After he was convicted of possessing child pornography in violation of 18 U.S. Code § 2252(a)(4)(B) and sentenced to 96 months in prison, Donald Thomas Tosti appealed the district court judge's "denial of his multiple motions to suppress evidence derived from the 2005 search of his computer at a CompUSA store and the 2009 search of his home office.” U.S. v. Tosti, 2013 WL 5433756 (U.S. Court of Appeals for the 9th Circuit 2013).
The news story you can find here provides more details about the prosecution.
According to the opinion, the case began in January of 2005, when Tosti took his
computer to a CompUSA store for service. According to Tosti, `[he] understood that a technician at CompUSA would have temporary custody of the computer, and would inspect it as needed to complete the requested repairs.’
U.S. v. Tosti, supra. A CompUSA employee, Seiichi Suzuki, was working on Tosti’s
machine when he discovered pornographic images of children in a sub-folder, which prompted him to contact the police. According to Suzuki, he was `opening various folders and subfolders to look for images,’ and he and a technician `were randomly checking what was on the drive folders when [they] eventually encountered images that looked like child pornography.’ . . . Suzuki advised police that `he discovered numerous photographs in the file of naked children and adult men.’ `He said the photographs depicted many graphic sex scenes of children.’
Two detectives, George Schikore and Ed Rudolph, responded to Suzuki's call. Schikore arrived first. When he got to the store, `there were numerous images appearing on the computer monitor in a very small ‘thumbnail’ format.’ According to Schikore, he `could tell by looking at the [thumbnail] pictures that they depicted child pornography.’
Schikore purportedly `directed [Suzuki] to open the images in a “slide show” format so they would appear as larger images viewable one by one.’ Suzuki `opened up the individual images in the “slide show” format, using keys to move forward or backward as requested by [Schikore].’
Detective Rudolph arrived later and scrolled through the active images on the computer monitor. According to Rudolph, there were `more than two-dozen [t]humbnail view graphical files maximized on the desktop.’ Rudolph stated that he scrolled through the images on the screen, but also indicated that he could tell even from the thumbnail images that they depicted obvious sexual activity between adults and children.
The detectives seized Tosti's computer. Based on Rudolph's observations, Detective Mojib Aimaq prepared an affidavit supporting the issuance of a search warrant for Tosti's computer, residence, office and two vehicles registered to Tosti and his wife. A Marin County magistrate judge issued the warrant, which was executed the following day.
U.S. v. Tosti, supra.
Tosti “was eventually arrested on October 16, 2009.” U.S. v. Tosti, supra. In a footnote, the opinion says there “is no explanation in the record for the lapse of four years without any apparent activity.” U.S. v. Tosti, supra. A few days later,
on October 20, 2009, Tosti's then estranged wife, Annette Tosti, contacted FBI Special Agent Elizabeth Casteneda. Ms. Tosti had been married to Tosti for approximately twenty years, during the majority of which time they maintained a residence in San Rafael, California.
Tosti had purportedly asked Ms. Tosti to locate financial records, which were stored in a room inside the Tosti home that Tosti was utilizing as an office. During her search, Ms. Tosti found documents that appeared to contain pornography.
She turned those documents and some internal and external hard drives over to Casteneda. At that time, Ms. Tosti explained to Castaneda that she lived with her husband in the house and had full access throughout the residence. Ms. Tosti also advised Casteneda that she was responsible for cleaning the office.
U.S. v. Tosti, supra.
Two days after that, on October 22, 2009, Mrs. Tosti contacted Casteneda and asked
her to take several items from the Tosti home. That same day, Ms. Tosti turned over a Dell computer, several external hard drives, and numerous DVDs. None of these were password protected or encrypted, and they appeared to contain pornography.
Ms. Tosti signed a `Consent to Search’ form authorizing agents to search the items she turned over on October 22. On that form, Ms. Tosti stated, `The above items both my husband, Donald Tosti and I use.’
Casteneda did not see any `signs, extra locks or other indicia’ that the home office `was anything other than an area of the residence to which Annette Tosti had common access as she consistently maintained.’
Tosti's brother-in-law also declared he had not seen any indicia that Ms. Tosti's access to the home office was limited. Tosti nonetheless avers that he and Ms. Tosti had `an explicit agreement that [they] would not enter each other's private work areas without first announcing [themselves] and then getting permission.’
U.S. v. Tosti, supra.
Prior to trial, Tosti moved to suppress the government seized in the 2005 and 2009 searches. U.S. v. Tosti, supra. The district court granted the motion in part and denied it in part, “suppressing only the first batch of evidence” Ms. Tosti turned over to Casteneda on October 20, 2009. U.S. v. Tosti, supra.
On appeal, Tosti, argued, first, that “the warrantless searches of his computer at CompUSA were unlawful” and that the evidence discovered in those searches should be suppressed. U.S. v. Tosti, supra. The Court of Appeals began its analysis of the argument by noting that the 2005 searches
derive from Suzuki's original private search of Tosti's computer after Tosti voluntarily relinquished it to CompUSA. The 4th Amendment's proscriptions on searches and seizures are inapplicable to private action. See U.S. v. Jacobsen, 466 U.S. 109 (1984). `Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information.’ U.S. v. Jacobsen, supra.
Instead, the 4th Amendment `is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.’ U.S. v. Jacobsen, supra. `The additional invasions of respondents' privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search.’ U.S. v. Jacobsen, supra. See also U.S. v. Jacobsen, supra (`The agent's viewing of what a private party had freely made available for his inspection did not violate the 4th Amendment.’).
U.S. v. Tosti, supra. For more on private searches, check out this prior post.
The Court of Appeals found that under Jacobsen, neither Schikore nor Rudolph
`searched’ Tosti's photos for 4th Amendment purposes because Suzuki's prior viewing of the images extinguished Tosti's reasonable expectation of privacy in them. Tosti admitted that by voluntarily taking his computer to CompUSA for repairs he `understood that a technician at CompUSA would have temporary custody of the computer, and would inspect it as needed to complete the requested repairs.’
Indeed, Tosti appears to concede he had no reasonable expectation of privacy in the thumbnail version of the pictures Suzuki had already viewed. Tosti instead argues that detectives exceeded the scope of Suzuki's private search when: (1) Shikore directed Suzuki to enlarge the images and viewed the photos in slideshow format; and (2) Rudolph scrolled through the thumbnail photos.
The district court found that Shikore viewed only those photos Suzuki had already viewed. Tosti does not contest that conclusion here, nor does the record contradict it. The only question with respect to Shikore, then, was whether Tosti was entitled to suppression because Shikore purportedly viewed those pictures not just as thumbnails, but also as enlarged pictures in a slideshow format.
Even assuming Shikore viewed enlarged versions of the thumbnails, he still did not exceed the scope of Suzuki's prior search because Suzuki and both detectives testified that they could tell from viewing the thumbnails that the images contained child pornography. That is, the police learned nothing new through their actions.
Since Suzuki -- a private individual to whom Tosti voluntarily delivered his computer with the explicit understanding that he would inspect the system to complete the repairs -- could discern the content of the photos, any expectation of privacy Tosti had in those pictures was extinguished. Whether detectives later enlarged them (or the size of the enlargements, for that matter) is thus irrelevant.
U.S. v. Tosti, supra.
The court also found that Tosti was not entitled to have the evidence suppressed on the
basis that Rudolph scrolled through the thumbnails. Again, scrolling through the images Suzuki had already viewed was not a search because any privacy interest in those images had been extinguished. Moreover, Rudolph did not view any more photos than Suzuki had viewed.
Tosti agreed that: (1) there was no `evidence in the record to suggest that either Shikore . . . or Rudolph viewed any file folder or images other than the file folder and images opened by Suzuki’; and (2) the `crux of Tosti's argument [was] that the detectives allegedly asked Suzuki to enlarge the images and subsequently scroll[ed] through the file folder.’
The district court explicitly held `that on the facts . . . , this is not a situation where the Detectives reviewed more file folders or images than Suzuki viewed.’ The district court's factual finding is not clearly erroneous.
U.S. v. Tosti, supra.
Tosti also argued that the district court judge “erred in failing to suppress the evidence seized from his home office and computer media in 2009” because, according to Tosti, his wife “had neither actual nor apparent authority to consent to those searches.” U.S. v. Tosti, supra. As Wikipedia notes, when someone consents to a search they waive, or surrender, their 4th Amendment rights. And as I have noted in prior posts, to be able to consent to a search a person must have (i) actual or (ii) apparent authority to do so.
The Court of Appeals began its analysis of Tosti’s argument concerning the 2009 search by noting that
`a person with common authority over property can consent to a search of that property without the permission of the other persons with whom he shares that authority.’ U.S. v. Murphy, 516 F.3d 1117 (U.S. Court of Appeals for the 9th Circuit 2008)
`Under the apparent authority doctrine, a search is valid if the government proves that the officers who conducted it reasonably believed that the person from whom they obtained consent had the actual authority to grant that consent.’ U.S. v. Welch, 4 F.3d 761 (U.S. Court of Appeals for the 9th Circuit 1993).
`To establish apparent authority, the Government must show that: (1) [officers] believed an untrue fact they used to assess . . . control; (2) it was objectively reasonable for [officers] to believe the fact was true; and (3) if the fact was true, [the third party] would have had actual authority to consent.’ U.S. v. Enslin, 327 F.3d 788 (U.S. Court of Appeals for the 9th Circuit 2003) “`T]he doctrine is applicable only if the facts believed by the officers to be true would justify the search as a matter of law.’ U.S. v. Welch, supra.
U.S. v. Tosti, supra. For more on apparent authority, check out this prior post.
The Court of Appeals did not buy Tosti’s argument. Instead, it found that the Tostis
were married and had resided in their shared residence for over twenty years. Ms. Tosti advised Casteneda that both she and Tosti used the computer and storage devices located in their home. Even if Ms. Tosti's representations were not true, there were no objective indications that [her] access to the office was limited. There were no locks or other signs that Tosti tried to keep his wife out of the office. Also, the computer and electronic media were neither password protected nor encrypted.
The fact that Tosti now contests Ms. Tosti's actual authority does not undermine the district court's finding of apparent authority. There was no indication at the time of the search that Casteneda was on notice that Ms. Tosti might not have the authority to consent.
All objective indicia supported Casteneda's conclusion that Ms. Tosti's consent was sufficient, and the district court properly denied Tosti's motion to suppress.
U.S. v. Tosti, supra. In a footnote, the court explains that
[e]ven if Casteneda knew the couple were estranged -- a matter that is not clear from the record -- Ms. Tosti continued to live in the home and to have access to the devices she turned over to the Government. Accordingly, Casteneda reasonably believed Ms. Tosti had authority.
U.S. v. Tosti, supra.
For these and other reasons, the Court of Appeals therefore affirmed Tosti’s conviction and sentence. U.S. v. Tosti, supra.