Friday, February 13, 2015

The Hotel Room, the Laptop and the 4th Amendment

After Edward Thomas was “charged with one count of conspiracy to commit sex trafficking of a minor, in violation of 18 U.S. Code § 1594(c) and two substantive counts of sex trafficking of a minor, in violation of 18 U.S. Code § 1591(a) and (b)”, he moved to suppress certain evidence.  U.S. v. Thomas, 2015 WL 164075 (U.S.District Court for the District of Connecticut 2015). 
To understand the motion and the court’s ruling on it, it is necessary to understand how the prosecution arose.  The case arose from an investigation into the
trafficking and prostitution of a minor female from Oregon. In October 2012, Agent Kobelia received an alert from the National Center for Missing and Exploited Children (NCMEC). The alert concerned content posted, a website used to advertise sexual services (among other things). NCMEC had noticed an advertisement posted in the New Haven area that appeared to depict a minor. The site listed her name as `Rain’ and indicated the advertisement had been posted by someone with the e-mail address `’

Two weeks later, . . . Kobelia called the number in the advertisement. He learned `Rain’ was staying at the Howard Johnson hotel in Milford, . . . and went there the following day to speak with a manager. The manager recognized the photo of `Rain’ . . . and said he believed she was staying in one of two rooms rented to . . . Kayla Walters.  Kobelia obtained Walters's driver's license photo. It did not match the picture of `Rain’. . . .

On November 8, NCMEC sent [an] alert to the FBI's New Haven office. It requested that agents try to recover an endangered minor runaway (. . . Minor Victim, or `MV’) from Portland, thought to be prostituted near New Haven. The alert contained a link to the . . . advertisement for `Rain.’ . . . Agent Wines accessed Backpage. . . . He noticed `Rain's’ advertisement appeared to be related to content advertising the sexual services of a woman calling herself `Sunshine.’ The two pages occurred in sequence . . ., each page listed a non-local phone number beginning with the same six digits, and the photograph of `Sunshine’ appeared to depict Kayla Walters. . . .

Wines called `Rain's’ listed number and arranged a `date’ for ten o'clock. . . . The woman . . ., who identified herself as `Rain,’ told the agent to call her when he arrived at the Howard Johnson so she could direct him to a particular room. When the agents arrived . . ., Wines called the number for `Rain’ and got no answer. [He] called six or seven more times but received no response. At 10:18 p.m., agents spoke with the hotel clerk and learned that, although Walters was not listed on the guest registry, a man named Edward Thomas had rented two rooms, 202 and 205. They suspected that MV might be in one of them.

The agents headed for the second floor. On the way to the elevators they encountered Walters, who was walking with a man later identified as Thomas. Each smelled of marijuana smoke, and Thomas had a large wad of money protruding over the top of his jeans pocket. The agents stopped them, brought them to the hotel lobby, and questioned them separately. Both said they knew `Rain’ and had seen her earlier in the day but did not know where she was. Thomas said he was `helping her out.’ Walters told agents that she (Walters) was staying in Room 202 and did not mention 205. The agents concluded MV was probably in Room 205 and headed in that direction.

When they arrived, they saw lights were on in the room and heard . . . a television inside. They knocked and identified themselves, but no one answered. Concerned for MV's safety, they obtained a universal key at the front desk and entered the room. There they found MV, unclothed and asleep on a bed. Kobelia tried to wake her. She was `groggy’ and `disoriented’ at first. . . . After a `few minutes,’ though, she was able to communicate `without difficulty.’ The agents confirmed MV was the girl from Oregon. Because she was angry at their presence, they left her in the care of another officer and went back to the lobby. Before leaving, they noticed a closed laptop bag resting on another bed.

When the agents arrived in the lobby, Walters and Thomas were still there. Wines called the phone number associated with `Sunshine's’ Backpage advertisement. A phone in the possession of Walters rang and Wines seized it, at which point Walters vomited into a trash can. Wines tried to interview her, but she would not respond. . . . Wines turned his attention to Thomas and asked about the money in Thomas's pocket. Thomas said that it was about $4000 he received from his nephew as part of a legal settlement. Pressed for details about the settlement, Thomas was unable to provide any. Reasoning that pimps often carry cash that customers use to pay for prostitution, Wines seized the money.

The agents returned to Room 205, [to find] the phone listed in the `Rain’ advertisement and arrang[e] for MV to go to the hospital. According to Wines, MV was `calmer’ when he and Kobelia returned. . . . She was wrapped only in a bedsheet, so Wines asked her to get dressed. MV [said] her clothing was in Room 202. She [said] she `stayed; in Room 202 and had regular access to that room. Wines testified MV had no trouble understanding the agents, and they had no trouble understanding her.
U.S. v. Thomas, supra.
The District Judge then outlined the facts that were implicated in the motion to suppress:
Around this time, Wines received an e-mail from [an] officer in Oregon. The e-mail relayed information indicating that MV had `come east’ to `meet some pimp named `Fire.’  Kobelia and Wines went to Room 202 to retrieve MV's clothes. When they entered (using the universal key), they noticed a laptop on a nightstand. It was open, revealing a screensaver that used the word `Fire.’ The agents gathered MV's clothes and returned them to Room 205, but left MV's other belongings . . . in Room 202.

The agents subsequently returned to Room 202 with MV to allow her to get her suitcase. There they seized the laptop computer with the `Fire’ screensaver. They proceeded to Room 205, where they picked up the laptop bag, decided it probably contained a laptop, and seized it. The agents reasoned that someone had used a computer to post the Backpage ads for MV's services, so the computer with the `Fire’ screensaver and the one found in the room with MV probably contained evidence of trafficking.

The agents gathered the laptop bag, the laptop with the `Fire’ screensaver, Walters's phone and the cash. They went to the lobby, where they intended to inventory the evidence and give receipts to Thomas and Walters. At this time, Wines learned that another officer had seized Thomas's Blackberry after he saw Thomas using it. The officer gave the Blackberry to Wines.

Kobelia and Wines inventoried the seized items. Before the agents opened the laptop bag, Thomas asked them why they were taking his laptop and digital camera. The agents told Thomas they were seizing the items as crime evidence and allowed him to remove some personal belongings from the bag. The agents took the rest. Neither Walters nor Thomas was arrested that evening.
U.S. v. Thomas, supra.  You can, if you are interested, read more about the facts in the case in the news stories you can find here and here.
In December of 2012, the agents obtained search warrants for
the electronic devices seized from the Howard Johnson. The laptops, the Blackberry and the digital camera contained explicit images of MV and Walters -- some of which had been posted in the Backpage advertisements -- along with other incriminating evidence.
U.S. v. Thomas, supra. 
In his motion, Thomas sought the suppression of “all the evidence collected from the items seized at the Howard Johnson on November 8, 2012: his Blackberry, the roll of cash in his pocket, the laptop and digital camera found in the laptop bag seized from Room 205, and the laptop with the `Fire’ screensaver seized from Room 202.”  U.S. v. Thomas, supra. 
Like most motions to suppress filed in U.S. courts, Thomas’ motion claimed the items seized
at the Howard Johnson were obtained in violation of the 4th Amendment and any evidence they provide must be excluded from the trial. See Mapp v. Ohio, 367 U.S. 643 (1961). Whether the evidence should be excluded depends initially on the answers to four questions: 1) whether the agents had authority to enter Room 205 (where they observed the laptop bag, found MV, and sought consent to enter Room 202); 2) whether the agents had authority to enter Room 202 (where they found the laptop with the `Fire’ screensaver); 3) whether the agents had authority to seize the electronic devices belonging to Thomas; and 4) whether the agents had authority to seize the money found in Thomas's pocket.
U.S. v. Thomas, supra. 
As Wikipedia explains, the 4th Amendment prohibits U.S. law enforcement officers from conducting “unreasonable” searches and seizures. This judge began his ruling on Thomas’ motion by analyzing whether the agents “had authority to enter” Room 205. U.S. v. Thomas, supra.  He explained that when “the agents entered Room 205, they effected a search of Thomas's hotel room. Because they did so without a warrant, this intrusion is `presumptively unreasonable.’ U.S. v. Karo, 468 U.S.705 (1984).”  U.S. v. Thomas, supra.
He also noted that the prosecution argued that the agents’ actions were reasonable because
of exigent circumstances. Police may effect a search or seizure without obtaining a warrant `when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.’ Mincey v. Arizona, 437 U.S. 385 (1978). The need to protect a dwelling's occupant from imminent injury is an exigency justifying entry into the dwelling, and the defendant concedes that `the potential sexual exploitation of a minor is an exigent circumstance.’ . . . The only question is whether . . . the facts known to the entering agents provided `an objectively reasonable basis’ to conclude that MV was inside Room 205 and in need of help. See Brigham City, Utah v. Stewart [sic], 547 U.S. 398 (2006).

I think it is plain they did. When Kobelia and Wines entered Room 205, they knew from Backpage and the phone call to MV that she was working as a prostitute and operating out of the Howard Johnson. NCMEC had notified the agents that MV was a minor who had left home to work for a pimp in New Haven. Kobelia and Wines had connected MV to Walters by ascertaining that MV had stayed in a room rented to Walters in October and through viewing the Backpage advertisements for `Rain’ and `Sunshine.’ They had connected Walters to Thomas because the two were walking together in the Howard Johnson. The agents knew Thomas was renting two rooms on November 8, and they knew from their training and experience that pimps often use two rooms in connection with a prostitution operation. Both Walters and Thomas admitted to knowing MV but claimed not to know where she was. Finally, Walters told the agents she had rented Room 202 but did not mention Room 205 -- an omission suggesting MV might be located there -- and the lights and television were on in Room 205, indicating that at least one person was inside.
U.S. v. Thomas, supra. 
The judge therefore found that “in these circumstances, it was reasonable for the agents to conclude that MV was with a customer in Room 205. Accordingly, they had authority to enter.” U.S. v. Thomas, supra. 
He then took up whether the agents had consent to enter Room 202.  U.S. v. Thomas, supra.  As Wikipedia explains, officers do not need a warrant or probable cause to conduct a consent search because, by consenting, the person who has control of the property to be searched waives his/her 4th Amendment rights. The government claimed MV had authority to consent to a search of Room 202 and consented to the search.  U.S. v. Thomas, supra. 
Under the 4th Amendment, a consent to search is legal if the person consenting had either actual authority to consent, i.e., the thing or place belongs to that person, or had apparent authority to consent, i.e., the officers reasonably believed that the person, who did not have actual authority to consent, did, in fact, have such authority.  Here, Thomas argued that
Room 202 was registered in his name only and MV did not possess a key. Indeed, he argues, MV's lack of a key indicates that he ‘specifically guarded against [the] possibility’ that she would permit someone to search the room.
U.S. v. Thomas, supra.  The prosecution, on the other hand, argued that MV could
consent to the search because she kept her clothing and other belongings in Room 202, `stayed’ in the room, and had `regular access’ to it. . . . And even if MV lacked actual authority, it argues, it would reasonably have appeared otherwise to the agents. They knew MV, Walters, and Thomas had been staying at the Howard Johnson since October 25 (at the latest), and MV told them she had `regular access’ to the room, `stayed’ in it, and kept her clothing and other belongings there.
U.S. v. Thomas, supra. 
The judge found MV had actual and apparent authority to consent to the search of Room 202:
That her name was not on the registration counts for little. MV was a minor victim of sex trafficking, and the absence of her name from the hotel's books says more about the illegality of Thomas's operation than it says about MV's relationship to the property in issue: of course Thomas would not register the room in her name. As for the key, it is true that MV lacked one at the time the agents found her, and this suggests she was not able to come and go with absolute freedom. But it is unsurprising that Thomas would choose to prevent his victim from moving about the hotel with perfect liberty.
U.S. v. Thomas, supra. 
He then took up Thomas’ argument to suppress the Blackberry, the laptop and the laptop bag.  U.S. v. Thomas, supra.  The judge noted that “the agents were lawfully present in Room 205 when they viewed the laptop bag, and were lawfully present in Room 202 when they viewed the laptop with the `Fire’ screensaver.”  U.S. v. Thomas, supra.  Thomas also apparently conceded that the agents “viewed his Blackberry in the course of a valid Terry stop”, which meant their looking at it did not constitute an unreasonable 4th Amendment search.  U.S. v. Thomas, supra. 
But they did not just look – the agents seized the items, and the 4th Amendment also bars “unreasonable” seizures.  The judge began his analysis by noting that the issue was whether
these seizures can be justified under the plain view doctrine or as necessary measures to prevent the destruction of evidence. The plain view doctrine `authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior 4th Amendment justification and who has probable cause to suspect that the item is connected with criminal activity.’ Illinois v. Andreas, 463 U.S. 765 (1983). And if officers reasonably suspect that crime evidence will be lost or destroyed before they obtain a warrant, they may effect a seizure if it is supported by probable cause. Illinois v. McArthur, 531 U.S. 326 (2001).
U.S. v. Thomas, supra. 
He found, first, that the seizure of the items was justified by the plain view doctrine:
[T]he agents had ample evidence to conclude that the Blackberry and both laptops had been used in aid of Thomas's crime. They knew t someone had used a computer or a smartphone to create the Backpage content advertising MV's services. They knew Thomas (on whose person they found the Blackberry) was connected to MV because of his own admissions, his rental of Rooms 202 and 205, his association with Walters, and his nickname, `Fire.’ They knew Room 202, in which the second laptop was found, contained MV's personal belongings and clothes, and they found the laptop bag on a bed next to MV. Each electronic device was therefore connected to MV and to Thomas. Moreover, the agents knew from viewing the Backpage site that someone had used a camera or a smartphone to take photographs of MV. Their training and experience led them to conclude that the photographic files were probably stored on a computer, a phone, or both. These facts rendered it so likely that the laptops and the Blackberry contained evidence of Thomas's criminal activity that the incriminating nature of the devices was `immediately apparent’ within the meaning of the plain view doctrine.
U.S. v. Thomas, supra. 
He also found that the seizure of the items was justified under the “destruction of evidence” element of the exigent circumstances exception to the 4th Amendment’s default requirement that officers obtain a warrant to seize property:
Turning to the government's destruction-of-evidence argument, it easily holds up in light of my conclusion that there was probable cause to believe that the Blackberry, the laptop and the laptop bag contained evidence of criminal activity. It requires only the additional ingredient of reasonable cause to think that the evidence might have been destroyed if it had not been seized, and the case law seems universally to acknowledge that electronic evidence is transitory and easily deleted.
U.S. v. Thomas, supra. 
The judge therefore denied Thomas’ motion to suppress, which meant the above evidence, and evidence derived from any or all of these items, could be (and no doubt was/were) used at Thomas’ trial.  U.S. v. Thomas, supra. 

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