The Laptop, Involuntary Statements and Inevitable Discovery

After he was convicted of “Soliciting a Child by a Computer and Attempted Indecent Liberties with a Child,"

-->both in violation of North Carolina law, Richard Brandon Wells appealed.  State v. Wells, __ S.E.2d __, 2013 WL 427105 (North Carolina Court of Appeals 2013).

According to this opinion, the case began when warrants were issued for

[Wells’] arrest . . . on 11 March 2010 for communications and acts with an online profile believed by [him] to be associated with a child of less than 16 years of age. [Wells’] correspondence with the online profile occurred between the dates of 4 May 2009 and 5 March 2010. In addition to the arrest warrants, a search warrant was issued authorizing the seizure of computers from [his] house at 554 Howard Tant Road.

The same day the warrants were issued, Guilford County detectives traveled to Raleigh to arrest [Wells] and execute the search warrant. Detectives arrived at [his] house to find that [he] was not present. Furthermore, execution of the search warrant yielded no evidence.

Thereafter, the police contacted [Wells’] place of employment, the Raleigh Fire Department, Spring Forest Road Station, in order to locate [him]. [Wells], who was at the station, was notified that police were going to arrest him. Opting to avoid arrest at the fire station, a senior fire official drove [Wells] to the Raleigh police substation on Litchford Road, at which point [he] was taken into custody.

After being taken into custody, [Wells] was read his Miranda rights. [He] initially indicated that he was unsure whether he wanted an attorney. But when the detective responded that he could not tell him anything further than what was on the arrest warrant and would have to take him back to Guilford County, [Wells] proceeded to waive his rights.

State v. Wells, supra.

The opinion also explains that while they were questioning Wells, the detectives

elicited statements from [Wells] by telling him that the more he helped them, the more they could help him; and that if he was cooperative, they would inform the court and the district attorney that he had been cooperative. 

In response, [Wells] answered questions, including informing detectives that he owned a Dell laptop computer that was located on his bed at the fire station. As a result of the information obtained, the police seized [his] laptop from the fire station.

State v. Wells, supra.

Wells was indicted on the charges noted above on July 6, 2010, after which he filed a motion to “suppress statements and a motion tosuppress evidence.”  State v. Wells, supra. On May 6, 2011, the trial judge who had the case entered an order in which he ruled on Wells’ motions to suppress.  State v. Wells, supra.

[Wells’] motion regarding his statements was granted on the grounds that the statements were involuntary and resulted from a promise, hope or reward. [His] motion regarding the evidence retrieved from his laptop computer was denied based on a finding `[t]hat the location of the computer would have been discovered inevitably by law enforcement officials [ ]’ and, therefore, the conclusions that `[t]he search and seizure of the defendant's computer was lawful[ ]’ and `[t]hat the [laptop] computer was lawfully seized[.]’

State v. Wells, supra.

As this article explains, a confession is inadmissible under the 14^th Amendment’s due process clause if it was obtained by measures, including promises of leniency, that presumptively render it involuntary.  This test derives from the Supreme Court’s decision in Brown v.Mississippi, 297 U.S. 278 (1936), which is discussed in the article.

So the judge suppressed Wells’ statements, including his statements about the laptop, but declined to suppress the laptop, finding that its discovery was not the product of the violation of Well’s 14^th Amendment right to due process.  Wells then went to trial, and the jury found him guilty. State v. Wells, supra. He was sentenced to “consecutive terms of 14–17 months and 6–9 months, the latter term suspended on the condition that [he] serve 24 months of supervised probation.”  State v. Wells, supra.

So the only issue Wells raised on appeal was the denial of his motion to suppress “the evidence seized from his laptop computer.”  State v. Wells, supra.  The Court of Appeals began its analysis of his argument that the trial judge erred in denying the motion by explaining that when it reviews a trial judge’s denying a motion to suppress,

we are `strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.’ State v. Cooke, 306 N.C. 132, 291 S.E.2d 618 (North Carolina Supreme Court 1982). `The trial court's conclusions of law, however, are fully reviewable on appeal.’  State v. Hughes, 353 N.C. 200, 539 S.E.2d 625 (North Carolina Supreme Court 2000).

Here, defendant specifically contends that there is no competent evidence to support the trial court's finding that his laptop computer would have inevitably been discovered. 

State v. Wells, supra.

The Court of Appeals also explained that the exclusionary rule dictates that evidence

`derived from an unconstitutional search or seizure is generally inadmissible in a criminal prosecution of the individual subjected to the constitutional violation.’ State v. McKinney, 361 N.C. 53, 637 S.E.2d 868 (North Carolina Supreme Court 2006). 

Furthermore, `[w]hen evidence is obtained as the result of illegal police conduct, not only should that evidence be suppressed, but all evidence that is the “fruit” of that unlawful conduct should be suppressed.’ State v. Pope, 333 N.C. 106, 423 S.E.2d 740 (North Carolina Supreme Court 1992).

State v. Wells, supra.

Here, the prosecution did not challenge the trial judge’s granting Wells’ motion to suppress his statements as obtained by “promise, hope or reward”, which made them involuntary under the 14^th Amendment rule noted above.  State v. Wells, supra.  The only issue, then, was whether the laptop would inevitably have been discovered, i.e., whether the discovery of the laptop was not a product of the violation of Wells’ 14^th Amendment rights. 

The Court of Appeals explained that North Carolina,

like the majority of jurisdictions, has adopted the inevitable discovery exception to the exclusionary rule, discussed by the United States Supreme Court in Nix v. Williams, 467 U.S. 431 (1984). . . . `Under the inevitable discovery doctrine, evidence which is illegally obtained can still be admitted into evidence as an exception to the exclusionary rule when “the information . . . inevitably would have been discovered by lawful means.”’ State v. Woolridge, 147 N.C.App. 685, 557 S.E.2d 158 (North Carolina Court of Appeals 2001) (quoting Nix v Williams, supra.). . . .  

Inevitable discovery is to be determined on a case-by-case basis. . . . `[T]he prosecution has the burden of proving that the evidence, even though obtained through an illegal search, would have been discovered anyway by independent lawful means.’ State v. Woolridge, supra. The State must do so by a preponderance of the evidence. State v. Garner, 331 N.C. 491, 417 S.E.2d 502 (North Carolina Supreme Court 1992).

State v. Wells, supra.

The court then turned to the merits of this case, noting that

[a]lthough it seems entirely logical that the police would search the fire station for evidence regarding [Wells’] crimes and discover the location of the laptop computer, there is no evidence in the record to support this assumption. At the suppression hearing, the only argument supporting inevitable discovery was defense counsel's statement that:

`When they wouldn't have found the computer at his house, it's not even a remote stretch to go -- they knew exactly where he was prior to this and that's where they would have gone. It wouldn't take a whole lot of effort to be able to make that connection and go look for the computer where he was located.’

This type of conclusory statement by counsel is not the type of evidence from which `independent lawful means’ have been found to support a finding of inevitable discovery.

As previously stated, although we acknowledge that it seems logical that the laptop computer would have been discovered, the State failed to provide any evidence in this case, either through testimony concerning common practices of the fire department for inventorying employee's belongings or through testimony regarding continued search efforts in this case, indicating that investigating officers would have located the laptop.

State v. Wells, supra.

The court also noted that “[i]nstead, the State asserts various arguments on appeal in an attempt to bolster the validity of the search and seizure of [Wells’] laptop computer.”  State v. Wells, supra.  It went through the prosecution’s arguments, and then found that they “lack merit.”  State v. Wells, supra.

The prosecution’s first argument was that Wells

impliedly consented to the search of his laptop computer by telling the detectives where it was located. This argument must fail, as it entirely ignores the trial court's unchallenged conclusions that [Wells’] statements `were obtained as a result of promise, hope or reward” and were therefore “given involuntarily.’

State v. Wells, supra.

Its second argument, which also implicated its third argument, was that Wells had no

reasonable expectation of privacy in the laptop placed in a common living area in a fire station. While the State may be correct in asserting [he] had no reasonable expectation of privacy, we need not address this issue in the present case given that `those subjected to coercive police interrogations have an automatic protection from the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial.’ Chavez v. Martinez, 538 U.S. 760 (2003). . . .  

The critical analysis concerning inevitable discovery is not whether [Wells] had a reasonable expectation of privacy based on where the laptop computer was located, but instead whether the laptop computer would have been discovered by independent lawful means. 

For the same reason, the State's third argument, that a valid search warrant authorized the seizure of data off the laptop computer, fails because the fact that investigators applied for a search warrant to retrieve the laptop computer's contents does not eliminate the taint that led to the discovery and seizure of the laptop computer in the first instance.

State v. Wells, supra.

And, finally, the Court of Appeals was equally impressed with the prosecution’s fourth and final argument, which was that

discovery of the laptop computer was inevitable because the laptop computer was known to be in existence and was the focal point of the investigation. We do not doubt either of the State's assertions; however, having knowledge that the laptop computer exists is entirely different than knowing where the laptop computer may be found. At the hearing on [Wells’] motions to suppress, no evidence was presented to the trial court to show how or when the laptop computer would have been discovered by independent lawful means.

State v. Wells, supra.

The court therefore held that “the trial court erred in denying [Wells’]motion to suppress the evidence seized from his laptop computer” and ordered “a new trial.”  State v. Wells, supra.

The Dead Sea Scrolls, Satire and Identity Theft

After a jury convicted him of

identity theft in the second degree (2 counts), criminal impersonation in the second degree (14 counts), forgery inthe third degree (10 counts), aggravated harassment in the second degree (3 counts), and unauthorized use of a computer, all in violation of New York law,

and after the trial judge sentenced him to “an aggregate sentence of six months”, Raphael Golb appealed.  People v. Golb, 102 A.D.3d 601, __ N.Y.S.2d __, 2013 WL 322575 (New York Supreme Court – Appellate Division 2013).  (The opinion notes that the judge also vacated the “identity theft conviction under the first count of the indictment” and therefore dismissed that charge.  People v. Golb, supra.)

To understand the charges, and the opinion this post examines, it is helpful to understand a little about what was going on in the case.  It involves Norman Golb, Raphael Golb’s father, who is a professor at the University of Chicago and who, according to Wikipedia,

has been a key proponent of the viewpoint that the Dead Sea Scrolls found in Qumran were not the product of the Essenes, but rather of many different Jewish sects and communities of ancient Israel, which he presents in his book Who Wrote The Dead Sea Scrolls?: The Search For The Secret Of Qumran. In the 1990s, Golb was an advocate for the freeing of the Scrolls for academic pursuit.

And according to this article in the New York Times, Professor Golb’s views

attracted limited support from other scholars, and none from any major academics in the United States. From his home in Chicago, where he has been teaching and publishing, he attributed this cold shoulder to non-scholarly factors. `The personal animus, I regret to say, has nothing to do with scholarship. It has to do with their anger that I came up with a new and more cogent view of the origin of the scrolls.’

According to the same article,

[b]etween 2006 and 2009, [Raphael Golb] created more than 80 online aliases to advance his father’s views about the Dead Sea Scrolls against what he saw as a concerted effort to exclude them. Along the way, according to a jury . . . , he crossed from engaging in academic debate to committing a crime.

Or, as the New York Supreme Court’s Appellate Division noted, Raphael Golb is

the son of an expert on the Dead Sea Scrolls. [He] set up email accounts in which he pretended to be other scholars who disagreed with [his] father's opinion on the origin of the Scrolls. Among other things, [Raphael Golb] sent emails in which one of his father's rivals purportedly admitted to acts of plagiarism.

People v. Golb, supra.

According to the New York Times article, Golb’s “aliases begot other aliases, known on the Internet as sock puppets: 20, 40, 60, 80.” The same article also notes that the “sock puppets debated with other posters, each time linking to other sock puppets to support their arguments, creating the impression of an army of engaged scholars espousing Norman Golb’s ideas.”   

  

And that brings us back to the opinion.  Golb’s “principal defense was that these emails were only intended to be satiric hoaxes or pranks.”  People v. Golb, supra. The court, though, was not persuaded:

[A]s it has been observed in the context of trademark law, `[a] parody must convey two simultaneous -- and contradictory -- messages: that it is the original, but also that it is not the original and is instead a parody’ (Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Group, Inc., 886 F.2d 490, 494 [U.S. Court of Appeals for the 2d Circuit 1989]). 

Here, the evidence clearly established that [Golb] never intended any kind of parody. Instead, he only intended to convey the first message to the readers of the emails, that is, that the purported authors were the actual authors. It was equally clear that [Golb] intended that the recipients' reliance on this deception would cause harm to the purported authors and benefits to [him] or his father.

The court's charge, [i.e., the judge’s instructions to the jury,] which incorporated many of [Golb’s] requests, fully protected his constitutional rights, and the court was not required to grant [his] requests for additional instructions. The court carefully informed the jury that academic discussion, parody, satire and the use of pseudonyms were protected by the 1st Amendment.

People v. Golb, supra. (For more on parody and the 1^st Amendment, check out the article you can find here.)

As to the trial judge’s instructions to the jury, the opinion explains that the

court also ensured that the jury understood the terms `fraud’ and `defraud’ by expanding their definition and advised the jury that `without the intent to deceive or defraud as to the source of the speech with the intent to reap a benefit from that deceit, there is no crime.’

The court was under no obligation to limit the definitions of `injure’ or `defraud’ -- terms used in the forgery and criminal impersonation statutes -- to tangible harms such as financial harm. . . . The court also properly employed the statutory definition of `benefit’ as `any gain or advantage’ to defendant or to another person (New York Penal Law § 10.00[17]).

People v. Golb, supra.

The Supreme Court – Appellate Division also did not buy Golb’s argument that

it is constitutionally impermissible to include an intent to influence a constitutionally-protected academic debate within the concept of fraud, injury or benefit, that allowing injury to reputation to satisfy the injury element would effectively revive the long-abandoned offense of criminal libel, and that, in any event, the alleged truth of the content of the emails should have been permitted as a defense.

However, the evidence established that [Golb] intended harm that fell within the plain meaning of the term `injure,’ and that was not protected by the 1st Amendment, including damage to the careers and livelihoods of the scholars he impersonated. [Golb] also intended to create specific benefits for his father's career. 

The fact that the underlying dispute between [Golb] and his father's rivals was a constitutionally-protected debate does not provide any 1st Amendment protection for acts that were otherwise unlawful.

People v. Golb, supra.

And the court explained that Golb

was not prosecuted for the content of any of the emails, but only for giving the false impression that his victims were the actual authors of the emails. The 1st Amendment protects the right to criticize another person, but it does not permit anyone to give an intentionally false impression that the source of the message is that other person. . . .

People v. Golb, supra.

Finally, the Supreme Court – Appellate Division rejected Golb’s

claims that the statutes under which he was convicted were unconstitutionally vague or overbroad. None of these statutes was vague or overbroad on its face or as applied (see People v. Shack, 86 N.Y.2d 529, 538 [1995]; Broadrick v. Oklahoma, 413 U.S. 601, 611–616 [1973)]). 

The People were required to prove that [Golb] had the specific fraudulent intent to deceive email recipients about his identity, and to obtain benefits or cause injuries as a result of the recipients' reliance on that deception. The statutes criminalized the act of impersonation and its unlawful intent, not the content of speech falsely imputed to the victims.

People v. Golb, supra. 

(As Wikipedia explains, the void for vagueness doctrine is based on two principles:  the desire to ensure that criminal statutes are not “too vague for the average citizen to understand”; and that they do not give law enforcement officers too much discretion in deciding who will and who will not be arrested and prosecuted.)

The court therefore affirmed Golb’s conviction and sentence.  People v. Golb, supra.

As the New York Times article published on February 16 noted, Golb, who had been a lawyer, was disbarred as the result of his felony convictions and, when the article went to press, was “waiting to begin serving” his six-month sentence.   

If you would like to read the arguments for and against his conviction, I suggest you check out this article; it has the best coverage of the issues I have seen.

Facebook, “Wrath Commands” and the 4th Amendment

On March 22, 2012, a federal grand jury in Colorado returned an indictment against

Kenneth Royal Wheeler charging him with the following: (1) Count One -- knowingly transmitting in interstate and foreign commerce a communication containing a threat to injure the person of another; specifically, at approximately 12:06 p.m., on or about March 12, 2012, Defendant transmitted from Italy to the United States via the internet social network `Facebook,’ `wrath commands’ to kill law enforcement officers and children in violation of 18 U.S Code § 875(c); and (2) Count Two -- knowingly transmitting in interstate or foreign commerce a communication containing a threat to injure the person of another; specifically, at approximately 1:25 p.m., on or about March 12, 2012, Defendant transmitted from Italy to the United States via the internet social network `Facebook,’ instructions to kill law enforcement officers, politicians, judges, district attorneys, public defenders and their children in violation of 18 U.S. Code § 875(c).

U.S. v. Wheeler, 2013 WL 169494 (U.S. District Court for the District of Colorado 2013).

Personally, I’ve never encountered “wrath commands” so I don’t really know what they are, but according to this article in the Denver Post, on March 12, 2012, when Wheeler was in Italy, he posted a “ramble” on Facebook that began with these comments:

`STARDRAGON celestial overide contigency 2 7 A release the P. A. E. virus in america. this is a holy war. well. . . . i am not in america. even though i might come back the fact is i am not in america right now. . . . so. . . . anything i put on facebook, threats commands, activities, so on and so forth. the americans cant punish me for what i say here in rome italy on facebook. so. kill cops. drown them in the blood of thier children.’

As I have explained in prior posts, § 875(c) of Title 18 of the U.S. Code is a threat statute.  More precisely, it provides as follows:

Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

And as I have explained noted in prior posts, defendants often challenge charges under the statute on the grounds that their communication did not rise to the level of a “true threat" . . . which, as I note later, may or may not be an issue hre.

That, though is not Wheeler did, at least not with regard to the issues the court is dealing with in this opinion.  Here, the federal district court judge is ruling on Wheeler’s motion to suppress certain evidence.  U.S. v. Wheeler, supra.

The judge began his opinion by noting that the defendant has the

`burden of showing a constitutional infirmity if a search or seizure was carried out pursuant to a warrant. If, on the other hand, the police acted without a warrant, the burden of proof is on the prosecution.’ U.S. v. Esser, 451 F.3d 1109 (U.S. Court of Appeals for the 10th Circuit 2006).

U.S. v. Wheeler, supra.  So, since the search at issue in Wheeler’s motion to dismiss was conducted pursuant to a warrant, the burden was on Wheeler to show that the search somehow violated the 4^th Amendment.  U.S. v. Wheeler, supra.

This, according to the opinion, is how the warrant came to be issued and what it authorized: 

Special Agent Gerard Kavanagh submitted an Affidavit in support of the Warrant. . . . Kavanagh has been employed as a Special Agent with Immigration and Customs Enforcement Homeland Security Investigations since February 2012 and assigned to the Grand Junction Office. . . . The Affidavit stated that, on March 16, 2012, members of the Grand Junction Police Department requested the assistance of Federal agents with regard to threatening posts made by Kenneth Royal Wheeler on his Facebook page. . . . 

The Grand Junction Police Department became aware of these posts when a tip line caller reported the postings. . . . The caller stated that Wheeler posted a request for someone to kill all of the children at Stepping Stones Daycare, as well as several specific police officers and their children. . . . The caller reported that Wheeler lives a few blocks from the Stepping Stones daycare. . . .

The affidavit stated that, on March 19, 2012, Kavanagh compared the photograph from Kenneth Wheeler's Colorado Driver's License to the Facebook profile photographs on the `Kenneth Royal Wheeler’ account. . . . Kavanagh believed the photographs were of the same individual. . . . 

Kavanagh stated his belief that the computers of Facebook were likely to contain material relevant to the threats made in the postings, including stored electronic communications and information concerning subscribers and their use of Facebook, such as account access information, transaction information, and other account information. . . .

That same day, United States Magistrate Judge Gudrun Rice approved the warrant. . . . The Warrant permitted the search of `information associated with FACEBOOK Social Networking account located at [www.facebook.com/profile.php?id=1304977903] and under the username of “Kenneth Royal Wheeler” that is stored at the premises owned, maintained, controlled, or operated by FACEBOOK CORPORATION, a Social Media provider headquartered at 1601 Willow Road in Menlo Park, California 94025.’. . . The Warrant allowed for seizure of all contact and personal identifying information for the account, all activity logs, photos uploaded to the account, records of communications sent and received on the account, all `check ins’ and uses of the `like’ feature, and all other accounts that were `friends’ and to which the account was a `fan’ of. . . .

U.S. v. Wheeler, supra. 

In moving to suppress, Wheeler argued that “the affidavit on which the search warrant was issued did not meet the constitutional requirements and, therefore, all evidence obtained as a result of the search should be excluded.”  U.S. v. Wheeler, supra.  The  judge who has the case began his analysis of the argument by noting that the 4^th Amendment states, in pertinent part, that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.” U.S. v. Wheeler, supra.  He also pointed out that the 4^th Amendment’s requirements or probable cause and particularity

`serve two constitutional protections: First, the magistrate's scrutiny is intended to eliminate searches not based upon probable cause, therefore justifying the intrusion into the place to be searched. Second, the particularity provision protects against general, exploratory rummaging through the suspect's belongings.’ U.S. v. Sells, 463 F.3d 1148 (U.S. Court of Appeals for the 10th Circuit 2006)

U.S. v. Wheeler, supra. 

Wheeler “point[ed] out” that “he is charged with transmitting threats in interstate commerce and argues that, because the Warrant does not seek the fruits of that crime, the instrumentalities of that crime or the contraband from that crime, it lacks the constitutionally required nexus to the crime.” U.S. v. Wheeler, supra.  The judge, though, found that his argument “improperly narrows the scope of the probable cause analysis and asks the Court to Monday-morning quarterback what was, at the time the Warrant was issued, an ongoing investigation.”  U.S. v. Wheeler, supra. 

The judge noted that when the warrant was issued, Kavanaugh was investigating an

ongoing threat to the safety of Grand Junction residents. He did not know whether there was an actual plan to bomb the daycare and kill police officers or whether the comments on [Wheeler’s] Facebook page were idle threats. The fact [Wheeler] was ultimately charged only with making threats does not dictate the limits of the scope of the Warrant at the time it was issued. . . . Instead, the Court must determine whether the Affidavit established probable cause to issue the warrant, considering the totality of the circumstances at the time the Warrant was issued.

U.S. v. Wheeler, supra.  He also explained that probable cause is assessed by a

`totality of the circumstances’ standard under which the judge makes a “practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.’

U.S. v. Wheeler, supra (quoting U.S. v. Corral, 970 F.2d 719 (U.S. Court of Appeals for the 10th Circuit 1992)).

Wheeler claimed that Kavanaugh’s affidavit did not establish probable cause to search

for the vast majority of the information that was permitted under the Warrant. . . . For example, [he] contends there is no probable cause to search for his `Friends’ list, what pages he `liked’ or became a fan of, who he may have `poked’, or what items he sold on Facebook's Marketplace. . . . In essence, [he] is not arguing about whether there was probable cause to issue the Warrant at all; rather, [Wheeler] is challenging the scope of the warrant and whether the Affidavit established probable cause for such a warrant.

U.S. v. Wheeler, supra. 

The judge did not buy Wheeler’s argument, instead finding that the warrant was not

overbroad and the Affidavit established probable cause to search for all of the aspects covered by the Warrant. The comments posted on Wheeler’s Facebook page repeatedly referred to [his] `religious operatives and followers’ and instructed them to kill cops (generally and a particular list of officers) and to `commit a massacre in the stepping stones preschool and daycare, just walk in and kill everyone’. . . .   

The comments also said `nobody in america knows who i have been associating with outside america, we are ready, we are coming back, and we are doing this. and just like i told them, when the cuffs go on the bombs go off.’. . . Thus, the comments on [his] Facebook page plainly indicated Wheeler was not acting alone, but it failed to provide any insight into with whom he may have been conspiring.

The Affidavit, in turn, states that the purpose of the Warrant is to seize `conspiratorial communications with others’ regarding `[t]hreats and threatening communications, incitements to violence, [and] threats to use destructive devices’, as well as obtaining `[r]ecords relating to who created, used, or communicated with the user ID, including records about their identities and whereabouts.’ . . .

Given the comments on [Wheeler’s] Facebook page about the involvement of others in his plans, Kavanaugh could have reasonably believed information obtained from Facebook, such as who [his] `friends’ were, what pages he `liked’, and who he `poked’, would provide insight into who these other actors were and where they may have been located. The identity and location of these other actors is evidence related to the crime for which [Wheeler] was being investigated. Accordingly, Kavanaugh's Affidavit established probable cause for the search of [Wheeler’s] Facebook account. . . .

U.S. v. Wheeler, supra. 

The judge therefore found that “the Affidavit upon which the Warrant was issued sufficiently established probable cause to believe that the search would lead to evidence of a crime” and so denied Wheeler’s motion to suppress.  U.S. v. Wheeler, supra. 

Finally, an aside that has nothing to do with Wheeler’s motion to suppress.  The Denver Post story noted above says that at what may have been a hearing on the motion to suppress, Wheeler’s lawyer told the district court judge that Wheeler

had no friends to communicate with on his Facebook page, so his call for `followers’ to kill Grand Junction police officers and attack a day-care center wasn't a threat, his lawyer said Thursday.

`Mr. Wheeler had eliminated all of the people he had friended on Facebook. It means you are not communicating with anybody.’

`At some level, it means nobody is receiving the communication,’ Abraham V. Hutt, Wheeler's lawyer, told U.S. District Judge William J. Martinez.

I don’t see how, even if this is true, it had anything to do with the motion to suppress. To me -- and I could be wrong about this -- it sounds more like an argument that what Wheeler posted could not be a “threat” because no one was reading it. . . .

Fraud, Overtime and the Sheriff’s Computer System

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After she was convicted of “engaging in an organized scheme to defraud, in violation of section 817.034(4), Florida Statutes”, Kathy Dent appealed.  Dent v. State, __ So.3d ___, 2013 WL 440117 (Florida Court of Appeals 2013).  The scheme at issue involved a computer program that Deputies in the Palm Beach County Sheriff’s Office used to sign up for overtime work.  Dent v. State, supra.

According to the opinion, the Sheriff’s Office provides

deputies for hospital duty to guard an inmate or arrested person who is admitted to a hospital. Initially, a deputy on the current shift is assigned to the hospital when the prisoner is admitted, and that deputy serves until the end of his or her shift, at which time it becomes an overtime assignment.

To fill these assignments, the Sheriff's department utilizes a computer program which allows deputies to sign up to work overtime shifts. The lieutenant on the shift when the prisoner is admitted to the hospital creates a computer record of the prisoner's admittance. It generates a weekly list of overtime shifts for the week for that prisoner, although if the prisoner is released from the hospital those overtime shifts would not be used. The positions for new overtime shifts become available for signup at midnight on Sunday night for the following week.

To obtain the right to work one of these shifts, deputies must log into the system and sign up for one shift at a time. Once the deputy signs up for a shift he/she must wait 48 hours before signing up for another one. No one is allowed to sign up another person for an overtime shift except supervisors who are signing deputies to cover a present shift. Lieutenants can also sign up others for overtime shifts.

Complaints were raised because several deputies noticed that . . . Kathy Dent was already assigned to work various overtime shifts when the shifts became available at midnight on Sunday night. An investigation revealed that Dent was assigned on the computer system to a hospital overtime shift 388 times. Dent's friend, Lieutenant Sandra Nealy, assigned Dent to work 100 hospital overtime shifts during a one-year period. Although Dent did not work all the overtime shifts she was assigned, she earned more than $18,000 working hospital overtime shifts.

Dent v. State, supra.

The investigation resulted in Dent’s being charged, as noted above, with engaging in a scheme to defraud in violation of Florida Statutes § 817.034(4), which makes it a crime to “engage[] in a scheme to defraud and obtain[] property thereby”.  Dent v. State, supra. The statute defines “property” as “anything of value,” and defines “scheme to defraud” as

a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act.

Florida Statutes § 817.034(3)(c)-(d).

The information that was used to charge Dent alleged that she “`did engage in a scheme constituting a systematic, ongoing course of conduct with intent to defraud one or more persons, or to obtain property from one or more persons by false or fraudulent, representations, or promises, and did obtain property from one or more of such persons. . . .’” Dent v. State, supra.  And the Court of Appeals’ opinion notes that

[a]t trial, the state presented its theory that Dent's manipulation of the computer overtime signup system prevented other Sheriff's deputies from signing up for overtime, and that other deputies lost the opportunity to get these assignments and earn overtime pay. Dent earned over $18,000 in overtime pay for overtime shifts that she actually worked. This was not a case, however, where she was paid for shifts that she did not work. The jury convicted her of a third degree felony, prompting this appeal.

Dent v. State, supra.

On appeal, Dent argued that

the state failed to prove that she obtained `property’ within the meaning of the statute when all the state proved was the inability of other deputies to sign up for the opportunity to obtain overtime. In other words, her conduct did not amount to a crime

Dent v. State, supra.

The Court of Appeals began its analysis of her argument by noting that in adopting Florida Statutes § 817.034, entitled the “Florida Communications Fraud Act,”, the Florida legislature “specifically” articulated “its intent in adopting this criminal statute”:

`(1) Legislative intent.—

(a) The Legislature recognizes that schemes to defraud have proliferated in the United States in recent years and that many operators of schemes to defraud use communications technology to solicit victims and thereby conceal their identities and overcome a victim's normal resistance to sales pressure by delivering a personalized sales message.

(b) It is the intent of the Legislature to prevent the use of communications technology in furtherance of schemes to defraud by consolidating former statutes concerning schemes to defraud and organized fraud to permit prosecution of these crimes utilizing the legal precedent available under federal mail and wire fraud statutes.’

Dent v. State, supra.

Since the Florida Legislature directed it to use federal cases involving fraud prosecutions under federal law as a source of guidance in interpreting this statute, the Court of Appeals noted that “we look to those precedents and conclude that the opportunity to sign up for overtime, which was deprived to other deputies by Dent's conduct, is not “property” within the meaning of the statute.”  Dent v. State, supra.

It began with the U.S. Court of Appeals for the Third Circuit’s decision in U.S. v. Henry, 29 F.3d (1994), in which two public officials were charged with bank fraud and wire fraud

for corruption of the process by which banks were chosen as depositories for funds from various toll bridges. The commission in charge of the funds conducted a competitive bidding process with various banks for their short-term deposits. The two public officials interfered with the process by notifying one bank of the bid information in advance, allowing that bank to outbid the other banks. . . . In return, the public officials received campaign contributions and favorable treatment on loans from the bank.

The government asserted that what the other banks lost in this scheme was a fair opportunity to bid in the process. The court concluded, however, that this loss of opportunity was not `property’ within the meaning of the bank and wire fraud statutes.

`Here, . . . the money had not yet been deposited, and there is no way of knowing to which, if any, of the bidding banks it would have gone. . . . The issue . . . is whether the competing banks' interest in having a fair opportunity to bid for something that would become their property if and when it was received is in itself property. . . .

`. . . .[T]o determine whether a particular interest is property for purposes of the fraud statutes, we look to whether the law traditionally has recognized and enforced it as a property right. . . .The competing banks' interest in a fair bidding opportunity does not meet this test. Clearly, each bidding bank's chance of receiving property -- the deposits if its bid were accepted -- was, at least in part, dependent on the condition that the bidding process would be fair. 

This condition, which is all that the bidding banks allegedly lost, was thus valuable to them, but it is not a traditionally recognized, enforceable property right. . . . Violation of this condition may have affected each bidding bank's possible future receipt of property, but that does not make the condition property.’

U.S. v. Henry, supra.

The Court of Appeals noted that in the Henry case, the “loss of an opportunity interest did not constitute `property’ within the meaning of the wire and mail fraud statutes,” which “govern the interpretation of § 817.034.”  Dent v. State, supra.  It also noted that another federal court applied the same reasoning in U.S. v. Alsugair, 256 F.Supp.2d 306 (U.S. District Court for the District of New Jersey 2003).  Dent v. State, supra. 

In Alsugair, the defendant “was charged with wire fraud in a scheme to defraud English skills testing services by allowing imposters to take English tests for foreign students” under a statute that “made it a crime to engage in a scheme to obtain money or property by false pretenses.” Dent v. State, supra.  The Alsugair court explained that in order to

`”determine whether a particular interest is property for purposes of the fraud statutes, we look to whether the law traditionally has recognized and enforced it as a property right.”’ U.S v. Henry, supra. Two of the hallmarks of traditional property are exclusivity.’

U.S. v. Alsugair, supra. The Court of Appeals noted that what was “[i]mportant to this case” in the Alsugair court’s reasoning was its “reiteration of the hallmarks of property, namely exclusivity and transferability, neither of which are present in the lost opportunity of working overtime, which is what the state sought to prove in this case.”  Dent v. State, supra. 

It also noted that it had “determined that expectation interests do not constitute property under similar definitions of property in the theft statute.”  Dent v. State, supra.  In Balcor Property Management, Inc. v. Ahronovitz, 634 So.2d 277 (Florida Court of Appeals 1994), the court found that to have a cognizable interest in property, “the `owner’ must be capable of having `an interest in the property upon which another person is not privileged to infringe without consent’”.  Dent v. State, supra (quoting Florida Statutes § 812.012(5)).  Section 812.012(5) defines “property of another,” as used in Florida theft statutes, as “property in which a person has an interest upon which another person is not privileged to infringe without consent, whether or not the other person also has an interest in the property.” 

The Court of Appeals then found that in this case,

what the state alleged was lost was the opportunity for other deputies to work for overtime pay. This opportunity did not belong to any one of them. It simply does not fit the definition of property traditionally used in criminal prosecutions and specifically not used in similar federal statutes. See U.S. v. Henry, supra.

While Dent's manipulation of the signup system for overtime duty may have violated the policies of the department, and may be grounds for discipline or termination, she did not obtain `property’ within the meaning of the statute. Therefore, no violation of section 817.034 occurred.

Dent v. State, supra. 

It therefore reversed Dent’s conviction and directed that the sentence imposed on her be vacated.  Dent v. State, supra.  According to the news story you can find here, she was one of “seven jail supervisors” who were fired and charged with fraud.  For more on the impact this decision will have on other pending and completed cases, check out the story you can find here.