The ADA, the Drug Court Coordinator and Embezzlement

After “Angela Marie Marcum, James Michael Miller, and William Harbert Layden Jr. were charged in the District Court of Pittsburg County . . . with Conspiracy to Defraud the State of Oklahoma in violation of” 21 Oklahoma Statutes § 424, they all “moved to suppress evidence relating to text messages.”  State v. Marcum, 2014 WL 309486 (Oklahoma Court of Criminal Appeals 2014).

According to the news story you can find here, this is how they came to be charged:

A second indictment against Pittsburg County's drug court judge accuses him of lying to the state grand jury four times. . . . An indictment unsealed Friday, Sept. 30, 2011 in Pittsburg County accuses Special Judge William H. Layden Jr., Assistant District Attorney James Michael Miller and former drug court coordinator Angela Marcum of attempting to obstruct an investigation of alleged embezzlement within the county's drug court program. . . .

The first indictment against [the judge] was filed Friday at the courthouse in McAlester. He and two others are accused in that felony case of conspiring to impede an investigation into missing drug court funds. The judge has denied wrongdoing. . . .

The drug court program was instituted in Oklahoma in 1995. The purpose is to redirect drug offenders into a structured, judicially monitored substance abuse treatment program rather than sending them to prison.

Grand jurors reported finding a drug court in Pittsburg County that had run amok. The grand jury said drug court participants there had to pay $4,500 — a total `greatly in excess’ of the fee provided by law.

Participants also were paying the drug court administrator rather than the court clerk.  The grand jury in May indicted the former administrator of the Pittsburg County drug program.

You can, if you are interested, find the indictment against all three here.

As noted above, all moved to suppress certain evidence “relating to text messages.”  State v. Marcum, supra.  This opinion explains that Miller was

an assistant district attorney in Pittsburg County and Marcum was the drug court coordinator responsible for collecting money. Miller and Marcum were romantically involved. The Pittsburg County District Attorney told Miller the [Oklahoma State Bureau of Investigation] was in town investigating suspected embezzlement.

Shortly after that conversation, Miller was seen in the alley behind the courthouse, texting quickly. Miller sent Marcum text messages from his personal cell phone, and received text messages from her on his personal phone. . . .

The State sought to admit Exhibit 4, records of the U.S. Cellular telephone company of texts to and from Miller's cell phone, which were obtained pursuant to a search warrant. The State neither searched nor obtained records from Miller's actual cellular telephone. The defendants moved before trial to suppress these records.

Miller took the lead in making and arguing this motion. He argued that his 4th Amendment right against search and seizure was violated by seizure of the U.S. Cellular business records concerning Miller's texts. He claimed the search warrant was invalid because the affidavit supporting it was insufficient. Marcum joined this motion. 

State v. Marcum, supra. 

The trial judge granted the motion to suppress, in an order that “describe[d] the messages as `salacious and incriminating.’” State v. Marcum, supra.  In granting the motion, the judge “found that both Marcum and Miller had a reasonable expectation that their texts would be private, and had standing to urge a motion to suppress.”  State v. Marcum, supra.  The prosecution appealed that decision, so this is the issue the Court of Appeals addresses in this opinion. State v. Marcum, supra. 

As Wikipedia explains, and as I have noted in prior posts, in Katz v. U.S., 389 U.S. 347 (1967), the U.S. Supreme Court held that, for a 4^th Amendment “search” to occur, the person at whom the activity in question was directed had to have had a “reasonable expectation of privacy” in the place or thing searched.  As I have noted, and as Wikipedia explains, to have such an expectation the person (i) must subjectively believe the thing/place is “private” and (ii) society must accept that expectation of privacy as objectively “reasonable.” So, the trial judge found that the texts at issue in this case were “private”, as to Marcum and Miller.

With regard to the issue of standing, as Wikipedia explains, standing in law is basically the requirement that, in order to assert a legal protection, such as the 4^th Amendment, the person who seeks to invoke the protection must be able to show that he/she personal suffered a violation of that protection. So, as I explained in an earlier post, to have “standing” to raise a 4^th Amendment argument, the person must be able to show that his or her 4^th Amendment rights were violated by law enforcement conduct. Since the judge found Marcum and Miller both had a 4^th Amendment expectation of privacy in the texts at issue, they had standing to challenge the search.

The Court of Appeals began its analysis of Marcum’s and Miller’s argument on appeal by noting that the search warrant at issue was

directed, not to any defendant's cell phone, but to the business records of the U.S. Cellular phone company, a corporation, which kept a record of the texts in the regular course of business. The U.S. Cellular records contained text messages sent from and received by Miller's personal cell phone.

The State argued the defendants had no standing to contest the search warrant. The defendants argued that they had a protected privacy interest in the U.S. Cellular records of the text messages under the 4th Amendment. . . .

[T]he threshold issue . . . is quite narrow: does Marcum have a 4th Amendment reasonable expectation of privacy in the U.S. Cellular records of the texts from Miller's phone account, including messages Miller sent to her and replies she sent to Miller's phone, which were received by Miller? That is, the issue is not whether Marcum has an expectation of privacy regarding the contents of text messages from her own phone, or even regarding phone company business records kept for her phone account. 

State v. Marcum, supra. 

The Court of Appeals noted that it

has not previously determined whether there is a 4th Amendment right to privacy under these circumstances. Generally, `the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time of [ sic ] the subpoena is issued.’ U.S. v. Miller, 425 U.S. 435 (1976). It is settled that there is no reasonable expectation of privacy in call records of phone numbers kept by a telephone company. Smith v.Maryland, 442 U.S. 735 (1979).

Here, the records consist of more than account numbers, and include the contents of the text messages themselves. Also, . . . Marcum is not the account holder on the U.S. Cellular account named in the warrant. As the following discussion shows, no published case from any other court has addressed precisely this issue. . . .

State v. Marcum, supra. 

The court explained that in suppressing this evidence against Marcum,

Vassar relied on a Missouri district court of appeals case, State v. Clampitt, 364 S.W.3d 605 (Missouri Court of Appeals 2012). In Clampitt, the prosecutor obtained text message content, for the phone of the account holder himself (not, as here, a person who received and sent messages to the account holder), from a U.S. Cellular account through an investigative subpoena, not a warrant.

Clampitt discussed whether a person had a reasonable expectation of privacy in the contents of text messages where the contents were in the possession of a third party, a telephone company. Relying on a Sixth Circuit case discussing email accounts,  U.S. v. Warshak, 631 F.3d 266 (U.S. Court of Appeals for the 6th Circuit 2010), the Missouri court noted that mere third party access to subscribers' accounts did not automatically extinguish a reasonable expectation of privacy. 

State v. Marcum, supra. 

The Court of Appeals noted that the Clampitt case and “[a]ll the cases from other jurisdictions” that were cited by the parties and/or that it reviewed,

lack an important feature of this case: they all concern the reasonable expectation of the person who holds the account, owns the phone, or is personally given the phone for his use by his employer. Marcum is not that person. Marcum's strongest claim to an expectation of privacy is in the texts she sent to Miller's phone, which were received by him and recorded on Miller's account records.

This is similar to mailing a letter; there is no expectation of privacy once the letter is delivered. See, e.g., U.S. v. Gordon, 168 F.3d 1222 (U.S. Court of Appeals for the 10th Circuit 1999). It is like leaving a voice mail message, having the recipient receive and play the message, and then claiming the message is private. In an unpublished opinion the Eleventh Circuit found the defendants had no reasonable expectation of privacy in messages they had sent to or received from a third party, because once the messages were both transmitted and received, the expectation of privacy was lost. U.S. v. Jones, 2005 WL 2284283 (U.S. Court of Appeals for the 11th Circuit 2005).  

The Minnesota Supreme Court found that a defendant had no reasonable expectation of privacy in cell phone records procured from a phone company where, although he possessed and used the phone, he was not the account holder and had no relationship with the phone company. State v. Griffin, 834 N.W.2d 688 (Supreme Court of Minnesota 2013). . . . [A] Texas appellate court has found a defendant had no reasonable expectation of privacy in a telephone company's cell phone records for the accounts of co-defendants. Anderson v. State, 2013 WL 1819979  (Texas Court of Appeals 2013). . . .

State v. Marcum, supra. 

The Court of Appeals therefore explained that

Marcum has not demonstrated a reasonable expectation of privacy in the records seized from U.S. Cellular for Miller's phone account. This Court adopts the reasoning of the courts which have concluded that there is no expectation of privacy in the text messages or account records of another person, where the defendant has no possessory interest in the cell phone in question, and particularly where, as here, the actual warrant is directed to a third party.

The trial court abused its discretion in finding that Marcum had a reasonable expectation of privacy in the records of text messages sent from and received by Miller's phone, and kept by U.S. Cellular. . . .

State v. Marcum, supra. 

The Court of Appeals therefore reversed the trial judge’s granting the motion to suppress insofar as it concerned Marcum, and remanded the case to  for further proceedings.  State v. Marcum, supra. 

The Cell Phone, Divorce and Harassment

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Child pornography, the Password-Protected Folder and the 4th Amendment

After a federal grand jury indicted him on “charges of receiving and possessing child pornography” Shawn David Coulter filed a motion to suppress evidence.  U.S. v. Coulter, 2014 WL 229199 (U.S. District Court for the Western District of Missouri 2014). The press release you can find here, and the news story you can find here, provide more information on the charges and the facts in the case.  The opinion does not cite the statute(s) under which he was charged, but I assume it was 18 U.S. Code § 2252A.

The U.S. District Court Judge who has the case referred the motion to suppress to a U.S. Magistrate Judge pursuant to 28 U.S. Code § 636(b), which authorizes a District Court Judge to “designate a magistrate judge to conduct hearings . . . and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court” of motions of various types, including motions to suppress. U.S. v. Coulter, supra.

The U.S. Magistrate Judge began his “Report and Recommendation” to the U.S. District Judge who has the case by outlining the facts that led to Coulter’s being charged:

On April 5, 2009, Jane Crisp, with the assistance of her adult son, Justin, determined that Coulter, who was residing at Crisp's home, had downloaded images and videos of child pornography onto her computer, which was kept and used in her minor son's bedroom. Crisp's adult son Justin discovered the images on the computer hard drive, which he routinely checked at Crisp's request for downloaded material that might need to be removed or deleted.

Although the file containing the images was labeled `Shawn's files,’ and was protected by a password, Justin was able to bypass the password security. Justin attempted to delete some of the images, which included a video of a thirteen-year-old girl performing oral sex on an adult male, who was identified as the girl's father.

At the time of Justin's search, an external hard drive belonging to Coulter was present, but disconnected from Crisp's CPU tower. After Justin discovered the images, Crisp, Justin, and Crisp's minor son left the residence. When they returned, Coulter was in the house. Crisp contacted two friends, Kevin Sharp and Harold Sword. Both men arrived at the residence and advised Crisp to contact the police.

She telephoned the Lebanon, Missouri, Police Department and reported that a male subject (Coulter) at her residence had downloaded child pornography on her computer. She requested that the police remove him from her residence and arrest him.

U.S. v. Coulter, supra.

When the police arrived, Crisp

granted entry to Officers Wayne Merritt and Kendall Blackburn. Crisp's 13–year–old son, Sharp, Sword, and Coulter were also present. In the presence of the officers, Crisp confronted Coulter about the child pornography on her son's computer, but Coulter `did not say much.’ Crisp then permitted Merritt to enter her minor son's bedroom, where the computer was located.

Merritt attempted to retrieve the images from the computer, without success. Sword, who was also present in the room, offered that he could probably find the images on the hard drive. Merritt agreed, and Sword found the same video clip of a 13–year–old female performing oral sex on an adult male. At the time of Merritt's search, the external hard drive had been reconnected to the CPU tower. Merritt testified that he perceived the external hard drive and the tower to be Crisp's `computer.’

U.S. v. Coulter, supra.

Merritt then too the

tower and external hard drive out of the house. Merritt's report notes that Officer Blackburn arrested Coulter for possession of child pornography and read him his constitutional rights. As Merritt was removing the computer, Crisp told him `the tower was hers,’ and she wanted it back.

Merritt took the tower and the hard drive to the Lebanon Police Department. [Coulter] was read his Miranda rights. Robinson interviewed Coulter at the station and determined that the external hard drive was owned by Coulter. Coulter later gave written consent for police to search the hard drive. Forensic examination of the hard drive revealed over 120 images and over 60 videos of child pornography.

U.S. v. Coulter, supra.

The Magistrate Judge began his analysis of Coulter’s motion to suppress by noting that

[t]he 4th Amendment protects citizens from unreasonable searches and seizures by the government. See U.S. v. Va Lerie, 424 F.3d 694 (U.S. Court of Appeals for the 8th Circuit 2005). A 4th Amendment search occurs `when an expectation of privacy that society is prepared to consider reasonable is infringed.’ U.S. v. Jacobsen, 466 U.S. 109 (1984). Only governmental, not private, searches and seizures are protected by the 4th Amendment. U.S. v. Jacobsen, supra.

Private intrusions to privacy do not violate the 4th Amendment unless the private party is acting as an `instrument or agent’ of the government, a question which turns on `the degree of the government's participation in the private party's activities’ which is resolved in light of the totality of the circumstances in the case. U.S. v. Wiest, 596 F.3d 906 (U.S. Court of Appeals for the 8th Circuit 2010) (quoting Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989)).

U.S. v. Coulter, supra.  For more on private searches, check out this prior blog post.

The Magistrate Judge then found that Crisp’s

original search of the files, with the assistance of her son, Justin, was not a governmental search because Crisp was not acting as an `instrument or agent’ of the government. She testified in state court that she periodically checked the computer, which was primarily used by her minor son, for downloaded material that needed to be removed. After viewing the pornographic video on her minor son's computer, she contacted the Lebanon Police Department and reported it.

U.S. v. Coulter, supra.  As this article notes, the case was originally filed in state court but was later taken over by federal authorities.

Next, he took up the issue of whether Crisp had the authority, under the 4^th Amendment, to consent to the search of the CPU.  U.S. v. Coulter, supra.  The Magistrate Judge noted that since Crisps’s

original search of the tower, or CPU, was a private, not governmental, search, the Court turns to the question whether Crisp had the authority to consent to the search and seizure of the CPU and [Coulter’s] hard drive. If a party consents to a search, no warrant is required. See U.S. v. Farnell, 701 F.3d 256 (U.S. Court of Appeals for the 8th Circuit 2012). A third party having `joint access or control’ over mutually-used property may lawfully consent to a warrantless search of that property. See U.S. v. Clutter, 674 F.3d 980 (U.S. Court of Appeals for the 8th Circuit 2012).

U.S. v. Coulter, supra.  For more on authority to consent to the search of property, check out this prior blog post.

Here, Coulter argued that Crisps’ consent to search the

`computer’ did not apply to the password-protected folder called `Shawn's files,’ even though it was located on Crisp's CPU tower. [Coulter] maintains that the password protection of the folder `created an expectation of privacy for the person possessing th[e] password’. . . .

Both Crisp's adult son and Crisp's friend Sword were able to override the password protection on the folder `Shawn's files’ without difficulty, and were able to access images stored therein. Crisp's adult son periodically checked the computer at Crisp's request to see if anything had been downloaded that needed to be removed.

Crisp's ability to easily access the files supports a finding that Crisp had common authority over the files, even though they were password-protected. Both Justin and Sword were able to bypass the password protection over `Shawn's files’ with little difficulty. As owner and user, Crisp had authority to consent to a search of the CPU tower. Moreover, Merritt testified he was unaware that the files were password protected.

U.S. v. Coulter, supra.  

The Magistrate Judge then took up Coulter’s argument that “Crisp's authority to consent did not extend to the seizure of the external hard drive owned by Coulter, but used with Crisp's CPU.”  U.S. v. Coulter, supra.  He began his analysis of this argument by noting that a 4^th Amendment “seizure occurs `when there is some meaningful interference with an individual's possessory interests in that property.’  U.S. v. Clutter, 674 F.3d 980 (U.S. Court of Appeals for the 8th Circuit 2012) (quoting U.S. v. Jacobsen, supra).”  U.S. v. Coulter, supra.  

The judge then explained that

[n]o party, not even Coulter, who was in the home at the time of the seizure, made a meaningful distinction to the police between the CPU and the hard drive. Merritt testified that he believed the seized components were all part of the same computer system. Moreover, law enforcement had not been informed by anyone present that the external hard drive was owned by [Coulter] and the tower by Crisp.

[Coulter] argues that Crisp's statement to Officer Merritt at the time of the seizure that she wanted `the tower’ back, was sufficient to indicate Crisp owned the tower, but not the external hard drive. [This judge] recommends rejection of this argument.

Merritt testified that at the time he seized the CPU and hard drive he did not know the hard drive belonged to Coulter. After Corporal Robinson interviewed Coulter at the station, she informed Merritt that the hard drive belonged to Coulter and that he would probably need to get a warrant or [Coulter’s] consent before police could perform a forensic search of the hard drive. Merritt took a consent form to [Coulter] at the Laclede County Jail. Coulter signed it, indicating he consented to a search.

U.S. v. Coulter, supra.  

As to Crisp’s authority to consent to the seizure of the external hard drive, along with the tower, the judge explained that when a third party

lacks `actual’ or `common authority’ to consent to a search of jointly-used property, it is reasonable for law enforcement officers to rely upon the third-party's `apparent authority; to consent. U.S. v. Clutter, supra.

Law enforcement reasonably relied on Crisp's apparent authority to consent to the search. The computer was in Crisp's home, in her minor son's bedroom. Her minor son regularly used the computer. Crisp routinely had her older son monitor the computer for any inappropriate material. Crisp, with the assistance of her friend, showed Merritt the video depicting sexual relations between a 13–year–old girl and an adult male. This was the same video Crisp and her adult son Justin discovered prior to contacting law enforcement.

Merritt testified that he was not aware that the files were password protected, or that they were contained in a folder labeled “Shawn's Files.” The record does not show that either Sword or Crisp advised Merritt that he would have to overcome a password protection. Moreover, at that time Coulter's external hard drive was connected to the CPU tower. Based upon the totality of the circumstances presented to Merritt, it was reasonable for him to conclude that Crisp had control over the computer, including the hard drive, and its contents.

U.S. v. Coulter, supra.  

The Magistrate Judge also pointed out that

[a]s soon as Robinson learned, post-seizure, that the hard drive was separate from the CPU tower, she informed Merritt, who then obtained [Coulter’s] specific consent to search the external hard drive. It was reasonable for the officer to rely on Crisp's consent to take the computer, and it was reasonable for the officer to believe that the hard drive and the tower were part of the same computer system.

U.S. v. Coulter, supra.  

He therefore

respectfully recommend[ed] that Merritt reasonably relied on Crisp's apparent authority over the entire computer system, which validates his seizure of both the CPU and the hard drive. Prior to search of the hard drive, officers obtained Coulter’s written consent to search.  Accordingly, the Court recommends that the evidence obtained from the CPU and external hard drive should not be excluded.

U.S. v. Coulter, supra.  

The U.S. District Court Judge who has the case later reviewed the Magistrate Judge’s report and recommendation and adopted the Magistrate Judge’s recommendation that the motion to suppress be denied.  U.S. v. Coulter, supra.