After being “charged with two counts of receiving child
pornography and two counts of accessing child pornography with intent to view
it”, Thomas Wendl moved to suppress certain evidence. U.S. v.
Wendl, 2012 WL 5869589 (U.S. District Court for the Northern Mariana Islands 2012). The charges resulted from
a quite complicated set of facts.
FBI Joseph Auther was stationed in Saipan, where his son was
a seventh grader at Whispering Palms school. U.S. v. Wendl, supra. His son had a laptop issued by the school provided
through a federally funded program – Public School System (PSS). U.S. v. Wendl, supra. Auther installed eBlaster on the laptop
to monitor his son's Internet use. It sent emails to him several times a day
that listed the sites his son visited and the keystrokes typed on the laptop. U.S. v. Wendl, supra. Auther did not
tell his son about eBlaster and no icon or other sign showed it was installed
on the computer. U.S. v. Wendl, supra.
In April 2012, Auther was moved to the Denver office. U.S. v. Wendl, supra. In June, he told
Thomas Wendl, the Whispering Palms principal, that he would have the laptop
serviced and his son's files wiped before returning it to the school. U.S. v. Wendl, supra. He did not tell Wendl
about eBlaster. U.S. v. Wendl, supra. Auther
took the laptop to a computer store, which reimaged it and “Clean[ed] out
files.” Auther assumed this removed
eBlaster. U.S. v. Wendl, supra.
On June 15, Auther noticed he had received a series of
eBlaster e-mails and read them, which
referred to searches for child pornography. U.S.
v. Wendl, supra. He was shocked that his son was visiting sexually explicit
websites until he remembered he returned the laptop. Auther also wondered if Wendl was using it to
access child pornography. U.S. v. Wendl,
supra. Some of the sites appeared to
involve young Asian girls having sex with older men. Auther knew Wendl had
married a Korean woman, and had an 11–year–old Korean stepdaughter. U.S. v.
Wendl, supra.
Auther called Wendl and pretended he was interested in
buying the laptop; Wendel said he could not sell it because it he returned it
to PSS. U.S. v. Wendl, supra. Auther
was concerned that a child molester was operating at Whispering Palms. The next
Monday, he went to the school and spoke with the technology coordinator for its
PSS program, Joseph Torres. U.S. v. Wendl, supra. He told Torres he
was an FBI agent and said he was looking into a laptop that had been returned
to the school; Torres said the school redistributed returned laptops to new
students. U.S. v. Wendl, supra.
Around noon, Auther spoke with his wife and learned they had
a new eBlaster report involving child pornography. U.S. v. Wendl, supra. That afternoon, before going to the FBI
office, Auther drove by Whispering Palms and noticed Wendl's car at the school.
U.S. v. Wendl, supra. He called Wendl,
reiterating his desire to find the laptop and mentioning there might be inappropriate
content on it. U.S. v. Wendl, supra. Wendl
said he was looking into the matter and had determined that the laptop had been
recirculated. U.S. v. Wendl, supra. Auther
did not tell Wendl he had visited the PSS offices and knew Wendl had lied about
returning the laptop there. U.S. v. Wendl,
supra.
Auther reported the illicit Internet activity and Wendl's
possible involvement to Special Agent Ewing and notified the CNMI Attorney General about his concerns. U.S. v. Wendl,
supra. After June 18, Auther stopped receiving reports from eBlaster. U.S. v. Wendl, supra. On June 22, he
forwarded the eBlaster e-mails to Ewing, who interviewed Auther and opened an
investigation. U.S. v. Wendl, supra.
After being charged with the crimes noted above, Wendl moved
to suppress “information regarding possible child pornography Internet searches
and downloads obtained from a laptop computer without a warrant”. U.S. v.
Wendl, supra. In other words, he
moved to suppress the reports eBlaster generated as a result of Auther’s
installing the program on the school-issued laptop. U.S. v. Wendl, supra. The
district court judge began her analysis of Wendl’s motion by noting that the 4th
Amendment protects persons from
unreasonable searches and seizures of
their home, property, papers, and effects. A search occurs in cases involving
common-law trespass o4 ‘”when government officers violate a person's ‘reasonable
expectation of privacy.”’ U.S. v. Jones, 132 S.Ct. 945 (2012) (quoting Katz v. U.S., 389 U.S. 347 (1967) (Harlan, J., concurring)). Thus, for
a person to invoke the protections of the 4th Amendment, a search must be
the product of government action, and the aggrieved person must have a
reasonable expectation that the information seized would remain private -- commonly
referred to as Fourth Amendment standing.
U.S. v. Wendl, supra. The judge first addressed state action and
then standing.
In opposing Wendl’s motion to suppress, the government
argued that when Auther installed eBlaster on the laptop, he was not acting in
his official capacity as an FBI agent – that is, as an instrumentality of the
government. U.S. v. Wendl, supra. As I
have noted in prior posts, if a civilian conducts what would otherwise be a 4th
Amendment “search,” the conduct does not trigger the protections of that
constitutional provision; it only applies when a state agent conduct a search.
The judge noted that the analysis of whether someone is
acting as a state agent becomes more complicated when “the actor is an off-duty
law enforcement officer”. U.S. v. Wendl,
supra. She also noted that Auther’s
actions would qualify as state action “if they were “in some way related ‘to
the performance of his official duties' ” or “pursuant to [a] government or
police goal.” U.S. v. Wendl, supra (quoting
Van Ort v. Estate of Stanewich, 92
F.3d 831 (U.S. Court of Appeals for the 9th Circuit 1996)). She found that Auther's installing eBlaster on
the laptop
was unrelated to the performance of his
duties as an FBI special agent. His intent was solely to monitor his son's
Internet activities. He had no reason to believe that anyone other than his
son, to whom Whispering Palms had issued the PSS laptop, would use the computer
during the period when it was loaned out to the boy. Auther was acting as a
devoted father, not a law enforcement officer.
U.S. v. Wendl, supra.
She also noted that if Auther had intentionally left
eBlaster on the laptop when he returned it to Whispering Palms, knowing that he
would be
duty-bound to report any observed
criminal conduct, his continued receipt of eBlaster reports might be in pursuit
of a police goal and therefore constitute a 4th Amendment search. But the
evidence suggests Auther left eBlaster on the laptop inadvertently. . . . The
fact Auther was preparing to relocate his family to the mainland makes it all
the less likely that he was privately . . . launching a sting to uncover misuse
of federally funded school computers on Saipan. In all likelihood, he had other
things on his mind.
U.S. v. Wendl, supra.
his act of opening the eBlaster e-mails
converted an inadvertent search into an intentional one. He points out that the
subject lines showed that the reports covered a period of time after Auther's
son no longer had possession of the laptop. The conclusion he draws is that
Auther `did not have a justifiable basis (private interest or otherwise)’ for
viewing the contents of the report.
U.S. v. Wendl, supra.
The judge, however, was not persuaded:
The search was the gathering of information
by eBlaster, not the viewing of the contents. The analysis would be no
different if Auther had turned the reports over to other officers without
having read them. However intentional the act of opening the e-mails may have
been, the searches were still, at this juncture, inadvertent. The Court finds
that the initial data received from eBlaster and viewed by Auther . . . prior
to [his] contacting Wendl, are not the product of a search conducted under
color of state law.
Neither would the initial eBlaster
reports come under the 4th Amendment via the two-part test for private-party
searches. Even if Auther `acquiesced in the intrusive conduct’ when he failed
to direct the service technician to remove eBlaster, the intrusive conduct --
the installation of eBlaster -- was not by the government, but by Auther the
private citizen. . . . [T]here is no evidence Auther intended to further a law
enforcement purpose by keeping eBlaster on the laptop. Therefore, Wendl has
failed to carry his burden to show that he should be accorded 4th Amendment
protection from the private-party eBlaster search.
U.S. v. Wendl, supra.
But she also found that this was jot the case for the
eBlaster reports that were generated after Auther called Wendl on June 15:
By that time, Auther knew someone may
have been viewing illicit material on the laptop. He suspected Wendl before he
called him. When he did call, he hid his real concern about the laptop's usage
behind a pretense that he was interested in purchasing the computer. After the
call, he did not uninstall or disable eBlaster, even though as a private
citizen he was under no obligation to continue monitoring an unknown person's
offensive Internet activities.
He did not immediately call his
colleagues at the FBI and hand the investigation over to them -- conduct that
might have indicated Auther wanted to maintain a separation between his private
self and his public persona as a law enforcement officer. After Wendl told
Auther he delivered the laptop to PSS, Auther continued his investigation into
the child pornography website searches.
Auther . . . was still concerned that
the searches may point to his son. He was also concerned that someone within
PSS may be using the laptop for these illegal searches. . . . The totality of
the circumstances shows that at this point, Auther's actions were related to
his official duties and in pursuit of a police goal. Although a formal FBI
investigation had not been opened yet, Auther was now acting under color of
law. Therefore, the searches that generated eBlaster reports after the initial
phone call to Wendl are subject to 4th Amendment scrutiny.
U.S. v. Wendl, supra. In other words, these searches had to be
“reasonable.”
The prosecution argued that even if Auther’s conduct
constituted state action, his
discovery
of the illicit Internet activity through eBlaster e-mails was accidental and therefore
does not come under the 4th Amendment. . . . [T]he Government relies on Thompson
v. U.S., 382 F.2d 390 (U.S. Court of Appeals for the 9th
Circuit1967). In Thompson, two police officers and a private
security guard questioned Thompson in his hotel room about suspicious cashing
of travelers checks. . . . [T]he security guard straightened a picture on
the wall and a small packet fell from behind the frame. One of the
officers opened the packet and found marijuana.
The police arrested Thompson on
narcotics charges, searched the hotel room . . . and seized stolen travelers checks.
Thompson moved to suppress all evidence as the product of an illegal search and
seizure. The trial judge denied the motion. A divided panel of the Ninth
Circuit affirmed, finding that the marijuana was `accidentally exposed’ and
that the police were not required to `close their eyes’ to it.
U.S. v. Wendl, supra.
Again, the judge was not persuaded. She explained that the holding in Thompson
is an extension of the plain-view doctrine. Police may seize incriminating evidence in plain view which they come
across inadvertently when they have a “prior justification” for the
intrusion. . . . That is to say, the police must be “lawfully present” on
the premises. In Thompson, police were lawfully present in
Thompson's hotel room because Thompson had invited them in. The officers
did not snoop around while they were there.
Auther, by contrast, had no legitimate
justification to intrude on anyone's conduct on the school laptop once it was
no longer on loan to his son. Moreover, the incriminating evidence did not drop
out while he was straightening the icons on the computer's desktop but came
into view because of intentional spying on the keyboard and hard drive. . . .
Auther's initial receipt and opening of
eBlaster reports on Friday, June 15, are not 4th Amendment searches, but the
receipt and opening of eBlaster reports on Monday, June 18, are.
U.S. v. Wendl, supra.
As to the second issue -- Wendl’s standing to challenge the
searches -- the judge found he did not have a “legitimate” 4th
Amendment expectation of privacy in school property he “misappropriated” . . . for his own personal use.” U.S. v.
Wendl, supra.
Whatever expectation of privacy he
developed in the contents of the laptop's hard drive and the keystrokes of
Internet searches is not a legitimate one that society is prepared to accept.
This is different from the situation where a search is conducted of an
employee's designated workplace computer, in which to some degree an employee
has a reasonable privacy expectation. . . . The laptop was not assigned to Wendl and was not his office
computer. For these reasons, Wendl lacks standing to claim a 4th Amendment
violation with respect to the eBlaster reports.
U.S. v. Wendl, supra. (For more on standing, check out this prior
post.)
The judge therefore denied Wendl’s motion to suppress the
eBlaster reports. U.S. v. Wendl, supra.
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