Vandepanne had to remove the hard drive from the backup machine and attach it to a computer that would permit opening and browsing the suspect files. When he did this, the suspect files were opened and displayed pictures of pornography involving minors. Vickery requested and Vandepanne gave him the computer hard drive containing the suspected child pornography. Vickery also seized [Gingrich’s] computer, power supply, and nine software discs. Vickery admitted that a search warrant could have been, but was not, obtained before opening the suspicious computer files.
People v. Gingrich, supra. 
As noted above, Gingrich filed a pre-trial motion to suppress, and the judge held that the
warrantless search and seizure by the police violated [Gingrich’s] constitutional rights because no exception to the warrant requirement applied. Consequently, the exclusionary rule required that the items seized and observations made be excluded from evidence, along with the fruit of the illegal search. 
Because no other evidence beyond that which was suppressed supported the charges against [Gingrich], they were also dismissed. The circuit court subsequently ruled that the prosecution's motion for reconsideration was not timely, and therefore denied it.
People v. Gingrich, supra.  That ruling led to the prosecution’s appeal. People v. Gingrich, supra. 
The Court of Appeals began its analysis of the correctness of the trial judge’s ruling buy explaining that a search warrant is
only required if the government conducts a search of an object or area that is protected by the Fourth Amendment. See O'Connor v. Ortega, 480 U.S. 709 (1987). The 4th Amendment itself protects `[t]he right of the people to be secure in their persons, homes, papers, and effects, against unreasonable searches and seizures. . . .’ U.S. Const, Am IV. Under the plain terms of the Amendment, `[w]hen “the Government obtains information by physically intruding” on persons, houses, papers or effects, `a search within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’ Florida v. Jardines, 133 S.Ct. 1409 (2014), quoting in part U.S.v. Jones, 132 S.Ct. 945  (2012). . . . A `[t]respass alone does not qualify, but there must be conjoined with that . . . an attempt to find something or to obtain information.’ U.S. v. Jones, supra.
 In addition, the government needs a warrant (assuming no exception applies) before searching something in which the person has a reasonable expectation of privacy. Soldal v. Cook County, 506 U.S.56 (1992). But, if the government physically intrudes on a constitutionally protected area (a person's home, papers, and effects) in search of evidence without a warrant, then the Katz reasonable expectation inquiry is unnecessary. Florida v. Jardines, supra, citing U.S. v. Jones, supra. . . .
 That is because the Katz reasonable-expectation test is in addition to the traditional property-based understanding of the 4th Amendment. Id. In other words, these are separate tests that can be applied depending on the interest at issue, but a finding that one is met is sufficient to find a violation of the 4th Amendment.
People v. Gingrich, supra. 
The court then turned to the issue in this case, explaining that as Gingrich argued, 
this matter is easily resolved. A search for purposes of the 4th Amendment occurred in this case because `the officers learned what they learned only by physically intruding on [Gingrich’s] property [his computer] to gather evidence [which] is enough to establish that a search occurred.’ Florida v. Jardines supra.
 It can hardly be doubted that a computer, which can contain vast amounts of personal information in the form of digital data, is an `effect,’ U.S. Const, Amendment IV, and a `possession,’ [Michigan] Const 1963, art 1,§ 11, within the meaning of the constitutional proscription against unreasonable searches and seizures. See People v. Smith, 420 Mich. 1, 20, 360 N.W.2d 841 (Michigan Supreme Court 1984) (opining that as used in the two constitutional provisions, “ ‘possessions' and ‘effects' are virtually identical in meaning” and therefore there exists no reason to treat those provisions differently).
People v. Gingrich, supraThe Court of Appeals went on to explain that 
the evidence in the court record also shows that only at the command of the police did the Best Buy employee physically take the hard drive to [Gingrich’s] computer (thus, a trespass on defendant's `effects’) and attach it to a store computer in order to gather evidence of child pornography. Since the officers did not have a search warrant to do so, and no exception to the warrant requirement applies, the circuit court correctly held that a warrant was required before police directed the Best Buy employee to attach the hard drive to another computer for purposes of searching the hard drive for evidence. 
Having reached this conclusion, there is no need to determine whether [Gingrich] also had a reasonable expectation of privacy in the information contained in the computer. Florida v. Jardines, supra.
People v. Gingrich, supra (emphasis in the original).
The court then explained that its conclusion that it was necessary for
the police to obtain a search warrant before exceeding the scope of the private search is further buttressed by the decision in U.S. v. Jones, supra. In Jones, government agents tracked the movements of a suspected drug trafficker by placing an electronic Global–Positioning–System (GPS) device on the undercarriage of a vehicle registered to the suspect's wife while it was parked in a public parking lot. U.S. v. Jones, supra. Jones was later charged with, among other offenses, conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. U.S. v. Jones, supra. The district court denied Jones's motion to suppress the GPS evidence, finding that one `”traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”’ U.S. v. Jones, supra. The United States Court of Appeals for the District of Columbia Circuit reversed Jones's conviction `because of admission of the evidence obtained by warrantless use of the GPS device. . . .’ U.S. v. Jones, supra. The United States Supreme Court affirmed, holding that attaching the GPS tracking device to an individual's vehicle, and thereby monitoring the vehicle's movements on public streets, constituted a search or seizure within the meaning of the Fourth Amendment. U.S. v. Jones, supra.
 Justice Scalia, writing for the Court, noted that it was `beyond dispute that a vehicle is an “effect” as that term is used in the [4th] Amendment,’ . . .  and added that `[b]y attaching the [GPS] device to the Jeep, officers encroached on a protected area. . . ‘U.S. v. Jones, supra.   `The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the 4th Amendment when it was adopted.’ U.S. v. Jones, supra.   Consequently, because the government obtained information by physically intruding on a constitutionally protected area, the Court concluded a search within the protection of the 4rth Amendment had occurred. U.S. v. Jones, supra. Hence, when the government commits a trespass on `houses,’ `papers’ or `effects’  (or invades a Katz reasonable invasion of privacy) for the purpose of obtaining information, such a trespass or invasion of privacy is a search within the meaning of the 4th Amendment. . . .
People v. Gingrich, supra. 
The Court of Appeals therefore held that under the 4th Amendment to the U.S. Constitution,
as reinforced by Jardines and Jones a personal computer storing personal information in the form of digital data must be considered defendant's `effect’ under the 4th Amendment, and `possession’ under the Michigan Constitution, see Const 1963, art 1, § 11. To access the data and obtain information from [Gingrich’s] computer, his `effect’ or `possession,’ the Best Buy employees as directed by the police physically attached another device to its hard drive. 
Such action was a trespass-a search under the 4th Amendment and Const 1963, art 1, § 11 -– because the government physically intruded defendant's property to obtain information. U.S. v. Jones, supra. . . . The police did not obtain a warrant to conduct the search and the prosecution's brief offers no exception to the warrant requirement to justify the police's action. 
As the circuit court ruled, `[a] search and seizure without a warrant is unreasonable per se and violates the 4th and 14th Amendments of the United States Constitution and Const 1963, art 1, § 11, unless shown to be within one of the exceptions to the rule.” People v. Wagner, 114 Mich.App. 541, 320 N.W.2d 251 (Court of Appeals of Michigan 1982) (citation omitted). . . . Consequently, we conclude that the police search in this case without a warrant or applicable exception to the warrant requirement, was per se unreasonable under the 4th Amendment and Const 1963, art 1, § 11.
People v. Gingrich, supra.