Wednesday, May 27, 2015

Murder, Aggravated Assault and the Cell Phone Location Data

After Kendrick Herring was charged with a number of crimes, which are listed later in this post, he filed a motion to suppress “any evidence obtained as a result of the search and seizure of his real-time cellphone location data.”  Herring v. State, 2015 WL 2436457 (Florida Court of Appeals – 1st District 2015).  To understand the charges, and the motion to suppress, it is necessary to understand how the prosecution arose. 
The Court of Appeals began its opinion by explaining that
[o]n March 18, 2011, Timmy Andrew and [Herring] made contact via cellphone to arrange a drug deal. Andrew and his friend, Terry Eubanks, met [Herring] around 10:30 p.m. When they arrived at the address [Herring] gave Andrew, [Herring] and Andrew discussed the sale, and [Herring] then opened fire on the vehicle Andrew and Eubanks were occupying. Andrew and Eubanks managed to escape from the scene, fled to Eubanks' home, and contacted law enforcement. Andrew died of his injuries, and Eubanks suffered a gunshot wound to his arm.

Around 11:15 p.m., Eubanks told law enforcement that Andrews and [Herring] had been communicating via cellphone. At 1:52 a.m., law enforcement contacted the cellphone provider using an exigent circumstances form and asked for [Herring’s] real-time cellphone location data. Around 2:50 a.m., the cellphone provider began sending the real-time cellphone location data. [Herring] was located using this data and was arrested around 4:00 a.m. During [Herring’s] arrest, law enforcement recovered a .45 caliber handgun, which matched the projectiles recovered from Andrew as well as the casings found at the scene of the shooting. Law enforcement also recovered the cellphone that was used to communicate with Andrew earlier in the evening.
Herring v. State, supra.
arguing that his real-time cellphone location data was illegally seized because law enforcement did not seek a warrant and none of the warrantless search and seizure exceptions applied. [Herring] sought to suppress the cellphone, firearm, and all other physical evidence recovered during his arrest. Following a suppression hearing, the trial court entered an order finding that there were exigent circumstances in this case that abrogated law enforcement's requirement to obtain a warrant.
Herring v. State, supra.
The Court of Appeals began its analysis of the issues Herring raised on appeal by explaining that the
standard of review for a motion to suppress is summarized in State v. Gandy, 766 So.2d 1234 (Florida Court of Appeals – 1st District 2000):

`A trial court's ruling on a motion to suppress comes to us clothed with a presumption of correctness, and we must interpret the evidence and reasonable inferences and deductions in a manner most favorable to sustaining that ruling. Johnson v. State, 608 So.2d 4 (Florida Supreme Court1992). . . .  In this case, the facts are undisputed and supported by competent substantial evidence. See Caso v. State, 524 So.2d 422 (Florida Supreme Court (1988). . . . Accordingly, our review of the trial court's application of the law to the facts is de novo. See United States v. Harris, 928 F.2d 1113 (U.S. Court of Appeals for the 11th Circuit 1991). In addition, we are constitutionally required to interpret search and seizure issues in conformity with the 4th Amendment of the United States as interpreted by the U.S. Supreme Court. See Fla. Constitution art. I, § 12; Perez v. State, 620 So.2d 1256 (Florida Supreme Court1 993). . . .’  
Herring v. State, supra (quoting State v. Gandy, supra).
The Court of Appeals then took up Herring’s argument in this appeal, explaining that he
argues that he had a reasonable expectation of privacy in his real-time cellphone location data. The Florida Supreme Court in Tracey v. State recently held that `regardless of Tracey's location on public roads, the use of his cell site location information emanating from his cell phone in order to track him in real time was a search within the purview of the 4th Amendment for which probable cause was required.’ 152 So.3d 504 (Florida Court of Appeals 2014). As such, [Herring] is correct that he has a reasonable expectation of privacy in his real-time cellphone location data.
Herring v. State, supra.
The court went on to explain that the
circumstances at issue here occurred prior to the Tracey ruling, and the State argues that the good faith exception applies. However, in Tracey, the court held that because there was `no warrant, court order, or binding appellate precedent authorizing real time cell site location tracking,’ the good faith exception was not applicable. Tracy v. State, supra. As such, here, because there is no warrant, court order, or binding appellate precedent providing that one does not have a reasonable expectation of privacy in real-time cellphone location data, the good faith exception does not apply.
Herring v. State, supra.
As Wikipedia explains, in United States law,
the good-faith exception . . . is a legal doctrine providing an exemption to the exclusionary rule.

The exemption allows evidence collected in violation of privacy rights as interpreted from the 4th Amendment to be admitted at trial if police officers acting in good faith . . .  relied upon a defective search warrant -- that is, they had reason to believe their actions were legal (measured under the reasonable person test).
As Wikipedia also explains, under the 4th Amendment officers can “conduct warrantless searches in several types of exigent circumstances where obtaining a warrant is dangerous or impractical.” You can read more about that here.
The Court of Appeals then analyzed the trial judge’s holding that “there were exigent circumstances in this case that abrogated law enforcement's requirement to obtain a warrant.” Herring v. State, supra. It began by explaining that the trial judge
found there were exigent circumstances that relieved law enforcement of its duty to obtain a warrant. Warrantless searches and seizures are per se unreasonable under the 4th Amendment subject to only a few exceptions. See Katz v. U.S. 389 U.S. 347 (1967). One of these exceptions is for exigent circumstances. Lee v. State, 856 So.2d 1133 (Fla. Florida Court of Appeals - 1st Circuit 2003).

There is no exhaustive list of what constitutes exigent circumstances, but this Court has identified the following factors as indicators of exigency:
(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) a reasonable belief that the suspect is armed; (3) probable cause to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; and (5) a likelihood that delay could cause the escape of the suspect or the destruction of essential evidence, or jeopardize the safety of officers or the public.

Lee v. State, supra. . . .

Here, the suspect was to be charged with murder and attempted murder. Law enforcement officers had a reasonable belief that the suspect was armed because they did not recover a firearm from the scene of the shooting. The officers also feared that a delay in the capture of the suspect could jeopardize the safety of law enforcement or the public. As such, there were various factors here that indicated exigent circumstances.
Herring v. State, supra.
The Court of Appeals, though, also went on to find that
when determining whether sufficient exigent circumstances exist, courts examine the totality of the circumstances. Seibert v. State, 923 So.2d 460 (Florida Supreme Court 2006) . . . . One such circumstance that courts look to is whether law enforcement had the time to secure a warrant. Lee v. State, supra (`Some set of facts must exist that precludes taking the time to secure a warrant’). `[I]f time to get a warrant exists, the enforcement agency must use that time to obtain the warrant.’ Hornblower v. State, 351 So.2d 716 (Florida Supreme Court 1977).

Based on the record before us, it appears that the State failed to present testimony to establish that officers could not have obtained a warrant during the 2.5 hour period at issue. Further, there was no testimony that the officers made an attempt to obtain a warrant or that they considered making such an attempt. Accordingly, under the facts presented, the totality of the circumstances does not demonstrate exigent circumstances to overcome the warrant requirement.
Herring v. State, supra.  The court therefore reversed Herring’s conviction. 
This is one of those cases in which the exclusionary rule, which bars the use of unconstitutionally obtained evidence, exacts a high price. As Wikipedia notes, in the early years of this century, U.S. courts were beginning to adopt the exclusionary rule, over the objections of other judges, one of whom was the highly respected Benjamin Cardozo. His most famous comment on the exclusionary rule was, “[t]he criminal is to go free because the constable blundered.”  People v. Defore, 242 N.Y. 13 (Court of Appeals of New York 1926). 

My sense is that this probably happened quite often before officers got used to abiding by the requirements of the 4th Amendment. The premise of the rule, essentially, is that a right without a remedy for the violation of that right is, in effect, no right at all.  One could, of course, argue that we could provide some other right, such as monetary damages, but the response to that argument is that in this instance the magnitude of the harm resulting rom the violation of a right eclipses money damages, i.e., incarceration for years or the death penalty require more.  A related argument is that by enforcing the exclusionary rule in hard cases like this we send a message to all law enforcement officer that emphasizes the need to follow the rules.  Here, as in many areas of the law, there are no easy answers.
You can read more about the reversal of Herring’s conviction (and his prosecution and trial that led to it) in the news story you can find here.

Monday, May 25, 2015

The Rental Agreement, the Online Review and Defamation Per Se

This post examines an opinion the Utah Court of Appeals recently issued in a civil case that involves an online posting and a suit for defamation:  Westmont Residential LLC v. Buttars, 340 P.3d 183 (2015). 
The parties to the suit are the plaintiffs – Westmont Residential LLC and Terry Foote – and the defendants – Brad Buttars and Sarah Miller.  Westmont Residential LLC v. Buttars, supra.  The court refers to Westmont Residential LLC and Terry Foote, collectively, as “Westmont.”  Westmont Residential LLC v. Buttars, supra.  It refers to Buttars and Millers as “Defendants.” Westmont Residential LLC v. Buttars, supra. 
The Court of Appeals begins its opinion by explaining how the case arose:
Defendants sought an early termination of their one-year `Uniform Residential Rental Agreement’ (the Rental Agreement) to rent an apartment from Westmont. Westmont required Defendants to pay a $1,760 early-termination fee and prepared a Notice of Intent to Vacate (the Notice) that identified September 29, 2011, as the day Defendants would vacate the unit and conduct a move-out inspection with a Westmont employee. Defendants signed the Notice but did not receive a copy of the Notice until September 30, 2011.

On September 28, Westmont Residential's manager, Terry Foote, entered Defendants' unit to investigate an odor reported by another tenant in the same building. The complaining tenant also reported that he had not seen Defendants for two weeks. Foote knocked on Defendants' door, and after no one answered, Foote entered the unit without attempting to call Defendants. Inside, he observed that most of Defendants' belongings had been removed from the unit and that the unit was `filthy.’

On September 29, a Westmont employee went to Defendants' apartment to conduct the scheduled move-out inspection. Defendants were not there, and the employee proceeded to enter the apartment without confirming whether office personnel were able to contact Defendants. Defendants had mistaken September 30 as the scheduled move-out and inspection date.

On September 30, around 10:30 a.m., Defendants arrived at the apartment intending to clean the unit and finish removing their belongings. Instead, they found Westmont employees cleaning the unit and boxing up Defendants' property. Westmont refused to let Defendants enter the unit to retrieve their property and instead finished packing Defendants' items, stored the boxes in a carport, and demanded that Defendants pay a $100 `Packing and Inventory’ fee before Westmont would allow Defendants access to their belongings. Defendants paid the fee and were allowed to retrieve their items. Shortly thereafter, on October 19, 2011, Miller posted a review in an online forum describing Westmont as “’crooks'” that “‘will take full advantage of you! Run from them!’”

Westmont filed a complaint against Defendants seeking to recover $2,169 in damages for the costs of cleaning and repairing the unit, plus $216.90 as a `10% repair and cleaning miscellaneous supplies charge.’ Westmont also brought a claim for defamation per se against Defendants arising out of the online review.
Westmont Residential LLC v. Buttars, supra. 
As Wikipedia explains, in U.S. law a “Complaint” is
any formal legal document that sets out the facts and legal reasons . . . that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party or parties against whom the claim is brought (the defendant(s)) that entitles the plaintiff(s) to a remedy (either money damages or injunctive relief). For example, the Federal Rules of Civil Procedure (FRCP) that govern civil litigation in United States courts provide that a civil action is commenced with the filing or service of a pleading called a complaint. Civil court rules in states that have incorporated the Federal Rules of Civil Procedure use the same term for the same pleading.
And as another site explains, the cause of action for defamation per se encompasses
a false statement, either spoken (`slander’) or written (`libel’) that injures someone's reputation. However, some types of false statements are considered so damaging that they are deemed defamatory on their face (`defamation per se’). This is in contrast to `defamation per quod’ where the false statement is not inherently defamatory and has to be evaluated in the context of additional facts. Generally, for defamation per se, the statements are presumed harmful whereas for defamation per quod the damage must be proven.
Getting back to the Court of Appeals’ opinion, it goes on to explain that
[a]fter a bench trial, the trial court denied all of Westmont's claims for damages, and in its ruling on Westmont's post-trial motions, the court noted that Defendants `genuinely believed that they had another day to complete moving out,’ particularly because they `returned to the unit the next day in an attempt to finish moving out, and had paid the entire months rent.’ Therefore, the court ruled that Defendants were not responsible for any of Westmont's alleged cleaning fees, because `Westmont prematurely conducted the move-out inspection and began cleaning the apartment without giving Defendants the opportunity to finalize their move-out.’

The court determined that Defendants were liable for only $50 of Westmont's alleged cost of repairs and reduced the related 10% surcharge to $5. However, the court concluded that Defendants' liability for $55 in damages was offset by Westmont's impermissible charge of $100 for inventorying and packing Defendants' belongings. As a result, Westmont was awarded no damages. The court also dismissed Westmont's defamation per se claim, concluding that Defendants' `mere use of the word “`crooks’” did not justify `application of the defamation per se doctrine’ and that Westmont could not otherwise prove that it was actually harmed by the online comment.
Westmont Residential LLC v. Buttars, supra. 
After the judge entered the findings and judgment outlined above, Westmont
filed a motion to disqualify the trial judge, a rule 59 motion to alter or amend the judgment, and a rule 60(b) motion for relief. All three motions were denied. Westmont now appeals.
Westmont Residential LLC v. Buttars, supra.  The motion to disqualify the judge would have been filed under the Utah Rules of Civil Procedure’s Rule 63(b)(1)(A), which says that a party to a lawsuit or the party's attorney
may file a motion to disqualify a judge. The motion shall be accompanied by a certificate that the motion is filed in good faith and shall be supported by an affidavit stating facts sufficient to show bias, prejudice or conflict of interest.
The Court of Appeals explains that Westmont raised “several issues on appeal:”
First, it challenges the trial court's finding that Defendants had not vacated the apartment as of September 29. `Because a trial court is in a better position to judg[e] credibility and resolv[e] evidentiary conflicts, an appellate court reviews the trial court's findings of fact for clear error.’ State v. Levin, 144 P.3d 1096 (Utah Supreme Court 2006) . . . (citation and quotation marks omitted).

Next, Westmont argues that the trial court erred in determining that Defendants' online review did not constitute defamation per se. `Because the existence of defamatory content is a matter of law, a reviewing court can, and must, conduct a context-driven assessment of the alleged defamatory statement and reach an independent conclusion about the statement's susceptibility to a defamatory interpretation.’ O'Connor v. Burningham, 165 P.3d 1214 (Utah Supreme Court 2007).

Westmont also challenges the trial court's denial of its rule 59 and rule 60(b) motions and the trial judge's failure to recuse himself before ruling on Westmont's post-trial motions. Because we determine that all three of these arguments are inadequately briefed, we do not reach their merits. See Utah Rules of Appellate Procedure 24(a)(9).
Westmont Residential LLC v. Buttars, supra.  In other words, as to Westmont’s third set of objections to the court’s ruling, the Court of Appeals appears to have found that the brief he filed on appeal did not articulate his arguments as to why the trial judge erred in enough detail to warrant the Court of Appeals’ considering the issues. 
According to the Court of Appeals, Westmont “approached the first issue”, i.e., that `because Defendants had not vacated or given up possession of [their unit] on September 29, 2011,’ `Westmont did not have the right to perform the move-out inspection at the time [it] did, [and] . . . did not have the right to charge a $100.00 fee for packing and inventorying Defendants' remaining belongings”, from “two angles.” 
Westmont Residential LLC v. Buttars, supra.  The court goes on to explain that,
[f]irst, it asserts that the Notice operated as an addendum to the Rental Agreement by which the expiration date of the Rental Agreement was amended to September 29, 2011. Thus, `when September 29, 2011, came and passed, without [Defendants] appearing for the Move–Out Inspection, they vacated’ their unit by operation of the terms of the amended Rental Agreement.

Second, Westmont argues that the nature of the items left behind by Defendants proves that Defendants had vacated the unit as of September 29, 2011. Westmont characterizes the items as `trash and junk.’ We address each argument in turn.
Westmont Residential LLC v. Buttars, supra. 
As to the first issue, the Court of Appeals explained that the Rental Agreement

Rental Agreement provides, `This form constitutes the entire agreement made between the parties and may be modified only in writing signed by both parties.’ Westmont's argument rests on its assumption that because the Notice was signed by both Defendants and a representative of Westmont, the Notice necessarily became an amendment to the Rental Agreement. The trial court acknowledged that Defendants and a Westmont representative signed the Notice, that the Notice scheduled the moveout date and move-out inspection for 2:00 p.m. on September 29, 2011, and that the Rental Agreement could be modified by a writing signed by both parties. Nonetheless, the court concluded that the Notice was not a modification of the Rental Agreement.

`A valid modification of a contract . . . requires a meeting of the minds of the parties, which must be spelled out, either expressly or impliedly, with sufficient definiteness.’ Richard Barton Enters., Inc. v. Tsern, 928 P.2d 368 Utah Supreme Court 1996). . . . The party claiming  there has been a modification to a contract—here, Westmont—carries the `burden of proof for showing the parties' mutual assent’ to the modification. See Harris v. IES Assocs., Inc., 69 P.3d 297. (Utah Court of Appeals 2003).
Westmont Residential LLC v. Buttars, supra. 
Next, it explained that, “[i]n reaching its conclusion,” the trial court relied on a
particular provision of the House Rules, a separate document incorporated by reference into the Rental Agreement. The specific provision cited by the court—paragraph 10 of part 1—requires tenants to give up possession of the apartment before Westmont can perform a move-out inspection. The provision states, `If the Rental Unit is not officially vacated at the specified time, rent will be charged until all keys have been surrendered, and a move-out walkthrough is completed and signed by the resident and by management or management's representative.’ The trial court reasoned, `Nothing in this provision indicates that it does not apply when a tenant does not vacate a unit prior to a scheduled move-out inspection pursuant to a Notice of Intent to Vacate’ and `nothing in the Notice of Intent to Vacate purports to “modify” this provision.’

Westmont argues that the trial court's reliance on part 1, paragraph 10 of the House Rules is misplaced. It asserts that this provision `undeniably’ `is not intended to apply to a situation where a tenant is not present for a scheduled Move–Out–Inspection, and has not made any effort to reschedule the Move–Out–Inspection,’ and that the court's interpretation creates an untenable situation in which `all of Westmont's apartments would be empty, and Westmont would still be charging the tenants who failed to attend the Move–Out [ ] Inspections rent, while Westmont is required to wait “until all keys have been surrendered, and a move-out walkthrough is completed and signed.”’

We do not agree that the provision is “undeniably” inapplicable here or that the trial court's interpretation would result in the scenario proposed by Westmont. And Westmont does not otherwise direct us to any evidence or address any related legal authority to support its position. Rather, it takes a broken-record approach and simply repeats its conclusory argument that the Notice amended the Rental Agreement because it comported with the requirements established in the Rental Agreement's integration clause. Westmont's repetition of its argument does not establish the argument's validity. Accordingly, Westmont has failed to show error in the trial court's ruling that the Notice did not modify the Rental Agreement.
Westmont Residential LLC v. Buttars, supra. 
The Court of Appeals then took up the second issue, noting that Westmont agued that
the items that remained in Defendants' apartment as of September 29 were of the quality and type that, based on Westmont's experience in the `industry,’ are often left behind by tenants that have abandoned their unit, rendering the items `junk’ and `trash.’ As a result, Westmont asserts that it was not required to wait until Defendants `remove[d] all of their trash from’ the unit before it could conduct a move-out inspection or begin repairing and cleaning the apartment. The trial court acknowledged Westmont's characterization of Defendants' remaining belongings as `junk’ and concluded that regardless of whether Westmont `valued Defendants' possessions, the law does.’ Cf. Martin v. City of Indianapolis, 192 F.3d 608 (U.S. Court of Appeals for the 7th Circuit 1999) (Manion, J.) (recognizing in the context of public art that, oftentimes, `one man's junk is another man's treasure’).

The court described the items in the apartment as carrying `significant importance and expense, especially for a young newly married couple.’ Additionally, [it] explained that Westmont's `complete disregard for the value of Defendants' belongings’ undermined Westmont's credibility in `accurately describ[ing] the state of the [apartment], or the amount of time it took to clean it.’ What's more, the fact that Westmont took the time to package Defendants' belongings into boxes and the fact that Defendants paid $100 to retrieve those boxes negates Westmont's assertion that the items left behind amounted to abandoned garbage. As a result, Westmont has not convinced us that the trial court's rejection of this argument was clearly erroneous.
Westmont Residential LLC v. Buttars, supra. 
And, finally, the court took up Westmont’s challenging “the trial court's conclusion that Defendants' statements in their online review of Westmont did not constitute defamation per se.”  Westmont Residential LLC v. Buttars, supra.  It explained that the trial judge
found, `On October 19, 2011, Miller posted a review on YAHOO! LOCAL stating her belief that “Westmont Properties, its management, and employees, were ‘crooks and will take full advantage of you! Run from them!”’
Westmont Residential LLC v. Buttars, supra. 
The Court of Appeals then explained that “traditionally”, in order to constitute
`defamation per se, the challenged statements must `be false and allege criminal conduct on the part of the plaintiff . . . or conduct which is incongruous with the exercise of a lawful business, trade, or office.’ Jacob v. Bezzant, 212 P.3d 535 (Utah Supreme Court 2009). .). . . .

To determine if `a statement is capable of sustaining a defamatory meaning,’ the reviewing court `must carefully examine the context in which the statement was made, giving the words their most common and accepted meaning.’ West v. Thomson Newspapers, 872 P.2d 999 (Utah Supreme Court 1994). `”A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.”’ West v. Thomson Newspapers, supra (quoting Townev. Eisner, 245 U.S. 418 (1918)); see also Prince v. Peterson, 538 P.2d 1325 (Utah Supreme Court 1975) (`simply making some general statement about another being a crook, or even using profanity against [another] in a general way, may not be actionable . . . depend[ing] on the circumstances’).
Westmont Residential LLC v. Buttars, supra. 
The court went on to point out that the trial court described the defendants’ post
as an `obscure online review’ and stated that Westmont provided no evidence as to how widely it was accessed, how long it was available on the web, or how significantly, if at all, it differed from the `several [other] postings on the internet critical of Westmont's business practices.’ In light of that context, the court concluded that Defendants' `mere use of the word “crooks”’ did not justify `application of the defamation per se doctrine.’ The court recognized that the term `crooks’ `could merely be a reference to crooked behavior, not a direct violation of the criminal code,’ or that it `could be a term for a person that has taken advantage of another,’ which `many would agree describes Westmont's conduct.’ See West v. Thomson Newspapers, supra (noting that the falsity of a statement is an element of defamation).

We agree with the trial court. While we acknowledge that the term `crooks’ can carry a criminal connotation, in the context of Defendants' online review, the term is clearly not being used in this manner. Indeed, given the context here of an online forum intended for consumers to review local businesses, we are convinced that `even the most careless reader [would] perceive[ ] that the word [“crooks”] was no more than rhetorical hyperbole.’ See Greenbelt Coop. Publishing Association v. Bresler, 398 U.S. 6 (1970) (addressing the term `blackmail’). And rhetorical hyperbole, including `juvenile name-calling), Krinsky v. Doe 6, 159 Cal.App.4th 1154, 72 Cal.Rptr.3d 231 (California Court of Appeals 2008), is not defamatory because it cannot `reasonably [be] interpreted as stating actual facts,’ Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988); see also Krinsky v. Doe 6, supra (posts in a heated internet discussion that referred to one officer of a corporation as a `”mega scum bag,”’ called other officers `cockroaches,’ `”boobs, losers and crooks,’” and described another as having `”fat thighs, a fake medical degree, . . . and . . . poor feminine hygiene”’ were vulgar but not defamatory because `nothing in [the] post suggested that the author was imparting knowledge of actual facts to the reader).

In other words, `[e]xaggerated language used to express opinion, such as “blackmailer,” “traitor” or “crook,” does not become actionable merely because it could be taken out of context as accusing someone of a crime.’ Hodgins v. Times Herald Co., 169 Mich. App. 245, 425 N.W.2d 522 (Michigan Court of Appeals 1988). . . .

Accordingly, we affirm the trial court's dismissal of Westmont's defamation per se claim.
Westmont Residential LLC v. Buttars, supra. 

Friday, May 22, 2015

The OnStar GPS Tracking Service, the iPads and Harassment

This post examines an opinion from the Court of Appeals of Minnesota:  Boggs v. Boggs, 2015 WL 1961179 (2015).  As the caption suggests, the case involves spouses who were in the process of divorcing when the events that produced this suit arose. Boggs v. Boggs, supra.  As the Court of Appeals explained,
[m]arried for twenty years, the parties begin divorce proceedings in March 2014. They have two residences, one in Minnesota and one in Arizona. At the time of the HRO [harassment restraining order] proceedings, husband lived in Arizona with the parties' minor son, and wife lived in Minnesota with the parties' minor daughter.

[Husband] owns the Minnesota property but agreed that [wife] would reside there until May 2014. [His] business operates a horse farm with stables in the vicinity of and at the Minnesota residence. Several vehicles are titled in the business name, including the one driven by [wife]. S.O. is an employee of the business and is responsible for maintaining the stables and vehicles and caring for the horses. In the winter and during times relevant to this matter, there were no horses at the stables. The horses were in Arizona.
Boggs v. Boggs, supra.  David is the husband and Terry Ann is the wife to whom the opinion respectively refers to in the passage above. 
The court goes on to explain that on May 2014, Terry ann filed a petition for 
an HRO against [David]. [She] alleged that [he] physically assaulted her, had S.O. follow and stalk her, monitored her social life, had a tracking device attached to the vehicle she used, made threats to her, and frightened her with threatening behavior. [She] stated in the petition that the conduct made her feel like she was `being persecuted and followed, and treated like a fugitive. I have no privacy or protection from [him]. I do not feel safe being alone at my home anymore.’ The district court granted an ex parte HRO. [David] contested the order.
Boggs v. Boggs, supra. 
The Wright County District Court Judge who had the case then held an
evidentiary hearing on the HRO with testimony from both parties and one other witness. [Terry Anne] testified that, during an argument in May 2014, [David] grabbed her arms, she elbowed him, they both fell, and she sustained bruises. [Terry Anne] also testified that employee S.O. came to her Minnesota residence without her knowledge or consent on multiple occasions in March and April 2014, that his presence was pursuant to the direction of [David], and that [David] was tracking her vehicle through the use of OnStar Family Link GPS services. [Terry Anne] further pointed out that she had a male friend and that [David] attempted to monitor her activities with that individual and restrict his presence at the Minnesota residence.

[David] testified that as the owner he had a legitimate business interest in the use, care, and maintenance of the Minnesota residence and nearby stables, that S.O. frequently goes to the Minnesota residence because his job requires that he maintain the property and stables, and that as the owner he communicated with S.O. regarding the premises. [David] stated that he did not intend for S.O. to engage in any stalking of [Terry Anne]. [He] also testified that all of the business vehicles had OnStar services and that the vehicle used by [Terry Anne] was not treated differently.
Boggs v. Boggs, supra. 
The District Court Judge “granted [Terry Anne] an HRO, finding that [David] did not physically assault [her] but that [he] `intentionally engaged in repeated incidents of intrusive or unwanted acts.’”  Boggs v. Boggs, supra.  David then appealed.
The Court of Appeals began its analysis of his appeal by explaining that it reviews
the District Court's grant of an HRO for abuse of discretion. Kush v. Mathison,683 N.W.2d 841 (Minnesota Court of Appeals 2004). . . . To find an abuse of discretion, we `must conclude that the district court erred by making findings unsupported by the evidence or by improperly applying the law.’ State v. Underdahl, 767 N.W.2d 677 (Minnesota Supreme Court 2009). The district court's findings of fact `shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses.’ Minnesota Rules of Civil Procedure Rule 52.01.

An HRO may be granted if `there are reasonable grounds to believe that the [subject of the HRO] has engaged in harassment.’ Minnesota Statutes § 609.748, subd. 5(b)(3) (2014). Harassment includes `repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another.’ MinnesotaStatutes § 609.748, subd. 1(a)(1) (2014).

To sustain an HRO petition, the petitioner must prove `objectively unreasonable conduct or intent on the part of the harasser’ and `an objectively reasonable belief on the part of the [harassed] person’ that such conduct has a substantial adverse effect on her safety, security, or privacy. Peterson v. Johnson, 755 N.W.2d 758 (Minnesota Court of Appeals 2008) (quotations omitted). Here, the district court found [David] `intentionally engaged in repeated incidents of intrusive or unwanted acts’ that established the `objectively unreasonable’ requirements. The court cited four incidents to support the issuance of the HRO.
Boggs v. Boggs, supra. 
The first incident occurred in March of 2014, when David
instructed S.O. to investigate the area around [Terry Anne’s] residence after S.O. reported motorcycles were at the house and there were signs of a party. [David] testified that S.O.'s report of motorcycles and other indications that a party was occurring at the Minnesota residence led him to worry that `there may be alcohol or damage to my property.’ [David] testified that it was part of S.O.'s job `to check on the property on almost a daily basis. . . . Horses eat on holidays, so you're on properties and work 24/7 in the horse business.’

[Terry Anne] testified that the horses were in Arizona for the winter, that the stables were empty in March and April, and that normally `employees do not come to the Minnesota home anytime over the winter. There's zero reason for them to do that.’ The district court found that with the horses in Arizona, some of S.O.'s presence on the property and communications with [David] constituted harassment monitoring by [David] of [Terry Anne] and of her residence.
Boggs v. Boggs, supra. 
As to the second incident, the Judge found that
S.O. reported to [David] that a `strange vehicle’ was leaving the Minnesota residence on the evening of April 23, 2014, and [David] instructed S.O. to go to the property to look around. [David] testified that while S.O. was `checking on the property, or going by or something,’ S.O. called [David] to inform him that a strange car was in the driveway. [David] testified that he asked S.O. to obtain the license-plate number of the strange car and S.O. subsequently told [him] that the car belonged to a friend of the parties' minor daughter. After dark, while S.O. was investigating the car, the daughter saw him in the shrubbery and became frightened that an intruder was on the property. . . .

[David] stated that he did not intend for S.O. to stalk [Terry Anne]. [She] testified that her daughter called her at 9:00 p.m., crying and scared because of `a car in the driveway that had followed her friends and then returned to the driveway.’ [Terry Anne] testified that her daughter then observed S.O. hiding between two trees in front of the garage. [Terry Anne] testified that it frightened her to learn S.O. was following her daughter's friends. The district court found [David’s] testimony that S.O. `just happened to be in the area . . . when he saw the strange vehicle’ was not credible and found [David] directed S.O. to observe the property and respondent and report his observations back to [him].
Boggs v. Boggs, supra. 
With regard to the third incident, Terry Anne testified that the next day S.O. was
`checking out the property’ and reported to [David] that there was `a strange white van’ at the residence. [David] asked S.O. to get the license-plate number or find out why it was there. S.O. reported . . . that [Terry Anne] had requested a security-system firm come to work on the locks at the residence. [David] testified that `there was no need for her to change any locks’ because [she] was vacating the residence in May. [Terry Anne] testified that she requested security maintenance because `the actual security alarm to the home hadn't been working . . . and the children had asked me for their security to please reconnect the security system.’ [Terry Anne] testified that the security-system employee called her saying S.O. had told him to leave and had followed him down the road. . . .

The district court found that [David] sent S.O. to the property to monitor [Terry Anne’s] activities and report back to him. The district court found that [David’] testimony that he was simply concerned for his property was not credible. The district court again found [Terry Anne’s] testimony credible, that S.O. did not need to be at the property during the winter months, and that it was reasonable that [she] felt it was unsettling, undermining, and scary to know that S.O. was monitoring the property and herself.
Boggs v. Boggs, supra. 
As to the fourth incident, the District Court Judge found that in April of 2014, David,
or someone at his direction, arranged for the activation of the OnStar Family Link GPS tracking service on the vehicle [Terry Anne] was driving. [David] testified that his assistant, N.W., used OnStar `to know where the vehicle was’ because it belonged to his business, and the intent was not to follow [her]. [Terry Anne] testified that she spoke to an OnStar representative, who informed her that [David] arranged to have the OnStar Family Link GPS tracking service activated on April 8, 2014. 

[She] testified that she was scared and felt violated by [David] tracking her movements. The district court found that [his] business owned the vehicle but that [Terry Anne] had exclusively driven the vehicle except for two occasions. The district court found [David] `had no reason to activate the OnStar Family Link other than to track [her] movements.’ The district court found that tracking [Terry Anne’s] movements by using the OnStar capabilities invaded [her] privacy.
Boggs v. Boggs, supra. 
Finally, in his appeal, David also objected to the trial judge’s considering
evidence of text messages between [him] and N.W. to show that [David] tracked the vehicle's location. [He] argued that [Terry Anne] illegally intercepted the text messages without [his] knowledge. Both parties testified that [David] owns two iPads and that [Terry Anne] uses [his] older iPad. The older iPad uses the data plan associated with [David’s] mobile phone and receives text messages intended for [him].

When this occurs, [Terry Anne] sees the text messages without [his] knowledge. [Terry Anne] testified that she usually told N .W. when she saw text messages to or from [David], but when she received the text messages between [David] and N.W. that indicated [David] was tracking respondent's movements in her vehicle, she did not tell N.W.
Boggs v. Boggs, supra. 
On appeal, David argued that the 
Federal Electronic Communications Privacy Act (ECPA) prohibits [Terry Anne’s] receipt of the text messages, and therefore the district court erred by relying on the text-message evidence to find that [David] harassed [her] through tracking the vehicle. [David] did not make this argument to the district court. This court will not consider matters not argued to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580 (Minnesota Supreme Court 1988). 

Even if this issue were properly before us, the ECPA prohibits the intentional interception of an electronic communication. 18 U.S. Code § 2511 (2012). Nothing in the record here demonstrates that [Terry Anne] intentionally obtained [David’s] electronic communication or that she intercepted the text messages. Instead, the district court found that `the text messages automatically “pop up” when [respondent] is working on the iPad,’ which indicates that [Terry Anne] inadvertently received the text messages. In these circumstances, the district court did not err in considering the testimony regarding the text messages when it found that [David’s] tracking of [her] vehicle was an intrusive or unwanted act.
Boggs v. Boggs, supra (emphasis at the original).
For these and other reasons, the Court of Appeals held that
[b]ecause the record supports the district court's findings and because its findings support the conclusion that [David] intentionally engaged in repeated incidents of intrusive or unwanted acts that had a substantial adverse effect on [Terry Anne’s] safety, security, or privacy, we conclude that the district court did not abuse its discretion in issuing the HRO.
Boggs v. Boggs, supra.  

Wednesday, May 20, 2015

The Facebook Posts, Cyberstalking and "Substantial Emotional Distress"

This post examines a recent opinion from the Florida Court of Appeals that involves domestic violence and “cyberstalking.”  Horowitz v. Horowitz, 2015 WL 1443223 (District Court of Appeals of Florida – Second District 2015).  The best explanation of how the case arose appears in the brief Sammie D. Horowitz filed in appealing a judge’s entry of an “injunction for protection against domestic violence” against him.  Horowitz v. Horowitz, Initial Brief of Appellant, 2013 WL 7101921 District Court of Appeals of Florida – 2d District 2013). 
The brief explains that Maureen P. Horowitz filed a petition for the entry of such an injunction against Sammie on July 1, 2013, {alleging cyberstalking, abuse of alcohol, violence in the household, and pornography.”  Horowitz v. Horowitz, Initial Brief, supra.  It also explains that the judge who had the case held an evidentiary hearing on July 9, 2013. Horowitz v. Horowitz, Initial Brief, supra.  The brief goes on to explain that at the hearing, Maureen
spent a considerable amount of time testifying as to events relating to her allegations of cyberstalking and a brief discussion of alcohol use, pornography, and violence in the home.

Shane Taylor, [Maureen’s] witness, testified that he examined [her] computer. . . . The examination revealed that the computer contained a key logger, which tracks the strokes on a keyboard thereby allowing someone to ascertain what is being typed. . . . To obtain information from the key logger, one would have to have access to the computer at the home or have remote access. . . . Mr. Taylor was unable to determine whether this key logger was installed or whether it had been placed on the computer through a virus obtained using the Internet. . . .
Horowitz v. Horowitz, Initial Brief, supra. 
Next, Maureen testified as to the
events alleged to be cyberstalking, abuse of alcohol, and violence in the household. [Maureen] testified that [Sammie] knew what she was doing on the computer because he had told her he paid someone to check up on her computer use. . . . However she did not know what exactly [he] had done to check up on her. [Maureen] believed this to be happening because [Sammie] would tell her what songs she listened to and, in particular, posted on his Facebook an eighties song, `Secret Lovers’, she had watched earlier on YouTube, in the privacy of her own home. . . . [Maureen] also stated that [Sammie] had posted to his Facebook copies of her Facebook messages. . . . Further, she gathered Internet provider (`IP’) addresses that had accessed her email. . . . By entering the IP addresses she did not recognize as her own into a Google search, she was able to ascertain the IP addresses coordinates and narrow down a geographic location. . . . One of the coordinates was [Sammie’s] mother's house, where he was living. . . .

[Sammie’s] alcohol use, weapons, pornography, and violence were addressed briefly. [Maureen] testified that, over the past several years, [he] drank sixteen ounces of rum nightly and occasionally consumed beer in conjunction with the liquor. . . .  What particularly bothered [her] is that [he] attempted to drive their daughters around after drinking. . . .

[Maureen] testified about [Sammie’s] weapons, saying he had numerous. . . .  She stated that [Sammie] would position his hand like a gun, point it at her, and say, `til death do us part.’ . . . Although she mentioned an incident she observed between [him] and her friend during which [Sammie] held a gun to her friend's head, [Maureen] did not claim [he] ever used the weapons against her. . . . Next [Maureen] briefly addressed what she referred to as [Sammie’s] pornography problem. . . . She stated that he does not respect their daughters' privacy and will enter the bathroom when they are taking a shower. . . .
Horowitz v. Horowitz, Initial Brief, supra. 
Sammie then took the stand and
denied the allegations. . . . He testified that he did not install a key logger or hire anyone to do so. . . . Rather, when [Maureen] asked whether he had someone following up on her, he responded that he did, although it was not true. . . . All the information that [Maureen] alleged was obtained through a key logger on her personal computer was in fact obtained on their family computer that they shared and had key loggers on previously. . . . [Sammie] testified that when he reviewed the key logs it was evident that [Maureen] was having an affair. . . .

When [his] counsel attempted to introduce evidence of an affair to show [Maureen’s] motivation to fabricate these incidents to prevent [Sammie] from revealing her affair, the Judge sustained [her] objection. . . . Sammie testified that he posted lyrics on his Facebook page and inadvertently posted a message meant for his brother on his Facebook page, but quickly deleted it. . . .
Horowitz v. Horowitz, Initial Brief, supra. 
Sammie also testified that he
would pass out vitamins on a nightly basis to his daughters and he did not walk in on them without first knocking and asking permission. . . . He stated that on one occasion he was going to drive his daughter to the store after having a beer several hours earlier, but instead rode along because his wife had an issue with it. . . . In addition, he testified that he did not regularly consume the exorbitant amount of alcohol that was claimed. . . .
Horowitz v. Horowitz, Initial Brief, supra. 
After the hearing, the judge “granted a permanent injunction for a twenty-four month period.” Horowitz v. Horowitz, supra.  The propriety of that order is, of course, the issue the Court of Appeals is examining in this opinion.
The court began its analysis of that issue by explaining that in her initial
petition for an injunction, [Maureen] alleged both that she was the victim of domestic violence, namely cyberstalking, and that [Sammie] had engaged in behavior that led her to believe she was in imminent danger of becoming a victim of domestic violence. As this court explained in Branson v. Rodriguez–Linares, 143 So.3d 1070 (Florida Court of Appeals – 2d District 2014), either basis, when proved by competent, substantial evidence, would support issuance of the injunction.

After an evidentiary hearing, the trial court found [Maureen] had presented sufficient evidence to support the allegations in her petition and granted the injunction. However, the trial court did not specify whether it was granting the petition because [she] established that she actually was a victim of domestic violence or because she established that she had reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence. Thus, we address both bases.
Horowitz v. Horowitz, supra. 
It went on to analyze the issue of “cyberstalking,” explaining that it is
a form of domestic violence against which a person may obtain an injunction. Branson v. Rodriguez–Linares, supra.

`”Cyberstalk”’ means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.’
Horowitz v. Horowitz, supra (quoting Florida Statutes § 784.048(1)(d) (2013)).
The Court of Appeals then explained that Maureen claimed she was the
victim of cyberstalking based on two posts on [Sammie’s] Facebook page. The first post contained the lyrics to Atlantic Starr's 1985 single `Secret Lovers.’ The second of [Sammie’s] posts contained the text of a private message conversation [Maureen] had with a third party via her own Facebook account. [She] testified that these posts showed [Sammie] either `hacked’ her computer or was somehow spying on her because she had recently been listening to `Secret Lovers’ on her personal computer in the privacy of her own home and because her private message conversation would have only been observable by accessing her personal Facebook account.

She also testified that unbeknownst to her, there was a keylogger program, which would track her computer use, installed on her personal computer and that [Sammie] told her he had someone watching her. She did not present any evidence that [he] actually installed the keylogger.
Horowitz v. Horowitz, supra. 
It then found that Maureen’s
Facebook posts do not meet the statutory definition of cyberstalking for two reasons. First, the posts were not `directed at a specific person.’ § 784.048(1)(d). The testimony showed that [Sammie] posted the information to his own Facebook page. Screenshots of the posts admitted into evidence confirm that they were posted to [his]s page and that [Maureen] was not `tagged’ or mentioned, nor were the posts directed to her in any obvious way. Unlike email communication, which this court considered to be cyberstalking in Branson v. Rodriguez–Linares, supra, posts to one's own Facebook page are not directed at a specific person but are instead posted for all of the user's Facebook `friends’ to see, depending on the user's privacy settings.

The testimony adduced at the hearing showed that [Maureen] was able to view the posts by visiting [Sammie’s] Facebook page because the two were still `friends’ on the social networking website. Although [Maureen’s] assertions that [Sammie] somehow `hacked’ into her Facebook account are disconcerting, that behavior alone does not amount to cyberstalking as it is not an electronic communication. See Young v. Young, 96 So.3d 478 (Florida Court of Appeals – 1st District 2012) (`Ms. Young's acts in the case at bar, which consisted of changing her husband's password, appropriating his emails, and including them in a filing in their divorce proceeding, do not amount to cyberstalking, because they were not electronic communications by her of ‘words, images, or language . . . directed at’ Mr. Young’).

Even considering the posts in the context of [Sammie’s] statements that he had someone watching Mrs. Horowitz, they do not qualify as cyberstalking. See Arnold v. Santana, 122 So.3d 512 (Florida Court of Appeals – 1st District 2013) (reversing injunction where `Appellant sent [Appellee] text messages in which he warned her to change her passwords because he was tracking everything she was doing, and informed her that he was also following her’).
Horowitz v. Horowitz, supra. 
The court also found that Maureen had
failed to show that the posts caused her `substantial emotional distress.’ § 784.048(1)(d). She testified that the posts were `a matter of concern’ to her and that they `prevented [her] from having any privacy within [her] own home.’ The record is devoid of any other mention of [Maureen’s] reaction to the posts. Because her testimony as to her reaction to the posts was `conclusory and vague’ it was insufficient to show that she had been a victim of domestic violence. See Alderman v. Thomas, 141 So.3d 668 (Florida Court of Appeals – 2d District 2014) (reversing injunction where petitioner testified `that she feels “insecure and unsafe with” [respondent] and that he scares her’).
Horowitz v. Horowitz, supra. 
The Court of Appeals then took up the other issue in the case, explaining that
[h]aving concluded that [Maureen] failed to show that she was the victim of domestic violence, we now turn to the issue of whether she established that she had reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence. We conclude that she did not.
Horowitz v. Horowitz, supra. 
It pointed out that
[i]n attempting to show she was in danger of becoming a victim of domestic violence, [Maureen] testified as to three instances of past physical abuse on the part of [Sammie], the most recent of which occurred no less than fifteen years prior to the filing of the petition.

She further testified that `a few times over the years’ he held his hand in the shape of a gun, pointed it at her, and stated `til death do us part.’ She added that [Sammie] would `routinely’ stand in the doorways of rooms she was in and block her from leaving, which she found to be intimidating. [Maureen] could not provide a specific time or place that [Sammie] engaged in these behaviors.

Near the end of her direct examination, the following exchange occurred:
[Counsel]: Are you afraid of this man?
[[Maureen]: Yes.
[Counsel]: Are you afraid he'll hurt you physically?
[Maureen]: Eventually, yes.
Horowitz v. Horowitz, supra. 
The Court of Appeals then held that the
physical incidents identified by [Maureen] are too remote to be considered reasonable cause to believe that she was in imminent danger of becoming a victim of domestic violence. See Gill v. Gill, 50 So.3d 772 (Florida Court of Appeals – 2d District 2010) (`[A]n isolated incident of domestic violence that occurred years before a petition for injunction is filed will not usually support the issuance of an injunction in the absence of additional current allegations’); Jones v. Jones, 32 So.3d 772 (Florida Court of Appeals  - 2d District 2010) (reversing injunction where petitioner presented evidence of a pushing incident occurring three years prior and a statement from the respondent that he was not threatening wife `yet’).

Likewise, the allegations regarding [Sammie’s] `finger-gun’ gesture, his habit of `routinely’ blocking [Maureen’s] path, and her statement that she was afraid he would eventually hurt her, although troubling, are too vague to provide competent, substantial evidence supporting the injunction. See Alderman v. Thomas, supra.
Horowitz v. Horowitz, supra.  It therefore reversed the trial judge’s entry of the permanent injunction. Horowitz v. Horowitz, supra.