Child Pornography, BearShare and the IP Address

After he was “charged in a three-count indictment with knowingly distributing and receiving child pornography by computer, in violation of 18 U.S. Code §§ 2252 (a) and (b), and with knowingly possessing computers and external hard drives containing child pornography, in violation of 18 U.S. Code § 2252(a)(4)(B)”, Fred Wayne Dennis filed a motion to suppress certain evidence.  U.S. v. Dennis, 2014 WL 1908734 (U.S. District Court for the Northern District of Georgia 2014).

The U.S. District Court Judge who has the case referred the motion to suppress to a U.S. Magistrate Judge, who prepared a “report and recommendation” on the motion and submitted it to the District Court judge.  U.S. v. Dennis, supra.  The Magistrate Judge begins his report and recommendation by explaining how the prosecution arose:

In May of 2011, the Department of Homeland Security, Homeland Security Investigations, Immigration and Customs Enforcement (`HSI/ICE’), initiated a peer-to-peer file-sharing investigation to identify individuals in the Atlanta area involved in the distribution of child pornography via the Internet. . . . On May 20, 2011, HSI Special Agent Anthony Scott made a query of the Child Protection System (`CPS’) to obtain a list of IP addresses in Georgia that had offered to distribute known or suspected child pornography within the last 30 days. . . . Scott identified IP address 24.98.20.224, located in Fayetteville, Georgia, and later identified as associated with [Dennis] and his wife, as making available such files. . . .

On the same day, Scott utilized ShareazaLE to make a direct, single-source connection between the undercover ICE computer and [Dennis’] computer associated with IP address 24.98.20.224. . . . During the connection, [Dennis’] computer located at 24.98.20.224 transmitted a list of files it had available for public download, which consisted of 548 files `that had been previously identified as containing known or suspected child pornography.’ . . . [B]etween May 21, 2011, and May 27, 2011, [Dennis’] computer shared with the undercover ICE computer nine incomplete digital movie files that were publicly available. . . . On May 26, 2011, Agent Harris examined the partially downloaded movie files and found them to contain child pornography. . . .  The CPS last observed [Dennis’] computer sharing these files on June 16, 2011. . . .

On August 31, 2011, Special Agent Jeffrey White, with the HSI/ICE Albany, Georgia office, was conducting an online Internet investigation to identify individuals possessing and sharing child pornography using the Gnutella network. . . . White utilized peer-to-peer Undercover Investigative Software (`UIS’), which `allows downloads only from one source at a time’ and `provides the ability to identify potential subjects based on their geographic location’ as well as capturing activity that occurs over peer-to-peer networks. . . . At approximately 10:03 a.m., White, using UIS, initiated a ‘”direct connect” request to the host computer at IP number 24.99.36.225.’ . . . [T]he host computer sent White a list of files currently on the host computer that were publicly available to other users on the network for download. . . .

Of the 760 files on the host computer, White determined 166 contained file names with terms such as `pthc, pedoland, Lolita, kiddie, child porn and illegal,’ which were known to him to be consistent with child pornography. . . . White then initiated downloads from the host computer, and two files reviewed by him contained child pornography. . . . White attempted to download three additional files, but the connection with the host computer was terminated before the download could be completed. . . .

On September 6, 2011, White initiated another `direct connect’ request with the same host computer at IP address 24.99.36 .225. . . . [T]he host computer sent him a list of files currently available to others for download, and of the 961 files, approximately 162 had file names containing terms consistent with child pornography. . . . White successfully downloaded three files, all of which were found to depict child pornography. . . .

Based on this investigation and the activity from May, August, and September of 2011, Harris applied for and obtained a search warrant for 200 Carrollwood Drive, Fayetteville, Georgia, 30215 on October 6, 2011. . . . On October 12, 2011, at approximately 6:00 a.m., a team of HSI/ICE special agents arrived at [Dennis’] home, knocked on the door, and after [he] answered, pulled him aside so they could gain entry into the residence and execute the search warrant. . . . Approximately ten minutes after the agents entered the residence, Harris made contact with [Dennis] in the living room to interview him. . . .

Prior to interviewing [Dennis], Harris introduced himself and Scott and told [Dennis] they would like to speak with him and asked him if that would be `all right,’ and [Dennis] responded, `Yes.’ . . .

U.S. v. Dennis, supra.  The agents Mirandized Dennis and then interviewed him; he would later move to suppress statements he made to them. U.S. v. Dennis, supra. 

In a footnote, the Magistrate Judge explained CPS is a software program that assists in

the regionalization and tracking of IP addresses. . . . The `CPS analyzes the hash values assigned to files available for download . . . and compares them to files stored in government databases that contain known child pornography. U.S. v. Dodson, 960 F.Supp.2d 689 (U.S. District Court for the Western District of Texas 2013). `Because each hash value is essentially one of a kind, it assures law enforcement officials there is a high likelihood that child pornography is contained on a computer using the identified [IP] address.’ U.S. v. Dodson, supra. The CPS identifies and logs `huge quantities of worldwide IP addresses that are identified as participating in the possession and distribution of child pornography.’ U.S. v. Dodson, supra.

U.S. v. Dennis, supra. 

And in another footnote, he explained that ShareazaLE is a

`modified version of the free downloadable “Shareaza” [ ] client software’ for law enforcement to use to `only download files from a single source-the target IP,’ whereas the public version will `download from many sources.’ . . . ShareazaLE will `log all activity and transactions that occur while connected to the target IP’ and it `adheres to the common [ ] protocols and functions exactly the same way as the free public version’ in that it `has no additional browsing or downloading capabilities over and above the free public version.’

U.S. v. Dennis, supra. 

This post is concerned with Dennis’ motion to suppress the files found on his computer because (i) “he had a reasonable expectation of privacy in” them “and did not consent to the entry into and search of his computer files” and/or (ii) “the entry into his computer equipment and the downloading of files located . . . were physical trespasses into his home and computers”. U.S. v. Dennis, supra. 

As to the first issue, as I have explained in prior posts, a “search” within the compass of the 4^th Amendment violates a “reasonable expectation of privacy” in a place and/or thing.

As Wikipedia explains, in Katz v. U.S., 389 U.S. 347 (1967), the Supreme Court held that a 4thAmendment “search” occurs when a law enforcement officer (i) intrudes into a place or thing in which someone has a subjective expectation of privacy and (ii) society accepts that subjective expectation as objectively reasonable.

If law enforcement conducts a “search” and seizes property, you then have the two 4^th Amendment events – a search and a seizure.  Under the 4^th Amendment, searches and seizures have to be “reasonable,” i.e., conducted pursuant to a warrant or an exception to the warrant requirement.  If they are not conducted pursuant to either, then the evidence will be suppressed absent some countervailing factor, such as a reasonable mistake on the officer’s part.

Here, Dennis claimed he had a reasonable expectation of privacy in his computers

and the contents of his computers' hard drives that were located securely in his home. . . . However, the agents accessed only his publicly shared files on his computers via [his] peer-to-peer file-sharing program from a remote location, and therefore, the issue is whether [Dennis’] installation and use of this peer-to-peer program negated any expectation of privacy in those shared files he may otherwise have had.

[Dennis] attempts to meet the subjective prong of the reasonable expectation test by asserting that he exhibited an actual expectation of privacy by trying to opt out of the sharing feature of his peer-to-peer BearShare program. . . . Specifically, [Dennis] testified at the evidentiary hearing that when prompted on his computer that his files on BearShare would be shared, he clicked `no,’ . . . and he therefore asserts that `[b]y exercising this option, [he] showed his intention to refuse public access to the files located in his computers’ even though his `efforts failed due to an apparent defect in the BearShare program’. . . .

Based on [Dennis’] limited testimony that he intended to and attempted to opt out of the sharing feature of the BearShare program, the Court will assume for purposes of his motions that he has satisfied the subjective prong of the test. However, for the following reasons, the Court finds [he] has failed to satisfy the objective prong that the `privacy expectation be one that society is prepared to recognize as reasonable.’ U.S. v. Bushay, 859 F.Supp.2d 1335 (U.S. District Court for the Northern District of Georgia 2012).

U.S. v. Dennis, supra.

The Magistrate Judge then explained that other federal courts, including the U.S. Court of Appeals for the 11^th Circuit, have found that “a defendant's utilization of a peer-to-peer file-sharing program that allows other public users of such software to access the shared files on that defendant's computer negates any reasonable expectation of privacy in those shared files” and that this is “true even in situations where a defendant may not have knowingly enabled the sharing feature, or even where he affirmatively attempted to opt out.”  U.S. v. Dennis, supra. 

He therefore found that here, Dennis “utilized the file-sharing program BearShare, and despite his alleged efforts to prevent the public at large from accessing those files, they were still entirely exposed to the public for downloading and viewing without the need to employ any special means to access them other than using a compatible file-sharing program.”  U.S. v. Dennis, supra.  In reaching this result, the Magistrate Judge relied on U.S. Court of Appeals for the 9^th Circuit’s decision in U.S. v. Borowy, 2010 WL 537501, which you can read about here.  U.S. v. Dennis, supra.  So he held that the agents’ accessing the files on Dennis’ computer was not a 4^th Amendment search because he had no reasonable expectation of privacy in them. U.S. v. Dennis, supra. 

The Magistrate Judge also rejected Dennis’ argument that the officers “trespassed” into his computer in violation of the 4^th Amendment, citing the Supreme Court’s decision in U.S. v. Jones, 132 S.Ct. 945 (2012). U.S. v. Dennis, supra.  He explained that in Jones,

the Court considered whether the warrantless installation of a GPS tracking device on the defendant's vehicle violated his 4th Amendment rights. . . . [T]he Court found. . . . that the defendant's vehicle was an `effect’ and that the warrantless physical trespass of that `effect’ to obtain information constituted an unreasonable search under the 4th Amendment. . . .

Thus, the Supreme Court made clear that the 4th Amendment is implicated where the `[g]overnment physically occupie[s] private property for the purpose of obtaining information.’ . . .  However, as noted by the government, . . . the Supreme Court also confirmed that `[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to [the] Katz analysis[.]. . . .

U.S. v. Dennis, supra.  The text of the 4^th Amendment refers to “the right of the people to be secure in their persons, houses, papers, and effects” against unreasonable searches.

The Magistrate Judge explained that

`[s]everal courts have rejected the application of Jones to the investigation of file sharing programs,’ U.S. v. Brashear, 2013 WL 6065326 (U.S. District Court for the Middle District of Pennsylvania 2013), and the Court finds the reasoning of these cases persuasive. The government did not use a tracking device, . . . as . . . in Jones; instead, it merely obtained information publicly available on shared files via a software program that connected with [Dennis’] computer on which [he] had installed a file-sharing program. Thus, there was no 4th Amendment violation tied to common law notions of trespass in this case.

Indeed, `the contents of the shared folder on [Dennis’] computer were knowable to law enforcement without physical intrusion to [his] house because this information was also available to members of the public.” Norman, 448 F. App'x at 897; see also Russell v. U.S., 2013 WL 5651358 (U.S. District Court for the Eastern District of Missouri 2013) (defendant was `using a file-sharing program that broadcast the contents of his computer to the internet and invited users to search those contents. Thus no government trespass into [Dennis’] home or effects occurred’). . . .  Because `”[t]his investigation involve[d] the transmission of electronic signals without trespass,”’ it did not ‘”implicate [his] 4th Amendment rights under Jones. under Jones,’” U.S. v. Brashear, supra . . . and [Dennis’] argument in this regard is without merit. . . .

U.S. v. Dennis, supra. 

For these and other reasons, the Magistrate Judge recommended that Dennis’ motion to suppress be denied.  U.S. v. Dennis, supra.  The District Judge adopted the Magistrate Judge’s report and recommendation as its order and therefore held that Dennis’ motion to suppress should be, and was, denied.  U.S. v. Dennis, supra. 

Bank Fraud, the Customer Service Rep and Ineffective Assistance of Counsel

On March 25, 2009, a jury convicted Regina Tolliver of bank fraud, aiding and abetting bank fraud, aggravated identity theft, aiding and abetting identity theft, and unauthorized use of a computer. U.S. v. Tolliver, 2014 WL 3508550 (U.S.District Court for the Eastern District of Pennsylvania 2014). 

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

The U.S. District Court Judge who had the case later sentenced Tolliver to 30 months in prison. U.S. v. Tolliver, supra. 

Tolliver subsequently filed a motion under 28 U.S. Code § 2255 seeking a new trial “on the basis that “her trial attorney was so ineffective as to deprive her of the competent counsel guaranteed by the 6th Amendment of the United States Constitution.” U.S. v. Tolliver, supra. The judge who had the case began his opinion by explaining how Tolliver came to be charged, and convicted, noting that

Tolliver had been a customer services representative at the King of Prussia Mall branch of Citizens Bank. Between March and November of 2007, several false checks were cashed against the accounts of seven Citizens Bank customers. The fraud involved the use of faked forms of identification.

At that time, a Citizens Bank employee could access the personal information of account holders by entering his employee number and a confidential password. Every time an account holder's information was accessed, data including the employee number of the bank employee who accessed it was archived into an employee tracking system for six months. A Citizens Bank fraud investigator determined that Tolliver's employee number was the only one that had been used to access all seven of the compromised accounts. Evidence was also admitted at trial showing that Tolliver worked at Citizens Bank on every day in which her password was used to access one of the accounts. The first three accounts were accessed from the King of Prussia mall branch where Tolliver worked. There was no evidence offered as to where the other accounts were accessed. On the day after the first three accounts were accessed, someone checked the balance of the accounts telephonically. All three account holders testified at trial that they had not placed those calls. The balances of the other compromised accounts, too, were checked somewhat later. 

Eventually, fraudulent checks drawn on each of the accounts was cashed, supported by the use of faked identification; one woman cashed all the checks for accounts held by female victims, and one man cashed all of the checks held by male victims. The total amount of loss to Citizens Bank, which reimbursed the account holders, was more than $180,000. The U.S. Postal Inspections Agent who investigated this case, Frank Busch, and who also testified as an expert at Tolliver's trial, conceded that there was nothing at all except Tolliver's employee number tying her to the fraud. . . .  No unexplained deposits were made into Tolliver's bank accounts, and she made no unexpected purchases.

U.S. v. Tolliver, supra.  The store you can find here gives a little more detail on the case. 

In her motion, Tolliver argued that her

trial counsel was ineffective in failing to investigate her case before trial. Tolliver pointed to evidence uncovered by her § 2255 counsel that Angela Anderson, an assistant manager at Citizens Bank, who had also worked on all the days on which accounts were wrongfully accessed, had personal financial difficulties at the time the frauds were committed. Linda Carter, another co-worker, also had financial problems at that time.
 Tolliver also obtained evidence that, if trial counsel had interviewed any of the other arrested members of the fraudulent conspiracy, he would have discovered that each of them denied knowing Tolliver.

U.S. v. Tolliver, supra.

The judge began his analysis of Tolliver’s motion by explaining that

to succeed on an ineffective assistance of counsel claim, a movant for relief pursuant to § 2255 must show that counsel's performance was deficient and that counsel's actions prejudiced the defense. Strickland v. Washington, 466 U.S. 668 (1983). In order to prove prejudice, the defendant must show `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ Strickland v. Washington, supra. 

A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, supra. . . . 

U.S. v. Tolliver, supra.

He also noted that in

Branch v. Sweeney,  2014 WL 3293716, a recent case upon which Tolliver relies, the Court of Appeals for the Third Circuit discussed the Strickland standard for prejudice, and emphasized the need to assess the effect of the errors in light of the strength of the individual case: Branch was not required to establish that his `counsel's deficient performance more likely than not altered the outcome of the case'; he only must have shown `a probability sufficient to undermine confidence in the outcome.' Grant [v. Lockett], 709 F.3d 224 (U.S. Court of Appeals for the 3d Circuit 2013). . . . 

We look to the `totality of the evidence at trial,' meaning that `a verdict . . . only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Id.'
 We often have said that this standard is not `stringent.’ See, e.g., Thomas v. Varner, 428 F.3d 491 (U.S. Court of Appeals for the 3d Circuit 2005). In fact, it is `less demanding than the preponderance standard.’ Jermyn v. Horn, 266 F.3d 257, 282 (U.S. Court of Appeals for the 3d Circuit 2001). . . .  

U.S. v. Tolliver, supra.

The judge went on to explain that

[t]he verdict against Tolliver, which relied solely on the use of her employee identification number, was only weakly supported by the record. On these facts, it was not appropriate to decline to find prejudice simply because the information which trial counsel failed to discover was something less than a smoking gun.

U.S. v. Tolliver, supra. 

He also noted that

[e]ven Tolliver's trial counsel stated in an affidavit: `I did not know that Ms. Anderson had any financial problems. That would have been a big red flag. I would have looked into that. Regina never had financial problems like that, that was one of the weaknesses of the prosecution's case against her.’ Declaration of Mark Keenheel, attached to § 2255 Motion as Exhibit 2 at ¶ 2.

U.S. v. Tolliver, supra.

The District Court judge then explained that

[w]hen the totality of the evidence at the trial is considered, a reasonable probability clearly exists that, if the jury knew that several of Tolliver's co-workers, particularly Anderson, had pressing financial needs which Tolliver lacked, it could have changed the outcome at trial. Further, although counsel argued to the jury that the prosecution lacked evidence that the other participants in the fraud knew Tolliver, he was not able to argue affirmatively that they denied knowing her, because he did not interview any of them.
 Tolliver's current counsel did conduct these interviews, and it is now clear that not even those identified as `insiders’ knew her. If trial counsel had found this out, it would have meaningfully strengthened his defense.
 Postal Inspector Busch testified that it was possible that Tolliver functioned as the crucial bank insider in this case without any of the other arrested defendants knowing her. However, the neutrality of his testimony could easily have been found to have been compromised by his dual role as an expert witness and the investigator in this case.

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

The judge therefore found that

[a]s the Court of Appeals for the Third Circuit explained in Branch, in determining prejudice for Strickland purposes, it is necessary to look at the totality of the evidence admitted at trial.
 The case against Tolliver was only weakly supported by the evidence, and, was therefore more affected by counsel's weak pre-trial investigation than it would have been if it had been one with “overwhelming record support. Branch v. Sweeney, supra. I will therefore grant in part, as specified herein, . . . vacate her conviction, and order that she be retried.

U.S. v. Tolliver, supra.

The Juvenile, the Computer and Exigent Circumstances

A juvenile court judge in Oregon held that “J.C.L.”, a minor whose age is not given in the opinion this post examines, was “within the jurisdiction of the juvenile court for conduct that, if committed by an adult, would constitute the criminal offenses of first-degree encouraging child sexual abuse, Oregon Revised Statutes § 163.684(1)(a)(A) (2007), (Counts 1 and 3) and second-degree encouraging child sexual abuse, Oregon Revised Statutes§163.686 (2007) (Counts 2 and 4).”  In re J.C.L., 261 Or.App. 692 (Oregon Court of Appeals 2014).

J.C.L. appealed, arguing, among other things, that “the juvenile court erred in denying his motion to suppress evidence of child pornography found on his computer, which was seized without a warrant from a computer repair person.”  In re J.C.L., supra. The Court of Appeals began its opinion by explaining how J.C.L. came before the juvenile court judge.  In re J.C.L., supra. But before I get into that, I need to note that in this blog post I have replaced the court’s use of “youth” to refer to J.C.L. with his initials.  I, at least, found the repeated use of “youth” irritating.

This is how the case began:

J.C.L. was 16 years of age. . . . In March 2007, [his] uncle, Conahan, came to the attention of police when they linked him to the IP address of a computer that was downloading child pornography. In May 2007, police detective Elliott executed a search warrant at Conahan's residence. Based on images found on Conahan's computers and thumb drives, Elliott arrested Conahan for possession of child pornography. Conahan made statements to police that led them to investigate J.C.L.

J.C.L. had a computer in his bedroom. When it needed repairs, he sought help from Dutton, a high school student with an informal computer repair business. On several occasions, Dutton had visited J.C.L.'s home to repair his computer and saw Conahan at the house. In March 2007, Dutton took J.C.L.'s computer to his own home to repair it. Again, in May 2007, Dutton took J.C.L.'s computer to his home for repairs.

On May 23, 2007, two days after Elliott arrested Conahan, Elliott attempted unsuccessfully to contact J.C.L. He then went to Dutton's house, where, without a warrant, he seized J.C.L.'s computer and its hard drive.

Eight days later, police obtained a warrant to search J.C.L.'s computer. Detective Wiltse found installed on J.C.L.'s computer a software program called `Limewire,’ a `peer-to-peer’ network that allows users to search the “shared” folders and files of Limewire users whose computers are also connected to the Internet and running Limewire.

In a `shared’ folder on J.C.L.'s computer, Wiltse found images and videos of child pornography identical to the images and videos found on Conahan's thumb drive. The shared folders and files were marked `hidden,’ and they could not, in fact, be shared through Limewire. The state did not present evidence as to whether J.C.L.'s computer was connected to the Internet, nor did it present evidence that the hidden folders or files had ever been shared through Limewire.

Police took J.C.L. into custody, and he was charged with the [offenses noted above] for which the juvenile court ultimately found him to be within the court's jurisdiction. In a pretrial motion, J.C.L. moved to suppress the evidence obtained as a result of the warrantless seizure of his computer, asserting that the seizure was not supported by one of the limited exceptions to the warrant requirement and therefore violated his rights against unreasonable searches and seizures under Article I, section 9, of the Oregon Constitution, and the 4th Amendment to the United States Constitution.

In re J.C.L., supra. 

As I noted in prior posts, and as Wikipedia explains, every U.S. state has its own constitution, which is binding on local law enforcement officers, among others.  A state constitutional provision cannot trump, i.e., override, a provision of the U.S. Constitution such as the 4^th Amendment; the Supremacy Clause of the U.S. Constitution establishes the U.S. Constitution, federal statutes and federal treaties as the “supreme law of the land,” i.e., they trump state law. 

But a state constitutional provision that provides more protection than the U.S. Constitution – such as a state constitutional provision that provides more protection than the 4^th Amendment – does apply to local law enforcement (absent countervailing circumstances) and can therefore provide more protection than, say, the 4^th Amendment.  Check out this post if you want to read about a case in which that happened.

At the suppression hearing, Elliott, the detective who seized J.C.L.’s computer, testified

that, on May 21, 2007, when he had arrested Conahan, Conahan had explained how the child pornography came to be on his computer. Conahan said that, when he searched Limewire for music, Limewire would return images of child pornography and that, to avoid the return of pornographic images on subsequent searches, he had decided to download them to his computer.

He told Elliott that [J.C.L.] had experienced the same difficulty with Limewire and had unsuccessfully tried to help Conahan remove the child pornography from his computer. Unable to remove the images, [J.C.L.] had shown Conahan how to create `hidden’ folders on Limewire in which to store the images, to make them more discrete and less accessible. Conahan told Elliott that, in the past, he had taken his computer to Dutton to have the images removed.

Elliott testified that, when he went to Dutton's house on May 23, 2007, Dutton informed him that he was working on J.C.L.’s computer to remove a virus and had not seen any child pornography on the computer. Dutton told Elliott that, when J.C.L. had given him the computer for repair, [he] had told Dutton to back up everything, but that, on May 22, 2007 the day after Conahan's arrest – J.C.L. had called and requested Dutton delete the contents of the computer, including the back-ups. Dutton told Elliott he had scanned J.C.L.’s computer for viruses, but had not deleted anything yet.

Elliott saw J.C.L.’s hard drive had been removed from the computer tower and was connected to Dutton's computer by a cable and that Dutton had already created a back-up of J.C.L.’s hard drive. Based on Conahan's statements and J.C.L.’s recent request, Elliott believed there was child pornography on J.C.L.’s computer.

Given J.C.L.’s request and the fact his hard drive was presently connected to Dutton's computer, Elliott believed the destruction of evidence was imminent, and he seized J.C.L.’s computer and hard drive. Elliott then left, but returned to Dutton's home one hour later and obtained Dutton's consent for the seizure of his own computer.

In re J.C.L., supra. 

In denying J.C.L.’s motion to suppress, the juvenile court judge found that,

considered together, the information Elliott had obtained from Conahan and the timing of J.C.L.’s request to delete the contents of the computer and its back-up provided probable cause that there was child pornography on J.C.L.’s computer. The court concluded, further, that the warrantless seizure of his computer was justified by exigent circumstances, `especially given it was at the time connected to the computer of [Dutton,] who had the capacity to follow through on [J.C.L.’s] request to remove it all.’

In re J.C.L., supra. 

The case went to trial and, after both sides had presented all their evidence, J.C.L. moved for an acquittal.  In re J.C.L., supra.  The juvenile court denied the motion and, as noted above, found J.C.L. was within the juvenile court’s jurisdiction.  In re J.C.L., supra. 

On appeal, J.C.L. argued, first, that his motion to suppress should have been granted  because the seizure of his computer was “not justified by either a warrant or an exception to the warrant requirement.”  In re J.C.L., supra.  The court began its analysis of that argument by noting that the prosecution

has never disputed that Elliott seized J.C.L.’s computer when he took it from Dutton's home. Police may search or seize property without a warrant without violating the Oregon or federal constitutions when they have probable cause to believe that the property is evidence of a crime, upon a showing of exigent circumstances.  State v. Machuca, 347 Or. 644, 227 P.3d 729 (Oregon Supreme Court 2010) (warrantless search permissible if officer has probable cause to believe crime was committed and exigent circumstances exist). . . .

It is the state's burden to show exigency, by establishing both that the destruction of evidence was imminent and that a warrant could not have otherwise been expeditiously obtained. State v. Machuca, supra.  

Although, on appeal, J.C.L. concedes that Elliott had probable cause to believe that J.C.L.’s computer contained evidence of a crime, he contends that, contrary to the juvenile court's determination, no exigency required it to be seized without a warrant.

In re J.C.L., supra. 

The Court of Appeals began its analysis of the arguments by noting that “[e]xigent circumstances exist when a reasonable person in the police officer's position would determine under the circumstances that immediate action is necessary to prevent the disappearance, dissipation, or destruction of evidence. State v. Snow, 337 Or. 219, 94 P.3d 872 (Oregon Supreme Court 2004).” In re J.C.L., supra.  The court then took up the issues in this case, explaining that in

J.C.L.’s view, there was no exigency, because, in light of the circumstances then existing, it was not objectively reasonable for Elliott to conclude that Dutton might destroy the evidence on J.C.L.’s computer. J.C.L. emphasizes that Dutton had no reason to tamper with evidence, and that Dutton had been polite and cooperative and -- in fact -- had volunteered the information concerning J.C.L.’s request to delete the contents of the computer. 

J.C.L. contends that, in light of the absence of any indication that Dutton had engaged in wrongdoing, the fact J.C.L.’s hard drive was connected to Dutton's computer could not support a reasonable fear of imminent destruction of evidence and supported only the inference that Dutton was in the process of fixing J.C.L.’s computer. In his view, that evidence, together with the fact that, despite having received J.C.L.’s request to delete the computer's contents the day before, Dutton had not yet done so, supports an inference that Dutton was not likely to destroy the contents of the computer.

Further, J.C.L. proposes that Elliott must in fact have trusted Dutton not to destroy the evidence, or he would not have left Dutton alone with his own computer for approximately one hour before returning to seize it, even though it contained a copy of J.C.L.’s hard drive. Finally, J.C.L. contends that a warrant reasonably could have been obtained by telephone with Elliott waiting on the premises.

In re J.C.L., supra. 

The Court of Appeals, though, was not convinced:

Although J.C.L. has described inferences that might be drawn from the evidence in support of a conclusion that there was no exigency, we agree with the state that the record supports the juvenile court's conclusion that Elliott reasonably believed Dutton was about to erase J.C.L.’s hard drive and that, if he left J.C.L.’s computer within Dutton's control to obtain a warrant, the destruction of evidence was imminent.

At the time he seized J.C.L.’s computer, Elliott was aware that Dutton had previously helped Conahan delete child pornography from his computer. He was aware that J.C.L. had instructed Dutton to delete everything on his computer, including back-up files. He saw that J.C.L.’s hard drive was hooked up to Dutton's computer and that Dutton had already copied J.C.L.’s hard drive onto his own computer.

Together, that information supported Elliott's decision that it was necessary to seize J.C.L.’s computer to avoid the imminent destruction of evidence on J.C.L.’s computer, and that leaving the computer within Dutton's control for any length of time to obtain a warrant would have resulted in a loss of the evidence.

For that reason, we conclude the juvenile court did not err by concluding that the warrantless seizure of J.C.L.’s computer and hard drive was justified by the exigent circumstances exception to the warrant requirement.

In re J.C.L., supra. Therefore, for this and other reasons, the Court of Appeals affirmed the juvenile court judge’s ruling.  In re J.C.L., supra.