Exigent Seizure of a Computer

Last fall, I did a post about how police can lawfully search a computer without getting a search warrant. This post is about how the same principle applies in a different context: seizing computers instead of searching them.

As I’ve noted before, the 4th Amendment gives the right to be free from unreasonable searches (which violate a legitimate expectation of privacy in a place or thing) and seizures (which violate our right to possess and use property).

Searches and seizures usually go together. When police are investigating a crime, they’re usually searching for evidence, which they seize when they find it. As I’ve noted, search warrants really should be called “search and seizure warrants” because when police search for and find evidence, they’re obviously not going to go away and leave it where they found it.

Sometimes, though, the order is reversed. Sometimes police seize something they think contains evidence and search it later. This post is about a case in which a Massachusetts police officer did just that.

The case is Commonwealth v. Kaupp, 453 Mass. 102, 899 N.E.2d 809 (Supreme Court of Massachusetts 2009) and here are the facts that led to the seizure in question:

On May 21, 2002, James Smyth, . . . the technology director at the Northeast Metropolitan Vocational High School . . . , was informed that an unauthorized computer named Joester7437 was connected to the high school's network. James directed Holly Shepardson, a network specialist . . ., to investigate Joester's contents and physical location on the school's premises. From her computer, Shepardson accessed Joester's open share on the high school's network. Shepardson found hacking tools, games, and pirated movies, and reported the same to James, prompting him to report the breach to a school administrator. Shepardson continued to examine Joester's open share and found a file . . . that depicted pornographic images of two females, one of whom appeared to be in her late teens and another who appeared to be between nine and twelve years old. While James was apprising vice-principal Theodore Nickole of the breach, Shepardson informed them of the pornography she found in Joester's open share. James accessed Joester's open share and observed a pornographic image of a girl around ten. Officer Maglio, assigned to the high school,. . . . contacted the Wakefield police . . . for assistance.

Shepardson reported Joester's presence on the network to Timothy Smyth, . . . the school's network manager. While trying to ascertain Joester's physical location . . . Timothy detected what appeared to be five unauthorized computers on the school's network. Within one hour, Timothy told James he was `fairly certain’ the unauthorized computers were in the electronics shop where [Kaupp] was an instructor.

[V]ice-principals Nickole and Antonelli went to the electronics shop and asked the students and [Kaupp] to go to the library. Sometime thereafter, Officer Maglio and Detective James, a member of the Medford police department's computer crime unit, arrived at the electronics shop. Detective James spoke with James and Timothy as to what they observed in Joester's open share. With the permission of Antonelli and James, Detective James, using his own notebook computer, accessed the school's network and opened Joester's open share. He found . . .several movies, including `Spiderman.’ Detective James concluded the copy of `Spiderman’ was unauthorized, as the movie had been released in theaters only recently. Detective James also found a motion picture file titled, `Beautiful Lolita Sandra Masturbates,’ showing what appeared to be a young girl masturbating. With Timothy's assistance, Detective James located the Joester computer in the electronics shop and turned it off. The Joester computer, which was later determined to belong to a student, was seized and transported to the Wakefield police department.

While searching for unauthorized computers in the electronics shop, Timothy came across a school-owned server named Nightcrawler in [Kaupp’s] office, . . . adjacent to the electronics shop. Nightcrawler's screen displayed an open share containing the titles of several movies, including `Spiderman,’ `Top Gun,’ and `A Knight's Tale.’ The source of the open share was Sinister, another unauthorized computer logged onto the high school's network. Timothy did not see any pornographic materials in Sinister's open share. Sinister was also found in [Kaupp’s] office. However, Timothy could not log onto Sinister as it was password protected.

Detective James, having been apprised of Timothy's observations of pirated movies on Sinister's open share, seized Sinister, which belonged to [Kaupp] on probable cause to believe it contained child pornography and copyrighted intellectual property. [He] did not look at the contents of Sinister's open share prior to securing it.

Commonwealth v. Kaupp, supra. They apparently found child pornography on Sinister because Kaupp was charged with possessing child pornography and moved to suppress the evidence found in Sinister. Commonwealth v. Kaupp, supra.

The Massachusetts Supreme Court held that Sinister was properly seized under the exigent circumstances exception to the 4th Amendment’s warrant requirement. As I explained in an earlier post, the exigent circumstances exception lets police search and/or seize without a warrant when they don’t have time to get a search or arrest warrant. If, for example, police know a kidnapper has taken his captive into a building, they don’t have to get a search warrant to be able to go in and get the victim without violating the 4th Amendment. The exigency – the need, in this example, to ensure the safety of the victim – justifies their proceeding without a warrant, as long as they have probable cause to believe that the kidnapper and victim are in the place they intend to enter.

In this case, the Massachusetts Supreme Court held that the seizure of Sinister was justified under the exigent circumstances exception:

Timothy's observation of the then recently released movie `Spiderman’ on Sinister's open share furnished probable cause to believe that Sinister contained pirated movies, prompting Detective James to impound Sinister. Detective James refrained from searching Sinister's contents until the search warrant issued. . . . Given the ease with which computer files may be accessed and deleted, and the disruption that would have been created by posting an officer in the defendant's office and preventing students from entering pending the issuance of a search warrant, we conclude that the seizure was reasonable.

Commonwealth v. Kaupp, supra. The court also found that ONLY the seizure of Sinister was justified under the exception:

The Commonwealth contends, and we agree, that the potential destruction or loss of evidence on Sinister created an exigency justifying the warrantless seizure of Sinister. . . . However, the Commonwealth maintains police did not need a warrant to search Sinister's contents because they seized Sinister pursuant to the exigent circumstances exception to the warrant requirement. We disagree. As we have noted, `an officer's authority to possess a package is distinct from his authority to examine its contents.’ Commonwealth v. Varney, 391 Mass. 34, 39 n. 4, 461 N.E.2d 177 (1984). . . . The exigency necessitating Sinister's seizure dissipated once the computer had been secured, requiring the police to seek a search warrant to conduct a forensic analysis of Sinister's contents.

Commonwealth v. Kaupp, supra.

Kaupp also seems to have argued that the trial court denied his motion to suppress evidence found on Sinister because the school consented to a search of Sinister. The Massachusetts Supreme Court noted that the lower court judge “did not conclude that the school had consented to Sinister's seizure. Rather, she correctly ruled that the school consented to a search of its network, which included Sinister's open share.” Commonwealth v. Kaupp, supra.

The school could not have consented to a search of Sinister because it was password protected. As I’ve explained before, for a consent to search to be valid, the person who gives the consent must have had the authority to authorize a search of the property. As I’ve also explained, your authority to consent to a search of property – a computer, a room, a car – is based on your having the right to use that property. The Supreme Court has said that joint users of property can consent to the search of that property. The high school could consent to a search of its network, but could not consent to a search of Sinister because Sinister was password-protected. Since Sinister was password-protected, school personnel (other than Kaupp) could not access it; since they could not access it, they didn’t have the authority (or the ability) to consent to a search of it.