Oxycontin, The Cell Phone and the 4th Amendment

On “the evening of March 14, 2010,” Seal Beach (California) Police Officer Philip Gonshak was

on routine patrol in downtown Seal Beach when he noticed [James] Kenney at an intersection. Because Kenney did not have a license plate on the front of his pickup truck, Gonshak decided to stop him for that infraction. . . . [B]efore doing so, [he] ran Kenney's rear license plate number through his dispatcher and discovered there might be a warrant out for Kenney's arrest.

While the dispatcher was looking into that issue, Gonshak pulled Kenney over and contacted him in the truck. After checking Kenney's driver's license, Gonshak asked him to step outside, so he could talk to him about the possible warrant. Kenney agreed and walked to the rear of his truck, while his front seat passenger, Adam Cirillo, stayed in the vehicle. . . .

Gonshak asked Kenney if there were any drugs or weapons inside his truck, and he said there was Oxycontin in the center console. Kenney also said he had just gotten out of rehab for his addiction to Oxycontin and had received a stomach implant to help him in his recovery. When asked if he had a prescription for the Oxycontin in his truck, Kenney said he did, but he did not know where it was.

People v. Kenney, 2012 WL 1207206 (California Court of Appeals 2012). 

While Gonshak Kenny were having this conversation, Gonshak heard from the dispatcher that

Kenney did in fact have an outstanding warrant, arising from a traffic matter.  . . . Gonshak arrested Kenney on the warrant and seized $890 from his back pocket. Gonshak then turned . . . to . . . Cirillo. Upon speaking with Cirillo, Gonshak saw he appeared to be under the influence of a controlled substance. He had Cirillo exit the truck, placed him under arrest, and sat him down on the curb next to Kenney. While a backup officer watched the two arrestees, Gonshak proceeded to search the truck.

People v. Kenney, supra.

In the “center console area” of the truck, Gonshak found

three prescription pill bottles in Kenney's name. One of the bottles was empty, one contained a few Xanax pills, and the other had 23 tablets of Oxycontin. Gonshak also found Kenney's cell phone on the driver's seat. Upon examining the phone, Gonshak discovered several text messages showing Kenney was involved in the sale of `beans’ and `bars,’ which are slang terms for Oxycontin and Xanax.

People v. Kenney, supra.

Based on what Gonshak found (and observed), Kenney was indicted on “drug charges” (the opinion doesn’t say exactly what they were) and moved to suppress the evidence found in his truck.  People v. Kenney, supra.  At the hearing the trial judge held on Kenney’s motion to suppress, his lawyer conceded that Kenney was

lawfully stopped for the traffic violation and arrested on the outstanding warrant. He also conceded Gonshak was lawfully entitled to search Kenney incident to arrest and seize the money in his back pocket. However, defense counsel argued the arrest did not give Gonshak the right to search Kenney's truck, seize his pills and cell phone, and read his text messages. 

People v. Kenney, supra. 

The prosecutor, in response, argued that “irrespective of the search-incident-to-arrest rule, Kenney's actions were justified under the `automobile exception’ to the warrant requirement, which allows the police to search a vehicle if there is probable cause it contains evidence of a crime.”  People v. Kenney, supra.  The opinion notes that the trial judge denied Kenney’s motion to suppress but “was not entirely clear in terms of explaining the basis for his ruling.”  People v. Kenney, supra.  We’ll get to the merits of those issues in a moment; first I have to finish outlining how the case came before the Court of Appeals.

After the case was bound over for trial, Kenney “renewed his motion to suppress” pursuant to California Penal Code § 1538.5(i), which triggered another hearing.  People v. Kenney, supra.  Gonshak testified in more detail at this hearing, explaining that when he approached Cirillo in the passenger seat, he noticed Cirillo’s “pupils were constricted, his speech was impaired, and there was a white pasty substance around his mouth”.  People v. Kenney, supra.  Cirillo also admitted “he had taken oxycodone and used marijuana that day, and he had previously been addicted to Oxycontin.”  People v. Kenney, supra.  Based on that, Gonshak arrested Cirillo for “for being under the influence of narcotics and cannabis.”  People v. Kenney, supra. 

Gonshak also testified that when he found Kenney's cell phone “in close proximity to the pills, he began to suspect Kenney might be involved in drug sales activity.”  People v. Kenney, supra.   Based on his experience investigating narcotics, Gonshak felt the phone “was a `very important’ piece of evidence bearing on that issue”, so he read the messages on the phone “to shed light on whether or not Kenney was dealing drugs.”  People v. Kenney, supra.  Gonshak said he did not seek a warrant to search the phone “because it would have taken a considerable amount of time, and he did not believe a warrant was necessary.”  People v. Kenney, supra. 

The prosecution and defense then basically renewed the arguments they had made at the original motion to suppress hearing, though now the prosecution seems to have relied more on the “automobile exception” than the “search incident” exception to justify the search.  People v. Kenney, supra.  (More on those below.) The trial judge again denied Kenney’s motion to suppress, he “pled guilty to the charges and was based on probation”, after which he appealed.  People v. Kenney, supra. 

As Wikipedia notes, and as I have explained in earlier posts, the 4^th Amendment creates a right to be free from “unreasonable” searches and seizures.  As Wikipedia notes, and as I have noted in earlier posts, a “search” violates a reasonable expectation of privacy under Katz v. U.S., 389 U.S. 347 (1967), i.e., officers explore a place or a thing which I subjectively believe is “private” and society agrees with me.  As Wikipedia notes and as I have noted in earlier posts, a “seizure” of a person interferes with that person’s freedom of movement; arresting someone is clearly a seizure.  And, finally, as Wikipedia explains, officers need a warrant – or an exception to the 4^th Amendment’s warrant requirement – to “search” and/or “seize.” 

As I’ve noted in earlier posts, search incident to arrest is an exception to the 4^th Amendment’s warrant requirement.  As Wikipedia notes, a search conducted pursuant to this exception is “limited to only the person arrested and the area immediately surrounding the person in which the person may gain possession of a weapon, in some way effect an escape, or destroy or hide evidence.” The search incident exception applies automatically once someone has been arrested, but to be valid, a search incident must stay within the scope of the exception.

Kenney argued that Gonshak’s search of his truck and cell phone did not stay within the scope of that exception and therefore violated the 4^th Amendment.  People v. Kenney, supra.  He relied on the Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332 (2009), in which the Court held that officers can “search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”  The resolution of this issue depended on the basis of the (alleged) search incident to arrest.

Kenney argued that if it was based on his arrest for the outstanding warrant – which was all he had been arrested for – then it was invalid because (i) he was not within reaching distance of the passenger compartment of his truck when Gonshak arrested him on the warrant and/or (ii) there was no evidence suggesting his “truck contained evidence relating to the traffic matter” which what the arrest was for.  People v. Kenney, supra.  The California Attorney General, who represented the prosecution, conceded this point.  People v. Kenney, supra. 

The Court of Appeals did not agree.  It found that the search incident exception justified Gonshak’s search of Kenney’s vehicle “because Kenney was already in lawful custody per the arrest warrant, and because there was probable cause to arrest him for illegal drug activity” based on what he had seen and heard in the course of making that arrest.  People v. Kenney, supra.  As the court noted, by the time Gonshak searched the truck, Kenney had

already told him: 1) there was Oxycontin in the vehicle; 2) he did not know where his prescription was; 3) he was a recovering from Oxycontin or heroin addiction; and 4) he had a stomach implant that was designed to counter the effects of any narcotics he ingested. Based on these statements, it was reasonable to infer Kenney was not supposed to have Oxycontin in his possession.

People v. Kenney, supra.

The Court of Appeals found (i) that this gave Gonshak probable cause to have arrested Kenney for drug possession and/or “activity” at that point and (ii) that because Kenney “was already in lawful custody per the arrest warrant, and because there was probable cause to arrest him for illegal drug activity, it matters not that no second arrest occurred”.  People v. Kenney, supra. In other words, the court said Gonshak didn’t have to arrest Kenney a second time – on drug charges – to be able to conduct a search incident of his truck and its contents.  People v. Kenney, supra. “A search conducted when there is probable cause to arrest may be carried out before the person is actually arrested for the suspected offense.”  People v. Kenney, supra.

The Court of Appeals also noted that another exception – the “automobile exception” also justified the search of the truck.  People v. Kenney, supra. As Wikipedia notes, this exception lets an officer “search a vehicle without a warrant as long as he or she has probable cause to believe that evidence or contraband is located in the vehicle.”  People v. Kenney, supra.  As noted above, the court found that Gonshak would have had probable cause to arrest Kenney a second time on drug charges, which meant Gonshak had probable cause to believe there were drugs in the vehicle, which meant he could search the vehicle for drugs pursuant to the automobile exception.  People v. Kenney, supra.

The Court of Appeals applied this section to reject Kenney’s argument that, aside from anything else, the 4^th Amendment did not justify Gonshak “look[ing] inside Kenney's phone and read[ing] his text messages for further evidence of drug activity.”  People v. Kenney, supra. It found that by the time Gonshak had seized the cell phone, he already had probable cause to believe Kenney “was involved in illegal drug activity”, which meant that under the automobile exception, “he not only had the right to search Kenney's truck, he also had the right to search any of its contents that could conceal evidence of the suspected crime.”  People v. Kenney, supra (emphasis in the original).  The court found  this would “logically include the cell phone, because, as Gonshak knew from his police experience, cell phones are commonly used by drug dealers to conduct illegal drug activity.”   People v. Kenney, supra.

It therefore rejected Kenney’s argument that “because cell phones are capable of storing a lot of personal information about the owner, they should be exempt from the general rule authorizing the warrantless search of a car's contents based on probable cause alone.”  People v. Kenney, supra. It noted that “in discussing that rule in a case involving the warrantless search of a cell phone, the California Supreme Court recently observed that `whether a particular container may be searched without a warrant does not depend on the character of the container’ and that the ‘”scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted.”’”  People v. Kenney, supra (quoting People v. Diaz, 51 Cal.4^th 84 (2011)). 

The Court of Appeals also applied the rationale noted above to the search of Kenney’s cell phone, i.e., that Gonshak had probable cause to arrest Kenney for drug “activity” before he read the text messages, which meant that reading the messages was a “search” that fell within the scope of the search incident exception.  People v. Kenney, supra.

So the court held that Kenney’s motions to suppress were properly denied and affirmed his conviction and sentence.  People v. Kenney, supra.

Delay in Obtaining Search Warrant for Cell Phone

As Wikipedia notes, the 4^th amendment requires that law enforcement officers

receive written permission from a . . . magistrate, to lawfully search and seize evidence while investigating criminal activity. A court grants permission by issuing a writ known as a warrant. A search or seizure is generally unreasonable and unconstitutional, if conducted without a valid warrant. . . .

The issue in U.S. v. Burgard, __ F.3d __, 2012 WL 1071706 (U.S. Court of Appeals for the 7thCircuit 2012) wasn’t whether the officers who searched Joshua Burgard’s cell phone got a warrant before they conducted the search.  It was whether they waited to long to get the warrant.

The case began on Wednesday, January 6, 2010, when one of Burgard’s friends

approached Sergeant Louis Wilson of the Smithton, Illinois, Police Department. The friend told Wilson he had seen sexual images of young girls (possibly aged 14 or younger) on Burgard's cell phone, and that Burgard, 21 years old at the time, had bragged about having sex with them. This friend agreed to serve as a confidential informant and text Wilson later that night if he was with Burgard and Burgard had the phone.

The informant followed through with the plan: that night, he texted Wilson that he and Burgard were driving together in the informant's car. Wilson then stopped the informant's car and seized Burgard's phone. Burgard voluntarily went to the police station where Wilson entered the phone into evidence and gave Burgard a property receipt.

U.S. v. Burgard, supra. 

As the Wikipedia passage quoted above notes, warrants are required to seize property as well as to search it.  In this case, the prosecution and defense agreed that Sergeant Wilson needed a warrant to search Burgard’s cell phone, but the Court of Appeals found he did not need a warrant to seize it:

In general, `seizures of personal property are “unreasonable within the meaning of the Fourth Amendment . . . unless . . . accomplished pursuant to a judicial warrant.”’ Illinois v.McArthur, 531 U.S. 326 (2001) (quoting U.S. v. Place, 462U.S. 696 (1983)). An officer may temporarily seize property without a warrant, however, if she has `probable cause to believe that a container holds contraband or evidence of a crime’ and `the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.’  U.S. v. Place, supra. 

U.S. v. Burgard, supra. 

The Court of Appeals also pointed out, however, that

Even a permissible warrantless seizure, such as the initial seizure here, must comply with the Fourth Amendment's reasonableness requirement. Thus, the Supreme Court has held that after seizing an item, police must obtain a search warrant within a reasonable period of time. See, e.g., Segura v. U.S., 468 U.S. 796 (1984). . . 

U.S. v. Burgard, supra. 

The “reasonableness” with which Wilson acted to obtain the necessary warrant was the issue here because he 

did not immediately apply for a state search warrant. Instead, he wrote a report about the seizure and forwarded it to Detective Mark Krug in nearby Collinsville, because Krug was assigned to work part-time with the FBI's Cyber Crimes Task Force. Wilson and Krug worked different shifts, however, and so Krug did not receive Wilson's report until the next day.

After Krug read the report, he tried to contact Wilson to learn more details, but again the shift differences got in the way and the two were unable to speak until later that night. The next day, Friday, January 8, Krug contacted the United States Attorney's Office to inform it that he planned to draft a federal search warrant for the phone. An Assistant United States Attorney (AUSA) told him to proceed with drafting the affidavit.

Some time that same day, an armed robbery occurred in Collinsville. Because the armed robbery was more pressing, Krug put the cell phone warrant aside and worked on the armed robbery investigation. . . . Krug may have continued to work on the robbery on Saturday, or he may have taken that day off. But by Sunday, he was able to return to Burgard's case and draft the affidavit.

On Monday morning, January 11, he sent his draft to the AUSA and the two went back and forth making edits. The next day, the AUSA finally presented a completed warrant application to the federal magistrate judge, who signed the warrant that day. Krug promptly searched the phone pursuant to the warrant and found numerous sexually explicit images of young girls.

U.S. v. Burgard, supra.  (For the process involved in obtaining a federal search warrant, see Rule 41(d) of the Federal Rules of Criminal Procedure.)

Burgard was charged with and pled guilty to two counts of receiving child pornography in violation of 18 U.S. Code § 2252(a)(2) and was sentenced to “210 months’ imprisonment and 15 years of supervised release.”  U.S. v. Burgard, supra.  (According to Burgard’s brief on appeal, the charges were based on law enforcement interviews with two young girls, each of whom said she sent “naked images of herself to Burgard.”  Brief of Appellee, U.S. v. Burgard, 2011 WL 2604030.)

On appeal, he claimed the district court judge erred in denying his motion to suppress the photographs found on his phone because “the police tarried too long before obtaining the warrant.”   U.S. v. Burgard, supra.  In other words, he argued that because the officers did not obtain the warrant in a “reasonable” period of time, the search violated the 4^th Amendment, which meant the evidence should be suppressed.  U.S. v. Burgard, supra. 

In analyzing the parties’ arguments on this issue, the Court of Appeals noted, first, that

[t]here is unfortunately no bright line past which a delay becomes unreasonable. Instead, the Supreme Court has dictated that courts must assess the reasonableness of a seizure by weighing `the nature and quality of the intrusion on the individual's 4th Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ U.S. v. Place, supra. 

U.S. v. Burgard, supra. 

The court found that on the individual’s “side of this balance,” the critical question

relates to any possessory interest in the seized object, not to privacy. . . . `A seizure affects only the person's possessory interests; a search affects a person's privacy interests.’ Segura v. U.S., supra.  The longer the police take to seek a warrant, the greater the infringement on the person's possessory interest will be. . . . But unnecessary delays also undermine the criminal justice process in a more general way: they prevent the judiciary from promptly evaluating and correcting improper seizures.

U.S. v. Burgard, supra. 

The Court of Appeals explained that on “the state’s side” of this equation,

a key factor in our analysis is the strength of the state's basis for the seizure. The state has a stronger interest in seizures made on the basis of probable cause than in those resting only on reasonable suspicion. All else being equal, the Fourth Amendment will tolerate greater delays after probable-cause seizures.

U.S. v. Burgard, supra.  It also noted that in balancing these “competing interests”, courts must also

`take into account whether the police diligently pursue[d] their investigation.’ U.S. v. Place, supra.  When police act with diligence, courts can have greater confidence that the police interest is legitimate and that the intrusion is no greater than reasonably necessary. Illinois v. McArthur, supra. When police neglect to seek a warrant without any good explanation for that delay, it appears that the state is indifferent to searching the item and the intrusion on an individual's possessory interest is less likely to be justifiable.

U.S. v. Burgard, supra.

The Court of Appeals found, after applying these standards, that it could not “say that the six-day delay here was so long that the seizure was unreasonable.”  U.S. v. Burgard, supra.   It “acknowledge[d]} that Burgard “had a strong interest in possessing his cell phone” since, among other things, he did not abandon it or “relinquish it to a third party” and “asserted his possessory interests over the phone by” going to the police station and obtaining “a property receipt, which would help him obtain the phone's return.” U.S. v. Burgard, supra. 

But it also found that “[o]n the other side of the equation, “law enforcement's interests were also strong.”  U.S. v. Burgard, supra.  Burgard “conceded that police had probable cause to believe that the phone would contain evidence of a crime.”  U.S. v. Burgard, supra. And the court tended to agree with Burgard’s argument that “that the officer was not diligent because he should have been able to submit the warrant application more quickly.”  U.S. v. Burgard, supra.

It strikes us as implausible that an officer with over 14 years of experience, like Krug, could not write a two-page affidavit in fewer than six days, especially when the affidavit drew largely on information that was contained in the initial report he received from Wilson.

The government argues that the delay was attributable to Krug's lack of familiarity with federal cell-phone warrants, but that explanation is not persuasive given the fact that the bulk of the warrant appears to be boilerplate. And although it is true that the detective's attention was diverted by a more serious robbery case, this did not take place until Friday, after three days had already passed.

U.S. v. Burgard, supra.

But the Court of Appeals also found that

police imperfection is not enough to warrant reversal. . . .  Krug may theoretically have been able to work more quickly, but his delay was not the result of complete abdication of his work or failure to `see any urgency’ as in [U.S. v. Mitchell, 565 F.3d 1347 (U.S. Court of Appeals for the 11^th Circuit 2009)].

He wanted to be sure he had all the information he needed from the seizing officer and he wanted to consult with the AUSA, all the while attending to his other law enforcement duties. We do not want to discourage this sort of careful, attentive police work, even if it appears to us that it could or should have moved more quickly.

U.S. v. Burgard, supra.

The court ultimately found that the six-day delay in this case was not

so unreasonable as to violate the Constitution. Burgard argues that this outcome could `give authorities license to retain seized property for long periods of time merely because they chose not to devote a reasonable amount of resources and sufficient experienced personnel’ to the task of obtaining warrants.

Given the fact-specific nature of these inquiries, we think these fears are overblown. It remains possible that a police department's failure to staff its offices adequately or to give officers sufficient resources to process warrant applications could lead to unreasonable delays. But this case does not present that sort of egregious abdication of duties.

U.S. v. Burgard, supra.

The Court of Appeals therefore affirmed “the district court's denial of Burgard's suppression motion and thus the judgment of the court.”  U.S. v. Burgard, supra.

Unlawful Access and Taking Confidential Data From a Computer

After being convicted of unlawfully accessing a computer database in violation of Florida Statutes §§ 815.06(1) and 815.06(2) and obtaining trade secret or confidential data in violation of Florida Statutes §§ 815.04(3)(b) and 814.04(4)(a), Maria Chung Willoughby appealed.  Willoughby v. State, __ So.3d __, 2012 WL 1192139 (Florida Court of Appeals 2012). 

This is how the prosecution arose:

Willoughby was hired as a financial specialist with Our Kids of Miami–Dade and Monroe Counties, an agency which works with the Department of Children and Families to provide services to abused and neglected children. Willoughby was provided access to Our Kids' and the Department's confidential computer network after agreeing to her employer's computer security requirements.

When she complained that the employer-provided computer was too slow, Willoughby's personal laptop computer was connected to Our Kids' computer network. Willoughby was told that she was authorized to use her laptop to access her employer's network but that she could not transfer any data from the employer's computer system into her laptop.

Subsequently, Willoughby's supervisor became aware that Willoughby had written a ten-page email outlining perceived inefficiencies in Our Kids' operation. The supervisor also suspected that Willoughby may have transferred confidential data to her laptop.

The supervisor asked to search Willoughby's computer, and Willoughby allowed the search. During the search, however, when she saw that her personal files were being accessed, Willoughby took back her laptop, stated that she was resigning, and left the premises.

Willoughby v. State, supra.

Willoughby’s employer apparently went to the authorities, because police “subsequently obtained a warrant to search [her] home and seized the laptop.” Willoughby v. State, supra.  When they examined the laptop, officers discovered “Willoughby had emailed her employer's client trust fund master list to her laptop.”  Willoughby v. State, supra. 

Willoughby was arrested and charged with the crimes noted above, i.e., “unlawfully accessing a computer database” and unlawfully “obtaining trade secret or confidential data”.  Willoughby v. State, supra.

At her trial, Willoughby’s attorney moved for a judgment of acquittal on both charges  “based on the State's failure to prove [she] was not authorized to access the computer database.” Willoughby v. State, supra.  The motion was presumably made pursuant to Florida Rules of Criminal Procedure Rule 3.380(a), which provides that

[i]f, at the close of the evidence for the state or at the close of all the evidence in the cause, the court is of the opinion that the evidence is insufficient to warrant a conviction, it may, and on the motion of the prosecuting attorney or the defendant shall, enter a judgment of acquittal.

The judge who presided over Willoughby’s trial denied both motions and the “jury returned a verdict of guilty as to both counts”, i.e., as to both charges.  Willoughby v. State, supra.  He put Willoughby on probation for four years, after which she appealed her conviction to the Court of Appeals.  Willoughby v. State, supra. 

On appeal, Willoughby again relied on her argument that the prosecution did not prove beyond a reasonable doubt that she was not authorized to access her employer’s database.  Willoughby v. State, supra. 

The Court of Appeals began its analysis of this argument by outlining the applicable law and the elements the prosecution was required to prove in order to lawfully obtain a conviction:

[As] to count one, section 815.06(1)(a) of the Florida Statutes provides that anyone who `willfully, knowingly, and without authorization . . . [a]ccesses or causes to be accessed any computer, computer system, or computer network . . . commits an offense against computer users.’

Access is defined as `to approach, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of a computer, computer system, or computer network.’ [Florida Statutes] § 815.03(1).

Subsection (6) of section 815.06 clarifies that the section `does not apply to any person who accesses his or her employer's computer system . . . when acting within the scope of his or her lawful employment.’

Therefore, to prove this offense, the State must show that: (a) the defendant willfully, knowingly, and without authorization, (b) accessed a computer system, and (c) if the employer's system, that defendant acted outside the scope of his or her lawful employment.

Willoughby v. State, supra. 

After reviewing the evidence in the case, the Court of Appeals agreed with Willoughby:

Here, the State failed to show that Willoughby was not authorized to access Our Kids' computer network. The evidence demonstrated that Willoughby's supervisor authorized Willoughby to access Our Kids' computer network to perform her job.

Additionally, Willoughby's personal laptop was connected to the Our Kids computer network by the employer's network administrator.

Willoughby v. State, supra. 

The court therefore held that “because Willoughby received authorization to access Our Kids' computer network, count one is reversed as the State failed to prove that Willoughby's conduct violated section 815.06.”  Willoughby v. State, supra.  So she succeeded in getting one of her convictions reversed.  Willoughby v. State, supra. 

The Court of Appeals then took up Willoughby’s conviction on Count II.  Willoughby v. State, supra. This count charged her with (and she was convicted of)

a violation of section 815.04(3)(b) of the Florida Statutes which states, `Whoever willfully, knowingly, and without authorization discloses or takes data, programs, or supporting documentation which is a trade secret ... or is confidential as provided by law residing or existing internal or external to a computer, computer system, or computer network commits an offense against intellectual property.’

Willoughby v. State, supra. 

The Court of Appeals explained that “to prove this crime the State must show that the defendant willfully, knowingly, and without authorization disclosed or took a trade secret or confidential data from a computer network.”  Willoughby v. State, supra.  It found that in this instance, the prosecution had succeeded:

Here, the State proved that Willoughby did not have authorization to download any data from her employer's computer system to her personal laptop. The State also proved that Willoughby transferred confidential data from her employer's system to her laptop. Thus, the State proved all the elements of the crime.

Willoughby argues that she committed no crime because she did not have a malicious purpose in transferring the confidential information to her personal laptop, but rather, that her purpose was to work from her home. 

However, section 815.04(3)(b) does not include a requirement that the defendant have a malicious purpose. Rather, the statute requires only that the defendant's conduct be willful, knowing, and without authorization.

Willoughby repeatedly was informed that she could not obtain any of the data from her employer's network system. Willoughby, nonetheless, emailed her employer's client trust fund master list to her laptop. Because Willoughby transferred confidential files to her personal computer without authorization, she was properly charged with the taking of intellectual property.

Willoughby v. State, supra. 

The court therefore affirmed her conviction on Count II and remanded the case to the trial judge, presumably for resentencing in light of the reversal of her conviction on Count I, the unauthorized access charge.  Willoughby v. State, supra. 

Cell Phone Records, Third-Parties and Privacy

After being convicted of obstructing official business in violation of Ohio Revised Code § 2921.31, Robert J. Young appealed, arguing that the trial judge denied his motion to suppress certain evidence.  State v. Young, 2012 WL 1268667 (Ohio Court of Appeals 2012).  Ohio Revised Code § 2921.31(A) provides as follows:

No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official's official capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties.

The case began on June 7, 2010, when a

17–year–old girl went missing from the Norwalk home of her grandparents. Sometime after the girl's disappearance, police began to suspect that her 20–year–old boyfriend, . . . Robert Young, was harboring her or knew where she was. [Young] denied such knowledge, but police remained suspicious.

State v. Young, supra.

On June 9, 2010,

without [Young’s] consent or review by a judge or magistrate, police obtained [his] cell phone records from his carrier, Verizon Wireless, by submitting a single page Emergency Request Form.

Police also obtained the 17–year–old girl's cell phone records with the consent of her mother. The records acquired contained, not only the numbers that had been called, but also the content of the text messages that had been exchanged.

The 17 year old was eventually found living in an apartment rented by [Young]. She had not been held against her will. The girl was returned to her parents.

State v. Young, supra.

The police charged Young with “with obstructing official business, a second degree misdemeanor.”  State v. Young, supra.  He pled not guilty and moved to suppress the cell phone records the police had obtained without a warrant.  State v. Young, supra.  The trial judge held a hearing on Young’s motion to suppress, at which the

investigating officer testified that the records had been obtained without a warrant and that, at the time the records were requested, although police has strong suspicions, he did not believe police had probable cause to obtain a warrant.

Moreover, the officer testified, at the time he did not believe a warrant was needed where an Emergency Request Form was used. A subpoena for the records issued only after [Young] was charged.

State v. Young, supra.

Young had some success with his motion to suppress.  The trial judge sustained his

motion, in part. The court concluded that [Young] had a reasonable expectation of privacy in the content of his text messages even though those messages were maintained in records held by a third party, his cell phone provider.

As a result, the police had no right to obtain these records absent [Young’s] consent, a warrant issued on probable cause or a recognized exception to a warrant requirement. Since no warrant had been obtained, the court suppressed the text messages that had been produced by [Young’s] cell provider.

State v. Young, supra. 

(If you’re not familiar with the use of "emergency letters" and how the 4^th Amendment works, and does not work, in the context of records – cell phone records, utility records, etc. – held by third parties, you might want to check out this blog post, which surveys the state of the law in this area.  You can also read more about it in the article you can find here.)

The judge also, however, denied Young’s motion to suppress, in part:

The court refused . . . to suppress messages [Young] had sent to the 17 year-old's cell phone that had been acquired with the consent of her mother from the girl's cell phone provider. These, the court ruled, could be used in evidence.

State v. Young, supra. 

Young then pled “no contest” and was found “guilty as charged”.  State v. Young, supra.  The judge “fined him $200” and sentenced Young “to jail for 90 days, 60 suspended, and two years of probation.”  State v. Young, supra.  As I noted earlier, he appealed, challenging the partial denial of his motion to suppress.  State v. Young, supra. 

The Court of Appeals began its analysis of Young’s argument that the “seizure” of the messages he sent to the girl was an “unreasonable” seizure that violated the 4^th Amendment:

The 4th Amendment and the OhioConstitution, Article I, Section 14, guarantee that individuals be free from unreasonable searches and seizures. Evidence obtained in violation of this guarantee must be excluded from introduction in any criminal trial. . . . Searches conducted without a probable cause based warrant are per se unreasonable, subject to only a few specifically established and well-defined exceptions. 

State v. Young, supra. 

As I’ve noted in earlier posts, the same principle applies to searches and seizures, i.e., either is “unreasonable” and violates the 4^th Amendment if it is not conducted pursuant to a warrant or an exception to the warrant requirement. As noted above, the opinion says Young was arguing that the police’s obtaining the messages was a 4^th Amendment “seizure,” but the rest of the opinion focuses on his argument that the police’s obtaining them violated his 4^th Amendment right to privacy.  State v. Young, supra. 

As I’ve explained in earlier posts, a “search” violates a “reasonable expectation of privacy” under the Supreme Court’s decision in Katz v. U.S., 389 U.S. 347 (1967).  And as I’ve also noted, to have a reasonable, Katz expectation of privacy in a place or thing, I must personally believe that place or thing is “private” and society must accept my belief as objectively reasonable  

So if someone is walking around an airport terminal talking loudly on a cell phone and planning a crime, he/she may personally believe the conversation is private (however unrealistic that may seem) but a court would find that that belief, it if existed, was objectively unreasonable, which means it wouldn’t be a search for a police officer to listen to the conversation and use it as probable cause to obtain a search/arrest warrant.

That brings us back to the Court of Appeals and Mr. Young.  The court next explained that

There are limits on who may assert the right to suppress evidence obtained in violation of the Fourth Amendment. `[S]uppression of the product of a 4th Amendment violation can be successfully urged only by those whose rights were violated by the search itself[.]' Alderman v. U.S.,394 U.S. 165 (1969). `Fourth Amendment rights are personal in nature and may not be vicariously asserted by others.’ State v. Dennis, 79 Ohio St.3d 421, 683 N.E.2d 1096 (1997). 

`A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.’ Rakas v. Illinois, 439 U.S. 128 (1978).

For a person to have been aggrieved by an unlawful search or seizure, he or she ‘“‘must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.’“’ Alderman v. United States, supra (quoting Jones v. U.S., 362 U.S. 257 (1960)). `We adhere to these cases and to the general rule that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.’ Id. at 174.

State v. Young, supra.  In other words, I can’t successfully move to suppress evidence that was obtained in violation (only) of your 4^th Amendment rights.

The Court of Appeals then addressed the significance of this issue in the context of the Young prosecution.  It began by noting that Young

raises many interesting, and perhaps novel, questions about the nature of the privacy expectations of text messages stored by third parties. Nonetheless, the trial court suppressed the evidence that was obtained from [Young]'s cell phone provider.

The issue is whether the records obtained from [his 17–year–old girlfriend's cell phone provider, with the consent of her mother, should be excluded.

State v. Young, supra.  I wish I could tell you what those questions are, but I don’t have access to the appellate briefs in this case and the opinion doesn’t provide any more information on what they were.

The Court of Appeals went on to note that the

parties engage in considerable argument as to whom the girlfriend's cell phone belonged, whether a minor can contract and whether a minor's mother can consent in circumstances like these. None of these issues is dispositive, because [Young] was not the aggrieved party.

Suppression might be an issue if the information obtained from the girlfriend's cell phone provider were to be offered against the girlfriend. In such an instance, she could raise the issue. But [Young] has put forth nothing that would establish that he had any reasonable privacy expectation in his girlfriend's phone records.

State v. Young, supra. 

The Court of Appeals held that since Young’s 4^th Amendment rights were not violated by the police’s obtaining messages from his girlfriend’s cell phone provider, the trial judge did not err in denying his motion to suppress that evidence.  State v. Young, supra.  It therefore affirmed the judgment, and sentence, of the lower court. State v. Young, supra. 

(The photo, in case you’re wondering, is of Norwalk, Ohio, which is where this case arose.)

The Computer System, Voter Intimidation and Obstruction of Justice

After Tan Duc Nguyen was convicted in federal court of obstruction of justice in violation of 18 U.S. Code § 1512(b)(3)  for "failing to disclose the full extent of his knowledge regarding the mailing of a letter that could reasonably be believed to constitute an attempt at voter intimidation”, he appealed.  U.S. v. Tan Duc Nguyen, __ F.3d __, 2012 WL 974995 (U.S. Court ofAppeals for the 9th Circuit 2012). 

Nguyen argued that because the search warrant that led to the discovery of evidence used against him in the prosecution was not supported by probable cause, the district court judge should have granted his motion to suppress.  U.S. v. Tan Duc Nguyen, supra.

This, according to the opinion, is how the prosecution arose: 

Beginning on October 11, 2006, Mailing Pros, Inc., a mass mailing service, mailed approximately 14,000 letters, on behalf of a customer known as `Mark Lam,’ to individuals on a mailing list comprised of `newly registered voters with Hispanic surnames . . . who were born outside of the United States’ and had registered as Democrats or `decline to state.’ The letter was written in Spanish and, among other things, advised recipients `there is no incentive for voting in this country.’

They were informed that if they voted in the upcoming election . . .their personal information would be collected by a newly implemented government computer system, and organizations that were `against immigration’ might request information from this system. The letter also encouraged citizens to `participate in the democratic process of voting,’ but warned those who `are in this country illegally or [are] legal resident[s]’ that `voting in a federal election is a crime’ that could result in incarceration and deportation.

The California Attorney General's office began an investigation . . . after receiving complaints regarding this letter. . . . [It] ultimately led agents to Tan Nguyen, the Republican candidate for U.S. Congress in the 47th District of California. Nguyen was running against the Democratic incumbent, Loretta Sanchez, a Latina who had strong support in the Hispanic community.

U.S. v. Tan Duc Nguyen, supra.

Agents from the California Attorney General's office interviewed Nguyen on October 19, 2006. U.S. v. Tan Duc Nguyen, supra.  He admitted “having limited knowledge of the letter prior to its mailing, “ but said he believed “it was created and distributed by an acquaintance, Mark Nguyen, also known as `Mark Lam,’ and sent independently from the campaign. U.S. v. Tan Duc Nguyen, supra. Shannon Williams, the agent in charge, did not believe Nguyen's account of the letter and sought a warrant to search his home and campaign headquarters. U.S. v. Tan Duc Nguyen, supra.

In the affidavit supporting the application for the warrant, Williams stated that “`there existed a conspiracy or agreement between [ ] Nguyen, Mark Nguyen and perhaps other [sic] to draft, produce and mail out letters to the targeted Orange County voters to benefit [ ] Nguyen's Congressional campaign by discouraging a discreet [sic] and perceived vulnerable set of potential voters who would be expected to favor his Democratic opponent in the upcoming election.’” U.S. v. Tan Duc Nguyen, supra.  The affidavit included a number of facts that linked Nguyen and his campaign to the letter. U.S. v. Tan Duc Nguyen, supra. The facts alleged in the affidavit included a statement from the

proprietor of Mailing Pros, who received a call from Nguyen asking the company to expedite the mailing job for customer Mark Lam. [It] also included a statement from an employee of the company that provided the targeted mailing list used, informing agents the list had been requested by Nguyen.

The affidavit noted the agent had been advised by . . . the Attorney General's office that the letter `could constitute a violation of [California] Election Code §§ 18540, use of threats to influence voting, 18502, interference with an election, and 18543, challenging a person's right to vote.’ Attached to [it] was a copy of an email exchange from September 2006 produced by Nguyen in which he discussed the contents of the letter with campaign supporter Roger Rudman and an English-language translation of the letter received by the targeted voters.

U.S. v. Tan Duc Nguyen, supra. 

The state court magistrate issued the warrant, state agents searched Nguyen’s home and campaign headquarters, “seized documents and computers, and found emails showing greater involvement by [him] in the drafting and mailing of the letter than he had previously acknowledged.”   U.S. v. Tan Duc Nguyen, supra.  Ultimately, the state did not file charges; in a May, 2007 press release, the California Attorney General said the state did not intend to prosecute Nguyen.  U.S. v. Tan Duc Nguyen, supra. 

In October of 2007, after “the election took place and Nguyen lost his bid to unseat Sanchez, a federal investigation was” opened. U.S. v. Tan Duc Nguyen, supra.  Federal agents did not find “any new information or evidence related to the sending of the letter” and neither Nguyen nor “any of his associates” were charged with violating federal election law. U.S. v. Tan Duc Nguyen, supra.  Nguyen was, as noted above, charged with obstruction of justice in violation of 18 U.S. Code § 1512(b)(3), for failing to “disclose to state agents the full extent of his knowledge regarding the creation and mailing of the letter at issue.” U.S. v. Tan Duc Nguyen, supra.  

Section 1512(b)(3) makes it a federal crime to “hinder, delay, or prevent the communication to a [federal] law enforcement officer . . . of the United States of information relating to the commission or possible commission of a Federal offense”.  Federal authorities claimed Nguyen “`tried to hinder or prevent information from getting to sources that may ultimately turn out to be a federal investigation [for voter intimidation under federal law].’” U.S. v. Tan Duc Nguyen, supra.  

Nguyen didn’t challenge the charge on appeal; instead, he claimed the warrant that led to evidence that was used against him was not based on probable cause.  U.S. v. Tan Duc Nguyen, supra.  If that was true, it would mean the evidence should have been suppressed which, I’m guessing, would have made it difficult or even impossible for prosecutors to have obtained a conviction.  U.S. v. Tan Duc Nguyen, supra.  

The Court of Appeals began its analysis of his argument by noting that a warrant is “validly issued if there is a substantial basis for the magistrate's conclusion that `given all the circumstances set forth in the affidavit. . . there is a fair probability that . . . evidence of a crime will be found in a particular place.’” U.S. v. Tan Duc Nguyen, supra (quoting Illinois v. Gates, 462 U.S. 213 (1983)).  Nugyen did not claim the magistrate “lacked a sufficient basis to conclude evidence pertaining to the creation and mailing of the letter could be found at his home and campaign headquarters.”  U.S. v. Tan Duc Nguyen, supra. He argued that mailing the letter “did not amount to a violation of any law, and, consequently, could not provide a substantial basis for concluding there was probable cause to believe a crime had been committed.”  U.S. v. Tan Duc Nguyen, supra.  

The Court of Appeals then pointed out that in her application for the warrant, Williams “sought no more than evidence that would connect Nguyen to the mailing of the letter, and did not suggest evidence of further criminal activity could be found in the locations to be searched.”  U.S. v. Tan Duc Nguyen, supra.  It noted that the warrant “related only to the letter” and authorized agents to “search for evidence related to the mailing of a letter `advising the addressee that it is illegal for a resident illegally in the country to vote.’” U.S. v. Tan Duc Nguyen, supra.  It found that since mailing the letter was “the only act alleged to have constituted a crime,” the probable cause determination had to be based on the “purported illegality” of the letter. U.S. v. Tan Duc Nguyen, supra.  If the letter “combined with the circumstances of its mailing as described to the magistrate clearly did not amount to a violation of the law, there was no probable cause, and the warrant was invalid.”  U.S. v. Tan Duc Nguyen, supra. 

In her affidavit, Agent Williams “listed three provisions she believed the letter `could’ have violated: California Election Code §§18502, 18543, and 18540.”  U.S. v. Tan Duc Nguyen, supra.  Section 18502 makes it a crime to interfere with “officers holding an election or conducting a canvass, or with the voters lawfully exercising their rights of voting at an election.”  U.S. v. Tan Duc Nguyen, supra.  The Court of Appeals found that since mailing a letter “weeks prior to an election” could not have interfered either with officers holding an election or with voters exercising their rights at an election, mailing this letter “could not have constituted a violation of this statute, and thus could not provide probable cause” for issuing the warrant.  U.S. v. Tan Duc Nguyen, supra. 

Section 18543 makes it a felony to conspire to “fraudulently advise[ ] any person that he or she is not eligible to vote . . . when in fact that person is eligible.” U.S. v. Tan Duc Nguyen, supra. The Court of Appeals noted that (i) the “plain language of the statute criminalizes advising eligible voters that they are not eligible to vote” and (ii) “[o]nly United States citizens are eligible to vote.” U.S. v. Tan Duc Nguyen, supra (citing California Constitution Article 2 § 2).  And it explained that the letter at issue here

expressly states that `[i]f you are a citizen of the United States, you are kindly asked to participate in the democratic process of voting.’ It goes on to state that those illegally in the country or `legal residents’ cannot legally vote and may be subject to incarceration and deportation. Because only U.S. citizens may vote, the letter does not `fraudulently advise’ any eligible voter that he or she is ineligible to vote, as required to violate § 18543. There is therefore no basis for concluding that the letter violated §18543, and . . . no basis for concluding there is a fair probability that the facts alleged in the affidavit constituted a violation of this statute.

U.S. v. Tan Duc Nguyen, supra.

The court then examined the third provision:  California Election Code § 18540, which makes it a felony to “use any `tactic of coercion or intimidation, to induce or compel any other person to refrain . . . from voting.’” U.S. v. Tan Duc Nguyen, supra.  It noted that in Hardeman v. Thomas, 208 Cal. App.3d 153, 256 Cal. Rptr. 158 (1989), the California Court of Appeals held that the type of intimidation § 18540 encompasses “is not limited to displays or applications of force, but can be achieved through manipulation and suggestion.”  U.S. v. Tan Duc Nguyen, supra.

The court pointed out that the letter in this case (i) was sent to “foreign-born individuals with Hispanic surnames—that is, those believed to be Latino immigrants”; (ii) was mailed by  “individuals associated with a Republican congressional candidate” and (iii) was sent “specifically to voters who registered as Democrats or declined to state their party affiliation.” U.S. v. Tan Duc Nguyen, supra.

The intended recipients, therefore, were  “individuals who, as the affidavit stated, “`would be expected to favor [Nguyen's] Democratic opponent in the upcoming election.’” U.S. v. Tan Duc Nguyen, supra. The Court of Appeals found that the “contents of the letter and the circumstances of its distribution” were enough to allow the state magistrate to find there was probable cause to believe that the mailing constituted a violation of § 18540 because the letter targeted

immigrant voters with threats that their personal information would be provided to anti-immigration groups if they exercised their right to vote, and was mailed by a campaign with a vested interest in inducing these voters -- members of the competing political party and of a minority group supporting the opposing candidate -- not to vote in the upcoming election.

U.S. v. Tan Duc Nguyen, supra.

The court also found that the lack of a state prosecution did not undermine the existence of probable cause to believe § 18540 had been violated:

Upon further investigation, the state may have determined Nguyen lacked the necessary scienter to violate the statute . . . or . . .was not sufficiently involved with the letter's creation and mailing to justify prosecution. Even if the state believed Nguyen's conduct did satisfy the elements of the statute, the Attorney General's office may have had any number of reasons for electing not to prosecute the former candidate, including its exercise of prosecutorial discretion. The absence of a state prosecution does not signify that Nguyen's conduct did not amount to a violation of the law. . . . There was . . . sufficient probable cause to support the issuance of the warrant to search Nguyen's home and campaign headquarters.

U.S. v. Tan Duc Nguyen, supra.

The Court of Appeals therefore affirmed Nguyen’s conviction and his sentence of “twelve months and one day in prison.”  U.S. v. Tan Duc Nguyen, supra.