LimeWire, the Wyoming Tool Kit and the 4th Amendment

After Levi Dunham “was charged by bill of information with seventeen counts of pornography involving juveniles” in violation of Louisiana Revised Statutes § 14:81.1(a)(3), he entered a plea of not guilty and then filed a motion to suppress evidence.  State v. Dunham, __ So.3d __, 2012 WL 6643838 (Louisiana Court of Appeals – 1^st Circuit 2013). 

At the time Dunham was charged, § 14:81.1(a)(3) criminalized the “The intentional possession, sale, distribution, or possession with intent to sell or distribute of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen.”  The statute was revised by legislation adopted in 2010.  State v. Dunham, supra.

The judge denied the motion to suppress and the case went to trial.  State v. Dunham, supra.  The jury convicted Dunham of “eight counts of pornography involving juveniles” and the judge sentenced him to “thirty months at hard labor without the benefit of probation, parole, or suspension of sentence for each count, to be served concurrently.” State v. Dunham, supra.  (I don't know what constitutes “hard labor” in Louisiana; I did some research, but could not find anything specific.)

Dunham appealed, arguing that “the use of technology unavailable to the public to search his computer constituted an illegal, warrantless search” which produced evidence that was used against him at trial.  State v. Dunham, supra.  As Wikipedia explains, and as I have noted in earlier posts, the 4^th Amendment to the U.S. Constitution creates a right to be free from “unreasonable” searches and seizures, and to be “reasonable” a “search” or “seizure” must either be conducted pursuant to a valid search (and/or seizure) warrant or pursuant to an applicable exception to the warrant requirement that the officers can rely upon. 

We will come back to Dunham’s argument.  To understand his argument, it is necessary to understand how the charges against him came about:

Trooper Jared Sandifer with the Louisiana State Police became involved in an investigation of [Dunham] on July 19, 2009, while using peer-to-peer file sharing software called `GNU Watch.’ . . . [At the hearing on the motion to suppress,] Sandifer testified that GNU Watch searches for internet protocol (`IP’) addresses that are sharing files with a known secure hash algorithm (`SHA’) value, which he described as being `like a thumbprint’ for a video or image.

He used GNU Watch to search LimeWire, a peer-to-peer file sharing software system, for files with SHA values indicative of child pornography. According to Sandifer, if such files were not in LimeWire or another peer-to-peer file sharing software system, GNU Watch would not detect them. He also opined that if the files were not in the LimeWire user's `shared’ folder, GNU Watch would not detect them.

Through the information obtained by GNU Watch, Sandifer saw that IP address 68.11.192.222 had files with SHA values that were consistent with child pornography. Based on this information, Sandifer had a court ordered subpoena issued to Cox Communications, Inc., and determined that the IP address belonged to [Dunham’s] wife.

He obtained a search warrant, and he and a group of other officers . . . executed the warrant at [Dunham’s] residence. Sandifer found a laptop computer in the residence and seized it after [Dunham] stated that it belonged to him. Sandifer conducted an examination of the files on the computer and discovered that it contained images of child pornography.

State v. Dunham, supra.

After Sandifer found child pornography on the laptop, it was taken to the

Louisiana State Police headquarters and a forensic examination was conducted by Trooper Dwight Herson, an expert in the field of forensic computer examination. Herson testified [at the hearing on the motion to suppress] that he was provided with a list of files that Sandifer saw on [Dunham’s] computer and was able to locate all of those files.

When asked whether a LimeWire user would have access to the SHA value of a file on the program without the use of special police software, he responded that programs are available to obtain the SHA value of a file once the file has been transferred from LimeWire. According to Herson, although it is not normal practice, a user could access the SHA value of a file once the user has the file.

State v. Dunham, supra.

On appeal, Dunham argued that “the Louisiana State Police's use of the `Wyoming Tool Kit’ or GNU Watch software to search his personal computer was an illegal, warrantless search because the software is not readily available for public use.”  State v. Dunham, supra.  More precisely, he argued that

SHA values are not available to the general public and special software was required to obtain the value and compare it to other known files. He also argues that LimeWire shares parts of files, rather than whole files, and that SHA values cannot be obtained from the fragments available on LimeWire through publicly available software.

State v. Dunham, supra. (The opinion does not say this, but it appears that in making this argument, Dunham was relying on the Supreme Court's decision in Kyllo v. U.S., 533 U.S. 27 (2001). As I explained in an earlier post, the Kyllo Court held that it is a 4th Amendment "search" for law enforcement officers to use "technology not in public usage" to obtain information from inside a home. It seems, then, that  the Wyoming Tool Kit was technology "not in general public usage.")

The Court of Appeals began its analysis of Dunham’s argument (and, by implication, the prosecution’s argument to the contrary) by noting that when a

district court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the district court's discretion, i.e., unless such ruling is not supported by the evidence. . . . However, a district court's legal findings are subject to a de novo standard of review. . . .

State v. Dunham, supra.

The court also explained that when someone files a motion to suppress, the burden of proof

is on the defendant to prove the ground of his motion.  Louisiana Code of Criminal Procedure article 703. The defendant has the obligation of designating the transcript of the hearing of the motion to suppress for the record on appeal. See Louisiana Code of Criminal Procedure article 914.1. The transcript of that hearing is not in the record before us. However, in determining whether the ruling on defendant's motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. . . .

State v. Dunham, supra.

The court then explained that, as noted above, the 4^th Amendment protects U.S. citizens from “unreasonable” searches and seizures.  State v. Dunham, supra. It also noted that “[o]nly individuals who actually enjoy the reasonable expectation of privacy have standing to challenge the validity of a government search.”  State v. Dunham, supra.

As Wikipedia explains, and as I have noted in earlier posts, to constitute a “search” under the 4^th Amendment, the conduct of law enforcement officers must violate a person’s “reasonable expectation of privacy” in a place or thing.  As Wikipedia also explains, and as I have noted in earlier posts, to have a “reasonable expectation of privacy” under Katz v. U.S., 389 U.S. 347 (1967), I must subjectively believe the place or thing is “private” and society must accept my belief as objectively reasonable.  So it would not, for example, be a “search” for a law enforcement officer to listen to my part of a conversation I am conducting via my cell phone in a public place.  A court would say that I may have thought it was private, but society would reject my belief as unreasonable . . . since anyone in the vicinity could have done what the officer did.

The Court of Appeals noted that the issues Dunham raised in this case were recently addressed by another panel of Louisiana Court of Appeals judges in State v. Daigle, 93 So.3d 657 (Louisiana Court of Appeals – 3d Circuit 2012).  State v. Dunham, supra.

In Daigle, Louisiana State Police detectives conducted an investigation using the Wyoming Tool Kit and discovered [Daigle’s] IP address was seen with SHA values consistent with child pornography. At trial, the detectives explained that the Wyoming Tool Kit was designed by the Wyoming Department of Justice and ran on the Gnutella network.

According to the detectives, software such as LimeWire and BearShare also ran on the Gnutella network. The Wyoming Tool Kit identified IP addresses that had SHA values matching images previously identified as child pornography. . . . The detectives used GNU Watch in addition to the Wyoming Tool Kit, and testified that both programs only ran on the Gnutella network. . . .

Citing several recent federal court decisions, the court found that in applying for a search warrant, the detective did not violate any reasonable expectation of privacy on [Daigle’s] part by using software available only to law enforcement to identify [his] IP address as having SHA values that might be associated with images of child pornography. 

State v. Dunham, supra.

This 1^st Circuit panel of the Court of Appeals agreed with the Daigle court and found Sandifer

did not violate [Dunham’s] right to privacy by using GNU Watch to examine the SHA values for files [he] had already elected to freely share with other LimeWire users. Moreover, [Dunham] offered no evidence at trial in support of his assertion that publicly available programs are unable to obtain the SHA values of files on LimeWire, and the record does not support that argument. Therefore, [his] arguments related to the alleged violation of his right of privacy are without merit.

State v. Dunham, supra.

It also declined to address Dunham’s claim there were “misrepresentations in the search warrant regarding the technology used in obtaining evidence in support of the warrant and whether that technology was publicly available, such that the evidence used against him should have been suppressed.” State v. Dunham, supra. Since Dunham had the burden to prove that the warrant was invalid but did not include the search warrant application and transcript of the trial court’s hearing on the motion to suppress included in the record submitted to the Court of Appeals, the court found that he failed to prove there were any defects in the warrant application that caused the warrant to issue without probable cause.  State v. Dunham, supra.

(It also noted that in Sandifer’s testimony at trial, which was included in the record before the Court of Appeals, he “asserts that there are programs available to the public that can be downloaded to view the information that he was able to view using the special software.”  State v. Dunham, supra.)

The court therefore affirmed Dunham’s conviction and sentence.  State v. Dunham, supra. If you are interested, you can read a little more about the case and find a photo of Dunham in the news story you can find here.

Fyi, maybe: New article on cyberthreats

The Minnesota Journal of Law, Science & Technology recently published my latest article:  Cyberthreats and the Limits of Bureaucratic Control, 14 Minn. J. L. Sci. & Tec. 137 (2013). 

You can find the printed version of the article at this link. (If you have any difficulty accessing it, please let me know.)

Here is a brief -- very brief -- abstract of what this rather lengthy article addresses:

This article argues that the approach the United States, like other countries, uses to control threats in real-space is ill-suited for controlling cyberthreats, i.e., cybercrime, cyberterrorism and cyberwar. The article explains that because this approach evolved to deal with threat activity in a physical environment, it is predicated on a bureaucratically organized response structure.  It also explains why this approach is not an effective way to approach cyber-threat control and examines recent federal initiatives that have been proposed to improve U.S. cybersecurity, such as the U.S. military’s Cyber Commands.

The article explains why each of these efforts is flawed and why U.S. authorities persist in pursuing antiquated strategies that cannot provide an effective cyberthreats defense system.  It argues that the continuing reliance bureaucratically structured response systems is the product of the fallacy of inevitability, i.e., the recursive reliance on established institutional models.  It also outlines an alternative approach to the task of protecting the country from cyberthreats, and approach that is predicated on older, more fluid threat control strategies.  

Texts, Child Abuse and the Spousal Privilege

After being charged with “with simple assault, aggravated assault and endangering the welfare of a child”, Michele Renae Hunter filed a “pretrial motion in limine seeking to exclude from evidence text messages (texts) sent between her and her co-defendant”, whom the opinion refers to only as “Husband.”  Commonwealth v. Hunter, __ A.3d __, 2013 WL 150779 (Superior Court of Pennsylvania 2013).  The trial court denied the motion after he held a hearing on it.  Commonwealth v. Hunter, supra.

To understand the charges and the motion in limine, it is necessary to understand how the case arose:

The four-year-old victim, B.H., Jr., is Husband's biological son and Hunter's stepson. While in Hunter's care, B.H., Jr., suffered a severe brain injury (subdural hemorrhage), which led to cardiopulmonary arrest. 

The attending pediatrician on staff at the hospital where B.H., Jr., was taken for treatment opined that there is a high probability that he will suffer lasting brain damage as a result of the injury.  The doctor also noticed that B.H., Jr., had bruising over his entire back, consistent with hand prints, as well as on both arms and elbows. The doctor noted that child abuse was suspected.

Initially, Hunter told the police that on March 16, 2011, B.H., Jr., had been upstairs and had fallen and reopened an old cut on his chin. She also told the officers the boy had passed out in the bathroom, fell, and was non-responsive and had difficulty breathing. Days later, Hunter told authorities she had not given accurate information regarding how the child became injured and that on March 15, 2011, she had pushed [him] down, causing him to hit his head. 

She said he became unresponsive and she was unable to rouse him by carrying him to the bathroom and splashing cold water in his face. She said the boy remained relatively unresponsive (`limp’) throughout the day, falling in and out of periods of responsiveness. He was unable to move his limbs or sit up on his own.

Commonwealth v. Hunter, supra.  (In a footnote, the court explains that at Hunter’s bail hearing, B.H.’s foster mother said he “is unable to walk, talk, swallow food, communicate or play” and “has a shunt in his head to drain fluid and a permanent feeding tube that goes into his stomach and intestines.”  Commonwealth v. Hunter, supra.) 

The opinion also says that Hunter also told the authorities that “throughout the day” on March 15,

she began sending Husband texts at work, describing the boy's deteriorating condition over a 36–hour span. B.H., Jr., was unable to walk or sit up on his own that evening and was put to bed by Husband and Hunter, both of whom checked on him throughout the night. 

The next morning, . . . [he] was able to walk with some assistance, [but] continued to exhibit many of the symptoms from the day before. That evening, as Husband carried his son into his bedroom, B.H., Jr. began gasping for breath and went into cardiac arrest. He was rushed to the hospital.

Commonwealth v. Hunter, supra.  The opinion notes that “[m]ore than 50 texts were sent by Hunter to Husband over that time period, ending when the boy went into cardiac arrest and was rushed to the hospital.”  Commonwealth v. Hunter, supra. 

Hunter was charged with the crimes noted above and “Husband was charged with conspiracy to endanger the welfare of a child and endangering the welfare of a child.”  Commonwealth v. Hunter, supra.  As also noted above, she moved to prevent the prosecution from using the texts at trial.  Commonwealth v. Hunter, supra. 

In her motion, Hunter argued that the texts would not be admissible at a trial on the charges because Pennsylvania’s “statute regarding privileged confidential communications between spouses” would bar their use.  Commonwealth v. Hunter, supra.  As Wikipedia explains, U.S. law generally recognizes two distinct privileges: 

the communications privilege and the testimonial privilege. Both types of privilege are based on the policy of encouraging spousal harmony, and preventing spouses from having to condemn, or be condemned by, their spouses.

In this case, Hunter sought to invoke the spousal communications privilege, which is a

form of privileged communication which protects the contents of confidential communications between spouses during their marriage from testimonial disclosure. The privilege applies in civil and criminal cases.

Both the witness-spouse and the party-spouse hold the spousal communications privilege, so either may invoke it to prevent the other from testifying about a confidential communication made during marriage.

(And as Wikipedia notes, the spousal testimonial privilege “protects the individual holding the privilege from being called to testify by the prosecution against his spouse/the defendant.”  We will get to that privilege later.)

More precisely, Hunter sought to invoke the privilege codified in 42 Pennsylvania Consolidated Statutes § 5914, which provides as follows:  “Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.”

The judge who wrote this opinion began by noting that while “the privilege was enacted to preserve marital harmony by encouraging free marital communication, allowing spouses to confide freely, and protecting the privacy of marriage”, courts should also recognize that “excluding information may not always further the intended goal of a privilege and may . . .  hinder . . . legal proceedings intended to protect fragile members of society.” Commonwealth v. Hunter, supra.  She also noted that “[o]ne such instance is in the prosecution of child abuse cases when the perpetrator(s) involved are spouses and at least one is the parent of the minor child.”  Commonwealth v. Hunter, supra. 

The judge explained that under one section of Pennsylvania’s Child Protective Services Law (CPSL) -- 23 PennsylvaniaConsolidated Statutes § 6381(c) -- “confidential communications between spouses are admissible in any proceedings regarding child abuse or the cause of child abuse.”  Commonwealth v. Hunter, supra.  She also noted that in Commonwealth v. Spetzer, 572 Pa. 17, 813 A.2d 707 (Pennsylvania Supreme Court 2002), the court found the CPSL is relevant to the interpretation of § 5914 in a

more subtle and indirect fashion. The Court in [Commonwealth v. May] recognized that the question of what is a `confidential’ communication turns in part on the reasonable expectation the declarant has that the communication will remain confidential. 540 Pa. 237, 656 A.2d 1341-42 [Pennsylvania Supreme Court 1995]. 

Even if it is assumed that § 6381(c) does not directly provide a broad child abuse exception to § 5914's application in criminal proceedings, it certainly affects what a spouse's `reasonable expectation’ of continued confidentiality may be with respect to marital communication that reveal the previous or intended abuse and intimidation of a child.

Commonwealth v. Hunter, supra.  The Spetzer court held that the spousal communications in that case were not confidential because Spetzer’s “`persistent and sadistic statements’” concerning “his actual and contemplated crimes against his wife and her children” could not be “`rationally excluded’” under the § 5914 privilege because they “‘did not arise from the confidence existing between the parties, but the want of it.’”  Commonwealth v. Hunter, supra (quoting Commonwealth v. Spetzer, supra).

Here, the Superior Court also noted that while communications between spouses are

presumed to be confidential under § 5914. . . it has long been recognized that whether a particular communication is privileged depends upon its nature and character and the circumstances under which it was said. . . . It is essential that the communication be made in confidence and with the intention that it not be divulged. . . . [I]t is the burden of the party opposing the privilege to overcome the presumption of confidentiality. 

Commonwealth v. Hunter, supra. 

It then found that Hunter could not have “reasonably expected” her texts to remain

confidential where she testified they had been the subject of a Children and Youth hearing . . . and where the record reflects that Hunters' texts had been at issue in an August county child welfare agency hearing that `likely contained information that would be material to [Hunter's] guilt or punishment [in the criminal proceedings].’ . . . Because the texts cannot be considered confidential under the facts of this case, § 5914 does not apply to exclude Hunter's texts from evidence.

Commonwealth v. Hunter, supra. 

But the Superior Court went further, considering yet another reason why the texts would not be inadmissible.  It noted that its decision would provide “some consistency” in the

application of § 5914 and our Commonwealth's spousal testimonial privilege, codified at 42 PennsylvaniaConsolidated Statutes § 5913.  In 1989, the legislature enacted the section 5913 privilege, which provides an exception to the general prohibition of spouses testifying against each other when the criminal proceeding involves bodily injury or violence . . . done or threatened upon the minor children of husband and wife, or the minor children of either of them. . . .

The [§ 5913] privilege is . . . distinct from the privilege . . . in § 5914. . . . [W]e find no rational basis for not having a child abuse exception under § 5914 as well. The lack of an exception under § 5914 not only trivializes the import of child abuse, but fails to recognize that the effect of admitting these communications outweighs any benefit in upholding the sanctity of the spousal privilege.

Commonwealth v. Hunter, supra. 

The court explained that the § 5914 privilege is much more limited than the § 5913 privilege, because it “only bars a spouse's testimony if it pertains to a communication made by the party-spouse” but the testimonial privilege in § 5913 “bars a court from compelling any testimony from a witness in a martial relationship with a party in a court proceeding.”  Commonwealth v. Hunter, supra (emphasis in the original).  So, even if Hunter’s texts were not admissible under § 5913, under the child abuse exception in

§ 5913, Husband may be compelled to testify against Hunter at trial. . . . In fact, at Hunter's bail hearing, defense counsel indicated that Husband had already agreed to testify against Hunter in this criminal case. . . .

It seems illogical to potentially hinder the Commonwealth's child abuse case by excluding at trial, as per section 5914, critical communications regarding that abuse made between spouses -- especially where more than 90% of reported child abuse cases stem from abuse that occurred in the home. . . .

Commonwealth v. Hunter, supra. 

The Superior Court therefore held that when “a defendant-spouse is the alleged perpetrator in current child abuse proceedings and where that abuse forms the basis of criminal proceedings against that defendant-spouse, the § 5914 privilege shall not apply at the defendant's criminal trial to preclude admission of spousal communications.” Commonwealth v. Hunter, supra.  It therefore affirmed the trial court’s order denying Hunter’s motion in limine.  Commonwealth v. Hunter, supra. 

If you would like to read a little more about the case and see a photo of Hunter, check out the news story you can find here.

The Security Video, the Dancers and the 4th Amendment

This post examines an Ohio court’s opinon in which it ruled on “19 related appeals” that “involve[d] numerous charges of prostitution against dancers (Appellees) working at the GoGo Girls Cabaret (`Cabaret’) in Austintown, a suburb of Youngstown, Ohio.”  State v. Wallace, ___ N.E.2d ___, 2012 WL 6765388 (Ohio Court of Appeals – 7^th District 2012).  The opinion begins by explaining that the charges

stem, in part, from information obtained off of computers seized from the Cabaret, pursuant to a warrant. On these computers were security camera recordings that showed the dancers performing for patrons in private rooms in the Cabaret. The state intended to use the videos as evidence of prostitution.

Several of the Appellees filed motions to suppress the security camera recordings. They claimed the warrants were deficient under the 4th Amendment. . . . Appellees also filed motions to dismiss the charges entirely. The court granted both motions for all of the Appellees and this prosecutor's appeal on behalf of the state was filed.

State v. Wallace, supra. This post only examines the Court of Appeals’ ruling on the 4^th Amendment issue.

The court began its analysis of the issues in the case by noting that it began

[o]n or about April 27, 2010, [when] Detective Sergeant Jeffrey Solic of the Austintown Township Police Department filed misdemeanor prostitution charges against the 19 defendants who are the Appellees. . . . The acts of prostitution allegedly occurred in April and May of 2009. The charges arose after Det. Solic obtained and executed search warrants on May 15, 2009 to search the Cabaret and seize evidence of drug trafficking and prostitution, including seizure of the Cabaret's computers. Those computers contained videos of women performing acts that the state determined should be charged as acts of prostitution. 

State v. Wallace, supra.  The prostitution charges were brought under Ohio Revised Code § 2907.25(A).

On appeal, the prosecution argued that the dancers were

independent contractors and not employees, and for this reason they had no standing to raise a 4th Amendment challenge to the search warrants (and the evidence seized pursuant to the warrants). [The prosecution] contends that independent contractors, unlike employees, do not have a reasonable expectation of privacy in the premises of their employer and cannot challenge a search of the premises.

State v. Wallace, supra. 

As I have noted in prior posts, the 4^th Amendment protects us from “unreasonable” searches and seizures conducted by law enforcement officers.  It does not, as I have noted in other posts, protect us from “searches” conducted by private citizens and/or “reasonable” searches.  “Reasonable” searches are conducted either pursuant to a valid search warrant or to an exception to the warrant requirement.  As this site explains, a “search” violates a reasonable expectation of privacy, and to have such an expectation (i) I must subjectively believe the place/thing is “private” and (ii) society must accept my belief as objectively reasonable.  Courts generally assume we have a reasonable expectation of privacy in our homes, but we can also have such an expectation elsewhere, including businesses property.

That brings us back to the prosecution’s claim that the dancers did not have “standing” to challenge the warrant and the resulting search.  State v. Wallace, supra.  As noted above, the prosecution argued that they did not have “standing” to assert that the search warrants (and searches) violated their 4^th Amendment rights.  State v. Wallace, supra.  The court began its analysis of that argument by explaining that the 4^th Amendment to the U.S. Constitution guarantees

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ In order to challenge a search and seizure as being in violation of 4th Amendment rights, a defendant must demonstrate that he has standing to raise such a claim by showing he has a `legitimate expectation of privacy’ in the object searched and seized. Rakas v. Illinois, 439 U.S.128 (1978).

State v. Wallace, supra. 

It also explained that a 4^th Amendment reasonable expectation of privacy can extend to

commercial premises as well as to private homes. See v. City of Seattle, 387 U.S. 541 (1967). Employees may have some expectation of privacy in their workspace, and therefore, often have standing to assert a 4th Amendment violation. Mancusiv. DeForte, 392 U.S. 364 (1968). Whether an employee had a reasonable expectation of privacy in order to have standing to object to a search of his or her workplace is decided on a case by case basis. . . . In some situations, an independent contractor has less right to object to a search than would an employee, but these situations are also reviewed on a case by case basis. . . .

State v. Wallace, supra. 

As to the argument that the dancers were independent contractors who could not bring a 4^th Amendment challenge, the court found it was “not well-taken.”  State v. Wallace, supra.  It noted the prosecution “cite[d] no Ohio case law that would create a separate 4th Amendment analysis when the person asserting the right is an independent contractor.”  State v. Wallace, supra.  It also noted that the hearing the trial judge held on the issue was not recorded, so it did not have the evidence presented at the hearing.  State v. Wallace, supra.  It therefore found that it could not “overturn the trial court's judgment on the basis that the Appellees were independent contractors because that fact is not established in the record before us.”  State v. Wallace, supra. 

The prosecution also argued that “even if” the Appellees had standing, they “needed to prove that a 4th Amendment violation took place” and “did not meet their burden of proof in challenging evidence seized pursuant to a valid search warrant.”  State v. Wallace, supra.  The court noted that the prosecution was “correct that a search warrant and its supporting affidavits enjoy a presumption of validity”, which meant the party challenging a search warrant and its outcome has the burden of proof to show that the evidence seized as a result of the search should be suppressed.  State v. Wallace, supra. 

The prosecution claimed the Appellees “did not submit any evidence to prove their allegations that the search or the warrants were invalid” which meant the trial judge “had no basis for granting the motion to suppress.”  State v. Wallace, supra.  The Court of Appeals agreed, noting that in moving to suppress, the Appellees “completely relied on alleged facial inadequacies of the search warrants to establish alleged violations of” the 4^th Amendment, which meant that if it “determine[d] that the warrant is facially valid,” the trial judge’s granting the motion to suppress would be error.  State v. Wallace, supra. 

The Appellees first claimed the “the warrant was facially invalid because it was based, in part, on allegedly illegal recordings of conversations made by confidential informants.”  State v. Wallace, supra.  The court noted that using a confidential informant “to record conversations is not a violation of the 4th Amendment.”  State v. Wallace, supra. “Both federal and Ohio courts have long permitted the warrantless recording of conversations between a cooperating informant and a defendant.”  State v. Wallace, supra. 

Next, the Appellees argued that “the warrants were facially invalid because they allowed for the confiscation of security videos that were allegedly made in violation of privacy interests protected by the 4th Amendment.”  State v. Wallace, supra.  The Court of Appeals also rejected this argument, noting that the security videos were recorded

by a private entity, i.e., the Cabaret, and not by a state entity or agent of the state. A search or seizure conducted by a private citizen is not a `search or seizure’ within the meaning of the 4th Amendment. . . .

For a search by a private person to trigger 4th Amendment protection, the government must have known about the search in advance, and the private party must be acting in furtherance of law enforcement purposes. . . . There is certainly nothing in the search warrant or accompanying affidavit suggesting that the Cabaret was an agent of the police in producing the security videos.

State v. Wallace, supra.  Since “the Cabaret is a private entity,” the Appellees “had no basis on which to raise a facial challenge of the search warrant centered on the actions of the Cabaret in creating security videos.”  State v. Wallace, supra. 

Finally, the Appellees argued that the search warrant did not allow the police to

actually search through the files on the computer. Appellees submit that the search warrant only allowed the police to seize the computer itself, rather than the files on the computer. Appellees conclude that if the police sought to search the files in the computer, the search warrant failed to satisfy the 4th Amendment requirement that a warrant `particularly’ describe the things to be searched and seized. 

State v. Wallace, supra. 

The Court of Appeals began its analysis of this argument by explaining that, in Maryland v. Garrison, 480 U.S. 79 (1987), the Supreme Court noted that the 4^th Amendment “categorically prohibits the issuance of any warrant except one `particularly describing the place to be searched and the persons or things to be seized.’” State v. Wallace, supra.  As the Court of Appeals explained the purpose is to limit a search to the items the officers are specifically authorized to search for and seize, if they are found.

The court then rejected the Appellees’ particularity argument, finding that it was

baseless. The warrant affidavits refer to the security cameras and the images included on the security camera videos. The warrants describe in detail the computers and the hard drives on the computers, and note that there would be security camera recordings on the computers. The evidence sought in the warrants is stated with sufficient particularity to satisfy the 4th Amendment.

State v. Wallace, supra. 

The Court of Appeals therefore held that even if the Appellees had standing to arise a 4^th Amendment challenge,

they failed to demonstrate any facial errors in the warrant and they failed to submit any other evidence challenging the warrants or search. Therefore, there was no basis to grant the motion to suppress pursuant to the 4th Amendment.

State v. Wallace, supra. 

The court therefore reversed the trial court’s judgment granting the motion to suppress.  State v. Wallace, supra.  And since it also vacated the trial judge’s order granting the Appellees’ motions to dismiss the charges against them, it reinstated the misdemeanor prostitution charges in all 19 cases.  State v. Wallace, supra.  If you would like to read more about the case, including the evidence obtained from the computers, check out the news story you can find here.