The Police Officer, the Law Enforcement Information Network and "Personal Use or Gain"

This post examines an opinion from the Court of Appeals of Michigan:  People v. Calabrese, 2016 WL 1680996 (2016).  The court begins the opinion by explaining that Calabrese is appealing

by delayed leave granted his jury trial convictions of three misdemeanor counts of unauthorized access or use of nonpublic information via the Law Enforcement Information Network (`LEIN’), [Michigan Compiled Laws] 28.214(6)(a). He was sentenced to one year of non-reporting (telephonic) probation.

People v. Calabrese, supra.

The court went on to explain how, and why, the prosecution arose:

This case arises from defendant's May 2011 through November 2012 use of the LEIN to run searches on multiple women while on duty as a police officer for the Taylor Police Department. The prosecution alleged that those LEIN searches did not comport with police department policies and violated MCL 28.214(3) because they were conducted for defendant's own `personal use or gain.’

Although defendant was charged with seven counts of unauthorized access or use of nonpublic information via the LEIN as well as other felony offenses, he was convicted of only three misdemeanor counts of unauthorized access or use of nonpublic information arising from LEIN searches pertaining to LM, CG, and GL, three women with whom he had developed a friendship or romantic relationship.

People v. Calabrese, supra.  In a footnote appended after the phrase “other felony offenses” in the paragraph directly above, the Court of Appeals explains that

Defendant was acquitted of two counts of false certification (impermissible use of personal information), [Michigan Compiled Laws] 257.903, two counts of using a computer to commit a crime, [Michigan Compiled Laws] 752.796, one count of common-law misconduct in office, [Michigan Compiled Laws] 750.505, and four additional counts of unauthorized access or use of nonpublic information via the LEIN, [Michigan Compiled Laws]28.214(6)(a).

People v. Calabrese, supra. 

The opinion goes on to explain that Calabrese “argues that the prosecution presented insufficient evidence to support his misdemeanor convictions.” People v. Calabrese, supra. 

The Court of Appeals then explains the “standard of review” and the law that applies to such an argument:

This Court reviews a challenge to the sufficiency of the evidence de novo. People v. Henderson, 306 Mich. App 1, 854 NW2d 234 (Court of Appeals of Michigan 2014). `We examine the evidence in a light most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond reasonable doubt.’ People v. Dunigan, 299 Mich.App 579, 582; 831 NW2d 243 (Court of Appeals of Michigan 2013) (quotation marks and citation omitted).

`Circumstantial evidence and reasonable inferences arising [from the evidence] may constitute proof of the elements of [a] crime.’ People v. Bennett, 290 Mich.App 465, 472; 802 NW2d 627 (Court of Appeals of Michigan 2010). This Court's review is deferential, as `[w]hen assessing a challenge to the sufficiency of evidence, the trier of fact, not the appellate court, determines what inferences may be fairly drawn from the evidence and the weight to be accorded those inferences.’ People v. Malone, 287 Mich.App 648, 654; 792 NW2d 7 (Court of Appeals of Michigan 2010), overruled in part on other grounds by People v. Jackson, 498 Mich. 246, 268 n9 (Court of Appeals of Michigan 2015). Accordingly, in reviewing a challenge to the sufficiency of the evidence, we do not interfere with the fact-finder's determinations regarding the weight and credibility of the witnesses or the evidence. People v. Dunigan, supra.

People v. Calabrese, supra. 

The court then began its analysis of Calabrese’s sufficiency of the evidence argument by explaining what the LEIN is and what rules govern access to its contents:

The criminal justice information policy council . . . was charged with creating rules and policies governing information in the criminal justice information systems, including the LEIN system. [Michigan Compiled Laws] 28.214(1)(a). [Michigan Compiled Laws]  28.214 provides, in relevant part:

(3) A person shall not access, use, or disclose nonpublic information governed under this act for personal use or gain.

* * *

(5) A person shall not disclose information governed under this act in a manner that is not authorized by law or rule. A person who intentionally violates subsection (3) or (5) is guilty of a crime as follows:

(a)  For a first offense, the person is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.(b)   For a second or subsequent offense, the person is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both. MCL 28.211a(b) defines `nonpublic information’ as `information to which access, use, or dissemination is restricted by a law or rule of this state or the United States.’ 

People v. Calabrese, supra. 

The opinion goes on to explain that

[w]e conclude that the trial court accurately articulated the elements of defendant's misdemeanor charges as follows:

The defendant is charged with the crime of unauthorized access and/or use of LEIN information. To prove this charge, the prosecutor must prove beyond a reasonable doubt that the defendant intentionally accessed and/or used non public [sic] information governed under LEIN, [and] that the defendant did so for personal use[ ] or personal gain.

People v. Calabrese, supra. 

The Court of Appeals then began its analysis of Calabrese’s insufficiency of the evidence argument, noting, initially, that

[t]he evidence at trial demonstrated that a biennial certification test was required to access the LEIN on a mobile data terminal (`MDT’) in a police vehicle or on a computer at the police station. A police officer who passed the certification test received a unique login. Every keystroke made by an officer logged into the LEIN system was recorded. The evidence indicated that defendant's login was used when information regarding LM, CG, and GL was accessed.

LM testified that she met defendant through her job at a flower shop, and they dated for approximately two months. She never asked defendant to look up her driving or criminal records. However, defendant admitted to her that he `ran her name’ and, during the search, learned of an accident in which she was involved. CG testified that she became acquainted with defendant because he frequented a bar where she worked. On one occasion, after CG and defendant had exchanged messages on Facebook, defendant gave her a ride home from a bar when she was intoxicated. Subsequently, she asked defendant to search her driving record, testifying at trial that she asked him to do so for her own personal use and gain. GL testified that she dated defendant `on and off’ between 2009 and 2011. There is no indication that she ever asked defendant to search her driving record, and she was never stopped by defendant in a law enforcement capacity.

Defendant argues that there was insufficient evidence presented at trial to support his convictions because there was no direct evidence that he intentionally conducted the LEIN searches. We disagree. Despite the absence of direct eyewitness testimony that defendant searched the women's names on the LEIN, there is ample circumstantial evidence that he was the individual who performed the searches, as the queries at issue were performed using defendant's unique login. Although there was testimony that a LEIN search could be performed using another officer's login information, such a search was against police department policy and occurred only under exceptional circumstances, such as during a situation when officer safety was at risk. In these instances, there is no evidence that suggests that the LEIN searches giving rise to defendant's convictions were necessary for officer safety.

People v. Calabrese, supra. 

The court also noted that

[a]dditionally, each of the offenses involved women who shared a friendship or dating relationship with defendant. LM met defendant through her employment; they dated for two months; and defendant admitted to her that he searched her name because he wanted to learn about whom he was dating. CG also met defendant through her work at a local bar. Although she testified that she asked defendant to search her name for her own benefit, it was within the province of the jury to determine whether defendant chose to access the information for his own personal gain—for example, to foster his personal relationship with CG, which, from the trial testimony, appeared strongly tied to his position as a police officer. See People v. Orlewicz, 293 Mich.App 96, 111; 809 NW2d 194 (2011).

Lastly, defendant dated GL `on and off between 2009 and 2011, and the evidence showed that her name was repeatedly searched on the LEIN. There is no indication that she asked defendant to search for her information or that she obtained a personal benefit from the searches. Another Taylor police officer also testified that defendant admitted that he searched GL's name on the LEIN system while they were discussing defendant's criminal case, although he stated at the time, `I'm not even sure why I did it.’

People v. Calabrese, supra. 

The Court of Appeals then began its analysis of Calabrese’s argument on appeal, explaining that

[o]n this record, even though the prosecution did not present a witness who observed defendant performing the searches or who had personal knowledge of defendant's specific intent when the searches were performed, there was sufficient circumstantial evidence for the jury to reasonably infer that defendant intentionally ran the searches for his own personal benefit, as the searches were made using his login information and involved women with whom he had a personal connection. See People v. Bennett, supra. Thus, the prosecution presented sufficient evidence for a rational jury to conclude that the elements of defendant's convictions had been proven beyond a reasonable doubt. See People v. Dunigan, supra.

People v. Calabrese, supra. 

And, finally, the court explained that Calabrese

also argues that he did not, as a matter of law, violate [Michigan Compiled Laws] 28.214(5) because disclosure of requested information is permissible pursuant to [Michigan Compiled Laws] 257.208c(3)(m). `When interpreting statutes, this Court must ascertain and give effect to the intent of the Legislature. The words used in the statute are the most reliable indicator of the Legislature's intent and should be interpreted on the basis of their ordinary meaning and the context within which they are used in the statute.’ People v. Zajaczkowski, 493 Mich. 6, 13; 825 NW2d 554 (2012) (quotation marks and citations omitted).

This argument lacks merit because the prosecution did not proceed under a theory that defendant improperly disclosed information. Rather, as indicated in the felony information, and as confirmed by the prosecution's arguments at trial, it proceeded under a theory that defendant intentionally accessed or used nonpublic information contrary to the act. See [Michigan Compiled Laws] 28.214(3). In light of the evidence presented at trial, it was sufficient for a reasonable jury to find beyond a reasonable doubt that defendant accessed or used the LEIN for his own personal use or gain.

Further, the plain language of [Michigan Compiled Laws] 257.208c(3) allows the secretary of state, following satisfactory proof of identity, to disclose personal information regarding an individual to the individual herself or to her designee. It does not provide authority for a law enforcement officer to circumvent the statutory requirements by searching an individual's name on the LEIN, albeit with the individual's consent, and directly providing information acquired through the search to the requesting individual. Accordingly, this statute has no effect on the sufficiency of the evidence underlying defendant's convictions.

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

The Court of Appeals therefore “reject[ed]” Calabrese’s arguments on appeal. People v. Calabrese, supra.  For these and other reasons, the court affirmed his conviction and sentence. People v. Calabrese, supra.