CYB3RCRIM3

The Laptop, the Seizure and the Plain View Doctrine

2012-02-01T15:28:00.006-05:00

As I explained in a post I did several years ago, the plain view doctrine is a legal principle that can expand the scope of a lawful 4th Amendment intrusion, i.e., a “search” or “seizure.” And as Wikipedia notes, the 4^th Amendment creates a right to be free from “unreasonable” searches and seizures, which means “reasonable” searches and seizures do not violate the 4^th Amendment, i.e., are constitutional.

To be “reasonable” a search or seizure must be conducted either (i) pursuant to a valid search warrant issued by a state or federal magistrate or (b) pursuant to an exception to the search warrant requirement, such as consent. As the U.S. Supreme Court noted in Texas v. Brown, 460 U.S. 730 (1983), the plain view doctrine, which we’ll be dealing with in this post, isn’t “an independent `exception” to the warrant [requirement],” but is “better understood” as “simply as an extension of whatever the prior justification for an officer's `access to an object’ may be.”

The plain view doctrine, then, is a piggyback principle -- a doctrine that can come into play when police are executing a lawful search and see something they immediately recognize as (i.e., have probable cause to believe is) contraband or evidence of a crime. (Contraband is illegal in and of itself; cocaine and marijuana are contraband. Evidence of a crime is not illegal in and of itself, but it can be seized because it can be used to convict someone of a crime; a gun police have probable cause to believe was used to murder someone is evidence of a crime, but not contraband.)

This is how I explain the plain view doctrine to my students: Assume police have a warrant to go to John Doe’s home and search for a stolen safe (a small one). They enter his home – which is lawful, since they have the warrant and it authorizes them to do this – and start to look around for the safe. On a table in the living room they see a package of what they immediately recognize as cocaine. The search warrant is for a safe and, as such, it does not authorize them to seize the cocaine, even though they have probable cause to believe it is contraband.

This is where the plain view doctrine comes in: It says that if police are at a lawful 4th Amendment vantage point – i.e., have the right to be where they are – and from that vantage point they can see something and it is “immediately apparent to them” that it is evidence of a crime, they can seize it. The Supreme Court has said that the search warrant protects the person’s privacy, so the only incremental intrusion on a 4th Amendment interest is the intrusion on possession when the officers seize the evidence they have observed, the cocaine in this example.

That brings us to U.S. v. Camp, 2012 WL 148690 (U.S. District Court for the Eastern District of North Carolina 2012). All I know about the prosecution, as such, in this case is that Roger Van Santvoord Camp is charged with “four counts of bank fraud in violation of 18 U.S. Code § 1344, nine counts of false statements in connection with a loan application in violation of 18 U.S. Code § 1014, and two counts of aggravated identity theft in violation of 18 U.S. Code § 1028A.” U.S. v. Camp, supra.

On June 8, 2011, a special agent with the Federal Bureau of Investigations (Agent Spears) and a Raleigh Police Detective (Detective Boyce) executed an arrest warrant for [Camp] at his place of business. During [Camp’s] arrest, Agent Spears saw [his] laptop computer on [Camp’s] desk and seized the laptop during the arrest of [Camp]. Subsequently, on June 27, 2011, Agent Spears applied for and received a warrant to search [Camp’s] laptop computer.

U.S. v. Camp, supra.

I’m assuming Spears found evidence on the laptop that the government wanted to use in prosecuting Camp on the crimes outlined above because Camp subsequently filed a motion to suppress “the seizure and subsequent search of [his] laptop computer.” U.S. v. Camp, supra.

Camp’s first argument for suppressing the evidence was that

when Agent Spears and Detective Boyce entered [his]office on June 8, 2011, the officers did not possess a search warrant that would have encompassed the laptop computer, and because no exception to the warrant requirement existed, the seizure of the laptop computer at the time of [Camp’s] arrest was in violation of the 4th Amendment and the laptop and its contents should therefore be suppressed.

U.S. v. Camp, supra.

The district court judge who has this case began his analysis of that argument by outlining the applicable law:

`[S]eizures of property are subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment has taken place.’ Soldal v. Cook Cnty., Illinois., 506 U.S. 56 (1992). Law enforcement officers may seize evidence in plain view if `(1) the seizing officer is lawfully present at the place from which the evidence can be plainly viewed; (2) the seizing officer has a lawful right of access to the object itself; and (3) the object's incriminating character is immediately apparent.’ U.S. v. Williams, 592 F.3d 511 (4th Cir. 2010). . . .

U.S. v. Camp, supra. He also explained that, as noted above, under the Supreme Court’s decision in Texas v. Brown, supra, “an officer need not `know’ that an item is contraband or evidence of a crime, but rather must have probable cause to believe that the object is associated with the criminal activity.” U.S. v. Camp, supra.

The judge then explained that

[h]ere, Agent Spears and Detective Boyce were lawfully in [Camp’s] office pursuant to an arrest warrant. [His] laptop was on [Camp’s] desk in his office, in plain view of law enforcement.

It was the only computer visible to law enforcement in [his] office. Agent Spears, an investigating agent on [Camp’s] case, knew that [Camp] had used a computer as an instrumentality of the fraud [he] was being charged with and had been made aware by a reliable witness that [Camp] utilized a laptop computer for business activities.

Because Agent Spears had probable cause to believe that [Camp’s] laptop was associated with [his] criminal activity, the seizure of the laptop computer in [Camp’s] office was pursuant to a valid exception to the warrant requirement.

U.S. v. Camp, supra.

The judge appends a footnote to that last statement, in which he says Camp’s

argument as to the validity of Agent Spears' seizure of the laptop computer focuses solely on whether the seizure was a valid search incident to an arrest, assumedly because, in his affidavit in support of his application for a search warrant, Agent Spears refers to his seizure of the laptop as `incident to the arrest of [Camp] on June 8, 2011.’

U.S. v. Camp, supra.

As I’ve noted in earlier posts, search incident to arrest is an exception to the 4^th Amendment’s warrant requirement. And as Wikipedia notes, this exception lets an officer search the “person” of the arrestee (e.g., pockets, clothing) and the area immediately around the person (which is often referred to as the “lunge” areas). So Spears apparently assumed that the search incident exception justified his seizing the laptop; for it to do so, the laptop would had to have been in the immediate area in which the arrest was made.

This judge apparently didn't think the search incident exception authorized the seizure of the laptop, because he follows the comments quoted above with this observation:

Because the Court has found that a valid exception to the warrant requirement existed when Agent Spears seized the laptop, it is inapposite whether the Agent correctly identified his justification for seizing the laptop while arresting [Camp] in his application for a search warrant.

U.S. v. Camp, supra.

Since the judge found that the plain view doctrine – not the search incident exception – justified the seizure of the laptop, he also found it necessary to point out that what the agent did came within the parameters of the doctrine. As Wikipedia notes, the plain view doctrine only allows officers to seize contraband or evidence of a crime; it does not justify searching for contraband or evidence of a crime. The judge, therefore, also noted that

[n]either Agent Spears nor Detective Boyce searched the laptop computer once it had been seized. Rather, Agent Spears filed an application for a search warrant to search the contents of the laptop computer on June 27, 2011, and only upon receipt of a validly executed search warrant did he conduct a search of the contents of the laptop computer.

U.S. v. Camp, supra. So, since the judge found that the seizure of the laptop did not violate the 4^th Amendment, Camp’s motion to dismiss on that basis failed. U.S. v. Camp, supra.

Camp also argued that the evidence obtained from his laptop should be suppressed because “the agent's affidavit failed to establish probable cause in the application for a search warrant.” U.S. v. Camp, supra.

As I’ve noted before, to obtain a search warrant an officer submits an application for the warrant that includes information establishing probable cause to believe the search will locate evidence or contraband. To show probable cause, officers can provide oral testimony but they usually include an affidavit – a written statement under oath – to establish some/all of the information needed to show probable cause; you can find an application and affidavit here, if you’d like to see one.

The state or federal magistrate who is being asked to issue the search warrant reviews all this and then decides whether, “`given all the circumstances set for in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” U.S. v. Camp, supra (quoting Illinois v. Gates, 462 U.S. 213 (1983)).

In support of his application for a warrant to search [Camp’s] laptop computer, Agent Spears provided the magistrate with a sworn affidavit detailing the bases of his probable cause to believe that the laptop would contain evidence of [Camp’s] crimes.

Agent Spears detailed his history and experience as an FBI agent, the basis of his belief that evidence of [Camp’s] alleged crime would be contained on the laptop computer, and [Camp’s] specific activities that would have caused evidence of [Camp’s] alleged crimes to be contained on the laptop computer. Having considered the application for a search warrant in full, the Court finds that the magistrate had a substantial basis for concluding that probable cause existed.

U.S. v. Camp, supra.

The judge therefore denied Camp’s motion to suppress. U.S. v. Camp, supra. The trial is set to begin on February 21, 2012. U.S. v. Camp, supra.

“Anonymous”?

2012-01-30T09:09:00.008-05:00

This post examines an issue that arose in a Vermont prosecution for “disturbing the peace by telephone in violation of” 13 Vermont Statutes Annotated § 1027(a)(iii). State v. Wyrocki, __ A.3d __, 2012 WL 231554 (Vermont Supreme Court 2012).

Section 1027(a)(iii) provides as follows:

A person who, with intent to terrify, intimidate, threaten, harass or annoy, makes contact by means of a telephonic or other electronic communication with another and . . . disturbs, . . . by repeated anonymous telephone calls . . . , whether or not conversation ensues, the peace, quiet or right of privacy of any person at the place where the . . . communications are received shall be fined not more than $250.00 or be imprisoned not more than three months or both. . . .

Jennifer Wyrocki was convicted of violating this statute, for reasons we’ll get to in a moment, and appealed, arguing that the calls she made were not “anonymous.” State v. Wyrocki, supra.

This, according to the opinion, is how the prosecution arose:

On August 22, 2009, Roxanne Emilo received two telephone calls in succession on her cellphone while at work. The first came at about 3:20 in the afternoon. Though Emilo's cellphone has caller identification (caller ID), she could not view the caller's phone number because it registered on her caller ID as `withheld.’

Upon answering the call, however, Emilo at once identified the caller as [Wyrocki] because she recognized her voice. Emilo knew [Wyrocki’s] voice because [Wyrocki] was her son's girlfriend and they had spoken many times before.

Emilo's son had been living with [Wyrocki] for more than six years, during which time [she]and Emilo had visited each other's houses and talked over the phone. At trial, Emilo testified that she was `absolutely’ sure that [Wyrocki] was the caller.

After Emilo answered, [Wyrocki] unleashed a series of profanity-laced insults at her. Screaming, she said to Emilo, `I hope you're happy,’ `You fucking bitch,’ `He's going to die in jail,’ and `I hope you die.’ Upset, Emilo ended the call. Two minutes later, Emilo received a second call, during which she again immediately recognized [Wyrocki] as the caller. This time [Wyrocki] said, `I hope you run your car into a tree and fucking die.’

Unknown to Emilo, her son had been removed from [Wyrocki’s] apartment earlier that day and taken to jail. This apparently resulted from Emilo's report to the Vermont Housing Authority that her son was living with [Wyrocki] in violation of [her] housing agreement. Although Emilo was unaware of her son's arrest, she had long disapproved of his relationship with [Wyrocki], with whom he shared substance abuse problems.

State v. Wyrocki, supra.

Wyrocki was charged with violating § 1027(a)(iii) and convicted after a bench trial. State v. Wyrocki, supra. Before the trial judge entered a verdict of conviction, Wyrocki moved for a judgment of acquittal on the charge, arguing that the calls she made were not “`anonymous.’” State v. Wyrocki, supra. Since anonymity is an element of the offense, if the calls were not anonymous, Wyrocki would have to be acquitted. State v. Wyrocki, supra.

The trial judge rejected her argument, concluding that Wyrocki’s

calls were anonymous as required by § 1027. Using Black's Law Dictionary, it defined `anonymous’ as `not named or identified,’ and reasoned that [Wyrocki’s] calls satisfied this definition because she did not identify herself and `called from a phone that prevented Emilo from seeing her phone number.’

State v. Wyrocki, supra.

As I noted above, Wyrocki appealed, arguing, in part, that “the trial court erred in finding her calls were `anonymous’ because Emilo knew that [Wyrocki] was the person calling her.” State v. Wyrocki, supra. The Supreme Court began its analysis of her argument by noting that since the “meaning of `anonymous’ under § 1027 [was] ‘one of first impression,'” it would review “the trial court's interpretation de novo.” State v. Wyrocki, supra.

The court explained that § 1027 was “[e]nacted in 1967,” which meant it became

law well before caller ID became commonplace in American telephones and has not been amended substantively since. . . . Vermont's prohibition on anonymous disturbing calls was in place for years before there was any conventional way for a caller's identity to be known short of the now somewhat quaint necessity of having to blindly pick up the receiver to answer a telephone. The absence, or even masking of caller ID, therefore, is of no moment to our reading of § 1027.

State v. Wyrocki, supra.

The Supreme Court then summarized the “dueling definitions of `anonymous’ offered” by Wyrocki and by the prosecution. State v. Wyrocki, supra.

The State, echoing the trial court, argues that a call is `anonymous’ under § 1027 when `a defendant [takes] steps to conceal his or her identity,’ a definition also drawn from Black's Law Dictionary. Black's Law Dictionary 100 (8th ed.2000). To the State, this means [Wyrocki’s] calls were anonymous `because she failed to identify herself and she called from a phone that prevented her victim from seeing who was calling.’

[Wyrocki] contends that no call is anonymous if the person receiving the call identifies the caller. She does not dispute the use of Black's Law Dictionary to define `anonymous,’ but disagrees with viewing anonymity from the caller's perspective only. [Wyrocki] maintains the calls were not anonymous because Emilo immediately recognized her as the caller.

State v. Wyrocki, supra.

The Supreme Court agreed with Wyrocki. State v. Wyrocki, supra. It explained that

[t]his construction is consistent with the common understanding of what `anonymous’ means. Again, Black's Law Dictionary defines `anonymous’ as `not named or identified.’ Black's Law Dictionary 100 (8th ed.2000). Webster's defines it as `having or giving no name’ or `of unknown or unnamed origin.’ Webster's New Collegiate Dictionary 46 (1981). Another dictionary defines anonymous as `[h]aving an unknown or unacknowledged name’ or `having an unknown or withheld authorship or agency.’ The American Heritage Dictionary of the English Language 54 (New College 1979).

State v. Wyrocki, supra.

The court noted that the prosecution “posit[e]d that the trial court properly relied upon Black’s Law Dictionary to define `anonymous,’ as opposed to another dictionary definition”, but found that as

shown by these three exemplary definitions, . . . there is little, if any, significant variation as to the commonly accepted meaning of the term. The real issue is not between definitions, but whether the trial court's focus on anonymity from the caller's viewpoint, and not the listener's, comports with the meaning of the Legislature.

Under all of these definitions, a telephone caller's anonymity depends in part on the listener's non-recognition of the person engaging in the call, since at the instant of recognition the caller's name or identity, or both, are known.

Under any definition, a call cannot be anonymous when its author is known to the listener. It is therefore a necessary condition of § 1027 anonymity that the person taking the call does not know the sender.

State v. Wyrocki, supra.

The Supreme Court then pointed out that

[b]ecause the trial court's findings and Emilo's testimony leave no doubt that she knew [Wyrocki] was the caller, we hold that [her] calls were not anonymous within the meaning of § 1027 . If the conduct charged against [Wyrocki] had occurred after enactment of § 1027, but during the twenty years before the dawn of caller ID, it is beyond cavil that it would be no offense under § 1027(a). The invention of caller ID did not turn what was no violation of the statute in 1967 into a crime today.

State v. Wyrocki, supra.

The court also explained that in reaching this result, it was rejecting the prosecution’s

argument that defining `anonymous’ as `anonymous in fact’ leads to an absurd result. The State contends that § 1027 could hardly be enforced if its violation depended upon victims not recognizing a caller's voice.

First, if correct, the State's argument is still no reason to apply the statute contrary to its plain meaning at the time of passage. Second, it is not inherently absurd to read a criminal statute in a way that limits the range of possible offenders. See State v. Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004 (Vermont Supreme Court 1989) (`Penal statutes . . . are to be strictly construed in a manner favorable to the accused.’).

Moreover, as [Wyrocki] impliedly argues in her brief, it is not patently unreasonable that the Legislature would criminalize terroristic, intimidating, threatening, harassing, or annoying telephone calls from unknown, rather than known actors, since such messages can reasonably be viewed as more vexing, disturbing, or sinister when communicated anonymously.

In contrast, [Wyrocki’s] identity was not unknown, her telephonic communication was not anonymous, and § 1027 does not criminalize the conduct alleged in this case.

State v. Wyrocki, supra.

The court therefore reversed Wyrocki’s conviction. State v. Wyrocki, supra.

Since there was no dissent, I think it’s appropriate to note a little more about the prosecution’s arguments on appeal. The prosecution argued that if the Supreme Court accepted Wyrocki’s interpretation of § 1027(a)(iii), this would lead to an

absurd result. . . . Under Section 1027(a)(iii) it should only matter whether a defendant took steps to conceal his or her identity when harassing a victim via repeated telephone calls. . . . It should not matter whether or not the victim was able to eventually figure out who the defendant is. . . .

If it were the case that prosecution was prohibited simply because a victim recognized a defendant's voice, then a majority of prosecutions would never occur and Section 1027(a)(iii) hardly enforced. . . .

Appellee State of Vermont’s Brief, State v. Wyrocki, 2011 WL 638362 (2011). The prosecution also argued that accepting Wyrocki’s argument would mean that a

criminal could avoid prosecution under Section 1027(a)(iii) if they were simply bad at concealing their identity. In other words they could avoid prosecution if they were bad criminals. It is hard to imagine the legislature intended this result. . . .

[Wyrocki] took several steps to conceal her identity. First, she placed both calls from a phone where the number would be `withheld’ on her victim's caller ID. Second, for both calls she failed to identify herself when her victim picked up the phone. Finally, for both calls she hung up immediately after disturbing her victim's peace, quiet, and right to privacy without giving her victim a chance to try to identify who was harassing and annoying her. . . .

While [Wyrocki’s] counsel argues . . . that she assumed her victim knew who was calling, there is no evidence in the record to support that. . . . Consequently, according to the plain meaning of the term `anonymous,’ [Wyrocki] was not `named or identified’ when she place the repeated telephone calls to her victim, even though the victim was able to discern her identity and help law enforcement enforce Section 1027(a)(iii).

Appellee State of Vermont’s Brief, State v. Wyrocki, supra.

Slip-and-Fall, Facebook and Privilege

2012-01-27T14:59:00.006-05:00

As Wikipedia explains, in U.S. tort law, “slip and fall”

is a claim or case based on a person slipping (or tripping) and falling. It is a tort, and based on a claim that the property owner was negligent in allowing some dangerous condition to exist that caused the slip or trip.

This post is about an issue that arose in a slip and fall case filed in the U.S. District Court for the Eastern District of Michigan. On January 29, 2010, Lela Tompkins filed a slip and fall law suit against the Detroit Metropolitan Airport, Northwest Airlines and several other defendants. First Amended Complaint, Tompkins v. Crown Corr., et al., (U.S. District Court for the Eastern District of Michigan 2010), 2010 WL 2390920. This, according to the Complaint, is how the case arose:

5. At all times material hereto, the Defendants. . . owed a duty to the Plaintiff, LELA TOMPKINS, and other members of the general public similarly situated, to design, build, repair, maintain and keep the Midfield Terminal, Main Tram Station, Detroit Metropolitan Airport and its premises in a reasonably safe condition and to protect, and/or warn the Plaintiff, LELA TOMPKINS, of any dangers which said Defendants' business and/or its employees and/or agents were, or should have been, aware existed.

6. Prior to December 29, 2005, Defendants . . . were advised of and attempted to repair a leak or leaks in the roof of the Midfield Terminal, Main Tram Station, Detroit Metropolitan Airport but negligently failed to properly perform the repairs and/or maintenance of the roof.

7. On December 29, 2005, the Plaintiff, LELA TOMPKINS, was a business invitee of the Defendants . . . at the Midfield Terminal, Main Tram Station, Detroit Metropolitan Airport.

8. On December 29, 2005, the Plaintiff, LELA TOMPKINS, was walking in the Midfield Terminal, Main Tram Station, Detroit Metropolitan Airport when and where she slipped and fell on water, liquid or other foreign substance on the floor, which condition existed in violation of applicable safety and building codes, as well as good design, building and maintenance practices and procedures.

First Amended Complaint, Tompkins v. Crown Corr., et al., supra.

(If you’re wondering how and why a tort case arising under Michigan law could be filed in a federal court, I’m assuming the case is brought under the court’s diversity jurisdiction. As Wikipedia notes, the U.S. Constitution gives federal courts the jurisdiction to hear suits in which the parties are “diverse” in citizenship, i.e., are from different states or different countries. The Complaint says Tompkins is a citizen of Florida and the defendants were citizens of Michigan. First Amended Complaint, ¶¶ 2 & 4, Tompkins v. Crown Corr., et al., supra.)

The opinion we’re going to be dealing with says Tompkins (the Plaintiff)

claims back and other injuries related to a December 29, 2005 accident at Detroit Metropolitan Airport. Plaintiff alleges that as a result of her injuries, she is impaired in her ability to work and to enjoy life.

Tompkins v. Detroit Metropolitan Airport, 2012 WL 179320 (U.S. District Court for the Eastern District of Michigan 2012).

The issue the federal judge who has the case is dealing with in this opinion does not go to the merits of the case, i.e., the defendants’ liability or lack of liability. He’s dealing with “Defendant Northwest Airlines’ Motion to Compel Plaintiff to Execute Authorizations” to release “records from her Facebook account.” Tompkins v. Detroit Metropolitan Airport, supra. Tompkins responded to the motion by objecting to “production of her entire Facebook account, including those sections she has designated as private and are therefore not available for viewing by the general public.” Tompkins v. Detroit Metropolitan Airport, supra.

Northwest Airlines’ Motion to Compel is part of the process of discovery in a civil case. As Wikipedia explains, discovery is the

pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions. . . . When discovery requests are objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.

So, here, Tompkins objected to Northwest Airlines’ attempt to get her Facebook records, and Northwest Airlines responded by filing a motion to compel. That is the issue the judge is addressing this in opinion, i.e., whether or not to require Tompkins to grant Northwest Airlines access to all of her Facebook records.

He began his analysis of the issues raised by the motion to compel by noting that

other courts have come to varying conclusions as to the discovery of information posted on social networking sites such as Facebook. The Defendant cites two state court cases, McMillen v. Hummingbird Speedway, Inc.,2010 WL 4403285 (Pennsylvania Common Pleas Court 2010), and Romano v. Steelcase, Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650 (New York Supreme Court 2010), in support of its argument that Facebook information is discoverable.

Both cases rejected claims that Facebook postings are privileged or that their disclosure would infringe upon a right of privacy. Instead, the cases ordered disclosure under the traditional discovery principles of Rule 26(b) of the Federal Rules of Civil Procedure, that is, `[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense,’ and that for purposes of discovery, `relevant’ evidence `need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.’

Tompkins v. Detroit Metropolitan Airport, supra.

The judge then explained that in both of these cases,

the public profile Facebook pages contained information that was clearly inconsistent with the plaintiffs' claims of disabling injuries. In McMillen, the plaintiff alleged `substantial injuries, including possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life.’ However, the public portion of his Facebook account contained comments about his fishing trip and his attendance at the Daytona 500 race in Florida.

In Romano, the plaintiff claimed that she had sustained permanent, serious injuries that caused her to be largely confined to her house and bed. The public portions of her Facebook and MySpace accounts showed that to the contrary, `she [had] an active lifestyle and [had] traveled to Florida and Pennsylvania during the time period she claims that her injuries prohibited such activity.’

Tompkins v. Detroit Metropolitan Airport, supra.

He also noted, however, that in McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524 (Supreme Court of New York – Appellate Division 2010), which Tompkins relied on, the court

upheld the denial of a motion to compel Facebook information not on grounds of privacy or privilege, but because the defendant `failed to establish a factual predicate with respect to the relevancy of the evidence,’ finding that `defendant essentially sought permission to conduct ‘a fishing expedition’ into plaintiff's Facebook account based on the mere hope of finding relevant evidence.’ [McCann v. Harleysville Ins. Co., supra.]

Tompkins v. Detroit Metropolitan Airport, supra.

The judge found that material posted on

a `private’ Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.

Rather, consistent with Rule 26(b) and with the cases cited by both Plaintiff and Defendant, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff's Facebook account.

Tompkins v. Detroit Metropolitan Airport, supra.

He then addressed the two specific arguments Northwest Airlines made in support of its motion to compel. Tompkins v. Detroit Metropolitan Airport, supra. In the first, it argued that Tompkins’

public postings, as well as some surveillance photographs, show the relevance of the private postings. They do not. The public postings, attached to Defendant's motion as Exhibit B, are photographs showing the Plaintiff holding a very small dog and smiling, and standing with two other people at a birthday party in Florida.

Unlike the situations in McMillen and Romano, these pictures are not inconsistent with Plaintiffs claim of injury or with the medical information she has provided. She does not claim that she is bed-ridden, or that she is incapable of leaving her house or participating in modest social activities. The dog in the photograph appears to weigh no more than five pounds and could be lifted with minimal effort.

Tompkins v. Detroit Metropolitan Airport, supra. (In a footnote, the judge explains that Tompkins asserted, “[i]n her response to this motion, . . . that the dog weighs two pounds.” Tompkins v. Detroit Metropolitan Airport, supra.)

Northwest Airlines’ second argument involved “surveillance photographs” it attached to its motion to compel – photos that showed Tompkins “pushing a grocery cart”. Tompkins v. Detroit Metropolitan Airport, supra. Once again, the judge was not persuaded:

If the Plaintiff's public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the nonpublic section of her account. But based on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence. McCann v. Harleysville Ins. Co. of New York, supra (`Although defendant specified the type of evidence sought [access to plaintiff's Facebook account], it failed to establish a factual predicate with respect to the relevancy of the evidence.’).

Tompkins v. Detroit Metropolitan Airport, supra. (In a footnote, he pointed out that “[i]n the context of Social Security Disability claims,” courts have found that “`[m]erely because an individual is somewhat mobile and can perform some simple functions, such as driving, dishwashing, shopping, and sweeping the floor’” does not mean that he or she is not disabled. Tompkins v. Detroit Metropolitan Airport, supra (quoting Fulwood v. Heckler, 594 F. Supp. 540 (U.S. District Court for the District of Columbia 1984)).

He also pointed out that Northwest Airlines’

request for the entire account, which may well contain voluminous personal material having nothing to do with this case, is overly broad. `District courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce.’ Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (U.S. Court of Appeals for the 6th Circuit 2007) (citing Federal Rule of Civil Procedure 26(b)(2)); accord Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (U.S. Court of Appeals for the 5^th Circuit 1978) (Rule 26 `does not, however, permit a plaintiff to ‘go fishing’ and a trial court retains discretion to determine that a discovery request is too broad and oppressive.’).

Tompkins v. Detroit Metropolitan Airport, supra.

The judge therefore denied Northwest Airlines motion to compel Tompkins to “sign authorizations to access her Facebook account”. Tompkins v. Detroit Metropolitan Airport, supra.

The Dog Sitter, the Computer and the Motion to Suppress

2012-01-25T12:06:00.005-05:00

As the result of a sequence of events I’ll outline in a moment, Texan Gregg Baird was “charged with committing thirteen counts of possession of child pornography” in violation of Texas law. Baird v. State, __ S.W. 3d __, 2012 WL 89905 (Texas Court of Appeals 2012).

After the trial judge denied his motion to suppress evidence upon which the charges were based, Baird pled guilty to ten of the counts and, according to this news story, was sentenced to 15 years in prison, followed by 10 years probation. Baird v. State, supra. (And if you’re interested, this story has a little more information about the case.)

Baird appealed, arguing in part, that the trial judge erred when he denied Baird’s motion to suppress evidence. Baird v. State, supra. To understand why the trial judge denied the motion, it’s necessary to understand several things, the first of which is how law enforcement officers came into possession of the evidence on which the prosecution was based:

Baird hired Dawn Killian, who casually knew Baird through her boss, to stay at his home and to care for his dog while he was on a ten-day vacation to Panama with his parents. She met with Baird twice at his home, first to meet the dog, and second, on the day of Baird's departure, to be shown around the house. In the second meeting, Killian said that Baird walked her through the house and told her to `help yourself to everything,’ which he also said when he showed her the kitchen. Baird showed her how to operate his television and stereo.

Killian said that Baird also walked her through his bedroom and bathroom and told her to keep his bedroom door closed (both when she was and was not in the home) because he did not want his dog in the bedroom. Killian was to stay in a guest bedroom. Baird had a roommate who had his own bedroom and office, and Baird indicated that those were places that Killian and the dog would not be going in.

Killian testified that Baird did not specifically tell her where she could and could not go in the house and that he did not specifically instruct her to not go into his bedroom or that anything was `off limits.’

On the evening of May 8, 2009, Killian went into Baird's bedroom to use his computer to try to copy two songs from a music CD to her new phone. Baird had not specifically told her not to use his computer, nor did he specifically tell her that she could use it. The computer was on but in sleep mode, and when she moved the mouse, the computer's desktop came on. A password was not needed to access the computer.

After copying the songs to the computer and then realizing it would be more complicated to get them on her phone, Killian decided to delete the songs. She went into the `recent documents’ folder to delete the songs and saw file names suggestive of child pornography. She next opened the `recycle bin’ and saw thumbnail images of child pornography and then began playing a video that depicted child pornography.

After anonymously consulting with others in an online forum and then discussing it with people she knew, Killian reported what she had seen on Baird's computer to the College Station police. A search warrant was obtained and executed, and child pornography was found on several devices seized from Baird's home.

Baird v. State, supra.

Baird also testified at the hearing on the motion to suppress. Baird v. State, supra.

He said that he never gave Killian permission to enter his bedroom or to use his computer, and he disputed that he even showed her his bedroom. But he admitted that, other than telling her to keep the bedroom door closed so that the dog could not go in there, he did not specifically tell her to stay out of his bedroom or to not use his computer.

Baird also admitted that his roommate had permission to use, and did use, Baird's computer. Baird thought he had turned off the computer before he left on vacation.

Baird v. State, supra.

Now we come to the interesting part of the case (or maybe, one of the interesting parts of the case). If you follow this blog and/or read cases or other sources about cybercrime prosecutions, you probably know that people usually base a motion to suppress evidence on the argument that law enforcement officers found the evidence by engaging in conduct that violated the 4^th Amendment’s ban on “unreasonable” searches and seizures. Baird, though, did not rely on the 4^th Amendment.

Instead, he moved to suppress the evidence “obtained in the search under [Texas] Code of Criminal Procedure article 38.23(a),arguing that in entering his bedroom and accessing his computer, Killian committed the offenses of criminal trespass and breach of computer security.” Baird v. State, supra. Article 38.23(a) of the Texas Code of Criminal Procedure states that “[n]o evidence obtained by an officer or other person in violation of any provisions of the . . . laws of the State of Texas . . . shall be admitted in evidence against the accused.”

This statute, then, provides an alternative basis for moving to suppress evidence; instead of having to show that law enforcement officers violated the 4^th Amendment (which, of course, also applies in Texas cases), a defendant can argue either that a law enforcement officer or a private citizen obtained the evidence by violating state law.

Here, as noted above, Baird is arguing that Killian violated Texas law by committing criminal trespass and/or “breach of computer security.” Texas Penal Code § 30.05(a) defines criminal trespass as follows:

(a) A person commits an offense if the person enters or remains on . . . property of another, including . . . a building, . . . without effective consent and the person . . .

(1) had notice that the entry was forbidden. . . .

(2) `Notice’ means:

(A) oral or written communication by the owner. . . .

And Texas Penal Code § 33.02(a) defines “breach of computer security” as follows: “A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.”

In its opinion, the Court of Appeals notes that in

denying the motion to suppress, the trial court made findings of fact and conclusions of law. When a trial court makes explicit fact findings, we are to determine whether the evidence, viewed in the light most favorable to the trial court's ruling, supports the fact findings.

Baird v. State, supra. On appeal, Baird challenged “several of the trial court's findings of fact, complaining that they are not supported by, and are contrary to, the evidence.” Baird v. State, supra.

The first was the trial court judge’s finding that Baird

placed no limits or restrictions on Killian's access to his home, bedroom, or computer and that Baird told her to `help herself to anything,’ or words to that effect. Baird emphasizes that both he and Killian testified that Baird did not affirmatively give her explicit permission to go into his bedroom or to use his computer.

But, it is undisputed that he did not tell her not to go into his bedroom and not to use his computer, and it is undisputed that, in telling her to keep his bedroom door shut at all times, it was said in conjunction with his desire to keep the dog out of his bedroom.

Killian said that Baird told her more than once -- and not just in the kitchen in reference to food and drink -- to help herself to anything.Because we must view the evidence in the light most favorable to the trial court's ruling, and because the trial court judges the credibility of the witnesses and the weight to be given their testimony, . . . these findings are supported by the evidence.

Baird v. State, supra. With regard to Killian’s statement that Baird told her to help herself to anything, the court noted that in

an attempt to show that he did restrict her access, Baird asserts that the record shows that he communicated to Killian that she was not to enter the roommate's bedroom or office, but her testimony does not support that assertion:

`Q. Okay. And after you went through the house with Mr. Baird on this particular occasion, just before he left, did he indicate to you that anything was off limits?’

`A. He did point out that the spare -- there was a roommate and this was the roommate's bedroom and that this was the roommate's office. You know, kind of indicating that those were probably places that neither I or the dog would be going. But, no, he said help yourself to everything.’ . . .

`Q. . . .With respect to the roommate's room and his bathroom or study, I guess, did he specifically tell you not to go in there or just – '

`A. No, but I would just assume, you know, that they're roommates.’

Baird v. State, supra. (The opinion notes that the trial judge “specifically found that Killian was credible” as a witness. Baird v. State, supra.)

Baird also challenged

the findings that he took no steps to protect the information on his computer through the use of passwords or other such methods (it is not disputed that the computer was not password-protected) and that Killian's access to the bedroom and computer was reasonably foreseeable to Baird. These complaints depend on Baird's interpretation that, by telling Killian to keep the bedroom door closed to keep the dog out, he was restricting her access to both the bedroom and the computer that was in it.

Based on Killian's and Baird's testimony and the trial court's determination of Killian's credibility, we reiterate that these findings are supported by the evidence.

Baird v. State, supra.

The Court of Appeals then noted that when a defendant moves to suppress evidence under Texas Code of Criminal Procedure article 38.23(a), “on the ground it was wrongfully obtained by a private person in a private capacity, the defendant must establish that the private person obtained that evidence in violation of law.” Baird v. State, supra. Baird also challenged the trial judge’s conclusions that “in discovering the evidence on his computer, Killian did not commit any criminal offense and specifically did not commit . . . criminal trespass or breach of computer security.” Baird v. State, supra. The Court of Appeals noted that a “common element of both of these offenses is the absence of effective consent.” Baird v. State, supra (citing Texas Penal Code § 30.05(a)).

The trial judge “concluded that Killian had Baird's effective consent to access his bedroom and computer.” Baird v. State, supra. Under Texas law, consent “means assent in fact, whether express or apparent.” Baird v. State, supra (citing Texas Penal Code § 1.07(a)(11)). Baird argued that these

conclusions are erroneous because they are based on the above-discussed allegedly faulty findings, which we have upheld. And while we agree that the evidence shows that Baird did not give his express consent to Killian to access his bedroom and computer, the evidence supports a finding of apparent, and thus effective, consent, as discussed above.

Because these conclusions are supported by the evidence, the trial court did not err in concluding that Killian did not commit the offenses of criminal trespass or breach of computer security because she had Baird's effective consent.The trial court did not err in denying Baird's motion to suppress.

Baird v. State, supra. So Baird lost. The Court of Appeals affirmed his conviction and sentence. Baird v. State, supra.

The 4th Amendment, Cameras and “Containers”

2012-01-23T12:56:00.005-05:00

As I’ve noted in earlier posts, the 4^th Amendment creates a right to be free from “unreasonable” searches and seizures. And as Wikipedia explains, a “reasonable” search or seizure must be conducted pursuant either to a search (and seizure) warrant or to an exception to the 4^th Amendment’s warrant requirement.

Issues concerning the violation and/or applicability of the 4^th Amendment usually arise in criminal cases, as the result of the defendant’s filing a motion to suppress evidence. But, as I’ve noted in earlier posts, issues concerning the violation of the 4^th Amendment (and/or other constitutional provisions) can also arise when someone brings a civil rights suit – under 42 U.S. Code § 1983 – alleging that their constitutional rights were violated by police activity. If you’d like to read more about § 1983 suits, check out Wikipedia’s entry on the history and current applicability of 42 U.S. Code § 1983.

As that preface probably suggests, this post examines a case in which a court was required to determine if a man’s 4^th Amendment rights were violated by police conduct. The case is Schlossberg v. Solesbee, 2012 WL 141741 (U.S. District Court for the District of Oregon 2012), and it arose from Joshua Schlossberg’s lawsuit alleging that “Eugene Police Sergeant Bill Solesbee violated his 4th Amendment rights by arresting him without probable cause, using excessive force against him, and searching his camera without a warrant.” Schlossberg v. Solesbee, supra.

The opinion does not detail the facts that led to the case because, as the judge notes, “[t]he parties are well versed in the events giving rise to this litigation”. Schlossberg v. Solesbee, supra. The judge, therefore, only discusses facts that are

material to the search of the camera. The recording on [Schlossberg’s] camera reveals the following facts. During a discussion with [Schlossberg], Solesbee noticed [his] camera and asked if [Schlossberg] was recording him. [Schlossberg said he was and that he had told Solesbee that twice. Solesbee responded: `no, you asked if you could tape me’ and then said `give me that, it's evidence.’ The recording shows Solesbee coming around the table towards [Schlossberg]. Then, the recording suddenly stops.

Solesbee and another officer took [Schlossberg] to the ground and, during this process, Solesbee was able to take possession of [his] camera. After taking [Schlossberg] to the ground, Solesbee told him he was under arrest. Solesbee charged [Schlossberg] with unlawful intercepting of communication and resisting arrest. [Schlossberg] was handcuffed and placed in a police cruiser. While standing at the police cruiser, Solesbee viewed the contents of [his] camera without getting a warrant.

Schlossberg v. Solesbee, supra.

The judge then explains that this “case joins the growing stockpile of cases around the country which force courts to consider the warrantless police search of personal electronic devices incident to arrest.” Schlossberg v. Solesbee, supra. He notes that “[a]s the parties point out, neither the United States Supreme Court nor the [U.S. Court of Appeals for the] 9th Circuit have squarely considered this issue.” Schlossberg v. Solesbee, supra. As Wikipedia explains, federal district courts in Oregon are within the appellate jurisdiction of the 9^th Circuit, which means they are directly bound by decisions of the U.S. Supreme Court and the 9^th Circuit. In deciding an issue, they can also consider decisions from other courts, though those decisions are not binding on them.

One more bit of preface: As I’ve noted in earlier posts, search incident to arrest is a valid exception to the 4^th Amendment’s warrant requirement. Wikipedia also explains what this exception is and how, and when, it applies to justify a search or seizure. To be valid, a search incident to arrest has to remain with the scope of the exception, which lets an officer search the “person” of the arrestee (i.e., clothing, pockets, etc.) and any items – “containers” – the person is carrying. As the judge in this case explained, in

U.S. v. Finley, the 5th Circuit [Court of Appeals] found Finley's cell phone was analogous to a closed container found on his person and upheld the . . . search of his cell phone incident to arrest. . . . The Finley court noted that in U.S. v. Robinson, [414 U.S. 281 (1973)], the Supreme Court held that the scope of a search incident to arrest is not determined simply by the need to preserve evidence from destruction or ensure officer safety.

Thus, under Robinson, so long as the arrest is lawful, no additional justification is necessary to search an arrestee's person for evidence. In . . . extending the search incident to arrest exception to a search of a cell phone's contents, the 5th Circuit reasoned that a cell phone is indistinguishable from any other container to which Robinson might apply.

Schlossberg v. Solesbee, supra.

He also noted, however, that other courts have taken a different view:

In U.S. v. Park, [2007 WL 1521573 (U.S. District Court for the Northern District of California 2007], the Northern District of California rejected the Finley court's approach and reasoned that advancements in cell phone technology and the volume of information citizens can store on their cell phones is relevant to a 4^th Amendment analysis. . . .

The Park court specifically stated that while cell phones might contain information similar to that contained in a wallet, the quantity and quality of the information contained on an electronic device distinguished such devices from other devices associated with a person.

Schlossberg v. Solesbee, supra. The Park court noted that once the officers seized the defendants’ cell phones, they could have gotten a warrant to search them, which meant the search incident exception wasn’t appropriate in that situation. U.S. v. Park, supra.

The Schlossberg judge also noted that the

Ohio Supreme Court similarly rejected the 5th Circuit's reasoning in Finley, finding that `a cellphone is not a closed container for purposes of a 4th Amendment analysis' and that a cell phone's `ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain.’ [State v. Smith, 920 N.E.2d 949 (Ohio Supreme Court 2009.] Therefore, once police have seized a cell phone, they must obtain a warrant to search its contents. [State v. Smith, supra.]

Schlossberg v. Solesbee, supra.

The judge then explained that he found the reasoning in

Smith and Park persuasive. Courts which have likened electronic devices such as cell phones to closed containers fail to consider both the Supreme Court's definition of `container’ and the large volume of information capable of being stored on an electronic device. In New York v. Belton, [453 U.S. 454 (1981], the Supreme Court stated that `container’ means `any object capable of holding another object.’ . . .

Electronic devices do not store physical objects which are in plain view once the containers are opened. Moreover, the storage capability of an electronic device is not limited by physical size as a container is. In order to carry the same amount of personal information contained in many of today's electronic devices in a container, a citizen would have to travel with one or more large suitcases, if not file cabinets.

Schlossberg v. Solesbee, supra.

The judge noted that cases that apply the reasoning in “Finley and other cases allowing warrantless searches of electronic devices incident to arrest set forth a new rule: any citizen committing even the most minor arrestable offense is at risk of having his or her most intimate information viewed by an arresting officer.” Schlossberg v. Solesbee, supra. He found that the facts in Newhard v. Borders, 649 F.Supp.2d 440 (U.S. District Court for the Western District of Virginia 2009) illustrated this proposition:

In the course of a routine search incident to arrest, the arresting officer retrieved Newhard's cell phone from Newhard's pocket, conducted a warrantless search of the photos contents and viewed multiple photos of Newhard and his girlfriend nude and in `sexually compromising positions.’ Newhard v. Borders, supra. The officer showed Newhard's private images (which were wholly unrelated to his drunk driving arrest) to another officer. Newhard v. Borders, supra. Subsequently, at the stationhouse, several more officers and stationhouse employees viewed the photos on the seized phone, notifying others that the photos were available for viewing enjoyment. Newhard v. Borders, supra.

Schlossberg v. Solesbee, supra. This judge explained that Newhard “lost his job as a public school teacher as a result of the ensuing scandal” and so brought a § 1983 suit against the officers. Schlossberg v. Solesbee, supra. The trial judge found the officers’ conduct “`deplorable, reprehensible and insensitive’”, but dismissed the suit because he found that the 4^th Amendment did not clearly protect “the contents of electronic devices.” Schlossberg v. Solesbee, supra (quoting Newhard v. Borders, supra).

As you may have already guesses, the judge in this case did not agree. He noted that it i

is inexplicable as well as inconsistent with the privacy interest at the core of the 4^th Amendment that many courts now allow officers to conduct warrantless searches of electronic devices capable of holding large volumes of private information which may or may not have any relevance to the arrest offense.

Schlossberg v. Solesbee, supra.

He also explained that

personal electronic devices such as cameras and cell phones cannot be considered closed containers, I must consider how they should be classified. As discussed above, these devices are capable of holding large volumes of private information and legitimate concerns exist regarding the effect of allowing warrantless searches of such devices.

On a daily basis citizens may carry with them digital cameras, smart phones, ipads (or other tablets) and laptops. These devices often include some combination of email services and internet browsing. Potential information stored on them includes: phonebook information, appointment calendars, text messages, call logs, photographs, audio and video recordings, web browsing history, electronic documents and user location information.

Schlossberg v. Solesbee, supra.

The judge then outlined his holding in this case, noting that individuals have a 4^th Amendment expectation of privacy in “[e]lectronic devices such as [Schlossberg’s] digital camera” because they

hold large amounts of private information, entitling them to a higher standard of privacy. I find that warrantless searches of such devices are not reasonable incident to a valid arrest absent a showing that the search was necessary to prevent the destruction of evidence, to ensure officer safety, or that other exigent circumstances exist.

I further find that it is impractical to distinguish between electronic devices -- between a laptop and a traditional cell phone or a smart phone and a camera, before an officer decides whether to proceed with a search of the electronic device incident to arrest. A rule requiring officers to distinguish between electronic devices is impractical. It would require officers to learn and memorize the capabilities of constantly changing electronic devices.

A primary goal in search and seizure law has been to provide law enforcement with clear standards to follow. In sum because an electronic device like a camera has a high expectation of privacy in its contents, an officer may not review the contents as a search incident to arrest. Instead, the officer must obtain a warrant unless exigent circumstances exist.

Schlossberg v. Solesbee, supra.

The judge therefore held that “Solesbee violated the 4th Amendment when he viewed the contents of [Schlossberg’s] camera without first obtaining a warrant.” Schlossberg v. Solesbee, supra.

Constructive Possession . . . Not Proven

2012-01-20T11:18:00.008-05:00

This post examines an issue that arose when a defendant who was convicted of possessing child pornography in violation of federal law appealed his conviction to the U.S. Court of Appeals for the 5^th Circuit. More precisely, it examines the court’s analysis of, and ruling on, one of the argument he made on appeal.

The defendant’s name is Keith Moreland (whom the opinion refers to as “Keith”, for reasons that will become apparent in a moment), and he was “convicted by a jury of knowing possession of child pornography [in violation of] 18 U.S. Code § 2252A(a)(5)(B), sentenced to 51 months imprisonment and five years of supervision after release, and ordered to register as a sex offender.” U.S. v. Moreland, __ F.3d __, 2011 WL 6187430 (U.S. Court of Appeals for the 5^th Circuit 2011).

This is how the prosecution arose:

Keith Moreland lived in a house in Columbus, Mississippi with his wife Deanna and their three children. In 2007, George Moreland, Keith's father, who was dying of cancer, stayed at Keith and Deanna's house for several months, off and on, sleeping on the living room couch. There were two computers in the house: a desktop, located in the living room, and a laptop. Keith, Deanna, and George each had free access to and consistently used both computers. According to Deanna, George regularly used both computers, including late at night and at other times when Keith and Deanna were absent or not in the living room.

On September 28, 2007, Deanna was using the desktop computer and noticed a URL (an internet address) in the web browser's history which contained the words `Teen Topanga.’ She testified that she clicked on it and found what appeared to be a pornographic website, where she saw pictures of `girls’ who `appeared to be underage’ and were `dressed, you know, very provocative’ but were not nude. Deanna found the same URL in the web browser history on the laptop computer as well.

Deanna was upset and called Keith, who was at work, to tell him what she had found. Keith was a supervisor at a company called American Eurocopter, where he regularly worked 10-to-12-hour days and was `responsible for the planning and outlay of work programs throughout the day,’ and had `about 14 to 16’ employees working under him. According to Deanna, Keith `didn't really seem alarmed at all’ and `said, well, you know, I haven't looked at anything like that. I don't know how it got there. We'll talk about it when I get home.’ Keith worked late that day, as he often did.

After speaking with Keith, Deanna called the sheriff's department. She testified that a friend of hers had suggested that she call the police. The deputy who came to the house asked Deanna to turn the two computers over to the police, and she did so. She also decided to pack a few things and take the children to her parents' house, because she expected to have a heated argument with Keith when he came home from work, and did not like to argue in front of the children.

Deanna later testified that she was `concerned about what Keith's position would be with regards to his father.’ When Keith returned home from work, Deanna and the children had gone to her parents' house. The following morning, Keith went to compete in a bass fishing tournament with a friend. While he was at the tournament, he received another phone call from Deanna, at which point he walked back home.

U.S. v. Moreland, supra. In January of 2008, George – Keith’s father – died and on May 27, 2008 Keith was charged with possessing child pornography in violation of the statute cited above. U.S. v. Moreland, supra.

At trial, the prosecution introduced “slide photos of 112 digital images that had been taken from the hard drives of the Moreland household’s two computers.” U.S. v. Moreland, supra. The prosecution also introduced the testimony of Matthew Manley, a “Columbus, Mississippi police officer”; Manley describes his forensic examination of the two computers. U.S. v. Moreland, supra. “He was not offered, qualified, or accepted as an expert in child pornography or in forensic computer technology.” U.S. v. Moreland, supra.

He testified that the majority of the images introduced at trial were recovered from “the disk slack space”. U.S. v. Moreland, supra. Manley said “`[t]hey had been deleted and, you know, were not able to be fully recovered as far as date, time stamps, and things like that to know when they were deleted, but the images were able to be recovered.’” U.S. v. Moreland, supra.

Manley found

usage patterns showing that a user of the computers had visited a website that might have contained child pornography shortly after or shortly before visiting the Yahoo! website where the user checked email or played dominoes. As [he] acknowledged, . . . this did not indicate who actually visited those sites. Keith was not the only person who used the computers prior to Manley's inspection of them . . . in October 2007. For several months prior to September 28, 2007, Keith's father . . . lived in the Morelands' living room and used the family's computers as he pleased.

On cross-examination, Manley testified that the data revealed that the suspected pornographic websites were visited by someone using the computers in 2007. Thus, as he admitted, Manley could not identify whether it was George, Deanna, Keith, or another person who was using the computers when the usage patterns occurred. Manley acknowledged that anyone who knew Keith's password could log on to the computers and use [his] accounts on them; and that if Keith logged on to one of the computers, put his password in and got up and left it on, another person could come and use that computer in Keith's name and account.

U.S. v. Moreland, supra.

Keith testified that “`[m]y father always logged in under my name’” when he used the family’s computers and Deanna testified that Keith’s father, George, “`was definitely into pornography. He would readily admit it to anybody that would listen.’” U.S. v. Moreland, supra. Eric Moreland, Keith's brother (and George's son), corroborated their testimony about George. U.S. v. Moreland, supra. Eric lived with his wife, Kayla, next door to

George's house in Gatman, Mississippi. He testified that he had known `for a long time’ that George `had an issue with viewing adult material.’ Eric testified that after George learned Keith's computers were being investigated for child pornography, George `contacted me and asked me to bring his computers to him at the residence he was staying and proceeded to ask me to destroy it, to take the hard drive out of the machine and get rid of it.’

According to Eric, `I told [George] I wasn't actually going to do that, but I would take it apart and let him destroy it hisself. As far as I know, he destroyed it. I have no idea where it's at at this point. I just assumed that he got rid of it.’ Kayla . . . testified that `right after all of this came up . . . George called Eric and asked Eric to pick up George's computer from George's house and bring it to George's current residence.’ . . . Eric and Kayla both testified that after George died, they cleaned out George's house and found a large amount of pornographic material. . . .

U.S. v. Moreland, supra.

According to the opinion, the federal prosecutor tried to

discredit and show the partiality of Deanna, Eric, and Kayla through his examination of Deanna -- who appeared as both a government and defense witness -- and his cross-examination of the other Moreland family members. Beyond this, however, the government did not present any affirmative evidence that called into question those witnesses' testimony, including their description of George's affinity for pornography and his actions to destroy his own computer's hard drive after the police obtained custody of Keith's and Deanna's home computers.

U.S. v. Moreland, supra.

As I noted earlier, Keith was convicted and appealed. On appeal, he argued that the evidence presented at trial “was insufficient to prove beyond a reasonable doubt (i) that he possessed [an image of child pornography that had been transported in interstate or foreign commerce” or (ii) that he did so knowingly.” U.S. v. Moreland, supra. To obtain a conviction under 18 U.S. Code § 2252A(A)(5)(B), the government must prove both elements beyond a reasonable doubt. U.S. v. Moreland, supra.

The 5^th Circuit began its analysis of his arguments by noting that possession can be

either actual or constructive. . . . `Actual possession means the defendant knowingly has direct physical control over a thing at a given time.’ U.S. v. Munoz, 150 F.3d 401 (5th Cir.1998). `Constructive possession is the ownership, dominion or control over an illegal item itself or dominion or control over the premises in which the item is found.’ U.S. v. De Leon,170 F.3d 494 (5th Cir.1999). Because there was no evidence that Keith had direct physical control of any of the 112 digital images in the computers, the prosecution tried this case as a `constructive possession’ case.

U.S. v. Moreland, supra. (If you’d like to read more about actual and constructive possession, check out this earlier post.)

The court then explained that the prosecution can prove constructive possession by using circumstantial evidence:

Dominion, control, and knowledge, in most cases, may be inferred if a defendant had exclusive possession of the place in which the contraband is found, but this inference cannot be sustained if the defendant shared joint occupancy of the place. . . . When the government seeks to prove constructive possession of contraband found in a jointly occupied location, it must present additional evidence of the defendant's knowing dominion or control of the contraband, besides the mere joint occupancy of the premises, in order to prove the defendant's constructive possession. . . .

A conviction based upon constructive possession will be upheld only where the prosecution has proven there is `something else (e.g., some circumstantial indicium of possession) . . . besides mere joint occupancy` that `support[s] at least a plausible inference that the defendant had knowledge of and access to the . . . contraband.’

U.S. v. Moreland, supra (quoting U.S. v. Mergerson, 4 F.3d 337 (5^th Cir. 1993)).

The Court of Appeals explained that because the prosecution sought to prove that Keith had constructive possession of the images, and because the computers had been in the joint custody and use by Keith with George and Deanna, it had to introduce evidence, other than “mere joint custody,” that would support a reasonable inference that (i) Keith knew the images were in the computers and (ii) that he had the “knowledge and ability to access” them and “to exercise dominion or control over them.” U.S. v. Moreland, supra. It found the prosecution had failed to do so. U.S. v. Moreland, supra.

The Court of Appeals noted, first, that Manley admitted he could not determine from the

data in the computers where the 112 images . . . had come from, when they entered the computers, or when they had been deleted and redesignated as slack spaces on the computers' hard drives. He acknowledged that he could not tell from the data in the computers . . . whether Keith, George, Deanna, or another person, was using the[m] when the computers received the 112 images; or deleted the images and redesignated them as unallocated slack spaces on the computers' hard drives; or visited websites that he suspected of containing child pornography.. . .

In sum, Manley did not provide any testimony or evidence from which it could reasonably be inferred that Keith had ever seen the 112 images; knew they were in the computers; or had the knowledge and ability to access those images or exercise dominion or control over them.

U.S. v. Moreland, supra.

The court also rejected the prosecution’s argument that Keith’s statements and conduct

after Deanna called him at work . . . to tell him what she found on the computers provides circumstantial evidence besides the mere joint custody of the computers that furnished the jury with a basis for reasonably inferring Keith knew about the 112 images in the computers and had the knowledge and ability to access the[m] . . . and exercise dominion or control over them.

The linchpin of the government's argument is its bare assertion or speculation that if Keith had been ignorant of the images in the computers, he would have gone home immediately to inspect the computers and to upbraid his seriously ill father and to throw him out of the house; rather than replying, as he did, by saying he didn't know the images were there because he hadn't looked at anything like that; and that he would look into the matter when he got off work.

We do not believe the government's assertion or speculation is reasonable or supports a plausible inference of Keith's knowledge of, access to, or dominion or control over the 112 images. The government does not point to any facts or evidence in the record to support its assertion or speculation that a person's failure to react so drastically and harshly to his dying father under these circumstances is grounds for a reasonable inference of his guilt of knowingly possessing child pornography.

U.S. v. Moreland, supra.

The Court of Appeals noted, in closing, that in its previous joint occupancy cases it had found constructive possession only when there was “some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon or contraband”, such as one case in which the defendant was charged with constructively possessing a weapon that “was found in plain view.” U.S. v. Moreland, supra. It explained that in this case, “the digital images were not in plain view, but were in the computers' unallocated slack spaces, which are accessible only to a knowledgeable person using special computer software, and there was no circumstantial indicium that established that Keith knew of the images or had the ability to access them.” U.S. v. Moreland, supra.

So the 5^th Circuit held that “the evidence supporting Keith’s conviction of knowing possession of child pornography [was] constitutionally insufficient.” U.S. v. Moreland, supra. It therefore reversed the conviction which, of course, voided the sentences. U.S. v. Moreland, supra.

The 4th Amendment, the Cell Phone and “Inevitable Discovery”

2012-01-18T14:26:00.007-05:00

As this site notes, (i) the 4^th Amendment creates a right to be free from “unreasonable” searches and seizures and (ii) creates a default preference for warrants, i.e., means that searches and seizures should, whenever possible, be conducted pursuant to a search (and seizure) warrant. And as I’ve noted in earlier posts, searches and seizures are “reasonable” when they are conducted without a search warrant if they were conducted pursuant to a recognized exception to the warrant requirement.

That bit of preface brings us to the U.S. Court of Appeals for the 5^th Circuit’s recent decision in U.S. v. Ochoa, __ F.3d __, 2012 WL 104997. A convicted Johnny Ochoa Jr. of “conspiracy to possess with intent to distribute at least five kilograms of cocaine and unlawful use of a communication facility, in this case a cell phone.” U.S. v. Ochoa, supra. After being sentenced to 235 months and 48 months in prison on both charges, the sentences to run concurrently, he appealed. U.S. v. Ochoa, supra.

On appeal, Ochoa argued that the trial judge “erred in denying his Motion to Suppress information obtained from his cell phone”. U.S. v. Ochoa, supra. To understand Ochoa’s arguments on appeal, you need to understand how the case arose:

While patrolling the area south of Uvalde, Texas, Border Patrol Agent Gomez received a dispatch over the radio to be on the lookout for a small, two-tone truck.Shortly thereafter, Gomez saw the truck, which was driving approximately 100 miles per hour in the rain, and followed it into a gas station. He noticed the driver was gripping the steering wheel and looking in the rearview mirror repeatedly. Gomez also noticed the truck did not have license plates. Accordingly, he decided to initiate a stop of the truck when it left the gas station.

The driver identified himself as Jesus Guerra and [said] he was traveling to Uvalde to pick up his grandmother. When questioned further, however, Guerra did not know the route to Uvalde. Gomez noticed the license plates were on the dashboard of the truck and asked why they were not on the truck, but Guerra did not have a good explanation. . . . Guerra gave consent for Gomez to search his truck. Gomez and another agent found six packages of cocaine in the truck with a total value of $150,000 in the floorboard of the truck and arrested Guerra.

Agents from the Drug Enforcement Administration (DEA) arrived to question Guerra. . . . Guerra. . . told [them] he was delivering the cocaine to Waco for Armando Lopez. . . . Lopez had given him a phone number (`the 254 number’) for a person identified as `Julio4,’ with instructions to call him when he arrived in Waco. Guerra agreed to cooperate with the DEA agents to make a controlled delivery. . . .

Lopez told Guerra to identify himself as `Eagle Pass,’ and the recipient of the drugs would identify himself as `Waco.’ The 254 number was in the ashtray of the truck when he retrieved it from the WalMart in Eagle Pass. . . . The agents arranged for Guerra to run his hands through his hair, a `bust signal,’ to indicate he had made contact with Waco.

As Guerra drew near Waco, he called the 254 number and was told to stop at the gas station at exit 334A. Following the direction of the DEA agents, Guerra told Julio4 he had missed his exit and was at the Exxon station at exit 334B. He was told Waco would be there in five minutes. Approximately seven minutes later, Guerra saw a vehicle pass through the parking lot; the driver was on his cell phone. Moments later, Guerra received a phone call from Julio4 telling him everything was okay and that he was to follow the car. The vehicle stopped behind Guerra's truck. Guerra walked up to the open window, and the driver identified himself as Waco and asked if Guerra was Eagle Pass. Guerra gave the bust signal. He later identified the driver of the vehicle as . . . Johnny Ochoa. The agents arrested Ochoa and gave him his Miranda warnings on the way to the DEA office.

One of the agents, Agent Pennington, drove Ochoa's car to the DEA office. While he was driving, he heard a cell phone ring several times but could not find it. When the . . . agents arrived at the DEA office, Agent Hundley located the phone and gave it to Officer Thrash. Thrash looked through the contact list and located the 254 number Guerra had called earlier in the evening under the nickname `Julio4.’ Although there were no phone calls directly between Ochoa and Guerra, phone records submitted by the government confirmed that Ochoa had been in contact with Julio4 six or seven times that evening.

U.S. v. Ochoa, supra.

With regard to the cell phone, Ochoa’s first argued that the DEA agents did not have probable cause to arrest him. U.S. v. Ochoa, supra. Since, as this site notes, an arrest is a 4^th Amendment “seizure,” and since the 4^th Amendment explicitly requires that to be “reasonable” a seizure must be based on probable cause, Ochoa was arguing that the arrest violated the 4^th Amendment. I’m assuming, since the opinion doesn’t say, that this was part of his argument that the court should have suppressed the information found in his cell phone, i.e., he was arguing that if the arrest wasn’t valid, the search of the cell phone wasn’t valid because it was the result (the “fruit”) of the arrest.

The argument didn't work. The Court of Appeals noted, in analyzing it, that a

warrantless arrest is justified if the arresting officers had probable cause to believe that the defendant committed a felony. . . . `Probable cause for a warrantless arrest exists when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.’ U.S. v. Watson, 273 F.3d 599 (U.S. Court of Appeals for the 5^th Circuit 2001). . . . The officer making the arrest need not have direct knowledge of all of the facts establishing probable cause, as long as he has communicated with the officer who does. . . .

U.S. v. Ochoa, supra.

Ochoa argued that the agents didn’t have probable cause because they arrested him based only on the facts that “Guerra was driving from Eagle Pass to Waco to deliver a load of cocaine,” he “Guerra received telephone instructions that an unknown party would meet him at the designated location” and “Ochoa drove through the parking lot and Guerra gave the bust signal.” U.S. v. Ochoa, supra. The appellate court disagreed:

Ochoa did not simply drive through the parking lot; the agents watched Ochoa drive directly to Guerra's car and park his car behind it. Moreover, Guerra's contact told him someone would be arriving to meet him in five minutes, and Ochoa arrived seven minutes later. The agents had arranged for Guerra to give the bust signal once the contact identified himself by his code name, and the agents saw him give it after talking to Ochoa briefly. In addition, Ochoa got back into his car to drive out of the parking lot immediately after talking to Guerra. . . . For these reasons, we conclude that officers had probable cause to arrest Ochoa because the totality of the facts and circumstances within the officers' knowledge at the moment of arrest was sufficient for a reasonable person to conclude that he had committed an offense.

U.S. v. Ochoa, supra. So the court held that the arrest was lawful. U.S. v. Ochoa, supra.

The opinion then notes that Ochoa also “challenges the search of his cell phone”, but it doesn’t explain the basis of that challenge. I’m assuming the prosecution argued, in its response to his motion to suppress, that the officers’ search of the cell phone was a lawful search incident to arrest, i.e., was justified by one of the exceptions to the 4^th Amendment’s default requirement that searches must be conducted pursuant to a warrant. I base that assumption on the fact that this opinion notes that the prosecution argued, first, that “the search was legal”. U.S. v. Ochoa, supra.

The Court of Appeals didn’t elaborate on that point, however, because it based its rejection of Ochoa’s argument regarding the search of the cell phone on another exception to the 4^th Amendment’s warrant requirement. U.S. v. Ochoa, supra. As this site notes, the “inventory search” exception lets officers search an impounded vehicle without a warrant as long as the search is conducted pursuant to established police agency policies. The premise of this exception is that the search is “reasonable” under the 4^th Amendment for two reasons, the first of which is that it’s legitimate to let officers investigated an impounded vehicle for their own safety (to ensure not weapons, poisons, explosives, etc. are in it) and to identify property in the vehicle that needs to be secured (to avoid claims that the officers unlawfully appropriated it).

At this point, you’re probably wondering how the inventory search exception comes into play here, since the search of the cell phone clearly was not conducted as part of a routine inventory search. Agent Pennington heard it ring and when he got to the DEA office another agent found the phone (having apparently searched specifically for it) and then gave it to Officer Thrash, who searched it. None of that was conducted as part of inventorying the contents of Ochoa’s seized vehicle.

The prosecution didn't argue that the cell phone was seized and searched as part of a routine inventory search. Instead, the prosecution argued that the search of the cell phone didn’t violate the 4^th Amendment because “the cell phone would have been inevitably discovered when officers later conducted a routine inventory search of the vehicle.” U.S. v. Ochoa, supra (emphasis added). The trial judge agreed with the prosecution on this point, which is why he denied Ochoa’s motion to suppress. U.S. v. Ochoa, supra.

The Court of Appeals agreed:

We . . . need not determine whether the search itself was proper because . . . the cell phone would have inevitably been discovered pursuant to law enforcement's routine inventory search of the vehicle. `The inevitable discovery doctrine applies if the Government demonstrates by a preponderance of the evidence that (1) there is a reasonable probability that the contested evidence would have been discovered by lawful means in the absence of police misconduct, and (2) the Government was actively pursuing a substantial alternate line of investigation at the time of the constitutional violation.’ See U.S. v. Zavala, 541 F.3d 562 (5th Cir. 2008).

U.S. v. Ochoa, supra.

The court then explained how and why the inevitable discovery doctrine applied here:

The government argues that Ochoa's cell phone would have been discovered during the lawful inventory of his vehicle. “`A]n inventory search of a seized vehicle is reasonable and not violative of the Fourth Amendment if it is conducted pursuant to standardized regulations and procedures that are consistent with (1) protecting the property of the vehicle's owner, (2) protecting the police against claims or disputes over lost or stolen property, and (3) protecting the police from danger.’ U.S. v. Zavala, supra. We have recognized that evidence initially seized improperly should not be suppressed if it would have been discovered pursuant normal police practices. . . .

Agent Robertson testified that DEA has standard operating procedures calling for an inventory of a vehicle to protect the agency from claims of lost or stolen property. Indeed, pursuant to those procedures, agents began taking an inventory of Ochoa's car shortly after the cell phone was seized. Further, there was at least a reasonable probability that the agents would have uncovered the cell phone, which had been ringing as one of the agents drove Ochoa's car to the agency, during the inventory. Accordingly, we hold that the [trial judge] properly denied the motion to suppress based on the inevitable discovery rule.

U.S. v. Ochoa, supra.

The Sentry Case, the Memory Card and Consent

2012-01-16T08:59:00.007-05:00

As I’ve explained in earlier posts, and as Wikipedia notes, consent is an exception to the 4^th Amendment’s default requirement that police obtain a search (and seizure) warrant before searching someone’s property and seizing evidence they find there.

As I’ve also explained in earlier posts, for the purposes of the 4^th Amendment, consent is essentially a waiver: That is, I give up my right not to have my property searched (and, if appropriate, seized). And as I’ve noted before, consent acts like a contract. That is, my consent to search substitutes for a warrant as long as the officer’s search stays within the scope of what I’ve consented to.

So, if officers stop me and say, “Can we search for car for a stolen rifle”? and I say, “yes,”, they can search my car only in places where a rifle can be. My consent to their searching for a rifle defines the scope of my consent. That means they can’t search in the glove compartment, say. And it also means that when officers rely on consent as the 4^th Amendment justification for their searching property – a computer, say – and seizing what they find there, the consent will justify their actions if their search stayed within the scope of the property owner’s consent to the search.

And that brings us to U.S. v. Brooks, 2011 WL 6141048 (U.S. District Court for the Northern District of Indiana 2011), an opinion a federal judge issued at the end of last year. I can’t find any news stories or other reported opinions about this case, so I don’t know how it arose; but I also don’t think that is a problem, in terms of understanding the issues the judge is addressing and the result he reaches.

In this opinion, the judge is explaining why, on “December 6, 2011, the first day of trial,” he granted the defendant’s – Shaun Brooks, Jr.’s – “fourth motion in limine.” U.S. v. Brooks, supra. As Wikipedia notes, a motion in limine asks a judge either to exclude or to admit certain information or items as evidence at a trial or hearing. As Wikipedia also notes, the motion in limine “is always discussed outside the presence of the jury and always decided by the judge.”

Here, Brooks filed a motion in limine asking the federal judge who presided over his trial to bar the prosecution from presenting certain evidence during its case in chief, i.e., during the main part of its case. U.S. v. Brooks, supra. To understand why he filed the motion, and why the judge granted it, it is necessary to understand how the evidence at issue came into the government’s possession:

While in custody in May, 2010, Shaun Brooks, Jr. admitted to owning a locked Sentry case and gave police permission to search it. Brooks claims that permission was granted based on his understanding that the officer would be looking for drugs or stolen items. The pre-printed consent to search card, which Brooks signed at the time, gave permission to search the Sentry case and contained an acknowledgment that `[a]ny evidence of criminal conduct that I find will be used against you in a court of law.’ . . .

That search produced items common to the production of methamphetamine and led to the police obtaining a warrant to open the other case, which contained the firearms at the root of all four counts of the indictment.

U.S. v. Brooks, supra. So, prior to or as a result of this search, Brooks was apparently charged with firearms possession in violation of federal law. U.S. v. Brooks, supra.

The firearms were not the focus of Brooks’ motion in limine. The motion focused on the results of a subsequent search:

About eighteen months later, a few days before trial, the government notified Brooks's counsel that the Sentry case had contained a camera memory card, the card contained a photo of Brooks with guns, and the government intended to introduce that photo at trial.

U.S. v. Brooks, supra. Brooks moved to bar the government from introducing the photo at trial, arguing that the second search exceeded the scope of the consent he gave eighteen months earlier. U.S. v. Brooks, supra. In this opinion, the judge explains that Brooks’ motion in limine required the “court [to] determine the scope of consent given by Brooks to the police to search the Sentry case.” U.S. v. Brooks, supra.

He also explained that, under the 4^th Amendment, when an officer

gets consent to search for an item, he can only search `areas these items may reasonably be expected to be found.’ U.S. v. Garcia, 897 F.2d 1413, 1419 (U.S. Court of Appeals for the 7th Cir.1990) (`. . . the scope of a consent search is limited by the breadth of the actual consent’). The search that follows consent is . . . reasonable as long as it remains inside the scope of that consent. U.S. v. Jackson, 598 F.3d 340, 348 (7th Cir. 2010). What the scope was, and whether the search remained in that scope are questions of fact. . . .

`The scope of a search is generally defined by its expressed object.’ Florida v. Jimeno, 500 U.S. 248, 251 (1991). . . . `Government agents may not obtain consent to search on the representation that they intend to look only for certain specified items and subsequently use that consent as a license to conduct a general exploratory search.’ U.S. v. Breit, 429 F.3d 725 (7th Cir.2005).

U.S. v. Brooks, supra. To illustrate what this means in practice, the judge explained that in U.S. v. Dichiartine, 445 F.2d 126 (U.S. Court of Appeals for the 7^th Circuit 1971), police officers obtained consent to search

Dichiarinte's house for narcotics; he said they could search all they wanted, he didn't have drugs in the house. Long into the search, the agents began looking at Dichiarinte's papers and he told them that since the papers could not contain drugs, they were exceeding the scope of the consent. The officer is alleged to have replied, `Sorry, Pal, we are here now and this is what we are going to do.’ Dichiarinte was convicted of tax fraud based in part on the papers discovered during that search.

The court of appeals overturned the conviction because the scope of consent worked in parallel to the scope of a warrant. `Thus if government agents obtain consent or a warrant to search for a stolen television set, they must limit their activity to that which is necessary to search for such an item; they may not rummage through private documents and personal papers.’ [U.S. v. Dichiartine, supra.]

U.S. v. Brooks, supra. The judge then explained that Brooks’ motion in limine turned on the scope of the search

as created by the consent between Brooks and Lieutenant Steve Adang. `In determining the scope of a defendant's consent, we apply an objective standard: “what would the typical reasonable person have understood by the exchange between the officer and the suspect?”’ U.S. v. Long, 425 F.3d 482 (U.S. Court of Appeals for the 7th Cir.2005), quoting U.S. v. Raney, 342 F.3d 551 (7th Cir.2003).

Therefore, the court must determine if a reasonable observer in the room with Brooks and Adang would have understood that the officer was accusing Brooks of possessing stolen items and was seeking permission to search the Sentry case for exactly that. The object of the search (for example, looking for stolen items) becomes the limiter of the scope of the search.

U.S. v. Brooks, supra.

Since that was, as the Brooks judge’s opinion noted earlier, a fact-sensitive issue, the judge outlined how the consent came about:

Brooks and Lt. Adang spent a fair amount of the May 19, 2010 interview discussing whether Brooks would give consent for the search of the Sentry case. They went back and forth about what the box might contain and whether Brooks would give consent to search it. Ultimately, though, it appears that consent was given following this exchange:

Lt. Adang: `Well, we have a reasonable belief that there might be criminal -- there might be acts of criminal activity in there. You have a stolen iPod is there another one, or is there somethin' stolen there. You've got a drug warrant, is there drugs in there. Okay. Whatever criminal history you have is it consistent with your criminal history? Maybe. We don't know, you know.’

Mr. Brooks: `Give me the card I'll sign it.’

U.S. v. Brooks, supra.

The judge then analyzed Brooks’ and the prosecution’s respective arguments:

In favor of the government's position that the scope of the Sentry case was unlimited, a typical reasonable person may understand Adang's comment that he wants to search for anything related to Brooks' past criminal history as a request to make a blanket search for evidence. For this to be so, Brooks and Adang both would have to have known about Brooks' criminal history in detail: Brooks would have to understand that Adang intended to search for weapons-related evidence.

In favor of Brooks's position is that Adang said specifically that he wanted to search for evidence of stolen property or drug crimes. When Brooks consented, it may have been in the nature of Dichiarinte's consent . . . , where he was asserting that he had neither drugs nor stolen property, and the lieutenant could search for those things.

Brooks signed a waiver of rights card that included his acknowledgment that `[a]ny evidence of criminal conduct that I find will be used against you in a court of law.’

This statement weighs neither for nor against the government or Brooks because it goes not to the scope of the search, but the understanding of the purpose of the search and the waiver of the right. Since this is standard language, to give it scope-widening powers would undo the concept of people being able to limit the scope of consent searches.

U.S. v. Brooks, supra. So here, the judge seems to find that Brooks’ argument that the search exceeded the scope of his consent has merit. U.S. v. Brooks, supra.

He then moved to another argument the prosecution made, i.e., that Brooks had shared the photos on the memory card with another person and had therefore lost any 4^th Amendment expectation of privacy in them. This is how he analyzed that argument:

Brooks shared the photos on the memory card with Danielle Hughes in February 2010. The government asserts that this sharing amounts to Hughes searching the photographs, and, as long as the later government search didn't exceed the scope of Hughes' search, its action isn't cognizable under the 4th Amendment. See U.S. v. Jacobsen, 466 U.S. 109 (1984) (where FedEx employees opened a package and then called police about its contents, the resulting search of the contents was a recreation of the private search that did not violate the Constitution.)

A defendant must have both a subjective expectation of privacy and his expectation of privacy must be objectively reasonable, often phrased as “one that society is prepared to recognize as reasonable.” See Katz v. U.S., 389 U.S. 347 (1967). . . . One who expects an item to remain private `must exhibit that expectation, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the defendant's allegedly invasive actions.’ U.S. v. Yang, 478 F.3d 832 (7th Cir. 2007) (voluntarily giving items to a police officer indicated the defendant didn't expect them to remain private).

A variety of cases instruct that when something is shared, there is a lessened expectation of privacy in it. . . . These derive from the understanding that, when another person has possession of an item, he may invite the police in to search it. But that's not what happened here. Sharing an item reduces one's sense of privacy in the copy that is shared, but it doesn't eliminate one's privacy in the item retained by Brooks; otherwise, anything, once shared, would be subject to governmental search and seizure without the usual 4th Amendment protections.

U.S. v. Brooks, supra.

The judge therefore found that Brooks consented to the search of the

Sentry case while he was in custody in May 2010. The scope of that consent was limited to the objects of the search: stolen items and items related to drugs. The December 2011 search of the contents of the memory card exceeded the scope of the consent search, and wasn't done pursuant to a warrant or another exception to the warrant requirement. The contents of the memory card are not admissible at Brooks's trial.

U.S. v. Brooks, supra.

Shareaza, Child Pornography and Sentencing

2012-01-13T08:58:00.004-05:00

Like most of my posts, this is about a criminal case that involved the use of computer technology.

Unlike most of my posts, this one isn’t about a defendant who’s trying to suppress evidence or argue that evidence was improperly admitted or otherwise trying to avoid being convicted or trying to have a conviction reversed. This post is about a case in which the defendant appealed his sentence, claiming it was excessive.

The case is U.S. v. Spriggs, __ F.3d __, 2011 WL 48016 (U.S. Court of Appeals for the 11^th Circuit 2012). After pleading guilty to “one count of receipt of child pornography in violation of 18 U.S. Code § 2252(a)(2)”, Timothy Spriggs received a sentence he though was excessive, for reasons we’ll get to in a moment. U.S. v. Spriggs, supra. First, I need to explain how Spriggs came to be charged with this crime, since those facts are quite relevant to his challenge to the sentence.

This, according to the opinion, is how the prosecution arose:

Spriggs downloaded child pornography through use of a peer-to-peer file-sharing program named Shareaza 2.0. The copy of Shareaza 2.0 on Spriggs's computer was configured to allow peers to download files from his computer. Law enforcement was unsuccessful when it attempted to download Spriggs's files, and at sentencing no direct evidence was presented that other users downloaded files from Spriggs's child-pornography collection.

Detective Brian Broughton testified at Spriggs's sentencing hearing. He explained that the default settings on Shareaza 2.0 automatically provided for reciprocal sharing and required additional steps if a user did not want to share files with others using the program. Most of Spriggs's child-pornography collection was located in a shared folder that could be accessed by other Shareaza users. The detective also described the possible benefits of sharing files:

`In many of the software suites that are out there, if you are sharing, sometimes that elevates you to a higher status as it relates if you're looking for a file that belongs to somebody and you happen to be sharing a large amount of files, you'll move up higher in the queue and be able to download somebody quicker than somebody who is, let's say not sharing as many files or maybe has file sharing turned off.’

Still, Detective Broughton never testified that Shareaza 2.0, in particular, provided users a benefit, such as faster downloading capabilities, when they enabled file sharing.

U.S. v. Spriggs, supra.

Before we get into Spriggs’ sentence, why he argued it was excessive, and how the Court of Appeals ruled on his argument, I need to outline the basics of sentencing in the federal criminal justice system. As Wikipedia explains, sentencing proceeds under the U.S. Sentencing Guidelines, which are “rules that set out a uniform sentencing policy” for individuals and entities convicted of federal crimes. The U.S. Sentencing Guidelines are written by the U.S. Sentencing Commission; you can find the current Guidelines on its website.

As Wikipedia also explains, sentencing under the guidelines is “based primarily on two factors”, which are the conduct associated with the offense” (i.e., what, precisely did the defendant do) and the defendant’s criminal history (i.e., how many, if any, prior criminal convictions does the defendant have). The court then uses the Sentencing Table that is included in the Guidelines to calculate the “sentencing range,” which is stated in terms of months; so one offender’s sentencing range might be, say, 36-45 months.

Once the court determines the applicable sentencing range, it then considers whether there are circumstances that warrant a “departure” from the sentencing range, as Wikipedia explains. A departure can be downward, i.e., result in a sentence lower than that called for by the Guidelines; downward departures are often based on a defendant’s providing “substantial assistance” to law enforcement in investigating the criminal activity in which he/she was involved or that was related to this activity. Upward departures (or “enhancements”), result in a sentence higher than that called for in the Guidelines. Enhancements are based on aggravating circumstances, i.e., facts that indicate that the basic sentencing range does not impose enough punishment. Upward departures can be based, for example, on obstructing justice, i.e., impeding an investigation, using a minor to commit a crime.

That brings up back to Spriggs. He pled to receiving child pornography (only) but the district court judge who sentenced him “applied a five-level enhancement for distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value” under U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(B). U.S. v. Spriggs, supra.

Spriggs argued, on appeal, that “no evidence supports application of the enhancement” in his case. U.S. v. Spriggs, supra. The district court judge who sentenced him “applied the five-level enhancement, reasoning that Spriggs distributed child pornography with the expectation that he would receive either more child pornography or the ability to obtain downloads faster.” U.S. v. Spriggs, supra.

The Court of Appeals began its analysis of the enhancement issue by noting that while Spriggs claimed the distribution enhancement was improper because the government did not prove that other Shareaza users actually downloaded his files, that was not necessary:

[T]o establish distribution, the government does not need to prove that another user actually downloaded a file from Spriggs's computer. The commentary to the Guidelines defines distribution as `any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor.’ U.S. Sentencing Guidelines Manual § 2G2.2 cmt. n.1.

The commentary further elaborates that posting illicit images on a publicly accessible website qualifies as distribution. Id. Allowing files to be accessed on the Internet by placing them in a file sharing folder is akin to posting material on a website for public viewing. When the user knowingly makes the files accessible to others, the distribution is complete.

The record supports a conclusion that Spriggs knowingly installed Shareaza 2.0 with an understanding that it enabled other users to access files on his computer. During the installation process, a Shareaza 2.0 user is prompted to choose whether to share files. Spriggs installed Shareaza 2.0 on two operating systems (Windows XP and Vista), and file sharing was enabled on each system.

Additionally, during a forty-minute interview with Detective Broughton, Spriggs mentioned three times that he used Shareaza 2.0 to both download and upload files. Thus, we find no clear error in the district court's implicit finding that Spriggs understood that Shareaza 2.0 enabled other users to access his files.

U.S. v. Spriggs, supra.

The Court of Appeals also explained, however, that while Spriggs distributed

child pornography, . . . more is required to apply the five-level enhancement under § 2G2.2(b)(3)(B): the distribution must be `for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.’ U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(B). The commentary to the Guidelines further explains that the enhancement applies when child pornography is used in `any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit.’ U.S. Sentencing Guidelines Manual § 2G2.2 cmt. n.1.

A `thing of value’ is defined as `any valuable consideration.’ Id. The courts are bound by the commentary to the Guidelines unless the notes contradict the plain meaning of the text of the Guidelines. . . . We find no contradiction. Therefore, the expectation of receiving a thing of value must be understood in the context of a `transaction’ conducted for `valuable consideration.’

U.S. v. Spriggs, supra.

This Court of Appeals – the Court of Appeals for the 11^th Circuit – then explained that another circuit – the Court of Appeals for the 8^th Circuit – applies

the five-level enhancement if the defendant `expected to receive a thing of value -- child pornography -- when he used the file-sharing network to distribute and access child pornography files.’ U.S. v. Stultz, 575 F.3d 834, 849 (8th Cir.2009). Because file-sharing programs enable users to swap files, the court reasoned that no additional evidence is needed to establish the type of transaction contemplated in the Guidelines.

U.S. v. Spriggs, supra.

The 11^th Circuit explained that it “disagree[d] with the approach taken by the 8^th Circuit.” U.S. v. Spriggs, supra. The court disagreed because it (actually, the three judges who heard this appeal) has

a different view . . . of the function and operation of file-sharing programs than that of the 8th Circuit. File-sharing programs exist to promote free access to information. Generally, they do not operate as a forum for bartering.

For example, file-sharing programs permit a person to access shared files on peer computers regardless of whether the person in turn shares his files. The files are free. Because the transaction contemplated in the Guidelines is one that is conducted for `valuable consideration,’ the mere use of a program that enables free access to files does not, by itself, establish a transaction that will support the five-level enhancement.

U.S. v. Spriggs, supra.

The appellate court then turned to the district court’s rationale for imposing the enhancement, i.e., that “Spriggs shared his illicit images with the hope of receiving more pornography.” U.S. v. Spriggs, supra. It noted that it has applied

the enhancement when a defendant traded child pornography in exchange for other pornography. U.S. v. Bender, 290 F.3d 1279, 1286 (11th Cir.2002). Child pornography can be a thing of value, but Spriggs's hope that a peer would reciprocate his generosity does not amount to a transaction conducted for `valuable consideration.’

U.S. v. Spriggs, supra.

The Court of Appeals pointed out that it had found no evidence that Spriggs

entered into a transaction in which he shared his child pornography to gain access to another user's pornography. Even if another user accessed Spriggs's files -- and there is no evidence to establish any person did -- it would not necessarily be a transaction conducted for `valuable consideration.’ Without evidence that Spriggs and another user conditioned their decisions to share their illicit image collections on a return promise to share files, we cannot conclude there was a transaction under which Spriggs expected to receive more pornography.

U.S. v. Spriggs, supra.

The court noted that the district court judge

also reasoned the enhancement was appropriate because Spriggs expected to receive faster downloading capabilities when he shared files. Presumably the transaction was between Spriggs and the software developers. But significant deficiencies in the record convince us that the government did not meet its burden of proof, and therefore the enhancement was applied in error.

U.S. v. Spriggs, supra. The Court of Appeals found that based on the evidence,

the district court could not conclude that Shareaza 2.0 gives priority downloading capabilities to users who share files. . . . Detective Broughton only testified about file-sharing programs generally. He gave no indication whether he knew Shareaza 2.0 offered the benefit.

And the government presented no additional evidence to support its position that Shareaza 2.0 gave Spriggs faster downloading capabilities when he shared files. The evidence is thus insufficient to support the district court's implicit finding that Spriggs shared files in exchange for faster downloading capabilities.

U.S. v. Spriggs, supra.

It therefore vacated Spriggs’ sentence and remanded the case to the district court judge for resentencing “consistent with this opinion.” U.S. v. Spriggs, supra.

The Law Enforcement Privilege, Technology and the 4th Amendment

2012-01-11T08:24:00.005-05:00

In most of my posts, I begin by outlining the facts that led someone to be charged with or investigated for criminal activity (or, in some instances, for conduct that could give rise to civil liability). This post is different. It deals with what I think is an interesting procedural issue, which means the facts that led to a prosecution are not of significance relevance in sorting out the legal issues.

This is all I know of how this prosecution arose:

The government indicted . . .Daniel Rigmaiden on July 23, 2008, charging him with 50 counts of mail and wire fraud, aggravated identity theft, and conspiracy. . . . A Superseding Indictment was filed on January 27, 2010. . . . The charges arise from an alleged scheme to obtain fraudulent tax refunds by filing electronic tax returns in the names of numerous deceased persons and third parties.

U.S. v. Rigmaiden, 2012 WL 27600 (U.S. District Court for the District of Arizona 2012).

The charges are, as I noted above, not the focus of this post. Our concern here is with Rigmaiden’s efforts to argue that the government violated his 4^th Amendment rights in the course of gathering the evidence that would later be used to charge him with the offenses outlined above. U.S. v. Rigmaiden, supra. As the opinion explains, the

government located and arrested [Rigmaiden], in part, by tracking the location of an aircard connected to a laptop computer that allegedly was used to perpetuate the fraudulent scheme. [He] alleges that the technology and methods used to locate the aircard violated his 4th Amendment rights.

[Rigmaiden] has sought extensive discovery from the government regarding the technology, methods, and personnel involved in tracking the aircard. Although the government has responded with the disclosure of substantial information, [he] contends that additional information must be disclosed if he is to litigate his 4th Amendment arguments effectively.

U.S. v. Rigmaiden, supra. (I suspect, though I could be wrong, that Rigmaiden is considering a Kyllo argument.)

The government opposed “disclosure of [the] additional information” Rigmaiden sought, arguing that it was “protected by a qualified law enforcement privilege under Roviaro v. United States, 353 U.S. 53 (1957)”. U.S. v. Rigmaiden, supra. To understand that argument, you need to understand a bit about federal criminal procedure.

As the federal judge who has this case noted in his opinion, historically defendants

in the United States have not enjoyed a right to unfettered discovery in criminal cases. Government disclosure of exculpatory evidence is, of course, required by Brady v. Maryland, 373 U.S. 83 (1962), and disclosure of other information is required by the Jencks Act, 18 U.S.C. § 3500. . . . Congress has also created limited additional discovery rights through Federal Rule of Criminal Procedure 16. This order particularly concerns the discovery rights found in Rule 16(a)(1)(E)(i).

Under this rule, the government must disclose a document or object `if the item is within [its] possession, custody, or control and ... the item is material to preparing the defense[.]’ Fed.R.Crim.P. 16(a)(1)(E)(i). To obtain discovery under this rule, [Rigmaiden] `must make a threshold showing of materiality,’ which requires a presentation of ‘facts which would tend to show that the Government is in possession of information helpful to the defense.’ ” U.S. v. Santiago, 46 F.3d 885 (U.S. Court of Appeals for the 9th Cir.1995) (quoting U.S. v. Mandel, 914 F.2d 1215 (9th Cir. 1990)). . . .

U.S. v. Rigmaiden, supra.

The judge also noted that with regard “to most of the items” at issue in Rigmaiden’s efforts to obtain information about the technology used to locate the aircard, he had “satisfied the requirements of Rule 16(a)(1)(E)(i).” U.S. v. Rigmaiden, supra. The judge explained, though, that even if a defendant is

entitled to discovery under Rule 16, . . . the Supreme Court has held that the discovery may be withheld when the government is entitled to a law enforcement privilege. In Roviaro, supra, the Court held that the government was not required to produce the identity of a confidential government informant. Roviaro, supra.

The Court explained that `[t]he purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.’ Roviaro, supra.

U.S. v. Rigmaiden, supra.

The judge then noted that the privilege the Supreme Court recognized in Roviaro is

limited. Even sensitive law enforcement information must be disclosed if it is needed for an effective defense. `Where the disclosure of an informer's identity, or the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.’ Roviaro, supra. In deciding whether the privilege applies and whether it has been overcome by a showing of need, the Supreme Court declined to establish fixed rules, holding instead that trial courts must engage in balancing on a case-by-case basis. . . .

U.S. v. Rigmaiden, supra.

Rigmaiden, of course, wasn’t seeking an informant’s identity; he wanted access to information about the technology the government used to investigate him. U.S. v. Rigmaiden, supra. That, too, can be protected by the privilege. As the judge who has this case explained,

[s]ubsequent cases have expanded the qualified law enforcement privilege beyond the context of confidential government informants. In Van Horn, the Eleventh Circuit held that the privilege applies to sensitive law enforcement surveillance equipment. [U.S. v. Van Horn, 789 F.3d 1492 (U.S. Court of Appeals for the 11^th Circuit 1986).] . . .

[T]he [Van Horn court] recognized that the . . . .`privilege will give way if the defendant can show need for the information.’ U.S. v. Van Horn, supra. The court also recognized that `the necessity determination requires a case by case balancing process. . . . ‘.U.S. v. Van Horn, supra.

U.S. v. Rigmaiden, supra.

Here, the prosecution argued that the technology used to locate Rigmaiden’s aircard,

the manner in which the technology was employed, and the identities of the agents who operated the equipment all constitute sensitive law enforcement information subject to the qualified privilege recognized in Roviaro and Van Horn. [Rigmaiden] does not disagree with the assertion that these cases can cover the kind of equipment and techniques used here. Rather, [he] contends that the technology used by the government is already publicly known and therefore not entitled to a qualified privilege, and, in any event, that his need for the information overcomes the privilege.

U.S. v. Rigmaiden, supra.

The judge explained that in “resolving this dispute,” he was required to “engaging in the balancing called for in Roviaro and Van Horn” and, in so doing, was required to “keep several additional legal principles in mind.” U.S. v. Rigmaiden, supra. The first was that Rigmaiden was seeking the information for use not at trial, but in a motion to suppress; the judge noted that the “level of government disclosure required for a suppression hearing under the 4^th Amendment is less than the disclosure required for trial.” U.S. v. Rigmaiden, supra. He took the latter proposition from the Supreme Court’s decision in U.S. v. Raddatz, 447 U.S. 667 (1980), in which it found that the constitutional guarantee of due process does not “require the disclosure of an informant’s identity at a suppression hearing.” U.S. v. Raddatz, supra.

The second principle was that “the burden of proof at a suppression hearing is a preponderance of the evidence”, rather than the beyond a reasonable doubt standard that applies at trial. U.S. v. Rigmaiden, supra. The judge noted that Rigmaiden would, as a result, “only” have to show, by a preponderance of the evidence, that his 4^th Amendment rights had been violated. U.S. v. Rigmaiden, supra.

The third principle was that in deciding whether Rigmaiden was entitled to “allegedly sensitive law enforcement information” to assert his 4^th Amendment claim, the judge could consider not only the evidence the government had already disclosed, but also “whether there are alternative sources of information” on which Rigmaiden could rely in making his arguments. U.S. v. Rigmaiden, supra. The judge noted that this meant he could consider “the considerable evidence” Rigmaiden had acquired “from other sources.” U.S. v. Rigmaiden, supra.

The fourth and final principle was that in assessing the government’s right to invoke the law enforcement privilege, the judge could conduct “an ex parte hearing.” U.S. v. Rigmaiden, supra. The judge noted that he had, in fact, held such a hearing on December 14, 2011; at the hearing, FBI Supervising Agent Bradley Morrison “explained the nature of the equipment used in this case, how it was used, and why information sought by Defendant is law enforcement sensitive.” U.S. v. Rigmaiden, supra.

The judge then addressed Rigmaiden’s request. He began by noting that Rigmaiden wanted “highly specific and detailed information concerning the government's technology and techniques”, including the

`manufacturer model information, instructions manuals, operations manuals, user manuals, schematics, patent information, proprietary information, trade secrets, test data, the physical devices themselves and the calibration certification information for each device used’ by the government to locate the aircard, as well asthe `user manuals and/or other documents explaining the general operation/functionality of the software for the devices and end user instructions.’ . . .

[He] also seeks `all evidence relating to the real-time and historical geolocation techniques (e.g., triangulation techniques) and radio wave collection methods (e.g., cell site emulation, interrogation, active approach) used by the government agents/personnel and by the wireless device locators while searching for the aircard.’ . . . [And he] also seeks disclosures of the identities, training, and experience of agents and other personnel who operated the equipment when locating his aircard.

U.S. v. Rigmaiden, supra. At the ex parte hearing, Morrison explained how the

equipment used in locating the aircard operates, how it was used in this particular case, and why disclosure of information regarding the equipment and techniques used to locate the aircard would hamper future law enforcement efforts. Morrison also explained the training and skill required to operate the equipment, that only a limited number of agents have acquired the training and skill, and why disclosure of their identities would jeopardize their safety and make it impossible for the FBI to use these agents in future surveillance operations, eliminating them as valuable law enforcement assets.

U.S. v. Rigmaiden, supra.

Since the judge found Morrison’s testimony credible, he concluded that disclosing the

additional information sought by [Rigmaiden] would compromise the ability of the FBI and other law enforcement agencies to combat crime. Disclosure would enable adversaries of law enforcement to defeat electronic surveillance operations and to avoid detection by such surveillance. Disclosure of the information would also place law enforcement agents at risk when conducting such surveillance.

Disclosures of the specific identities of agents involved in this operation could jeopardize their safety and would effectively eliminate them as law enforcement assets used in electronic surveillance. With only a limited number of individuals trained and skilled in operating this equipment, disclosure would therefore seriously hamper law enforcement efforts.

U.S. v. Rigmaiden, supra.

He also rejected Rigmaiden’s argument that the law enforcement privilege did not apply in this instance “because modern surveillance technology is widely understood.” U.S. v. Rigmaiden, supra. Rigmaiden had argued that the “equipment used by the government in this case is publicly known and publicly available”, which meant that giving him access to the information he sought would not compromise law enforcement interests. U.S. v. Rigmaiden, supra. The judge rejected this argument, in part, because he noted that the government had not disclosed “the specific devices” used to locate Rigmaiden’s aircard or how it was operated, information the judge found was “sensitive law enforcement information.” U.S. v. Rigmaiden, supra.

The judge therefore denied Rigmaiden’s motion for discovery and ordered that he file his 4^th Amendment motion to suppress by February 17, 2010. U.S. v. Rigmaiden, supra.

No Expectation of Privacy in Employer-Issued Laptop

2012-01-09T08:55:00.005-05:00

As I’ve noted in earlier posts, the 4^th Amendment creates a right to be free from unreasonable “searches” and “seizures.”

A 4^th Amendment “search” violates a “reasonable expectation of privacy” in a place or thing. As I’ve noted, the test used to decide if someone had a reasonable expectation of privacy in a place or thing is the test the U.S. Supreme Court enunciated in Katz v. U.S., 389 U.S. 347 (1967): The person had a subjective expectation of privacy in the place/thing and society is prepared to regard that subjective expectation of privacy as objectively reasonable. (Actually, as Wikipedia notes, this test comes from Justice Harlan’s concurring opinion in Katz and was later adopted by a majority of the Supreme Court in Smith v. Maryland, 442 U.S. 735 (1979)).

In determining whether someone’s subjective expectation of privacy is objectively “reasonable,” courts apply what is called the “assumption of risk” analysis. In the Katz case, the Supreme Court said that, for the purposes of 4^th Amendment privacy analysis, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amendment protection.” Katz v. U.S. supra.

The Court applied this assumption of risk analysis in Smith v. Maryland, in which it held that it was not a 4^th Amendment search for a telephone company, “at police request,” to install a pen register (a device that recorded the numbers Smith dialed on his home phone) on Smith’s account. Smith v. Maryland, supra. The Smith court explained that

[t]his analysis dictates that [Smith] can claim no legitimate expectation of privacy here. When he used his phone, [he] voluntarily conveyed numerical information to the telephone company and `exposed’ that information to its equipment in the ordinary course of business.

Smith v. Maryland, supra. In so holding, the Smith Court noted that in an earlier case involving law enforcement officer’s obtaining bank records from a suspect’s financial institution, it had held that

`[t]he depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the 4th Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.’

Smith v. Maryland, supra (quoting U.S. v. Miller, 425 U.S. 435 (1976)). So, under the assumption of risk analysis, if I know I’m giving another person or entity access to information about myself or my activities, it will be very difficult for me to establish that it was a 4^th Amendment “search” for that person/entity to share the information with law enforcement voluntarily, i.e., without being required to do so by a warrant.

That brings us to U.S. v. Busby, 2011 WL 6303367 (U.S. District Court for the Northern District of California 2011). After being charged with one count of possessing child pornography in violation of 18 U.S. Code § 2252(a)(4), David Busby filed a motion to suppress, arguing, in part, that the evidence on which the prosecution was based was obtained in violation of the 4^th Amendment. U.S. v. Busby, supra. More precisely, he argued that authorities searched his employer-issued laptop and other employer-owned computers without obtaining a search warrant or relying on one of the exceptions to the warrant requirement. U.S. v. Busby, supra.

This, according to the opinion, is how the prosecution arose:

In or about 2010, [Busby] was employed by the Lawrence Berkeley National Laboratory (`LBL’) in its Information Technology Division. . . . [He] worked at LBL's Oakland Scientific Facility site located in Oakland, California.

During the morning of April 20, 2010, an off-site cyber security contractor with the National Energy Research Scientific Computing Center (`NERSC’) was conducting a routine log analysis of LBL's server. . . . The contractor noticed an unusual amount of internet traffic to domain names ending in .biz and .info, preceded by entries such as `tinymodel,’ `young-angels,` `party-models,’ `newstar-bambi,’ and `skygirls.’ . . .

[T]he contractor determined that LBL's server was being used to access bittorrent files with names such as `Taboo–Incest–Father–And–Daughter–Have–Sex–But–Busted–By–Moms–HiddenCamera–Pthc–Porn–2007–incest’ and `Pthc–Russia10Yo–11Yo–LittleBrother–And–Sister–2BoyGirls–Fucking–Just–Posing–Or–Naked–Pthc–R.’ . . .

The contractor isolated the entries to a single Internet Protocol (`IP’) address as the source of the traffic . . . and traced the IP address to a laptop computer assigned to [Busby] based on his unique LBL network authentication used to login to his computer. . . .

Later in the afternoon, LBL's Director of Security contacted the University of California Police Department (`UCPD’) to report that an employee was visiting websites that potentially host child pornography. . . . LBL's cyber security team went to the Oakland facility and seized [Busby’s] MacBook Pro laptop computer, which was turned over to UCPD Detective Miller. After receiving authorization from LBL's legal counsel, Miller searched the contents of the laptop hard drive which `revealed photographs of an individual possibly in her mid-teens’ who was clothed, but was `posed in a provocative manner.’ . . .

The following day . . . UCPD detectives seized eight additional computers used by [Busby]. . . . The search and seizure of [his] computers was accomplished without a warrant; however, [Busby] had previously signed an acknowledgement that he had `no explicit or implicit expectation of privacy’ with respect to LBL computers and servers.

U.S. v. Busby, supra.

The federal judge who has the case began her analysis of Busby’s motion to suppress by citing the standard noted above, i.e., that a 4^th Amendment “search” violated a “reasonable expectation of privacy” under the Katz-Smith test. U.S. v. Busby, supra. The judge then explained that as a

general matter, courts have found that an employee's expectation of privacy in files stored on a work-issued computer is not objectively reasonable where the employer notifies employees that their computer files are subject to monitoring. . . . Here, there is no dispute between the parties that during the relevant time period, LBL maintained a computer use policy which made it clear to users that they have no expectation of privacy on any LBL computers or its network. The policy states, in relevant part, that:

`Monitoring and Privacy’

`Users have no explicit or implicit expectation of privacy. NERSC retains the right to monitor the content of all activities on NERSC systems and networks and access any computer files without prior knowledge or consent of users, senders or recipients. NERSC may retain copies of any network traffic, computer files or messages indefinitely without prior knowledge or consent.’

U.S. v. Busby, supra (emphasis in the original).

The judge noted that Busby signed “an acknowledgement of the foregoing policy” on December 9, 2009. U.S. v. Busby, supra. She also noted that LBL’s computer use

policy was reinforced through the use of network security banners displayed on its computers, which notified users that their activities were subject to monitoring and interception. . . .

Moreover, [Busby] was well aware that LBL employees have no expectation of privacy with respect to their use of LBL computers, given [his] employment in the Information Technology Division at LBL and his responsibility for maintaining the network security banners for certain user groups at LBL. . . . Thus, . . . the Court finds that [Busby] lacked an objectively reasonable expectation of privacy in his assigned laptop and its contents.

U.S. v. Busby, supra (emphasis in the original).

The judge then explained that Busby

does not dispute that he was aware of and bound by LBL's computer use policy. Rather, he argues . . . that he had a reasonable expectation of privacy because: LBL issued the laptop to him specifically; he was responsible for installing and maintaining software on the laptop; access to the laptop required a log-in and password; and that, as a practical matter, he used the laptop for both work and personal activities. . . .

[Busby’s] arguments, however, are germane to his subjective expectation of privacy -- not to whether his expectation was objectively reasonable. In addition, [Busby] fails to confront the fact that the laptop was LBL's property and, at all relevant times, was subject to LBL's monitoring policy. As noted, that policy unequivocally provides that `[u]sers have no explicit or implicit expectation of privacy’ and that LBL has unfettered discretion to `access any computer files without prior knowledge or consent of users[.]’

U.S. v. Busby, supra (emphasis in the original).

Finally, the judge noted that

[a]s an ancillary matter, [Busby] argues that LBL's computer use policy only permits LBL to monitor its employees' computers for “computer security purposes,” but not to conduct criminal investigations. . . . As support for this alleged distinction, [he] points out that section 9.02 of LBL's Rules and Procedures Manual (`RPM’) contains no specific procedure for seizing and searching an employee's computer.

It is unclear, however, how the absence of specific procedures for the search and seizure of a LBL computer necessarily compels the conclusion that [he] had an objectively reasonable expectation of privacy in this instance. Indeed, the RPM reiterates that LBL employees have no such expectation. Section 9.01(D) of the RPM states, in pertinent part:

`D. CONSENT TO MONITORING’

`All use of LBNL computing and communications resources by all users, including employees, guests, collaborators, and casual users, is subject to monitoring. No user of LBNL systems has any expectation of privacy in their use of these systems, subject to applicable State, Federal, Department of Energy, and University law and policy.’

RPM § 9.01(D) (emphasis added). In addition, the RPM clearly states that personal or `incidental’ use of LBL computer is permissible, but that `[u]sers who elect to engage in incidental use do so with no expectation of personal privacy concerning their actions.’ Id. § 9.01(F)(2) (emphasis added). Thus, if anything, the RPM undermines any claim by [Busby] that he had a legitimate expectation of privacy in his use of LBL-issued computers.

U.S. v. Busby, supra.

The judge therefore found that Busby “lacked a legitimate expectation of privacy with respect to files stored on the laptop and other LBL computers.” U.S. v. Busby, supra.

As a result she denied his “motion to suppress with respect to such evidence.” U.S. v. Busby, supra.