Twitter, Defamation and the Airlines Employee

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This post examines an opinion the Tennessee Court of Appeals recently issued in a civil case:  Patterson v. Grant-Herms, 2013 WL 5568427 (2013). As to what the suit involved and how it arose, the opinion begins by noting that

Jennifer Patterson, an operations agent employed by Southwest Airlines, filed this action against Natalie Grant–Herms, asserting causes of action for slander, defamation, libel, and false light invasion of privacy. 

Patterson alleged that Grant–Herms made untrue statements and posted false and defamatory comments about her on Facebook and Twitter relative to a confrontation between the two when Grant–Herms and her three children attempted to board a plane in violation of Southwest Airlines policy.

Patterson v. Grant-Herms, supra.

According to the brief Grant-Herms filed on appeal, the encounter occurred as follows:

On March 24, 2011 Herms purchased tickets to travel to Seattle. . . . [Sh]e was traveling with her family, which consisted of her husband, four-year old twins, Gracie and Isabella, and 3-month-old daughter, Sadie. Herms was in line to board along with her infant and one of her twins. Her husband and the other twin was [sic] further back in the row. 

She was asked by Patterson, the Southwestern employee working at the gate, whether everyone with her were [sic] Business Select passengers. Herms stated herself and her infant were Business Select passengers, but her 4 year old was not.

Patterson told Herms the 4 year old would not be able to board with her. Herms [said] she had purchased a Business Select ticket for her infant . . . and they needed to get on board to save seats for the rest of the family.

Patterson replied that either the daughter had to get out of line or all of them but the daughter was not going to board the plane with Business Select passengers. Herms [told] her husband . . . Gracie would not be allowed to board with her. 

Herms had a stroller and began walk down the gate. . . . She was upset over what she saw as poor customer service by the gate agent.

Brief of Appellee, 2013 WL 1952905.  The brief says that after Grant-Herms boarded the plane, she tweeted.”  Brief of Appellee, 2013 WL 1952905. 

According to the opinion, in the Complaint Patterson filed to initiate the suit, she alleged

Grant–Herms posted the following statements on Twitter, Facebook and southwest.com:

i. `Gracie is 4. FOUR! she wanted her to board by herself or make us wait Till A34. Even though I was business select!’

ii. `I fly @southwestair at least 75x/year. just had WORST experience. Me; A1, Sadie: A3 Gracie A34. Woman refused 2 let Gracie board w/ me.’

iii. Defendant tweeted: `Nashville. Gate A25. Flight to Denver. Her name is Jennifer. She said “get over it. Follow the rules. Or don't fly.”’

iv. She has done this to me before. She has the WORST customer service. My daughter is FOUR.

v. She re-tweeted: `that is ridiculous! [W]hat did she expect? Her walk on herself & find her seat like a grown adult?’

vi. `If your [sic] sympathize with me, when you respond be sure & include @southwestair in tweet. They need to know this WRONG.’

vii. Sadie had MAJOR blowout. I think it's in response to our southwest air experience. She decided to leave them a gift on their plain. Teehee. Asked me what they can do. I don't want free flight. Just apology from Jennifer. It's 4th time she's done it to me. Time will tell.

viii. Well, we've caused quite a stir, tweeps. @southwestair just called me. I appreciate their concern & prompt attention 2 the problem.

ix. I've got wifi on my flight. I'm impressed with how quickly @southwestair responded to my complaint. I'll keep u posted as to what they do.

Patterson v. Grant-Herms, supra.

After the case had been filed for a while and both women had been deposed, Grant-Herms filed a motion for summary judgment, arguing that (i) her statements did not “rise to the level of defamation pursuant to Tennessee law” and could not “be reasonably construed to hold” Patterson “up to public hatred, contempt or ridicule” and/or (ii) did not constitute false light invasion of privacy because her “language at issue is not highly offensive to a reasonable person.”  Brief of Appellee, supra.  The trial judge granted her motion, which effectively ended the suit.  Patterson v. Grant-Herms, supra. Patterson appealed, which resulted in this opinion.  Patterson v. Grant-Herms, supra.

As Wikipedia explains, and as I have noted in prior posts, a motion for summary judgment asserts that there are no “genuine issues of material fact” that need to be resolved at trial, and therefore asks the judge to enter judgment for the party filing the motion as a matter of law.  As Wikipedia notes, a "`material fact’ is one which, depending upon what the factfinder believes `really happened,’ could lead to judgment in favor of one party, rather than the other.” 

On appeal, Patterson argued, as to her defamation claim, that Grant-Herms’ “statements were `both undisputed and patently false,’ and `an attempt by [Grant–Herms] to paint [Patterson] as someone that would endanger the welfare of a four-year-old child.’”  Patterson v. Grant-Herms, supra.  In ruling on her argument, the court explained that

a statement is defamatory where `it tends so to harm the reputation of another as to lower him [or her] in the estimation of the community or to deter third persons from associating or dealing with him [or her].’ Secured Fin. Solutions, LLC v. Winer, 2010 WL 334644 (Tennessee Court of Appeals 2010) (quoting Restatement (Second) of Torts § 559 (1977)).

The function of the court in a defamation action is to determine `whether a communication is capable of bearing a particular meaning, and whether that meaning is defamatory.’ Restatement (Second) of Torts § 614 (1977). It is for the jury to determine `whether a communication, capable of a defamatory meaning, was so understood by its recipient.’ Id. 

Comment d to § 614 advises the court and jury, in performing their respective functions, to `take into account all the circumstances surrounding the communication of the matter complained of as defamatory. Thus the context of written or spoken words is an important factor in determining the meaning that they reasonably might convey to the person who heard or read them.’

Patterson v. Grant-Herms, supra. (Wikipedia explains what the Restatement of Torts is.)

The Court of Appeals then applied these standards to Patterson’s argument:

Considered in light of the entire circumstances, the statements attributed to Grant-Herms were expressions of her frustration and complaints that she was not able to board the flight in a manner she wanted (which would have been be contrary to Southwest policy) and of the circumstances surrounding her efforts. 

While Grant–Herms chose not to include the entire circumstances in her communications and postings, particularly the fact that she did not have the appropriate passes to board the flight as she sought, the words attributed to her could not reasonably be construed to portray Patterson as one who would endanger a 4–year old's welfare.

Construing the words `in their “plain and natural’ import”’, Stones River Motors, Inc. v. Mid-South Publishing Co., Inc., 651 S.W.2d 713 (Tennessee Court of Appeals 1983), the trial court properly determined as a matter of law that Grant–Herms' statements did not rise to the level to constitute actionable defamation.

Patterson v. Grant-Herms, supra. 

It then took up Patterson’s appeal of the judge’s dismissal of her false light invasion of privacy claim.  Patterson v. Grant-Herms, supra.  It noted that, except for holding that Grant-Herms language “`was not highly offensive to a reasonable person’”, the trial judge “did not explain the basis of this holding.”  Patterson v. Grant-Herms, supra. 

The Court of Appeals explained that in

West v. Media General Convergence, Inc., 53 S.W.3d 640 (2001), the Tennessee Supreme Court recognized the tort of false light invasion of privacy as set forth in the Restatement of Torts:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Restatement (Second) of Torts § 652E (1977). As noted in West v. Media General Convergence, Inc., supra, the interest to be protected in a false light claim is `the subjective one of injury to [the] inner person.’ . . .  

Patterson v. Grant-Herms, supra. 

The Court of Appeals found that, “[f]or the reasons set forth below, . . . the [trial] court erred in granting summary judgment on this claim.”  Patterson v. Grant-Herms, supra. 

It began its analysis of the issue by explaining that in her appellate brief, Grant-Herms

argues that the words are not offensive because `[Patterson] works for an airline. As this court is surely aware, airlines are notorious for bad customer service. The statements that were made by [Grant-Herms] are not only not highly offensive, they are sentiments that have likely been uttered by airline passengers for decades.’ 

This argument, however, does not address the threshold question of whether the statements themselves put Patterson in a false light; that is, was there such a major misrepresentation of [her] activities that serious offense may reasonably be expected to be taken.’ Restatement (Second) of Torts § 652E, comment c.

Patterson v. Grant-Herms, supra. 

The court noted that in a earlier case in which it “considered the differences and similarities between a defamation claim and one based on false light invasion of privacy claim”, it explained, with regard to the false light claim, that

`[t]he angle from which the facts are presented, or the omission of certain material facts, results in placing the plaintiff in a false light. ‘“Literal accuracy of separate statements will not render a communication `true’ where the implication of the communication as a whole was false.’” . . . The question is whether [the defendant] made “discrete presentations of information in a fashion which rendered the publication susceptible to inferences casting [the plaintiff] in a false light.” Santillo v. Reedel, 430 Pa. Super. 290, 634 A.2d 264 (Superior Court of Pennsylvania 1993).’

Eisenstein v. WTVF–TV, News Channel 5 Network, LLC, 389 S.W.3d 313 (Tennessee Court of Appeals 2012).

Patterson v. Grant-Herms, supra. 

The Court of Appeals then applied this standard to Patterson’s false light claim:

The materials filed by Grant–Herms did not specifically address the elements of the false light invasion of privacy claim.

To the extent she relied upon the words themselves to negate the `highly offensive to a reasonable person element’ of the claim, construing the words in a light most favorable to Patterson and affording her all reasonable inferences, we believe that a reasonable person could find, under the entire circumstances of the incident, that Grant–Herms' posting of selective facts placed Patterson in a false light by implying that Patterson was rude and a bad service agent, one who was more concerned with adherence to the airline rules and procedures than the welfare of the child, and that these implications caused injury to her. 

Considering the record, Grant–Herms has not shown she is entitled to summary judgment on the false light invasion of privacy claim.

Patterson v. Grant-Herms, supra. 

The court therefore affirmed the trial court’s granting summary judgment to Grant-Herms on the defamation claim but reversed the court’s granting summary judgment on the false light invasion of privacy claim and remanded that part of the case for further proceedings. Patterson v. Grant-Herms, supra. 

Disorderly Conduct, Emails and Exculpatory Evidence

After a jury convicted Jeffrey Lynn Nielsen of disorderly conduct in violation of Minnesota Statutes § 609.72(1)(3) and he “was sentenced to a $1,000 fine and 90 days in jail, with $700 and 89 days suspended for one year.”  Nielsen v. State, 2013 WL 3968788 (Minnesota Court of Appeals 2013). “In lieu” of the day in jail, Nielsen “was authorized to perform eight hours of community service.” Nielsen v. State, supra. 

The opinion also notes that he was originally charged with disorderly conduct plus “theft in violation of Minnesota Statutes § 609.52(2)(1) and two traffic offenses” but the traffic charges were dropped “prior to trial, and the district court [judge] granted Nielsen’s motion to dismiss the theft charge for lack of probable cause.”  Nielsen v. State, supra.

The charges arose from this incident:

On October 4, 2010, K.M. contacted the Washington County Sheriff's Office and reported observing a vehicle with campaign signs for Stephen Bohnen tied to its top. K.M. followed the vehicle because he believed that a supporter of Bohnen's opponent had stolen the signs.

Both vehicles pulled to the side of the road, and K.M. stated that a man, later identified as appellant Jeffrey Lynn Nielsen, got out of his vehicle and approached K.M.'s vehicle. K.M. reported that Nielsen's demeanor was aggressive and threatening and that Nielsen asked `what the f--k he wanted.’ K.M. said that he was lost, and the encounter ended.

Nielsen v. State, supra.

After he was charged with the offenses noted above, Nielsen “filed a civil complaint against K.M., Bohnen, and Washington County, alleging fraud, conspiracy, and malicious prosecution.”  Nielsen v. State, supra.  According to the opinion,

[i]n the course of discovery in the civil lawsuit, Nielsen obtained a copy of the prosecutor's file from the criminal case. The file contained three e-mails sent from K.M. to the prosecutor in the two weeks before trial. The prosecutor reviewed these e-mails, but did not disclose them to Nielsen.

In a March 17 e-mail, K.M., a certified investment-management analyst, repeated the details of the October 4, 2010 incident, discussed the civil suit and his resulting `extreme stress’ and `financial hardship,’ and stated that his `license is at stake if [he's] found guilty of fraud.’

A March 18 e-mail contained an attachment with a `summary of the facts and [K.M.'s] state of mind’ and a letter from Nielsen's attorney in the civil case. The e-mail concluded, `As I understand it, if he's convicted on [disorderly conduct], his suits against me are dismissed. Therefore, I urge you to do what you can to get a conviction even though I know in the grand scheme of things how trivial this charge might seem.’

In one of the attachments, K.M. stated that `[t]here are deeper implications here, my industry is highly regulated and if I am somehow found guilty of Malicious Prosecution or Fraud my license could be in jeopardy.’ A March 22 e-mail contained a copy of the text of the attachments to the March 18 e-mail.

Nielsen v. State, supra. 

After he obtained these emails, Nielsen “petitioned for postconviction relief, arguing that he is entitled to a new trial because . . . he was denied due process of law and a fair trial when the prosecution failed to disclose the e-mails”. Nielsen v. State, supra.  In making this argument, he relied on the U.S. Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963).  As Wikipedia explains, the Brady Court held that

withholding exculpatory evidence violates due process `where the evidence is material either to guilt or to punishment’ . . .  

Exculpatory evidence is `material’ if `there is a reasonable probability that his conviction or sentence would have been different had these materials been disclosed.’ Brady evidence includes statements of witnesses or physical evidence that conflicts with the prosecution's witnesses, and evidence that could allow the defense to impeach the credibility of a prosecution witness.

Due process in a state criminal prosecution like this one is based on the provisions of the 14^th Amendment to the U.S. Constitution, as Wikipedia also explains.

The district court judge who had this case denied Nielsen’s petition and motion for a new trial because she found (i) that “the e-mails should have been disclosed under Brady v. Maryland” but also found (ii) that Nielsen “is not entitled to a new trial because `there is not a reasonable probability that the result of the jury trial would have been different if the evidence had been disclosed to the defense.’” Nielsen v. State, supra.  He appealed, which led to this opinion. Nielsen v. State, supra. 

The Court of Appeals began its analysis of the issue by noting that suppressing

evidence that is favorable to a criminal defendant violates due process when the evidence is material to guilt or punishment. Brady v. Maryland, supra; see also Minnesota Rules of Criminal Procedure Rule 9.01 (requiring disclosure of material exculpatory evidence). A Brady violation exists if (1) the evidence is favorable to the accused, being either exculpatory or impeaching; (2) the state suppressed the evidence, either intentionally or unintentionally; and (3) the defendant was prejudiced by the suppression. Pederson v. State, 692 N.W.2d 452 (Minnesota Supreme Court 2005).

Nielsen v. State, supra.  

The court also explained that,

to be prejudicial, the evidence must be material. Pederson v. State, supra. Evidence is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is one that is sufficient to undermine confidence in the outcome.” Pederson v. State, supra. . . . Materiality is a mixed question of fact and law, which we review de novo. Pederson v. State, supra.

Nielsen v. State, supra. 

Finally, the Court of Appeals pointed out that Rule 9.04 ofthe Minnesota Rules of Criminal Procedure states that

in misdemeanor cases and upon request the state must `disclose any material or information within the prosecutor's possession and control that tends to negate or reduce the guilt of the accused as to the offense charged.’ Although Minnesota courts have not discussed the scope of rule 9.04, its language is nearly identical with that of rule 9.01, which the supreme court has concluded imposes a narrower disclosure requirement than Brady

Nielsen v. State, supra. 

Here, the State of Minnesota argued that

the prosecutor was not required under Brady or the Minnesota Rules of Criminal Procedure to provide the e-mails because the information they contain is not exculpatory or impeaching. The state contends that the information in the e-mails is duplicative and would not have `significantly impaired [K.M.'s] credibility.’

But these arguments speak to the materiality of the evidence, not their favorability. We agree with the district court that the prosecutor should have disclosed the e-mails as potential impeachment evidence because they relate to an argument that K.M. was biased as a witness.

Nielsen v. State, supra. 

Nielsen claimed K.M.'s statements in the e-mails “were material because they `clearly establish a motive to fabricate or lie” and could have been used on cross-examination to `impeach [K.M.] with [K.M.'s] prior inconsistent statement.’” Nielsen v. State, supra.  The Court of Appeals, though, found that the “e-mails do not provide any information that was not already possessed by Nielsen, who was uniquely aware of K.M.'s potential interest in the outcome of the criminal case.” Nielsen v. State, supra. 

The court also explained that

most of the information in the e-mails summarizes the events of October 4 and is consistent with K.M.'s statements to the police and his testimony at trial. The other statements concern the civil case, of which Nielsen was clearly aware, and K.M.'s concern that an unfavorable outcome in that case could result in the loss of his professional licenses and other personal and financial hardship. This information was all available to Nielson prior to trial and undoubtedly factored into his decision to ask the district court to exclude all mention of the civil case in the criminal trial.

Nielsen argues that his request to exclude evidence of the civil claim is immaterial because `counsel did not possess the Brady material when the request was made.’ He argues that a `lawyer cannot make an informed tactical or strategic decision without being fully informed.’ But even without the information contained in the e-mails, Nielsen's knowledge, due to his decision to bring a lawsuit against K.M., was enough to allow him to make the strategic decision not to introduce evidence of that potential bias.

And even if disclosure of the e-mails had led Nielsen to introduce evidence of the civil case to impeach K.M.'s testimony, there is not a reasonable probability that the result of the jury trial would have been different. The civil case arose only after K.M.'s initial interview with the police and after Nielsen was charged with disorderly conduct. There is no indication that K.M.'s testimony deviated from his initial report in any way that would have had a material impact on the outcome of the case. And if K.M.'s testimony had deviated, Nielsen could have used that original statement for impeachment purposes.

Nielsen v. State, supra. 

Finally, Nielsen also cited

a number of cases, primarily from foreign jurisdictions, in support of the argument that suppressed evidence is material where it concerns the credibility of a sole or key witness. We agree that failure to disclose impeachment evidence may lead to a due-process violation, but it does not follow that evidence is material simply because a case turns on the testimony of a single witness.

Evidence is material only when `there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ Pederson v. State, supra.

Nielsen v. State, supra. 

The Court of Appeals found that the

cases that Nielsen relies on involved impeachment evidence that contradicted the witness's testimony or showed prosecutorial conduct that could have induced the witness to fabricate his testimony. See Giglio v. U.S., 405 U.S. 150 (1972)  (government failed to disclose promise not to prosecute a key witness in exchange for his testimony); Spicer v. Roxbury Corr. Inst., 194 F.3d 547 (U.S.Court of Appeals for the 4th Circuit 1999) (prior inconsistent statements were material where they directly contradicted the witness's testimony relating to the central issue before the jury); Crivins v. Roth, 172 F.3d 991, 998 (U.S. Court of Appeals for the 7^th Circuit 1999) (evidence withheld concerned witness's past dishonesty with police and judicial officers).

Here, there is no suggestion that the prosecutor had any involvement in K.M.'s decision to testify and no indication that the so-called impeachment evidence would have contradicted any of his statements at trial concerning the October 4 incident. In the final analysis, the evidence was duplicative of information already known to Nielsen and to the district court.

Nielsen v. State, supra. 

The court therefore affirmed Nielsen’s conviction and sentence. Nielsen v. State, supra. 

Plain View, Computer Forensics and Rosetta Stone

As this press release from the U.S. Attorney for the Northern District of Georgia explains, on August 2, 2011 Carl Skow, of Marietta, Georgia, was indicted on federal charges of

attempting to obtain a minor for the purpose of engaging in a commercial sex act, enticement of a minor to engage in sexual activity, and possession of child pornography. . . . In June 2011, an undercover federal agent responded to an ad posted by Skow on an online classifieds website in which he offered a younger girl sex for money.

Between early June 2011 and July 6, 2011, Skow and the agent communicated several times through electronic mail, by telephone, and in person, regarding [his] interest in purchasing a minor female from Guatemala for sexual services. Skow agreed to pay the agent $2,500 for a year of her services and made a down payment of $1,250. . . . The agent and Skow agreed to meet at Hartsfield-Jackson International Airport on July 6, 2011, where SKOW planned to pick up the minor female, and make the final $1,250 payment to the undercover agent. 

On that day at the agreed meeting location, Skow was arrested in possession of the final payment.  Also on July 6, agents executed a search warrant at [his] home and found, among other items, numerous images of child pornography on Skow’s home computer.

This post examines a recent opinion in which the federal district court judge who has the case ruled on Skow’s motion to suppress certain evidence.  U.S. v. Skow, 2013 WL 5493308 (U.S.District Court for the Northern District of Georgia 2013).  As to how the motion arose, the judge explained, in an earlier opinion, that

Agent Tad G. Schlatre presented a search warrant application to Judge Linda T. Walker on July 6, 2011, seeking a warrant to search [Skow’s] residence at 502 Olde Mill Lane in Norcross, Georgia, to include a search of computer storage media and other items specified in the application. . . . The warrant application recited that it was seeking evidence of the violation of 18 U.S. Code § 2422(b), which makes it a crime to persuade, induce, entice, or coerce a minor to engage in prostitution or any other criminal sexual activity, or attempt to do so. . . .

Judge Walker signed the warrant, which was executed by law enforcement at [Skow’s] residence at about the same time [he] was being arrested at the Atlanta Airport when he showed up for a meeting with an undercover agent.

U.S. v. Skow, 2012 WL 4514282 (U.S. District Court for the Northern District of Georgia 2012) (“U.S. v. Skow 2012”). 

In the opinion this post examines, the district court judge adopts the “report and recommendation” a U.S. Magistrate Judge wrote analyzing Skow’s argument in his motion to suppress.  As Wikipedia explains, a U.S. District Court judge can assign a Magistrate Judge to write a “Report and Recommendation” on a legal issue and submit it to the District Court Judge, who accepts it as written, rejects it or ask that it be revised. 

The issue the Magistrate Judge analyzes is whether,

under the plain view doctrine, during the search of [Skow’s] computer undertaken pursuant to a warrant, the officers were lawfully in a place where the incriminating or evidentiary character of the images of child pornography would have been `immediately apparent,’ assuming that the officers were not authorized by probable cause under the warrant to search for child pornography. 

U.S. v. Skow, supra.

As Wikipedia explains, and as I have noted in priorposts, the plain view doctrine is a principle that can expand the scope of a lawful 4^th Amendment search, i.e., a search conducted pursuant to a valid search warrant.  It lets, as Wikipedia notes, an officer seize evidence found during a lawful 4^th Amendment search if (i) the officer does not violate the 4^th Amendment by being at the police where he/she saw the evidence, (ii) the officer does not violate the 4^th Amendment by accessing and seizing the evidence and (iii) the incriminating nature of the item(s) is “immediately apparent” to the officer.

At the hearing on Skow’s motion to suppress, two of the agents who participated in the investigation testified about the process used to search Skow’s computer.  Schlatre did not perform the forensic analysis of the computer, but was the affiant on the application for the search warrant and testified how agents, “generally speaking,” would go about

searching for the evidence or items listed in the warrant. . . . [He] testified that they were looking for evidence on the computer of who owned the computer, which could include resumés, photos of the owner, or other similar identifying information. . . . He would also look for Skype or instant messaging, and also for photographs that would indicate ownership of the computer. . . .To find photos of the owner, the examiner would need to look at all the photographs on the computer. . . .

In addition, . . . the agents were looking for evidence of purchase of a copy of any `Rosetta Stone’ language courses or materials. . . . To look for this evidence, agents would use a keyword search. . . . Alternatively, agents could look for a logo for Rosetta Stone or a picture of the packaging indicating that someone went to a website for it. . . .Examiners would look in different places in the computer for any such evidence. . . .

The warrant also authorized a search for evidence of the purchase of a girl's bicycle as a means of transportation for a teenage girl. . . . Insofar as the warrant authorized search for `[a]ny evidence of preparation for the arrival of a 14–year–old female, including[,] but not limited to, girl's clothing, beds, toys, games,’ . . . the agent would do word searches for these items and also look for pictures of toys and games. . .

The warrant also authorized a search for certain photographs of minor girls provided by the undercover agent to [Skow]. . . . Again, the agent testified that the examiner could be expected to do a keyword search for the particular e-mail account that the pictures were sent to. . . . would also look in the internet cache or in slack space, but ultimately would have to look at all the pictures on the computer to find them. . . .

U.S. v. Skow, supra.

Agent Michael Richardson, who examined Skow’s computer, testified that he used

`Encase Portable.’ . . . After performing several operations on the computer and hard drives over a two-hour period, he received a manageable `bucket of images’ to look at. . . . He immediately noticed . . .child pornography. . . . At that point he just shut the preview down because they were seizing the computers anyway. . . .

Back at the lab, he also used another version of Encase. . . . He looked at [the] . . . `bucket of images.’ . . . He was also looking for images of `Mariena,’ a 14-year-old girl whose name he had been given. . . . Scrolling through the images he ultimately found images of Mariena. . . .Those images were later `hashed’ and found to be the same images sent by the undercover agent to [Skow]. . . .

He also found evidence of Rosetta Stone through a keyword search which took him directly to it. . . . With regard to the girls' bicycles, he did image searching and a keyword search. . . . He did not find anything. . . . With regard to evidence of `preparation for the arrival of a 14–year–old female,’ he went through images to see if there were any images of any of these items. . . . He also did keyword searches and again checked the Internet history and found no evidence of those items either. . . .

Richardson was looking for child pornography because he believed the warrant authorized him to do that. . . . [I]f he had just been looking for photographs of Mariena when he searched under the search warrant he would not have done anything differently. . . . And with regard to Rosetta Stone, the bicycle, the children's clothing, the evidence of usership, he would have scrolled through all the images. . . .

U.S. v. Skow, supra.

Jim Persinger is a computer forensics consultant Skow hired. U.S. v. Skow, supra. He examined Skow’s computer in an office at the Department of Homeland Security. U.S. v. Skow, supra.  He started with hash values but “also did a keyword search for `Mariena.’” U.S. v. Skow, supra.  Persinger “used a function called Gallery Viewer”, which “turned up images of the pictures in question.” U.S. v. Skow, supra.“It did not turn up any child pornography” but Persinger “found the term `Rosetta.’” U.S. v. Skow, supra.

In his opinion, someone who found child pornography on this computer had to be

zeroing in and looking particularly for child pornography, not looking for Rosetta Stone, or references to a girl's bicycle, or the five particular photographs. . . . He was asked to perform particular tasks. To find the three to five pictures and references to Rosetta Stone, he focused on two hard drives. . . . He was not asked to look for references to bicycles or evidence of shopping for children's clothing or toys. . . . 

He said that if he had been asked to look for information regarding a girl's bicycle or women's clothes he would have said the search was too broad. . . . He agreed that once he found what he thought was a picture, ultimately he would have to open the picture and look at it to be sure it was what he was looking for. . . .

He was shown the last page of [Skow’s] Exhibit 1, page 17, an exhibit created by him. . . . [H]is attention was called to a file labeled as follows, in part: `Guatemala 9yo fucked in car with sound.mpg.lnk.’ . . .That file was found on [Skow’s] computer on a hard drive. . . . In fact, he found this in the course of his examination. . . .

He admitted that if he was looking for evidence of [Skow’s] preparation to bring a young Guatemalan girl into his home for sex he would search `Guatemala.’ . . .  If he did that, this file would come up. . . . He could then play the video and determine whether, as the title suggests, it showed a 9–year–old Guatemalan girl being raped. . . .  He admitted that if he had gone as far as to find this link he would have had reason to believe that the link was pornographic in nature and involved a child. . . .

U.S. v. Skow, supra.

In his motion to suppress, Skow argued that

a properly limited search using hash values and keywords would have immediately disclosed the pictures of the young girls given to [him] by the undercover officer, any reference to a girl named `Mariena,’ any reference to Rosetta Stone language courses, and any indicators of ownership of the computer, without ever placing the examining agents in a place where they would have seen child pornography.

U.S. v. Skow, supra.  He also argued that “a limitation of the search to evidence received or created after June 3, 2011, would likewise have assured that no child pornography would have been seen.”  U.S. v. Skow, supra. 

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In his Report and Recommendation, the Magistrate Judge noted, first, that “even though [Skow] is correct that it would have been possible to target narrowly the girl photographs, and the references to Rosetta Stone and Mariena, without necessarily having ventured into a place on the computer where child pornography could have been discovered,” his argument “fails as it is applied to other categories of information authorized to be searched for and seized in the warrant.”  U.S. v. Skow, supra.  He also noted that the "warrant authorized search for any evidence of the purchase of a bicycle [and] for any evidence of preparation for and arrival of a 14–year–old female, probably from Guatemala” and said he could not “conclude it was unreasonable for Richardson to have looked through his `bucket of images’ seeking such evidence.” U.S. v. Skow, supra.   

And he noted Persinger said that, under the circumstances, he “himself would have retrieved the file described above and would have recognized it as a link to child pornography.”  U.S. v. Skow, supra. He did not find Richardson’s actions in this regard to violate the 4^th Amendment’s requirement of “reasonableness.” U.S. v. Skow, supra.

As to the date limitation Skow suggested, the Magistrate Judge found that “given that the preview software used on the scene by Richardson lacked the capability of date limitation, . . . it was not unreasonable for [him] to have reviewed the images on site without applying such a limitation.” U.S. v. Skow, supra. As to “the more comprehensive search performed back at the lab,” he did not find “any unreasonable conduct in the agents looking at the list of files and at least cursorily opening those that appeared to be evidentiary or contraband.”  U.S. v. Skow, supra. As the Magistrate Judge noted, when an officer has a lawful warrant that authorizes him/her to search for and seize evidence, he/she can look wherever the evidence could be. U.S. v. Skow, supra.

As to the general scope of the search, the Magistrate Judge found that whether it would

have been reasonable to have looked through all the jpegs and other photographic image files just to find the pictures of the girls, or a reference to Rosetta Stone, it was certainly reasonable for the agent to look through [Skow’s]photographs for evidence of [his] ownership, possession and control of the computer and its hard drives, and it was reasonable to look for any evidence of [his] planning and preparations for the coming of this Guatemalan girl he believed the undercover officer was going to deliver to him. And, as Richardson testified, as soon as he started looking through the images on [Skow’s] computer, he came very quickly in the process upon child pornography.

U.S. v. Skow, supra.

The judge therefore held that the fact Richardson was

looking for child pornography does not render his search unconstitutional. At the time he made his search, he was possessed of a search warrant that, on its face, authorized him to search for child pornography. The issue is not whether he was looking for child pornography.

The issue is whether the search warrant authorized the agent to look through the photographs in making the searches he had probable cause to make, and whether, in so carrying out this authorized mandate, the agent came into a place where photographs would have been in plain view whose incriminating character as child pornography would have been `immediately apparent.’ I answer these questions, `Yes.’ I thus conclude on this issue that the requirements of the plain view doctrine were met in this case with regard to Richardson's discovery of child pornography on [Skow’s] computer and its associated hard drives.

U.S. v. Skow, supra.

The Magistrate Judge therefore recommended that Skow’s motion to suppress should be denied.  U.S. v. Skow, supra.  The U.S. District Court Judge who has the case later adopted the Magistrate Judge’s Report and Recommendation as his opinion, which meant he denied Skow’s motion to suppress.  U.S. v. Skow, supra.