Wednesday, April 11, 2012

The Request to Delete Files, the Phone Call and Probable Cause

After being convicted of four counts of possessing child pornography in violation of Nebraska law and sentenced to “18 months probation on each conviction, with the terms to run concurrently, Benjamin J. Sprunger appealed.  State v. Sprunger, __ N.W.2d __, 2012 WL 967861 (Nebraska Supreme Court 2012).  On appeal, he argued, in part, that the “search that uncovered the images” which provided the factual basis for the child pornography charges violated the 4th Amendment.  State v. Sprunger, supra.
The case began on July 25, 2009, when the Washington County sheriff's office received a complaint from a man in Blair, Nebraska; the man reported that “about 2 weeks earlier” someone used “his bank debit/check card without his authorization to purchase computer equipment from a California company.”  State v. Sprunger, supra.
The deputies contacted the California company and it confirmed the purchase on the man's card. State v. Sprunger, supra. The computer equipment was sent to an address in New Jersey but the deputies subsequently learned that the “Internet protocol address used to make the purchase belonged to Sprunger at his apartment in Gretna, Nebraska.”  State v. Sprunger, supra.  Deputies from Washington and Sarpy Counties went to his apartment for a “`knock-and-talk.’” State v. Sprunger, supra.
Once there, they asked Sprunger about the purchase but he denied any knowledge of it. State v. Sprunger, supra. The deputies saw computers and other computer equipment in his apartment. State v. Sprunger, supra. But when they asked Sprunger if he would let them take the computers, he refused, telling them “they would need a warrant to take his computers.”  State v. Sprunger, supra.
In talking with Sprunger, the deputies learned he worked at a bank data processing center, where he had access to account information. State v. Sprunger, supra.  They also learned Sprunger was going to school to become a computer technician and so was likely well versed in computers. State v. Sprunger, supra.  The deputies left and applied for a search warrant, relying on an affidavit that recounted the information outlined above to establish probable cause for the search.  State v. Sprunger, supra.  “On October 29, 2009, the county court issued a warrant to seize `[a]ny and all computer equipment’ at Sprunger's apartment.”  State v. Sprunger, supra.
The deputies then returned to Sprunger’s apartment to execute the warrant.  State v. Sprunger, supra.  While the deputies were doing so, they learned “additional facts” that
led them to request a second search warrant. When the deputies told Sprunger they were there to take his computers, [he] asked if he could delete some files before [they] took his computers. The deputies denied him permission. Then, one deputy asked Sprunger if he had child pornography on his computers. When Sprunger said he did not, the deputy told Sprunger that if there was no child pornography on the computers, [he] had nothing to worry about.
A few days later, a lawyer representing Sprunger called the deputies. [He] asked about the child pornography case the deputies were working on. The lawyer [said] Sprunger told him `his computers had been taken to look for Child Pornography.’

State v. Sprunger, supra.
Using “these additional facts -- Sprunger's request to delete some files and the call from his attorney -- the deputies applied for a second search warrant.” State v. Sprunger, supra.  “On November 5, 2009, the county court granted a second warrant,” which “authorized a search of the computers for . . . child pornography.” State v. Sprunger, supra.  When they searched the computers, the deputies did not find “any evidence of the credit card crime” but they did find “what they believed to be child pornography.”  State v. Sprunger, supra.  It apparently turned out to be just that, because the State charged Sprunger with possessing child pornography. State v. Sprunger, supra. 
Sprunger moved to “suppress the results of the search warrants”, arguing neither was based on probable causeState v. Sprunger, supra. 
As to the first warrant, he argued that “the 3–month window between the alleged fraud and the application for the search warrant rendered the information [used to obtain the warrant] stale.” State v. Sprunger, supra. The trial judge denied Sprunger’s motion to suppress this warrant, finding that the information was not stale because (i) “the information would still have been on the computers unless Sprunger had deleted it” and/or (ii) “finding the user's physical address from the computer's IP address would take time.”  State v. Sprunger, supra. 
Sprunger’s motion to suppress the child pornography discovered when the deputies executed the second warrant was based on the argument that “the affidavit [used to obtain that warrant’ simply did not establish probable cause.”  State v. Sprunger, supra.  The trial judge also denied that motion to suppress, even though the judge agreed that
probable cause did not support the warrant for the child pornography search. But the court [found] the good faith exception saved the search. [It] determined that there would be little deterrent effect from excluding the evidence because Sprunger had not alleged maliciousness or intentional misconduct. The court recognized that the inquiry into good faith must be conducted from the vantage point of the officer.

The court concluded that the possibility Sprunger's attorney called the deputies about a child pornography investigation because Sprunger had mentioned having child pornography on his computer to his attorney was . . . enough to allow the deputies to rely on the warrant in good faith.

State v. Sprunger, supra. 
Although the Supreme Court’s opinion notes that Sprunger argued on appeal that the trial judge erred in denying both of his motions to suppress, the court only addressed the motion to suppress the second search warrant (presumably because that’s the one that led to the discovery of the child pornography).  State v. Sprunger, supra.  It began by noting that the 4th Amendment creates a right to be free from “unreasonable” searches and seizures and also states that
`no Warrants shall issue, but upon probable cause . . . and particularly describing the place to be searched, and the persons or things to be seized.’ . . . The execution of a search warrant without probable cause is unreasonable and violates [the 4th Amendment].

Accordingly, a search warrant, to be valid, must be supported by an affidavit [that] establishes probable cause. Probable cause sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found. . . .

In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a warrant, an appellate court applies a `totality of the circumstances test. The question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause.
State v. Sprunger, supra. 
The court then explained that since “[t]he State does not contend that the officers happened upon (or would have happened upon) the child pornography while searching for evidence of the credit card fraud”, the resolution of the case “turn[ed] on whether probable cause supported the second warrant authorizing the search for child pornography or, if probable cause did not support the warrant, whether the officers' reliance on [it] was objectively reasonable.”  State v. Sprunger, supra.  The State argued that “probable cause supported the warrant but, if not, exclusion of the evidence is inappropriate because of the Leon good faith exception.”  State v. Sprunger, supra. Sprunger argued that “not only was the warrant lacking probable cause, it was lacking probable cause to such a degree that reliance on the warrant was not objectively reasonable, and so exclusion is appropriate.”  State v. Sprunger, supra.
The State argued that two facts included in the affidavit used to obtain the second warrant established probable cause:  “ (1) Sprunger's request to delete files when the deputies came to seize his computers and (2) [his] lawyer's call to the sheriff's office in the days after the deputies executed the first warrant.”  State v. Sprunger, supra. The Supreme Court began its analysis of this argument by noting that the trial court found
there were two possible explanations . . . for the call from Sprunger's lawyer. First, that Sprunger told his attorney what a deputy said and his attorney called based on this fact. Second, that Sprunger admitted to his lawyer he had child pornography on his computers and that the lawyer unwittingly alerted the deputies to this fact. We interpret the [trial court’s] order as concluding there was no probable cause because the State did not present any evidence to show Sprunger had admitted to his lawyer that he had child pornography on his computers. We agree.
State v. Sprunger, supra. 
The court also found that the fact Sprunger’s lawyer called the deputies about the
investigation does not establish that [he] admitted to possessing child pornography. First, believing a lawyer would unwittingly suggest to investigators that a client may have committed a crime without knowing the reason for their investigation requires a leap of faith; the lawyer would have to be living in a mental darkroom. But more important, a deputy had told Sprunger he `should have nothing to worry about’ if no child pornography was found on his computers. Unsurprisingly, Sprunger then talked to a lawyer, as a reasonable person would after law enforcement had seized that person's property. The lawyer likely would have inquired about what the deputies said and did during the search. And the lawyer would have reasonably interpreted the one deputy's statement to mean Sprunger was under investigation for possessing child pornography. So the attorney's inquiry did not establish probable cause. It merely reflected the deputy's statement. . . . Sprunger's attorney's call to the deputies does not add to a finding of probable cause to search for child pornography.

This leaves only Sprunger's request that he be allowed to delete some files before the deputies took his computers away. But because this fact alone does not create probable cause for finding any particular evidence on the computers, it is insufficient.
State v. Sprunger, supra. 
The court next noted that the 4th Amendment also requires that a search warrant “particularly describe” the place to be searched and the things to be seized.  State v. Sprunger, supra.  It then explained that to establish probable cause for a search warrant,
it must be probable that (1) the described items are connected with criminal activity and (2) are to be found in the place to be searched.  Based only on the fact that Sprunger wanted to delete some files, the deputies could never say with particularity what it was they wanted to seize. They had no idea what files [he] might have wanted to delete. How could the deputies have had probable cause to believe that what they were looking for would be found on his computers when they did not even know what they were looking for?
State v. Sprunger, supra.  The Supreme Court noted that to “allow a search based only on the fact Sprunger wanted to hide something would sanction the type of general exploratory rummaging the Founders wished to prohibit” when they adopted the 4th Amendment.  State v. Sprunger, supra. Like the trial judge, the Supreme Court then found that the warrant was not based on probable cause.  State v. Sprunger, supra. 
Unlike the trial judge, it found the good faith exception did not apply here.  State v. Sprunger, supra.  The court noted that the good-faith inquiry is limited to the
`objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite a magistrate's authorization.’ Officers are assumed to `have a reasonable knowledge of what the law prohibits.
State v. Sprunger, supra (quoting U.S. v. Leon, 468U.S. 897 (1984)).
The court found that “the deputies’ reliance on the [second] warrant was not reasonable and thus did not bring it within the Leon good faith exception to the exclusionary rule.”  State v. Sprunger, supra.  In so doing, it noted that a reasonable police officer would
know that telling a person he had `nothing to worry about’ if he had no child pornography on his computer would lead that person to believe he was being investigated for child pornography. The deputy had effectively planted the idea in Sprunger's head. Given this, we do not see how the deputies could have objectively relied on the warrant. The deputies knew -- or certainly should have known -- that the only fact showing any connection to child pornography was of their own making.
State v. Sprunger, supra.  The court also found that given the facts in this case,
excluding the evidence serves the deterrence aim of the exclusionary rule by forbidding the use of evidence obtained through an obvious 4th Amendment violation. Conversely, to ignore such a blatant lack of probable cause would set a low bar for future police conduct.
State v. Sprunger, supra.  It therefore held that the trial judge should have granted Sprunger’s motion to suppress the child pornography and remanded the case for “proceedings consistent with this opinion.”  State v. Sprunger, supra.  

1 comment:

Anonymous said...

Its kinda sad that, on account of this bogus case, he still had to register as a sex offender. It's all over online.