The Cell Phone, the “Strip Frisk” and "Promoting Prison Contraband"

After a jury convicted Barry Green of “the crime of promoting prison contraband in the first degree”, he appealed.  People v. Green, 2014 WL 1809616 (New York Supreme Court – Appellate Division 2014). Green “was sentenced as a second felony offender to a prison term of 3 to 6 years, to be served consecutively to the sentence he then was serving.”  People v. Green, supra.

This, according to the opinion, is how the prosecution arose:

On September 9, 2009, a correction officer at Woodbourne Correctional Facility in Sullivan County, where [Green] then was incarcerated, was making his daily rounds when he observed a green towel covering the window of [Green’s] cell. As the correction officer paused to investigate, he overheard [Green] -- the sole occupant of the cell -- engaging in what he characterized as a one-sided, business-like conversation.

After verifying that the surrounding cells were empty, the correction officer notified a sergeant who, in turn, ordered [Green] be removed from his cell and that a search thereof be conducted.

While [his] cell was being searched, the correction officer and the sergeant escorted [Green] to the facility's recreation room and told him to sit down on a chair. [Green] indicated he preferred to stand and, when the sergeant insisted that he sit, [he] complied by sitting on the edge of the chair in what was described as a `loung[ing] position.’ After being advised that the search of [his] cell uncovered a cell phone charger on his bed, together with a password and a collection of phone numbers stuffed in the toe of a shoe, the sergeant ordered a strip frisk of [Green].

As [Green] was being escorted from the recreation room for the strip frisk, the sergeant observed that [he] walked with `an unusual gait.’ When [Green] thereafter was asked to remove his underwear, he initially hesitated but ultimately pulled out a cell phone that had been hidden in his buttocks. According to an investigator with the Office of Inspector General for the Department of Corrections and Community Supervision (hereinafter DOCCS), [Green] subsequently admitted that he purchased the cell phone for $500 in order to speak with his wife -- with whom he purportedly was experiencing marital problems.

People v. Green, supra.  In a footnote, the court explains that the “The password discovered in defendant's cell unlocked this phone.”  People v. Green, supra. 

Finding the phone led, as noted above, to the charge against Green, to his trial and to his conviction by the jury.  People v. Green, supra.  On appeal, he argued that

there is legally insufficient evidence to support his conviction of promoting prison contraband in the first degree -- specifically, that the People failed to establish that the cell phone in question constituted dangerous contraband. Insofar as is relevant here, `[a] person is guilty of promoting prison contraband in the first degree when . . . [b]eing a person confined in a detention facility, he [or she] knowingly and unlawfully . . . obtains or possesses any dangerous contraband’ (New York Penal Law § 205.25[2]).

`Dangerous contraband’ . . .is defined as `contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein’ (New York Penal Law § 205.00[4]).

There is no dispute that [Green] was confined to a detention facility in September 2009, and he conceded both that he possessed a cell phone on the day in question and that no one -- inmates, visitors, lawyers or even facility personnel -- is allowed to bring a cell phone into a correctional facility. As various correction officials confirmed that cell phones were not permitted within the facility and, more to the point, that [Green] was not authorized to possess such a device, there is no question that [he] possessed `contraband’ within the meaning of [New York] Penal Law § 205.00(3). 

Hence, the narrow question presented for our consideration is whether there is legally sufficient evidence to support the jury's finding that defendant possessed dangerous contraband within the meaning of [New York] Penal Law §§ 205.00(4) and 205.25(2).

People v. Green, supra (emphasis in the original).  In a footnote, the court explains that, under New York Penal Law § 205.00(3), contraband is “defined as ‘any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order’”.   People v. Green, supra. 

The Supreme Court – Appellate Division explained that the New York Court of Appeals

has instructed that `the test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility's institutional safety or security’ (People v. Finley, 10 NY3d 647 [New York Court of Appeals 2008]. . . .)  

Notably, `the distinction between contraband and dangerous contraband’ does not turn upon `whether an item is legal or illegal outside of prison . . . [as][i]t is obvious that an item, such as a razor, may be perfectly legal outside prison and yet constitute dangerous contraband when introduced into that unpredictable environment’ (People v. Finley, supra).

Similarly, as our case law makes clear, the item in question need not be inherently dangerous in order to qualify as dangerous contraband. Indeed, although weapons are perhaps the most commonly recognized source of dangerous contraband in a prison setting, . . . courts have -- applying the Finley test -- reached the very same conclusion with respect to other items made, obtained or possessed by prison inmates, including illegal quantities of drugs, . . .  a disposable Bic lighter . . . and hand-drawn maps or knotted links of wire that could be used to facilitate an escape. . . .  

Although the majority in Finley did not expressly address this issue, Judge Pigott opined in his concurrence/dissent that, `[i]f the contraband at issue is not inherently dangerous . . ., the People must present specific, competent proof from which the trier of fact may infer that use of the contraband could potentially create a dangerous situation inside the facility’. (People v. Finley, supra [Pigott, J., concurring in part and dissenting in part]).

 As a cell phone admittedly is not an inherently dangerous item, the question is whether the People adduced sufficient proof to establish the cell phone's potential to be used in such a pernicious manner as to elevate it to the level of dangerous contraband.

People v. Green, supra (emphasis in the original).  

The court then applied these principles to the Green case:

Here, the supervising superintendent for the seven correctional facilities (including Woodbourne) . . . -- a DOCCS' employee with 33 years of experience working inside of prisons -- testified as to the procedures governing the inmate `call home program.’

Specifically, the superintendent testified that each inmate is allowed to list up to 15 individuals to whom he or she may make phone calls during certain designated hours; additional restrictions are imposed with respect to who may be included on each inmate's phone list, and inmates are not permitted to place calls to wireless customers.

As a security measure, inmate phone calls are recorded and/or monitored, and the superintendent testified that phone privileges are an incentive designed to aid in maintaining good order within each secure detention facility. For these reasons, the superintendent testified, no one -- including a correction officer -- is permitted to bring a cell phone into a state correctional facility, as `[t]he primary concern is that [it] would get into the hands of an inmate.’

People v. Green, supra. 

The Supreme Court – Appellate Division also explained that

[a]s to the specific threats posed by the introduction of a cell phone into a prison environment, the superintendent testified that an inmate in possession of a cell phone has the ability `to bypass some of the protections that are in place to carry out [DOCCS'] mission of public safety’ -- most notably, the procedures governing the recording and monitoring of inmate phone calls -- thereby posing `a significant security risk” to the facility. 

In this regard, the superintendent acknowledged that `criminal activity is carried on from . . . [inside correctional] institution[s] even on phones that are monitored,’ and further testified that an inmate's ability to bypass established security procedures and systems by using a cell phone only enhances the potential for an inmate to develop and/or execute `an escape plan,’ orchestrate an `injury’ to someone inside or outside of the facility and `carry[ ] on criminal activity from inside the [correctional] institution.’

The potential for such endeavors, in turn, presents `a significant risk, . . . either to the public or to the [particular] institution,’ and it is for this reason that a cell phone -- an item that, the superintendent testified, is `deemed in demand’ by inmates -- is viewed as `a significant item of contraband’ within a prison setting.

People v. Green, supra.  In a footnote, the court also notes that “he investigator who interviewed [Green] after the discovery of the cell phone testified that defendant admitted that he purchased the cell phone because “he didn't want the facility to monitor his calls.”  People v. Green, supra. 

The Supreme Court – Appellate Division then found that

[b]ased upon our review of the record as whole -- particularly the detailed and specific testimony offered by the supervising superintendent -- we are satisfied that the People met their burden of establishing that the cell phone seized from defendant constituted dangerous contraband under the test set forth in Finley. 

Indeed, this matter is analogous to the Fourth Department's decision in People v. Wilson, 56 AD3d 1266 [Supreme Court – Appellate Davison 2008], wherein the dangerous contraband consisted of a drawing of the recreation yard and a portion of the jail in question.

Applying the Finley analysis, the Fourth Department concluded that `[i]tems that facilitate an escape are properly considered dangerous contraband because they endanger the safety or security of a facility’. People v. Wilson, supra. That same conclusion is compelled by the proof adduced here. To be sure, neither the piece of paper at issue in Wilson nor the cell phone at issue here is inherently -- or even obviously -- dangerous in and of itself, but Finley imposes no such requirement.

Rather, all that is required under Finley is that an item's `particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility's institutional safety or security’.  People v. Finley, supra.

As the record before us contains specific, competent proof from which the jury reasonably could draw such inferences and conclude that defendant's use of a cell phone would likely create a dangerous situation inside the correctional facility where he was incarcerated, we discern no basis upon which to disturb the conviction. 

People v. Green, supra. 

In a footnote, the court pointed out that “some states have elected -- either by statute or regulation -- to expressly classify cell phones as dangerous contraband (see e.g. Texas Penal Code Ann § 38.11[a][3]; 15 Cal Admin Code § 3006[a]”.  People v. Green, supra. 

And a federal regulation – 28 Code of Federal Regulations § 541.3 – makes possessing “a `portable telephone, page, or other electronic device’ as a prohibited act of the `greatest severity’”.  People v. Green, supra. 

The court therefore affirmed Green’s conviction and sentence.  People v. Green, supra. The news story you can find here provides a little more information about Green and the case.

Obstruction of Justice, DriveScrubber and Emails

As a recent opinion from a federal District Court Judge who sites in the U.S. District Court for the Eastern District of California explains, in a “Superseding Indictment, the government charged defendant Andrew Katakis with violation of the Sherman Antitrust Act, 15 U.S. Code § 1; conspiracy to commit mail fraud, 18 U.S. Code § 1349; and obstruction of justice, 18 U.S. Code § 1519.”  U.S. v. Katakis, 2014 WL 1884213 (2014).  You can, if you are interested, read more about the charges and the trial in the press release you can find here.

After “a twenty-three-day . . . trial,” the jury convicted Katakis on the Sherman Antitrust and obstruction of justice charges “but was unable to reach a verdict on the conspiracy to commit mail fraud charge.”  U.S. v. Katakis, supra.  Katakis then filed a motion for a judgment of acquittal on the obstruction of justice charge pursuant to Federal Rule of Criminal Procedure 29.  U.S. v. Katakis, supra.  As Rule 29(c) explains, once the jury returns a guilty verdict, the defendant has roughly fourteen days in which to file a motion for a judgment of acquittal; if the jury returned a guilty verdict, the judge can “set [it] aside . . . and enter an acquittal.”  Federal Rule of Criminal Procedure 29(c). 

The judge began his analysis of Katakis’ Rule 29 motion by explaining that the superseding indictment charged and the

evidence at trial established that the government began an investigation in 2009 of anti-competitive conspiracies between Katakis and other purchasers at public foreclosure auctions in San Joaquin County, California. As part of that investigation, the government subpoenaed bank records for Katakis and his company from Oak Valley Community Bank on August 27, 2010. In response to the subpoena, the bank sent Katakis a letter on September 1, 2010 informing him of the subpoena and providing him with a copy of it. The Superseding Indictment charged that Katakis violated § 1519 `[i]n or about September 2010’ when he `deleted and caused others to delete electronic records and documents’ and `installed and used and caused others to install and use a software program that overwrote deleted electronic records and documents so that they could not be viewed or recovered.’ . . .

U.S. v. Katakis, supra. 

He also noted that the prosecution “primarily, if not exclusively,” pursued the

obstruction of justice charge by seeking to establish that Katakis purchased and ran a program called DriveScrubber 3 (`DriveScrubber’) on at least four computers and the company mail server shortly after he received a copy of the subpoena.

According to the initial testimony from the government's expert, the program successfully deleted emails on Katakis' Dell computer, Steve Swanger's Asus computer, and the company mail server. To rebut this evidence, Katakis offered expert testimony that discredited the testimony from the government's expert. Katakis timely moved for a judgment of acquittal pursuant to Rule 29(b) and, during argument, the government indicated it would pursue the obstruction of justice charge based on [his] alleged manual deletion of emails independent of running DriveScrubber.

U.S. v. Katakis, supra. 

According to the document you can find here, Steve Swanger was a “cooperating witness” in the investigation/prosecution.  U.S. v. Katakis, et. al., Corrected Notice of Motion and Memorandum of Points and Authorities 2 (May 5, 2014).  The reference to Rule 29(b) in the above-quoted paragraph refers to the fact that, as was his right, Katakis filed a motion for a judgment of acquittal before the jury returned a verdict; and, as the rule allows, the judge reserved ruling on the motion until after the jury had returned its verdict.  U.S. v. Katakis, supra.  In this opinion, the judge is issuing his ruling on the motion.  U.S. v. Katakis, supra. 

He began his ruling by noting that under Rule 29, a must enter a judgment of acquittal

`of any offense for which the evidence is insufficient to sustain a conviction.’ [Rule 29(a).] `A motion for Judgment of Acquittal is reviewed on a sufficiency-of-the-evidence standard.’ U.S. v. Graf, 610 F.3d 1148 (U.S. Court of Appeals for the 9th Circuit 2010) (quoting U.S. v. Stoddard, 150 F.3d 1140 (U.S. Court ofAppeals for the 9th Circuit 1998)). `Under that standard, evidence supports a conviction, if, viewed in the light most favorable to the government, it would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.’  Id.  U.S. v. Graf, supra (quoting U.S. v. Stoddard, supra).

For the jury to have found Katakis guilty of obstruction of justice, it had to find that the government proved each of the following elements beyond a reasonable doubt:

[1] that defendant Katakis knowingly altered, destroyed, or concealed electronic records or documents; [2] that defendant Katakis acted with the intent to impede, obstruct, or influence an investigation that he either knew of or contemplated; and [3] that the investigation was about a matter by or within the jurisdiction of the United States Department of Justice or Federal Bureau of Investigation.

U.S. v. Katakis, supra. 

The judge began his analysis of Katakis’ motion by noting that, “[u]nder the first element” set out above, “the government . . . had to show that Katakis destroyed or concealed electronic documents or records, not merely that he attempted or even intended to do so.”  U.S. v. Katakis, supra.  He noted that the prosecution’s theory in

support of the obstruction of justice charge focused on ten Microsoft Outlook emails primarily between Katakis and Swanger sent between September 9, 2008 and July 20, 2009. . . . The government established that it was unable to find any of the ten emails on Katakis' Dell computer, Swanger's Asus computer, or the mail server. . . . All ten emails were found, however, in the deleted items bin on Swanger's Dell computer. . . .

The government now argues that the jury's verdict can be upheld based on one of three theories: (1) Katakis deleted the ten emails on his Dell computer, Swanger's Asus computer, and the mail server and then overwrote them using DriveScrubber; (2) Katakis manually deleted the ten emails on his Dell computer, Swanger's Asus computer, and the mail server; or (3) Katakis manually moved the ten emails to the deleted items folder in Swanger's Dell computer. The court has no doubt that the government . . . resorted to the second and third theories after the first theory failed. In its closing argument, the government told the jury:  `All you have to do is find that Andrew Katakis hit the delete button. That's it. It's that simple.’ . . .  

U.S. v. Katakis, supra. 

The judge analyzed each theory, in the order set out above.  U.S. v. Katakis, supra.  As to the DriveScrubber theory, he explained that the prosecution introduced

sufficient evidence for a jury to find Katakis purchased DriveScrubber on September 3, 2010 and . . . installed and ran it on his Dell computer on September 3, on Swanger's Asus and Dell computers and the mail server on September 4, and on another computer on September 15. . . . The undisputed evidence at trial was that DriveScrubber overwrites and therefore permanently deletes files on the free space of a computer.

To prove Katakis used DriveScrubber to overwrite the emails, the government offered the testimony of FBI Special Agent/Computer Forensic Examiner Scott Medlin. Medlin opined that the ten emails were no longer on Katakis’ Dell computer, Swanger's Asus computer, or the mail server because they had been double-deleted and then overwritten by DriveScrubber. Medlin explained that this could occur if a user deletes an email in Outlook, then double-deletes the email by deleting the email from the Outlook deleted items bin. According to Medlin's testimony . . . , when an Outlook email is double-deleted, the email is sent to the free space of the computer. . . . Because none of the ten emails could be found on Katakis' Dell computer, Swanger's Asus computer, or the mail server, and Katakis had installed DriveScrubber on those devices, Medlin concluded Katakis must have double-deleted the emails and then used DriveScrubber to overwrite them in the free space. . . .

U.S. v. Katakis, supra. 

The judge also explained, though, that in presenting the defense’s case, Katakis

offered expert testimony from Donald Vilfer that discredited Medlin's testimony and the government's theory. Vilfer testified that, because the computers and mail server at issue were part of a Microsoft Exchange Database, emails were sent directly to the Exchange Database upon double-deletion. . . . Vilfer explained that DriveScrubber could not have deleted any of the double-deleted emails from the free space because, as they were stored in the Exchange Database, they never entered the free space. . . .He further explained that DriveScrubber could not affect a doubledeleted email stored in the Exchange Database unless the entire operating system for a computer or mail server was `scrubbed’ so that nothing remained. . . .

U.S. v. Katakis, supra.  In a footnote, the judge points out that the prosecution “neither suggested nor presented evidence indicating that Katakis scrubbed, or destroyed, the operating systems of the computers or mail server.”  U.S. v. Katakis, supra. 

He then noted that, given Vilfer’s testimony, the prosecution recalled Medlin

in its rebuttal case. Departing from his earlier testimony, Medlin confirmed the accuracy of Vilfer's testimony: that double-deleted Outlook emails on the computers and mail server could not have been affected by DriveScrubber because they were stored in the Exchange Database and never entered the free space on the computers or mail server.

U.S. v. Katakis, supra.  The judge therefore found that a

rational jury could not have found that Katakis destroyed or concealed any of the emails in question using DriveScrubber because the undisputed evidence from both experts at trial was that DriveScrubber could only overwrite emails in the free space of the computers or mail server and the emails never entered the free space.

U.S. v. Katakis, supra. 

He then took up the prosecution’s second theory – that Katakis manually deleted the emails.  U.S. v. Katakis, supra.  He noted that there was “no testimony” at trial about

Katakis manually deleting the emails on his Dell computer, Swanger's Asus computer, or the mail server. Although Swanger testified that he saw Katakis searching for documents prior to running DriveScrubber on his Asus computer, when asked whether he `observe[d] Andrew Katakis deleting any documents,’ Swanger testified: `I wasn't sure if he was-what he was doing. I saw him on [the Asus computer], clicking and moving things around, but I–I didn't-I didn't pay attention closely, on that computer, what it was he was doing.’ . . . Swanger also `wasn't quite sure what was deleted and what wasn't [on the Asus], because [he] didn't have a clear memory of what was there.’ . . . 

The government was thus left to rely on the inference that, because the ten emails in question were not found on Katakis' Dell computer, Swanger's Asus computer, or the mail server, Katakis must have double-deleted them. . . .

U.S. v. Katakis, supra. 

The judge explained that, under Rule 29, he was required to “accept this inference . . .  and assume the jury could have found that Katakis double-deleted the emails on his computer, Swanger's Asus computer, and the mail server” and that “double-deleting an email is sufficient to destroy or conceal the email.”  U.S. v. Katakis, supra.  He noted, however, that even though he made those assumptions, the evidence was still not sufficient to prove Katakis violated 18 U.S. Code § 1519.  U.S. v. Katakis, supra. 

To prove that, the government had to prove, beyond a reasonable doubt, that when “Katakis double-deleted the emails he knew of or contemplated the investigation at that time.”  U.S. v. Katakis, supra.  To establish that, the prosecution argued  that Katakis learned about the criminal investigation when he received a copy of a bank subpoena “on September 1, 2010.”  U.S. v. Katakis, supra.  The judge found, though, that while

there was sufficient evidence for the jury to find that Katakis knew about the investigation in September 2010, there was no evidence from which the jury could have inferred that Katakis double-deleted the emails on a date “reasonably near” September 2010. In fact, there was not even circumstantial evidence from which the jury could have inferred an approximate date when Katakis double-deleted the emails.

U.S. v. Katakis, supra.  He noted that the prosecution did not “even [present] even circumstantial evidence from which the jury could have inferred an approximate date when Katakis double-deleted the emails.”  U.S. v. Katakis, supra.  He found, therefore, that “a rational jury could not have found Katakis violated § 1519 by double-deleting the emails on his Dell computer, Swanger's Asus computer, or the mail server because there was no evidence from which the jury could infer that he did so with the requisite intent to obstruct investigation that he knew of or contemplated.”  U.S. v. Katakis, supra. 

The judge then took up the prosecution’s third theory, which relied on Swanger’s testimony that when Katakis installed DriveScrubber on Swanger’s Dell computer, “he saw Katakis deleting emails on that computer and, when Swanger returned to work on Monday, almost all of the emails were gone from his Dell computer.”  U.S. v. Katakis, supra.  The judge noted that Medlin and Vilfer “testified that the ten emails in question were recovered from the deleted items bin on Swanger's Dell computer.” U.S. v. Katakis, supra.  And he explained that “the government contends that placing the emails in the deleted items bin on Swanger's Dell computer constituted destruction or concealment under § 1519.” U.S. v. Katakis, supra.

The judge pointed out, however, that the “undisputed evidence” at trial was that

deleting an Outlook email places the email in the deleted items bin and the email remains in that folder unless and until a user takes further action. . . . The user can move the email back into his inbox, into a different Outlook folder, or doubledelete the email by deleting it from the deleted items bin. . . . There was sufficient evidence at trial for the jury to find that Katakis deleted the ten emails on Swanger's Dell computer and thereby moved them from the inbox to the deleted items bin. 

U.S. v. Katakis, supra. He also noted that to support a conviction for violating 18 U.S. Code § 1519, the prosecution must have introduced sufficient evidence from which

the jury could find that placing the emails in the deleted items bin destroyed or concealed them. At trial, however, the undisputed evidence was that the ten emails on Swanger's Dell computer were recovered and thus there was no evidence from which the jury could infer that they were destroyed. The government cannot simply rely on the label of `deleting’ when it is undisputed that `deleting’ an email within Outlook simply moves it to another folder where it remains easily accessible.

U.S. v. Katakis, supra. 

He also noted there was no evidence from which a reasonable jury “could infer that placing an email in the deleted items bin conceals it from the government” and that Medlin, “the government's own expert, testified how easy it is to retrieve an Outlook email from a deleted items bin”. U.S. v. Katakis, supra.  So he found that a “rational jury . . . could not find that Katakis violated § 1519 by deleting the emails on Swanger's Dell computer because there was no evidence from which the jury could infer that Katakis destroyed or concealed the emails.” U.S. v. Katakis, supra. 

The judge therefore granted Katakis’ motion for judgment of acquittal under Rule 29 and ordered that the “verdict of guilty against Katakis on Count Three is hereby set aside, and the Clerk is instructed to enter a judgment of acquittal in favor of . . .  Katakis on Count Three of the Superseding Indictment.” U.S. v. Katakis, supra. 

The Girlfriend, the Password Recovery Program and the 4th Amendment

After a federal grand jury returned an indictment charging him with “possession and distribution of child pornography in violation of 18 U.S. Code §§ 2252(a). . . and (b)”, Aron Lichtenberger moved to suppress evidence of child pornography [found] on his laptop.” U.S. v. Lichtenberger, 2014 WL 1924470 (U.S. District Court for the NorthernDistrict of Ohio 2013). 

The District Court Judge who has the case began his analysis of the legal issues involved in the motion to suppress by explaining how the case arose:

On November 26, 2011, in the afternoon, Lichtenberger was with Karley Holmes, his girlfriend, at their shared home in Cridersville, Ohio. They lived there with Holmes's mother, who owned the residence. That day, two friends of Holmes's mother came over to the residence and told both Holmes and her mother that Lichtenberger had been previously convicted of child pornography offenses.

One of the mother's friends then called the police. Several officers, including Douglas Huston, from the Cridersville Police Department came to the residence. Holmes requested that the police escort Lichtenberger off the property because she did not want him living there anymore. Huston determined that Lichtenberger had an active warrant for his arrest for failing to register as a sex offender, arrested him, and removed him from the property.

Later that day, Holmes went into the bedroom she shared with Lichtenberger and retrieved his laptop. At the suppression hearing, she testified that she wanted to access his laptop because [he] `would never let me use it or be near him when he was using it and I wanted to know why.’ . . . The laptop was password protected, but Holmes hacked the laptop by running a password recovery program. She then changed the password.

Once she accessed the laptop, she clicked on different folders and eventually found thumbnails images of adults engaging in sexual acts with minors. She clicked on one of the thumbnails to see the larger image. When she found the first image, she took the laptop to the kitchen to show her mother. There, they clicked through several more sexually-explicit images involving minors. She closed the laptop and called the Cridersville Police Department.

U.S. v. Lichtenberger, supra.

Officer Huston responded to Holmes’ call by

return[ing] to the residence. In the kitchen, Holmes told [Huston] she found child pornography on [Lichtenberger’s] laptop. She also told him the laptop belonged to [Lichtenberger] and he was the only one who would access and use it. She explained that one time she tried to use the laptop and [he] immediately became upset and told her to stay away from it. Lastly, Holmes told Huston that she hacked the laptop to access it because it was password protected.

Huston then asked Holmes if she could boot up the laptop to show him what she had discovered. Holmes opened the laptop lid and booted it up to take it out of sleep mode. She then reentered the new password she created. Huston asked her to show him the images. Holmes opened several folders and began clicking on random thumbnail images to show him. Huston recognized those images as child pornography. He then asked Holmes to shut down the laptop.

After consulting with his police chief over the phone, Huston asked Holmes to retrieve other electronics belonging to Lichtenberger. She gave him Lichtenberger's cell phone, flash drive, and some marijuana. Huston then left the premises with those items, the laptop, and its power cord.

U.S. v. Lichtenberger, supra.

The judge then took up the issue Lichtenberger raised in his motion to suppress, noting that the 4^th Amendment “establishes [the] `right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.’ U.S. v. Lichtenberger, supra.  As I have noted in prior posts, the 4^th Amendment only applies to “state action,” i.e., to searches and seizures that are carried out by agents of the state, such as police officers.  As this judge explained, under the

private search doctrine, . . . this protection applies only to government action. U.S. v. Jacobsen, 466 U.S. 109 (1984). It is`wholly inapplicable “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.”’ U.S. v. Jacobsen, supra (quoting Walterv. U.S., 447 U.S. 649 (1980) (Blackmun, J., dissenting)).

U.S. v. Lichtenberger, supra.

That exception would seem to apply here, since Holmes was not an officer nor was she apparently acting as an agent of the police.  Lichtenberger, though, claimed motion to suppress the evidence Holmes turned over to the police should be suppressed

for four reasons: 1) the private search doctrine does not apply to private residences; 2) Holmes acted as an agent of Officer Huston; 3) Huston's search exceeded the scope of Holmes's initial search; and 4) in any event, Huston did not have probable cause to search the computer.

U.S. v. Lichtenberger, supra.  The judge then analyzed each argument, in order.

As to the first issue, Lichtenberger argued that the private search doctrine,

as articulated in Jacobsen, supra, does not apply in this case because the [U.S. Court of Appeals for the 6^th Circuit] has refused to extend its applicability to private residences per its holding in U.S. v. Allen, 106 F.3d 695 (U.S. Court of Appeals for the 6th Circuit 1997). Thus, [Lichtenberger] contends that because he resided in the home in which he kept his laptop and it was password protected, he had a legitimate and significant privacy interest which Officer Huston unreasonably breached.

The government argues Allen is not applicable in this case because neither Holmes nor Huston conducted a search of the residence bur rather a search of only Lichtenberger's laptop. Relying on Jacobsen, supra, the government contends that the search of the laptop is akin to the search of a suitcase, locker, or container -- not an entire residence.

U.S. v. Lichtenberger, supra. 

The judge noted that in Jacobsen, Federal Express employees opened a package

damaged in transit. Inside the package was crumpled newspapers covering a ten-inch tube. The employees cut open the tube and found four zip-lock plastic bags containing white powder. . . .They called the Drug Enforcement Administration (DEA) and then put the bags back in the tube and the tube and newspapers back into the box. When the DEA agent arrived, he saw the open box and removed the four bags from the tube, opened them, and identified the white substance inside them as cocaine. . . .

The Supreme Court held that the Fed Ex employees' initial search was a private action that did not violate the Fourth Amendment because of their private character. . . . Reasoning that the DEA agent acted merely to confirm the Fed Ex employees' recollection, the Court further held that the DEA agent's viewing `of what a private party had freely made available for his inspection did not violate the 4th Amendment.’ . . .  

U.S. v. Lichtenberger, supra (quoting U.S. v. Jacobsen, supra).  

He also noted that in U.S. v. Allen, supra,

the manager of a motel suspected [Allen] did not pay his bill so she entered his motel room with her key to see if he was still there. She observed large quantities of marijuana in the bathroom as well as bricks of marijuana laying in open dresser drawers. . . . She then called the police who entered the motel room and viewed it for about fifteen seconds, observing the marijuana. The officers left the room and waited for [Allen] to return to the motel room whereupon they arrested him.

U.S. v. Lichtenberger, supra.

The judge also pointed out that the 6^th Circuit’s opinion in U.S. v. Allen, supra, “distinguished the motel room from the package in Jacobsen, noting that the package only contained contraband while the motel room was a temporary residence containing personal possessions.”  U.S. v. Lichtenberger, supra.  The 6^th Circuit found Allen’s “privacy interest was extinguished because his rental period had elapsed and thus he no longer had a legitimate expectation of privacy in the room”, which meant the motel manager’s consent to search the room did not implicate Allen’s 4^th Amendment rights. U.S. v. Lichtenberger, supra.

This judge found the prosecution’s argument “persuasive” because “[u]nlike Allen,” the

officer here did not search Lichtenberger's residence -- only his laptop. Holmes called the police to her house and Huston spent time only in the kitchen, a space shared by Holmes, her mother, and Lichtenberger. In Allen, the officers searched the defendant's entire residence which had been under only his control until the manager entered it. . . .

While a laptop is not like the simple container in Jacobsen, it also is not the same as a private residence. Laptops are highly personal items which contain a multitude of personal information, and laptop owner's have a reasonable expectation of privacy in their files. At the same time, laptops do not and cannot fulfill the same function as a private residence.

U.S. v. Lichtenberger, supra.  The judge therefore found that the private search doctrine applied here, so there was no 4^th Amendment violation. U.S. v. Lichtenberger, supra.

He then took up Lichtenberger’s second argument: that “Holmes acted as an agent of Officer Huston.”  U.S. v. Lichtenberger, supra.  He noted that “I must determine whether Holmes acted as an agent of Officer Huston” and, “If she did, I must suppress the laptop as evidence.”  U.S. v. Lichtenberger, supra. 

The judge explained that the U.S. Court of Appeals for the 6^th Circuit uses a

two-factor analysis to determine whether a private party acts as an agent of the government: 1) the government's knowledge or acquiescence to the search; and 2) the intent of the party performing the search. U.S. v. Bowers, 594 F.3d 522 (2010). . . . If `the intent of the private party conducting the search is entirely independent of the government's intent to collect evidence for use in a criminal prosecution,’ then “the private party is not an agent of the government.’. U.S. v. Lichtenberger, supra. 

U.S. v. Bowers, supra (emphasis in the original). 

The prosecution claimed Holmes’ intent in searching Lichtenberger’s laptop was to

satisfy her curiosity. She testified she was not looking for evidence of a crime but was `just generally looking for anything.’ . . . The government also notes that when the police first came to Holmes's residence to arrest Lichtenberger, no one instructed or encouraged Holmes to search the home for evidence.

The government contends that because Holmes was the person who hacked into the laptop, clicked on the folders, and controlled the laptop, there was no governmental action.  Finally, the government contends that Huston's actions to boot up the computer and enlarge three or four images were merely to confirm Holmes's complaint. In other words, he never participated or affirmatively encouraged Holmes's private search.

U.S. v. Lichtenberger, supra. 

Lichtenberger, on the other hand, argued that the prosecution was

conflating the first and second searches. He agrees that the first search, in which Holmes discovered the child pornography, is not government action. He contends that the second search is, however, because Officer Huston actively directed Holmes to conduct the search, thereby making her an agent of the government.

Lichtenberger argues that Huston specifically asked Holmes to boot up the computer and show him the pictures. He contends that when Holmes showed him the images, per his request, her intent was not entirely independent of the government's intent to collect evidence. At that point, she was directly following his instructions and, accordingly, her intent was to assist him in his investigation.

U.S. v. Lichtenberger, supra. 

The judge agreed with Lichtenberger, explaining that

[i[t is uncontested that the first search was entirely a private action. Thus, the fact the police officers did not ask or encourage Holmes to search for evidence when they arrested Lichtenberger is simply of no relevance. As Holmes testified, she acted out of curiosity.

The second search, however, constitutes government action. When Huston came to Holmes's residence, he gave her several directions. He directed her to boot up the laptop and she complied. He asked her to see the images and she showed him. Even though he was not touching the laptop, he would not have seen the images without instructing Holmes to show them to him.  By giving her instructions and directing her actions, she became an agent of the officer. . . .

U.S. v. Lichtenberger, supra.

He also noted that Huston

specifically asked Holmes to open the laptop and show him the images. He was actively directing her, not merely passively viewing. Thus, this second search was not private in nature. It was at the behest of Huston, who, arguably, could have gotten a warrant to search the laptop. Holmes opening the closed laptop is no different than someone opening a door because an officer told her to do so. Likewise, Holmes opening the laptop files was no different than if she had been told to open dresser drawers, a closet, or a physical file cabinet. Both activities were at the direction and subject to the control of the officer.

U.S. v. Lichtenberger, supra. 

The judge therefore held that “the government violated [Lichtenberger’s] 4th Amendment rights by searching his laptop without getting a warrant,” which means that the other arguments Lichtenberger raised in his motion to suppress were “moot”, i.e., it was not necessary to address them to resolve the issues raised by the motion.  U.S. v. Lichtenberger, supra.  He consequently ordered that the motion to suppress “be, and the same hereby is granted.”  U.S. v. Lichtenberger, supra.