The Cell Phone, the Property Room and the 4th Amendment

After he was indicted for “improper photography or visual recording” in violation of Texas Penal Code § 21.15(b), Anthony Granville moved to suppress the evidence.  State v. Granville, __ S.W.3d __, 2012 WL 2847903 (Texas Court of Appeals 2012). 

This is all the opinion says about how the case arose:

The cell phone . . . belonged to Anthony Granville and was taken from him after being arrested and jailed for causing a disturbance at his school. While the phone was within official custody, an officer, having nothing to do with the arrest or any investigation into the disturbance, acquired it.

He did so because he had been told Granville took a picture of a student urinating in a urinal at school the day before. This act was purportedly a crime which stimulated the officer to begin his search for evidence of it. So, without a search warrant, he ventured down to the jail, took Granville's cell phone from the property room, turned it on, and began scrolling through it for the picture in question. It was eventually discovered on the device, and that led to Granville's indictment. . . .

State v. Granville, supra.

The trial court judge granted the motion to suppress “the evidence garnered from the cell phone”, apparently agreeing with Granville that “the officer’s actions constituted an unlawful search.”  State v. Granville, supra. The prosecution then appealed.  State v. Granville, supra.

The Court of Appeals then noted that the issue on appeal was “[m]ay an officer conduct a warrantless search of the contents or stored data in a cell phone when its owner was required to relinquish possession of the phone as part of the booking or jailing process?”  State v. Granville, supra.  More precisely, it explained that the prosecution relied on two claims:  the officer had “probable cause to believe a crime was committed” and Granville had no “reasonable expectation of privacy in the device.”  State v. Granville, supra.

The court quickly “disposed of” the first argument:

We know of no authority that allows the State to search property merely because its officers have probable cause to believe that a crime occurred and evidence of that crime can be found on the property to be searched. Those two indicia simply provide a basis to secure a warrant. . . . 

They alone do not allow a search. Without such a warrant, the search is presumptively unreasonable. . . . So, the State's suggestion that the search of the phone was permissible since probable cause to believe a crime had occurred and that Granville's cell phone contained evidence of it, without more, is wrong.

State v. Granville, supra.  (For more on the requirements for getting a search warrant and on when one is necessary, check out Wikipedia’s entry on the 4^th Amendment.)

The court then addressed the prosecution’s second argument, which was that the

`search of that inmate's phone was an allowable search [because] . . . [i]t was jail property and therefore Granville had no expectation of privacy.’ It continues by arguing that it `was a phone taken pursuant to a lawful arrest and therefor was subject to being searched’ and that the `manipulation of the phone is no different that [sic] looking at clothing or searching through papers an inmate has in his possession when . . . booked into jail.’ 

Added to those comments was one expressing that `society has never accepted or suggested an individual has an expectation of privacy in a jail setting.’

State v. Granville, supra. 

(For what a reasonable expectation of privacy is, and is not, in the 4^th Amendment context, check out Wikipedia’s entry on the 4^th Amendment and this post I did on the issue several years ago.)

The Court of Appeals started with the prosecution’s last point, which it found “global and inaccurate”.  State v. Granville, supra.  As the court explained,

[i]t is true that prisoners have no reasonable expectation of privacy in their cells. Hudson v. Palmer, 468 U.S. 517 (1984). Similarly true is the notion that `attributes of privacy of the home are not shared with a jail.” Hernandez v. State, 819 S.W.2d 806 (Texas Court of Appeals 1991). Yet, the prosecutor is simply wrong in saying that no expectation of privacy in a jail setting has been recognized. Indeed, authority cited in the State's own brief holds otherwise.

And, we cite it to Oles v. State, 993 S.W.2d 103 (1999), where our Court of Appeals said arrestees still retain some level of privacy interest in personal effects or belongings taken from them after arrest. . . .  Instead of having none, their expectations of privacy are `diminished.’ McGee v. State, 105 S.W.3d 609 (Texas Court of Appeals 2003); . . . accord U.S. v. Lilly, 576 F.2d 1240 (U.S. Court of Appeals for the 5th Circuit 1978) (the `history and purpose underlying the 4th [A]mendment . . . require that prisoners retain at least some degree of their fourth amendment protection’). . . .

State v. Granville, supra (emphasis in the original).

The court then addressed “the extent, if any, to which an arrestee has an expectation of privacy in the electronically stored data in his cell phone that was taken from him upon booking into jail.”  State v. Granville, supra.  It devoted almost two paragraphs to reviewing the development of cell phones, in the course of which it found that

cell phones have the capability of memorializing personal thoughts, plans, and financial data, facilitating leisure activities, pursuing personal relationships, and the like. . . . [I]t is not farfetched to conclude that a stranger can learn much about the owner, his thought processes, family affairs, friends, religious and political beliefs, and financial matters by simply perusing through it. That such matters are intrinsically private cannot be reasonably doubted.

The importance and private nature of such information has also led to the development of passwords, encrypted programs, and like security measures to prevent its disclosure. Given this, we cannot but hold that a person (whose category encompasses Granville) has a general, reasonable expectation of privacy in the data contained in or accessible by his cell, now `smart,’ phone.

State v. Granville, supra. 

Since it held that a person has a 4^th Amendment reasonable expectation of privacy in the “data contained in or accessible” via his/her cell phone, the court noted that the 4^th Amendment protects this expectation of privacy.  State v. Granville, supra.  And that means, as I’ve noted in earlier posts, that an officer’s searching the phone has to be “reasonable” under the 4^th Amendment, which means the officer needs a search warrant or an exception to the warrant requirement that applies to justify the search.

The court then took up “the effect, if any, of Granville’s incarceration” on his 4^th Amendment expectation of privacy.  State v. Granville, supra. Earlier, it noted that being incarcerated tends to diminish someone’s 4^th Amendment expectation of privacy in his/her property.  State v. Granville, supra  It also noted that the extent to which an expectation of privacy “survives” in a property room depends on the owner’s subjective expectation of privacy in the item, the “amount of control the owner” retains over it and his use of “measures to maintain his privacy in the item”.  State v. Granville, supra.

The court then explained that applying the above criteria to this case would logically lead to the conclusion that Granville did not have a reasonable expectation of privacy in his impounded cell phone because it would be outside his control and would be exposed to physical manipulation by others.  State v. Granville, supra. The Court of Appeals, though, found that this case was different because

[w]e are looking at a privacy interest in data hidden within electrical components contained in the device as well as potential information not in the phone but accessible through its manipulation, that is, data saved on the internet. The State cited no evidence suggesting that such data can be scraped off the phone surfaces or components, like blood or DNA affixed to clothes. Nor is there evidence of record that the picture found by the officer was somehow playing or appearing upon the phone's screen.

Quite the contrary. The cell phone had to be activated, or turned on, by the officer, and he had to pull up or scroll through the information imprinted on electronic chips to uncover the photo. It was not exposed to anyone happening to touch the item, which differentiates it from the miscellaneous things accessible on a prisoner's pants.

           

State v. Granville, supra.

The court also found it significant that the phone was off:

That evinces some precautionary measure being taken to secure the data from curious eyes. The power button can be likened to the front door of a house. When on, the door is open and some things become readily visible. When off, the door is closed, preventing others from seeing anything inside. 

And though some cell phones may require the input of a password before it can be used, no evidence suggests Granville's was of that type. So, the officer's ability to venture into the phone's informational recesses by merely pressing the power button does not suggest that Granville's interest in assuring the privacy of his information was minimal. 

Whether the phone was locked or not via a password, a closed door is sufficient to illustrate an expectation of privacy. 

State v. Granville, supra.

The court then considered the fact that the phone was impounded during the booking process.  State v. Granville, supra.  It found it significant that Granville was a pretrial detainee, because  pretrial detainees “are accorded greater constitutional protection than a convicted individual.” State v. Granville, supra.  The court also noted that pretrial detainees “have a greater chance of being freed soon after their detention through posting bond or other measure.”  State v. Granville, supra.  It also pointed out that Granville “was subject to being released quickly, given that he was arrested for a Class c misdemeanor.”  State v. Granville, supra. 

The court also noted that nothing showed the phone was “capable of use as a weapon or posed some threat to Granville, inmates or jail security”, so “the need to maintain prison discipline and decorum” were not a significant factor here.  State v. Granville, supra. 

The Court of Appeals then explained that the prosecution was

fight[ing] to enable any, if not every, law enforcement officer . . . to walk into a property room, pick up whatever cell phone, ipad, ipod, or like device he may discover therein, turn it on, and use it as he cares to just because the device was within the property room. 

The State . . . [says] little to nothing about the nature of the electronic instrument involved or the vast quantity of personal information about their owner and others that may be contained in them. Instead, it merely compares cell phones to articles of clothing despite their obvious difference.

State v. Granville, supra. 

It explained that it was not dealing with a search conducted under an exception to the warrant requirement, such as search incident to arrest or “one undertaken due to exigent circumstances,” but with a warrantless search,

[b]y a stranger to an arrest, of a cell phone taken as part of an inventory conducted incident to jailing for evidence of a crime distinct from that underlying the owner's arrest. Nothing in those circumstances or the others mentioned herein nullify Granville's reasonable expectation of privacy in the phone searched. Nothing in them allowed the officer to act without a warrant.

State v. Granville, supra. 

It therefore affirmed the trial court’s granting Granville’s motion to suppress the evidence taken from the cell phone.  State v. Granville, supra.  

Shortfalls, Theft and Tampering with Documents

After a jury convicted him of third-degree theft in violation of New Jersey Statutes § 2C:20-3 and fourth-degree falsifying or tampering with records in violation of New Jersey Statutes § 2C:21-4, Terrell M. Owens appealed.  State v. Owens, 2012 WL 2873701 (New Jersey Superior Court – Appellate Division 2012).

Before we get into the facts in the case and the argument Owens made on appeal, we need to define  what he was convicted of.  New Jersey Statutes § 2C:20-3(a) states that a “person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.”  And New Jersey Statutes § 2C:21-4 states that a person

commits a crime of the fourth degree if he falsifies, destroys, removes, conceals any writing or record, or utters any writing or record knowing that it contains a false statement or information, with purpose to deceive or injure anyone or to conceal any wrongdoing.

Now, the facts:  According to the opinion, Owens was

employed as the Teaneck branch manager of the Fairleigh Dickinson University Credit Union, having assumed that position temporarily at the end of November 2007 when the prior manager resigned. Part of [his] duties included reconciling the actual amount of cash in the Credit Union's vault with the computerized account ledger.

The only other employee at the Teaneck branch was a part-time teller, Melanie Lerner. Lerner did not have the security code or key to open the branch, nor did she have the access code to the vault where the branch's cash was kept.

Lerner believed she was never in the vault alone. Records disclosed that only [Owens’] access code was used to open and close the Teaneck branch between January 2, 2008 and January 18, 2008.

State v. Owens, supra.

Shareatha Owens, who is not related to Terrell Owens, was the operations officer at the Credit Union's Madison and Teaneck branches and

audited the money in the vault of the Teaneck branch in November 2007, prior to [Terrell Owens’] assuming the position of manager.  At that time, all money at the branch was accounted for. Thereafter, [Terrell Owens] called her `[a]lmost everyday’ because of problems he had balancing the vault cash, but he never indicated any money was missing.

State v. Owens, supra.  (Since we have two people named Owens, I’m going to use first names from here on.)

On January 18, 2008, Shareatha was

doing a `weekly cash order,’ i.e., seeing how much cash was actually on hand and making sure it was adequate to service the Credit Union's customers. She accessed the computerized ledger system and noticed entries totaling $9700 in the balance sheet's `nondenominational field.’

This field represented money that physically existed but was damaged and needed to be removed from circulation. [At trial,] Shareatha testified that in her many years of experience with the Credit Union, the aggregate amount in the nondenominational field was about $500.

She called [Terrell] and asked if he made these entries. He admitted he had done so in order to balance the vault. Shareatha explained that if the damaged money was removed from the computerized ledger, the vault would necessarily be short, and she directed [him] to `recount his vault and to call [her] back.’

Shareatha reported the problem to the Credit Union's Chief Executive Officer, Judith Kehres, and proceeded to the Teaneck branch with her fellow employee and [Terrell’s] direct supervisor, Ayeisha Robinson.

State v. Owens, supra.

When they arrived at the Teaneck branch, Terrell “`appeared fidgety and nervous.’” State v. Owens, supra. Shareatha noticed that the video recording system was not recording, even though she checked it in November 2007 when the prior manager resigned, and it was working properly. State v. Owens, supra. She also noticed that the video camera was no longer pointed toward the vault, “but toward an area between the vault and the ATM machine.”  State v. Owens, supra.

Shareatha and Robinson counted the cash in the vault and in the teller's drawers and found “`[a] little over twelve thousand dollars’” was missing. State v. Owens, supra.  Shareatha reported this to Kehres, and the police were notified.  State v. Owens, supra.

Detective Seth Kriegel came to the Teaneck branch and then interviewed Terrell at police headquarters.  State v. Owens, supra. Terrell claimed “he did not know what happened to the missing money” and said he “had spoken to Shareatha about the shortfall.”  State v. Owens, supra. 

At trial, Lerner testified that she never “accessed the computer ledger regarding the monies in the vault and never entered any amounts in the `nondenominational’ field.” State v. Owens, supra  She also denied taking any money from the branch. State v. Owens, supra. 

When she testified at trial, Kehres also read portions of a letter Terrell “sent to the National Credit Union Administration, the government agency that monitors and insures credit unions, dated April 29, 2008.” State v. Owens, supra.  In it, he claimed that “he noticed shortfalls in deliveries of cash from the Federal Reserve as soon as he arrived at the Teaneck branch and `was ignored’ when he reported them.” State v. Owens, supra  Kehres testified that he “was supposed to notify her whenever a `cash delivery’ was incorrect, but he never did.”  State v. Owens, supra. 

After the prosecution presented its evidence, Terrell moved for a judgment of acquittal under New Jersey Rule of Criminal Procedure 3:18-1, but the judge denied the motion.  State v. Owens, supra. Robinson then testified as a defense witness. State v. Owens, supra.  She shared an office with Shareatha in the Madison branch of the Credit Union, and she claimed Terrell called “in early January because he was `missing a significant amount of money.’”  State v. Owens, supra.   

Robinson said she transferred him to Shareatha but “could not hear the conversation.”  State v. Owens, supra.  Later, however, even “though she could not specify the date, Robinson testified that she overheard Shareatha tell [Terrell] to put missing amounts of money in the `nondenominational’ field.”  State v. Owens, supra. 

When Terrell testified, he claimed he did not know

what happened to the missing money. He claimed that he usually left the code to the vault taped to his desk under his computer keyboard.

[Terrell] also stated that Shareatha specifically told him that if he had a problem balancing the monies in the vault, he should enter any shortfall in the nondenominational sheet on the computer ledger. 

[He] claimed he specifically contacted Shareatha on January 2, 2008, the date an entry first appeared, and was given this advice. He did the same on two other occasions in January.

State v. Owens, supra. 

The jury clearly did not believe Terrell or Robinson and/or any other witnesses who testified for the defense because, as noted above, it convicted him on both charges.  State v. Owens, supra.  He was sentenced to five years probation and "ordered to pay $12,206.25 in restitution.”  State v. Owens, supra.  Then, as noted above, Terrell appealed.

He raised one issue on appeal:  Terrell claimed that “the state failed to prove beyond a reasonable doubt” that he “was guilty of theft or falsifying/tampering with evidence.” State v. Owens, supra.  Basically, he seems to have argued that the trial judge should have granted his motion for acquittal.  State v. Owens, supra. 

In ruling on his argument, the Appellate Division noted that when a trial judge rules on a motion for acquittal, he or she must apply the following standard:

`[W]hether[ ] viewing the . . .  evidence in its entirety, . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.’

State v. Owens, supra (quoting State v. Reyes, 50 N.J. 454 (New Jersey Supreme Court 1967)).

The Appellate Division also noted that it reviews a judge’s denial of a motion for acquittal under a de novo standard, i.e., as if it were writing on a clean slate. State v. Owens, supra.  The court then found that

[w]hile the State's case was entirely circumstantial, the evidence of [Terrell’s] guilt was substantial and sufficient to prove his guilt beyond a reasonable doubt. At the branch, only [he] had the access code to the vault, and only his code was used to open and close the branch office.

The money in the vault was reconciled before [Terrell] arrived as branch manager, and the videotape equipment was working and recording at that time. Less than two months later, the video recording system was not recording, the camera was pointed away from the vault and a substantial sum of money was missing.

[Terrell] had no explanation as to why the money was missing at the time it was discovered and his subsequent claim that he had reported shortfalls in the deliveries from the Federal Reserve was refuted by Kehres.

State v. Owens, supra. 

The Appellate Division therefore affirmed his conviction and sentence.  State v. Owens, supra. 

Suicide, Cyberspace and the First Amendment

About a year and a half ago, I did a post analyzing the case that was then being brought against William Francis Melchert-Dinkel for allegedly advising and encouraging suicide in violation of Minnesota law.  At that point, all I had access to was the criminal complaint filed against him and various news stories, plus a Wikipedia entry.

Since I wrote that post, Melchert-Dinkel was charged “with two counts of urging suicide” in violation of Minnesota Statutes § 609.215(1).  State v. Melchert-Dinkel, __ N.W.2d __, 2012 WL 2913339 (Minnesota Court of Appeals 2012).  Section 609.215(1) makes it a crime to intentionally advise, encourage or assist another person to commit suicide.  One convicted of violating the statute can be imprisoned for “up to 15 years”, to pay a fine of “not more than $30,000, or both.”  Minnesota Statutes § 609.215(1). 

I do not have space here to go through all the conduct the court’s opinion attributes to Melchert-Dinkel, so I will only describe some of it.  The case started in 2008 when Sergeant William Haider of the St. Paul Police Department was contacted by Celia Blay, a British woman who was concerned about an “online predator” who was “encouraging persons to commit suicide by hanging.” State v. Melchert-Dinkel, supra.  

She said the predator “used a variety of names, including `Li Dao,’ `Falcon Girl,’ and `Cami.’” State v. Melchert-Dinkel, supra.  Blay had traced the predator through a website where users “converse about life, depression, and suicide” and had linked the person’s email address to a “male Minnesota resident.”  State v. Melchert-Dinkel, supra. “Police linked Melchert–Dinkel to the” email address.   State v. Melchert-Dinkel, supra.

Heider learned that Mark Drybrough, had “hanged himself in Coventry, England, at age 31 in July 2005 . . . . five days after the last of a series of email[s] between him and Melchert–Dinkel, who had been representing himself to Drybrough online as `Li Dao,’ a 25–year–old female nurse in Minnesota.”  State v. Melchert-Dinkel, supra.  

The emails began on July 2, 2005, when Melchert-Dinkel used his Li Dao email address to respond to a question Drybrough posted on the website asking whether

`anyone [has] details of hanging methods where there isn't access to anything high up to tie the rope to.’ . . . `Li Dao’ told Drybrough that, `depending on how tall you are . . . you can easily hang from a door using the knob on [one] side to tie the rope to, sling it over the top of the door, attach the noose or loop to yourself then step off and hang successfully.’ 

He also wrote that Drybrough could still hang himself if he is tall, offering, `[Y]ou can still do a partial suspension hanging that way by having the noose ext fairly high up and attaching it to yourself, then lowering yourself into a sitting position or kneeling down so you [can] hang that way.’ He assured Drybrough `[i]t is very effective’. . . . [and] wished Drybrough `good luck.’

State v. Melchert-Dinkel, supra. 

The next day, Drybrough posted a message “asking about easily obtainable drugs suitable for a quick and painless overdose”, but Melchert-Dinkel responded in an email “that discouraged overdosing and urged hanging”.  State v. Melchert-Dinkel, supra.  The two continued their email correspondence until July 22; in some emails, Melchert-Dinkel linked “his own purported plan” to kill himself with the timing of Drybrough’s death, noting that “`I want to die very badly . . . but [will] stay here for you as long as possible.’” State v. Melchert-Dinkel, supra. 

The police also investigated Melchert-Dinkel’s involvement in the 2008 suicide of a 19-year-old Canadian girl, Nadia Kajouji.  According to the opinion, Melchert-Dinkel found

Kajouji on a website where users post messages describing suicide methods. Kajouji posted a message on March 1, 2008, disclosing that she lived alone, suffered from severe depression, and had `not attempted suicide in the past because [she was] terrified of failing.’ 

She requested advice on what suicide method would have the highest chance of success. Posing as `Cami,’ on March 6 Melchert–Dinkel engaged Kajouji in two separate hour-long discussions six hours apart and a shorter, ten-minute discussion on March 9, the last day anyone saw Kajouji alive.

State v. Melchert-Dinkel, supra. 

This is an excerpt from “Cami’s” email correspondence with Kajouji:

Cami: . . . [S]ince ive seen every method used possible at work as a emergency ward nurse[ ] i know what does and don't work so that is why i chose hanging[.] ive tried . . . to see if it hurt and how fast it worked and it was not a bad experience. . . .

Nadia: I am planning to attempt this Sunday.

Cami: wow ok[.] you want to use hanging too? Or can u?

Nadia: I'm going to jump

Cami: well [ ] that is ok but most people puss out before doing that. . . .

Nadia: I want it to look like an accident. There's a bridge over the river where there's a break in the ice. . . .

Cami: ok[.] otherwise I was gonna suggest hanging. . . .

State v. Melchert-Dinkel, supra.  (If you’re interested, the opinion has excerpts from other, similar exchanges.)

When he was interviewed by police, Melchert-Dinkel told them that he had asked

15 to 20 people to commit their suicide using a webcam to capture and transmit the event online. No one ever did. . .  He said he had been `an accessory’ to the suicides of about five people. . . . [and] had entered into approximately 10 `suicide pacts.’ He [said] perhaps five people had ended their lives by suicide after joining him in pacts but was certain about only the Ottawa and Coventry deaths. He admitted . . . he had no genuine plans to kill himself. . . .

State v. Melchert-Dinkel, supra. 

After being charged, Melchert-Dinkel moved to dismiss the charges, claiming they violated the 1^st Amendment.  State v. Melchert-Dinkel, supra.  When the judge denied his motion, he waived his right to jury trial and was convicted after a bench trial.  State v. Melchert-Dinkel, supra.  

On appeal, he claimed he statute was unconstitutional (i) “on its face because it is overbroad” and/or (ii) because his discussions with Drybrough and Kajouji were speech protected by the 1^st Amendment, so that even if the statute is constitutional, it was unconstitutional as applied to “the specific conduct that led to his conviction."  State v. Melchert-Dinkel, supra. 

As Wikipedia notes, there are two ways to challenge legislation: “[A] facial challenge to a statute seeks to invalidate it in its entirety because every application is unconstitutional, whereas an as-applied challenge seeks to invalidate a particular application of a statute.”  So Melchert-Dinkel was trying both.

The Court of Appeals began its analysis of his facial challenge by noting that a statute

ordinarily is presumed constitutional. . . . But this is not so with statutes that restrict 1st Amendment rights; those statutes are not presumed constitutional.  . . . [C]ontent-based regulation of speech is presumptively unconstitutional. . . . The state bears the burden of proving such a statute is constitutional. . . . . Melchert–Dinkel points out the content-oriented nature of § 609.215(1), noting it concerns only the subject of suicide, and on this feature he contends that [it] is presumptively unconstitutional.

State v. Melchert-Dinkel, supra.  The court also explained, however, that his

contention that the statute is presumptively unconstitutional assumes wrongly that [it] regulates the type of speech that does not by its nature fall outside of 1st Amendment protection. The 1st Amendment does not protect all speech absolutely. . . . 

It has `never included a freedom to disregard’ certain categories of restrictions the states traditionally have enforced based particularly on the content of the speech. U.S. v. Stevens, 130 S. Ct. 1577 (2010). . . The categories of speech that have been deemed not to implicate the 1st Amendment are obscenity, defamation, fraud, incitement, speech integral to criminal conduct, and fighting words.

State v. Melchert-Dinkel, supra. 

The Court of Appeals found § 609.215(1) did not violate the 1^st Amendment because “because, to the extent it prohibits speech, it prohibits speech that is integral to harmful, proscribable conduct.”  State v. Melchert-Dinkel, supra. It pointed out that while committing suicide “is not itself a crime in Minnesota”, this does “not reflect a public policy approving suicide or tolerating assisted suicide.”  State v. Melchert-Dinkel, supra. 

And after noting that Melchert-Dinkel did not claim “the state would violate the Constitution by punishing a person for physically assisting another to commit suicide”, the court found “speech that intentionally advises, encourages, or assists another to commit suicide is an integral part of the criminal conduct of physically assisting suicide.” State v. Melchert-Dinkel, supra.  It also found that “such speech is an integral part of another person’s suicide” and suicide “remains harmful conduct the state opposes as a matter of public policy.”  State v. Melchert-Dinkel, supra.  The court therefore held that, given all this, the state can “criminalize the prohibited speech without running afoul of the 1^st Amendment.”  State v. Melchert-Dinkel, supra. 

The court then addressed Melchert-Dinkel’s second argument:  that the statute was unconstitutional “because some of its reach extends into speech that is protected by the 1^st Amendment.”  State v. Melchert-Dinkel, supra.  It rejected that argument because it found that § 609.215(1)

expressly prohibits only a narrow type of speech -- speech that intentionally advises, encourages, or assists another in that person's suicide. Paraphrased, a person cannot speak in a manner that purposefully urges or helps another person to kill herself. 

State v. Melchert-Dinkel, supra.  It noted that the statute’s narrow focus means it does not outlaw speech that promotes “suicide acceptance”, advocating for a right to commit suicide, protecting laws that oppose suicide, etc.  State v. Melchert-Dinkel, supra.

The Court of Appeals also rejected Melchert-Dinkel’s argument that applying the statute

`proscribe[s] discussion about the topic [of suicide] and hanging, and wanting to watch.’ But we do not see this restriction in the statute, which does not on its face proscribe discussion of suicide or hanging so long as the speaker does not advise or encourage or help another to commit suicide. 

A suicide advocate or opponent may discuss suicide as thoroughly as he prefers; he simply may not . . . advise a suicidal person to hang herself or encourage or help her do so. And as disturbing as the idea might be, the statute also does not prohibit a person from discussing his desire to watch someone else commit suicide.

State v. Melchert-Dinkel, supra. 

The court did note that the state might violate the 1^st Amendment if its statute

punished speech that only theoretically and indirectly encourages suicide but creates no direct connection between the prohibited speech and the harmful conduct. . . . So, . . . the government does not overcome a free-speech challenge to a statute that bans virtual child pornography on the theory that pedophiles might use the virtual child pornography to encourage children to participate in sexual activity. . . .

But § 609.215 does not raise that concern. Its elements allow punishment only when a direct rather than theoretical or indirect connection links the prohibited encouragement conduct (intentionally encouraging suicide) and the harm to be avoided (the actual suicide of the person whom the defendant intentionally encouraged to kill herself). . . . 

By punishing a person for engaging in speech that intends to influence another to commit suicide only when the other person actually commits suicide, the statute penalizes only speech that is integral to the harmful conduct that the state seeks to prevent.

State v. Melchert-Dinkel, supra (emphasis in the original).

As this recent news story explains, Melchert-Dinkel is taking the issue to the Minnesota Supreme Court, and will remain out on bail until the appeal is heard and determined.  It also notes that he “faces about a year in jail” if the conviction is not reversed.    

And if you want to read more about him and about his involvement in the Kajouji and Drybrough suicides, check out Wikipedia’s entry on him.

(And, as a footnote, suicide is not a crime in Minnesota or in any other U.S. state, as I explained in a post I did several years ago.  Statutes like the one at issue here are basically aiding-and-abetting-what-is-not-a-crime statutes, as I also explained in that post.)

Multiplicity, EP2P and Child Pornography

David Chiaradio was indicted on two counts of possessing child pornography in violation of 18 U.S. Code § 2252(a)(4)(B) and one count of distributing it in violation of 18 U.S. Code § § 2252(a)(2).  U.S. v. Chiaradio, __ F.3d __, 2012 WL 2821892 (U.S. Court of Appeals for the 1st Circuit 2012).  After a jury found him “guilty across the board”, the judge imposed “concurrent 97-month incarcerative” sentences “on each count of conviction.”  U.S. v. Chiaradio, supra.  Chiaradio appealed.  U.S. v. Chiaradio, supra.  

Chiaradio raised a number of arguments on appeal, but we’re only concerned with two of them, the first of which went to “the government’s decision to charge him with two counts of possessing child pornography” in violation of 18 U.S. Code § 2242(a)(4)(B).  U.S. v. Chiaradio, supra.  Chiaradio argued that the charges were multiplicitous, i.e., that the prosecution was essentially "doubling up" on the charges. U.S. v. Chiaradio, supra.  

As I explained in a post I did several years ago, criminal charges are based on the premise that each “charge” – which usually translates into a “count” in an indictment or other charging document – is based on the commission of one “crime.”  As I noted in another post, a defendant can challenge a charge if he believes it violates this premise.  As § 919 of the U.S. Department of Justice’s Criminal Resource Manual notes, multiplicity is “the charging of a single offense in several counts.” And as this court explained, a charge is multiplicitous when the prosecution charges a defendant twice for a single crime.

Determining whether an indictment is multiplicitous requires an inquiring court to examine whether a particular course of illegal conduct constitutes one or multiple offenses. . . . Congress's intent is paramount on this point: the legislature may castigate a particular act by exposing the actor to several prosecutions and punishments, or it may specify that the act should only be subject to a single unit of prosecution. 

U.S. v. Chiaradio, supra.  

To understand Chiaradio’s argument, you need to understand how the case arose. On February 28, 2006, FBI Agent Cecchini went online to search for child pornography, using a version of the peer-to-peer file-sharing program known as LimeWire.  U.S. v. Chiaradio, supra.  He actually used “a special version of LimeWire developed by the FBI, known as `enhanced peer-to-peer software’ (EP2P), which was customized to assist child pornography investigations.”   U.S. v. Chiaradio, supra. 

The opinion notes that EP2P differs from the commercially available version of the software in “three principal respects”:

First, when a user of the commercially available version . . .  tries to download a file, the program seeks out all the users who are sharing the same file and downloads different pieces of that file from multiple locations in order to optimize download speed. EP2P eliminates that functionality; it allows downloading from only one source at a time, thus ensuring that the entire file is available on that source's computer.

Second, in its commercially available iteration, LimeWire responds to a search term by displaying basic information such as the names of the available files, file types, and the file sharers' Internet Protocol (IP) addresses. EP2P displays not only that data but also the identity of the Internet Service Provider (ISP) and the city and state associated with the IP address sharing a particular file.

Third, EP2P has been modified so an agent can easily compare the hash value (essentially, the digital fingerprint) of an available file with the hash values of confirmed videos and images of child pornography. Taken together, these three modifications permit agents to download a file from a single source, learn the general location of the source, and facilitate the identification of child pornography as such.

U.S. v. Chiaradio, supra.  We’ll come back to EP2P later in this post.

Cecchini used EP2P to run a search for a term he knew was “fancied by collectors of child pornography” and got a number of hits, one of which came “from an IP address in Rhode Island.”  U.S. v. Chiaradio, supra.  Cecchini used LimeWire’s browse function to review the files being shared by that IP address, and found “643 files with titles suggestive of child pornography.”  U.S. v. Chiaradio, supra. 

He downloaded three of them, confirmed they contained child pornography, used a subpoena to the ISP to get the IP address and traced it to “a residence in Westerly, Rhode Island, owned by” Chiaradio’s father.  U.S. v. Chiaradio, supra.  Another Agent, Agent Yesnowski, used this information to obtain a warrant to search the residence.  U.S. v. Chiaradio, supra.

On August 22, 2006, Yesnowski and Agent Kohn executed the warrant, seizing a laptop from Chiaradio’s bedroom and a desktop computer from a spare bedroom.  U.S. v. Chiaradio, supra.  Chiaradio took responsibility for both computers and agreed to speak with the

agents about his computer usage. He explained the house had a shared wireless network connecting both computers to the Internet, as well as its own internal file-sharing system enabling a user of one computer to access data and files on the other. . . . [He] admitted installing and using LimeWire on the laptop to download music but denied he had ever searched for, or downloaded, child pornography.

U.S. v. Chiaradio, supra.  Analysis revealed “over 5,000 images and videos” of child pornography on the desktop and “nearly 2,000” on the laptop. U.S. v. Chiaradio, supra.

That brings us back to multiplicity.  Section 2252(a)(4)(B) makes it a crime to knowingly possess “one or more books, . . . , video tapes, or other matter” which contains “any visual depiction” that has traveled in or was produced by materials that traveled in interstate commerce if producing it involves the use of a minor engaging in sexually explicit conduct and the depiction “is of such conduct.” 18 U.S. Code § 2252(a)(4)(B). The opinion then explains that in this case, the government seized a “plethora” of

files during a single search of a single dwelling, yet charged [Chiaradio] with two counts of . . . possession. The government defends its use of dual counts . . . on the ground that the proper unit of prosecution is each matter or physical medium on which images are stored. 

As the government would have it, [Chiaradio’s] utilization of two computers . . . exposed him to prosecution for two separate crimes. This is especially fitting, the government suggests, because the computers were in different rooms and had different functions: the laptop was used for acquiring the pornographic images, whereas the desktop was used for storing them.

           

U.S. v. Chiaradio, supra (emphasis in the original).

Chiaradio argued that since the statute specifically outlaws the possession of one or more “container[s]” of child pornography, it therefore criminalizes the possession of

`one or more’ computers containing offending images. It follows, [he] says, that the government may charge only a single crime regardless of whether a defendant possesses two or 2,000 images on one or 100 computers, at least when that possession is simultaneous and under one roof. In other words, the number of `matters’ (here, the number of computers) does not in itself define the proper unit of prosecution. 

Dividing the crime of possession into two separate crimes was especially egregious in this case, [Chiaradio] suggests, because the computers were linked (that is, they shared an internal network through which files could freely move back and forth) and their contents overlapped (albeit to an unspecified degree).

U.S. v. Chiaradio, supra.

After reviewing the statute’s legislative history and decisions from two other Courts of Appeals, the 1^st Circuit agreed with Chiaradio.  U.S. v. Chiaradio, supra.  It held that one “who simultaneously possesses a multitude of forbidden images at a single time and in a single place” commits only one act of possession in violation of . . . § 2252(a)(4)(B).  U.S. v. Chiaradio, supra. It also held, therefore, that Chiaradio’s two convictions violated his right to be free from double jeopardy.  U.S. v. Chiaradio, supra.

The court then took up Chiaradio’s argument that the district court judge “should have granted his pretrial motion to compel production of the source code of the EP2P program (essentially, the human-readable version of the instructions used by a computer running EP2P).”  U.S. v. Chiaradio, supra. Chiaradio claimed he was entitled to the code as part of the discovery – the process by which the prosecution and defense can gain access to evidence the other intends to use at trial – allowed by Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure. U.S. v. Chiaradio, supra.

Rule 16(a)(1)(E) “requires the government to permit the defendant to examine and copy documents, data, and objects in its control if the items are material to preparing the defense or if the government plans to use them in its case in chief.”  U.S. v. Chiaradio, supra. The court noted it reviews a district court judge’s rulings under Rule 16 for “abuse of discretion”, and if it finds an error, the error will not require reversing a conviction unless the defendant can show he was prejudiced by it.  U.S. v. Chiaradio, supra. 

When Chiaradio sought access to the code prior to his trial, he argued that “he had to obtain the source code in order to determine whether he could credibly challenge the reliability of the technology and block the expert testimony proffered by the government on the EP2P program and how it implicated”.  U.S. v. Chiaradio, supra.  Chiaradio, therefore, wanted to see if he could raise a Daubert challenge to EP2P.  In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court held that before a trial judge can allow an expert to testify about scientific knowledge, he or she must determine that the expert’s testimony is sound, i.e., is scientifically valid. 

The Court of Appeals noted that the FBI “developed EP2P as an investigatory tool” and its source code is “closely held; it is not shared with or accessible to the agents who use the program, let alone the public.” U.S. v. Chiaradio, supra. It also noted that the district court judge held an evidentiary hearing on Chiaradio’s motion.  U.S. v. Chiaradio, supra.  At the hearing, the judge heard testimony from FBI Agent P. Michael Gordon,

the government's proposed EP2P expert. Gordon had been involved in testing the program, had instructed other agents about its use, and had participated in over eighty investigations in which EP2P was employed. 

He demonstrated, among other things, how to check the results of an EP2P investigation manually to ensure the files transferred had come from the location identified through EP2P. He vouchsafed that, in his wide experience, no EP2P investigation had ever yielded a false positive.

U.S. v. Chiaradio, supra. 

The district court judge found that Gordon’s testimony satisfied the Daubert standard, i.e., established the scientific reliability of the software.  U.S. v. Chiaradio, supra. And the Court of Appeals agreed:

Even if the source code were discoverable under Rule 16 -- a matter on which we take no view – [Chiaradio] cannot demonstrate prejudice from its nondisclosure. The government gave [him] a digital file recording the transfer from [his] laptop to Cecchini's computer. 

It also gave [him] a copy of the FBI guide detailing how to reconstruct an EP2P session manually (using only the recording and publicly available programs). The government presented testimony indicating that its agents had used these materials to reconstruct the transfer and had verified that the files downloaded by Cecchini came from [Chiaradio’s] computer.

[He] neither contradicted nor cast the slightest doubt upon this testimony. This evidence makes it pellucid that the forbidden files were located on [Chiaradio’s] computers and transferred to Cecchini. Consequently, any error in the application of the EP2P program was harmless.

U.S. v. Chiaradio, supra. Since the court would not reverse the conviction unless any error involving the use of the EP2P program prejudiced Chiaradio’s ability to defend himself, and since the court found that the error, if any existed, was harmless, it rejected Chiaradio’s argument on this issue. U.S. v. Chiaradio, supra. 

The court therefore remanded the case to the district court judge to address the multiplicity problem, either by “merg[ing] the two possession counts or vacat[ing] the conviction and sentence on one of them.”  U.S. v. Chiaradio, supra.

The Prepaid Phone, Robbery and Hearsay

After he was convicted of “four counts of felonious assault, two counts of aggravated robbery, and two counts of having a weapon while under disability”, Adam Cassano appealed.  State v. Cassano, 2012 WL 2580750 (Ohio Court of Appeals 2012).  

His first argument on appeal was that his convictions “were against the manifest weight of the evidence” presented at trial.  State v. Cassano, supra. As I explained in a recent post, when a court rules on an against the manifest weight of the evidence, it is basically reviewing the charges and the evidence in the record to see if the defendant should be given a new trial, a step that is only appropriate in extraordinary cases.

So we need to review the evidence presented at Cassano’s trial:

[T]he victims, accompanied by [codefendant Jerrell] Glenn, visited several bars during an evening out. One of [them], Kenneth Elsleger, was known by Glenn to be a drug dealer who carried large amounts of cash. As the group was returning to Elsleger's apartment at about 2:30 a.m., one of them noticed Glenn was sending text messages from his telephone, but trying to hide its screen as he did so. When they parked at Elsleger's apartment, the group exited the car. 

One noticed that Glenn ran away. A few minutes later a male approached Elsleger and asked for help lighting a cigarette. The male then pulled a gun, fired a single shot in the air, and demanded Elsleger empty his pockets. Elsleger began moving backwards and watched as his brother grabbed the male's arm. 

The male threw the brother to the ground and ripped away a necklace [he] was wearing. The male then shot Elsleger in the neck. The brother regained his footing and grappled with the male, but he, too, was shot. . . . The male fled.

The victims were unable to identify their assailant from photo arrays.

State v. Cassano, supra.

Snow had fallen on the evening of the robbery and the police found footprints and

tire marks leading away from the scene. They followed the footprints to the front entrance of another apartment complex. . . . Cassano was exiting the building. [He] matched the general description of the robber, so a police officer asked if he was in the building all night. Cassano said he just arrived.  The officer who spoke with Cassano noticed he appeared `very nervous,’ was giving `disjointed partial answers, and could not explain . . . how he arrived at the building.

As Cassano spoke to the police, Glenn exited the building and greeted him. Glenn told the police he knew Cassano. He said he had been in an apartment all night. The police took him to the apartment and learned from the occupants Glenn had just arrived at the apartment and it was Cassano who had been [there] all evening. . . .

Glenn [then] admitted he had been with the . . . victims that evening. He said his car was parked at his residence and he started to walk to his apartment as soon as the victims arrived at the crime scene. The police were skeptical . . . because [his] apartment was more than two miles away and it made no sense . . . that [he] would walk that distance at 2:30 a.m. in falling snow. 

As the police were preparing to give Glenn a ride to his house . . . [a victim] asked if they were taking him to the scene of the crime so he could get his car. . . . [P]olice discovered a car registered to Glenn at the crime scene.  

State v. Cassano, supra.

Police obtained a record of Glenn’s cell phone activity (after he gave them the phone number). State v. Cassano, supra.  The record showed he sent a number of text messages shortly before the robbery to the same phone number. State v. Cassano, supra. They seemed to direct “the recipient of the text messages to the parking lot where the robbery occurred,” and to Glenn’s car. State v. Cassano, supra. The recipient's text messages showed he was having difficulty locating the car because cars were covered with snow. A final message from Glenn was: “`we on our way’.” State v. Cassano, supra.

While the officers knew “the number of the telephone that received Glenn's text messages,” it was “registered to a `pay as you go’ cell phone carrier that did not keep subscriber information.” State v. Cassano, supra.  When police examined calling records from the “`recipient telephone’”, they found that it had “made calls to a phone owned by Cassano's mother at the house” where he also lived.  State v. Cassano, supra. They also found that Cassano's brother had called the recipient phone and that, the day after police interviewed Cassano, he “unsuccessfully attempted to call the recipient cell phone and then immediately called the Cassano residence phone.”  State v. Cassano, supra.

Since none of the victims could positively identify Cassano as the robber, the prosecution relied on circumstantial evidence for its case.  State v. Cassano, supra.  As the court noted,

[u]nlike direct evidence in which a witness testifies about a matter within the witness's personal knowledge such that the trier of fact is not required to draw an inference from the evidence to the proposition that it is offered to establish, circumstantial evidence requires the drawing of inferences that are reasonably permitted by the evidence.

State v. Cassano, supra.  It also noted that the Ohio Supreme Court has held that circumstantial evidence is enough to support a conviction as long as it proves the defendant’s guilt beyond a reasonable doubt. State v. Cassano, supra (citing State v. Heinish, 553 N.E.2d 1026 (Ohio Supreme Court 1990)).

Cassano’s first argument was that the prosecution could not “definitively prove that he was the recipient of” Glenn’s text messages on the night of the robbery and none of the victims could identify him as the robber.  State v. Cassano, supra.  The Court of Appeals did not agree, though it conceded that the evidence concerning the recipient of Glenn’s texts

did not directly identify Cassano -- the recipient number was for a prepaid phone that did not provide subscriber information. But the circumstantial evidence allowed the court to infer reasonably that Cassano was in possession of the telephone at the time of the robbery.

Glenn admitted he and Cassano were friends, so it was not out of the question that Glenn would have messaged Cassano. Records from Glenn's telephone showed that after Cassano had been interviewed and released by the police, Glenn first tried to call the recipient telephone number and then immediately called the land line number associated with Cassano's residence.

State v. Cassano, supra. 

The court also found that the “nature of the text messages” was such that they could reasonably be “interpreted as directing the recipient to the crime scene.”  State v. Cassano, supra. While none of the victims could identify Cassano as the robber, they were able to give police “a general description of height, weight, and baldness that matched” him.  State v. Cassano, supra.  And, as noted above, when officers followed footprints and tire tracks leading from the crime scene to another apartment complex, they encountered Cassano and Glenn. State v. Cassano, supra.

While this was not surprising given that they were friends, the court found it was “implausible to suggest that the tire and footprints leading from the scene of the robbery to an apartment complex where they were both found was mere coincidence”, given that Cassano's appearance matched the general description of the robber and his nervous disposition cast doubt on his story.”  State v. Cassano, supra. 

It also noted that police used the information about the text messages to get a warrant to search Cassano’s residence, where they found an ammunition clip “from a 9mm Glock handgun.” State v. Cassano, supra.  That was significant because “shell casings found at the scene of the robbery” were thought to be from a 9mm Glock handgun.  State v. Cassano, supra. So, for all these reasons, the court rejected Cassano’s first argument.  State v. Cassano, supra. 

Cassano’s argument was that Glenn’s text messages were, “as to him, . . . inadmissible hearsay.”  State v. Cassano, supra.  As Wikipedia explains, hearsay is essentially second-hand evidence, i.e., the witness (Jane) repeats what someone else told her, such as “Sam said he saw Tom kill Matt.”  

As I’ve explained in earlier posts, the federal court system and every state have rules that exclude hearsay unless it falls into one of a number of exceptions.  The reason they do that is because if Jane were to testify as noted above, Tom would be in a difficult position.  If the jury believes her, it will convict him.  And it’s very difficult for his lawyer to effectively cross-examine her, i.e., test the truth of what she’s implicitly saying (Tom killed Matt), because she has no first-hand knowledge of that.  All cross-examination can do is try to show that (i) Sam didn’t say that, (ii) if Sam said that he was wrong/drunk/crazy and/or (iii) Jane is wrong or crazy.

According to the prosecution, the trial judge correctly admitted the text messages under the business records exception to the default rule barring hearsay.  State v. Cassano, supra.  The Court of Appeals began its analysis of this argument by noting that to

qualify for the business-records exception, a record must meet the following criteria: (1) the record must be one recorded regularly in a regularly conducted activity, (2) a person with knowledge of the act, event, or condition recorded must have made the record, (3) it must have been recorded at or near the time of the act, event, or condition, and (4) the party who seeks to introduce the record must lay a foundation through testimony of the record custodian or some other qualified witness.

State v. Cassano, supra.

Cassano claimed a “a representative of Verizon Wireless, the carrier for Glenn and the parent company of a subsidiary wireless service that acted as the carrier for the recipient telephone, was not allowed . . . to testify to how the cell phone records were compiled and whether the method of record retention was reliable” but the court disagreed.  State v. Cassano, supra.  It noted that the representative testified “that the records were maintained in the `normal course of business activity’ through an automated computer system” and that this “testimony alone was sufficient to establish the prerequisites for admitting the text messages as business records.”  State v. Cassano, supra.        

The Court of Appeals also explained, however, that whether the trial judge was wrong

to admit the text messages under the business record exception to the hearsay rule is of no consequence because two possible outcomes existed from the use of the evidence, neither of which benefit Cassano.

If the court was to find from the circumstantial evidence that Cassano owned the recipient telephone, any text messages sent from the recipient telephone were nonhearsay as admissions under Ohio Rule of Evidence 801(D)(2), consistent with Cassano's concession that the text messages sent from Glenn's telephone were admissions against Glenn.

Alternatively, if the court was to find that Cassano did not own or was not using the recipient telephone, the text messages would have no prejudicial effect whatsoever on Cassano because they would not have been evidence implicating Cassano.

State v. Cassano, supra.

The Court of Appeals noted that this was

exactly what the court concluded after extensive discussions on whether to allow the text messages into evidence. The court confirmed that if it concluded Cassano did not own the recipient telephone, the text messages sent from that telephone would not constitute proof against Cassano and their admission would not `hurt’ him. It ultimately allowed them as having `some relevance.’

State v. Cassano, supra.

The court therefore rejected the argument that the trial judge erred in admitting the text messages.  State v. Cassano, supra.  Since the Court of Appeals rejected the other arguments Cassano made on appeal, it affirmed his conviction and sentence.  According to the news story you can find here, he was sentenced to 19 years in prison and Glenn was sentenced to 16.