Tuesday, October 14, 2014

Hard Drives, "Containers" and Private Searches

The 4th Amendment to the U.S. Constitution gives citizens a right to be free from “unreasonable searches and seizures”.  As I have explained in prior posts, and as Wikipedia also explains, the standard the Supreme Court has established for determining whether there has been a “search” is the one it articulated in Katz v. U.S., 389 U.S. 347 (1967).
Under Katz, you have a “reasonable expectation of privacy” in a place or thing if (i) you have as exhibited an actual (subjective) expectation of privacy in that place or thing and (ii) society is prepared to recognize that this expectation is (objectively) reasonable.  If you are interested, you can read more about how the Katz standard is applied in the post you can find here.
This post examines a 4th Amendment privacy search issue that arose in People v. Evans, 2014 WL 4947060 (California Court of Appeals 2014).  Michael Shawn Evans, was “charged with possession of material depicting a person under the age of 18 engaging in or simulating sexual conduct, a felony”, in violation of California Penal Code § 311.11(a).  People v. Evans, supra. He moved to suppress certain evidence and, when the judge denied his motion, pled guilty. People v. Evans, supra. The judge “suspended imposition of sentence and placed [Evans] on probation for three years subject to specified terms and conditions.”  People v. Evans, supra.
On appeal, Evans raised only one issue: that “the trial court erred in denying his motion to suppress video files found in a search of his computer because the warrantless search conducted by the police exceeded the scope of a prior private search and therefore violated `a subjective expectation of privacy that society recognizes as reasonable.’”  People v. Evans, supra.
The Court of Appeals begins its analysis of that issue by explaining how the case arose:
On September 27, 2011, [Evans] brought his computer to Sage's Computer in Fort Bragg for servicing. In the course of working on the computer, Sage Statham viewed images on the computer of what appeared to him `to be underage girls engaged in sexual activity.’ Statham felt it appropriate to call the Fort Bragg Police Department to inquire whether these materials were `something that they should be looking at.’

Officer Brian Clark, who responded to the phone call and viewed the files at Statham's computer repair shop, stated that although the girls in the photos he viewed were posing in a sexual manner, none of them were nude or `engaging in sexual activity or simulating any sexual activity.’ Indicating he did not consider the images pornographic, Clark asked Statham whether he `could search through and look at’ anything else in the computer.

After further examining [Evans’] computer files, Statham found video files he had not previously noticed. When directed by Clark to open these files, Statham tried to but was unable to do so. Statham was . . . able to put the video files on a USB flash drive, which he gave to Clark. Clark took the flash drive to the Fort Bragg Police Department. When he was unable to open the files on his own computer, Clark gave the flash drive to Sergeant Lee, who was able to open and view the videos it contained. Lee informed Clark that he considered the videos `juvenile pornographic material.’ Clark, who also viewed the videos, described them as depicting `[f]emale juveniles engaged in sexual activity.’ The next day [Evans’] computer was seized by Officer Lopez.
People v. Evans, supra.
In his motion to suppress, Evans sought suppression of the evidence and also demanded that the prosecution “produce at the suppression hearing `any and all search warrants and arrest warrants relied upon by the prosecution to justify the searches of [his] property.’” People v. Evans, supra.  The prosecutor argued that the motion to suppress should not be granted “`for two independent reasons.’” People v. Evans, supra.
First, the evidence was not obtained by [Statham] illegally, and hence the 4th Amendment does not apply. Second, [Evans’] expectation of privacy was destroyed once Statham as a private citizen[ ] made the search and revealed his findings to the police; hence any additional investigation by the police of additional ‘folders' on that same computer was not the `fruit of any poisonous tree.’ At no time prior to the challenged searches of Evans’ computer had the police obtained a search warrant.
People v. Evans, supra.
In denying Evans’ motion to suppress, the trial judge considered whether Statham would
`be justified in calling Officer Clark over to view the entire contents of Evans computer? Put another way, does a person completely forfeit their [sic] expectation of privacy in the contents of their computer when they take it to the store to get repaired?’ The trial judge stated the answer to his rhetorical question lay in the fact that Evans only had a reasonable expectation of privacy in the contents of his computer's hard-drive. Evans did not create a confidential relationship with Statham akin to an attorney-client relationship when he entrusted his computer to Statham. Thus, any reasonable expectation of privacy [he] had in the content of his hard-drive would be eroded in proportion to any legitimate suspicion arising from what Statham discovered in the course of working on the computer. If all Statham found were images of kids riding a pony at a birthday party, it would be reasonable for Evans to expect the content of his computer would not be shared with law enforcement.’

`However, this expectation is not so reasonable when the images are such as to cause Statham to believe . . . he has discovered child pornography. Nor is it reasonable for Evans to demand that Statham conclusively determine the images meet the legal definition of child pornography before involving the police. . . . There is no requirement that citizen informants validate their suspicions of criminal conduct before reporting them to the police. By turning his computer over to Statham, Evans diminished the scope of his reasonable expectations to privacy. Figuratively, he was ‘hanging his dirty laundry out to dry’ by handing it over to a third party he knew was going to take a look at it. The discovery of the sexually charged images of children only further eroded his expectation of privacy. Under these circumstances, it was not unreasonable for Statham to involve law enforcement.’
People v. Evans, supra (emphasis in the original).
As this post explains, the 4th Amendment does not apply to the actions of private citizens unless the private citizen has become an “agent” of law enforcement, i.e., has decided to search property to “help out” the police. Basically, the judge was arguing that the private search doctrine applied to all of the searches of Evans’ computer, not just to Statham’s search of its contents.  Like other Constitutional protections, such as the 5th Amendment and the 6th Amendment right to counsel, the 4th Amendment only protects citizens from government actions that violate the protections it provides for them.
So, if a private citizen searches your computer and finds evidence of a crime, he or she can turn that evidence over to the police and nothing in what happened would violate the 4th Amendment because law enforcement was not involved either in the search or in the private person’s turning the computer over to the police.  And if the private person took your computer without your permission, that would be a 4th Amendment “seizure,” but you could not use the 4th Amendment to suppress the evidence because the police were not involved in the seizure. 
Here, the trial judge, relying on the reasoning outlined above, therefore denied Evans’ motion to suppress because he found that
`Clark's searches of the videos (both when he first met with Statham, and later at the [Fort Bragg Police Department]), were simply more thorough searches of the hard-drive ‘container’ that Statham had already opened. Evans' expectation of privacy in his hard-drive, which included the video files, had already been frustrated when he turned his computer over to Statham. Such searches are not in violation of the 4th Amendment, and thus, suppression of the videos is not mandated.’
People v. Evans, supra. 
The Court of Appeals did not agree, explaining that before Statham contacted the police,
[he] saw photographic images on [Evans’] computer that Clark determined were not pornographic. . . . Statham did not examine the materials he placed on the flash drive at any time prior to or after contacting the police. A warrantless police search certainly cannot be undertaken under the 4th Amendment where, as here, the private searcher had not determined the illicit character of any images and, further, was unable to view the materials stored in a computer even after police directed him to open those files and to place them on a USB flash drive. Accordingly, the subsequent search of the flash drive by Officers Clark and Lee clearly exceeded Statham's prior private search.
People v. Evans, supra.  If the Clark and Lee searches exceeded the scope of Statham’s prior search(es), they would not fall within the private search doctrine, and consequently would violate the 4th Amendment.
But as the Court of Appeals pointed out, the trial judge concluded that the
materials placed by Statham in a USB flash drive were contained in the `hard-drive’ of [Evans’] computer, and treated that hard drive as the functional equivalent of, or analogous to, a closed container. On these grounds, the trial court reasoned that `[Officer] Clark's searches of the videos . . . were simply more thorough searches of the hard-drive “container” Statham had already opened. Evans' expectation of privacy in his hard-drive, which included the video files, had already been frustrated when he turned his computer over to Statham. Such searches are not in violation of the [4th] Amendment, and thus, suppression of the videos is not mandated.’
People v. Evans, supra. 
Again, the Court of Appeals did not agree, noting that the
fundamental flaw in the trial court's ruling relates to its assumption that a computer hard drive can properly be considered a `closed container,’ as that term is sometimes used in applying the 4th Amendment. . . .

Noting that a `container’ has been defined as `”any object capable of holding another object,”’ the U.S. Supreme Court has recently observed that `[t]reating a cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter. . . . But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen. [This] is what cell phones, with increasing frequency, are designed to do by taking advantage of `”cloud computing.”’

`Cloud computing is the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself. Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.’ . . . Riley v. California, 134 S.Ct. 2473 (2014). . . .   The Court further stated: `Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life”’. . . . The fact technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple -- get a warrant.’

Because, as the Supreme Court observed, cell phones `are in fact minicomputers’, Riley v. California, supra, and the search of a computer hard drive implicates at least the same privacy concerns as those implicated by the search of a cell phone, there is no reason to think conventional computers can any more reasonably be characterized as containers than cell phones. Indeed, `[c]omputers are relied upon heavily for personal and business use. Individuals may store personal letters, e-mails, financial information, passwords, family photos, and countless other items of a personal nature in electronic form on their computer hard drives.’ (U.S. v. Mitchell, 565 F.3d 1347 (U.S. Court of Appeals for the 11th Circuit 2009), [describing `the hard drive of a computer, which “is the digital equivalent of its owner's home, [as] capable of holding a universe of private information”’]).  
People v. Evans, supra. 
The Court of Appeals therefore found the trial judge erred in describing the hard drive
of [Evans’] computer as a closed container. Moreover, even if . . . the flash drive may be deemed a `closed container,’ . . . the record reflects and the trial court found Statham did not view the materials he placed in the flash drive before he was `directed’ by Officer Clark to conduct a more thorough search than the one that led him to contact the police. In placing the video files in the flash drive, Statham unquestionably `intended to assist law enforcement’ and Officer Clark `knew of and acquiesced in’ the `private’ search Statham undertook at Clark's direction.
People v. Evans, supra. 
It therefore held that the
factual findings made in this case, which are uncontested, indisputably establish that the government authorities have used information in which [Evans’] expectation of privacy was not frustrated by Statham's private search. Accordingly, the conclusions upon which the trial court based its ruling -- namely, that Officer Clark's and Officer Lee's searches `were simply more thorough searches of the hard-drive “container” Statham had already opened,’ and that [Evans’] `expectation of privacy in his hard-drive, which included the video files, had already been frustrated when he turned his computer over to Statham’ -- are wholly untenable. The fact that neither Statham, a computer specialist, nor Clark were able to open the video files strongly suggests [Evans] took precautions to maintain his privacy with respect to these materials.
People v. Evans, supra (emphasis in the original).
The Court of Appeals therefore reversed the trial judge’s order denying Evans’ motion to suppress and remanded the case to the trial judge “with directions to vacate its ruling denying [Evans’ motion to suppress and to grant the motion.”  People v. Evans, supra.  

(I am doing this post without adding a photo because I am in a hotel in DC and the wireless netwok simply will not let me add a photo.)

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