Monday, June 26, 2017

The Dorm Room, the Fourth Amendment and the Issue of First Impression

This post examines a recent opinion from the Court of Criminal Appeals of Texas: State v. Rodriguez, 2017 WL 2457441 (2017). As courts usually do, the Court of Criminal Appeals begins the opinion by explaining that
[r]esident assistants searched the dorm room of Mikenzie Renee Rodriguez, found drugs, and called their director, who in turn called the police. The police then entered the room and seized the drugs. Rodriguez was indicted for possession of a controlled substance. The trial court granted Rodriguez's motion to suppress and, on the State's appeal, the court of appeals affirmed—holding there is no college dorm room exception to the Fourth Amendment. State v. Rodriguez, ––– S.W.3d ––––, 2015 WL 5714548 (Tex. App.—Eastland 2015). We granted review because this is an issue of first impression to this Court. . . .
State v. Rodriguez, supra. In the last sentence of the paragraph above, the Court of Criminal Appeals is explaining that the officers not only did nor have a search warrant, but none of the exceptions to the warrant required, either. State v. Rodriguez, supra.
The opinion goes on to examine the lower court’s ruling on Rodriguez’s motion to suppress evidence, which argued that the police did not have a search warrant issued by a judge authorizing them to enter her dorm room and seize items she had there. State v. Rodriguez, supra. The court explains that at
the hearing on the motion to suppress, the only issue before the trial court was whether the police search was lawful; Appellee did not challenge the search by the civilians. Witnesses testified that Appellee and Adrienne Sanchez, freshman students at Howard Payne University in Brownwood, Texas, shared a dorm room on campus. A housing agreement permitted routine inspections by authorized personnel. Pursuant to this agreement, resident assistants (`RAs’) Miriam Mackey and Catherine Mullaney performed room checks for items that residents were not supposed to have such as candles, microwave ovens, and more obviously prohibited items such as drugs or alcohol. They performed the checks as a matter of course, not at the behest of any law enforcement agency.

When the RAs performed their normal room check on the room shared by Appellee and Sanchez, there was no one in the room. They found marijuana in the first trunk they looked through. The RAs contacted Nancy Pryor, the resident director, who told them to do a more thorough search. The RAs subsequently found a matchbox containing what they believed to be ecstacy [sic] pills in the bottom of a basket full of fingernail polish and a pipe inside a sock that had tape wrapped around it. The RAs laid the pill box and the pipe on the floor and took cell phone pictures of the items.
State v. Rodriguez, supra.
The opinion continues, explaining that
[t]he resident director contacted the Howard Payne Police. Howard Payne Officer Robert Pacatte, in plain clothes but with a badge, responded, and Pryor took him up to the room. Officer Pacatte entered the room and looked around.

Q. When you got to the room, were you able to see anything out in plain view that you would identify as contraband?

A. Yes, ma'am. On the floor were several items that the ladies had found and had placed on the floor. One would be a—do you mind if I look at my notes for a second?

Q. That's fine.

A. One was a glass pipe, a cigarette lighter, a box of wooden matches that was open and it had two pills laying on top of them, on top of the matches that were in the box, and I don't—I said a cigarette lighter was there also. And then I was shown across the room to a foot locker that was open and empty with the exception of a cigarette lighter and a small package that I believed to be—have in it what I believed to be marijuana.

He took some photos and contacted the Brownwood Police. Officer Pacatte acknowledged that he did not have a warrant and that `[i]t would have been easy enough to obtain a warrant.’ He also stated that there were no exigent circumstances, and that he did not ask for consent before entering the room to investigate and photograph the contraband.

Meanwhile, Adrienne Sanchez returned to the dorm room. When she opened the door she saw the two RAs, the resident director, and the campus police officer. At first, they told her to wait in the hall, but then allowed her in so that she could change clothes. Officer Pacatte `checked’ her clothes. He never asked her for consent to search the room. The group did let her leave to go eat. She came back with her coach and, by then, the Brownwood detectives had arrived. Again, she wasn't asked for consent to search the room. As Sanchez explained, `[T]he detectives talked to me, asked me what objects in the room, if they were mine or if they were Mikenzie's, and that was about it.’ Then they let her out.
State v. Rodriguez, supra.
The Court goes on to explain what happened next:
Sanchez told the officers that the items belonged to her roommate, Appellee. Officer Pacatte handed Brownwood Detective Joe Aaron Taylor a plastic sack that had the items in it. Appellee then arrived. After she was read her rights, she admitted that the contraband was hers and said that the pills were Ecstasy. Detective Taylor said the items were not `in plain view' in the traditional sense because a civilian had moved the items from their original place. Detective Taylor also said it would not have been difficult to obtain a warrant, and that the items seized were not in danger of destruction. The defense argued that the police conduct constituted a search.

We have never said that the RAs were State actors. That's not an issue. The issue is that once the police became involved and this became a prosecutorial search, which is what the law, the case law, stipulates, then, it becomes—you have to follow the Fourth Amendment and Article 1 guarantees.

According to the defense, the entry was a search, and no exception applied. The State countered that this `is a classic situation where someone who is not a state actor found drugs, notified law enforcement, and when law enforcement got there, it's obvious and plain the minute they are on the scene what it is.’ But if it were a search `Ms. Pryor, as an official at the university, would have had apparent authority to invite the officer in.’
State v. Rodriguez, supra.
The opinion then explains that the
trial court granted the motion to suppress, finding that the warrantless search of Appellee's residence, without the existence of an applicable exception, violated the Fourth Amendment. On direct appeal, the State, relying in part on Medlock v. Trustees of Ind. Univ., No. 1:11-CV-00977-TWP-DKL, 2011 WL 4068453 (S.D. Ind. Sept. 13, 2011), argued that, under the `private search’ doctrine, the officers' entry into Appellee's dorm room did not constitute a search: At the time of their entry, Appellee no longer possessed a subjective expectation of privacy that society would be willing to recognize as reasonable. In Medlock, Zachary Medlock had sought a preliminary injunction to prevent enforcement of his one-year suspension from Indiana University, the result of the discovery of marijuana and drug paraphernalia in his university dormitory room. Id. at *1. Medlock alleged that the search of his room by state school officials (and later the campus police) violated the Fourth Amendment. Id. at *4. In denying the preliminary injunction, the Southern District Court of Indiana noted that Medlock was unlikely to succeed in his claim because once resident advisors were lawfully inside his room to perform a health and safety inspection and discovered marijuana, they were justified in giving access to law enforcement officers. Medlock, 2011 WL 4068453, at *5-6.
State v. Rodriguez, supra.
The Court of Criminal Appeals then began its analysis of the issues involved in the appeal, explaining that the
court of appeals rejected the State's argument, noting that (1) the physical entry of the home is a search; (2) Appellee's dorm room is her home; and therefore, (3) the officers' physical entry into Appellee's dorm room constituted a search. Rodriguez, ––– S.W.3d at ––––, 2015 WL 5714548, at *4-6. The court found Medlock distinguishable because (1) it involved an administrative proceeding with Indiana University rather than a criminal prosecution; (2) the officer in Medlock observed the marijuana in plain view prior to entering the dorm room; and (3) the officer in Medlock actually obtained a search warrant. Id. at ––––, 2015 WL 5714548, at *5. The appellate court also agreed with the trial court's conclusion that the State failed to prove that the resident director had the authority, actual or apparent, to permit the officers to enter Appellee's dorm room without a search warrant. Id. at ––––, 2015 WL 5714548, at *6-7.

The court of appeals distinguished the search here from the dorm room search upheld in Grubbs v. State, 177 S.W.3d 313 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd). Grubbs had argued that the RA who had entered to investigate the odor of marijuana opened the door for the police, but the record showed that the officers waited in the hall and only entered after Grubbs or his roommate invited the officers in. Rodriguez, ––– S.W.3d at –––– – ––––, 2015 WL 5714548, at *5-6; Grubbs, 177 S.W.3d at 316-18. Here, though, it was dorm personnel who led the officers to Appellee's dorm room. `Despite the authority given to the dorm personnel to enter the dorm room themselves, they simply did not have authority to give police officers consent to enter Appellee's dorm room. Rodriguez, ––– S.W.3d at ––––, 2015 WL 5714548, at *6.
State v. Rodriguez, supra.
The opinion goes on to point out that the
court of appeals pointed to Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971). There, law enforcement officers, accompanied by Troy State University officials, searched six or seven dormitory rooms located in two separate residence halls. The search was based on a tip that students living in those rooms had marijuana. Id. at 286. In holding the search of Piazzola's dorm room unconstitutional, the Fifth Circuit noted that a dorm room is analogous to an apartment or a hotel room—a place in which Piazzola maintained a reasonable expectation of freedom from governmental intrusion. Id. at 288.
State v. Rodriguez, supra.
The court quoted this passage from Piazzola:
`[A] student who occupies a college dormitory room enjoys the protection of the Fourth Amendment. True the University retains broad supervisory powers which permit it to adopt the regulation heretofore quoted, provided that regulation is reasonably construed and is limited in its application to further the University's function as an educational institution. The regulation cannot be construed or applied so as to give consent to a search for evidence for the primary purpose of a criminal prosecution. Otherwise, the regulation itself would constitute an unconstitutional attempt to require a student to waive his protection from unreasonable searches and seizures as a condition to his occupancy of a college dormitory room. Clearly the University had no authority to consent to or join in a police search for evidence of crime.’
Rodriguez, ––– S.W.3d at ––––, 2015 WL 5714548, at *6 (quoting Piazzola, 442 F.2d at 289-90).
The State filed a petition for discretionary review, arguing that there was no Fourth Amendment search, but, if there were one, it was justified under either the special needs or consent exceptions to the warrant requirement.
State v. Rodriguez, supra.
The Court of Appeals then outlined the “standard of review” it would use in arriving at its decision – its “holding” – in the case. State v. Rodriguez, supra. It explained that
[i]n reviewing a motion to suppress, we apply a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Trial courts are given almost complete deference in determining historical facts. State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008). 2008); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). When a trial judge makes express findings of fact, an appellate court must examine the record in the light most favorable to the ruling and uphold those fact findings so long as they are supported by the record. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The appellate court then proceeds to a de novo determination of the legal significance of the facts as found by the trial court—including the determination of whether a specific search or seizure was reasonable. Kothe v. State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004).
State v. Rodriguez, supra.
The Court of Appeal then began its analysis of the Fourth Amendment issues in the case, explaining, initially, that the
Fourth Amendment guarantees `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ U.S. CONST. amend. IV. The central concern underlying the Fourth Amendment has remained the same throughout the centuries; it is the concern about giving police officers unbridled discretion to rummage at will among a person's private effects. State v. Granville, 423 S.W.3d 399, 405 (Tex. Crim. App. 2014). A Fourth Amendment claim may be based on a trespass theory of search (one's own personal effects have been trespassed), or a privacy theory of search (one's own expectation of privacy was breached). Ford v. State, 477 S.W.3d 321, 328 (Tex. Crim. App. 2015). If the government obtains information by physically intruding on persons, houses, papers, or effects, a trespass search has occurred. United States v. Jones, 565 U.S. 400, 404-05 (2012). If the government obtains information by violating a person's reasonable expectation of privacy, regardless of the presence or absence of a physical intrusion into any given enclosure, a privacy search has occurred. Florida v. Jardines, –––U.S. ––––, 133 S.Ct. 1409 (2013)Kyllo v.United States, 533 U.S. 27, 40 (2001). A search, conducted without a warrant, is per se unreasonable, subject to certain `jealously and carefully drawn’ exceptions. Georgia v. Randolph, 547 U.S. 103,109 (2006).
State v. Rodriguez, supra.
The opinion continues, explaining that the
physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Welsh v. Wisconsin, 466 U.S. 740, 748(1984). Of course, Fourth Amendment protections of the `home’ are not limited to houses. While a landlord may have limited authority to enter to perform repairs, a landlord does not have the general authority to consent to a search of a tenant's private living space. Maxwell v. State, 73 S.W.3d 278, 282 n. 3 (Tex. Crim. App. 2002 ) citing Chapman v. United States, 365 U.S. 610 (1961)). Nor may a hotel clerk validly consent to the search of a room that has been rented to a customer. Maxwell, id. (citing Stoner v. California, 376 U.S. 483 (1964)).

And as a general matter, `”[a] dormitory room is analogous to an apartment or a hotel room.’ ” Piazzola, 442 F.2d at 288 (quoting Com. v. McCloskey, 217 Pa.Super. 432, 272 A.2d 271, 273 (1970)).`”It certainly offers its occupant a more reasonable expectation of freedom from governmental intrusion than does a public telephone booth.”’ Id. Courts have widely agreed that a dorm room is a home away from home. Dorm personnel can—by virtue of contract—enter dorm rooms and examine, without a warrant, the personal effects of students that are kept there in order to maintain a safe and secure campus, or to enforce a campus rule or regulation; the students nevertheless enjoy the right of privacy and freedom from an unreasonable search or seizure. See Grubbs, 177 S.W.3d at 318; People v. Superior Court, (Walker) 143 Cal.App. 4th 1183, 1209, 49 Cal.Rptr.3d 831 (Cal. Ct. App. 2006); Beauchamp v. State, 742 So.2d 431, 432 (Fla. Dist. Ct. App. 1999); Com. v. Neilson, 423 Mass. 75, 666 N.E.2d 984, 985-86 (1996); Morale v. Grigel, 422 F.Supp. 988, 997 (D.N.H. 1976); Smyth v. Lubbers, 398 F.Supp. 777, 786 (W.D. Mich. 1975); People v. Cohen, 57 Misc.2d 366, 292 N.Y.S.2d 706, 713 (Dist. Ct. 1968), aff'd, 61 Misc.2d 858, 306 N.Y.S.2d 788 (Sup. Ct. 1969). The student is the tenant, the college the landlord. As the court of appeals put it: `Appellee enjoyed the same Fourth Amendment protection from unreasonable searches and seizures in her dormitory room as would any other citizen in a private home.’ Rodriguez, ––– S.W.3d at ––––, 2015 WL 5714548, at *4.
State v. Rodriguez, supra.
For these and other reasons, the appellate court found that
we are not asked to weigh in on the legality of the initial search by the RAs pursuant to the student housing agreement. Rather, we are asked to decide whether a subsequent search by law enforcement at the implied invitation of university officials violated the Fourth Amendment. We hold, as the court of appeals did, that Appellee retained an expectation of privacy in her dorm room even after it had been searched by private citizens and that the subsequent entry and search by law enforcement did not fall within any recognized exceptions to the warrant requirement. Consequently, we affirm the Court of Appeals.

State v. Rodriguez, supra.

Thursday, June 22, 2017

The Burglary, the Computer and Concealing or Destroying Evidence

The Burglary, the Computer and Concealing or Destroying Evidence

This post examines an opinion from the California Court of Appeal – Fourth District: People v. Pineda, 2017 WL 632823 (2017). The court begins the opinion by explaining that
Defendant and appellant Juan Ivan Pineda was convicted on multiple charges arising from his burglary of an apartment, his flight from the scene and subsequent apprehension by police officers. On appeal, Pineda argues there was insufficient evidence he possessed a concealed dirk or dagger within the meaning of Penal Code section 21310. In particular, Pineda argues there was insufficient evidence that the knife found in his possession, which folded, was in a locked position at the time he was apprehended.

Pineda also argues the prosecution did not produce substantial evidence he concealed or destroyed evidence, to wit: a computer he took during the burglary and threw into San Diego Bay during his flight from police officers. Because the computer was recovered and physically intact, he argues that at most he was guilty of the lesser included offense of attempted concealment or destruction of evidence and that the jury should have been instructed on that lesser offense.
People v. Pineda, supra.
This post only examines the second issue outlined above, i.e., concealing or destroying evidence.  People v. Pineda, supra.
The opinion goes on to explain how, and why, the prosecution arose:
On June 12, 2014, Coronado Police Officer Ryan Rose responded to a call reporting a suspicious person walking across lanes of traffic on State Route 75 carrying a concealed item under his shirt. Rose spotted defendant, who matched the description of the suspect. Defendant had his hands concealed in the front of his waistband, which led Rose to believe that defendant was carrying something under his shirt. Rose stopped his patrol car and got out. When Rose asked to speak to defendant, defendant responded by walking away at a `brisk pace.’ Defendant began running towards the beach as other police officers approached the scene. Defendant temporarily escaped the pursuing officers by scaling a gate and entering the residential community of Coronado Cays.

A laborer who was at work installing stones at a home in Coronado Cays near a boat dock spotted defendant swimming in San Diego Bay and watched defendant climb out of the bay, onto a dock. The laborer testified that the water defendant swam in was `kind of deep.’ Once on the dock, defendant began pulling items out of his waistband and dropping them into the water. Among the items the laborer saw defendant toss into the bay was a laptop computer, which defendant tossed about 10 to 15 feet into the water from the edge of the dock. Police officers arrived at the residence where the laborer was working and spotted defendant. They commanded defendant to stop, but he jumped back into the bay.

Defendant swam to another dock in an adjacent cay, climbed the dock, and entered the backyard of a nearby home where he was found and arrested. Rose arrived at the scene while defendant was being arrested. He saw that defendant had an open pocket knife in his pocket with the blade partially protruding through the bottom half of the pocket. At trial, Rose testified that the pocket knife was in a `fixed open position.’
People v. Pineda, supra.
The opinion goes on to explain that a
harbor patrol boat arrived at the scene where defendant dropped the items into the bay. Officers asked the laborer to show them the spot where defendant dropped the items into the water. A marker was placed at the approximate site where the items were dropped, and divers recovered a laptop computer. The computer had a sticker on it identifying the victim, her address and phone number. The computer was returned to the victim, but the computer no longer worked. The victim testified that her apartment was burglarized in the morning while she was out on a walk, the same morning defendant was arrested. The tread on boots defendant was wearing on the day of his arrest resembled footprints made in the sand outside the victim's apartment.
People v. Pineda, supra.
Since this post focuses on the second issue in Pineda’s appeal, it only briefly addresses the first issue he raised on appeal. The opinion begins its analysis of this issue by explaining that
Pineda argued that the prosecution (“the People”)
failed to produce evidence the pocket knife he was carrying was a dirk or dagger within the meaning of CaliforniaPenal Code § 21310.

When a defendant challenges the sufficiency of the evidence presented at trial, the appellate court must review the record `o determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.’ (People v. Green (1980) 27 Cal.3d 1, 55.) The reviewing court must `presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.’
(People v. Lindberg (2008) 45 Cal.4th 1, 27.)
People v. Pineda, supra.
The court goes on to explain that
[s]ection 21310 bars the carrying of a concealed `dirk or dagger.’ A pocket knife qualifies as a dirk or dagger under section 21310 `only if the blade of the knife is exposed and locked into position.’ (§ 16470; accord, In re George W. (1998) 68 Cal.App.4th 1208, 1214.)  In Castillopez, the court rejected the People's argument that a folding knife on which the blade is held in an open position by friction alone and may be closed by simply exerting pressure on the blade meets the statutory definition of a dirk or dagger. `[T]he essential difference between a nonlocking folding knife and a locking folding knife has been understood to be whether the exposed knife blade is immobile, thereby preventing accidental collapse while the knife is in use. [Citation.] We presume the Legislature was aware of this usage when it enacted the present version of [section 16470] in 1997. [Citation.] It follows that when the Legislature referred to blades ‘locked into position,’ it intended to refer to knives with blades rendered immobile, as by operation of a locking mechanism, rather than knives with blades that could be collapsed simply by folding the blade back into the handle.’ (Castillopez, supra, 63 Cal.4th at p. 331 (italics added).)

The only evidence the People produced to support the section 21310 charge was Rose's testimony that the knife was in a `fixed open position’ and photographs of the knife. In explaining what he meant by `fixed open position,’ Rose stated: `If you have a knife that folds open, that's a fixed open position.’ The photographs admitted into evidence show the knife in an open position. However, none of the photographs show any locking mechanism on the knife. Although one photograph shows a button on the lower side of the knife (exhibit 46), a second photograph of the interior mechanics of the knife (exhibit 48), appears to show that the button is not connected in any fashion to the blade in the open position.

Rose's testimony establishes no more than that the knife was a folding knife; it does not provide any evidence that the knife had a locking mechanism as required by Castillolopez. Likewise, the photographs of the knife admitted into evidence do not provide any evidence which shows the knife had a locking mechanism.

In sum, there is no evidence the knife found on Pineda was a dirk or dagger within the meaning of section 21310 and his conviction of that offense must be reversed.
People v. Pineda, supra.
The Court of Appeal then took up Pineda’s conviction for “destroying or concealing evidence” in violation of California Penal Code §135. People v. Pineda, supra. The opinion begins the court’s analysis of this issue by explaining that
Section 135 provides:  `A person who, knowing that any book, paper, record, instrument in writing, digital image, video recording owned by another, or other matter or thing, is about to be produced in evidence upon a trial, inquiry, or investigation, authorized by law, willfully destroys, erases, or conceals the same, with the intent to prevent it or its content from being produced, is guilty of a misdemeanor.’

Pineda contends his conviction for destroying or concealing evidence must be reversed because his effort to destroy or conceal the laptop computer he threw into the bay was unsuccessful. In People v. Hill (1997) 58 Cal.App.4th 1078 (Hill ), the court discussed criminal destruction or concealment of evidence. In Hill, a defendant, while being pursued by police, wadded up fraudulent traveler's checks and threw them out his car window. The police officer pursuing the defendant saw him throw the checks out the window, quickly recovered them and they were produced at trial. (Id. at pp. 1089–1090.) The court reversed the defendant's conviction for destruction or concealment of evidence. (Id. at p. 1092.) The court stated: `The purpose of section 135 is to prevent the obstruction of justice. [Citation.] The plain meaning of “destroy” is to ruin something completely and thereby render it beyond restoration or use. [Citation.] ‘Under this definition, if one destroys evidence, it necessarily becomes unavailable and cannot be produced. Conversely, if, despite one's efforts, the evidence is or can be restored and used, then, by definition, it has not been destroyed; rather, such efforts constitute an attempt: a direct, but ineffectual, act toward the commission of a crime.’ (Id. at p. 1089.)
People v. Pineda, supra.
The opinion goes on to explain that
[w]ith respect to what constitutes concealment, the court in Hill stated: `The word “conceal” simply means to hide or cover something from view. [Citation.] Section 135 proscribes concealing evidence ‘about to be produced in evidence upon any trial, inquiry, or investigation.’ Given its plain meaning, ‘conceal,’ in context, does not necessarily or reasonably suggest that a defendant must render evidence permanently unseen, or as defendant submits, unavailable. Rather successful concealment of evidence from a particular investigation is sufficient. [¶] Moreover, we must view the term in context and in light of the purpose of the statute. One can obstruct the administration of justice in varying degrees and in a variety of ways. Obviously, to permanently conceal evidence is a substantial obstruction of justice. To a lesser degree is any act of concealment that interferes with, impedes, frustrates, or unnecessarily prolongs a lawful search. [¶] “For example, a thief eludes the police and buries his booty in a neighbor's backyard. Police arrive and search him and his property but find nothing. The next day, a neighbor leads them to freshly tilled earth in his yard, and they dig up the stolen property. Has the thief violated the statute or merely attempted to do so? Given the ordinary meaning of ‘conceal,’ the purpose of the statute, and its applicability to any investigation, the thief has, in our view, violated the statute: his conduct successfully hid stolen property from view during the first search of him and his property and thereby impeded, frustrated, and prolonged an investigation of the theft. [¶] `It follows from our analysis, however, that where a thief does not interfere with, impede, frustrate, or prolong a lawful investigation, for example, where a thief is interrupted while concealing evidence or where the police watch him conceal it, he has not successfully hidden the evidence or appreciably affected an investigation and thereby obstructed justice. He has merely tried to do so. Thus, his conduct constitutes an attempt to violate the statute by concealment.’ (Hill, supra, 58 Cal.App.4th at p. 1090 (italics added.)
People v. Pineda, supra.
The Court of Appeal then articulated its “holding,” its decision on this issue:
Pineda maintains his act of throwing the laptop into the bay was at best an act of attempted concealment because, like the traveler's checks in Hill, a witness observed defendant disposing of the computer and the police were quickly able to retrieve it. We disagree. Unlike the traveler's checks in Hill, which were abandoned in plain view in the midst of a police pursuit, the laptop was tossed into water deep enough for boats to navigate. Though there is nothing in the record regarding the opacity of the water, the fact that officers asked a civilian witness where the items were tossed into the ocean indicates they did not know the precise location of the computer. The marker placed over the site where the witness said the items were tossed indicates that the computer was not conspicuously visible from above the water line. In short, Pineda's attempt to conceal the computer went well beyond an attempt and in fact `impeded, frustrated and prolonged’ the investigation of the burglary.
People v. Pineda, supra.
The Court of Appeal then articulated its holding on the issues in the case:
Because we must reverse Pineda's conviction on count 2, violation of section 21310, we need not discuss Pineda's contention that the abstract of judgment with respect to count 2 is erroneous. `Under principles of double jeopardy, our reversal due to insufficiency of evidence bars retrial for the offense.’ (Hill, supra, 58 Cal.App.4th at p. 1091, fn. 11.) Thus, the trial court will, on remand, be required to resentence Pineda and, in any event, issue an amended abstract of judgment reflecting his new sentence.

Pineda's conviction on count 2, violation of section 21310, is reversed and remanded for further proceedings consistent with the views expressed in our opinion. In all other respects, the judgment of conviction is affirmed.
People v. Pineda, supra.

Wednesday, June 21, 2017

“Surreptitiously Photographing or Videotaping a Person’s Clothed Anatomy”

This post examines a recent opinion from the Appeals Court of Massachusetts – Nantucket: Commonwealth v. Nascimento, 2017 WL 2467790 (2017). The Court begins the opinion by explaining that
[w]e consider here whether Massachusetts General Laws 272 § 105, as amended by St. 2014, c. 43, in response to Commonwealth v. Robertson, 467 Mass. 371, 5 N.E.3d 522 (2014), protects people in public places. The defendant argues that, although the Legislature clearly intended that the amended statute apply to public places, it failed to effectuate its intent. We disagree, and affirm the defendant's conviction.
Commonwealth v. Nascimento, supra.
The opinion goes on to explain that
[t]he defendant was charged with, and convicted of, violating General Laws 272 § 105, for using his cellphone to videotape surreptitiously two teenage girls under their sundresses while traveling on the ferry to Nantucket. The conduct took place on July 12, 2015, more than a year after the Legislature had—in response to public outcry over the Robertson decision—amended the statute to add the following language, portions of which we have highlighted because they are our focus here:

`Whoever wilfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person's clothing to view or attempt to view the person's sexual or other intimate parts when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public, and without the person's knowledge and consent, shall be punished . . .’

General Laws 272 § 105(b).

‘Sexual or other intimate parts,’ [are defined as] human genitals, buttocks, pubic area or female breast below a point immediately above the tip of the areola, whether naked or covered by clothing or undergarments.

General Laws 272 § 105(a).

In essence, the defendant argues that because no reasonable person would believe his or her clothed anatomy would not be visible in a public place, the statute must be limited to non-public spaces.
Commonwealth v. Nascimento, supra.
The Appeals Court goes on to explain that the
amended language came about, as we noted above, in response to public reaction to Robertson, supra, in which the Supreme Judicial Court reversed the conviction of a man who had surreptitiously videotaped and photographed the clothed crotch areas of women seated across from him on the MBTA trolley. Robertson involved the earlier version of the statute, which applied only to persons who were photographed when `nude or partially nude.’ Id. at 375, 5 N.E.3d 522. Because the victims in that case were neither nude nor partially nude, the Supreme Judicial Court concluded that the defendant's conduct was not covered by the statute. Ibid. Deciding as it did, the court did not reach Robertson's additional argument that the statute did not apply to conduct in public places.

Reaction to the Robertson decision was negative, swift, and strong. The Legislature reacted immediately by amending the statute to cover the type of conduct that had occurred in Robertson; namely, the surreptitious photographing or videotaping of a person's clothed private anatomy even when in public. The defendant acknowledges that the Legislature clearly intended to amend the statute to cover the conduct at issue here.
Commonwealth v. Nascimento, supra.
The Appeals Court went on to explain its analysis of the issue in this case, explaining that
[w]hat remains is to decide whether the statutory amendment effectuates that legislative intent. We believe it does. On its face, the amendment is unlimited as to location, referring neither to public nor private spaces. Instead, the amended statute applies `when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public.’ The word `when’ refers to a point in time and, although location certainly is a factor to be considered in assessing what an objectively reasonable expectation would be at that particular moment, it is neither the only factor nor is it necessarily dispositive. Likewise, a person's state of dress or undress is a factor to be considered, but it too is not dispositive. A person does not lose all reasonable expectation of privacy in his or her covered `sexual or intimate parts’ simply by being in public. Instead, that expectation must be measured against current mores, taking into account the totality of the circumstances. So viewed, it is an `eminently reasonable’ proposition `that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt.’ Robertson, supra at 380, 5 N.E.3d 522. The same is true for teenage girls riding the ferry to Nantucket.

            Judgment affirmed.
Commonwealth v. Nascimento, supra. 

Monday, June 19, 2017

The Network Investigative Technique, the Search Warrant and the Exclusionary Rule

This post examines an opinion from the U.S. District Court for the Northern District of Texas – Dallas Division: U.S. v. Pawlak, 2017 WL 661371 (2017). The District Court Judge who has the case began the opinion by explaining that
[t]he instant motions to suppress and dismiss the indictment challenge the Federal Bureau of Investigation's (`FBI's’) seizure of a computer server that hosted a child pornography website called `Playpen,’ and the FBI's ensuing operation of the website on a government server. 
U.S. v. Pawlak, supra.
The opinion goes on to explain that
[t]he facts of this case that are material to the court's decision are undisputed.2 In early 2015, acting on a tip from a foreign law enforcement agency, the FBI located and seized a computer server that contained a child pornography website called Playpen. Playpen existed as a hidden website on the Tor Network, also known as the dark web. Through sophisticated encryption, the Tor Network anonymizes and actively conceals identifying information about website users, including a user's true Internet Protocol (`IP’) address. To access Playpen, it was necessary for users to know the website's address on the Tor Network. Users could not, for example, stumble upon Playpen while browsing the Internet. Once on the Playpen website, users logged in with dedicated usernames and passwords. Playpen offered users various forums for different child pornography topics, including `Incest’ and `Toddlers.’ Inside each forum were discussion posts, images, and videos related to the particular topic.

Because the Tor Network anonymizes its users, the FBI could not uncover who was operating or accessing the Playpen website through normal investigative techniques. The FBI devised a plan to investigate Playpen's users, who would normally be untraceable. The plan called for the FBI to copy the Playpen server and continue to operate the Playpen website on the FBI server. While operating the website, the FBI would use a network investigative technique (`NIT’) that allowed it to retrieve information from the computers of the persons who logged in to the Playpen website. The NIT—computer code developed by the FBI—would be attached to various files uploaded to Playpen. When the website user downloaded a file, the NIT would force the user's computer to send to the FBI the user's actual IP address and other identifying information. With the actual IP address, the FBI could identify and locate the user.
U.S. v. Pawlak, supra.
The judge goes on to explain that
[a]cting according to the plan, the FBI copied the Playpen server and brought it to a government facility located in the Eastern District of Virginia. On February 20, 2015 the FBI applied for and obtained from a United States Magistrate Judge of the Eastern District of Virginia a search warrant (the `NIT Warrant]) authorizing the FBI to deploy the NIT program for a period of up to 30 days. The FBI also obtained from a United States District Judge a Title III order authorizing the FBI to intercept private messages and private chats in real time on the Playpen website. But the government acknowledges that Pawlak's username did not engage in private messages or chats during the period of time the FBI monitored communications under the Title III order.

On or about March 4, 2015, Pawlak accessed the Internet from his residence using a laptop computer that his employer, Sigma Cubed, had issued. Using the Tor Network, he logged in to the Playpen website and clicked on a post entitled, `My daughter 5yo-photo 2015.’ As the content from this post downloaded onto the laptop, the NIT computer code was sent automatically. The NIT relayed Pawlak's IP address and other information back to the FBI in the Eastern District of Virginia.

Based on this information, the FBI issued a subpoena to AT & T, the Internet service provider connected with Pawlak's IP address, and learned that Pawlak's wife was the account holder associated with the address. The FBI obtained a warrant to search Pawlak's residence, but it did not find computers containing child pornography. While executing the warrant, agents called Pawlak's wife's cell phone, and Pawlak answered. He volunteered the details of how he accessed and viewed child pornography. Thereafter, the FBI contacted Pawlak's current employer, Independence Oil Field Chemicals, and his previous employer, Sigma Cubed, to request access to the work computers issued to him. The companies granted permission, and upon searching these computers, the FBI found hundreds of images of child pornography.
U.S. v. Pawlak, supra.
The opinion then explains how this prosecution arose:
The grand jury later indicted Pawlak for the offenses of receipt of child pornography, in violation of 18 U.S. Code §2252A(a)(2)(A), and possession of child pornography involving a prepubescent minor, in violation of 18 U.S. Code § 2252A(a)(5)(B). Pawlak moves to suppress all information obtained by the NIT that was authorized pursuant to the application for Title III interception on or about February 20, 2015 in the Eastern District of Virginia and the application for the search of computers that access the Playpen website on or about February 20, 2015. He also moves to dismiss the indictment. The government opposes both motions.
U.S. v. Pawlak, supra.  This post only examines the argument Pawlak made in his motion to suppress, which was the issue the Judge addressed first.
The opinion explains that Pawlak moved to suppress the evidence “hat he alleges was collected in violation of the Fourth Amendment.” U.S. v. Pawlak, supra.  The Judge went on to explain that the
general rule under the Fourth Amendment is that searches of private property are reasonable if conducted pursuant to a valid warrant issued upon probable cause.  See, e.g., Katzv. United States, 389 U.S. 347, 357(1967). `A defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional.’ United States v. Waldrop, 404 F.3d 365, 368 (U.S. Court of Appeals for the 5th Circuit 2005) (citing United States v. Guerrero–Barajas, 240 F.3d 428, 432 (5th Cir. 2001)). `The exclusionary rule prohibits introduction at trial of evidence obtained as the result of an illegal search or seizure' United States v. Runyan, 275 F.3d 449, 466 (5th Cir. 2001). The exclusionary rule also `encompass[es] evidence that is the indirect product or ‘fruit’ of unlawful police conduct.’ Id. (citing Wong Sun v. United States, 371 U.S. 471, 488 (1963)).
U.S. v. Pawlak, supra. 
The judge then began his analysis of Pawlak’s argument that the search violated the Fourth Amendment:
The court considers first the legality of the search. Pawlak contends that the search was unlawful because it exceeded the scope of the NIT Warrant. Pawlak maintains that the warrant `states that the property to be seized—the data including the identifiers from the Activating Computers—was . . . located in the Eastern District of Virginia,’ and authorized a search only of `one FBI computer server located in the Eastern District of Virginia hosting child pornography.’D. Br. 13–14. This is a mischaracterization of the NIT Warrant.

The NIT Warrant includes a standard court form that incorporates Attachments A and B. Although the form states that the property is located in the Eastern District of Virginia, it also specifically cites, and implicitly incorporates, Attachments A and B. Attachment A, entitled `Place to be Searched,’ provides that the NIT warrant authorizes the use of an NIT to be deployed on the computer server described in Attachment A to obtain information described in Attachment B from the activating computers described in Attachment A. Attachment A identifies the computer server as `the server operating the Tor network child pornography website referred to herein as the TARGET WEBSITE, as identified by its URL [website redacted by the court] which will be located at a government facility in the Eastern District of Virginia.` Gov't Br. Attach. A at 4. Attachment A identifies the `[t]he activating computers’ as “those of any user or administrator who logs into the TARGET WEBSITE by entering a username and password.’ Id. Attachment B, entitled `Information to be Seized,’ provides that specific information is to be seized `[f]rom any ‘activating’ computer described in Attachment A.’ Gov't Br. Attach. B at 5. The NIT Warrant therefore authorizes the search and seizure of the server operating the Tor Network child pornography website, which is located at a government facility in the Eastern District of Virginia, and the activating  , wherever located. It is not limited in scope to one FBI computer server located in the Eastern District of Virginia.
U.S. v. Pawlak, supra. 
The District Judge then takes up yet another Fourth Amendment argument Pawlak made in his appeal, i.e., “Pawlak also challenges the validity of the NIT Warrant on the ground that it was an improper general warrant.” U.S. v. Pawlak, supra.  The District Court Judge began his analysis of this argument by explaining that
`[u]nder the Fourth Amendment, `no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ U.S. Const. amend. IV. `Because indiscriminate searches and seizures conducted under the authority of ‘general warrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment, that Amendment requires that the scope of every authorized search be particularly described.’ Walter v. United States, 447 U.S. 649, 657, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (internal quotation marks and citation omitted). `The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another.’ Marron v. United States, 275 U.S. 192, 196 (1927).

In other words, the Fourth Amendment proscribes `issuance of general warrants allowing officials to burrow through a person's possessions looking for any evidence of a crime.’ United States v. Kimbrough, 69 F.3d 723, 727 (5th Cir. 1995) (citing  Andresenv. Maryland, 427 U.S. 463, 480 (1976)). For example, in United States v. Quinlan, 149 F.3d 1179  (5th Cir. 1998) (per curiam) (unpublished table decision), the panel held that a warrant was general where it authorized seizure of `property that constitutes evidence of the commission of a criminal offense and/or contraband, the fruits of a crime, and/or things criminally possessed.’ Id. at *1.
U.S. v. Pawlak, supra. 
The judge then began winding up his analysis of this particular argument, explaining that
Pawlak contends that the NIT Warrant was a general warrant because it `did not specify or identify any particular Activating Computer or router/modem the Government wished to search.’ D. Br. 15. The NIT Warrant identified the `Place to be Searched’ as the computer server operating the Tor network child pornography website, to be located at a government facility in the Eastern District of Virginia, and `activating computers,’ that is, computers `of any user or administrator who logs into the [Playpen website] by entering a username and password.’ Gov't Br. Attach. A at 4. Under the heading `Information to be Seized,’ the NIT Warrant authorized the seizure of seven specific categories of information, including `the “activating” computer's actual IP address.] Id. at 5.

The court concludes that the NIT Warrant was not a general warrant. The NIT Warrant limited the search to only the host server for the Playpen website, to be located at a government facility in the Eastern District of Virginia, and to defined `activating computers,’ that is, computers `of any user or administrator who logs into [the Playpen website] by entering a username and password.’ Gov't Br. Attach. A at 4. Because the magistrate judge found that the information to be seized from the server and activating computers would be evidence of multiple violations of federal child pornography laws, the warrant was not broader than necessary to uncover evidence of criminal activity. See, e.g. ,United States v. Matish, 193 F.Supp.3d 585, 609 (E.D. Va. 2016) (`[T]here existed a fair probability that anyone accessing Playpen possessed the intent to view and trade child pornography.’).
U.S. v. Pawlak, supra. 
For these and other reasons, the court denied Pawlak’s motion to suppress. U.S. v. Pawlak, supra.