Pete G. Thomas, “a podiatrist,” was
convicted of possessing child
pornography after the police found numerous images of naked young girls on his
computer. He contends reversal is required because the police unlawfully seized
and searched his computer. . . .
People v. Thomas, 2015
WL 778839 (California Court of Appeals – 4th District 2015).
As courts usually do, the Court of Appeals begins its
opinion by explaining how, and why, the prosecution arose:
On the morning of October 25, 2012,
computer technician John Edwards went to Coastline Podiatry in Santa Ana to
install a scanner/copier at appellant's office. [Thomas] was not present at the
time, but in order to complete the job, Edwards had to access the `default
folder’ on [Thomas’] computer. When he did, approximately 20 “`thumbnail’ photographs
of young girls appeared on the screen. The girls, who Edwards estimated were
seven to eight years old, were naked from the waist down, and one of them had
her legs spread out, revealing her vaginal area. Edwards did not say anything
to anyone in [Thomas’] office about the pictures. But later that day, he called
the police and told Corporal Israel Garcia what he had seen.
Garcia promptly relayed the information
to sex crimes Detective Mike Judson, the lead investigator on the case. Judson
instructed Garcia to go to [Thomas’] office that afternoon and see if he could
get [his] consent to search his computer. However, when Garcia went to [Thomas’]
office, [he] was not there. So, at Garcia's request, the office receptionist
contacted [Thomas] and put him on the phone with Garcia.
Garcia told [Thomas] he was
investigating a lead about child pornography and asked [him] if he could come
to his office to talk. [Thomas] said he could not because he was in Los
Angeles. Garcia then asked [Thomas] if it would be okay if the police searched
his computer. When [he] said no, Garcia told him officers would be staying at
his office until a search warrant could be obtained. [Thomas] said he wanted to
read the warrant before they took his computer, and Garcia told him they would
leave a copy of the warrant in his office.
By that time it was nearly 5:00 p.m.,
and [Thomas’] office was about to close for the evening. Garcia's shift was
also coming to an end, so he radioed for assistance. Garcia requested that
officers be sent out to [Thomas’] office so that they could `sit on the place’ until
a warrant could be obtained. Garcia also contacted Detective Judson and
informed him of the situation. Judson told Garcia to make sure [Thomas’] computer
remained guarded while he obtained a warrant.
People v. Thomas, supra.
The court then goes on to explain that
Judson did not seek a warrant at that
time. Instead, he discussed the situation with other detectives in his unit,
and together they came to the conclusion exigent circumstances existed to seize
[Thomas’] computer without a warrant. Given that [Thomas] knew the police
were standing over his computer in anticipation of getting a warrant, the fear
was [he] `could potentially be wiping the hard drive, cleaning the hard drive
and eliminating [any incriminating] pictures from his computer from another
location.’ So, Judson called Garcia and told him to seize [Thomas’] computer,
which he did. The computer was then booked into the evidence department of the
Santa Ana Police Department with the expectation Judson would obtain a warrant
to search it. No one from the department looked at the contents of the computer
before then.
As it turned out, Judson was off work
the next three days (Friday, Saturday and Sunday) and did not start preparing
the warrant affidavit until Monday, October 29. The search warrant was issued
the following day, five days after [Thomas’] computer was seized. Forensic
testing revealed over 1,000 images of child pornography on the computer,
including about 100 photos depicting children who were engaged in sex acts with
adults.
People v. Thomas, supra.
The Court then notes that Thomas subsequently
moved to suppress the images on two
grounds: 1) The police lacked justification to seize his computer without a
warrant; and 2) the five-day delay between the seizure and issuance of the
search warrant was unreasonable. At the suppression hearing, the parties
stipulated that had the police simply unplugged [Thomas’] computer while it was
at his office, it would have prevented anyone from deleting evidence on it
remotely. Judson testified he thought about that option at that time but
surmised that unplugging or turning off the computer was tantamount to seizing
it. He said the destruction of evidence is always a concern once a suspect
knows the police are interested in a particular piece of evidence.
Speaking of his experience in other
cases, Judson testified he had obtained telephonic search warrants in the past.
However, he did not know how long it would have taken him to get such a warrant
in this case. He did not discuss that option in talking with Garcia. It is
undisputed that had Judson sought a telephonic search warrant, all he would
have had to do was get in touch with the on-call magistrate and explain the
basis for his request.
The trial court felt this was a close
case in terms of whether the police acted lawfully in seizing and searching
appellant's computer. However, the court found exigent circumstances existed
for Corporal Garcia to seize [Thomas’] computer without a warrant because, had
he not done so, [Thomas] could have gone to his office and deleted the
incriminating images from it or instructed someone else to do so. The court
also determined the five-day delay from when the computer was seized until a
search warrant was obtained was reasonable. Therefore, it denied [Thomas’]
motion to suppress the pornographic images that were discovered on his
computer.
People v. Thomas, supra.
It went on to explain that,
[i]n light of that ruling, [Thomas[]pleaded guilty to one count
of possessing child pornography. (California Penal Code § 311.11, subd. (a)).
The court sentenced him to probation on the condition that he spend one year in
local custody, but it stayed execution of the sentence pending this appeal.
People v. Thomas, supra.
The Court of Appeals begins its analysis of Thomas’ argument
on appeal by noting that he “contends that in obtaining the incriminating
images from his computer, the police violated his rights under the 4th Amendment. We disagree.” People v. Thomas, supra. It prefaced its
analysis of the issues in this case by explaining that the
4th Amendment to the United States
Constitution provides, `The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches and seizures, shall
not be violated, and no warrants shall issue, but upon probable cause. . . .’ .
. . `As the text makes clear, “the
ultimate touchstone of the 4th Amendment is “reasonableness.”’ Riley v.
California, 134 S.Ct. 2473 (2014).
Reasonableness `’is measured in objective terms by examining the totality
of the circumstances'. . . . People v. Robinson (2010) 47 Cal.4th
1104 (California Supreme Court 2010).
Relying on Riley and Missouriv. McNeely, 133 S.Ct. 1552 (2013), [Thomas] contends it was unreasonable
for the police to seize his computer without a warrant. But McNeely and Riley are search cases, not seizure cases. In McNeely, the
United States Supreme Court held the natural dissipation of alcohol from the
body does not per se constitute exigent circumstances justifying a warrantless
search in the form of a blood draw from a person who is suspected of driving
under the influence. . . . Missouri v.
McNeely, supra.
And in Riley, the
court held that, absent a warrant, the police may generally not search digital
information on a cell phone that has been seized from a person who has been
arrested. Riley v. California, supra.
Both of those cases involved searches that were highly intrusive in terms of
the privacy interests they implicated
Riley v. California, supra. [recognizing cell phone searches typically
reveal far more private information to the police than most house
searches]; Missouri v. McNeely,
supra [describing an involuntary blood draw as `a compelled physical
intrusion’ of bodily integrity that invades `an individual's “most personal and
deep-rooted expectation of privacy”’].)
People v. Thomas, supra.
It also explained that,
[i]n comparison, the threshold issue
here is whether the police acted reasonably in seizing appellant's
computer from his office. A seizure is `far less intrusive than a search.’ (U.S.
v. Payton, 573 F.3d 859 (U.S. Court of Appeals for the 9th Circuit 2009). Whereas a search implicates a person's right to keep the
contents of his or her belongings private, a seizure only affects their right
to possess the particular item in question. Segura v. U.S., 468 U.S. 796(1984). Consequently, the police generally have greater leeway in terms of
conducting a warrantless seizure than they do in carrying out a warrantless
search. As a matter of fact, the United States Supreme Court has `frequently
approved warrantless seizures of property . . . for the time necessary to
secure a warrant, where a warrantless search was either held to be or likely would
have been impermissible.’ Segura v. U.S. supra.
Practical considerations also favor a
more relaxed standard for warrantless seizures than warrantless searches. `Where
law enforcement authorities have probable cause to believe that a container
holds contraband or evidence of a crime, but have not secured a warrant, . . . the [4th] Amendment . . . permit[s] seizure of
the property, pending issuance of a warrant to examine its contents, if the
exigencies of the circumstances demand it. . . .’ U.S. v. Place, 462 U.S. 696 (1983).
Exigent circumstances include “the need to prevent the destruction of
evidence.” Kentucky v. King, 31 S.Ct. 1849 (2011). Therefore, if the
police officers in the present case reasonably believed 1) [Thomas’] computer
contained evidence of a crime, and 2) the delay necessary to obtain a warrant
to search the computer might result in the loss or destruction of evidence, then
they had every right to seize the computer. Illinois v. McArthur, 531 U.S. 326 (2001); U.S. v. Place, supra; Roaden v. Kentucky, 413 U.S. 496 (1973); Schmerber v. California, California, 384 U.S. 757 (1966). . . .
People v. Thomas, supra.
The Court of Appeals then took up the facts in this case, explaining
that Thomas did not
dispute the police had probable cause
to believe his computer contained evidence of a crime. However, he contends the
police could `have obviated any exigency in this case’ by simply turning off or
unplugging his computer until they obtained a search warrant. Doing this would
have eliminated the possibility of remote data destruction. But it would not
have prevented [Thomas] (or someone acting on his behalf) from going to his
office and either manually deleting information from the computer or damaging
its hard drive in such a way as to foreclose the possibility of data retrieval.
See State v. Maxwell, (Utah 275 P.3d 220 (Utah Supreme Court
2012) [noting that to impair a hard drive so as to prevent the retrieval of
incriminating evidence on a computer, `[p]resumably a blowtorch or a power
drill could do the trick.’].)
Other than taking [Thomas’] computer,
the only practical way the police could have preserved the evidence on it is by
standing guard over the machine in [his] office until a search warrant could be
obtained. However, that would have constituted a seizure, as well. See Hortonv. California, 496 U.S. 128 (1990) (for 4th Amendment purposes, a seizure
occurs whenever the police deprive a person of dominion and control over his
property). In fact, had the police opted to do that, the resulting interference
with [Thomas’] possessory interest in the computer would have been no different
than what occurred by virtue of the physical seizure. And it probably would
have resulted in a very awkward and cumbersome situation at [his] office until
the warrant arrived. `[I]t is difficult to believe [appellant] would seriously
[have found] it a lesser intrusion to have [had] . . . . armed officers on his
property/ than to have had the officers seize his computer and go on their way.
People v. Link, (California Court of Appeals 1994).
In arguing lack of exigency, [Thomas]
makes much of the fact the police made no attempt to seek a telephonic search
warrant before seizing his computer. But even if the police had pursued a
telephonic warrant instead of a traditional warrant, it still would have
entailed some delay. While this course of action would likely have
reduced the duration of the seizure, there still would have been a gap in time
during which [Thomas’] computer would
have been vulnerable to manipulation or attack by outside forces had the police
not taken measures to secure it. The truth of the matter is, once the police
alerted [him] to the fact they were at his office and wanted to search his
computer for evidence of child pornography, they really had no other option
than to seize his computer to prevent the possible destruction of evidence.
People v. Thomas, supra (emphasis in the original).
The Court of Appeals therefore found that
the seizure was justified under the exigent
circumstances doctrine. See People v. Coddington, 23 Cal.4th
529 (California Supreme Court 2000) disapproved on other grounds in Price v.
Superior Court, 25 Cal.4th 1046 (California Supreme Court 20010 [failure to
seek telephonic warrant immaterial where prompt police action was needed to
prevent the destruction of evidence]. . . .
People v. Thomas, supra.
It also, though, noted that
`[e]ven a permissible warrantless
seizure, such as the initial seizure here, must comply with the 4th Amendment's
reasonableness requirement. Thus, the [United States] Supreme Court has held
that after seizing an item, police must obtain a search warrant within a
reasonable period of time.’ U.S. v. Burgard, 675 F.3d 1029 (U.S.Court of Appeals for the 7th Circuit 2012). . . . Unfortunately,
there is `no bright line past which a delay becomes unreasonable. Instead, [we
must] assess the reasonableness of [the delay] by weighing ‘the nature and
quality of the intrusion on the individual's 4th Amendment interests against
the importance of the governmental interests alleged to justify the intrusion.’
U.S. v. Burgard, supra. . . . quoting U.S. v. Place, supra. . .
. We must also consider whether the police diligently pursued their
investigation and if good cause existed to justify the delay that occurred. U.S. v.
Burgard, supra.
People v. Thomas, supra.
The court therefore began its analysis of the facts in this
case, noting that
[d]uring the five-day period the police
had [Thomas’] computer, he obviously did not have access to it, and thus his
right to control and use the computer was infringed. However, the police did
not search the computer, so [his] privacy interest in its contents was not
infringed. Moreover, that five-day period included a Saturday and a Sunday,
which are not traditional working days. There is nothing in the record to
suggest had [Thomas] would have used his
computer on those days had the police not seized it from his office.
`On the other side of the equation, law
enforcement's interests [in seizing had [Thomas’] computer] were . . . strong,’
in that the police had probable cause to believe it contained evidence of child
pornography. U.S. v. Burgard, supra. Child pornography is not only a reprehensible offense
in and of itself, it `is proximately linked to the sexual abuse of children
[citation], “a most serious crime and an act repugnant to the moral instincts
of a decent people”’. In re Grant, 58 Cal.4th 469 (California Supreme
Court 2014). It cannot be gainsaid that the police were pursuing an important
governmental interest in this case.
Finally, with regard to the diligence
factor, the record shows appellant's computer was seized at the end of the
business day on Thursday, October 25, 2012 and that Detective Judson was off
work the next three days. When Judson returned to his office on Monday the
29th, he began preparing the search warrant materials, and the warrant was
issued the following day. Thus, the five-day delay between the seizure and the
warrant's issuance was largely attributable to Judson's schedule; it was `not
the result of complete abdication of his work or failure to “see any urgency”’
in the investigation. U.S. v. Burgard, supra. . . .
Under these circumstances, the delay
cannot be said to have been unreasonable. While it certainly was not optimal,
we must remember `police imperfection is not enough to warrant reversal. With
the benefit of hindsight, courts ‘can almost always imagine some alternative
means by which the objectives of the police might have been accomplished,’ but
that does not necessarily mean that the police conduct was unreasonable. U.S. v. Burgard, supra.
People v. Thomas, supra.
And, finally, it explained that,
[a]t bottom, we are convinced the
police acted reasonably in both seizing and searching appellant's computer.
Although five days transpired between those two events, the delay was not
unreasonable under the circumstances presented. U.S. v. Burgard, supra. . .
. [six-day delay between the seizure of the defendant's cell phone and the
securing of a search warrant to look for evidence of child pornography on the
device was not unduly lengthy even though the police `should have been
able to submit the warrant application more quickly’]; . . . State v.
Maxwell, supra (4th Amendment did not require suppression of
pornographic images of children that were found during a search of the
defendant's computer eight days after the police seized it from his home).
People v. Thomas, supra.
The Court of Appeals therefore affirmed Thomas’ conviction. People v. Thomas, supra.
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