Metadata as a Public Record

A recent decision from the Washington Supreme Court considered “whether metadata is a public record that must be disclosed under the [state] Public Records Act (PRA)”. O’Neill v. City of Shoreline, __ P.3d __, 2010 WL 3911347 (Washington Supreme Court 2010). The Supreme Court noted that this was “a matter of first impression”, i.e., an issue it had not previously addressed. O’Neill v. City of Shoreline, supra.

Here’s how this civil case arose:

On September 14, 2006, Diane Hettrick (a private citizen) wrote an e-mail to Lisa Thwing (also a private citizen) and possibly others. The relevant portion of the email stated:

`Hi folks,

My dear friend, Beth O'Neill has asked me to pass along information about our dysfunctional Shoreline City Council. Beth and some other folks have been working hard battling certain issues regarding an illegal rental in their neighborhood. What should be a legal and zoning issue has gotten mired into the politics of our 32nd District Democrats and certain City Council folks are playing favorites with their own political supporters.’

On September 18, Thwing forwarded this e-mail to Shoreline Deputy Mayor Maggie Fimia, City Councilmember Janet Way, and others. The e-mail Fimia received did not list any other recipients that Thwing had sent it to, as Thwing had first forwarded the e-mail to herself and blind carbon copied all other recipients. As a result, only Thwing's name and e-mail address showed up as recipients on the e-mail header Fimia received.

At a public meeting of the Shoreline City Council on September 18, Fimia stated that she had been sent a copy of an e-mail allegedly sent by `a Ms. Hettrick and a Ms. O'Neill’ accusing the Council of improper conduct. Ms. O'Neill immediately made an oral request for that e-mail and denied authoring it. Fimia stated that she `would be happy to share the e-mail with Ms. O'Neill.’

When she returned home from the council meeting, Fimia forwarded the original Thwing e-mail to Fimia's personal e-mail account. In forwarding the e-mail, Fimia removed the `to’ and `from’ line listing Thwing as the sender and recipient, but did not remove any additional information from the e-mail. Fimia claimed she did this `to protect Ms. Thwing from potential public exposure.’ On September 19, Fimia forwarded this new e-mail to staff at the city of Shoreline, which provided it in print to Ms. O'Neill. This e-mail did not include the sender or recipient information of the e-mail from Hettrick to Thwing, nor did it include the sender or recipient information of the e-mail from Thwing to Fimia. Ms. O'Neill then asked in writing for the City to provide all information relating to the email, including how it was received by Fimia, from whom it was received, and the forwarding chain of the e-mail. Fimia found the original unaltered September 18 email from Thwing to Fimia, including the forwarding information that the e-mail had originally been sent by Hettrick on September 14, and forwarded it to the city attorney. On September 25, the City gave the O'Neills a hard copy of that unaltered complete email string, including both headers, each of which included the date and time of the message.

O’Neill v. City of Shoreline, supra. After she received the September 25 copy of the email string, Ms. O’Neill “explicitly requested” the metadata “from the e-mail’s entire chain”. O’Neill v. City of Shoreline, supra. Fimia tried to find the metadata associated

with the original e-mail from Thwing, but could not; Fimia concluded that she must have inadvertently destroyed it. Fimia asked Thwing to resend the original e-mail to her, which Thwing did on September 29. Fimia provided this e-mail, along with [its] metadata, to city staff for distribution to Ms. O'Neill. The City provided another installation of records to Ms. O'Neill on October 3, including a paper copy of the e-mail Thwing resent to Fimia on September 29 and metadata from that e-mail. The City also provided Ms. O'Neill with metadata from the identical September 18 e-mail Thwing had sent to Councilmember Janet Way, after extracting it from Way's computer. Ms. O'Neill nevertheless continued to seek all metadata associated with the e-mail string. Since Fimia had destroyed the original September 18 e-mail, the City was unable to provide Ms. O'Neill with the metadata associated with the e-mail that Thwing sent to Fimia on September 18.

O’Neill v. City of Shoreline, supra.

As the opinion notes, Ms. O’Neill then “brought suit under the PRA.” O’Neill v. City of Shoreline, supra. As I understand the suit, O’Neill argued that the metadata was a public record under the state’s Public Records Act, so she was legally entitled to it. O’Neill v. City of Shoreline, supra. The trial judge dismissed the suit and O’Neill appealed to the Washington Court of Appeals. O’Neill v. City of Shoreline, supra. The Court of Appeals held that metadata “must be disclosed under the PRA.” O’Neill v. City of Shoreline, supra (citing O’Neill v. City of Shoreline, 145 Wash. App. 913, 187 P.3d 822 (Washington Court of Appeals 2008)). Fimia and the City of Shoreline appealed this decision to the Washington Supreme Court. O’Neill v. City of Shoreline, supra.

The Supreme Court began its analysis of the issue raised by the appeal by noting that the PRA requires “[e]ach agency” to “make available for public inspection and copying all public records” unless a record falls within one of several exemption specified in the PRA or is exempt from disclosure under some other Washington statute. O’Neill v. City of Shoreline, supra (quoting Washington Revised Code § 42.56.070)). It explained that this statute is to be “liberally constructed” and its exemptions “should be narrowly construed in favor of disclosure.” O’Neill v. City of Shoreline, supra.

The Supreme Court then considered whether “the metadata associated with Thwing's original e-mail to Fimia is a public record’ subject to disclosure under the PRA.” O’Neill v. City of Shoreline, supra. It noted that the PRA defines a public record as including “any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Washington Revised Code § 42.56.010(2). This statute defines a “writing” as

handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.

Washington Revised Code § 42.56.010(3).

The Supreme Court then proceeded with its analysis, noting, at the outset, that this issue “has been examined previously by only one court” – the Arizona Supreme Court. O’Neill v. City of Shoreline, supra. In Lake v. City of Phoenix, the court held that since “metadata in an electronic document is part of the underlying document [and] does not stand on its own”, when a public agency “maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata, is subject to disclosure under [Arizona's] public records law.” Lake v. City of Phoenix, supra.

The Washington Supreme Court reached the same conclusion:

Metadata may contain information that relates to the conduct of government and is important for the public to know. It could conceivably include information about whether a document was altered, what time a document was created, or who sent a document to whom. Our broad PRA exists to ensure that the public maintains control over their government, and we will not deny our citizenry access to a whole class of possibly important government information. We agree with the Supreme Court of Arizona that an electronic version of a record, including its embedded metadata, is a public record subject to disclosure. There is no doubt here that the relevant e-mail itself is a public record, so its embedded metadata is also a public record and must be disclosed. We therefore affirm the Court of Appeals ruling that the metadata associated with Thwing's original e-mail to Fimia is subject to the PRA and must be disclosed.

O’Neill v. City of Shoreline, supra.

The Supreme Court then considered the consequences of its ruling. It noted that it was “impossible to know at this point what information is contained within the metadata associated with that original e-mail” because Fimia “deleted [it] from her computer, along with all of its associated metadata.” O’Neill v. City of Shoreline, supra. In an attempt to remedy this situation, the Supreme Court gave the City of Shoreline the opportunity to

inspect Fimia's home computer's hard drive for the requested metadata. While the City has searched Fimia's e-mail folder for the deleted e-mail and its associated metadata, the City has not inspected the hard drive of Fimia's home computer. . . . Information that must be disclosed under the PRA conceivably exists on the hard drive of Fimia's computer. If it is possible for the City to retrieve this information, the PRA requires that it be found and released to the O'Neills.

We will not yet say unequivocally that the City violated the PRA. The City still has the opportunity to search for the requested metadata on Fimia's home computer's hard drive. We note that this inspection is appropriate only because Fimia used her personal computer for city business. If government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined. We remand the case for the trial court to give the City the chance to search for the requested metadata, and to determine whether the City has violated the PRA.

O’Neill v. City of Shoreline, supra (emphasis in the original). In a footnote, the Supreme Court explained that it was only addressing “whether the City may inspect Fimia’s home computer” if she consented to such an examination. O’Neill v. City of Shoreline, supra. It noted that it was not addressing “whether the City may inspect Fimia’s home computer absent her consent.” O’Neill v. City of Shoreline, supra.

I don’t know if Fimia consented/will consent or not, but I assume the City will try very hard to convince her to do so . . . since if the City can’t find the metadata, the trial court will decide if the City violated the PRA and, if so, what “monetary penalty” should be imposed on it. O’Neill v. City of Shoreline, supra. If you’d like to read a little more about what the penalty could amount to, check out the news story you can find here. That story also notes that the City will need “a copy of Fimia’s hard drive from four years ago.”

Blackberry Seized Lawfully . . . ?

My last post dealt with a U.S. Virgin Islands case in which a federal judge held that the seizure of a Blackberry violated the 4^th Amendment. This post is about a New York case in which a state judge held that a Blackberry was seized lawfully . . . a holding I tend to disagree with, at least in part.

We’ll start, as usual, with the facts:

[O]n January 1, 2010, [Detective DeStefano] was notified by the Lynbrook Police Department that a pedestrian robbery had occurred at 7:30 p.m., at the intersection of Nieuman Avenue and Merrick Road, in Lynbrook. . . .

DeStefano proceeded to that location. Upon arriving at the scene, [he] spoke with Lynbrook Police Officers, and with the complainants, Stephen Alonge and Michael Suter. [They said] they were walking on Nieuman Avenue toward Merrick Road, when a car pulled up and three men jumped out and approached them. The complainants told DeStefano that one of the individuals, . . . a `light-skinned male black,’ pulled out a . . . handgun and demanded their cellular phones, money and valuables. Suter [said] the men took his Blackberry cellular phone. The complainants said the men got back into the car and drove away. DeStefano recorded the phone number of Suter's cellular phone. . . . [and] . . . applied for a Pen Register and Trap and Trace Order, regarding [it]. The application . . . was granted by a Nassau County Court Judge. The Order authorized the Police to use Global Positioning Satellite (G.P.S.) technology to track the location of the cellular phone. . . .

[O]n January 7, 2010, [Detective Galgano] was investigating the alleged robbery in conjunction with members of the Nassau County Police Department Electronics Squad. The Electronics Squad was using G.P.S. technology to track . . . [Suter’s] cellular phone. The Electronics Squad reported that G.P.S. tracking located the cellular phone in Brooklyn. . . . Galgano and Detective John proceeded to Brooklyn along with members of the Electronics Squad, and Officers from the Nassau County Bureau of Special Operations. The G.P.S. tracking . . . led them to an apartment building at 245 Wortman Street, in Brooklyn. . . . [T]hey entered . . . and observed a woman wearing a `Community Watch’ jacket seated at a table in the lobby. . . . [She] appeared to be monitoring the people who entered the building. The Detectives were directed by the Electronics Squad to apartment 1L. . . . [A]s [Galgano] approached apartment 1L, the woman wearing the `Community Watch’ jacket was entering that apartment. Galgano asked [her] who lived there, and she [said] she lived there with her two grandsons. Galgano asked [her] if he could come into the apartment and [she] responded `yes.’ . . .

[W]hen they entered the apartment, [Galgano] saw two young men sitting on the couch in the living room. [He] noticed that one of the men, [later] identified as [Kyare Starks], was a `light-skinned male black,’ and was holding a Blackberry cellular phone. Galgano . . . used his Police Department cellular phone to dial the phone number of [Suter’s] Blackberry. . . . [A]t that point the Blackberry . . . [Kyare Starks] was holding immediately began to ring. Galgano then seized the Blackberry cellular phone from [Starks] and placed him under arrest.

People v. Starks, 2010 WL 4054236 (Supreme Court, Nassau County, New York 2010). Starks was charged with 3 counts of robbery and 2 counts of grand larceny and moved to suppress Suter’s Blackberry, on the grounds that it had been seized in violation of the 4^th Amendment. People v. Starks, supra.

As I’ve explained in earlier posts, the 4^th Amendment outlaws “unreasonable” searches and seizures, so “reasonable” searches and seizures don’t violate the 4^th Amendment. As Wikipedia notes, there are two kinds of seizures: a seizure of a person and a seizure of property. A person is “seized” when law enforcement officers interfere with her/his freedom of movement (as in an arrest); and as Wikipedia notes, a seizure of property “occurs when there is meaningful interference by the government with an individual's possessory interests, such as when police officers take personal property away from” someone to use it as evidence. If a seizure of property (or of a person) occurs, it has to be “reasonable” which, as I’ve noted before, means it has to have been conducted either pursuant to a warrant (a search and seizure warrant for property, an arrest warrant for a person) or to an exception to the warrant requirement.

As I noted earlier, Starks moved to suppress the Blackberry seized from him on the grounds that the seizure violated the 4^th Amendment. This is all the opinion says about the specifics of his argument on this issue: “Defense counsel suggests that the incoming call on the cellular phone [Starks] was holding was not necessarily from Galgano, and therefore there was no basis for Galgano to reasonably conclude that the cellular phone [Starks] was holding was the phone allegedly stolen from [Suter].” People v. Starks, supra.

I’m not exactly sure what the prosecution argued in response (I don’t have access to the briefs in this case), but I do know how the judge resolved the issue. This is how he ruled on Stark’s motion to suppress the Blackberry:

This Court finds that the Blackberry . . . seized from [Starks] was in the plain view of Detective Sergeant Galgano once he entered the living room of apartment 1L. . . The fact that the cellular phone began ringing after Galgano dialed [Suter’s] cellular phone number, gave Galgano a basis to seize it from the defendant. . . . Therefore, the defendant's motion to suppress the Blackberry cellular phone is hereby denied.

People v. Starks, supra. I find this holding interesting, and perhaps problematic. As I explained in an earlier post, the “plain view doctrine” is a rule that can expand the scope of a lawful 4^th Amendment intrusion into a private area. The doctrine isn’t, as I noted in that post, an exception to the warrant requirement; it’s a piggyback principle that can expand the scope of an otherwise lawful intrusion. And as I also explained in that post, the plain view doctrine only authorizes a SEIZURE of property; it cannot justify a search of or for property (or anything else, for that matter).

In this case, the judge held that the Blackberry was in plain view, which is quite true; the officers saw it as soon as they entered the living room of the apartment. For a seizure of property to be “reasonable” under the plain view doctrine, the officers had to have been lawfully on the premises (they were – the grandmother consented to their entry) and the incriminating nature of the Blackberry must have been “immediately apparent” as soon as they saw it. (Or, phrased differently, as soon as they saw the Blackberry they must have had probable cause to believe it was evidence of a crime and therefore seizable.)

The judge didn’t say Galgano had probable cause to seize the Blackberry when he saw Starks holding it; the judge said Galgano had probable cause to seize the Blackberry under the plain view doctrine because the phone rang when he used his cell phone to dial the number of Suter’s Blackberry. Why did Galgano do that? I’m assuming he did it because he didn’t think he had probable cause to seize the Blackberry based on the simple fact that Starks was holding a Blackberry . . . and if that is what he thought, I think he was probably right.

But I’m not sure I agree with the judge’s holding. He incorporated Galgano’s calling Suter’s Blackberry into the probable cause determination and said that since the phone rang, that established probable cause. I think calling the Blackberry may have been a “search” that violated the 4^th Amendment, and to explain why I think that I need to review a Supreme Court plain view doctrine case.

In Arizona v. Hicks, 480 U.S. 321 (1987), someone fired a bullet through the floor of Hicks’ apartment that injured a man in the apartment below his. Police arrived and entered Hicks’ apartment (lawfully) to search for the shooter and for weapons. While they were looking for those things, one of officers – Officer Nelson – “noticed two sets of expensive stereo components, which seemed out of place in the squalid and otherwise ill-appointed four-room apartment.” Arizona v. Hicks, supra. Since Nelson suspected the components were stolen, “he read and recorded their serial numbers – moving some of them” in order to be able to see the serial numbers. Arizona v. Hicks, supra. He then called the numbers into headquarters, was told that one of the components he’d moved had been stolen and seized it as evidence. Arizona v. Hicks, supra.

Hicks was indicted for the theft and moved to suppress the stereo component, arguing that Nelson’s moving it so he could see and record the serial number was a “search” under the 4^th Amendment, one that was not authorized either by a search warrant (the officers entered the apartment under the exigent circumstances exception, which let them look for the shooter and for weapons . . . only) or by an exception to the search warrant requirement (the scope of the exigent circumstances exception, on these facts, didn’t encompass checking out stereo equipment). Arizona v. Hicks, supra. The Supreme Court agreed. It held that the

`distinction between “looking’ at a suspicious object in plain view and ‘moving” it even a few inches’ is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent -- serial numbers rather than . . . letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.

Arizona v. Hicks, supra. Since it was a search, the plain view doctrine didn’t apply. The Supreme Court also found that the search wasn’t “reasonable” because Nelson didn’t have probable cause to conduct the search. Arizona v. Hicks, supra. Even if Nelson had had probable cause to conduct the search, that, alone, wouldn’t make it reasonable under the 4^th Amendment; he’d also have to fit the search into an applicable exception to the warrant requirement (or take time to get a search warrant to move the component). Since he didn’t get a warrant and since no exception applied, the Supreme Court upheld the lower court decisions that had suppressed the component. Arizona v. Hicks, supra.

And that brings us back to Suter’s Blackberry. If calling Suter’s Blackberry to see if the Blackberry Starks was holding was a “search” under Arizona v. Hicks, then I don’t see how the plain view doctrine could apply to justify the seizure of the Blackberry. If calling the phone is analogous to Nelson’s moving the stereo component, it was a search and would violate the 4^th Amendment unless Galgano (i) had probable cause to make the call (I suspect he did) and (ii) a valid exception to the 4^th Amendment’s warrant requirement authorized him to make the call for the purpose of determining in the cell phone Starks was holding would ring.

Or maybe I’m wrong . . . maybe it wasn’t a “search” for Galgano to call the Blackberry? Maybe calling a phone (especially one that may not belong to the person who's holding it) isn't a "search" under the 4th Amendment . . .

Blackberry Seized Unlawfully

This post is about a 4^th Amendment case that arose in the U.S. Virgin Islands.

As you may know, the U.S. Virgin Islands are, as Wikipedia explains, a “group of islands in the Caribbean that are an insular area of the United States.” As Wikipedia also explains, “an insular area is a United States territory, that is neither a part of one of the fifty U.S. states nor the District of Columbia”. And Wikipedia notes that Congress “has extended citizenship rights to all inhabited territories” except American Samoa.

For our purposes, what we really need to know is that the U.S. Virgin Islands operates under a legal system that is analogous to the system used in U.S. states. That is, the U.S. Virgin Islands has its own court system (Superior Court and Supreme Court), which administers Virgin Islands law, and a federal court system (U.S. District Court for the District of the Virgin Islands), which administers U.S. federal law. It was that federal district court which issued the opinion we’re going to analyze.

The case is U.S. v. Garvey, 2010 WL 3724694 (U.S. District Court for the District of the Virgin Islands 2010), and this is how the issue we’re concerned with arose:

David Roldan is one of eight defendants charged with conspiracy to distribute 295 pounds of marijuana. In addition, Roldan is separately charged with using a telephone in facilitating the conspiracy to distribute marijuana. On February 16, 2010 Agent Semrick of the Drug Enforcement Agency (DEA) obtained a warrant to search to search the home of Steven Garvey, located at 219 Sion Hill. The warrant authorized law enforcement to search the residence and `[a]ny other buildings, storage sheds or vehicles that are located within the confines of the physical property.’ . . . Attachment B of the search listed the property to be seized which included `cellular telephone and other instruments used to communicate with other co-conspirators.’. . .

On February 17, 2010, Special Agent Semrick, Officer Ortiz of the Virgin Islands Police Department and other law enforcement officers executed the search warrant at 219 Sion Hill. At the time of the search, Roldan was located in the carport of 219 Sion Hill. At some point during the search, Officer Ortiz noticed Roldan `trying to hide a Blackberry cell phone.’ Officer Ortiz then performed a search on Roldan, found his Blackberry and confiscated it. Law enforcement subsequently searched through the contents of Roldan's Blackberry and found a picture of a DEA agent's car. Upon finding the picture on Roldan's cell phone, Roldan was brought to the High Intensity Drug Trafficking Area Office where he was questioned about the picture.

U.S. v. Garvey, supra.

Roldan filed a motion to suppress in which he challenged

two separate aspects of the police's conduct. First, [Roldan] argues that law enforcement unlawfully searched him whilst he was at 219 Sion Hill. [Roldan] contends that he was not subject to search simply because he happened to be located on property for which the Government had obtained a search warrant. Second, [Roldan] argues that the Government again committed an unlawful search when it examined the data on his phone and found the picture of the DEA agent's car.

U.S. v. Garvey, supra.

In ruling on the motion, the federal district judge explained that at the hearing on the motion to suppress “Agent Semrick testified that Officer Ortiz `seized’ the Blackberry” from Roldan. U.S. v. Garvey, supra. The judge found that this conduct constituted “a seizure for Fourth Amendment purposes”, which meant that “the Government bears the burden of showing that this seizure was reasonable” under the 4^th Amendment. U.S. v. Garvey, supra.

As I’ve explained in earlier posts, a seizure of property such as the Blackberry at issue in this case occurs when law enforcement officers “meaningfully interfere” with an individual’s possessory interests in their property. Soldal v. Cook County, 506 U.S. 56 (1992). As I’ve also explained, to be “reasonable” a seizure must be conducted pursuant to a warrant (usually a search and seizure warrant for property) or pursuant to a valid exception to the 4^th Amendment’s warrant requirement.

In this case, the “Government argue[d] that because the search warrant specifically covered cell phones, and because Roldan was located on the property at the time of the search, it had the right to seize his Blackberry cell phone.” U.S. v. Garvey, supra. In ruling on this argument, the federal district court judge noted that the “leading case on this area of Fourth Amendment jurisprudence is Ybarra v. Illinois, 444 U.S. 85 (1979).” U.S. v. Garvey, supra.

In Ybarra, Illinois officers had a warrant authorizing a search of the “Aurora Tap Tavern” and “the person of `Greg,’ the bartender” (who was described in the warrant) for “`evidence of the offense of possession of a controlled substance’”. Ybarra v. Illinois, supra. Seven or eight officers went to the tavern to execute the warrant; upon entering, they announced that they were “going to conduct a `cursory search for weapons’” of each of the “9 to 13 customers present in the tavern” and proceeded to do just that. Ybarra v. Illinois, supra.

When one officer searched Ventura Ybarra, he found a cigarette package that contained “six tinfoil packets“ of what turned out to be heroin. Ybarra v. Illinois, supra. After that evidence was used to indict Ybarra for the unlawful possession of a controlled substance, he filed a motion to suppress, arguing that the evidence was unconstitutionally seized from him. Ybarra v. Illinois, supra.

The Supreme Court agreed with Ybarra. It held that while the warrant authorized the officers to search the tavern and the bartender for narcotics, the pat-down search and seizure of Ybarra was not constitutionally permissible because there was no reasonable belief that he was either involved in any criminal activity or was armed or dangerous. Ybarra v. Illinois, supra. Basically, the Ybarra Court followed an earlier Court’s reasoning in U.S. v. Di Re, 332 U.S. 581 (1948), which essentially was that simply because someone is on premises that are being searched pursuant to a valid warrant or warrant exception does not mean that he “loses immunities from search of his person to which he would otherwise be entitled.” U.S. v. Di Re, supra. In other words, mere presence isn’t enough.

And that brings us back to U.S. v. Garvey: After noting that federal courts of appeals have held that “`a warrant to search particular premises is not alone sufficient to justify a pat down of a person found on the premises at the time of execution’” of the warrant, the federal judge held that “[t]he warrant is of no help to the government in its attempt to justify the search.” U.S. v. Garvey, supra (quoting Leveto v. Lapina, 258 F.3d 165 (U.S. Court of Appeals for the 3d Circuit 2001)).

The judge then addressed the prosecution’s argument that Roldan’s “alleged attempt to `hide’ the cell phone provided a justification for its seizure.” U.S. v. Garvey, supra. The judge didn’t buy this argument, either:

The Government cites no law supporting its contention that an attempt by a third party to hide his own cell phone during the execution of a search warrant provides justification for a seizure of that phone. . . . [P]olice may permissibly conduct `a reasonable search for weapons for the protection of the . . . officer, where [the officer] has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual.’ Terry v. Ohio, 392 U.S. 1 (1968).

But here, the Government advanced no argument that [Roldan] was searched for officer safety and offered no evidence that Officer Ortiz possessed an `articulable suspicion that [Roldan] [wa]s armed and dangerous.’ Michigan v. Long, 463 U.S. 1032 (1983). A Blackberry, even one of the earlier clunkier models, poses no serious threat to officer safety. And even if Officer Ortiz searched Roldan out of concern for his safety, this would not justify seizing the phone. Once Officer Ortiz discovered that the object in question was a phone, he was no longer justified in seizing it. . . . Accordingly, the phone and any data obtained from the phone must be suppressed.

U.S. v. Garvey, supra.

This is one of two recently issued opinions that address the propriety of the seizure of a Blackberry. As I’ll explain in a later post, the other case came out very differently.

Browser Windows and the 4th Amendment

This post is about a Kentucky case in which a man who was using a library computer to browse child pornography wound up being indicted on federal charges. If you’d like to read a little more about the facts in the case, check out the news story you can find here.

The case is U.S. v. LaPradd, 2010 WL 3843140 (U.S. District Court for the Western District of Kentucky 2010) and this is how it arose:

On August 7, 2009, [Kenneth L.] LaPradd was at the University of Louisville Art Library using a public desktop computer. [The computers are in the lobby of the library, have unfiltered access to the internet, and are available for public use.] LaPradd was known to the library staff, as he frequently used the public computers and had been the subject of several complaints to the staff regarding a number of pornographic images other library patrons had seen on his computer terminal. In previous conversations with the University of Louisville Police Department (`ULPD’) about the patrons' complaints concerning LaPradd, the library's staff had been advised to call the ULPD when he next appeared at the Art Library. Upon sighting LaPradd on August 7, the library staff contacted the ULPD.

Following their arrival at the library, several ULPD officers observed LaPradd before approaching him. The officers were able to see that LaPradd was looking at pornographic images, but could not be certain whether the images constituted child pornography. At some point before the officers approached him, LaPradd minimized the internet browser windows on the computer screen, effectively concealing from the officers what he had been viewing. Officer David James of the ULPD eventually walked up to LaPradd, introduced himself as a police officer, and asked him if he would step outside the lobby of the library and speak with him. LaPradd agreed that he would.

Prior to making any inquiries of him, Officer James recited to LaPradd his constitutional rights as set forth in Miranda. Following that, Officer James asked whether LaPradd had been viewing child pornography on the computer, to which LaPradd answered in the affirmative. LaPradd also admitted to Officer James that he had pornographic images of children on a thumb drive that he had in his possession. Subsequent to this questioning, Officer James put LaPradd under arrest for violating Kentucky's laws forbidding child pornography.

During the conversation between Officer James and LaPradd outside the library lobby, other officers of the ULPD inspected the computer previously occupied by LaPradd. When they maximized the internet browsing windows, the officers discovered a number of pornographic images of children.

U.S. v. LaPradd, supra.

LaPradd was taken “to the ULPD office and interviewed” by Detective Jewell. U.S. v. LaPradd, supra. LaPradd waived his Miranda rights and told Jewell that while using the library computers he had “connected to internet sites containing images of nude children under the age of 18, saving a number of images on his thumb drive, and that he had images of children engaged in sexual acts in his apartment.” U.S. v. LaPradd, supra. LaPradd consented to a search of his apartment; the officers who conducted the search found, as the news story noted above explains, more images of child pornography on his home computer. U.S. v. LaPradd, supra.

Based on all this, LaPradd was indicted on two counts of violating 18 U.S. Code § 2252A by receiving and possessing child pornography. U.S. v. LaPradd, supra. He then moved to suppress the evidence arguing that

(1) Officer James's pre-arrest seizure of LaPradd at the Art Library was unlawful (2) there was no probable cause to arrest LaPradd for violating the child pornography laws of Kentucky and (3) the officers' search of the library computer, specifically maximizing the internet browser windows during LaPradd's conversation with Officer James, constituted an illegal, warrantless search in violation of the Fourth Amendment.

U.S. v. LaPradd, supra.

As to the first issue, the district court judge explained that the 4^th Amendment prohibition on unreasonable seizures bars a law enforcement officer from “seizing” a person unless the officer does so pursuant to a valid warrant or exception to the warrant requirement. U.S. v. LaPradd, supra. The court noted that under the 4^th Amendment, a “seizure” occurs during a citizen-police encounter “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” U.S. v. Mendenhall, 446 U.S. 544 (1980). The judge found LaPradd was not seized at the library because (i) the officer asked him if he would step outside and he agreed; (ii) the officer made no attempt to restrain LaPradd from leaving the area; and (iii) nothing in the facts showed that the officer was “forceful or aggressive” in dealing with LaPradd. U.S. v. LaPradd, supra.

As to the second issue, the judge found that the officer did, in fact, have probable cause to arrest LaPradd. U.S. v. LaPradd, supra. The Supreme Court has held that probable cause exists when “he facts and circumstances within” an officer’s knowledge and of which he/she has “ reasonably trustworthy information” are “sufficient to warrant a prudent man in believing that the [person to be arrested] had committed or was committing an offense.” U.S. v. LaPradd, supra; Brinegar v. U.S. 338 U.S. 160 (1949). The district court judge explained that

LaPradd's confession to Officer James that he had been looking at child pornography on the computer and had pornographic images of children on his thumb drive provided sufficient probable cause for LaPradd's arrest. That Officer James was uncertain exactly what the images portrayed or if they comported with the child-pornography prohibitions under Kentucky law at the time of the arrest is irrelevant given LaPradd's direct and unambiguous confession.

U.S. v. LaPradd, supra.

And that brings us to the third issue, the one I found interesting enough to do a post on this case. LaPradd argued that the officers’ maximizing the browser windows on the library computer constituted a 4^th Amendment “search” that was unreasonable because it was neither conducted pursuant to a valid search warrant nor pursuant to an applicable exception to the search warrant requirement. U.S. v. LaPradd, supra.

As I’ve explained in earlier posts, under the U.S. Supreme Court’s decision in Katz v. U.S., 389 U.S. 347 (1967), a “search” violates a reasonable expectation of privacy in a place or thing. Under Katz, you have a 4^th Amendment reasonable expectation of privacy in a place/thing if (i) you subjectively believe it’s private and (ii) society accepts your belief as objectively reasonable.

So, for the officers’ maximizing the browser windows to be a 4^th Amendment search, LaPradd would have had to have subjectively believed he had a 4^th Amendment expectation of privacy in the minimized windows and society would have to accept that belief as objectively reasonable. In the Katz case, Charles Katz used a phone booth to carry out gambling in violation of federal law; the FBI figured out what he was doing and put a bug, a wiretapping device, on the outside of the phone booth so they could record the conversations Katz held in the phone booth. Katz v. U.S., supra. Katz argued that he had a 4^th Amendment expectation of privacy in the conversations, and the Supreme Court agreed. The Court found that Katz subjectively believed the conversations were private and that his belief was one society, at the time, accepted as objectively reasonable . . . that, after all, was the whole purpose of having phone booths with doors that could be closed to reduce the likelihood of anyone’s overhearing a conversation.

I don’t know how LaPradd (or, more accurately, LaPradd’s attorney) constructed the argument that he had a 4^th Amendment expectation of privacy in the minimized browser windows because I don’t have access to the briefs in the case. All I have is this opinion. My guess, though, is that it went something like this: By minimizing the browser windows LaPradd demonstrated that he considered the information they contained to be “private” and this put the officers on notice that the windows were, in fact, “private” under the Katz test.

Whatever the argument was, it didn’t work:

LaPradd did not have a subjective expectation of privacy using the public computers at the Art Library. The computers are located in the lobby of the library and in plain view of the patrons and staff. Indeed, that other patrons saw LaPradd viewing pornographic images indicates just how little privacy is afforded those who use the Art Library's public computers. Additionally, access to the computers appears to be granted at the library staff's discretion, illustrating that LaPradd had ultimately no control over whether he could use the computer, and consequently could not have expected any privacy as to his computer-related activities. Finally, the internet sites to which the computer terminal was connected did not contain personal information relevant to LaPradd, such as an email account; instead they were generally accessible to all with a computer and the internet, and therefore LaPradd had no expectation of privacy in viewing those particular sites.

U.S. v. LaPradd, supra. I think this judge is right, at least in terms of the fact that it was a public computer over which LaPradd had no control and his use of which was exposed to other patrons in the library. I’m not sure I agree with the reasoning about the Internet sites which he had accessed, i.e., that there’s a difference between sites that contain my personal information and sites that don’t, insofar as the issue we’re dealing with is concerned.

I wonder if a court would reach the same conclusion if the minimized browser windows were on a privately-owned laptop being used, say, by a student in a classroom or by someone using a laptop in an airport . . . would it matter that the person owns the laptop? . . . or does the fact they are using it in a public place trump any expectation of privacy that might derive from personal ownership of the computer?

Downloading, Burning and Producing

This post is about a case in which the Michigan Supreme Court was required to decide whether downloading and burning images to a CD constituted (i) making or producing child pornography or (ii) merely possessing child pornography.

The case is People v. Hill, 486 Mich. 658, 786 N.W.2d 601 (Michigan Supreme Court 2010), and this is all I know about the facts that led to Brian Hill’s being charged:

[Hill] was charged with five counts of `arrang[ing] for, produc[ing], mak[ing], or financ[ing]’ child sexually abusive material, in violation of [Michigan Compiled Laws § 750.145c(2)], after a search of his two laptop computers and approximately 50 CD-Rs found in his bedroom. After being bound over for trial, [Hill] moved to quash the information with regard to these charges, arguing that the burning or saving of images or data to a CD-R does not rise to the level of producing or making child sexually abusive material. He further argued that the transfer of images from the Internet to his computer's hard drive and then to the CD-Rs constituted nothing more than the storage of data. Thus, he contended that he should only be charged with knowingly possess[ing]’ child sexually abusive material under [Michigan Compiled Laws § 750.145c(4)] because he had not originated the prohibited images.

People v. Hill, supra.

Michigan Compiled Laws § 750.145c(2) makes it a felony for someone to persuade, induce, entice, coerce, cause or knowingly allow “a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or . . . arrange[] for, produce[], make[], or finance[]. . . any child sexually abusive activity or child sexually abusive material”. Michigan Compiled Laws § 750.145c(4) provides as follows: “A person who knowingly possesses any child sexually abusive material is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $10,000.00, or both. . . .” And Michigan Compiled Laws § 750.145c(m) defines “child sexually abusive material” as

any depiction, whether made or produced by electronic, mechanical, or other means, including a developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or other visual or print or printable medium containing such a photograph, picture, film, slide, video, electronic visual image, computer, or computer-generated image, or picture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording.

Finally, Michigan Compiled Laws § 750.145c(b) defines a “child” as “a person who is less than 18 years of age”.

As noted above Hill was charged with 5 counts of violating § 750.145c(2) by “`arrang[ing] for, produc[ing], mak[ing], or financ[ing]’” child sexually abusive material, Hill moved to quash the charges against him on the premise that his conduct constituted possessing such material, not making or producing it. People v. Hill, supra. The trial judge denied his motion to quash the charges, explaining that

the only question, one of apparent first impression, is whether the act of downloading the image from the internet and `burning’ (recording) the image to a CD constitutes the `making’ or `production’ of such materials.

The dictionary . . . contains several definitions of the word `make.’ Among them are:

`To cause to exist, occur, or appear; create; to fit, intend, or destine by, or as if by creating; to bring into being by forming, shaping, or altering material; to put together from components.’

Applying this definition here, the `bottom line’ is that, after the requisite, mechanical, and technical functions, some things exist (CD-Rs with these images on them) that did not exist prior to that act.

People v. Hill, supra. Hill appealed the denial of the motion to quash the charges to the Michigan Court of Appeals, which upheld the trial judge’s ruling:

Regardless of whether [Hill’s] actions are viewed as copying the original photographs and videos, or copying electronic or computer visual images of the downloaded photographs and videos, the fact remains that copies and reproductions were made. Defendant's argument that use of the CD-Rs was just a mechanism by which to store possessed child pornography ignores the reality that the storing of the images was accomplished through the copying or duplication of already existing images that continued to exist after the images were burned onto the CD-Rs. The language of the statute is clear and unambiguous. The decision by the Legislature to specifically include reproductions or copies in defining `child sexually abusive material,’ which term is then incorporated into § 750.145c(2), leaves no room for a contrary judicial construction.

People v. Hill, 269 Mich. App. 505, 715 N.W.2d 301 (Michigan Court of Appeals 2006)). The Michigan Supreme Court declined to hear Hill’s appeal, he went to trial and was found guilty on all 5 counts. People v. Hill, supra. Hill appealed his conviction to the Court of Appeals, which affirmed the conviction and declined to reconsider its earlier decision on the producing versus possession issue. People v. Hill, supra. This time, the Michigan Supreme Court agreed to hear the case, and wound up reversing the Court of Appeals’ decision and vacating Hill’s convictions. People v. Hill, supra.

The Supreme Court began its analysis if the issue by noting that § 750.145c(2) creates a “graduated scheme” of offenses and punishments: producing child pornography (20 years); distributing it (7 years); and possessing it (4 years). People v. Hill, supra. The court then parsed the terms used in defining each component of this scheme:

Those who arrange for child sexually abusive material are involved at the front end of the process by identifying and coordinating the participants, equipment, and locations. . . . [T]he arranger has undertaken actions that lead to the actual production of the child sexually abusive material. Those who finance child sexually abusive material provide funding that leads to the same result. . . . `Produce’ refers to the conduct of those persons but for whom the production (the material) would not exist in the first place, i.e., those who have transformed an idea into a reality. Without those who have arranged for, financed, or produced, there would be no child sexually abusive material at all.

This leaves . . . `makes.’ Given the related definitions . . . of `arranges,’ `produces,’ and `finances,’ we believe `makes’ should be interpreted in a similar manner as meaning “`to cause to exist or happen’. . . . That is, `makes’ should be interpreted in the common fashion as referring to someone who is primarily involved in the creation or origination of the child sexually abusive material.

People v. Hill, supra. The Supreme Court explained that given how these terms are to be interpreted, it

is simply untenable to conclude that downloading an existing image from the Internet and burning it to a CD-R for personal use constitutes producing or making child sexually abusive material under § 750.145c(2). While such conduct certainly constitutes proof of knowing possession of such material, it does not constitute sufficient proof of the making or producing of that material.

People v. Hill, supra. The Supreme Court justices noted that they believed their

conclusion is reinforced by consideration of the manner in which most persons . . . think about other types of Internet downloading. It is common for computer users to legally, and sometimes illegally, download songs, movies, television shows, music videos, and books from the Internet. When such materials are . . . burned to a CD-R or . . . some other storage device, . . . few would be inclined to characterize that conduct as the making or producing of that song, movie, television show, music video, or book. Such a characterization would, to say the least, be strained and incompatible with the `common and approved usage of the language. . . .’

People v. Hill, supra (quoting Michigan Compiled Laws § 8.3a). Section 8.3a of the Michigan statutes gives courts guidance as to how statutory language is to be interpreted, i.e., in a manner consistent with the “common and approved use” of particular terms.

As this news story explains, the trial judge vacated Hill’s original convictions and sentences, the prosecutor amended the charges to 5 counts of possessing child pornography and 5 counts of using a computer to commit those crimes and Hill pled no contest to those charges. And as this story explains, a couple of weeks ago the trial judge sentenced Hill to “time served,” i.e., the “more than three years” he’d served in prison on the original charges, plus 15 months of probation. The judge also required that he either complete a program of sex offender therapy “or at least earnestly seek full-time employment.”

Text Messages “Not Inadmissible Hearsay”

As Wikipedia explains, in the law of evidence “hearsay” is information obtained by

one person from another concerning some event, condition, or thing of which the first person had no direct experience. . . . As a legal term, `hearsay’ . . . [refers to] the use of such information as evidence to prove the truth of what is asserted. Such use of `hearsay evidence; in court is generally not allowed. . . .

For example, a witness says `Susan told me Tom was in town’. Since the witness did not see Tom in town, the statement would be hearsay evidence to the fact that Tom was in town, and not admissible. However, it would be admissible as evidence that Susan said Tom was in town, and on the issue of her knowledge of whether he was in town.

And as I explained in an earlier post dealing with text messages, every U.S. state and the federal system bans the use of hearsay evidence unless it falls within one of several exceptions to the rule barring its use.

Rule 801(c) of the Federal Rules of Evidence defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 802 of the Federal Rules of Evidence says hearsay “is not admissible unless provided by these rules”. Every U.S. state has a similar provision. In an even earlier post, I explained that hearsay is excluded because to allow the use of second-hand evidence – John repeating what Jane allegedly told him – opens up all kinds of possibilities for unfairness and error. The hearsay rules are intended to guard against those possibilities.

That brings us to State v. Chavez, __ P.3d __, 2010 WL 3791977 (Arizona Court of Appeals 2010), which involved Rodolfo Chavez’s appeal of his “conviction and sentence for Possession of Dangerous Drugs” in violation of Arizona law. State v. Chavez, supra. This is how the case arose:

Police stopped Chavez at approximately midnight near Southern and Central Avenues in Phoenix because the license plate on the vehicle he was driving was not valid for highway use. They arrested him when they discovered that he was driving on a suspended license. In an inventory search of the vehicle, police discovered a baggie containing 790 milligrams of methamphetamine between the driver's seat and central console, a green camouflage bag containing a trace amount of methamphetamine and baggies (used for packaging drugs) on the floor in front of the passenger seat, and two cell phones on the front passenger seat. They also discovered a wallet, containing nearly $1,300 in various denominations, on the driver's seat. After reciting his Miranda rights, police asked Chavez if he knew why he had been arrested. Chavez responded that the drugs were for `personal use.’

State v. Chavez, supra. The officers later “retrieved text messages from the two cell phones found in the vehicle”, and the prosecution decided to use them as evidence at trial. State v. Chavez, supra. Chavez moved to suppress the messages, claiming they

constituted hearsay, because `[t]hey're statements to prove the fact of the matter asserted, and that is that [Chavez] was in possession and was attempting to sell drugs.’ The State argued that the text messages were not hearsay because they were statements of co-conspirators in furtherance of a conspiracy to sell drugs. The court agreed with the State. . . . At trial, an officer read to the jury six of the text messages, and testified that the messages were requests to purchase illegal drugs.

State v. Chavez, supra. The text messages at issue were as follows:

1) `Can you deliver a “T” to the house?’

2) `Hey, it's Mike. If you're up, can you at least let me get a 30 or 20, since you don't want to fix that thing from earlier?’

3) `It's Jessica. Just letting you know that I need a 60.’

4) `What up? I was wondering if you can drop a little something off?’

5) `I just need a half.’

6) `Can you deliver a 50-shot?’

The officer testified that the numbers in the text messages referred to a dollar amount of drugs, and `T’ was a common term for a `teener,’ or 1.8 grams of illegal drugs.

Chavez v. State, supra.

After being sentenced to seven years in prison, Chavez appealed his conviction, again arguing that the text messages were inadmissible hearsay. In his Reply Brief, Chavez explained why the messages were hearsay:

Hearsay is defined as `a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.’ [Arizona Rules of Evidence 801(c)]. The text messages were assertions by the out-of-court sender that the recipient had drugs for sale and were offered by the state as evidence that [Chavez] possessed drugs for sale.

For purposes of the rule, a statement is defined as an oral or written assertion.’ [Arizona Rules of Evidence 801a)]. Assertion is not specifically defined but Arizona courts have looked to the Federal Rules of Evidence in defining assertion. State v. Carillo, 156 Ariz. 120, 750 P.2d 878 (Arizona Court of Appeals 1987) (citing U.S. v. Zenni, 492 F.Supp. 464 (U.S. District Court for the Eastern District of Kentucky 1980), which quoted from the Advisory Committee Note to Federal Rules of Evidence 801). Thus, `[t]he effect of the definition of “statement” is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.’ Advisory Committee's Note, Federal Rules of Evidence 801.

Appellant’s Reply Brief, Chavez v. State, 2010 WL 1746591. The prosecution argued, in response, that none of the text messages were

intended by the declarants as `assertions’ of fact and none were offered to prove the truth of the words texted. All but three of the text messages were questions which simply do not amount to assertions of fact. . . . Moreover, they were not statements `which could be proven as true or false.’ [State v. Fischer,] 219 Ariz. at 417, 199 P.3d at 672 [Arizona Court of Appeals (2008)];. . . .

[Chavez’s] response to `Samantha,’ `Give me 30 minutes,’ was not an assertion of fact, [and] was not offered for the truth of the matter asserted. . . . The text `It's Jessica. Just letting you know that I need a 60’ and, `I just need a half’ were clearly not offered to prove the truth of the matters asserted (that these persons actually `needed’ a specific amount of illegal drugs), but as evidence of [Chavez’s]s intent to sell illegal drugs. . . .

Therefore, the text messages simply to not qualify as `hearsay’. . . .

Appellant’s Answering Brief, Chavez v. State, 2010 WL 1019033.

The Arizona Court of Appeals agreed with the prosecution. It found that the messages

in this case were not offered to prove the truth of the matter they asserted -- that the prospective buyers wanted to purchase drugs from Chavez. Rather, they were offered as circumstantial evidence that Chavez had drugs for sale. . . . The fact that multiple persons sent messages asking for drugs further supported an inference that those persons believed that Chavez had drugs for sale.

We agree with the courts outside this jurisdiction that have followed this or similar reasoning in rejecting hearsay objections to out-of-court statements from unidentified persons asking to buy drugs from a defendant. See, e.g., U.S. v. Rodriguez-Lopez, 565 F.3d 312 (U.S. Court of Appeals for the 6th Circuit 2009) (holding that requests to purchase heroin were not hearsay because the government did not offer them for their truth, nor did they assert anything); U.S. v. Oguns, 921 F.2d 442 (U.S. Court of Appeals for the 2d Circuit 1990) (holding that unidentified caller's question, “Have the apples arrived there?’ was properly admitted as non-hearsay because it was not an assertion); U.S. v. Lewis, 902 F.2d 1176 (U.S. Court of Appeals for the 5^th Circuit 1990). (holding that unidentified caller's question, `Did you get the stuff?’ was not an assertion and therefore was not hearsay).

State v. Chavez, supra. The court therefore upheld Chavez’s conviction and sentence. State v. Chavez, supra.