Monday, August 02, 2010

Plain View Seizure of Computer . . . Fails

As I’ve explained in earlier posts, the 4th Amendment outlaws “unreasonable” searches and seizures, which means “reasonable” searches and seizures don’t violate the 4th Amendment. As I’ve also explained, to be “reasonable” a search/seizure must either be conducted (i) pursuant to a search warrant or (ii) pursuant to an applicable exception to the warrant requirement.

In this post, we’re going to be dealing with the plain view doctrine. As I noted in an earlier post, the plain view doctrine isn’t an exception to the 4th Amendment’s default requirement of a warrant. It’s a piggyback principle -- a doctrine that can come into play when police are executing a lawful search and see something they immediately recognize as contraband or evidence of a crime.

(Contraband is illegal in and of itself; cocaine and marijuana are contraband. Evidence of a crime is not illegal in and of itself, but can be seized because it can be used to convict someone of a crime; a gun police have probable cause to believe was used to murder someone is evidence of a crime, but not contraband.)

As Wikipedia explains, for the plain view doctrine to apply the officer must be (i) lawfully present at the place where the evidence can be plainly viewed, (ii) must have a lawful right of access to the object (i.e., must be able to walk over to it and seize it) and (iii) the the incriminating character of the object must be “immediately apparent,” i.e., the officer must have probable cause to believe the item is evidence/contraband when it sees it. The officer can’t manipulate the item to develop probable cause to seize it because doing that constitutes a search and the plain view doctrine only authorizes a seizure of evidence. Arizona v. Hicks, 480 U.S. 321 (1987).

That brings us to U.S. v. Lall, 2010 WL 2136630 (U.S. Court of Appeals for the 11th Circuit 2010). After being convicted of conspiracy to commit credit card fraud and possessing “device-making equipment” with intent to defraud in violation of 18 U.S. Code § 1029 and aggravated identity theft in violation of 18 U.S. Code § 1028A, Lance Lall appealed to the 11th Circuit. U.S. v. Lall, supra. Here is how the case arose:

Detectives Gaudio and Desir responded to a call regarding an armed robbery at the home where . . . Lall lived with his parents, Erroll and Hannah Lall, and his brother and sister, Joel and Anissa. Hannah, Anissa, and Joel were home when two masked men entered and demanded money. . . .The Lalls were threatened with violence by the robbers, who eventually settled for a laptop belonging to Lance and the keys to the Ford Mustang owned by, Erroll, in which they made their escape. . . .

[A]fter the police arrived . . . to investigate the crime scene, Joel indicated to [Gaudio] that Lance `was into credit card fraud and making ID's and stuff with the Internet.’ The two detectives determined that the bedroom shared by Joel and Lance was `the focus of this home invasion, whatever these criminals were looking for, they were looking for in his room.’ Lance arrived home. . . .

Gaudio took Lance to the bedroom to . . . `develop any leads to who might have committed the . . . robbery.’ . . . Once inside the bedroom, Lall proceeded to show Gaudio the equipment he used to commit identity theft and to explain how each device worked. Based on these admissions, Gaudio seized, inter alia, two `skimmers,’ which Lall used to capture account information from swiped credit cards and driver's licenses, and one `encoder,’ which he used to transplant that information onto new cards or licenses for fraudulent purposes.

U.S. v. Lall, supra. Gaudio informed the Secret Service about the evidence he seized from Lall’s room, which eventually led to his being arrested by the Secret Service and charged with the crimes noted above. U.S. v. Lall, supra. After being charged, Lall moved to suppress the evidence seized from his bedroom and statements he’d made to Gaudio, apparently when he arrived home and maybe later when Lall, Gaudio and three other officers were in Lall’s bedroom. U.S. v. Lall, supra. (I don’t have the briefs and this opinion doesn’t really make it clear when he made the statements at issue.)

The motion to suppress was denied, Lall went to trial and both the statements and the physical evidence seized from his room were introduced into evidence against him. U.S. v. Lall, supra. On appeal, Lall first argued that the statements he made to Gaudio were coerced and therefore violated the due process clause of the 14th Amendment as interpreted by the Supreme Court in Brown v. Mississippi, 297 U.S. 278 (1936). U.S. v. Lall, supra.

The 11th Circuit agreed:

Lall testified Gaudio told him he would not be charged for any statements or evidence collected on the night of the robbery, and this was corroborated by Gaudio's testimony at the suppression hearing. It is inconceivable that Lall, an uncounseled twenty-year-old, understood that a promise by Gaudio that he was not going to pursue any charges did not preclude use of the confession in a federal prosecution. . . . [T]he only plausible interpretation of Gaudio's representations . . . was that the information Lall provided would not be used against him by Gaudio or anyone else. Under these circumstances, Gaudio's statements were sufficient to render Lall's confession involuntary [under the due process clause of the 14th Amendment and therefore inadmissible].

U.S. v. Lall, supra. That brings us to the physical evidence. Gaudio’s seizure of that evidence was based on the plain view doctrine, which meant he had to have (i) been lawfully in Lall’s room (he was because the robbers had searched Lall’s room) and in a position to seize the equipment AND (ii) had probable cause to believe the equipment was evidence of a crime before seizing it. The 11th Circuit said that while there was “an issue of fact [i.e., a question] as to whether the items were in plain view” to the officers, the real problem was probable cause, or the lack thereof. U.S. v. Lall, supra.

Gaudio . . . had no idea what this equipment was and could not have recognized it as incriminating evidence without . . . Lall's admission. In describing Lall's bedroom, Gaudio testified: `. . . There was computer equipment about. It was in plain view, not knowing what it was, but it was there.’ . . . Gaudio. . . . testified during the suppression hearing: `I'm not a computer guy, I'm looking right at the stuff and I cannot tell you what an embosser was or a skimmer or anything at the time. [Lall] showed us what the items . . . [the robbers] should have . . . taken were. . . . And he explained what everything does.’ He [said] Lall `handed me several . . . items, computer, electronic nature. I really don't know what they were. . . .’ Gaudio admitted that while Lall was showing him the equipment, [he] `contacted my normal partner who's computer savvy. . . . I couldn't get a hold of him to see if he could help me out in describing some of this stuff that I was impounding.' Regarding the machine used to emboss credit cards, Gaudio testified:

Q: Now, you said the items were in plain view, but on the other hand, this what you call an embossing machine was covered up by books?

A: . . . I said there were books on top of it. . . .

Q: In any event, you said you did know what it did?

A: I couldn't tell you what it did.

Q: You didn't see any criminal value to it?

A: At the time, no. It didn't have a sign that said embossing machine on it, no.

U.S. v. Lall, supra (emphasis in the original)The 11th Circuit therefore found that “Gaudio did not have the slightest clue that the equipment was incriminating until Lall told him”, which meant the seizure of the equipment was not authorized by the plain view doctrine. U.S. v. Lall, supra. In other words, it violated the 4th Amendment. U.S. v. Lall, supra.

The 11th Circuit then considered whether the admission of Lall’s statements and the physical evidence seized from his room constituted harmless error. U.S. v. Lall, supra. As Wikipedia notes, harmless error “is a ruling by a trial judge that, although clearly mistaken, does not meet the burden for a losing party to reverse the original decision of the trier of fact on appeal, or to warrant a new trial.”

The 11th Circuit found that “the nature of Lall’s statements and the physical evidence taken from his bedroom make it impossible to conclude that their admission was harmless beyond a reasonable doubt.” U.S. v. Lall, supra. It noted that the “only other inculpatory evidence was the testimony of Sobrina Mathurin, a cooperating witness who” claimed to have conspired with Lall to commit identity theft and credit card fraud. U.S. v. Lall, supra. The Court of Appeals also noted at trial the federal prosecutor admitted that the case hinged on Lall’s statements and the evidence seized from his room:

Folks, if none of this [physical evidence] were here . . . and if Lance Lall's statements were not before you, I would tend to agree with defense counsel about the challenges he lodged on Sobrina Mathurin's credibility, because, after all, what happens if you take away all this stuff and all of Lance Lall's statements? What are you left with? Sobrina Mathurin, not a real pretty witness and not a real strong case for the government.

U.S. v. Lall, supra. The 11th Circuit took away the physical evidence and Lall’s statements and therefore reversed his conviction. U.S. v. Lall, supra.

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