Wednesday, February 29, 2012

Title Transfers and Accessing a Government Computer

In 2010, Betty Barr was charged with and convicted of illegally accessing and aiding and abetting in the access of a government computer in violation of North Carolina General Statutes § 14-454.1(a)(2) and appealed. State v. Barr, __ S.E.2d __, 2012 WL 387867 (North Carolina Court of Appeals 2012). According to the opinion, Barr was “the owner and operator of Lexington License Plate Agency No. 29 (`Lexington Agency’). State v. Barr, supra.

The opinion explains that when a car dealer completes a vehicle sale, he or she has to

transfer title of the vehicle to the new owner, which entails delivering relevant paperwork, such as the bill of sale and application for new title, to a license plate agency such as the Lexington Agency. Defendant underwent training at the North Carolina Department of Motor Vehicles (`DMV’) in order to operate the Lexington Agency, and Defendant applied for and was granted a contract from DMV as the operator of the Lexington Agency. Defendant was also a licensed RAC–F Title Clerk (`title clerk’).

When a car dealer requests that a license plate agency transfer title of a vehicle, a title clerk checks the paperwork for accuracy and accesses a computer system called State Title and Registration System (`STARS’) by entering the title clerk's unique number called an RACF number, which is issued to the title clerk by DMV; the title clerk also enters a private entry code number that the title clerk creates as her password. STARS allows the title clerk to process the transfer of title, but only after the title clerk enters the relevant information for the transfer into STARS, including the car dealer's identification number. All North Carolina vehicles are titled and registered through STARS.

State v. Barr, supra.

Barr worked with four other title clerks at the agency: Mary Byerly, Arlene Cornatzer, Bettina Granados and Miranda Stokes. State v. Barr, supra. The Lexington Agency had a policy for when questions arose about title transfer issues: The clerk would first check the DMV manual; if the clerk couldn’t find the answer in the Manual, she would ask the other clerks “for guidance.” State v. Barr, supra. If none of them had dealt with that issue, the clerk would call the DMV help desk in Raleigh. State v. Barr, supra.

The opinion also explains that Randall K. Lanier was a car dealer who

owned Lanier Motor Company. For more than thirty-five years, Lanier had bought salvaged vehicles, repaired them, and sold them at Lanier Motor Company. In 2007, due to `tremendous financial losses’ affecting [his] credit, Lanier's bonding company refused to renew the company's bonds for 2008-2009. On 12 August 2008, Lanier's license, Lic. # 7736, was terminated. Lanier, however, continued to sell vehicles without a license.

State v. Barr, supra. The opinion says Barr’s agency “transferred title for sixteen of Lanier Motor Company’s vehicle sales” while it was unlicensed. State v. Barr, supra.

According to “several” of the title clerks and Barr, the following happened on September 25, 2008:

Lanier went to the Lexington Agency to transfer title for two vehicle sales. [Barr] was not present. Lanier gave the paperwork to the clerk, Stokes. Stokes entered Lanier's dealer identification number into STARS, and the computer responded, `invalid dealer number.’ Stokes asked Granados how to resolve the issue. Granados typed `OS’ for the dealer number and told Stokes to continue.

`OS’ was an abbreviation for out-of-state. When Stokes asked Granados why she entered `OS[,]’ Granados [said] Lanier `was in the process of combining two lots or moving a lot to make his dealer number present. It was in the stage of being perfected by Raleigh, and that's what we were told to do.’

Stokes understood that Granados had called the DMV help desk to confirm that entering `OS’ was the proper procedure for Lanier Motor Company. Entering `OS’ for Lanier's transfers of title became the recognized procedure for the office. Several days [later], Lanier came to the Agency to transfer title for another vehicle. [Barr] entered [his] dealer number into STARS, and the system indicated Lanier was an inactive dealer, which means the dealer has not renewed his dealer license.

State v. Barr, supra.

I’m assuming they did the same thing for Lanier with this transfer, because the opinion says Barr had instructed Granados (and maybe other clerks?) to “enter `OS’ for Lanier Motor Company's transfers.” State v. Barr, supra. The opinion says Barr was “directly involved in only three transfers” and “earned $59 in fees for the sixteen [Lanier] title transfers.” State v. Barr, supra.

As I noted above, Barr was charged with and convicted of violating North Carolina General Statutes § 14-454.1(a)(2), which makes it a crime to “access or cause to be accessed any government computer for the purpose of . . . [o]btaining property or services.”. Barr’s first argument on appeal was that her conviction should be reversed because the prosecution did not prove beyond a reasonable doubt that she “accessed a government computer `for the purpose of obtaining services”. State v. Barr, supra.

North Carolina General Statutes § 14-453(4a) defines computer services as “computer time or services, including data processing services, Internet services, electronic mail services, electronic message services, or information or data stored in connection with any of these services.” And North Caroline General Statutes § 14-453(9) defines “[s]ervices” as including “computer time, data processing and storage functions.”

The Court of Appeals disagreed:

Assistant Supervisor Danny Barlow . . . from the DMV testified that during . . . his investigation, he discovered transfers were made by the Lexington Agency using the `OS’ code for Lanier Motor Company. [Barr] admitted . . . that she personally accessed STARS and made the `September . . . 2008 [transfers], for Lanier Motor Company[.]’ [Barr] also admitted she accessed STARS and personally made the transfers for Lanier Motor Company on 23 October 2008 and 3 November 2008.

Likewise, [she] admitted that on 30 January 2009, [she] told `Mary Byerly . . . to run a Lanier Motor Company title through as out of state dealer.’ For the foregoing transfers, [Barr] admits that she was `paid $59.20[.]’

We believe the foregoing evidence is substantial evidence to support the element of `[o]btaining . . . services’ pursuant to § 14-454.1(a)(1). . . . [Barr] had `computer time’ on STARS; [she] also accessed `information or data stored in connection with’ STARS. We therefore conclude the trial court did not err by denying [her] motion to dismiss on the basis that there was not substantial evidence that [she] `[o]btain[ed] . . . services’.

State v. Barr, supra.

Barr’s second argument was that the prosecution did not prove she acted “willfully” as required by § 14-454.1(a)(1). State v. Barr, supra. The Court of Appeals began its analysis of this argument by noting that “`[w]ilful as used in criminal statutes means the wrongful doing of an act without justification or excuse, or the commission of an act purposely and deliberately in violation of law.’” State v. Barr, supra (quoting State v. Williams, 284 N.C. 67, 199 S.E.2d 409 (North Carolina Supreme Court 1973)).

The court then explained that while there was evidence to support the

foregoing assertions by [Barr] -- in particular, the testimony of Stokes and [Barr] -- there is also evidence to the contrary -- Granados' testimony. When asked, `did you ever call the Department of Motor Vehicle Division in Raleigh to receive any information or assistance regarding that particular issue?’ Granados responded, `No, sir.’

State v. Barr, supra.

Granados also testified, in part, as follows:

Q. Ma'am, I want to bring your attention to the date January 6, 2009. Did you have occasion to again process titles for Lanier Motor Company on that date?

A. Yes, sir.

Q. Could you indicate to the ladies and gentlemen of the jury how that came about and what, if anything, unusual took place?

A. I picked up the dealer packet out of the back room again. . . .

Q. What did you do with that Lanier Motor packet on January 6th, 2009. . . ?

A. I brought it to my work station. . . . [and] opened up the dealer packet and proceeded to see if I could do the work and it still said the dealer was inactive.

Q. Was the Betty Barr present in the office on that date and time?

A. Yes, sir.

Q. What conversation, if any, did you have with Betty Barr regarding the finding that you just learned on your computer as it relates to the Lanier Motor Company transfer?

A. I told her the dealer number was inactive. And she said to go ahead and process it as an OS and that when Raleigh received it they would see he had applied for his dealer . . . and would go ahead and send it through.

Q. Based upon your training and education and experience as a title clerk for the license plate agency, was that a proper protocol that you have learned or experienced as a clerk?

A. No, sir.

Q. How many transfers did you make for Lanier Motor Company on January 6, 2009, if any?

A. I recall about three pieces.

State v. Barr, supra. Granados also testified that she used the OS code in the transfers because “[m]y supervisor, Betty Barr, told me to process it.” State v. Barr, supra. Based on this and other evidence, the Court of Appeals rejected Barr’s argument that the evidence didn’t show she acted willfully. State v. Barr, supra.

Barr’s third argument was that she was improperly convicted of committing two crimes with regard ton one of the Lanier title transfers. State v. Barr, supra. With regard to the January 30, 2009 transfer, she was charged with and convicted of aiding and abetting (i) the access of a government computer for the purposes of obtaining services in violation of North Carolina General Statutes § 14-454.1(a)(2) and (ii) the access of a government computer for the purpose of improperly processing the transfer of a motor vehicle title in violation of North Carolina General Statutes § 14-454.1(b). State v. Barr, supra.

As I’ve noted in earlier posts, in criminal law aiding and abetting is a principle of vicarious liability, i.e., it allows A to be held liable for crimes B actually committed as long as A facilitated (abetted) the commission of those crimes. As Wikipedia notes, it’s also referred to as accomplice liability. So in these two counts, Barr is being charged with aiding and abetting two crimes – crimes that are created by a single criminal statute.

The Court of Appeals agreed with Barr on this issue:

The plain language of § 14–454.1(b) requires that the purpose for accessing a government computer must be one `other than those set forth' in [§ 14–454.1(a)]. As both the count charging Barr] with a violation of § 14–454.1(a) and the count charging [her] with a violation of § 14–454.1(b) allege that [she] aided and abetted the access of a government computer for the purpose of `processing the transfer of a motor vehicle title[,]’ the second count fails to state a purpose `other than those set forth’ in subsection (a), and the portion of the indictment charging a violation of § 14–454.1(b) is, therefore, fatally defective.

State v. Barr, supra.

The court therefore found that the § 14–454.1(b) count was “arrested”, i.e., vacated. State v. Barr, supra. It affirmed Barr’s convictions on the other counts. State v. Barr, supra.

Monday, February 27, 2012

Not a Good Idea . . .

As Wikipedia explains, and as I’ve noted in earlier posts, the 4th Amendment to the U.S. Constitution creates a right to be free from “unreasonable” searches and seizures. And Wikipedia also explains and I’ve also noted in earlier posts, a “search” violates a reasonable expectation of privacy under the U.S. Supreme Court’s decision in Katz v. U.S., 389 U.S. 347 (1967).

To have a reasonable expectation of privacy in a place or thing under Katz, I must (i) believe the place/thing is “private” and (ii) society must accept my subjective belief in its privacy as objectively reasonable. As I explained in a post I did a couple of years ago, if either element is absent, then the conduct cannot constitute a 4th Amendment “search”, even if it is carried out by a law enforcement officer or other agent of the government.

And that brings me to U.S. v. Coates, 2012 WL 581459 (U.S. Court of Appeals for the 3d Circuit 2012), which involved Michael Coates’ appealing his conviction for child pornography. According to the opinion, this is how Coates came to contact the Bloomsburg Police Department at “[i]n the early morning hours” of August 13, 2008: Coates called the department “to report that he was receiving text messages from an individual threatening to kill his friend, Addison. Because Addison was located in Ohio, Coates asked the police to help him contact the Ohio authorities.” U.S. v. Coates, supra.

This is how Coates’ brief on appeal explains why he arrived at the Bloomsburg Police Department “around 4:30 a.m.” on August 13, 2008:

After making a series of unsuccessful telephone calls to out-of-state law enforcement authorities and the Bloomsburg Police Department . . . seeking police intervention to thwart an individual who was making imminent threats to kill Coates' friend, an adult female named Addison who was in . . . Indiana, Coates had gone to the Bloomsburg Police Department . . . to show them the text messages he had received on his cell phone from the threatening party, including one stating `come and pick this bitch up if you want, but you will be getting her in pieces’.

Brief of Appellant and Appendix, U.S. v. Coates, 2011 WL 4543648. (No, I don’t know if she was in Indiana or Ohio.)

The 3d Circuit’s opinion picks up the story at that point, explaining that Coates entered

the Bloomsburg police station and met with Officer Persing, who was seated behind a plexi-glass window. Coates told Persing he had called earlier about the threatening text messages, and wanted the Bloomsburg Police Department to verify his story for the Ohio authorities. Persing asked Coates if he should look at the text messages. Coates said yes, and slid his cell phone to Persing through a slot underneath the plexi-glass window.

As Persing attempted to retrieve the text messages, he continued to converse with Coates through the window. Persing testified that he was manipulating the phone with his thumb, but was not paying attention to the phone because he was looking up at Coates. After a couple of minutes, Persing looked down at the phone and saw four images on the screen, at least one of which plainly depicted child pornography of a young girl performing oral sex on an adult male. Persing did not search the phone any further.

U.S. v. Coates, supra.

Instead of searching Coates’ phone, Persing asked Patrolmen Pifer to escort Coates

to an interview room and obtain a written statement about the threatening text messages. After calling his superiors, Persing entered the interview room and told Coates that they had to address the child pornography on the phone.

Persing read Coates his Miranda rights, and Coates signed a Miranda form acknowledging that he had been informed of his rights. During the subsequent interview, Coates disclosed that the female child in the image was his two-year-old daughter, and that he was the adult male. He then provided a written statement about the incident.

Law enforcement obtained a search warrant, and discovered additional child pornography stored on the phone, including twelve images and a video involving his daughter. Coates was taken into custody.

U.S. v. Coates, supra.

On September 11, 2008, a grand jury returned an indictment charging Coates with the production of child pornography, in violation of 18 U.S.C. § 2251(a) (Count One), production of child pornography by a parent, in violation of 18 U.S.C. § 2251(b) (Count Two), and receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) (Count Three). U.S. v. Coates, supra. He pled not guilty and moved to suppress the evidence obtained from his cell phone as having been obtained as result of police conduct that violated his rights under the 4th Amendment. U.S. v. Coates, supra.

The district court judge who had the case held a hearing on Coates’ suppression motion. U.S. v. Coates, supra. The opinion notes that Coates “owned a `slider’ model cell phone called an `LG Chocolate.’” U.S. v. Coates, supra. At the suppression hearing, Persing

testified that the phone was in a `closed’ position when Coates gave it to him. Persing also testified that as Coates was sliding the phone through the slot, Coates told him the message would be in his `messages,’ and it `should be the first message.’ Coates testified that he gave the phone to Persing in an `open’ position, with the threatening message on the screen. Although a video of the exchange had been recorded by a lobby camera, the video was not preserved.

U.S. v. Coates, supra.

At the suppression hearing, Pennsylvania State Police Trooper Sotak performed a

demonstration on Coates' cellular phone, showing the Court how [it] was manipulated in general and where text messages and pictures are located in particular. Sotack explained that the `user interface is a tactile response user interface.’ . . . Sotack further testified that if an individual was unfamiliar with Coates' type of cellular phone, it could be difficult to retrieve text messages.

U.S. v. Coates, 685 F.Supp.2d 551, 555 (U.S. District Court for the Middle District of Pennsylvania 2010).

And at last one other witness testified at the hearing:

Ray Colburn, an inmate who had been housed with Coates in the Columbia County Prison, . . . . testified that Coates had asked him if he knew anything about the rules of evidence for cell phones, to which he replied that he did not, and that Coates then told him that he planned to `beat it on a technicality.’ According to Colburn, Coates stated that he planned to lie and testify that the phone was open when he handed it to the officer, because the surveillance video had been lost and therefore he could not be discredited.

U.S. v. Coates, supra.

This is how, and why, the district court judge denied Coates’ motion to suppress:

Crediting the testimony of Persing over that of Coates, the District Court [judge] found that the cell phone had been handed over in a `closed’ position. . . . Finding that Coates `relinquished his phone to Persing without manifesting any privacy concerns,’ the [judge] concluded that Coates did not have a reasonable expectation of privacy in the phone. . . . The [judge] also concluded that Coates had consented to the search. . . . Based on these findings, the District Court denied the motion to suppress.

U.S. v. Coates, supra (quoting U.S. v. Coates, 685 F.Supp.2d 551, supra). As I’ve noted in earlier posts, consent is an exception to the 4th Amendment’s default requirement that officers get a warrant to search a place or thing, which means Persing’s examination of Coates’ phone would not have violated the 4th Amendment even if it had constituted a “search” under that amendment.

Coates pled guilty to Count Two of the indictment – the one charging him with production of child pornography by a parent – and was sentenced “to 300 months' imprisonment, to be followed by a 20–year term of supervised release.” U.S. v. Coates, supra. He then appealed his conviction to the 3d Circuit, arguing that the district court judge erred in denying his motion to suppress.

The Court of Appeals began its analysis of his 4th Amendment argument by noting that

it is abundantly clear that Coates did not possess a legitimate expectation of privacy in the contents of his cell phone. `Regarding the subjective prong, “we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy,”’ U.S. v. Correa, 653 F.3d 187 (3d Cir. 2011) (emphasis added) (quoting Bond v. U.S., 529 U.S. 334 (2000)), and an individual cannot claim a subjective expectation of privacy in an object voluntarily turned over to third parties.

U.S. v. Coates, supra.

The court then explained that Coates walked into the Bloomsburg Police Department

and voluntarily handed his cell phone to a police officer. Although he stated that he wanted to show the officer a text message, he did not hold the phone to show the message to the police officer, nor did he navigate to the text message before handing it to the officer, as we would expect of an individual expecting to maintain privacy.

And though the cell phone was in a closed position, Coates did not instruct Persing how to navigate to the text message from the start screen, nor did he say anything during the period that Persing was attempting to access the message. Coates freely and knowingly exposed the contents of his cell phone to law enforcement, without manifesting any expectation of privacy therein, and `[w]hat a person knowingly exposes to the public . . . is not a subject of 4th Amendment protection.’

U.S. v. Coates, supra (quoting Katz v. U.S., supra).

The Court of Appeals found that the fact Coates handed the phone to Persing with the

intent of sharing one specific text message is of no import. . . . By voluntarily handing his phone to the police, without any instructions on how to manipulate it, Coates `assumed the risk’ that Persing might stumble upon the incriminating images. See U.S. v. King, 604 F.3d 125 (3d Cir.2010). . . .

Moreover, that Coates did not expressly consent to the disclosure of additional content does not mean Persing exceeded the scope of the consent. The scope of consent is measured by what a `typical reasonable person [would] have understood by the exchange between the officer and the subject,’ not the speaker's subjective intent. Florida v. Jimeno, 500 U.S. 248 (1991). Coates told the police the text message existed, but did not navigate to it for Persing or instruct Persing on how to reach it. A reasonable person would have understood Coates to have given consent to navigate his phone to reach the text message, which is precisely what Persing did. Therefore, Persing's inadvertent viewing of the pornographic images, which happened to be in plain view when he looked at the phone, did not exceed the scope of that consent.

U.S. v. Coates, supra.

Finally, the Court of Appeals rejected Coates’ argument that it should “second guess” the district court judge’s decision to credit Persing’s testimony on the premise that it “would be difficult to inadvertently end up in the `photo’ segment of his phone while looking for a text message.” U.S. v. Coates, supra.

[T]he District Court found that Persing was unfamiliar with the LG Chocolate model, and not paying attention to the phone while he navigated through its menus. Rather, Persing conversed with Coates the entire time, and under such circumstances, the [judge] did not clearly err in crediting his testimony over that of Coates.

U.S. v. Coates, supra (emphasis in the original). For this and other reasons, the Court of Appeals upheld Coates’ conviction and sentence. U.S. v. Coates, supra.

Saturday, February 25, 2012

5th Amendment Privilege Applies to Encrypted Hard Drives

As Anonymous just pointed out, the U.S. Court of Appeals for the 11th Circuit has held that you can take the 5th Amendment privilege and refuse to produce the unencrypted contents of a hard drive or hard drives.

As Anonymous also pointed out, you can find the 11th Circuit's opinion here:

As I've explained in earlier posts, I think the privilege should -- and does -- apply to compelling someone to unencrypt their hard drive or any other storage media (or, for that matter, hard copy).
If you're interested, you might check out the 11th Circuit's opinion.

Friday, February 24, 2012

The Laptop, “Electronic Records” and the 4th Amendment

As Wikipedia explains, and as I’ve noted in earlier posts, the 4th Amendment creates a right to be free from “unreasonable” searches and seizures. As I’ve also noted, the 4th Amendment creates a default preference for warrants, which means that searches and seizures should, whenever possible, be conducted pursuant to a warrant.

And as I’ve explained in at least one prior post, simply having a warrant is not enough to ensure that an officer’s search and/or seizure is “reasonable” under the 4th Amendment. The search must also be “reasonable” in scope, i.e., it has to remain within the scope of what the warrant authorizes officers to search for.

So, if police have a warrant to search a home for two stolen large-screen TVs, they can only search (i) in places where the TVs could be (ii) until they find what they’re looking for. If they look in places where the object of the search – the TVs – could not be, like a dresser drawer, the search is unreasonable and the evidence it turned up will be suppressed. The same thing will happen if the officers keep searching after they find the two TVs the warrant authorized them to search for. Once they find what they came for, the justification for their presence and their searching has been exhausted.

That brings us to Henson v. State, __ S.E.2d __, 2012 WL 500845 (Georgia Court of Appeals 2012). This is all I know about how the case arose:

[B]ased on information received from a confidential informant (`CI’), Athens–Clarke County police officers with the drug task force believed that an individual known as `Gabe’ was selling marijuana from his apartment, located at 175 International Drive in Athens. Consequently, officers had the CI make a `controlled buy’ of marijuana from Gabe at his apartment, which the officers monitored by having the CI wear a wire while also keeping him under close surveillance.

Following the successful controlled buy of marijuana from Gabe, one of the officers obtained a warrant to search his apartment. The warrant described the premises to be searched as `175 International Drive Apartment 1013 of The Reserve Apartments, Athens-Clarke County, Georgia’ and noted that the premises were `occupied by Gabriel Choi and unknown roommates.’

With regard to the focus of the search, the warrant provided:

`There is now located certain instruments, articles, person(s), or things, namely: marijuana, miscellaneous items associated with drug distribution such as packaging material, digital and hand scales, marijuana smoking devices, cash proceeds and records (both written and electronic) of illegal drug sales which is being possessed in violation of . . . [Georgia Code § 16-13-30].’

Henson v. State, supra.

On November 20, 201, “one day after” the offices got the warrant, drug task force officers knocked

on the door of the subject apartment and were allowed entry by Henson, who was one of `Gabe’ Choi's roommates. Upon entering the apartment, the police officers smelled the odor of marijuana and observed digital scales, marijuana residue, and marijuana smoking devices.

As they began their search of the apartment, one of the officers walked into the unlocked and open bedroom that was occupied by [Daniel] Henson and noticed a laptop computer, which was open and running.

Using the computer's mouse, the officer opened the Start Menu and then clicked open the folder labeled `My Pictures.’ And as the officer began reviewing the `thumbnail’ images contained within that folder, he quickly discovered images that appeared to be child pornography.

Henson v. State, supra.

The officer “immediately” stopped searching and contacted officers from the Athens-Clarke County Police Department’s

sex crimes unit, who arrived on the scene a short while later and questioned Henson regarding the images. Shortly thereafter, officers obtained additional warrants to search Henson's computer for child pornography, and in the ensuing investigation, officers discovered hundreds of photographs and dozens of videos depicting such images.

Henson v. State, supra.

Henson was subsequently indicted on twenty counts of the sexual exploitation of children in violation of Georgia Code § 16-12-100(b)(8). Henson v. State, supra. After he was indicted, Henson filed a motion to suppress the child pornography found on his laptop, arguing that the officer who conducted the initial search of the computer exceeded the scope of the “original warrant when he opened the `My Pictures’ folder.” Henson v. State, supra.

The trial judge held a hearing on Henson’s motion, at which “the officer who obtained he warrant and the officer who actually searched Henson’s computer testified.” Henson v. State, supra. After hearing the evidence and arguments from both sides, the trial judge denied Henson’s motion to suppress. Henson v. State, supra. Henson asked the Court of Appeals to immediately review the trial judge’s ruling, i.e., to review it before the case went to trial and a judgment, and the Court of Appeals agreed to do so. Henson v. State, supra.

The Court of Appeals began its analysis of Henson’s appeal by noting that his “sole enumeration of error” was that

the trial court erred in denying his motion to suppress the evidence of child pornography found on his personal computer. Specifically, he argues that the police officer who initially searched his computer exceeded the scope of the warrant seeking evidence of illegal drug transactions when he opened the `My Pictures’ folder.

Henson v. State, supra.

Next, the court reviewed the 4th Amendment’s requirement that a warrant “particularly” describe “the place to be searched, and the things . . . to be seized.” Henson v. State, supra. It noted that in Reaves v. State, 284 Ga. 181, 664 S.E.2d 211 (2008), the Georgia Supreme Court

addressed the particularity requirement for warrants and held that `[a]lthough a warrant cannot leave the determination of what articles fall within its description and are to be seized entirely to the judgment and opinion of the officer executing the warrant, the degree of specificity in the description is flexible and will vary with the circumstances involved.’ Specifically, `the particularity requirement only demands that the executing officer be able to identify the property sought with reasonable certainty.

Henson v. State, supra.

The Court of Appeals then applied this standard and found that the trial judge did not err in denying Henson’s motion to dismiss:

Here, . . . the warrant sought a search for `marijuana, miscellaneous items associated with drug distribution such as packaging material, digital and hand scales, marijuana smoking devices, cash proceeds and records (both written and electronic) of illegal drug sales.’ And given that electronic records of illegal drug transactions are included amongst those items to be searched, the warrant permitted the search of personal computers at the subject address. Indeed, Henson does not argue on appeal that his computer was an improper target of the search.

Nevertheless, he contends that the officer's search exceeded the scope of the warrant because his computer's `My Pictures’ folder, which by its very title obviously contained photographs, is not encompassed by the term `electronic records.’ However, the ordinary signification of `record’ is “[a]n account of some fact or event preserved in writing or other permanent form . . . or “any thing . . . serving to indicate or give evidence of, or preserve the memory of, a fact or event.

And given that a picture certainly preserves or gives evidence of a fact or event -- in many instances as efficiently as a thousand words -- Henson's claim that the term `electronic records’ does not encompass pictures or photographs lacks merit. Thus, the trial court did not err in finding that the officer's search did not exceed the scope of the warrant.

Henson v. State, supra (quoting The Compact Oxford English Dictionary 1529 (2d ed.1991) (emphasis added)).

The court also noted that the officer “immediately halted his” original search for electronic records once he saw evidence of child pornography “until an additional warrant [for child pornography] was obtained.” Henson v. State, supra.

Interestingly, although the Court of Appeals found “that the officer's search of Henson’s computer was not impermissibly broad,” it also took “this opportunity . . . to remind law-enforcement officers to exercise caution when searching the contents of personal computers.” Henson v. State, supra. The court then explained that

just because an officer has the authority to search the data stored on a personal computer (such as Henson's laptop) does not mean that he has the unbridled authority to sift through all of the data stored on the computer. Instead, officers must be as specific as possible in a search warrant regarding what it is they are seeking on the computer and conduct the accompanying search, as the officer did here, in a way that avoids searching files that are not reasonably likely to contain the kinds of data identified in the warrant.

Henson v. State, supra.

The one thing I wondered about when I read this opinion is whether the officer who searched Henson’s laptop had any reason to believe either that (i) it belonged to Choi (who was, after all, the focus of their investigation and the warrant) or (ii) belonged to Henson, who apparently was not the focus of their investigation and/or the warrant. If the officer was on notice that the laptop did not belong to Choi and/or was not used by Choi in a manner likely to have been associated with his (alleged) drug dealing, then I’m not sure I see why it was proper for him to search the laptop. I’m probably missing something, since I don’t have access to Henson’s motion to suppress or brief on appeal or the prosecution’s response to either/both.