Consent, the External Hard Drive and the 4th Amendment

Paul Beckmann

pled guilty to one count of possession of child pornography after having been previously convicted and sentenced for possession of child pornography in 2001. See 18 U.S. Code §2252A(a)(5)(B), (b)(2). The [U.S. District Court Judge] sentenced Beckmann to 120 months of imprisonment, a lifetime of supervised release, and ordered him to pay $9,000 of restitution.

U.S. v. Beckman, 786 F.3d 672 (U.S. Court of Appeals for the 8^th Circuit 2015).

Beckman appealed, arguing, among other things, that the U.S.District Court Judge erred by “denying his motion to suppress evidence found on an external hard drive as the result of an illegal search under the 4th Amendment.”  U.S. v. Beckman, supra.  The Court of Appeals began its analysis of his argument by explaining what happened in the investigation that led to his being charged and convicted:

Since Beckmann's conviction for possession of child pornography in 2001, Beckmann has been required to register as a sex offender. On August 2, 2011, as part of a routine sex offender verification through the United States Marshal's Office, Jefferson County Deputies Barbato and Thebeau visited Beckmann's home. The purpose of the visit was to verify Beckmann's address and to ensure that he was complying with any conditions related to his status as a sex offender. Upon arrival, the deputies knocked on Beckmann's door, told him they were there for sex offender verification and asked to enter his home. Beckmann consented. Once inside, the deputies observed a laptop computer on the coffee table. Beckmann informed the officers that he was under no supervised release conditions and that he was lawfully allowed to have a computer and internet access. Deputy Barbato asked to look through the contents of Beckmann's laptop in order to `make sure he was not accessing any content he's not supposed to be accessing.’ Beckmann consented.
 While Deputy Barbato searched the laptop, Beckmann showed Deputy Thebeau around the rest of the residence. Deputy Thebeau alerted Deputy Barbato that there was another computer in the upstairs office. He then obtained permission to use the upstairs restroom. Deputy Barbato proceeded upstairs partially for safety reasons and partially because he wanted to make sure Defendant was not `going through anything he shouldn't be.’ When Deputy Barbato arrived upstairs and looked into the office where Beckmann went, he saw a computer desk with a monitor on it and Beckmann underneath messing with wires/cords. To alert Beckmann to his presence, Deputy Barbato asked Beckmann if this was the `other’ computer. Beckmann seemed startled and responded yes. Deputy Barbato then asked if he could take a look at that computer, as well. Beckmann consented. Deputy Barbato sat down and observed one computer tower and two external hard drives underneath the desk. Both of the external hard drives were connected to the tower but the power cord to one of them was unplugged from the wall. Deputy Barbato believed that these were the cords Beckmann was manipulating, and he believed that Beckmann had been trying to shut off the computer. The deputy plugged the power cord to the unplugged external hard drive back into the wall and began to search the computer, including the external hard drives.
 By this time, Beckmann had exited the office. The deputy admitted he did not get specific consent to search the external hard drives nor did he get consent to plug the one external hard drive back into the wall; however, he considered the external drives to be a part of the `computer’ because they were plugged into the computer. During his search, Deputy Barbato discovered file names suggesting child pornography. The deputy asked Beckmann about the suspicious files and Beckmann stated that he did not wish to answer. The officers then placed Beckmann into investigative detention. After speaking with his attorney, Beckmann signed a consent form allowing the officers to seize the laptop, computer, and external hard drives pending application for a search warrant.

U.S. v. Beckman, supra.  You can, if you are interested, find a law enforcement consent to search form here, as a sample. Beckman would have signed a similar form. t

The Court of Appeals goes on to explain that the

government obtained a search warrant on August 15, 2011 to copy and search the property seized. The warrant specified that it was to be executed on or before August 29, 2011. `Execution’ of the search warrant required a forensic analyst to copy and search existing and deleted computer files. The investigator began analyzing the seized computers in November of 2011 and the external hard drives on January 24, 2012.
 The analyst located over 2,000 images of child pornography on the external hard drive. On April 25, 2012, a report was prepared documenting what was found on the computer media. A return of inventory was filed with the district court on November 15, 2013. The sergeant handling the case stated that he did not intend to prejudice Beckmann or delay the proceedings but merely forgot to return the warrant.

U.S. v. Beckman, supra.   Rule41(f)(1)(D) of the Federal Rules of Criminal Procedure, which you can find here, explains what “executing” a warrant and “returning” an inventory mean.

The next thing that happened was that, on July 24, 2013, a Missouri federal grand jury

returned a one-count indictment against Beckmann for possession of child pornography. Beckmann filed a motion to suppress certain evidence and statements. The magistrate judge held two evidentiary hearings on Beckmann's motion before issuing a report and recommendation.  Beckmann filed objections to the report and recommendation, and the district judge reviewed the issues de novo.
 The district judge sustained, adopted, and incorporated the magistrate's report and recommendation with the exception of two factual findings. The district court granted Beckmann's motion to suppress certain statements made by Beckmann but denied the motion as to other statements and the physical evidence. Beckmann elected not to proceed to trial and instead entered a plea of guilty, reserving his right to appeal the order on his motion to suppress.

U.S. v. Beckman, supra. 

As Wikipedia explains, in the federal system U.S. Magistrate Judges “are appointed to assist United States district court judges in the performance of their duties” by, for example, holding hearings on motions to suppress.  The magistrate judge then issues a “report and recommendation” which does just that, i.e., it reports on the evidentiary and other factual issues the magistrate investigated and reports his/her conclusion as to how an outstanding issue (such as suppression) should be resolved.

Getting back to the appeal, Beckman argued that the District Court Judge

erred by denying his motion to suppress the incriminating evidence found on his external hard drive as the fruit of an illegal search under the 4th Amendment. `When reviewing the denial of a motion to suppress, we review the district court's factual findings for clear error and its legal conclusions de novo.’ U.S. v. Anderson, 688 F.3d 339, 343 (U.S. Court of Appeals for the 8<sup>th</sup> Circuit 2012). We will affirm the denial of a motion to suppress unless we find that the district court's decision `is unsupported by the evidence, based on an erroneous view of the law, or the Court is left with a firm conviction that a mistake has been made.’ U.S. v. Riley, 684 F.3d 758 (U.S. Court of Appeals for the 8th Circuit 2012).

U.S. v. Beckman, supra.  

The Court of Appeals went on to explain that the District Court Judge

found that Beckmann gave the officers consent to search his computer. Consensual searches are reasonable under the 4th Amendment. Florida v. Jimeno, 500 U.S. 248 (1991). The standard for measuring the scope of a person's consent is `objective reasonableness,’ which asks what the typical, reasonable person would have understood from the exchange between the officer and the suspect. Florida v. Jimeno, supra. While the voluntariness of a defendant's consent to search is a question of fact that is reviewed for clear error, U.S. v. Quintero, 648 F.3d 660 (U.S. Court of Appeals for the 8th Circuit 2011), the reasonableness of an officer's reliance on such consent is a question of law that is reviewed de novo. U.S. v. James, 353 F.3d 606 (U.S. Court of Appeals for the 8th Circuit 2003).

U.S. v. Beckman, supra.  

As Wikipedia explains, if someone consents to a law enforcement officer’s searching his or her property, such as a computer, then the officer can proceed without having to have probable cause or a search warrant, because the consent effectively waives the person’s 4^th Amendment right to privacy in his/her property.  As Wikipedia also explains, officers do not have to tell someone that he/she has the right not to consent to a search for a consent to be valid.

In this case, Beckman argued that it was

unreasonable for Deputy Barbato to rely on Beckmann's consent to search the computer in order to justify his search of the external hard drive. The scope of a consensual search is “generally defined by its expressed object.” Florida v. Jimeno, supra. For example, where an officer asks to search a car for suspected narcotics, and the occupant agrees without explicit limitation on the scope of the search, the officer may search the entire car including containers therein that may hold narcotics. Florida v. Jimeno, supra.
 If the consent `would reasonably be understood to extend to a particular container’ then `the 4th Amendment provides no grounds for requiring a more explicit authorization.’ Florida v. Jimeno, supra. Reasonableness is measured in objective terms based on the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33 (1996). Where a person is present and fails to object to the continuation of a search, courts consider such circumstantial evidence to provide proof that the search conducted was within the scope of consent. See  U.S. v. Lopez–Mendoza, 601 F.3d 861 (U.S. Court of Appeals for the 8th Circuit 2010).

U.S. v. Beckman, supra.  

The Court of Appeals than began its analysis of Beckman’s argument:

Applying these standards, Deputy Barbato's belief that consent to search the computer included consent to search the connected but unplugged external hard drive was not objectively unreasonable. Deputy Barbato testified that he believed he had consent to search the external hard drive based on his understanding of the word `computer’ and the fact that the external drive was attached to the computer tower. The deputy's belief is not objectively unreasonable in light of the common understanding that the term `computer’ encompasses the collection of component parts involved in a computer's operation. See, e.g., U.S. v. Herndon, 501 F.3d 683 (U.S. Court of Appeals for the 6th Circuit 2007).
 Beckmann did not explicitly limit the scope of his consent to search the computer, nor did he object when Deputy Barbato plugged the external hard drive into the electrical outlet and began searching. Based on the totality of the circumstances presented here, Deputy Barbato had an objectively reasonable basis to conclude that Beckmann consented to the search of the external hard drive.

U.S. v. Beckman, supra.  

In a footnote to the comment about the Deputy’s plugging the external drive into the outlet and searching, the Court of Appeals explains that

Beckmann argues that he was not in the room at the time Deputy Barbato plugged the external hard drive into the wall in order to have had the opportunity to withdraw or limit his consent. The magistrate judge stated: `After he plugged in the power cord, Deputy Barbato got up and sat in the chair at the desk. He then used the computer mouse with the monitor to activate the computer. Barbato thought the computer desktop displayed on the monitor looked normal, although it had icons he was unfamiliar with. By this time Beckmann had walked out of the room.Report & Recommendation ¶ 18.
 Even assuming Beckmann was not present in the room at the time Deputy Barbato plugged the external hard drive's power cord into the wall, `[w]e have not, to date, found that officers have a duty to ensure that an individual has an opportunity to withdraw or limit consent.’ U.S. v. Guevara, 731 F.3d 824 (U.S. Court of Appeals for the 8th Circuit 2013).

U.S. v. Beckman, supra.  

The Court of Appeals goes on to explain that Beckman argued that Deputy Barbato's

belief was unreasonable because an external hard drive cannot reasonably be interpreted to constitute a `component part involved in the computer's operation.’ He argues that merely plugging a device into a computer does not render the device a part of the computer's operation, and he analogizes an external hard drive to a cellular telephone. He warns that the district court's order sets `dangerous precedent for law enforcement to be able to search anything and everything that can be plugged into a computer[.]’ We disagree.
 First and foremost, the scope of the consent to search here, as in all cases, is based on the totality of the circumstances including the interaction between the parties, the purpose of the search, and the circumstantial evidence surrounding the search. Second, a typical, reasonable person is more likely to consider a connected external hard drive a `component part involved in a computer's operation’ as compared to a connected cellular telephone. Unlike a cellular telephone, the sole purpose of an external hard drive is to store computer data. Additionally, external hard drives, unlike cellular telephones, are functionally inoperable—and their contents unreviewable—when unplugged from a computer. Thus, Deputy Barbato's belief that the attached external hard drive constituted a `component part involved in the computer's operation’ was not objectively unreasonable.

U.S. v. Beckman, supra.  

If you wonder why the court repeatedly refers to whether the search was “reasonable,” it does so because “reasonableness” is the touchstone for determining whether the 4^th Amendment has been violated.  As Wikipedia notes, the 4^th Amendment bans “unreasonable” searches and seizures”, which means “reasonable searches and seizures are constitutional.

Getting back to this case, again, Beckman also argued that

Deputy Barbato's belief was unreasonable because the deputy witnessed Beckmann attempt to unplug the external hard drive from its power source, which effectively limited the scope of the consent. The Court finds Beckmann's argument unpersuasive. Beckmann provided explicit, unlimited consent to search his computer after the deputy witnessed him manipulating wires under the desk.
 Beckmann could have denied consent to search the upstairs computer or limited the scope of the consent, but he did not. The evidence demonstrates that Beckmann knew how to limit his consent, and did so during other situations that day, but he did not do so in this instance.
 Where a suspect provides general consent to search, only an act clearly inconsistent with the search, an unambiguous statement, or a combination of both will limit the consent.  See U.S. v. Lopez–Mendoza, 601 F.3d 861 (U.S. Court of Appeals for the 8th Circuit 2010). A subtle indication that a suspect wishes to limit the scope of a search is insufficient to render the search unreasonable. See, e.g., U.S. v. Siwek, 453 F.3d 1079 (U.S. Court of Appeals for the 8th Circuit 2006) (suspect's statement that he lacked key to tonneau cover did not amount to denial of consent); U.S. v. Gray, 369 F.3d 1024 (U.S. Court of Appeals for the 8th Circuit 2004) (suspect's statements that length of search was `ridiculous’ and he was `ready to go now’ did not amount to withdraw of consent). Here, Beckmann provided general consent to search his computer and he did not object when Deputy Barbato plugged the external hard drive into the wall and began searching it. These facts support the conclusion that the search conducted was within the scope of Beckmann's consent.

U.S. v. Beckman, supra.  In a footnote to the court’s comment that Beckman knew how to withdraw consent, it explains that

[a]fter being placed into investigative detention, Beckmann advised that he would answer some questions and not others and he agreed to give certain permissions and not others. For example, he agreed to answer questions about his computer but refused to answer any questions about downloading child pornography. He also refused to allow the computer forensic analyst to verify the titles of the files discovered.

U.S. v. Beckman, supra. 

For these and other reasons, the Court of Appeals affirmed Beckman’s conviction and sentence.  U.S. v. Beckman, supra.  

Stalking, the "Work Email Address" and "Place of Employment"

This post examines an opinion the Criminal Court – City of New York issued on July 14, 2015:  People v. Marian, 2015 WL 4231664.  The opinion begins by noting that

[t]his Court occasionally is presented with an accusatory instrument that alleges the use of electronic technology in a way that is not covered by the particular Penal Law section charged. See, e.g., People v. Stone, 43 Misc.3d 705, 982 N.Y.S.2d 733 (Criminal Court -- New York County 2014) (no `display’ of a weapon where defendant texted a picture of himself holding a knife); People v. Barber, 42 Misc.3d 1225(A), 992 N.Y.S.2d 159 (Criminal Court - New York County 2014) (dismissing `revenge porn’ prosecution). The information here, albeit in a small way, presents the same type of issue.

People v. Marian, supra.

The Criminal Court went on to explain that on

January 23, 2015, [Monique Marian] accused the complainant, her former girlfriend, of assaulting her. [Marian] later admitted that the accusation was untrue and the assault charge against the complainant was dismissed and sealed.

Between January and April of 2015, [Marian] bombarded the complainant with text messages, Instagram messages and emails, both to the complainant's personal and work email addresses, all asserting her desire to be with the complainant.

During this same period, the complainant saw [Marian] waiting outside of the complainant's apartment building and, on three different occasions, [Marian] found the complainant in a bar, even though the complainant had not told [Marian] she would be there. On one of those occasions, the complainant grabbed [Marian] by the neck and, after the complainant asked [her] to leave, [Marian] waited outside the bar for two hours then followed the complainant for two blocks. On another occasion, [Marian] again followed the complainant for two blocks after the complainant left the bar, telling her, `I won't leave you alone. I'll never stop.’

[Marian’s] conduct caused the complainant to fear for her safety.

People v. Marian, supra.

The court then outlines the “legal proceedings” in the case, which led to this appeal:

[Marian] was arraigned April 9, 2015, on a misdemeanor complaint charging her with two counts of stalking in the fourth degree, in violation of [New York] Penal Law § 120.45(2) and § 120.45(3). The Court released [Marian] on her own recognizance and adjourned the case for conversion.

On April 27, 2015, the People filed a superseding information charging [Marian] with falsely reporting an incident in the third degree, [New York] Penal Law § 240.50(3)(a), and two counts of stalking in the fourth degree, in violation of [New York] Penal Law § 120.45(2) and § 120.45(3).

[Marian] filed the instant motion on May 18, 2015. The People declined to respond, and the matter has been sub judice since then.

People v. Marian, supra. 

The “instant motion” was a motion to dismiss the New York Penal Law § 120.45(3) charge against Marian.  People v. Marian, supra. 

The Criminal Court then analyzed the “superseding information, sworn out by the complainant,” which was the focus of the motion to dismiss.  People v. Marian, supra.  It began by explaining that the superseding information provided that

[o]n January 23, 2015, at approximately 10:00 PM, I was arrested because [Marian] claimed I assaulted her. I was arraigned in New York County Criminal Court on January 24, 2015, before Judge Sokoloff. [Marian] later admitted that no assault had occurred and that she made the report so that I would not get an order of protection against her. On March 30, 2015, the District Attorney's Office dismissed the assault case against me, and it was immediately sealed.

From January 17, 2015 to April 17, 2015, I have received over 100 Instagram messages from [Marian].  Specifically, one of the messages stated, `I wish you would let me find you tonight’ and `I'll always be by your side.’ From January 17, 2015 to April 8, 2015, I have received approximately 10–15 emails from [Marian] at both my work and personal email addresses. From January 17, 2015 to January 19, 2015, I have received approximately 80 [calls] from a phone number which I know belongs to [Marian].

On February 25, 2015, at approximately 11:00PM, I entered the Bowery Electric at 327 Bowery. [Marian] arrived approximately one hour later and grabbed me by the neck, startling me. I did not tell [her] I was at that location. After I asked [Marian] to leave, she waited for me outside the location for approximately two hours. When I attempted to leave, [Marian] followed me for approximately two blocks.

On March 24, 2015, at approximately 9:00PM, I entered Hotel Chantelle located at 92 Ludlow Street. [Marian] arrived at 10:00PM and approached me inside the bar. I did not tell [her] I was at that location and when I attempted to leave the bar, [Marian] followed me for approximately two blocks. [She] stated to me in substance, ‘I won't leave you alone. I'll never stop.’

On March 30, 2015, at approximately 1:15AM, [Marian] came to my apartment building and stood outside waiting on me.

On April 8, 2015, at approximately 8:50PM, at 106 Norfolk Street, I entered the bar at that location to meet a friend. [Marian] entered at approximately 10:00PM. I did not tell [her] I was at that location.

[Marian’s] above described conduct has caused me to fear for my physical health and safety.

People v. Marian, supra. 

The Criminal Court then began its analysis of Marian’s motion to dismiss.  People v. Marian, supra.  It began by explaining that the

Court agrees with [Marian] that the information does not make out a prima facie case of stalking in the third degree under N.Y. Penal Law § 120.45(3). The conduct alleged in the information fails to make out the statutory requirement that the conduct take place at the complainant's `place of employment or business.’ The remaining counts, however, are facially sufficient.

People v. Marian, supra. 

The Criminal Court began its analysis of why the stalking in the third degree count was not sufficient by explaining that

a misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 (Court of Appeals of New York 2014); People v. Alejandro, 70 N.Y.2d 133, 511 N.E.2d 71 (Court of Appeals of New York 1987). Accordingly, a misdemeanor information must set forth `nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof.’ People v. Kalin, 12 NY3d 225, 906 N.E.2d 381 (Court of Appeals of New York 2009). . . . This is known as `the prima facie case requirement.’ People v. Kalin, supra.

The prima facie case requirement does not necessitate that an information allege facts that would prove a defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 504 N.E.2d 1079 (1986). Rather, the information need only contain allegations of fact that `give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.’ People v. Casey, 95 N.Y.2d 354, 740 N.E.2d 233, 236 (Court of Appeals of New York 2000). A court reviewing for facial insufficiency must subject the allegations in the information to a `fair and not overly restrictive or technical reading,’ People v. Casey, supra, assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. [N.Y.Criminal Procedure Law] §§ 100.40, 100.15 People v. Jackson, 18 NY3d 738, 967 N.E.2d 1160, 1166–67 (2012). . . .

People v. Marian, supra. 

The court then applied the above analysis to the facts in this case, noting that the

only conduct alleged in the information that has anything at all to do with the complainant's employment, the gravamen of the offense made out by Penal Law § 120.45(3), is the allegation that [Maria] sent ten to fifteen emails to the complainant's work email address. This does not make out a violation of Penal Law § 120.45(3), which requires the People to establish that the

`defendant intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct ... is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct.’

Emphasis added. Penal Law provisions are to be construed `according to the fair import of their terms to promote justice and effect the objects of the law.’ N.Y. Penal Law § 5.00. It would be contrary to the required method of statutory interpretation to find that a person's work email address is her `place of employment or business.’

People v. Marian, supra. 

The Criminal Court then explained why it was finding that “an email address is not a place of employment or a business.” People v. Marian, supra.  It began by noting that

[t]he `fair import’ of the phrase `place of employment or business’ is that it refers to an actual, physical location. New York courts consistently use the phrases `place of employment’ and `place of business’ in this way. Thus, for example, in Rosario v. NES Medical Services of New York, P.C., 105 AD3d 831, 963 N.Y.S .2d 295 (N.Y.Supreme Court – Appellate Division 2013), the court noted that a person's `actual place of business’ for service of a summons and complaint under [NewYork Civil Practice Law and Rules] 308(2) is `where the person is physically present with regularity, and that person must be shown to regularly transact business at that location.’

Similarly, in Hille v. Gerald Records, 23 N.Y.2d 135, 242 N.E.2d 816, 295 N.Y.S.2d 645 (Court of Appeals of New York 1968), a record executive's home was his `place of employment’ for purposes of a workers' compensation claim because he frequently took tapes home for editing. Such actual, physical locations are simply not the same as an email address. In fact, New York courts occasionally allow service to an email address as an alternative method of service, under [New York Civil Practice Law and Rules] 308(5), which indicates that an email address is treated as something distinct from an actual, physical location. E.g., Keith X. v. Kristin Y., 124 Appellate Division 3d 1056, 2 N.Y.S.3d 268 (New York Supreme Court – Appellate Division 2015).

People v. Marian, supra. 

It went on to explain that

[a]lthough this Court has concluded that the [New York Civil Practice Law and Rules]  does not apply in criminal cases, People v. DeFreitas, 2015 WL 1897624 (Criminal Court – New York County April 27, 2015), it nevertheless makes good sense, absent a contrary instruction from the Legislature, to interpret the same phrase in the same way across all areas of practice.

Thus, given New York courts' consistent view that the phrases `place of employment’ and `place of business’ refer only to a physical location, this Court will apply that same definition here. It would stretch the “fair import” of the phrase beyond all recognition to consider a complainant's work email address as her `place of employment or business’ for purposes of New York Penal Law § 120.45(3).

Nor would likening an email address to an actual, physical location either `promote justice’ or `effect the objects’ of § 120.45(3). Section 120.45 was added to the Penal Law in 1999 because `criminal stalking behavior, including threatening, violent or other criminal conduct’ had by then “become more prevalent in New York state in recent years.’ L.1999, c. 635, § 2 (discussing the Legislature's intent).

While the inclusion of a provision dealing with stalking in connection with the victim's employment is not specifically discussed in the legislative history to § 120.45, the overall goal of the legislation was to `recognize the damage to public order and individual safety caused by’ stalkers, in terms of both the `emotional and physical harm’ caused to the victims. L.1999, c. 635, § 2.

People v. Marian, supra. 

The Criminal Court then noted that it

recognizes that stalking behavior in connection with a persons' employer can poses risks of emotional and physical harm to the victim equivalent to the other forms of stalking covered by the other subsections of § 120.45.

Nevertheless, including an email address within the purview of the phrase a `place of employment or business’ does not specifically further either justice or the statute's goals. The conduct of repeatedly emailing a person with no legitimate purpose other than to cause her emotional harm is completely subsumed within the conduct specified in § 120.45(2), which covers `telephoning or initiating communication or contact with’ the victim, including contact by email, irrespective of whether the email is sent to a personal or a work email address.

Accordingly, for these reasons, the Court concludes that a person's work email address is not her `place of employment or business’ for purposes of the stalking statute.

People v. Marian, supra. 

The Criminal Court therefore granted Marian’s “motions to dismiss the count charging her with violating New York Penal Law § 120.45(3)” but denied the motion  “with respect to the remaining counts” in the information filed against her. People v. Marian, supra. 

You can, if you are interested, read more about the case in the news story you can find here. 

The (Only?) Butt Dial Case

 After I found the pocket dial case, I did a search in Westlaw for "butt dial" cases . . . and found one, which was decided a few weeks ago:  Dietenberger v. Marcott, 2015 WL 3623647 (Court of Appeals of Iowa 2015). The Court opens its opinion by explaining that

[f]ollowing a hearing, the district court in February 2014 entered an order extending the Iowa Code chapter 236 (2013) protective order previously issued protecting Elizabeth Dietenberger from Dominick Marcott, the father of the parties' child. The modified order expired on January 10, 2015. Though Dominick timely appealed the modification order, the case was ultimately transferred to this court in April 2015, after the modification order had expired.

Dietenberger v. Marcott, supra.

According to the opinion, in his appeal Dominick argued that the district court judge

erred `in not taking into account the specific facts surrounding [his prior] violation of the protective order,’ which occurred after Dominick placed a phone call to Elizabeth in May 2013. He left a voice mail message stating: `Aw shit . . . Who'd I just butt dial? Ahh . . . Hell no . . . Man I'm in trouble now.’

Dietenberger v. Marcott, supra.

The Court of Appeals goes on to explain that

[t]hough Dominick asserted the call was an inadvertent `butt dial,’ he consented to the court's subsequent finding of contempt for making the call in violation of the protective order. Specifically, the order, signed by Dominick, stated he understood that if he had a hearing, Elizabeth would be required to prove to the court beyond a reasonable doubt that Dominick `willfully and intentionally violated the terms of the . . . [protective] order previously entered in this case.’

Dominick consented to the contempt finding, and he did not appeal the finding. He cannot now attack the court's finding. See, e.g., Schott v. Schott, 744 N.W.2d 85 (Iowa Supreme Court 2008) (`We have repeatedly said a final judgment is conclusive on collateral attack, even if the judgment was erroneous, unless the court that entered the judgment lacked jurisdiction over the person or the subject matter’); State v. Sage, 162 N.W.2d 502 (Iowa Supreme Court 1968) (`A party to a criminal proceeding  . ., as a general rule, will not be permitted to allege an error . . . in which he himself acquiesced, or which was committed or invited by him. . . .’). In any event, the protective order having expired, Dominick's appeal is now moot. . . . Consequently, we dismiss the appeal.

Dietenberger v. Marcott, supra.

The "Pocket Dial," Wiretapping and a Reasonable Expectation of Privacy

The U.S. Court of Appeals for the 6th Circuit recently issued an interesting opinion in a civil suit:  Huff v. Spaw, 2015 WL 4430466 (2015). The court began its opinion by explaining that “[t]his case requires us to consider whether a person who listens to and subsequently electronically records a conversation from an inadvertent `pocket-dial’ call violates Title III of the Omnibus Crime Control and Safe Street Act of 1968, 18 U.S.C. § 2510 et seq. (`Title III’).”  Huff v. Spaw, supra.  In a footnote, the court explains that

[t]he term `pocket-dial’ refers to the accidental placement of a phone call when a person's cellphone `bump[s] against other objects in a purse, briefcase, or pocket.’ Fed. Communications Commission, Accidental 911 Calls from Wireless Phones Pose Risk to Public Safety, available at http:// www.fcc.gov/guides/accidental–911–calls–wireless–phones (last visited June 30, 2015).

Huff v. Spaw, supra. 

The Court of Appeals then explained how, and why, the suit arose:

James Huff was Chairman of the Kenton County, Kentucky, Airport Board (Airport Board), which oversees the Cincinnati/Northern Kentucky International Airport (CVG). In October 2013, he traveled to Bologna, Italy with his wife, Bertha Huff, and with Airport Board Vice Chairman Larry Savage to attend a business conference. Carol Spaw worked at CVG as Senior Executive Assistant to the airport's CEO, Candace McGraw, and as liaison to the Airport Board. Her work responsibilities included making travel arrangements for board members.

After a conference meeting on October 24, James Huff and Savage went on an outdoor balcony in their hotel to speak about CVG personnel matters, including the possibility of replacing Candace McGraw as CEO. While on the balcony, James Huff tried to call Spaw's personal cellphone using his iPhone to ask her to make dinner reservations for him and Savage. The call did not connect because James misdialed Spaw's number. After this unsuccessful attempt, James placed the iPhone in his suit's breast pocket. Savage then successfully called Spaw's office phone using his personal cellphone and had her make reservations. After this phone call, Savage and Spaw hung up their respective phones.

Soon thereafter, while James Huff spoke with Savage about CVG personnel matters, the iPhone in James's suit pocket placed a pocket-dial call to Spaw's office phone. Spaw answered and could hear James Huff and Savage talking, but she could not understand what they were saying. She said `hello’ several times but got no response. Spaw asked her colleague, Nancy Hill, to help decipher what James Huff and Savage were saying. Spaw then put the phone on speaker mode to enhance the volume and said `hello’ several more times. Within ninety seconds, Spaw and Hill determined that Huff and Savage were discussing McGraw's employment situation and that the call was not intended for them. Spaw began to take handwritten notes of the conversation and instructed Hill to do the same. Spaw claims that she believed that she heard James Huff and Savage engaged in a discussion to discriminate unlawfully against McGraw and felt that it was her responsibility to record the conversation and report it through appropriate channels. The pocket-dial call lasted approximately 91 minutes, during which Spaw listened continuously.

Huff v. Spaw, supra. 

It went on to explain that James Huff and Savage spoke on the hotel balcony about

CVG personnel matters for approximately the first 40 minutes of the pocket-dial call. The two board members then left the balcony to attend a meeting in a conference room. Spaw stayed on the line and asked Hill to obtain an iPhone from the CVG IT Department with which she could record the call. The meeting in the conference room ended approximately 70 minutes into the call. James Huff and Savage left the meeting room and walked back to their respective hotel rooms. Along the way, Spaw heard them talking about innocuous subjects such as their children's activities, taking a nap, and evening plans. Approximately 75 minutes into the call, James Huff returned to his hotel room where his wife, Bertha Huff, awaited him. In addition to speaking about personal family matters, James and Bertha Huff discussed the contents of James's earlier conversation with Savage. Spaw used an iPhone obtained from the CVG IT Department to record the final four minutes and 21 seconds of the conversation between the Huffs.

At one point, James Huff noticed that his personal iPhone had an open call with Spaw's office phone. He mistakenly believed that it had been open for only one minute and twenty-nine seconds, when in reality it had been one hour and twenty-nine minutes. He testified that he immediately terminated the call, but cellphone records indicate that the call lasted one hour and thirty-one minutes. This suggests that he may have left the pocket-dial call open for an additional two minutes after realizing what had occurred.

After the call ended, Spaw converted handwritten notes that she and Hill made into a typewritten summary. She also transferred the iPhone recording to a thumb drive, which she gave to a third-party company to enhance the audio quality. She eventually shared the typewritten summary and the enhanced audio recording with other members of the Airport Board.

Huff v. Spaw, supra. 

The Court of Appeals then outlined the litigation below that resulted in the appeal which was before that court:

On December 3, 2013, Bertha and James Huff filed a Verified Complaint alleging that, inter alia, Spaw violated Title III by intentionally intercepting their oral communications, in violation of 18 U.S. Code § 2511(1)(a); disclosing the contents of intercepted oral communications, in violation of 18 U.S. Code § 2511(1)(c); and using the contents of intercepted oral communications, in violation of 18 U.S. Code § 2511(1)(d). The [U.S. District Court] granted summary judgment to Spaw on January 24, 2014, holding that Title III does not protect the Huffs' conversations because any expectation that their conversations would not be intercepted was not reasonable under the circumstances. Huff v. Spaw, 995 F.Supp.2d 724 (U.S. District Court for the Eastern District of Kentucky 2014) The Huffs now appeal.

Huff v. Spaw, supra.  You can, if you are interested, read news reports about the case in the stories you can find here, here and here.

The Court of Appeals began its analysis of the issues on appeal by explaining that

[w]e review a district court's grant of summary judgment de novo. Frazier v. Honda of America Manufacturing, Inc., 431 F.3d 563 (U.S. Court of Appeals for the 6th Circuit 2005). Summary judgment is appropriate where `the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ Federal Rules of Civil Procedure 56(a). The question is `whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ Andersonv. Liberty Lobby, 477 U.S. 242 1986). When ruling on a summary-judgment motion, a court must draw all reasonable inferences from the evidence in favor of the nonmoving party. Matsushita Electric Industrial Co.v. Zenith Radio Corp., 475 U.S. 574 (1986).

Huff v. Spaw, supra.  Essentially, summary judgment gives courts a way to resolve cases that only present legal issues and therefore do not need to go to trial.

The court prefaced its analysis of whether it was appropriate enter summary judgment in this case by explaining that Title III

makes it unlawful to `intentionally intercept[ ] . . .  any wire, oral, or electronic communication.’ 18 U.S. Code § 2511(1)(a). The act defines `intercept’ to mean “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.’ 18 U.S. Code § 2510(4). Title III further prohibits intentional disclosure or use of `the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of wire, oral, or electronic communication in violation of [Title III].’ 18 U.S. Code § 2511(1)(c), (d). . . .

Huff v. Spaw, supra.  The court notes, later in the above paragraph, that Title III also creates a private cause of action for those “harmed” by violating its provisions, and that the Huffs are suing under that provision. Huff v. Spaw, supra. 

The first issue the Court of Appeals addresses is whether the Huffs’ conversations were

protected under Title III, which covers only wire, oral, or electronic communication as those terms are defined by the statute. In re Askin, 47 F.3d 100 (U.S. Court of Appeals for the 4th Circuit 1995). Title III defines an oral communication for its purposes as `any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.’ 18 U.S. Code § 2510(2). The language makes clear that Congress did not enact Title III to protect every face-to-face conversation from interception.

We have held that a person engages in protected oral communication only if he exhibited `an expectation of privacy that is both subjectively and objectively reasonable.’ Dorris v. Absher, 179 F.3d 420 (U.S. Court of Appeals for the 6th Circuit 1999). This assessment parallels the reasonable-expectation-of-privacy test articulated by Justice Harlan in Katz v. U.S., 389 U.S. 347 (1967). . . . Other courts have also applied Katz's reasonable-expectation test to assess whether a communication is protected under Title III. See Kee v. City of Rowlett, 247 F.3d 206 (U.S. Court of Appeals for the 5th Circuit 2001); U.S. v. Turner, 209 F.3d 1198 (U.S. Court of Appeals for the 10th Circuit 2000); U.S. v. McKinnon, 985 F.2d 525 (U.S. Court of Appeals for the 11th Circuit 1993); U.S. v. McIntyre, 582 F.2d 1221 (U.S. Court of Appeals for the 9th Circuit 1978). . . .

Huff v. Spaw, supra. 

It went on to explain that in

articulating his well-known test, Justice Harlan wrote that, in order to demonstrate a reasonable expectation of privacy,

`[t]here is a two-fold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation [must] be one that society is prepared to recognize as “reasonable.” Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.’

Katz v. U.S., supra (Harlan, J., concurring).

Huff v. Spaw, supra. 

The court then pointed out that courts

generally refer to Katz's reasonable-expectation test as having a subjective part and an objective part, but the division of labor between these two parts is ill-defined in the Title III context.  Some courts, including ours, limit the subjective part to the issue of whether a person held an internal belief in an expectation of privacy from interception. See Dorris v. Absher, 179 F.3d 420 (U.S. Court of Appeals for the 6^th Circuit 1999) (`In the present case, the frank nature of the employees' conversations makes it obvious that they had a subjective expectation of privacy. After all, no reasonable employee would harshly criticize the boss if the employee thought that the boss was listening.’) (emphasis added); see also U.S. v. McIntyre, supra (`There is no question that McGann had a subjective expectation of privacy . . . [because] he believed normal conversations in his office could not be overheard, even when the doors to his office were open’) (emphases added).

Other courts, including the 10th Circuit in Kee v. City of Rowlett, supra, ask whether plaintiffs `”exhibited a subjective expectation of privacy that [their communications] would remain free from governmental [or private] intrusion’ and whether they ‘took normal precautions to maintain privacy[.]”’ Kee v. City of Rowlett, supra (first alteration in original) (emphasis added).  Like Kee, we also ask whether a person exhibited an expectation of privacy, e.g., by taking precaution, but we do so under the objective part of the reasonable-expectation test. The Dorris court, for example, held that the plaintiffs' expectation of privacy was objectively reasonable because they `took great care to ensure that their conversations remained private.’ Dorris v. Absher, supra.

The question of whether that expectation was reasonable under the circumstances also falls under the objective part of the test. The Dorris court concluded that, because `the entire office in the present case consisted of a single room that could not be accessed without the employees' knowledge[,] . . . the employees had a reasonable expectation of privacy in their workplace.’ Dorris v. Absher, supra. This approach effectively bifurcates the objective part of the reasonable-expectation test into two subparts. First, did the employees exhibit a (subjective) expectation of privacy by taking precautions? Second, was that expectation objectively reasonable?

Huff v. Spaw, supra (emphasis in the original).

The Court of Appeals goes on to explain that the question as to whether someone had

an internal belief in an expectation of privacy—the only aspect of the subjective part under Dorris—is irrelevant because it is subsumed by the exhibited-an-expectation inquiry. If a person lacked an internal belief in privacy, then he would not have exhibited an expectation of privacy and so would fail the reasonable-expectation test. If the person held an internal belief but did not exhibit that belief in an outward manner, he would also fail the reasonable-expectation test due to his inability to satisfy the first objective subpart.

Therefore the only relevant inquiries are the two objective subparts: (1) whether a person exhibited an expectation of privacy and (2) whether that expectation was reasonable. These were the same two relevant inquiries for the Kee court, except that court categorized the first inquiry under the subjective part of the reasonable-expectation test. These two inquires track Title III's statutory text that first, a person `exhibit[ed] an expectation that such communication is not subject to interception’ and second, `under circumstance justifying such expectation.’ 18 U.S. Code § 2510(2). We therefore bifurcate Katz's reasonable-expectation test—at least in the Title III context—into these two inquiries.

Huff v. Spaw, supra (emphasis in the original).

The court then explained what the Katz v. U.S. inquiries involve:

[T]he first part of the test requires more than an internal belief in privacy. Rather, one must exhibit an intention to keep statements private. A person fails to exhibit an expectation of privacy under the Katz test if he exposes those statements to the “plain view” of outsiders, Katz v. U.S., supra (Harlan, J., concurring), or if he fails to take to steps to prevent exposure to third parties, Kee v. City of Rowlett, supra (plaintiffs did not engage in oral communication under Title III because `they failed to present evidence demonstrating any affirmative steps taken to preserve their privacy,’ and `point to no reasonable safeguards or common-sense precautions taken to preserve their expectation of privacy’). The second part of the Katz test is satisfied if the expectation of privacy exhibited by the person is reasonable under the circumstances. Katz v. U.S., supra (Harlan, J., concurring). The operative question is whether society is prepared to recognize an exhibited expectation as legitimate. . . .It is essential to consider the two-part Katz test with respect to James Huff and Bertha Huff separately.

Huff v. Spaw, supra. 

The court began analysis as to whether James Huff had a reasonable expectation of privacy in the intercepted conversations by explaining that the District Court Judge found

that James Huff `unquestionably did not expect that [his] face-to-face conversations would be intercepted’ for two reasons. Huff v. Spaw, supra. First, he would not have discussed sensitive, Airport-related matters with Savage and with Bertha Huff if he had known that others might be listening. . . .This establishes only that James Huff likely intended his statements to be private, not that he exhibited an expectation of privacy. Second, `[a] significant portion of the intercepted communications took place in two places: a private balcony and a hotel bedroom.’ Huff v. Spaw, supra. While a person generally exhibits an expectation of privacy when he seeks out a private location to speak, if he also exposes his statements to an outsider “no intention to keep them to himself has been exhibited.” Katz v. U.S., supra (Harlan J., concurring). Because James Huff placed the pocket-dial call to Spaw, he exposed his statements to her and therefore failed to exhibit an expectation of privacy with respect to those statements.

Exposure need not be deliberate and instead can be the inadvertent product of neglect. Under the plain-view doctrine, if a homeowner neglects to cover a window with drapes, he would lose his reasonable expectation of privacy with respect to a viewer looking into the window from outside of his property. . . . The doctrine applies to auditory as well as visual information. U.S. v. Fisch, 474 F.2d 1071 (U.S. Court of Appeals for the 9th Circuit) (holding that defendants did not exhibit an expectation of privacy to statements that were `audible to the naked ear’ of police in an adjoining hotel room). . . .

Huff v. Spaw, supra. 

The court also explained that at  

his deposition, James Huff admitted that he was aware of the risk of making inadvertent pocket-dial calls and had previously made such calls on his cellphone. A number of simple and well-known measures can prevent pocket-dials from occurring. These include locking the phone, setting up a passcode, and using one of many downloadable applications that prevent pocket-dials calls, see, e.g., Will Verduzco, `Prevent Unwanted Butt Dialing with Smart Pocket Guard,’ xdadevelopers, Apr. 15, 2014, available at thttp://www.xda-developers.com/android/prevent-unwanted-buttdialing-with-smart-pocket-guard/. . . . James Huff did not employ any of these James Huff failed to exhibit an expectation of privacy, we need not determine whether circumstances justified such an expectation to conclude that his statements do not qualify as oral communications and therefore cannot give rise to liability under Title III.

The Huffs warn that, if we do not recognize James Huff's reasonable expectation of privacy in this case, we would deprive all cellphone-carrying Americans of their reasonable expectations of privacy in their conversations. . . . We disagree.

Not recognizing James Huff's expectation would do no more injury to cellphone users' privacy interests than the injury that the plain-view doctrine inflicts upon homeowners with windows or webcams. A homeowner with an uncovered window or a broadcasting webcam lacks a reasonable expectation of privacy with respect only to viewers looking through the window that he neglected to cover or receiving signals from the webcam he left on. He would retain a reasonable expectation of privacy in his home with respect to other means of observation, for example thermal-imagery devices.  Kyllo v. U.S., 533 U.S. 27 (2001).

Similarly, James Huff retained an expectation of privacy from interception by non-pocket-dial means, such as by a hidden recording device or by someone covertly causing his cellphone to transmit his statements to an eavesdropper. See McCann v. Iroquois Mem'l Hosp., 622 F.3d 745 (U.S. Court of Appeals for the 7th Circuit 2010) (defendant who secretly turns on a plaintiff's dictaphone to record and acquire the plaintiff's conversation would be liable under Title III). James Huff lacked a reasonable expectation of privacy in his statements only to the extent that a third-party gained access to those statements through a pocket-dial call that he placed.

In sum, a person who knowingly operates a device that is capable of inadvertently exposing his conversations to third-party listeners and fails to take simple precautions to prevent such exposure does not have a reasonable expectation of privacy with respect to statements that are exposed to an outsider by the inadvertent operation of that device.

Huff v. Spaw, supra.  The court also analyzed whether Bertha Huff had a reasonable expectation of privacy in the statements she made in her hotel room.  I am not including that analysis here because it is relatively long. You can, if you are interested, read the full opinion here.

Finally, Spaw argued that

even if some of the conversation that she overheard constituted oral communication, she is not liable because her conduct does not qualify as `interception’ under Title III. . . . In Williams v. State, 507 P.2d 1339 (Oklahoma Court of Criminal Appeals 1973), a motel manager answered a phone call from a motel room and heard a `very loud disturbance in the room including cussing fighting and calling each other names.’ Williams v. State, supra.

The manager made a tape recording of the conversation, which was introduced as evidence at the defendant's trial for the murder of the room's occupant. . . . The defendant sought to exclude the recording as an unlawful interception under Title III, and the Williams court held that `the defendant has not shown the tape recording in question was the result of an intercept . . . [because] there was no tap on the line or interference with the normal telephone lines.’ Williams v. State, supra. Spaw argues that she `did not mechanically or physically manipulate the line, so no interception occurred.’

Huff v. Spaw, supra. 

The Court of Appeals found that the Oklahoma court erred in assuming that “interference is a prerequisite for interception.”  Huff v. Spaw, supra.  It explained that while

third-party interference with the phone line was one way to intercept communications, the use of an unaltered phone line without the consent of either party would also qualify as interception. Laughlin v. U.S., 344 F.2d 187 (U.S. Court of Appeals for the D.C. Circuit 1965). . . . Therefore, non-interference with a phone line does not, by itself, prevent an instance of phone-based eavesdropping from qualifying as an interception if the eavesdropping occurred without the consent of at least one party to that conversation, as is the case with the Huffs.

Huff v. Spaw, supra. 

The court also explained that the text Title III

undermines Spaw's position because the statutory definition for interception contains no reference to an interference requirement. 18U.S. Code § 2510(4). The statute goes on to state that it is unlawful to intentionally intercept oral communications under a variety of conditions, including through the use of a `device [that] transmits communication by radio, or interferes with the transmission of such communication.’ U.S. Code § 2511(1)(b)(ii). The disjunctive use of `or”’ indicates that Title III contemplates using a radio device that does not interfere with radio transmissions to unlawfully intercept oral communications. 

Case law also contradicts Spaw's interference requirement. In Boddie v. American Broadcasting Company Inc., 731 F.2d 333 (U.S. Court of Appeals for the 6th Circuit 1984), we held that covertly recording a face-to-face conversation could be the basis for unlawful interception under Title III, 731 F.2d at 339, and the Seventh Circuit reached the same conclusion in McCann v. Iroquois Memorial Hospital, 622 F.3d 745 (U.S. Court of Appeals for the 6^th Circuit (2010). In neither case did the defendant `interfere’  with a line of communication.

Huff v. Spaw, supra. 

It therefore held that James Huff’s statements

do not qualify as oral communications for Title III purposes because he exposed them to Spaw when he pocket-dialed her, but Bertha Huff's statements do qualify because she cannot be held responsible for her husband's pocket-dial. While Spaw intercepted Bertha Huff's oral communications, the question remains as to whether she did so intentionally through use of a device. Accordingly, we AFFIRM the district court's judgment as to James Huff, REVERSE the district court's judgment as to Bertha Huff, and REMAND for further consideration consistent with this opinion.

Huff v. Spaw, supra.  So, if Bertha Huff decides to pursuit the suit, she will be able to. Huff v. Spaw, supra.