Monday, April 29, 2013

The School, Suicide and the Cell-phone

From 2005 to 2008, “G.C.” was enrolled as an out-of-district student in the Owensboro [Kentucky] Public School District. G.C. v. Owensboro Public Schools, 711 F.3d 623 (U.S. Court of Appeals for the 6th Circuit 2013). 

The Owensboro district “has a reciprocal agreement with Daviess County Public School District, the district where G.C.'s parents reside, that allows a limited number of students to enroll in" the Owensboro schools. G.C. v. Owensboro Public Schools, supra. The “`enrollment of non-resident students in the District's schools is subject to the recommendation of the school Principal and approval of the Superintendent.’”  G.C. v. Owensboro Public Schools, supra.  Non-resident students are “`defined as those whose parent or guardian resides outside the District.’” G.C. v. Owensboro Public Schools, supra

During his freshman year at Owensboro High School, G.C. began having disciplinary problems and told “school officials he used drugs and was disposed to anger and depression.” G.C. v. Owensboro Public Schools, supra.  These incidents then occurred:

On September 12, 2007, . . . G.C. was given a warning for using profanity in class. . . . In February 2008, G.C. visited [Assistant Principal Christina] Smith's office and expressed to Smith `that he was very upset about an argument he had with his girlfriend, he didn't want to live anymore, and he had a plan to take his life.’ . . .

G.C. told Smith `he felt a lot of pressure because of football and school and smoked marijuana to ease the pressure.’ . . . Smith met with G.C.'s parents and suggested he be evaluated for mental health issues. . . .. G.C.'s parents took him to a treatment facility that day. . . . .

G.C. v. Owensboro Public Schools, supra. 

Apparently nothing happened until the next fall, when, on November 12, 2008, G.C. was

given a warning for excessive tardies, and on November 17, G.C. was disciplined for fighting and arguing in the boy’s locker room. . . . On March 5, 2009, G.C. walked out of a meeting with Summer Bell, the prevention coordinator at the high school, and left the building without permission. . . . G.C. made a phone call to his father and was in the parking lot at his car, where there were tobacco products in plain view. . . .

G.C. went to Smith's office, and Smith avers G.C. `indicated he was worried about the same things we had discussed before when he had told me he was suicidal.’ . . . She . . . `was very concerned about [his] well-being because he indicated he was thinking about suicide again. I, therefore, checked [G.C.'s] cell phone to see if there was any indication he was thinking about suicide.’ . . . G.C. visited a treatment center that day, and the counselor recommended he be admitted for one to two weeks. . . .

G.C. v. Owensboro Public Schools, supra. 

On March 9, 2009, school officials met with G.C. and his parents “regarding the March 5 incident” and he “was placed on probation and assigned four days of in-school suspension.” G.C. v. Owensboro Public Schools, supra. On April 8, he was suspended “after yelling and hitting a locker” and at the end of the academic year, Principal Anita Burnette recommended that Superintendent Larry Vick revoke G.C.'s authorization to attend Owensboro High School. G.C. v. Owensboro Public Schools, supra. 

Vick did not follow her recommendation; instead, he met  with G.C.’s parents on June 15 to discuss what was expected of him. if he continued to attend Owensboro.  G.C. v. Owensboro Public Schools, supra. Among other things, Vick told them that if G.C. had “`any further disciplinary infraction, this privilege would be immediately revoked and he would be required to return to his home school district.” G.C. v. Owensboro Public Schools, supra.

On September 2, 2009, G.C. violated Owensboro’s cell-phone policy when

he was seen texting in class. . . . G.C.'s teacher confiscated the phone, which was brought to [Assistant Principal Melissa] Brown, who read four text messages on the phone. . . . Brown said she looked at the messages `to see if there was an issue with which I could help him so that he would not do something harmful to himself or someone else.’ . . .

Brown explained that she had these worries because she `was aware of previous angry outbursts from [G.C.] and that [he] had admitted to drug use in the past. I also knew [he] drove a fast car and had once talked about suicide to [Smith]. . . . I was concerned how [he] would react to his phone being taken away and that he might hurt himself or someone else.’

G.C. v. Owensboro Public Schools, supra.

“After this incident, Burnette recommended to Vick that G.C.'s out-of-district privilege be revoked,” and Vick agreed.  G.C. v. Owensboro Public Schools, supra. On October 15, 2009, he and other school officials met with G.C.'s parents and their attorney. G.C. v. Owensboro Public Schools, supra.  Vick told them G.C. "had violated the condition of his out-of-district privilege to attend Owensboro High School by texting in class”, which seems to have meant he was dismissed.  G.C. v. Owensboro Public Schools, supra.

On October 21, G.C. filed suit in federal district court against Vick, Burnette, Brown and Smith, in which he alleged various violations of his constitutional rights.  G.C. v. Owensboro Public Schools, supra. One of his claims, the only one examined in this post, was that his 4th Amendment rights were violated by school officials “when they read text messages on his phone without the requisite reasonable suspicion”.  G.C. v. Owensboro Public Schools, supra. 
--> (The opinion does not say this, but I assume his 4th Amendment claim, at least, was brought under the federal civil rights statute.)

The defendants responded by filing a motion for summary judgment on all his claims which, as Wikipedia explains, lets a judge enter a judgment “before trial, effectively holding that no trial will be necessary.”  As Wikipedia notes, summary judgment can only be entered when the judge finds that

  1. there are no disputes of "material" fact requiring a trial to resolve, and
  2. in applying the law to the undisputed facts, one party is clearly entitled to judgment.

In other words, summary judgment cannot resolve factual issues.  It is proper only when a claim is legally defective, so the opposing party wins on the law. G.C. appealed the district court judge’s grant of summary judgment on his 4th Amendment claim, so the U.S. Court of Appeals for the Sixth Circuit is, in this opinion, deciding whether the judge erred in making that decision. G.C. v. Owensboro Public Schools, supra. 

The Court of Appeals began its analysis of G.C.’s appealing the grant of summary judgment on his 4th Amendment claim by noting that the Supreme Court “has implemented a relaxed standard for searches in the school setting”.  G.C. v. Owensboro Public Schools, supra.  It explained that in New Jersey v. T.L.O., 469 U.S. 325 (1985), the Court held that

the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.

New Jersey v. T.L.O, supra.

The Court of Appeals then elaborated on precisely what this means in practice:

`[a] student search is justified in its inception when there are reasonable grounds for suspecting that the search will garner evidence that a student has violated or is violating the law or the rules of the school, or is in imminent danger of injury on school premises. Brannum v. Overton County Sch. Bd., 516 F.3d 489 (U.S. Court of Appeals for the 6th Circuit 2008). `Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.’ New Jersey v. T.L.O., supra.

`In determining whether a search is excessive in its scope, the nature and immediacy of the governmental concern that prompted the search is considered. Brannum v. Overton County, supra. `In order to satisfy the constitutional requirements, the means employed must be congruent to the end sought.’ Brannum v. Overton County, supra

G.C. v. Owensboro Public Schools, supra. 

Since this Court of Appeals had not addressed “how the T.L.O. inquiry applies to the search of a student’s cell phone”, the plaintiff and defendants cited two federal district court cases that had addressed this issue.  G.C. v. Owensboro Public Schools, supra.  

The defendants relied on J.W. v. Desoto County School District, 2010 WL 4394059 (U.S. District Court forthe Northern District of Mississippi 2010), in which a teacher, who saw a student using his cell phone in class, took the cell phone and opened it to view “the personal pictures on it” that were taken by the student while at his come. 

The federal district court judge who had the case held that in deciding the reasonableness of the teacher’s actions, a “crucial factor” was that the student was caught using the phone at school.  J.W. v. Desoto County School District, supra.  This judge found that “[u]pon witnessing a student improperly using a cell phone at school, it strikes this court as being reasonable for a school official to seek to determine to what end the student was improperly using that phone.” J.W. v. Desoto County School District, supra. 

The Court of Appeals did not agree with this reasoning, noting that a search is

justified at its inception if there is reasonable suspicion that a search will uncover evidence of further wrongdoing or of injury to the student or another. Not all infractions involving cell phones will present such indications. 

Moreover, even assuming a search of the phone were justified, the scope of the search must be tailored to the nature of the infraction and must be related to the objectives of the search. Under our two-part test, using a cell phone on school grounds does not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone that is not related either substantively or temporally to the infraction. 

G.C. v. Owensboro Public Schools, supra. 

G.C. relied on Klump v. Nazareth Area School District, 425 F.Supp.2d 622 (U.S. District Court for the Eastern District of Pennsylvania 2006), in which “a student was seen using his cell phone, followed by two school officials accessing [his] text messages and voice mail; searching [his] contacts list; using the phone to call other students; and having an online conversation with [his]  brother.”  G.C. v. Owensboro Public Schools, supra.  The Klump court found that the school officials were “justified in seizing the cell phone, as [the student] had violated the school's policy prohibiting use or display of cell phones during school hours.” Klump v. Nazareth Area School District, supra.

The Klump judge also, though, found the school officials were not “ justified in calling other students, as `[t]hey had no reason to suspect at the outset that such a search would reveal that [the student] was violating another school policy.’’ Klump v. Nazareth Area School District, supra. The judge discussed the text messages read by the school officials, concluding that although they ultimately found evidence of drug activity on the phone,

for the purposes of a 4th Amendment claim, the court must consider only that which the officials knew at the inception of the search: `the school officials did not see the allegedly drug-related text message until after they initiated the search of [the] cell phone. Accordingly, . . .  there was no justification for the school officials to search [the] phone for evidence of drug activity.

Klump v. Nazareth Area School District, supra.

The Court of Appeals noted that the Klump court’s “fact-based approach” more accurately represented its standard “than the blanket rule set forth in DeSoto. G.C. v. Owensboro Public Schools, supra.  It then explained that G.C.’s objection to the

September 2009 search centers on the first step of the T.L.O. inquiry -- whether the search was justified at its inception. G.C. argues that the school officials had no reasonable grounds to suspect that a search of his phone would result in evidence of any improper activity.

The defendants counter that the search was justified because of G.C.'s documented drug abuse and suicidal thoughts. . . . Therefore, they argue, the school officials had reason to believe they would find evidence of unlawful activity on G.C.'s cell phone or an indication that he was intending to harm himself or others. . . .

G.C. v. Owensboro Public Schools, supra.

The Court of Appeals was not convinced:

We disagree . . . that general background knowledge of drug abuse or depressive tendencies, without more, enables a school official to search a student's cell phone when a search would otherwise be unwarranted. The defendants do not argue, and there is no evidence in the record to support the conclusion, that the school officials had any specific reason at the inception of the September 2009 search to believe that G.C. then was engaging in any unlawful activity or that he was contemplating injuring himself or another student.

Rather, the evidence in the record demonstrates that G.C. was sitting in class when his teacher caught him sending two text messages on his phone. . . . When his phone was confiscated by his teacher pursuant to school policy, G.C. became upset. . . . 

The defendants have failed to demonstrate how anything in this sequence of events indicated to them that a search of the phone would reveal evidence of criminal activity, impending contravention of additional school rules, or potential harm to anyone in the school.  On these facts, the defendants did not have a reasonable suspicion to justify the search at its inception.

G.C. v. Owensboro Public Schools, supra.

In a footnote, the court also pointed out that the “ordinary nature” of the September 2009

 infraction is highlighted further when contrasted with the March 2009 search, which G.C. has conceded was justified at its inception. Immediately prior to the March 2009 search, G.C. admitted to making a call on his cell phone in the school parking lot after having walked out of a meeting with the school prevention coordinator. . . . 

Upon his return, G.C. told Bell he was having suicidal thoughts, and the security officer reported to Bell that there were tobacco products in plain view in G.C.'s car. There was thus reason to believe -- based on that day's sequence of events -- that G.C. was contemplating injuring himself or breaking additional school rules. The defendants, however, can point to no such indications in the hours, weeks, or months leading up to the September 2009 search.

G.C. v. Owensboro Public Schools, supra.

The Court of Appeals therefore reversed the district court judge’s grant of summary judgment to the defendants on G.C.’s 4th Amendment claim and remanded the case to the district court for further proceedings.  G.C. v. Owensboro Public Schools, supra. That does not, as I have noted before, mean that G.C. prevailed and will prevail on the claim.  It means that the case goes forward, at least as to this cause of action.  G.C. v. Owensboro Public Schools, supra.

Friday, April 26, 2013

Trojan Horse Warrant . . . Fail?

A few years ago, I did a post in which I speculated about the possibility of U.S. law enforcement’s using a Trojan Horse or similar program to surreptitiously search, and perhaps, monitor a suspect’s computer.  And a few years after that, I included an expanded version of that analysis in a law review article, which you can find here, if you’re interested.

This post examines a case which seems to involve federal law enforcement’s seeking a warrant to authorize what appears, essentially, to be the type of surreptitious search and monitoring I speculated about in the earlier post and the law review article.

The case is In re Warrant to Search A Target Computer at Premises Unknown, ___ F. Supp.2d ___, 2013 WL 1729765 (U.S. District Court for the Southern District of Texas 2013) (“In re Warrant”).  And this is how the federal district court judge who deal with law enforcement’s request for the warrant noted above described the facts available to him and the nature of the government’s request:

In early 2013, unidentified persons gained unauthorized access to the personal email account of John Doe, an individual residing within the Southern District of Texas, and used that email address to access his local bank account. The Internet Protocol (IP) address of the computer accessing Doe's account resolves to a foreign country. 

After Doe discovered the breach and took steps to secure his email account, another email account nearly identical to Doe's -- the address differed by a single letter -- was used to attempt a sizeable wire transfer from Doe's local bank to a foreign bank account. The FBI has commenced an investigation, leading to this search warrant request. At this point in the investigation, the location of the suspects and their computer is unknown.

The Government does not seek a garden-variety search warrant. Its application requests authorization to surreptitiously install data extraction software on the Target Computer. Once installed, the software has the capacity to search the computer's hard drive, random access memory, and other storage media; to activate the computer's built-in camera; to generate latitude and longitude coordinates for the computer's location; and to transmit the extracted data to FBI agents within this district.

In re Warrant, supra.

The judge then explains that by

[u]sing this software, the government seeks to obtain the following information:

(1) records existing on the Target Computer at the time the software is installed, including:

• records of Internet Protocol addresses used; records of Internet activity, including firewall logs, caches, browser history and cookies, “bookmarked” or “favorite” Web pages, search terms that the user entered into any Internet search engine, and records of user-typed Web addresses;

• records evidencing the use of the Internet Protocol addresses to communicate with the [victim's bank's] e-mail servers;

• evidence of who used, owned, or controlled the TARGET COMPUTER at the time the things described in this warrant were created, edited, or deleted, such as logs registry entries, configuration file, saved user names and passwords, documents, browsing history, user profiles, e-mail contents, e-mail contacts, “chat,” messaging logs, photographs, and correspondence;

• evidence of software that would allow others to control the TARGET COMPUTER;

• evidence of times the TARGET COMPUTER was used; and

• records of applications run.

(2) prospective data obtained during a 30–day monitoring period, including:

• accounting entries reflecting the identification of new fraud victims;

• photographs (with no audio) taken using the TARGET COMPUTER's built-in camera after the installation of the NEW SOFTWARE, sufficient to identify the location of the TARGET COMPUTER and identify persons using the TARGET COMPUTER;

• information about the TARGET COMPUTER's physical location, including latitude and longitude calculations the NEW SOFTWARE causes the TARGET COMPUTER to make;

• records of applications run.

In re Warrant, supra.  (In a footnote, he explains that the warrant has been sealed “to avoid jeopardizing an ongoing investigation”, but the opinion is not because “it deals with a question of law at a level of generality which could not impair the investigation.”  In re Warrant, supra.)

The judge also explains that, in order to accomplish all this, the

Government has applied for a Rule 41 search and seizure warrant targeting a computer allegedly used to violate federal bank fraud, identity theft, and computer security laws. Unknown persons are said to have committed these crimes using a particular email account via an unknown computer at an unknown location.

In re Warrant, supra.  Federal Rule of Criminal Procedure 41, which you can find here, authorizes federal judges, and federal magistrates, to issue warrants that authorize law enforcement officers to search for and seize specified items, assuming, of course, that the application for the warrant is supported by probable cause.  And if you would like to read more about the processes of applying for and executing a warrant, check out the U.S. Department of Justice publication you can find here.

As noted above, the agents and/or prosecutor applying for the warrant argued that this request, while “novel”, falls within the scope of Rule 41, i.e., that the rule allows the court to issue such a warrant. In re Warrant, supra.  The judge found that this argument raised "a number of questions,
including: (1) whether the territorial limits of a Rule 41 search warrant are satisfied; (2) whether the particularity requirements of the 4th Amendment have been met; and (3) whether the 4th Amendment requirements for video camera surveillance have been shown.”  In re Warrant, supra. In this opinion, he analyzes each of these issues, in this order.  In re Warrant, supra.  

As to the first issue, the judge noted that Rule 41(b)(1) “allows a . . . `judge with authority in the district . . . to issue a warrant to search for and seize a person or property located within the district.’”  In re Warrant, supra.  He also noted that while the Government

readily admits that the current location of the Target Computer is unknown, it asserts that this subsection authorizes the warrant `because information obtained from the Target Computer will first be examined in this judicial district.’ . . . Under the Government's theory, because its agents need not leave the district to obtain and view the information gathered from the Target Computer, the information effectively becomes `property located within the district.’ This rationale does not withstand scrutiny.

In re Warrant, supra.  

Later, he explains that under the “Government's logic, a Rule 41 warrant would permit FBI agents to roam the world in search of a container of contraband, so long as the container is not opened until the agents haul it off to the issuing district.” In re Warrant, supra.  He noted that the “search” for which the Government

seeks authorization is actually two-fold: (1) a search for the Target Computer itself, and (2) a search for digital information stored on (or generated by) that computer. Neither search will take place within this district, so far as the Government's application shows. Contrary to the current metaphor often used by Internet-based service providers, digital information is not actually stored in clouds; it resides on a computer or some other form of electronic media that has a physical location. 

Before that digital information can be accessed by the Government's computers in this district, a search of the Target Computer must be made. That search takes place, not in the airy nothing of cyberspace, but in physical space with a local habitation and a name.

Since the current location of the Target Computer is unknown, it necessarily follows that the current location of the information on the Target Computer is also unknown. This means that the Government's application cannot satisfy the territorial limits of Rule 41(b)(1).

In re Warrant, supra.  He also found that the other options codified in Rule 41(b) did not apply here because (i) this was not a terrorism investigation (Rule 41(b)(3); (ii) the warrant did not seek to install and use a tracking device within the Southern District of Texas (Rule 41(b)(4); and (iii) there was no evidence that the Target Computer will be found on U.S.-controlled territory or premises” (Rule 51(b)(5). In re Warrant, supra.  

Next, he considered whether the warrant application satisfied the 4th Amendment’s particularity requirement.  In re Warrant, supra.  As I have noted in prior posts, the 4th Amendment requires that warrants “particularly” describe the place to be searched and the things to be searched for.  In analyzing this issue, the judge noted, again, that “the warrant sought here would authorize two different searches: a search for the computer used as an instrumentality of crime, and a search of that computer for evidence of criminal activity.” In re Warrant, supra.  He also explained that because “the latter search presumes the success of the initial search for the Target Computer, it is appropriate to begin . . . with that initial search.”  In re Warrant, supra (emphasis in the original).

The judge found the government had not satisfied the particularity requirement as to this search because its application for the warrant

contains little or no explanation of how the Target Computer will be found. Presumably, the Government would contact the Target Computer via the counterfeit email address, on the assumption that only the actual culprits would have access to that email account. Even if this assumption proved correct, it would not necessarily mean the government has made contact with the end-point Target Computer at which the culprits are sitting. 

It is not unusual for those engaged in illegal computer activity to `spoof’ IP addresses as a way of disguising their actual on-line presence; in such a case the Government's search might be routed through one or more `innocent’ computers on its way to the Target Computer.

In re Warrant, supra.  And as to the second search, i.e., the search of the computer targeted by the warrant, the judge found that the government had not explained how “its search technique will avoid infecting innocent computers” which could be implicated if, say, the computer was in a workplace or was “used by family or friends uninvolved in the illegal scheme” among other problems. In re Warrant, supra.  

Finally, the judge addressed the issue of “video surveillance,” explaining that the

data extraction software will activate the Target Computer's built-in-camera and snap photographs sufficient to identify the persons using the computer. The Government couches its description of this technique in terms of `photo monitoring,’  as opposed to video surveillance, but this is a distinction without a difference. In between snapping photographs, the Government will have real time access to the camera's video feed. That access amounts to video surveillance.

In re Warrant, supra.  

He noted that, in U.S. v. Biasucci, 786 F.2d 504 (U.S. Court of Appeals for the Second Circuit 1986), the federal appellate court held that video surveillance warrants have to satisfy the requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S. Code §§ 2510–2520, which governs traditional wiretaps.  In re Warrant, supra.  For a checklist of those requirements, check out this site.  Basically, to obtain a wiretap warrant, an officer has to also provide

(1) a factual statement that alternative investigative methods have been tried and failed or reasonably appear to be unlikely to succeed if tried or would be too dangerous; (2) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates; (3) a statement of the duration of the order, which shall not be longer than is necessary to achieve the objective of the authorization nor, in any event, longer than 30 days, (though extensions are possible); and (4) a statement of the steps to be taken to assure that the surveillance will be minimized to effectuate only the purposes for which the order is issued.

In re Warrant, supra.  

He found the Government’s application for this warrant failed to satisfy requirements (1) and (4).  In re Warrant, supra.  As to (1), the application for the warrant did not explain why other methods were unlikely to succeed and/or would be dangerous.  In re Warrant, supra.  And this, according to the opinion, is what the application said about (4) -- minimization:

`Steps will be taken to assure that data gathered through the technique will be minimized to effectuate only the purposes for which the warrant is issued. The software is not designed to search for, capture, relay, or distribute personal information or a broad scope of data. The software is designed to capture limited amounts of data, the minimal necessary information to identify the location of the TARGET COMPUTER and the user of TARGET COMPUTER.’

In re Warrant, supra.  

The judge found that “the breadth of data authorized for extraction in the proposed warrant” (see above) “fatally undermined” the Government’s assurances that it the software would “capture only limited amounts of data” from the Target Computer.  In re Warrant, supra.  He also noted that “given the unsupported assertion that the software will not be installed on `innocent’ computers or devices, there remains a non-trivial possibility that the remote camera surveillance may well transmit images of persons not involved in the illegal activity under investigation.”  In re Warrant, supra.  

He therefore denied the Government’s application for the warrant . . . which does not mean that it cannot (i) try again with this judge and/or (ii) try again with another federal judge.  In re Warrant, supra.  

Wednesday, April 24, 2013

“Possessing Criminal Tools”

As I noted in a post I did some years ago, many (if not all?) U.S. states outlaw the possession of “burglar’s tools” . . . on the premise that possessing burglar’s tools is basically a step toward committing the crime of burglary. 

As I explained in that post, these statutes are predicated on the same rational the law uses to criminalize an attempt to commit a crime, e.g., that by preparing to commit the crime you have demonstrated that you are “dangerous”.  Since you have, inferentially, demonstrated that you are dangerous, so the theory goes, it is better to let law enforcement arrest you before you commit the crime and charge you with the lesser offense of attempt . . . rather than having to stand around and wait until you commit burglary, homicide or whatever.

This post is in a sense a follow-up to the burglar’s tools post.  I very recently discovered that the state of Ohio has what seems to be a similar, but much broader statute.  Section 2923.24(A) of the Ohio Revised Code states that “[n]o person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally.”  Section 2923.24(B)(2) is one of several sections that define what “constitutes prima-facie evidence of criminal purpose” under § 2923.24(A).  Specifically, § 2923.24(B)(2) says the “[p]ossession or control of any substance, device, instrument, or article designed or specially adapted for criminal use” constitutes such evidence. 

That brings us to Joseph Bates, whom an Ohio jury convicted of “numerous offenses including identity fraud, menacing by stalking, and possessing criminal tools.”  State v. Bates, 2013 WL 1289720 (Ohio Court of Appeals 2013).  After he was sentenced to “a four-year term of community control”, Bates appealed.  State v. Bates, supra.

Basically, the charges arose from a relationship gone awry:  The opinion says Bates met June Fry in 2005, at an auction, and developed a very close relationship . . . which “began to deteriorate [by mid-summer 2008] as a result of frequent disagreements.” State v. Bates, supra.  The opinion also notes that “[s]oon after the relationship started `slowing down,’ June fell victim to a number of unfortunate events”, which included “prank phone calls” from a phone number June suspected belonged to Bates.  State v. Bates, supra. 

“In addition to the prank phone calls, June noticed a three-inch spike in one of her tires on her personal vehicle on the morning of November 1, 2008” and when she went on a short trip a month later, an outside faucet at her home had been sabotaged, which resulted in the destruction of the pump that fed the faucet.  State v. Bates, supra.  There were other, similar “pranks”, including anonymous reports of health code violations about her business, which interfered with June’s ability to operate normally.  State v. Bates, supra.

While these events were taking place, June and [her daughter] Megan began to receive multiple mailings, telephone calls, and emails from firms that were responding to requests for services that were made on behalf of June and Megan using their personal information. June and Megan . . . were not involved in making the requests, nor did they authorize anyone, including Bates, to make the requests for them.

These communications came from law firms, debt relief agencies, colleges, magazines, and even adult entertainment firms. Upon further investigation, June discovered that the IP address from the computer that requested these services was visible on some of the emails. She subsequently reported these events to the police.

The police subpoenaed the name under which the IP address was registered. Pursuant to that subpoena, the police were informed by an internet service provider that the IP address on the emails came from Bates' Gateway laptop computer. Consequently, the Bowling Green Municipal Court issued a search warrant for Bates' laptop.

After securing the laptop, Deputy Steven Mueller searched [it] and discovered it was used to visit numerous websites matching the emails June received. In addition, Mueller's search of the computer's internet browsing history revealed that Bates had searched for health departments and information about June and Megan, prank calls, and how to hide an IP address.

State v. Bates, supra.

All of this led to Bates’ being charged with, and convicted of, the crimes noted above.  State v. Bates, supra.  He made several arguments on appeal, as to why his convictions on some/all of the charges should be reversed, one of which concerned the possession of criminal tools offense.  State v. Bates, supra.

On appeal, Bates argued that his conviction for possessing criminal tools – i.e., the laptop – was “not supported by sufficient evidence”.  State v. Bates, supra. In other words, he claimed the evidence presented by the prosecution did not prove beyond a reasonable doubt that he committed the crime of possessing criminal tools by having his laptop in his possession.  State v. Bates, supra. For more on what is involved in making that argument, check out this source.

The argument arises from what the prosecution has to prove to convict someone of this crime.  The model Ohio Jury Instruction on this offense tells jurors that

[t]he defendant is charged with possessing criminal tools. Before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the day of , , and in County, Ohio, the defendant (possessed) (had under his/her control) a (substance) (device) (instrument) (article) with purpose to use it criminally.

2 Ohio Jury Instructions CR 523.24.

The Court of Appeals did not buy Bates’ argument:

The criminal tool Bates was alleged to have possessed was the laptop computer. To support that conviction, the state established that the computer belonged to Bates. Further, the state used the computer analysis report to show that the computer was used to commit the identity fraud offenses. While Bates testified that the computer was not in his possession at the time of the offenses, his testimony was largely uncorroborated and contradicted by June's testimony.

State v. Bates, supra. 

Before I comment on the possessing criminal tools offense, as applied to technology, I need to note the other Ohio case I found that also involves such a conviction.  In State v. Barnett, 2012 WL 3553623 (Ohio Court of Appeals 2012), Christofer Eugene Barnett was convicted of several counts of importuning a child to engage in sexual activity, attempted importuning and possessing criminal tools, and appealed his conviction.  State v. Barnett, supra. 

This case began when Georgina Marie Osborn gave her then-nine-year-old daughter a cell phone for her ninth birthday.  State v. Barnett, supra.  A few months later, Osborn was checking her daughter’s cell phone when she found text messages from a number she did not recognize; when she asked her daughter about it, the little girl said she did not know “who was testing her”, but she had sent a return text saying “she was `twenty of [sic] twenty two.’” State v. Barnett, supra.  Osborn held on to the phone for a few days and “`started getting messages that . . . [her] nine year old daughter should not be getting on her phone.’”  State v. Barnett, supra. 

Osborn took the phone to the Kenton Police Department and gave it to Detective Beach, whom she also gave permission to use her daughter's cell phone. State v. Barnett, supra.  Beach “started texting the unknown person to initiate a conversation”, and he succeeded. State v. Barnett, supra. 

Beach saved the texts and the photo Barnett sent of himself, which Beach was able to identify; Beach also subpoenaed Verizon “to preserve the text messages.” State v. Barnett, supra.  The messages solicited the recipient, whom Barnett presumably believed was the nine-year-old girl, to engage in various sex acts.  State v. Barnett, supra. 

Like Bates, Barnett argued, on appeal, that his conviction for possessing criminal tools was not supported by evidence sufficient to prove the elements of the crime beyond a reasonable doubt.  State v. Barnett, supra.  Like the Bates court, this Court of Appeals did not agree:

The State . . . presented sufficient evidence that Barnett used his cell phone to send the text messages and commit the crime of importuning; and therefore, the State presented sufficient evidence that Barnett possessed a criminal tool; to wit: the cell phone.

Aside from the testimony concerning the text messages sent to the alleged minor's cell phone, Detective Beach testified that law enforcement seized a cell phone from Barnett during his arrest that matched the phone number of the person texting the alleged minor. 

State v. Barnett, supra. 

There are a number of similar convictions in Ohio, some involving computers, others involving cell phones.  The issue I wondered about is whether it is reasonable to treat either as a “substance, device, instrument, or article designed or specially adapted for criminal use”, as defined by Ohio Revised Code § 2923.24(B)(2). 

It looks like the “designed or specially adapted for criminal use” language comes from or is based upon language in statutes that make it a crime to possess burglar’s tools. 

The Maine provision on that crime, for example, says someone is guilty of possessing burglar’s tools if that person

[p]ossesses . . . any tool, implement, instrument or other article that is adapted, designed or commonly used for advancing or facilitating crimes involving unlawful entry into property or crimes involving forcible breaking of safes or other containers or depositories of property, including, but not limited to, an electronic device used as a code grabber or a master key designed to fit more than one lock, with intent to use such tool, implement, instrument or other article to commit any such criminal offense. . . .

My guess is that the premise that specific items qualify as items designed or commonly used to commit burglary seldom becomes problematic when burglary, as such, is as issue because the tools used to commit burglary are likely, as a matter of fact, to fall within these definitions.

What bothered me when I read the Bates case, and then the Barnett case is whether it is reasonable to at least implicitly assume that a laptop computer and/or a cell phone is actually a device “designed or specially adapted for criminal use”.  It seems to me, and I could be wrong, that laptops and cell phones are designed and/or specially adapted for more general, and generally lawful, uses. 

If I am right about that, then it seems that these statutes and/or their accompanying definitions of “criminal tools” need to be revised to narrow the definitions so they more narrowly target the items at issue.  Otherwise, and again I could be wrong, it seems as if a prosecutor could add the possessing criminal tools charge to ANY case in which the defendant used a cell phone or a laptop . . . and, who knows?, maybe add two counts of violating the statute if someone used BOTH a cell phone and a laptop in committing the crime.  Alternatively, it would also seem to assume that, if a prosecutor were so inclined, he/she could prosecute someone for merely possessing a computer or a cell phone . . . on the premise that either/both constitutes a criminal tool under the Ohio statute cited above.