Encryption, Consciousness of Guilt and Prejudice

Ronald Gerard Boyajian is charged “with one count of Travel with Intent to Engage in Illicit Sexual Conduct with a Minor in violation of 18 U.S. Code § 2423(b), one count of Engaging in Illicit Sexual Conduct with a Minor in Foreign Places in violation of 18 U.S. Code § 2423(c), and one count of Commission of a Felony Offense Involving a Minor While Required to Register As Sex Offender pursuant to 18 U.S.Code § 2260A.” U.S. v. Boyajian, 2013 WL 4189649 (U.S. District Court for the Central District of California 2013). (The 18 U.S. Code
§ 2423 offenses were created to target child sex tourism.)

“The charges arise from defendant's alleged illicit sexual acts with a minor girl in Cambodia, identified as S.L.”  U.S. v. Boyajian, supra. If you are interested, you can find information about the facts that led to the charges in the Department of Justice Press Release you can find here.

In this opinion, the federal district court judge who has the case is ruling, among other things, on a motion in limine Boyajian filed “seeking to exclude . . . evidence that [he] encrypted child pornography”.  U.S. v. Boyajian, supra.  As Wikipedia explains, a party in a civil or criminal case uses a motion in limine to try to get the judge to rule, prior to the beginning of the trial, that certain evidence is or is not admissible at the trial (rather than waiting for the trial to start). 

As to the issue in this case, the opinion begins by noting that the prosecution in this case

seeks to introduce evidence that [Boyajian] used encryption techniques to conceal child pornography files on his laptop computer. [His] encryption program, called `TrueCrypt,’ has prevented the government from opening the files to verify their contents.

Nonetheless, the government has presented evidence supporting a reasonable inference that at least some of the encrypted files are child pornography. Specifically, the government's expert claims that when [Boyajian’s] QuickTime video viewing software was used to open a file that had been encrypted by TrueCrypt, the QuickTime software recorded the name of the video and also registered `additional data’ indicating that the video had been encrypted by TrueCrypt. The government's expert searched [his] computer and found data registered by QuickTime showing that files with the same name as child pornography files recovered from other parts of [Boyajian’s] computer were encrypted and played using Quicktime.

U.S. v. Boyajian, supra. The government apparently wanted to use the "consciousness of guilt" principle as the basis for using the evidence of encryption against Boyajian at his trial. 

As this site explains, “consciousness of guilt” is a principle that allows prosecutors to introduce evidence, at a criminal trial, that tends to show the defendant’s conduct inferentially indicates that he/she was, in fact, guilty of the crime with which he or she is charged.  So, a perpetrator’s fleeing and attempting to flee the jurisdiction where the crime was committed or the person’s destroying evidence, or attempting to destroy evidence, that proves his/her involvement of a crime constitutes “consciousness of guilt.”

Here, Boyajian argued that the encryption evidence

is not relevant. [He] admits that, in principle, evidence of encryption -- like evidence of flight or concealment -- can be relevant to demonstrate consciousness of guilt. . . . Like evidence of flight or concealment, however, [Boyajian] argues that encryption evidence only demonstrates consciousness of guilt if there is evidence showing that the encryption took place when defendant knew he was suspected of the charged crimes and took place soon before or after the commission of the crimes. . . .

Here, [Boyajian] argues that the government has no such evidence. Specifically, [he] points out that the government has no evidence regarding when the encryption took place, and hence cannot provide evidence demonstrating the requisite temporal link between the encryption and the charged conduct. [Boyajian] concludes that without proof of the required temporal link, the encryption evidence cannot be used to prove consciousness of guilt, and should therefore be excluded as irrelevant. See U.S. v. Peeters, Case No. 09–CR–00932 (excluding evidence that computer files were encrypted without a temporal link between the charged conduct and act of encryption). . . .

U.S. v. Boyajian, supra. 

The judge agreed with Boyajian that the encryption evidence

cannot be admitted to prove consciousness of guilt. Without a temporal link between the encryption and the charged crimes, the encryption could have occurred for reasons that have nothing to do with current charges. In itself, the encryption does not show an attempt to hide evidence of the crimes with which [Boyajian] has been charged.

It only shows that [he] was attempting to hide the child pornography, either because child pornography is illegal to possess in many jurisdictions, or for some other reason. See U.S. v. Silverman, 861 F.2d 571 (U.S. Court of Appeals for the 9th Circuit 1988) (evidence of flight and concealment can be consistent with `guilt of misconduct unknown to the government.’). Therefore, without the requisite temporal link, or without other evidence providing a logical connection between the acts of encryption and the crimes charged, the encryption evidence cannot be introduced to prove consciousness of guilt.

U.S. v. Boyajian, supra. 

She noted, though, that the prosecution argued that the encryption evidence

is not rendered irrelevant merely because it cannot be admitted to prove consciousness of guilt. Instead, the government explains that the encryption evidence is also relevant to prove the intensity of [Boyajian’s] interest in child pornography. The government connects [his] interest in child pornography with the encryption evidence through the following inferences.

First, the government argues that [Boyajian] knew that his computer media was subject to search whenever he crossed a border, and further knew that he faced criminal charges if child pornography was found on his computer. The government further explains that despite this risk, [he] did not cease storing child pornography on his computer, but instead encrypted the child pornography. The government concludes that because [Boyajian] chose to encrypt the files rather than abandon them in response to the risk of a border search, this shows that [he] has an especially strong interest in child pornography.

U.S. v. Boyajian, supra. 

The federal district court judge began her analysis of this argument by noting that while

the encryption evidence meets the test for relevant evidence, it should be excluded pursuant to Rule 403 [of the Federal Rules of Evidence]. Under the Federal Rules of Evidence, evidence is relevant if `it has any tendency to make a fact more or less probable than it would be without the evidence,’ and `the fact is of consequence in determining the action.’ Federal Rules of Evidence Rule 401.

Here, under the reasoning set out by the government, the fact that [Boyajian] encrypted his child pornography files rather than simply abandoning them does tend to prove a high degree of interest in child pornography. By spending time and effort learning about encryption software, and by taking the risk that the child pornography would be found despite the encryption, [Boyajian] has revealed facts about the intensity of his interest in child pornography. Additionally, whether [Boyajian] is interested in child pornography is a material fact because, as explained in the Court's previous order, [his] interest in child pornography tends to show that he traveled with the intent to solicit sex from minors. . . . .

U.S. v. Boyajian, supra. 

The judge then explained why, given that the evidence was relevant to the charges in this case, it should nonetheless be excluded under Rule 403, which lets a court exclude relevant evidence if “its probative value is substantially outweighed by a danger of . . . unfair prejudice” to one of the parties. U.S. v. Boyajian, supra.  She noted that when a court applies Rule 403 to certain evidence, “the probative value of a piece of evidence `may be calculated by comparing evidentiary alternatives,’ and the Court should take into account “the full evidentiary context of the case.” U.S. v. Boyajian, supra (quoting Old Chief v. U.S., 519 U.S. 172 (1997)).

Next, she applied these standards to the issue in the Boyajian case:

Here, the probative value of the encryption evidence is limited because the Court's prior orders have already allowed the government to admit actual child pornography possessed by [Boyajian], in addition to numerous other images depicting children's feet and legs, in order to demonstrate [his] interest in child pornography. Consequently, because a substantial amount of other evidence will be admitted to prove [Boyajian’s]  interest in child pornography, the encryption evidence has limited probative value when introduced to supply additional evidence of [his] interest in child pornography.

Weighed against this limited probative value, there is substantial unfair prejudice that [Boyajian] will face if the encryption evidence is admitted. The encryption evidence falls under the category of `extrinsic acts evidence,’ which `is not looked upon with favor.’ U.S. v. Hodges, 770 F.2d 1475 (U.S. Court of Appeals for the 9th Circuit 1985).

This kind of evidence is disfavored because a defendant should not be convicted on the basis of `a showing that the defendant has engaged in other acts of wrongdoing.’ U.S. v. Hodges, supra.  Moreover, extrinsic acts evidence is disfavored if it has a tendency to show that a defendant has an immoral, evil, or repugnant character. . . . When this form of character evidence is introduced, there is a risk that a jury will convict a defendant `for who he is,’ not for the conduct for which he was indicted. U.S. v. Hodges, supra.

U.S. v. Boyajian, supra. 

The judge then explained that the encryption evidence

carries with it a substantial risk of unfair prejudice to [Boyajian] because it tends to prove a character for dishonesty and disrespect for the law, which could lead the jury to convict defendant even if it harbors doubts about whether he commit the charged conduct. U.S. v. Newsom, 452 F.3d 593 (U.S. Court ofAppeals for the 6th Circuit 2006) (evidence is unfairly prejudicial if it suggests to the jury that defendant has a hostile, criminal disposition’).

The fact that [Boyajian] not only possessed child pornography, but also took careful, calculated steps to hide it, suggests that he has a character for secretively flouting rules and social norms. While evidence that [he] possesses this character trait would be damaging in any prosecution, it is especially damaging here where [Boyajian] is accused of deviant sexual conduct. Under the circumstances, there is a substantial danger that a jury would convict [him] based on a belief that [he] lacks respect for the norms of society, sexual or otherwise, not because he was guilty of the conduct charged in his indictment.  Moreover, the risk the jury will use the encryption evidence to reach a conviction on an improper basis is particularly strong here, because the material encrypted is child pornography, which courts have recognized as unusually inflammatory evidence that can lead a jury to convict regardless of factual guilt. . . .

U.S. v. Boyajian, supra. 

The judge therefore found that because the probative value of the encryption evidence was “substantially outweighed by the danger of unfair prejudice” to him, the evidence “should therefore be excluded pursuant to Rule 403.”  U.S. v. Boyajian, supra. 

She also noted that there

are other reasons tending to suggest that the encryption evidence should be excluded pursuant to Rule 403.  First, this evidence tends to confuse the issues in this case. Here, [Boyajian] has not been charged with possession of child pornography. Instead, child pornography is admissible to demonstrate his sexual interest in prepubescent girls, and hence can be admitted to prove his intent, motive, and plan to commit the crimes charged in this case.

However, evidence focusing on details regarding [his] possession of child pornography tends to obfuscate what role child pornography plays in this case because it suggests that his guilt or innocence directly turns on whether he knowingly possessed child pornography, not that the child pornography evidence is only relevant to prove intent, motive, and plan.

U.S. v. Boyajian, supra. 

So the judge granted Boyajian’s motion to exclude the encryption evidence. U.S. v. Boyajian, supra. 

Staples, the Laptop and the 4th Amendment

Eugene O. Dale pled “guilty to sexual exploitation of a minor, where the number of materials possessed was greater than fifty and less than one hundred” in violation of Tennessee Code § 39-17-1003 “subject to a reserved certified question of law that challenged the trial court's denial of [his] motion to suppress evidence.”  State v. Dale, 2013 WL 4459012 (Tennessee Court of Criminal Appeals 2013). The trial judge “imposed the agreed-upon sentence of eight years with a release eligibility of thirty-five percent.”  State v. Dale, supra.

Tennessee Rules of Appellate Procedure Rule 3(b) lets a criminal defendant pled guilty while reserving the right to challenge the trial judge’s ruling on a particular issue of law, such as this judge’s denying Dale’s motion to suppress.  This procedure exists in the federal system and in other states; it is a way to let a defendant reserve the right to appeal what he or she thinks is an erroneous ruling without having to go through a trial (the assumption being that he or she might be convicted, if a trial was held with the evidence being admitted).

In his appeal, Dale argued that “the warrant authorizing the search of his computer was not supported by probable cause because the affidavit for the search warrant relied upon unconstitutionally obtained information.”  State v. Dale, supra.  To understand why he made that argument, it is necessary to understand how the case arose:

In November 2007, [Dale] took his computer to the computer department at Staples for repair. He left the computer at Staples after signing a work order requesting that the computer technicians discover the source of the viruses or spyware on the computer.

While working on [Dale’s] computer, a Staples computer technician, Joshua Westover, discovered what he believed to be child pornography on [his] computer. A Staples employee contacted the police, and Chattanooga Police Officer Charles Darling viewed the images at Staples and confiscated the computer.

Pursuant to a search warrant obtained by Hamilton County Sheriff's Department Detective James Usry, the Tennessee Bureau of Investigation (`TBI) examined [Dale’s] computer and found over fifty images of identifiable child pornography. Subsequently, the Hamilton County grand jury returned a presentment charging [Dale] with sexual exploitation of a minor . . . under Tennessee Code § 39–17–1003.

State v. Dale, supra.  (A grand jury can return two types of charging documents:  an indictment, which is usually drafted by a prosecutor who submits it to the grand jury to see if they will approve (“return”) it; and a presentment, which is usually a set of charges the grand jury brings on its own.)

In his motion to suppress, Dale argued that

the Staples computer technician who discovered the illegal images was acting as an agent of the government, which, if true, would render the technician's examination of appellant's computer a search under search and seizure law.

[Dale] argued in the alternative that should the trial court rule that the technician's examination was permissible as a private party search, the police officer's search of the computer prior to seizing it exceeded the scope of the private party search.

[Dale] contended that the affidavit in support of the search warrant relied on information obtained from the police officer's illegal search, and without that information, there could not be a showing of probable cause to support the issuance of a search warrant.

State v. Dale, supra.  On appeal, Dale abandoned his claim that Westover was an agent of law enforcement, so the court did not address it. State v. Dale, supra.  

(As I have explained in prior posts, the 4^th Amendment to the U.S. Constitution, which bans “unreasonable” searches and seizures, only applies to searches and seizures conducted by law enforcement officers, e.g., agents of the state.  So, when a private person searches for and seizes evidence and takes it to law enforcement, the 4^th Amendment (i) is not implicated if that person acted on his or her own, e.g., because they are angry as the person to whom the evidence belongs but (ii) is implicated if that person acted as an “agent” law enforcement, e.g., because police asked him or her to search for and seize the evidence.) 

As to the issues in this case, the opinion explains that at the hearing on Dale’s motion to suppress,

Joshua Westover testified that in November 2007, he was working as a computer technician at Staples. He was nineteen years old at the time, and all of his computer training had been done through Staples. He agreed that his ability to identify child pornography would be the capability of any ordinary person, as he had not received any specific training in that regard. Westover explained that Staples' policy regarding suspect images was that the computer technician would notify a manager. The manager would call `corporate,’ who would work with the manager to determine the next step.

Westover testified that . . . this case was the first and only time he saw suspect images on a client's computer that led to police involvement. He said that the department's lead technician was the person who interacted with [Dale]. Westover did not recall [Dale] giving the lead technician any limitations about what they could review on the computer. The lead technician prepared a work order that Westover interpreted as meaning that he needed to locate the virus on [Dale’s] computer and find out why it had a virus in November 2007 when, in August 2007, it had undergone a `system restore,’ which involved returning the computer to its factory defaults, and had an anti-virus program installed.

Westover ran a program on the computer called SUPERAntiSpyware Pro that locates viruses and spyware and gives a detailed description of the location of infected files. The program showed Westover that the virus was located in `My Documents’ in a folder labeled `PVT.’ Westover opened the `PVT’ folder and saw `thumbnails,’ which he defined as `preview[s] of what the file looks like.’ He said that `all the pictures [in the folder] were listed’ with the thumbnails.

Westover explained that the files in question were `allocated,’ meaning that the user had to save them and place them in the folder. He testified that after he reviewed the folder, he minimized the window and called a manager. He showed the folder to his manager, who called `corporate’ and law enforcement.

State v. Dale, supra.  

The opinion goes on to explain that when Darling arrived at the Staples, Westover told

him that he had seen what he assumed to be child pornography on [Dale’s] computer. When asked whether Darling asked Westover to show him all of the images, he replied, `[The images] were already exposed, but yes.’ Westover testified that Darling informed him that he was looking for `one specific type of image’ that portrayed a person who was `clearly underage and [also portrayed] sexual penetration’ in order to identify an image as child pornography.

Darling found images that met his criteria, and he asked Westover additional questions about the file. Darling wanted to know whether the images had been taken by a camera and downloaded onto the computer or downloaded from websites, but Westover was not able to make that determination. In addition, Darling wanted to know when the images were downloaded, and Westover determined that the images were downloaded after [Dale] had the computer's system restored in August 2007. Westover testified that some time later, he gave a written statement to Detective Usry.

On cross-examination, Westover testified that the `PVT’ folder was created two days before [Dale] brought his computer to Staples. He explained that the files in the folder would have been intentionally placed there. Westover said when he opened the `PVT’ folder, the thumbnails showed females between the ages of five and thirteen, and all of the images were `sexual.’ He explained that the images showed `see-through bathing suits, oral sex, penetration sex, [and] just nude images.’ Westover testified that he did not `stare at the pictures long enough to . . . look at every image’ but looked long enough `[t]o recognize it was child porn.’

State v. Dale, supra.  

At Dale’s trial, Detective Usry testified that on January 2, 2008, he received a message that

the Chattanooga Police Department had in its possession a computer with child pornography on it, and he was asked to investigate. He took possession of the computer from the police department. He also obtained written statements from Westover and his manager. Usry contacted the district attorney's office for assistance in drafting a search warrant. He applied for and obtained a search warrant for [Dale’s] computer. Usry took [Dale’s] computer to the TBI crime lab and had the search warrant executed. He testified that he never turned on the computer himself.

State v. Dale, supra.  

In its opinion, the Court of Appeals addressed two issues:  whether Dale had a 4^th Amendment expectation of privacy in the contents of his computer and whether Darling’s search of the computer “was beyond the scope of the private party” search conducted by Westover. State v. Dale, supra.  As I have explained in prior posts, and as Wikipedia notes, the Supreme Court has held that, for law enforcement or law-enforcement-encouraged searches to violate the 4^th Amendment, the owner of the property searched must have had a “reasonable” expectation of privacy in it.  To have such an expectation, as I have noted in prior posts and as Wikipedia notes, (i) the person must subjectively believe it is “private” and (ii) society must accept that belief as objectively reasonable.

The court began its analysis of the issue by noting that in this case, Dale

placed the offensive images in a folder labeled `PVT,’ which he argues means `Private.’ He further argues that this evinces his subjective expectation of privacy. However, he handed his computer and its password over to the employees of Staples with directions to find out why the computer had a virus. There is no evidence in the record that he made any attempt to restrict access to any information on his computer. Westover discovered the offensive images in the course of executing [Dale’s] work order. Darling confiscated the computer after Westover showed him the images.

State v. Dale, supra.  

The court found that the trial judge was correct in denying Dale’s motion to suppress:

To begin, we are not persuaded that [he] had a reasonable expectation of privacy in his computer once he gave the computer to Staples under the circumstances previously listed. . . . In this case, [Dale’s] conduct in requesting the work and giving Staples his computer's password suggests that he did not have a subjective expectation of privacy; however, he arguably attempted to maintain an expectation of privacy by labeling a folder, `PVT.’

Nevertheless, it has long been recognized that a person does not have a reasonable expectation of privacy when he or she voluntarily turns over information to third parties. . . . Therefore, we conclude that under these circumstances, society would not be willing to recognize [Dale’s] expectation of privacy as reasonable and justifiable.

State v. Dale, supra.  

On appeal, Dale argued that “Darling's search of the computer was beyond the scope of the private party search because, he claims, Darling and Westover enlarged images, looked at information Westover had not previously seen, and looked at more images than Westover saw initially.”  State v. Dale, supra.  At the hearing on Dale’s motion,

Westover described the images he saw on [Dale’s] computer as depicting females, ages five to thirteen years old, some of whom were engaged in oral or penetrative sex.  Westover testified that when he opened the folder, all of the images in the folder were `exposed’ as thumbnails. Therefore, it did not exceed the scope of Westover's initial search for Darling to look at enough images to ensure that the images were child pornography.

While the testimony at the hearing did not establish whether Mr. Westover and Officer Darling actually enlarged the images or opened the images rather than merely viewing the thumbnails, any such action would not have exceeded the scope of the private party search. . . .

Furthermore, at the point in time when Darling saw what he believed to be child pornography on [Dale’s] computer, the incriminating nature of the computer was readily apparent, and the computer was subject to seizure under the plain view doctrine. . . .

Therefore, neither Darling's search of the computer nor his subsequent seizure of the computer violated the prohibition against unreasonable searches and seizures.

State v. Dale, supra.  As I have noted in prior posts, and as Wikipedia explains, the plain view doctrine is a principle of 4^th Amendment law that expands the scope of a lawful 4^th Amendment search.  If officers are conducting a search that is lawful under the 4^th Amendment and see – in “plain view” – evidence they were not expecting, then they can seize the evidence without violating the 4^th Amendment.

The Court of Appeals therefore affirmed the trial judge’s denial of Dale’s motion to suppress and, in so doing, upheld his conviction and sentence.  State v. Dale, supra.  

The Hampton Inn, the iPad and Identity Theft

After he pled guilty to “three counts of criminal use of personal identification information” in violation of Florida Statutes § 817.568 and was sentenced to 17.4 months in prison, Little R. Henderson appealed.  Henderson v. State, 2013 WL 4436568 (Florida Court of Appeals 2013).  (As to the 17.4 months in prison, Henderson was “given credit for 215 days previously spent in jail.”  Henderson v. State, supra.)

On appeal, Henderson argued that the trial judge erred in denying his motion to suppress certain evidence. Henderson v. State, supra.  As to how the case arose, the opinion explains that, at the hearing on Henderson’s motion to suppress,

Stephanie Hess testified that on October 10, 2010, she was working at the front desk of the Hampton Inn and Suites in downtown St. Petersburg. She testified that a woman named Crystal Brown arrived between 12:30 and 1:00 a.m. and checked into a room for one night. Ms. Brown had made the reservation through the website Travelocity, and Mr. Henderson was with her when she checked in at the hotel.

About ten minutes after Ms. Brown checked in, a representative from Travelocity called Ms. Hess and told her that Ms. Brown's credit card was declined.  Ms. Hess transferred the call to Ms. Brown's room. The representative from Travelocity called again and told Ms. Hess that Ms. Brown was going to come back to the front desk and pay for the room. Ms. Hess waited about ten to fifteen minutes, and when Ms. Brown never came back to the front desk to pay for the room, she called the police.

Officer Brian Bilbrey and another officer arrived about fifteen minutes later. Bilbrey testified that he was responding to a call regarding a person who had used a fraudulent credit card to purchase a room through an online travel service. Upon arrival, they went to Brown's hotel room with another hotel employee. The employee knocked on the door several times for `a good two minutes’ and there was no response. The hotel employee opened the door and they could see that the room was empty.

There were no lights on inside the room, and there were no personal items in the room except for an iPad left underneath the edge of one bed in plain view. Because there were no other personal belongings in the room, such as luggage, clothes, or a toothbrush, they concluded the room had been vacated. Bilbrey took the iPad from the room to determine who owned it. After talking again to Hess, Bilbrey contacted the Travelocity employee, who informed him that Brown had used a credit card belonging to Lisa Nelson, who lives in Minnesota, when she made the hotel reservation with Travelocity.

Henderson v. State, supra.  (The opinion notes that “[a]ccording to Ms. Hess's testimony, a hotel guest pays Travelocity for the room and Travelocity then pays the hotel for the room.”  Henderson v. State, supra.)

Getting back to the facts, Bilbrey was not able to

determine who owned the iPad because there was no identifying information on the outside of the iPad. In an attempt to locate the name of the owner, he looked for the serial number of the iPad by pressing the stand-by button and looking at the settings application. While Bilbrey was obtaining the serial number of the iPad, he noticed the notes application had been open and he touched that icon. Several names with fifteen to twenty-digit numbers and dates appeared on the open note, which Bilbrey believed were credit card numbers and expiration dates. Bilbrey then went back to the police station to create a photo lineup of Brown to show to Hess.

Brown later called the hotel between 2:00 and 2:30 a.m., and Hess told her she was no longer welcome at the hotel.  Brown then came back to the hotel with Henderson about an hour and a half to two hours after the room had been searched and asked for the iPad. However, by this time, Bilbrey had left the hotel with the iPad. Hess called Bilbrey and informed him that Brown and Henderson were at the hotel, and she informed them that Bilbrey was returning to the hotel. Brown and Henderson did not want to wait at the hotel for Bilbrey to arrive with the iPad and they left the hotel again.

When Bilbrey arrived back at the hotel, he telephoned Brown, who stated that she was driving back to the hotel. However, from the background noise on the telephone, it sounded like Brown was not in a car and was most likely standing close to the hotel. Bilbrey broadcast a description of Brown and Henderson on the police radio, and they were found about 300 yards away from the hotel in a park watching Bilbrey.

Officers brought the pair back to the hotel and Bilbrey read them the Miranda warnings. When asked separately about the iPad, Brown stated that she purchased the iPad with cash several months ago, but Henderson claimed a relative had given him the iPad. Neither Brown nor Henderson provided Bilbrey with the serial number of the iPad.

Henderson v. State, supra.   

Finally, the opinion explains that

Detective Nancy Pillucere investigated the possible fraud case and, as part of that investigation, called Lisa Nelson, the owner of the credit card Brown had used. Nelson did not know Brown or Henderson and she had never given either of them permission to use her credit card. Pillucere then interviewed Brown, who stated that Henderson was with her when she purchased the iPad at Best Buy and they both used it, but she was the person who paid for it. 
Brown then gave Pillucere consent to search the iPad. Pillucere testified that Brown also gave her consent to search other computers and hard drives that were recovered that night.

Henderson v. State, supra.   

After hearing the evidence presented at the hearing, the trial judge denied Henderson’s motion to suppress because she found Henderson had “no standing” to argue that the search of the iPad violated the 4^th Amendment  Henderson v. State, supra.   

The majority of the Court of Appeals rejected Henderson’s argument on appeal because it found that he, or his lawyer, had made a mistake.  When he pled guilty, he reserved the right to appeal the denial of his motion to suppress (which lets a defendant retain the right to raise that issue without having to go to trial).  Henderson v. State, supra.  The majority found, though, that in doing this, he did not “expressly reserve” his right to appeal the denial of his motion to suppress, which is required by Florida Rule of Appellate Procedure 9.140(b)(2)(A).  Henderson v. State, supra.  So, he basically waived his right to do so.

The court also noted that there was another problem with Henderson’s appeal.  Rule 9.140(b)(2)(A) says a defendant must “expressly reserve the right to appeal a Prior dispositive order” of the trial court, if he/she specifically identifies the “point of law” at issue.  Henderson v. State, supra.  The majority found that the

suppression of the iPad was not dispositive of the case. At the sentencing hearing, the State announced a factual basis for the charges, indicating that in addition to the iPad, the officers had obtained the victims' information in a vehicle and Henderson admitted to his involvement in the offenses. It was also noted that Brown had previously entered a plea to these charges and the offense of fraudulent use of a credit card.

Therefore, Brown may have been agreeable to testify against Henderson. Additionally, according to Pillucere's testimony at the suppression hearing, other computers and hard drives were recovered that evening. . . . Even if Henderson had prevailed in this appeal, it appears that the State may have been able to proceed to trial.

Henderson v. State, supra. 

One of the Court of Appeals judges wrote a concurring opinion in which he analyzed the issue the trial judge relied on:  standing.  Henderson v. State, supra.  He began his opinion by noting that “I write only to remind counsel that to present a legal challenge to the constitutionality of a search, a defendant must establish a reasonable expectation of privacy in the item searched.”  Henderson v. State, supra. 

The concurring judge then pointed out that the Florida Supreme Court

has held that 4th Amendment rights are personal and a defendant has the burden to establish that his own Fourth Amendment rights have been infringed.” Hicks v. State, 929 So.2d 13 (2006) (citing Rakas v. Illinois, 439 U.S. 128 (1978)). A defendant must establish a privacy expectation in not only the place searched but also the item seized. . . . In most instances, to comply with this legal standard, it will be necessary for the defendant to testify.

Henderson v. State, supra. 

The judge noted that to “establish what has been traditionally referred to as `standing,’ Henderson had to demonstrate that he personally had an expectation of privacy in the iPad and that this expectation was reasonable.”  Henderson v. State, supra.  As Wikipedia explains, and as I have noted in prior posts, the test the U.S. Supreme Court uses (as do lower courts) to decide if someone had a 4^th Amendment expectation of privacy in a place or thing, and therefore had standing to challenge a search, is whether (i) they subjectively believed it was private and (ii) society will accept their subjective belief, if proven as objectively reasonable.

He also noted that Henderson bore the burden of proof on this issue. Henderson v. State, supra.  And the judge explained that the record of the proceedings in the case

discloses that scant evidence was brought forth to meet this burden of proof. The evidence consisted of a law enforcement officer's unobjected to hearsay testimony that Henderson had told him that the iPad belonged to him. As Henderson did not testify, no other proof was adduced to support his reasonable expectation of privacy in the iPad.

Henderson v. State, supra. 

The judge explained that, in this regard, this case “is similar to” the facts in Hicks v. State, 929 So.2d 13 (Florida Court of Appeals 2006).  Henderson v. State, supra. 

Hicks's car was stopped by a deputy and Hicks gave his consent to search the car. . . During the search, a briefcase containing a computer was found in the backseat. . . A deputy turned on the computer and looked through the computer's files in an attempt to locate the owner of the computer. . . .On appeal, Hicks argued that the search of the computer, which turned out to be stolen, exceeded the scope of his consent to search the car. . . .

This court noted that `[a] search violates a defendant's 4th Amendment rights only if (1) a defendant demonstrates that he or she had an actual, subjective expectation of privacy in the property searched and (2) a defendant establishes that society would recognize that subjective expectation as objectively reasonable. Id. . . . This court held Hicks failed to carry his burden to establish that he had a reasonable expectation of privacy in the computer where he never introduced any evidence at the suppression hearing. Hicks, supra.  

Similar to Henderson's case, a deputy testified that Hicks told him at the scene of the traffic stop that his uncle gave him the computer, but Hicks failed to introduce any evidence at the hearing relating to his ownership, such as whether he had any programs on the computer or how long he had used the computer.

This court held that where there was only testimony from the officers at the suppression hearing, `Hicks failed to demonstrate an actual, subjective expectation of privacy in the computer.’ Id. This court fnoted that even if Hicks had met this burden, in order to challenge the search of the computer, `he would still have to establish that society would have accepted such an expectation as reasonable—an unlikely scenario.’ Id.

Henderson v. State, supra.

Finally, the concurring judge explained that “in addition” to ownership, the

following factors are relevant in determining whether a defendant has a reasonable expectation of privacy in an item: `”possession and/or control; historical use of the property searched or the thing seized; ability to regulate access; [and] the totality of the surrounding circumstances. . . .”’ U.S. v. Mancini, 8 F.3d 104 (U.S. Court of Appeals for the 1^st Circuit 1993) (quoting U.S.v. Sanchez, 943 F.2d 110 (U.S. Court of Appeals for the 1st Circuit 1991)).

Here, Henderson did not present a scintilla of evidence that he possessed or controlled the iPad on the day in question, much less that he had the authority or power to exclude other persons from using the iPad. See U.S. v. Lyons, 992 F.2d 1029 (U.S. Court of Appeals for the 10th Circuit 1993). (noting `expectations of privacy derive in part from the right to exclude others from the property in question, lawful possession is an important consideration in determining whether a defendant had a legitimate expectation of privacy in the area searched, i.e. the hard disks’); see also Rawlings v. Kentucky, 448 U.S. 98 (1980) (petitioner did not meet his burden to establish that he had a legitimate expectation of privacy in his girlfriend's purse and therefore could not successfully move to suppress drugs found in the purse). Further, there was no evidence concerning the frequency, extent, or purpose of Henderson's historical use of the iPad.

Henderson v. State, supra.

So, for all these reasons, the Court of Appeals affirmed Henderson’s conviction and sentence. Henderson v. State, supra.