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.
(2) Gearding turned the suitcase over to Cemetery
employee J.D. Bishop, who decided to keep it overnight and give it to his
supervisor the following day.
(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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