Wednesday, December 18, 2013

The Homeless Man, the Laptop and the Password

After he was charged with possession of child pornography in violation of 18 U.S. Code § 2252(a)(4)(B) and transportation of child pornography in violation of 18 U.S. Code § 2252(a)(1), Michael Albert Wilson, Jr. moved to suppress evidence police seized from his laptop computer and “statements he made to the police.”  U.S. v. Wilson, 2013 WL 6198271 (U.S.District Court for the Eastern District of Kentucky 2013); U.S. v. Wilson, Case No. 2:13-CR-00040 (U.S. District Court for the Eastern District of Kentucky 2013). This post only examines his effort to suppress evidence found on his laptop.

According to the opinion in which the U.S. District Court Judge who has the case rules on Wilson’s motion to suppress, this is how the case began:

(1) On April 16, 2013, Rena Gearding discovered a plastic-wrapped suitcase while walking her dogs at the edge of a wooded area in Evergreen Cemetery in Southgate, Kentucky. She unwrapped the suitcase, opened it, and discovered a laptop computer, batteries, change and prescription bottles stored inside.

(3) On April 17, 2013, Bishop turned the suitcase over to David Smith, the Superintendent of Evergreen Cemetery. Smith took the suitcase to the Southgate Police Department, but was unable to locate a police officer. He returned to the Cemetery with the suitcase and called the police.

(4) Southgate Police Officer Chad Martin went to Evergreen Cemetery later that day, collected the suitcase from Smith, and returned to the Southgate police station with it.

(5) Martin looked through the suitcase in hopes of finding contact information for the owner. He found a Social Security card, birth certificate and passport for Michael Albert Wilson, Jr. in the top outer pocket, but no photo identification. He did not inventory the suitcase's contents because he did not believe the items had any evidentiary value.

(6) Martin asked dispatch to run Wilson's name and Social Security number through its database. Although the database did not yield an address for Wilson, it did reveal that he was a registered sex offender.

(7) Because Martin had not yet found an address, he decided to power up the laptop and continue looking for Wilson's contact information. However, he soon discovered the laptop was password-protected, so he called Steven Schauer, IT Consultant for the Southgate Police Department, and asked him to come to the police station.

U.S. v. Wilson, supra.

The opinion then explains that

(8) Schauer arrived at the police station about fifteen to twenty minutes later. Using Linux software, he was able to bypass the password feature and quickly access the laptop's data.

(9) Police Chief John Christmann . . . [was] present as Schauer and Martin browsed the laptop's contents. Martin first directed Schauer to look in the `My Documents’ folder for a resume or any other document containing contact information. Finding nothing helpful in that folder, Martin asked Schauer to look in the `My Pictures’ folder. When they opened that folder, they saw a list of saved photos with corresponding mid-size icons. They scrolled through this list but did not enlarge any of the photos. However, they could tell from the icons that many of the photos featured the same man, who they assumed to be Wilson. They also saw several photos of nude women, but nothing about these photos suggested that they were contraband. After looking through these two folders for approximately ten to twenty minutes, Martin instructed Schauer to shut the laptop down.

(10) Martin then contacted Kentucky Probation and Parole about Wilson. The probation officer reported Wilson was staying at 217 West 13th Street in Newport, Kentucky. The probation officer also emailed Wilson's photo to the Southgate Police Department. Police officers went to the Newport address to tell Wilson they had his suitcase, but they discovered that he was no longer living there.

(11) On April 18, 2013, Christmann was driving along US-27 when he spotted a pedestrian resembling Wilson. Christmann stopped the man, confirmed that he was Wilson, and informed him the Southgate Police Department had his suitcase. Christmann then asked Wilson where he was staying. Wilson explained that he was staying with his girlfriend K.B. at 120 West Walnut Street in Southgate, Kentucky. After reminding Wilson that he needed to register his new address with Probation and Parole, Christmann continued on his way.

(12) Martin went to visit Wilson at the Southgate address and discovered it was also invalid. He notified Wilson's probation officer, who called Wilson to ask him about his address. Wilson admitted lying to Christmann and told the officer he was staying at the invalid Newport address. When the probation officer relayed this information, Martin called Wilson and informed him he had provided false information to the sex offender registry. Wilson then admitted that he was homeless and promised to tell his probation officer where his campsite was located. He later reported to Probation and Parole that he was camping under the US–27 underpass in front of St. Therese school.

(13) Meanwhile, Martin asked dispatch to run a database search on K.B. The search revealed K.B. was an eighteen year old high school student living in Wilder, Kentucky. Martin contacted K.B. and asked if she knew Wilson. She replied that she had met Wilson online two years ago and they had planned for him to come to Kentucky when she turned eighteen. When asked about the nature of this online relationship, K.B. admitted it was sexual in nature and that she had sent nude photos of herself to Wilson. These photos were taken before K.B. turned eighteen.

(14) Based on his conversation with K.B., Martin applied for a warrant to search all of Wilson's electronic devices, including his laptop computer. Martin then located Wilson at a laundromat near his campsite and arrested him for providing misinformation to the sex offender registry.

(15) After reading Wilson his Miranda rights, Martin asked, `What would happen if I checked your computer for nude images of K.B. when she was under eighteen?’ Wilson replied, `It would be bad if you checked my computer.’

U.S. v. Wilson, supra.

The opinion also explains that

(16) At the time of his arrest, Wilson had been living in Kentucky for two and a half (2 1/2) weeks. He [came] from Mannasas, Virginia, where he had been staying with his mother. . . . He . . . set up a camp, consisting of a trash bin and a crude open-sided shelter, in the wooded area of Evergreen Cemetery. Wilson tried to camp in a secluded area for safety reasons . . . but he acknowledged that passers by could potentially stumble upon his camp.

(17) Wilson kept his most valuable possessions in his suitcase. He stored his Social Security card, birth certificate, passport and prescription medications in the upper front pocket and secured his electronic drawing tablet in the lower front pocket. The inside of his suitcase housed his laptop, which he cushioned using clothing sealed in Ziploc bags.

(18) Wilson hesitated to leave the suitcase at his campsite for fear that passers by would stumble upon it, but he believed he would be a target for robbery if he carried it with him around Newport. He took a small backpack with him when he left the campsite, but his concerns about robbery also prevented him from carrying his valuables with him in the backpack. When he left the campsite, he would pack the suitcase and wrap it in plastic to protect it from the elements. He would then hide the suitcase in the woods a short distance away from his main campsite. The suitcase was in one such hiding place when Rena Gearding spotted it while walking her dogs along her regular route.

U.S. v. Wilson, supra.

That brings us to Wilson’s motion to suppress.  He claimed “Martin's search of his suitcase violated his 4th Amendment right to be free from unreasonable searches.” U.S. v. Wilson, supra.  The government argued that “no 4th Amendment violation occurred because [Wilson] did not have a reasonable expectation of privacy in the suitcase.”  U.S. v. Wilson, supra. 

As Wikipedia notes, and as I have explained in prior posts, a 4th Amendment “search” occurs if, and only if, police engage in conduct that violates a “reasonable expectation of privacy" in a place or thing.  In order to have a 4th Amendment “reasonable expectation of privacy” in a place or thing, the person who owns the place or thing (i) must subjectively believe it is “private” and (ii) society must accept that belief as objectively reasonable.  For an example of that, check out this prior post.  

The judge began his analysis of Wilson’s argument by addressing the two critical issues in this case:  “(1) whether [Wilson] manifested a subjective expectation of privacy in the suitcase discovered in Evergreen Cemetery; and (2) whether society is prepared to recognize [his] expectation of privacy as reasonable.” U.S. v. Wilson, supra.

The judge noted that at the evidentiary hearing he held on the motion to suppress,

[Wilson] detailed the specific steps he took in securing his suitcase and the items within it. Before leaving the campsite, [he] would pack the suitcase, taking care to cushion the electronics with clothing sealed in Ziploc bags, then zip it and wrap it in plastic to protect it from the elements. He would then hide his suitcase in the woods surrounding his campsite. Although he hid the suitcase in a slightly different location each time he left the Cemetery, he always took care to hide it in a secluded area close to his campsite. [Wilson] testified that he did everything he possibly could, short of burying the packed suitcase in the dirt, to secure his belongings.

[His] testimony establishes that he wanted to protect his property from theft or other disturbance because it had great personal significance and monetary value. . . . He did everything he thought possible . . . to preserve his privacy. . . . [Wilson] manifested a subjective expectation of privacy in the suitcase found in Evergreen Cemetery.

U.S. v. Wilson, supra.

The judge then took up the next issue:  whether Wilson’s subjective expectation of privacy was “reasonable”. U.S. v. Wilson, supra. He found that while Wilson did

everything he thought practicable to protect his property, the Court believes it would have been feasible to do more. Specifically, the Court notes [Wilson’s] failure to lock the suitcase. Although [he] acknowledged that he could have locked the suitcase, he chose not to because he felt a lock would not deter someone who was determined to get into his leather suitcase.

U.S. v. Wilson, supra.

The judge also explained that the circumstances under which the suitcase was found

do not support a conclusion that society would be prepared to recognize his expectation of privacy as reasonable. [Wilson] testified that he hid the suitcase under a tree near his main campsite, but the suitcase was easily spotted and removed from its hiding place by Rena Gearding.

Gearding's affidavit indicates she was walking her dogs along one of her usual routes when she spotted the suitcase resting under a tree about ten feet into the woods. However, [Wilson’s] own testimony that he half-expected someone to come upon his campsite and find the suitcase nearby is most compelling.

These facts . . . persuade the Court that society would not recognize [his] expectation of privacy in the suitcase as reasonable. Since this prong of the analysis is not satisfied, . . . [Wilson] does not have a reasonable expectation of privacy in the suitcase, and therefore no 4th Amendment violation occurred when Martin looked through it.

U.S. v. Wilson, supra.

Wilson also argued that he had a 4th Amendment expectation of privacy in the laptop “because it was password-protected.” U.S. v. Wilson, supra.  The prosecution claimed “he did not have a reasonable expectation of privacy in the laptop.” U.S. v. Wilson, supra. The judge found Wilson “manifested a subjective expectation of privacy in his laptop” because (i) he put a password on it to protect the confidentiality of personal data he stored on it and (ii) while he used “a standard password protection feature that is installed on all personal computers,” he “did not use password that could be easily guessed or clearly associated with him.” U.S. v. Wilson, supra.

Wilson argued that society would

generally interpret password-protection as a kind of `Keep Out’ sign, and therefore would recognize a person's expectation of privacy in a password-protected laptop as reasonable. The testimony of . . . Schauer, supports [Wilson’s] assertion. When asked whether he thought members of society would recognize an expectation of privacy in a password protected laptop as reasonable, he replied in the affirmative.

U.S. v. Wilson, supra.

The prosecution tried to distinguish between

 the basic password protection feature that comes standard on all laptops and more sophisticated password protection measures. Since Schauer was able to quickly bypass the password protection feature on [Wilson’s] laptop, the government maintains [he] had no reasonable expectation of privacy in the laptop. 

U.S. v. Wilson, supra.

The judge did not agree, explaining that Wilson

sought to keep the data on his laptop private using basic password protection. In an era where personal electronics . . . are often sold with a password-protection option, society is likely to recognize [Wilson’s] subjective expectation of privacy as reasonable. The situation here is no different that the basic four digit pass code that one must use to access an iPhone.

Just because the iPhone could be reset at an Apple store to the default settings doesn't mean that the iPhone's owner doesn't have a reasonable expectation of privacy in the iPhone when he restricted access to it by setting a four digit entry code.

U.S. v. Wilson, supra.

He therefore held that Wilson had a 4th Amendment expectation of privacy in his laptop. U.S. v. Wilson, supra.  Unfortunately for Wilson, the judge also found that because an "officer may conduct a search of found property to the extent necessary to identify an owner" and because "Martin browsed the laptop's contents for the limited purpose of finding current contact information," his search of the laptop was "reasonable" and therefore did not violate the 4th Amendment. U.S. v. Wilson, supra. The judge noted that Martin's actions were "not only permissible" but "reasonable under these specific circumstances" because if "no owner was found, the police department would have to either hold on to the property indefinitely or dispose of it."  U.S. v. Wilson, supra.

The judge does not specifically cite what has come to be known as the “caretaking” exception, or the "community caretaking" exception, to the 4th Amendment’s default requirement that officers obtain a warrant before searching property, but that seems to be the basis of his decision. As this article explains the caretaking exception is based on the premise, essentially, that officers need to be given a certain latitude when they are acting as “community caretakers” rather than law enforcers.

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