As I explained in a
post I did some years ago, there are two way someone can challenge law
enforcement’s seizing property, including computers: One is to file a motion to suppress evidence,
which is the approach usually taken by someone who has been charged with a
crime that involves evidence on the seized property. The other, less common option is to file a
motion seeking the return of property, on the premise that it was improperly
seized. This post examines a case that involved the latter.
The district court
judge’s opinion in this case begins by explaining that
MLDC Government Services Corp.
(Employer) had an employee named Matt Eugene Ruck (Employee) who was on felony probation for the crime of forgery. Employer knew the terms and conditions of
the probation, which included that Employee not leave the State of Idaho
without written permission of his probation officer and that he consent to a
search of his person, vehicle, residence, and property.
Employee's employment duties
required that he travel regularly, and Employer provided him with an
Employer-owned laptop computer for business use. Employer allowed Employee to
take the laptop wherever he desired, including on business trips and to his
home.
On June 22, 2011, two probation officers went to
Employee's residence to conduct a standard home visit and to inquire about his
recent attempt to purchase a firearm. It is a felony for any person previously
convicted of a felony to purchase, own, or possess a firearm or have one under
his custody or control, Idaho Code § 18–3316(1), and it is a felony to
attempt to do so, Idaho Code §§ 18–306(2), 18–111.
During the visit, one of the officers noticed a
backpack on the kitchen table. She asked Employee if it was his backpack, and
he responded that it was. The officer looked through the backpack and
discovered airline boarding passes and other information indicating that
Employee had traveled out of state. The officer questioned Employee about such
travel, and he ultimately admitted to traveling out of state.
The officer also found the
Employer-provided laptop in the backpack and removed it. Employee told the
officer that it was a work computer. The officer seized the laptop and left
with it in order to later search it to see if it contained evidence of Employee
violating the terms of his probation. Prior to leaving, the officer asked
Employee for the computer password, and he gave it to her.
State v. Ruck, 2013
WL 6198229 (Idaho Supreme Court 2013).
A few days later, on June 27,
Employer filed a civil action seeking
the return of the laptop pursuant to Idaho Criminal Rule 41 and a
temporary restraining order and injunction preventing any search of the laptop
until it could be determined what information in it was privileged.
Pursuant to the stipulation of the
parties, the judge presiding over the civil proceeding entered an order on June
28, 2011, stating that the Department of Correction would retain possession of
the laptop and that any copies made of data contained in it shall be sealed and
not viewed until there was a hearing to determine the rights and protections
regarding ownership of that data. After an evidentiary hearing in the civil
proceeding, the presiding judge ordered that it be stayed and that the matter
be referred to the judge presiding over the criminal case.
The matter was then
presented to the judge presiding over Employee's criminal case. After reviewing
the documents filed in the civil proceeding and the transcript of the
evidentiary hearing, the judge denied Employer's motion for the return of the
laptop. Employer then timely appealed.
State v. Ruck, supra.
In this opinion, the Supreme Court addresses four issues,
the first of which was whether the Employer had the right to appeal the denial
of the motion for return of the laptop. State v. Ruck, supra. For reasons that are not relevant to the
resolution of the real issue in the case, it found the Employer could, in fact,
appeal. State v. Ruck, supra.
The court then took up the three substantive issues: whether the Employer was required to seek the
return of the laptop in Ruck’s criminal prosecution; whether the trial court
judge erred in denying the motion for return of the laptop; and whether the
state was entitled to search the laptop. State
v. Ruck, supra.
The court began its analysis of the first issue by noting
that
Employer initially sought to regain its
property by commencing a civil action. The judge presiding over that proceeding
ordered that the matter be referred to the judge presiding over Employee's
criminal case.
The determination of whether the
attempt to regain the laptop should have been brought as a civil action or as a
motion in the criminal case depends upon whether Employee's criminal action was
still pending as that term is used in Idaho Criminal Rule 41(e). Rule 41(e) states that
`[t]he motion for the return of the property shall be made only in the criminal
action if one is pending, but if no action is pending a civil proceeding may be
filed in the county where the property is seized’.
State v. Ruck, supra
(emphasis in the original).
The court also noted that when the laptop was seized,
Employee had been sentenced and had
been on probation for more than four years. Employer contends that at that
point, no criminal action was pending. He cites the definition of the word
`pending’ in Black's Law Dictionary, which is `remaining undecided; awaiting
decision .’ The meaning of the word `pending’ depends
upon the context.
State v. Ruck, supra.
The Supreme Court then found that in this case,
the seven-year period of probation had
not yet expired. Therefore, the district court in the
Employee's criminal case still retained jurisdiction to take some action. It
had the power to modify the conditions of Employee's probation,
to extend or terminate the probation, and to conduct probation
violation proceedings, which could result in revoking probation and imposing
the suspended sentence.
Because the district court still had
jurisdiction regarding Employee's probation, the criminal case was still
pending within the meaning of that word in Idaho Criminal Rule 41(e). The
district judge who was presiding over the civil proceeding commenced by Employer
did not err in referring this matter to the district judge presiding over
Employee's criminal action as required by Rule 41(e).
State v. Ruck, supra.
The judge in the criminal case treated Employer’s filing the
civil suit as “a motion under Idaho Criminal Rule 41(e)” and held a hearing on
the motion, at which the trial judge “considered the transcript of the
evidentiary hearing held in the civil proceedings, at which Employer presented
the testimony of its president and the probation officer; the memoranda
submitted by Employer; and the written response of the Department of
Correction.” State v. Ruck, supra. As noted above, the judge denied the motion
for return of the laptop. State v. Ruck,
supra. The Supreme Court therefore
found that process was adequate and appropriate. State
v. Ruck, supra.
It then took up the second issue: whether the trial judge erred in denying the
motion for the return of the laptop. State
v. Ruck, supra. The Supreme Court
began its analysis of this issue by explaining that Idaho Criminal Rule 41(e)
states that
`[a] person aggrieved by a search and
seizure may move the district court for the return of the property on the
ground that the person is entitled to lawful possession of the property and
that it was illegally seized.’ The rule further provides, `If a motion for
return of property is made or comes on for hearing after a complaint,
indictment or information is filed, it shall be treated also as a motion to
suppress under Rule 12.’
`When a defendant moves to exclude
evidence on the grounds it was obtained in violation of the 4th Amendment, the
government carries the burden of proving that the search or . . . was
reasonable.’ State v. Bishop, 146 Idaho 804, 203 P.3d 1203 (Idaho
Supreme Court 2009).
However, . . . Employer is not the
defendant in the criminal action who is seeking to suppress evidence. Therefore, we hold that
Employer has the burden of proving that it is entitled to lawful possession of
the laptop and that the laptop was illegally seized. There is no dispute in
this case that Employer is the owner of the laptop. Therefore, the issue is
whether the district court erred in failing to find that the laptop was
illegally seized.
State v. Ruck, supra.
As the legality of the seizure, the court explained that the
conditions of
Employee's probation included a
provision stating that he `shall submit to a search of defendant's person,
vehicle, residence, and/or property.’
Employee also signed an Agreement of Supervision and initialed each provision
in it, one of which stated that he `shall consent to the search of his/her
person, residence, vehicle, personal property, and other real property or
structures owned or leased by the defendant or for which the defendant is the
controlling authority.’ The backpack
was Employee's property. Therefore the probation officer could search it.
State v. Ruck, supra.
The relevant question was whether the officer could seize
the laptop she found in the backpack.
The Supreme Court noted that the propriety of the seizure depended on
whether the plain view doctrine applied here. State v. Ruck, supra. It explained that
[i]f, during a lawful search of a
private area, an officer sees an object in plain view, the incriminating
character of the object is immediately apparent, and the officer has a lawful
right to access the object, the officer may seize it. Horton v. California, 496 U.S. 128 (1990). The officer must have probable cause
to believe that the object is evidence of a crime or contraband. Arizona v. Hicks, 480 U.S. 321 (1987).
State v. Ruck, supra.
The Supreme Court then analyzed the plain view doctrine’s
application in this case:
With respect to the seizure of the laptop, the probation officer stated in her affidavit that the laptop was found in the Employee's backpack where she also found receipts and boarding passes indicating that he had violated his probation by traveling out of state without permission. She stated that she seized the laptop with the intention of searching it `for further indications of Mr. Ruck violating the terms of his probation.’
In denying Employer's motion for the return of the
laptop, the district court found that, `based upon the totality of the
circumstances, it is reasonable to believe the computer may hold evidence that
Ruck was in violation of the probation order, specifically with respect to
whether Ruck was traveling without permission, or engaging in financial
transactions which are prohibited by the order.’
Employer does not challenge that
finding on appeal, nor does Employer argue that the probation officer lacked
probable cause to believe that the laptop may contain evidence that Employee
violated the conditions of his probation. . . . Because
Employer has not challenged on appeal the factual finding by the district court
that it was reasonable for the officer to believe that the laptop may contain
evidence of a probation violation, we hold that the district court did not err
in denying Employer's motion for the return of the laptop.
State v. Ruck, supra.
Finally, the court took up the question of whether the state
was entitled to search the laptop it had lawfully seized. State
v. Ruck, supra. It began noted that
the issue with
respect to Employer's motion for the
return of the laptop was whether the laptop was illegally seized, not whether
the State could search the laptop. However, in its decision, the district court
assumed the State had the right to search the laptop.
It wrote, `If the parties cannot reach
an agreement regarding the method of searching the computer, the Court will
entertain a motion for a protective order which would allow the information on
the computer to be submitted to the Court under seal.’
State v. Ruck, supra.
The Supreme Court therefore, as the Employer asked,
considered “whether the State has the right to search the laptop without a
search warrant” because “holding that the seizure was not illegal does not mean
the State can automatically search the laptop without a search warrant.” State v. Ruck, supra. After analyzing the facts and law, the
Supreme Court held that
Employee's condition of probation
requiring that he consent to searches and the relevant provision in the
Agreement of Supervision do not address consenting to the search of personal
property owned by a third person. It is clear that Employee had authority to
consent to the search of the laptop because Employer had given him possession
of the laptop and authorized him to take it wherever he desired, including to
his home. See Frazier v. Cupp, 394 U.S. 731 (1969); U.S. v. Matlock , 415 U.S. 164 (1974). . . .
It is not clear whether Employee did
consent to a search of the laptop. There is no evidence that the probation
officer expressly asked for his consent. The officer merely asked for the
password, which Employee gave her.
The
officers did not search the laptop while they were at Employee's home, and
apparently have yet to search it. Because Employer is the owner of the laptop,
it can revoke any consent allegedly given by Employee. See Georgia
v. Randolph, 547 U.S. 103 (2006).
Because Employer is not on probation,
there is no basis for reducing the standard required for a search of the
laptop. Therefore, the State cannot search the laptop without a warrant issued
based upon a judicial determination that there is probable cause to believe
that evidence of Employee's probation violation is contained in the laptop.
State v. Ruck, supra. For more on consent searches, check out this
Wikipedia entry.
The court therefore affirmed the denial of the Employer’s
motion for return of the laptop.
State v. Ruck, supra.
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