After a
federal grand jury indicted him on “charges of receiving and possessing child
pornography” Shawn David Coulter filed a motion to suppress evidence. U.S. v.
Coulter, 2014 WL 229199 (U.S. District Court for the Western District of Missouri 2014). The press release you can find here, and the news story you can
find here, provide more information on the charges and the facts in the
case. The opinion does not cite the
statute(s) under which he was charged, but I assume it was 18 U.S. Code § 2252A.
The U.S. District Court Judge who has the case referred the motion to suppress to a U.S. Magistrate Judge pursuant to 28 U.S. Code § 636(b), which authorizes a District
Court Judge to “designate a magistrate judge to conduct hearings . . . and to
submit to a judge of the court proposed findings of fact and recommendations for
the disposition, by a judge of the court” of motions of various types,
including motions to suppress. U.S. v.
Coulter, supra.
The U.S.
Magistrate Judge began his “Report and Recommendation” to the U.S. District
Judge who has the case by outlining the facts that led to Coulter’s being
charged:
On April 5, 2009, Jane Crisp, with the assistance of her
adult son, Justin, determined that Coulter, who was residing at Crisp's home,
had downloaded images and videos of child pornography onto her computer, which
was kept and used in her minor son's bedroom. Crisp's adult son Justin
discovered the images on the computer hard drive, which he routinely checked at
Crisp's request for downloaded material that might need to be removed or
deleted.
Although the file containing the images was labeled `Shawn's
files,’ and was protected by a password, Justin was able to bypass the password
security. Justin attempted to delete some of the images, which included a video
of a thirteen-year-old girl performing oral sex on an adult male, who was
identified as the girl's father.
At the time of Justin's search, an external hard drive
belonging to Coulter was present, but disconnected from Crisp's CPU tower.
After Justin discovered the images, Crisp, Justin, and Crisp's minor son left
the residence. When they returned, Coulter was in the house. Crisp contacted
two friends, Kevin Sharp and Harold Sword. Both men arrived at the residence
and advised Crisp to contact the police.
She telephoned the Lebanon, Missouri, Police Department and
reported that a male subject (Coulter) at her residence had downloaded child
pornography on her computer. She requested that the police remove him from her
residence and arrest him.
U.S. v. Coulter, supra.
When the
police arrived, Crisp
granted entry to Officers Wayne Merritt and Kendall
Blackburn. Crisp's 13–year–old son, Sharp, Sword, and Coulter were also
present. In the presence of the officers, Crisp confronted Coulter about the
child pornography on her son's computer, but Coulter `did not say much.’ Crisp
then permitted Merritt to enter her minor son's bedroom, where the computer was
located.
Merritt attempted to retrieve the images from the computer,
without success. Sword, who was also present in the room, offered that he could
probably find the images on the hard drive. Merritt agreed, and Sword found the
same video clip of a 13–year–old female performing oral sex on an adult male.
At the time of Merritt's search, the external hard drive had been reconnected
to the CPU tower. Merritt testified that he perceived the external hard drive
and the tower to be Crisp's `computer.’
U.S. v. Coulter, supra.
Merritt
then too the
tower and external hard drive out of the house. Merritt's
report notes that Officer Blackburn arrested Coulter for possession of child
pornography and read him his constitutional rights. As Merritt was removing the
computer, Crisp told him `the tower was hers,’ and she wanted it back.
Merritt took the tower and the hard drive to the Lebanon
Police Department. [Coulter] was read his Miranda
rights. Robinson interviewed Coulter at the station and determined that the
external hard drive was owned by Coulter. Coulter later gave written consent
for police to search the hard drive. Forensic examination of the hard drive
revealed over 120 images and over 60 videos of child pornography.
U.S. v. Coulter, supra.
The Magistrate Judge began his analysis
of Coulter’s motion to suppress by noting that
[t]he 4th Amendment
protects citizens from unreasonable searches and seizures by the
government. See U.S. v. Va Lerie, 424 F.3d 694 (U.S. Court of Appeals for the 8th Circuit 2005). A 4th Amendment search occurs `when an expectation of privacy that society is prepared to consider reasonable is
infringed.’ U.S. v. Jacobsen, 466 U.S. 109 (1984). Only
governmental, not private, searches and seizures are protected by the 4th
Amendment. U.S. v. Jacobsen, supra.
Private intrusions to
privacy do not violate the 4th Amendment unless the private party is acting as
an `instrument or agent’ of the government, a question which turns on `the
degree of the government's participation in the private party's activities’
which is resolved in light of the totality of the circumstances in the
case. U.S. v. Wiest, 596 F.3d 906 (U.S. Court of Appeals for
the 8th Circuit 2010) (quoting Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989)).
U.S. v. Coulter, supra. For more
on private searches, check out this prior blog post.
The Magistrate Judge then found that Crisp’s
original search of
the files, with the assistance of her son, Justin, was not a governmental
search because Crisp was not acting as an `instrument or agent’ of the
government. She testified in state court that she periodically checked the
computer, which was primarily used by her minor son, for downloaded material
that needed to be removed. After viewing the pornographic video on her minor
son's computer, she contacted the Lebanon Police Department and reported it.
U.S. v. Coulter, supra. As this
article notes, the case was originally filed in state court but was later taken over
by federal authorities.
Next, he
took up the issue of whether Crisp had the authority, under the 4th
Amendment, to consent to the search of the CPU.
U.S. v. Coulter, supra. The Magistrate Judge noted that since Crisps’s
original search of the tower, or CPU,
was a private, not governmental, search, the Court turns to the question
whether Crisp had the authority to consent to the search and seizure of the CPU
and [Coulter’s] hard drive. If a party consents to a search, no warrant is
required. See U.S. v. Farnell, 701 F.3d 256 (U.S. Court of Appeals for the 8th Circuit 2012). A third party having `joint access or
control’ over mutually-used property may lawfully consent to a warrantless
search of that property. See U.S. v. Clutter, 674 F.3d
980 (U.S. Court of Appeals for the 8th Circuit 2012).
U.S. v. Coulter, supra. For more
on authority to consent to the search of property, check out this prior blog post.
Here, Coulter argued that Crisps’ consent to search the
`computer’ did not apply to the password-protected
folder called `Shawn's files,’ even though it was located on Crisp's CPU tower.
[Coulter] maintains that the password protection of the folder `created an
expectation of privacy for the person possessing th[e] password’. . . .
Both
Crisp's adult son and Crisp's friend Sword were able to override the password
protection on the folder `Shawn's files’ without difficulty, and were able to
access images stored therein. Crisp's adult son periodically checked the
computer at Crisp's request to see if anything had been downloaded that needed
to be removed.
Crisp's ability to easily access the
files supports a finding that Crisp had common authority over the files, even
though they were password-protected. Both Justin and Sword were able to bypass
the password protection over `Shawn's files’ with little difficulty. As owner
and user, Crisp had authority to consent to a search of the CPU tower. Moreover,
Merritt testified he was unaware that the files were password protected.
U.S. v. Coulter, supra.
The
Magistrate Judge then took up Coulter’s argument that “Crisp's authority to
consent did not extend to the seizure of the external hard drive owned by
Coulter, but used with Crisp's CPU.” U.S. v. Coulter, supra. He began his analysis of this argument by
noting that a 4th Amendment “seizure occurs `when there is some
meaningful interference with an individual's possessory interests in that
property.’ U.S. v. Clutter, 674 F.3d 980 (U.S. Court of Appeals for the 8th Circuit 2012) (quoting U.S. v. Jacobsen, supra).” U.S. v. Coulter, supra.
The judge
then explained that
[n]o party, not even Coulter, who was in the home at the time
of the seizure, made a meaningful distinction to the police between the CPU and
the hard drive. Merritt testified that he believed the seized components were
all part of the same computer system. Moreover, law enforcement had not been
informed by anyone present that the external hard drive was owned by [Coulter]
and the tower by Crisp.
[Coulter] argues that Crisp's statement to Officer Merritt at
the time of the seizure that she wanted `the tower’ back, was sufficient to
indicate Crisp owned the tower, but not the external hard drive. [This judge]
recommends rejection of this argument.
Merritt testified that at the time he seized the CPU and hard
drive he did not know the hard drive belonged to Coulter. After Corporal
Robinson interviewed Coulter at the station, she informed Merritt that the hard
drive belonged to Coulter and that he would probably need to get a warrant or [Coulter’s]
consent before police could perform a forensic search of the hard drive. Merritt
took a consent form to [Coulter] at the Laclede County Jail. Coulter signed it,
indicating he consented to a search.
U.S. v. Coulter, supra.
As to
Crisp’s authority to consent to the seizure of the external hard drive, along
with the tower, the judge explained that when a third party
lacks `actual’ or `common authority’ to consent to a search
of jointly-used property, it is reasonable for law enforcement officers to rely
upon the third-party's `apparent authority; to consent. U.S. v. Clutter, supra.
Law enforcement reasonably relied on Crisp's apparent
authority to consent to the search. The computer was in Crisp's home, in her
minor son's bedroom. Her minor son regularly used the computer. Crisp routinely
had her older son monitor the computer for any inappropriate material. Crisp,
with the assistance of her friend, showed Merritt the video depicting sexual
relations between a 13–year–old girl and an adult male. This was the same video
Crisp and her adult son Justin discovered prior to contacting law enforcement.
Merritt testified that he was not aware that the
files were password protected, or that they were contained in a folder labeled
“Shawn's Files.” The record does not show that either Sword or Crisp advised
Merritt that he would have to overcome a password protection. Moreover, at that
time Coulter's external hard drive was connected to the CPU tower. Based upon
the totality of the circumstances presented to Merritt, it was reasonable for
him to conclude that Crisp had control over the computer, including the hard
drive, and its contents.
U.S. v. Coulter, supra.
The
Magistrate Judge also pointed out that
[a]s soon as Robinson learned, post-seizure, that the hard
drive was separate from the CPU tower, she informed Merritt, who then obtained [Coulter’s]
specific consent to search the external hard drive. It was reasonable for the
officer to rely on Crisp's consent to take the computer, and it was reasonable
for the officer to believe that the hard drive and the tower were part of the
same computer system.
U.S. v. Coulter, supra.
He
therefore
respectfully recommend[ed] that Merritt reasonably relied on
Crisp's apparent authority over the entire computer system, which validates his
seizure of both the CPU and the hard drive. Prior to search of the hard drive,
officers obtained Coulter’s written consent to search. Accordingly, the Court recommends that the
evidence obtained from the CPU and external hard drive should not be excluded.
U.S. v. Coulter, supra.
The U.S.
District Court Judge who has the case later reviewed the Magistrate Judge’s
report and recommendation and adopted the Magistrate Judge’s recommendation
that the motion to suppress be denied. U.S. v. Coulter, supra.
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