Wednesday, August 24, 2016

Possession of Child Pornography and the “Unit of Prosecution”

This post examines a recent opinion from the Supreme Court of Minnesota:  State v. Bakken, 2016 WL 4126390 (Supreme Court of Minnesota 2016).  This court is examining an issue the Court of Appeals of New Mexico addressed last spring, in a case I turned into an earlier blog post. You might want to compare the two opinions.
As courts usually do, the Supreme Court begins the opinion by explaining that
[b]etween November 2012 and June 2013, appellant Timothy Bakken downloaded, viewed, and saved to his computer's hard drive seven pornographic images of minors engaged in sexual conduct. He downloaded and saved these photographs on different days—one each on November 9, December 2, December 9, December 14, March 5, April 28, and June 4. Each photograph depicted a different minor. After police seized Bakken's computer and discovered the images, he was charged with seven counts of Possession of Pornographic Work Involving Minors, in violation of Minnesota Statutes §617.247, subd. 4(a) (2014).

Bakken pleaded guilty to all seven counts. In establishing the factual basis for the plea, he admitted that an individual he had met in an online chat room had sent him the images. He further admitted that, after the images were sent, he downloaded them, viewed them, and saved them on his computer's hard drive on the dates alleged in the complaint. Before sentencing, Bakken filed a motion in which he argued that (1) he could only be convicted and sentenced for one count of possession because the `unit of prosecution’ in the statute is possession of the computer, rather than the individual images stored on it, and (2) his offenses were part of a single behavioral incident. The district court denied Bakken's motion, ruling that the statute authorized the State to separately charge Bakken with possession for each pornographic image and that Bakken's offenses were not part of the same behavioral incident. Accordingly, the court imposed seven concurrent sentences, with the longest sentence being an executed term of 51 months in prison.
State v. Bakken, supra.
The Supreme Court goes on to explain that
Bakken appealed and the court of appeals affirmed. State v. Bakken, 871 N.W.2d 418, 420 (Minnesota Court of Appeals 2015). Because we conclude that Minnesota Statutes § 617.247 that authorized the State to charge appellant with a separate count for each distinct pornographic work that appellant possessed, and appellant's conduct in possessing the pornographic works was not part of a single behavioral incident, we affirm.
State v. Bakken, supra.
The Supreme Court began its analysis of the issue Bakken was raising by explaining that
[w]e first consider whether the State could properly charge multiple counts of possession of child pornography under Minnesota Statutes § 617.247. Whether a defendant commits one or more distinct offenses under a criminal statute depends on the statute's `unit of prosecution.’  Sanabria v. United Sates, 437 U.S. 54, 69-70 (1978) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221 (1952)). Violations of the same statutory provision may be charged multiple times in a single prosecution if the Legislature `intended the facts underlying each count to make up a separate unit of prosecution.’ United States v. Chipps, 410 F.3d 438, 447 (U.S. Court of Appeals for the 8th Circuit 2005); see also State v. Stith, 292 N.W.2d 269, 273-275 (Minnesota Supreme Court 1980) (holding that the statute authorized charging seven counts of securities fraud based on seven misrepresentations because the Legislature intended each misrepresentation to be a separate offense). Accordingly, we must consider the language of the statute criminalizing the possession of child pornography to determine whether the State was authorized to charge Bakken with seven separate counts of possession.
State v. Bakken, supra.
The court went on to explain that Minnesota Stautes § 617.247 subdivision 4(a) provides as follows:
 `A person who possesses a pornographic work or a computer disk or computer or other electronic, magnetic, or optical storage system or a storage system of any other type, containing a pornographic work, knowing or with reason to know its content and character, is guilty of a felony. . . .’  Bakken contends that, because all of the pornographic works he possessed were stored on a single computer, the statute is ambiguous as to the unit of prosecution. He contends that in a factual scenario such as this one, the Legislature intended to authorize only a single charge for possession of the computer containing the works. This ambiguity, he asserts, requires that we apply the rule of lenity and construe the statute to authorize only a single charge. The State responds that the statute unambiguously authorizes the charging of a separate count for each distinct pornographic work a person possesses, regardless of where the work is stored.

Statutory interpretation presents a question of law that we review de novo. State v. Smith, 876 N.W.2d 310, 336 (Minnesota Supreme Court 2016). The goal of statutory interpretation is to ascertain and effectuate the intent of the Legislature. Minnesota Statutes § 645.16 (2014); State v. Irby, 848 N.W.2d 515, 518 (Minnesota Supreme Court 2014). When the words of a statute in their application to an existing situation are clear and free from all ambiguity, we give effect to the plain meaning of the law. State v. Mauer, 741 N.W.2d 107, 111 (Minnesota Supreme Court 2007). But a statute is ambiguous if, as applied to the facts of the case, it is susceptible to more than one reasonable interpretation. See State v. Schmid, 859 N.W.2d 816, 820 (Minnesota Supreme Court 2015). In determining whether the statute is ambiguous, we consider the `canons of interpretation’ listed in Minnesota Statutes § 645.08 (2014), and interpret the statute as a whole to `harmonize and give effect to all its parts,’ presuming that the Legislature `intended the entire statute to be effective and certain.’ State v. Riggs, 865 N.W.2d 679, 682-683 (Minnesota Supreme Court 2015).  
State v. Bakken, supra.
The Supreme Court then took up the issue in this case, explaining that
[w]e conclude that Minnesota Statutes § 617.247 unambiguously criminalizes both the possession of a pornographic work itself and the possession of a computer storing a pornographic work. Therefore, it was within the State's authority to charge Bakken with seven separate counts of possession for seven distinct pornographic works. The two items that the statute prohibits possessing —`a pornographic work’ and `a computer . . . containing a pornographic work’ — are linked in the statute by the word `or.’ Minnesota Statutes § 617.247, subd. 4(a).  The word `or’ is typically read as disjunctive, requiring that only one of the possible factual situations linked by the `or’ be present for the statute to be violated. State v. Loge, 608 N.W.2d 152, 155 (Minnesota Supreme Court 2000). The plain language of the statute does not restrict the State's authority to bring charges when pornographic works are possessed by an individual and stored on a computer; rather, the statute criminalizes the possession of two different things.

This straightforward reading of the statute comports with our decision in State v. Stith, in which we confronted a strikingly similar question and came to the same conclusion. 292 N.W.2d 269. In Stith, the statute provided that a person could commit securities fraud in three ways: by employing a scheme to defraud, by engaging in a fraudulent business, or by making an untrue statement of material fact in connection with the sale of securities. Id. at 273. The State charged Stith with multiple counts, one count for each untrue statement. Id. 

Stith contended that, because his conduct satisfied all three provisions and he employed only a single scheme or business to defraud, the State could charge only one count of securities fraud. Id. at 274. We rejected that argument, noting that the use of the word `or' in the statute made the alternative methods of violating the statute disjunctive, which gave the State the authority to choose among the provisions in prosecuting Stith. Id.

As in Stith, the statute in this case can be violated in multiple ways. That the definitions of criminal activity may overlap does not require the State to charge the case in a way that is the most advantageous to the defendant. See State v. Lee, 683 N.W.2d 309, 315 (Minnesota Supreme Court 2004) (noting that, when definitions of criminal offenses overlap, `the state has the discretion to charge a person with the offense which is best supported by the available evidence and which carries a penalty commensurate with the culpable acts involved’).
State v. Bakken, supra.
The Supreme Court then noted that,
[i]n urging us to reach the opposite conclusion, Bakken argues that, when read as a whole, the statute is ambiguous as to the unit of prosecution because the `statute's first clause . . . allows a charge for possession of the work’ whereas `the second clause’ is `plainly for possession of the medium.’ Accordingly, he contends, an interpretation that allows the State to charge separately for possession of individual works stored on a computer renders the second clause superfluous. See Riggs, 865 N.W.2d at 683 (stating that in determining whether a statute is ambiguous, we consider whether a particular interpretation will `give effect to all of [the statute's] provisions’). But that is not the case. Under the State's proffered reading, the second clause of the statute is not duplicative of the first; it criminalizes possession of a different item (the computer versus the work).

Appellant's surplusage argument assumes that, when a person possesses a computer that contains a pornographic work, the person necessarily possesses the pornographic work contained therein. That assumption is not always true. For instance, a person can possess a computer jointly with another, as with a roommate or spouse. See Lee, 683 N.W.2d at 316. N. 7. Assume one person has password access to the illegal images, and the other does not, but knows that the images are on the computer. See id. (explaining that one constructively possesses contraband if he or she keeps the item in a place under his or her exclusive control, or if it can be shown that he or she consciously exercised dominion and control over the item). In that case, the latter person would violate the statute's second clause but not its first.
State v. Bakken, supra.
The Supreme Court then began the process of winding down its analysis and delivering its holding:
Moreover, appellant's proffered reading would require us to limit the first clause of the statute to incorporate only part of the statutory definition of `pornographic work.] See Minnesota Statutes § 617.246.subd. 1(f) (2014). That definition encompasses digital images of the type stored on appellant's computer and produced for viewing on a computer monitor. See id., subd. 1(f)(2) (defining `pornographic work,’ in part, as `any visual depiction, including any photograph [or] . . . picture . . . produced by electronic . . . means’). The theory offered by appellant—that when a work is stored on a computer, the State may no longer prosecute possession of the work itself—would require us to ignore the parts of the statutory definition of `pornographic work’ that criminalize the possession of digital pornographic works themselves. We have `no opportunity to ignore part of the legislature's definition,’ State v. Peck, 773 N.W.2d 768, 773 (Minnesota Supreme Court 2009), of `pornographic work.'

Finally, our conclusion regarding the unit of prosecution is in accord with the way that foreign courts have viewed the same question. In states in which the applicable statute criminalizes possession of the pornographic work itself, as ours does, courts have regularly determined that possession of each individual pornographic work constitutes a separate offense. See, e.g., Peterka v. State, 864 N.W.2d 745 (North Dakota Supreme Court 2015). Other foreign courts have concluded that their statutes criminalizing possession of child pornography are ambiguous as to the unit of prosecution, but typically only when the statute in question, unlike ours, uses a collective or plural term in describing what is unlawful to possess. See, e.g., State v. Olsson, 324 P.3d 1230 (New Mexico Supreme Court 2014).

In sum, because Minnesota Statutes § 617.247 unambiguously criminalizes both possession of an individual pornographic work and possession of a storage system containing a pornographic work, the State had authority to charge Bakken with a count of violating the statute for each pornographic work he possessed.
State v. Bakken, supra.
The Supreme Court then took up the related issue of whether
the district court erred in determining that Bakken's criminal conduct was not part of a single behavioral incident. Subject to various exceptions, `if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses.’ Minnesota Statutes § 609.035, subd. 1 (2014). Thus, the law generally `prohibits multiple sentences, even concurrent sentences, for two or more offenses that were committed as part of a single behavioral incident.’ State v. Gerguson, 808 N.W.2d 586, 589 (Minnesota Supreme Court 2012) (quoting State v. Norregaard, 384 N.W.2d 449, 449 (Minnesota Supreme Court 1986)). When, as here, all of the crimes at issue contain an intent element, we determine whether the crimes were part of a single behavioral incident by considering (1) whether `the offenses occurred at substantially the same time and place,’ State v Jones, 848 N.W.2d 528, 533 (Minnesota Supreme Court 2014), and (2) whether the conduct `was motivated by an effort to obtain a single criminal objective,’ State v. Bauer, 792 N.W.2d 825, 828 (Minnesota Supreme Court 2011).  

The State bears the burden of proving, by a preponderance of the evidence, that a defendant's offenses were not part of a single behavioral incident. State v. Williams, 608 N.W.2d 837, 841-842 (Minnesota Supreme Court 2000). Whether the offenses were part of a single behavioral incident is a mixed question of law and fact, so we review the district court's findings of fact for clear error and its application of the law to those facts de novoState v. Jones, supra. Determining whether multiple offenses are part of a single behavioral incident is not a `mechanical’ exercise, but rather requires an examination of all the facts and circumstances.  State v. Soso, 562 N.W.2d 299, 304 (Minnesota Supreme Court

In this case, the parties agree that Bakken's seven offenses were committed in the same place: his bedroom in his mother's house in Polk County. Thus, we consider whether the offenses occurred at substantially the same time, and whether they were motivated by an effort to obtain a single criminal objective.
State v. Bakken, supra.
The Supreme Court began the analysis of whether Bakken’s offenses were part of a “single behavioral incident” by explaining that
[b]ecause Bakken did not commit each of the possession crimes at substantially the same time, this factor weighs against him. Although a crime of possession is a continuing offense, State v. Lawrence, 312 N.W.2d 251, 253 (Minnesota Supreme Court 1981), it is complete when the offender takes possession of the prohibited item, see State v. Bauer, supra  (concluding that a possession offense and a controlled-substance-sale offense were committed at different times because the possession, though continuing, was completed before the sale offense occurred). Two of Bakken's offenses were completed 5 days apart, and other offenses were separated by over a month.

Bakken's offenses also were not committed to obtain a single criminal objective, which means this factor also weighs against him. In analyzing this factor, we examine the relationship of the offenses to one another. State v. Jones, supra. We consider `whether all of the acts performed were necessary to or incidental to the commission of a single crime and motivated by an intent to commit that crime.’ State v. Krampotich, 282 Minn. 182, 186-187, 163 N.W.2d 772, 776 (1968).  

Even assuming that Bakken possessed each of the pornographic works to satisfy his sexual urges, the mere fact that he committed multiple crimes over time for the same criminal objective does not mean he committed those crimes to attain a single criminal objective. objective. See State v. Soto, supra (explaining that when the defendant was convicted of selling cocaine on 4 different days over a 1–month period, although each sale was motivated by the same desire to profit, `[t]he separate sales were not motivated by a desire to obtain a single criminal objective’ because a `criminal plan of obtaining as much money as possible is too broad an objective . . . within the meaning of section 609.035’); State v. Eaton, 292 N.W.2d 260, 266-267 (Minnesota Supreme Court 1980) (explaining that when appellant was convicted of two counts of theft by swindle for acts occurring 3 days apart, the objective of `swindl[ing] as much as possible’ was `too broad to be a single criminal goal’).
State v. Bakken, supra.
The opinion then explains that, in this case,
Bakken's offenses were not in furtherance of, or even incidental to, the successful completion of any of his other offenses. See State v. Banks, 331 N.W.2d 491, 494 (Minnesota Supreme Court 1983) (concluding that a gun-possession offense and a fleeing-police offense were not part of the same behavioral incident because both offenses could be explained `without necessary reference to the [other] offense’); Mercer v. State, 290 N.W.2ed 623, 626 (Minnesota Supreme Court 1980). And because Bakken's offenses were completed at substantially different times, other cases in which we have concluded that an offender had a single criminal goal in committing multiple offenses over a shorter, discrete time period are inapposite. See, e.g., Langdon v. State, 375 N.W.2d 474, 476 (Minnesota Supreme Court 1985) (reasoning that defendant's `overall criminal objective’ was `to steal as much money as he could that afternoon’ by burglarizing several laundry rooms in the same apartment complex); State v. Herberg, 324 N.W.2d 346, 347, 349 (Minnesota Supreme Court 1982) (reasoning that defendant's `underlying motivation remained the same’ in committing four violent offenses against the same victim over the course of an afternoon).

Bakken, however, argues that when assessing whether possession offenses are part of a single behavioral incident, we should depart from our well-established test and instead adopt a new `flexible’ one that `de-emphasizes’ the factor of time, focusing only on the time when the defendant's possession of illegal items was discovered. He argues that such a test is necessary to address potential sentencing disparities attributable to overly aggressive prosecutorial charging decisions.

Certainly, the sheer number of pornographic works that some offenders possess may counsel the cautious exercise of prosecutorial discretion. But `[w]ithin the limits set by the legislature's constitutionally valid definition of chargeable offenses, “the conscious exercise of some selectivity in enforcement”’ is acceptable so long as that selectivity is not discriminatory. State v. Smith, 270 N.W.2d 122, 124 (Minnesota Supreme Court 1978) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). And as we said in Stith, `harsh results of the statute [can] be modified by the charging authorities, the trial judge through section 609.035 [if applicable],  or general sentencing discretion.’ 272 N.W.2d at 275.  Indeed, such sentencing discretion was actually exercised in this case: Bakken received 51 months in prison—the shortest sentence the court could impose without departing from the sentencing guidelines.
State v. Bakken, supra.
The Supreme Court goes on the conclude the opinion by explaining that
Bakken, though, argues that it is highly relevant to the `single behavioral incident’ inquiry that his multiple possession offenses were discovered by law enforcement at the same time. In support of his argument, Bakken points to State v. Carlson, in which we held that possession of 29 obscene films, all discovered by police at the same time, could support only one sentence for possession of obscene material with intent to sell. State v. Carlson, supra. That case is easily distinguishable, however, as there was no indication that the State could establish that the defendants possessed the films or offered them for sale at any time or place other than when and where they were discovered by police. When the offenses are committed is a factor in our § 609.935 determination. See Mercer, 290 N.W.2d at 626; see also Banks, 331 N.W.2d at 494 (concluding that the possession offense discovered upon arrest for the fleeing-police offense were separate behavioral incidents). Here, by contrast, Bakken began his possession of the pornographic works at different times.

Therefore, because Bakken's offenses were completed at substantially different times, and because his conduct was not motivated by an effort to obtain a single criminal objective, the district court did not err in sentencing Bakken on each of the separate possession convictions.
State v. Bakken, supra. 

Monday, August 22, 2016

Theft of Services, the 4th Amendment and Name, DOB and Phone Number

This post examines a recent opinion from the Court of Appeals of Georgia:  State v. Hill, 2016 WL 3751806 (2016). The Court of Appeals begins the opinion by explaining that
[t]his case involves allegations that James Brandon Hill committed misdemeanor theft of services in violation of Georgia Code § 16-8-5 when he fled without paying a fare owed to a taxi cab driver. The investigating officer found a cellular phone in the back of the taxi cab and, by placing an emergency call from the phone, determined that it belonged to Hill.

In a motion to suppress, Hill argued that this constituted an illegal search of his phone in violation of the Fourth Amendment of the United States Constitution. The trial court granted Hill's motion, and the state appeals. Because Hill had no reasonable expectation of privacy in the information at issue—his own name, date of birth, and phone number—we agree with the state there was no search under the Fourth Amendment, and accordingly we reverse. In light of this conclusion, we do not address the issue of whether Hill abandoned the phone.
State v. Hill, supra.
The opinion went on to explain that the evidence in
this case is not in dispute, and we review de novo the trial court's application of law to the undisputed facts. See Hughes v. State, 296 Ga. 744, 750, 770 S.E.2d 636 (2015).  A law enforcement officer, who was the only witness at the hearing on Hill's motion to suppress, testified that on June 1, 2014, he investigated a taxi cab driver's claim that a man had fled without paying his cab fare. The man who fled had left a cellular phone in the backseat of the cab. The officer turned on the phone but a passcode prevented him from accessing any data contained therein. The officer, however, was able to place an emergency call from the phone, and from that call a 911 dispatcher provided him with the number assigned to the phone and with Hill's name and date of birth.

Hill did not challenge the officer's seizure of the phone found in the cab. See generally  Fair v. State, 284 Ga. 165, 174-175 (3) (d), 664 S.E.2d 227 (Georgia Supreme Court 2008) (no Fourth Amendment violation where officers seized items in plain view during processing of crime scene); Peek v. State, 239 Ga. 422, 426, 238 S.E.2d 12 (Georgia Supreme Court 1977) (`It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence’) (citation and punctuation omitted).

Instead, Hill argued in his motion to suppress that the officer's act of calling 911 with the phone constituted an `illegal search of [his] cellular phone for the purposes of ascertaining [his] identity.’ In response, the state argued alternatively that the officer's act did not constitute a `search' within the meaning of the Fourth Amendment, and that Hill had abandoned the phone by leaving it in the cab. The trial court rejected both of the state's arguments and granted the motion to suppress. As detailed below, the trial court erred in concluding that the officer's actions were a Fourth Amendment search.
State v. Hill, supra.
The Court of Appeals went on to explain that the
Fourth Amendment to the United States Constitution provides the right of individuals to be free from unreasonable searches and seizures. U.S. Const. Amend. IV. A Fourth Amendment search occurs when a government official physically intrudes or trespasses on a person's property. U.S. v. Jones, __ U.S. __,132 S.Ct. 945 (2012). This case does not involve such a physical intrusion or trespass.

A Fourth Amendment search also occurs `when the government violates a subjective expectation of privacy that society recognizes as reasonable.’ Kyllo v. U.S., 533 U.S. 27, 33 (2001) (citation omitted). See Katz v. U.S., 389 U.S. 347, 361, 88 S.Ct. 507 (1967) (Harlan,J., concurring). Conversely, `a Fourth Amendment search does not occur . . . unless the individual manifested a subjective expectation of privacy in the object of the challenged search, and society is willing to recognize that expectation as reasonable.’  Kyllo v. U.S., supra (citation and punctuation omitted).
State v. Hill, supra.
The court also pointed out that, in applying
the subjective expectation of privacy analysis to determine whether a Fourth Amendment search occurred, `it is important to begin by specifying precisely the nature of the state activity that is challenged.’ Smith v. Maryland,442 U.S. 735, 741, 99 S.Ct. 2577 (1979). The challenged activity in this case is the law enforcement officer's act of calling 911 from a cellular phone that was lawfully in the officer's possession. This activity enabled a dispatcher to determine the number assigned to the phone and the name and birthdate of Hill, who was associated with that number. Thus, Hill's Fourth Amendment argument `necessarily rests upon a claim that he had a “legitimate expectation of privacy” regarding [his phone number, name, and birthdate].’ Smith v. Maryland, supra. We find that he had no legitimate expectation of privacy in this information.
State v. Hill, supra.
The opinion went on to explain that,
[w]hile the application of Fourth Amendment law to this precise set of facts appears to be an issue of first impression in Georgia, there are many cases in Georgia and in other jurisdictions supporting the conclusion that a person lacks a legitimate expectation of privacy in identifying information such as name, address, or telephone number that is used to facilitate the routing of communications by methods such as physical mail, e-mail, landline telephone, or cellular telephone.

`[T]he majority of courts to consider the question have agreed that a person's name and address is not information about which a person can have a reasonable expectation of privacy.’ Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455, 466 (Pennsylvania Supreme Court 2003). Examples of cases in which courts have found no legitimate expectation of privacy and thus no Fourth Amendment protection include:  Smith v. Maryland, supra (government used `pen register’ to record telephone numbers of calls made from defendant's landline phone); U.S. v. Forrester, 512 F.3d 500, 509-511 (U.S. Court of Appeals for the 9th Circuit 2008); (U.S. Court of Appeals for the 9th Circuit 2008) (government used `mirror port’ technology to learn, among other things, the “to/from” addresses of defendant's e-mail messages); U.S. v. Choate, 576 F.3d 165, 174-177 (U.S. Court of Appeals for the 9th Circuit 1978) (government arranged for `mail cover,’ under which postal service provided government agency with information appearing on the face of envelopes or packages addressed to defendant); People v. Elder, 63 Cal.App.3d 731, 134 Cal. Rptr. 212, 215 (California Court of Appeals 1976) (government obtained name and address of subscriber to particular telephone number); Ensley v. State, 330 Ga. App. 258, 259, 765 S.E.2d 374 (Georgia Court of Appeals 2014) (government obtained subscriber information associated with defendant's Internet service account); Stephenson v. State, 171 Ga. App. 938, 321 S.E.2d 433 (Georgia Court of Appeals 1984) (government obtained defendant's address and telephone number by arranging for telephone company to trace and `trap’ a harassing call made by defendant to victim); State v. Neeley, 2012 WL 175340 *4, 2012 Ohio App. LEXIS 165 (Ohio Court of Appeals 2012) (cellular phone subscriber has no reasonable expectation of privacy in his own phone number and `the police can trace from a phone number dialed to the identity of the subscriber of the phone from which that number was dialed’); Commonwealth v. Duncan, supra (government first obtained from shopkeeper the account number associated with defendant's bank card, and then obtained from defendant's bank his name and address). Cf. State v. DeFranco, 426 N.J. Super. 240, 43 A.3d 1253, 1259 (App. Division 2012) (finding that New Jersey Constitution, which defendant argued afforded more privacy protections than Fourth Amendment, was not violated when government obtained his cellular phone number from his employer, because defendant's `professed subjective expectation of privacy’ in his phone number was not one “that society would be willing to recognize as reasonable”) (citations omitted).
State v. Hill, supra.
The Court of Appeals then explained that
[t]wo principles of Fourth Amendment law lead to this result. First, as to communications, there is a `core distinction: although the content of personal communications is private, the information necessary to get those communications from point A to point B is not.’ U.S. v. Carpenter, 819 F.3d 880, 886 (U.S. Court of Appeals for the 6th Circuit 2016).  Consistent with this distinction, we have held in a case involving a landline phone that the Fourth Amendment `protects only the content of a telephone conversation and not the fact that a call was placed or that a particular number was dialed.’ Stephenson v. State, supra. See generally Orin S. Kerr, Applying the FourthAmendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1019 (2010) (originating telephone number is non-content information analogous to return address on envelope).

Second, `a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’ Smith v. Maryland, supra. This rule applies even where the person revealing information intended its use by the third party to be limited. United States v. Graham, 2016 U.S. App. LEXIS 9797, *5 (U.S. Court of Appeals for the 4th Circuit 2016) (en banc). By using a phone, a person exposes identifying information to third parties, such as telephone companies, and assumes the risk that the telephone company may reveal that information to the government. Smith v. Maryland, supra. See also Ensley v. State, supra.

Applying this principle to the act of law enforcement officers in obtaining from a cellular phone the number associated with that phone, the United States District Court for the Eastern District of Michigan held that `a cell[ular] phone number fits into the category of information that is not considered private and does not implicate the Fourth Amendment.’ U.S. v. Sanford, 2013 U.S. Dist. LEXIS 73624, *3 (E.D. Mich. 2013).
State v. Hill, supra.
The Court of Appeals then began the process of applying the above principles to the issue in this case, explaining that the
fact that it was a law enforcement officer, rather than Hill, who placed a call from the phone does not change our conclusion that the information obtained was not subject to Fourth Amendment protection. Cases from other jurisdictions illustrate this point. In U.S. v. Skinner, 690 F.3d 772, 777-778 (U.S. Court of Appeals for the 6th Circuit 2012), for example, the United States Court of Appeals for the Sixth Circuit held that law enforcement agents could take action to cause a cellular phone to emit information from which they could track it without running afoul of the Fourth Amendment, because the defendant did not have a reasonable expectation of privacy in the location data emitted from the phone.

Courts have held that law enforcement officers could swipe a credit card that was lawfully in their possession to obtain information from the card's magnetic strip, because that information would be revealed to a third party in the normal use of the card and, consequently, was not subject to a legitimate expectation of privacy. See U.S. v. L’Isle, 2016 WL 3184475 *5 2016 U.S. App. LEXIS 10345 **9-13 (U.S. Court of Appeals for the 8th Circuit 2105); United States v. Bah, 794 F.3d 617, 629-633 (U.S. Court of Appeals for the 6th Circuit).  
State v. Hill, supra.
The court went on to explain that
[a]lthough a law enforcement officer cannot access data stored within a cellular phone without a warrant or an exception to the warrant requirement, see Riley v. California, 134 S.CT. 2473 (2014), courts have held that the officer can take other action with a cellular phone lawfully in his or her possession to determine the phone's owner. For example, the officer can remove the battery from a phone to acquire an identifying subscriber number, analogous to a serial number, without implicating the Fourth Amendment, because the subscriber has no `reasonable expectation of privacy in the serial number of his cell[ular] phone or other identifying information.’ State v. Green, 164 So.3d 331, 344 (Louisiana Court of Appeals 2015). See also United States v. Lowe, 2014 U.S. Dist. LEXIS 145457 (U.S.District Court for the District of Nevada 2014). And in the context of a civil rights action, the United States District Court for the Eastern District of Virginia held that an allegation that an officer improperly placed a call from a person's cellular phone did not state a Fourth Amendment violation. Deavers v. Spotsylvania County Sheriff’s Department, 2014 WL 2993445 (U.S. District Court for the Eastern District of Virginia 2014).  

Hill cites Riley v. California, supra, in support of his argument that the officer violated the Fourth Amendment by placing the call from his phone. Unlike this case, however, Riley did not concern whether an officer's acts constituted a search under the Fourth Amendment. It was undisputed in Riley that the officers searched the defendants' cellular phones when they accessed files within the phones that included videos, photographs, text messages, and a call log. Riley v. California, supra. Instead, Riley concerned whether such a search required a warrant even if the phone was seized incident to arrest, and the Court concluded that it did, in part because the search of a cellular phone more greatly intruded on privacy than a search of other types of items that could be seized incident to arrest. See Riley v. California, supra.
State v. Hill, supra.
The Court of Appeals then articulated its ruling in this case, explaining that
[h]ere, in contrast to Riley, the officer did not access any files on Hill's phone, which was protected by a passcode. He `did not attempt to retrieve any information from within the phone,’ U.S. v. Lawing, 703 F.3d 229, 238 (U.S. Court of Appeals for the 4th Circuit 2012), but instead used the phone in a manner that caused it to send Hill's telephone number to a third party, the 911 dispatcher. We do not construe Riley to prohibit an officer in lawful possession of a cellular phone from placing a call on that phone in an attempt to obtain identifying information about its owner. Moreover, we do not construe Riley to recognize a legitimate expectation of privacy in identifying, non-content information such as the person's own phone number, address, or birthdate, simply because that information was associated with a cellular phone account rather than a landline phone account or a piece of physical mail.

Because we conclude that no Fourth Amendment search occurred in this case, we reverse the trial court's grant of Hill's motion to suppress. Consequently, we do not address the state's alternative argument regarding whether Hill abandoned the cellular phone.
 State v. Hill, supra.


Friday, August 19, 2016

Second-degree Burglary, Mutilated Bras and Emails

This post examines a recent opinion from the Court of Appeals of Minnesota:  State v. Deitering, 2016 WL 4262976 (2016).  The court begins the opinion by explaining that
Douglas Deitering faced a second-degree burglary charge for entering his former paramour's house and stealing or mutilating her bras, blouses, and panties. Deitering claimed during his bench trial that the damaged clothes found in his house were part of a planned erotic photoshoot that he and the victim had contemplated and that he never entered her home without permission. The district court deemed Deitering's assertions incredible and found him guilty.

Deitering argues on appeal that the district court erred by excluding evidence of a sex tape featuring him and the victim, an email exchange between the two, and photographs of the victim in her underwear. He also argues that his trial counsel was ineffective for not requesting a separate hearing on the state's motions in limine regarding that evidence.
State v. Deitering, supra.
Minnesota Statutes § 609.582(2) defines second-degree burglary as follows:
(a) Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if:
(1) the building is a dwelling;
(2) the portion of the building entered contains a banking business or other business of receiving securities or other valuable papers for deposit or safekeeping and the entry is with force or threat of force;
(3) the portion of the building entered contains a pharmacy or other lawful business or practice in which controlled substances are routinely held or stored, and the entry is forcible; or
(4) when entering or while in the building, the burglar possesses a tool to gain access to money or property.
(b) Whoever enters a government building, religious establishment, historic property, or school building without consent and with intent to commit a crime under section 609.52 or 609.595, or enters a government building, religious establishment, historic property, or school building without consent and commits a crime under section 609.52 or 609.595 while in the building, either directly or as an accomplice, commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.
The Court of Appeals’ opinion went on to explain that the
state charged Douglas Deitering with second-degree burglary after H.H. reported that he entered her Minnetonka house without permission, stole clothing from inside, and cut holes in clothing that he stole and in other clothing that he left behind.
State v. Deitering, supra.
The court went on to explain that,
[a]ccording to the state's trial evidence, Deitering and H.H. were separately married, next-door neighbors who began a lengthy sexual affair around 2006. H.H. decided to end the sexual nature of the relationship sometime before July 2013, but the two continued to maintain a friendship, communicating socially in person and by email. Deitering repeatedly attempted to rekindle the sexual relationship, but H.H. began seeing another man, J.Y. Deitering learned about J.Y. when he saw J.Y.'s phone number on H.H.'s telephone, and he confronted H.H., who told him that J.Y. was just a business caller.

The state also presented evidence that on July 31, 2013, H.H. severed her relationship with Deitering entirely. Deitering had moved to Eden Prairie, and H.H. met Deitering at his new home and told him that she wanted him out of her life. Three days later, in the early morning of August 3, H.H. was in bed at J.Y.'s home when she and J.Y. were awakened by noises outside. It was Deitering. He pounded on the door and yelled at J.Y. to send H.H. outside. J.Y. dialed 9–1–1 and asked for help. Police arrived to discover that Deitering had slashed the tires on H.H.'s car and scraped a message into the driver's side, `I cheat on my husband.’ Police found Deitering nearby and arrested him. Police also searched his car, finding utility knives, a black ski mask, binoculars, and two cut pieces of tan, nylon fabric.

H.H. returned to her own home later that day and discovered that someone had been inside. She found that most of her bras and panties were missing, and so were several of her dresses. A few remaining bras and blouses had been cut, leaving holes in the breast area. H.H. called police and reported the intrusion and vandalism, suspecting Deitering. There were no signs of forced entry, and Deitering knew the access code to H.H.'s garage. Police executed a search warrant at Deitering's house and discovered many articles of H.H.'s clothing inside his gun safe—dresses, bras, and panties. Some of the clothing had been haphazardly cut to leave exposing holes in the breast and crotch areas. Police found pieces of fabric corresponding to the excised garments that police had recovered from H.H.'s home.
State v. Deitering, supra.
The court also noted that Deitering
testified to counter the state's incriminating account. He told the court that his sexual relationship with H.H. had lasted until August 2, 2013. He claimed that several times during their affair H.H. had posed for him wearing lingerie. He said that on July 31 she met him at his home so he could photograph her. According to Deitering, H.H. brought bags of lingerie with her and spent the morning cutting sexually revealing holes in the clothing and modeling them while he took pictures. Deitering asserted that they had sex and that H.H. left at about noon for a meeting. In her haste, he said, H.H. mistakenly took a bag of her cut-up clothing with her. Deitering then put the remaining clothes in his gun safe so that his children would not find them. Deitering admitted to vandalizing H.H.'s car, but he denied entering her home and stealing or mutilating her clothes.

The district court considered the competing stories and rejected Deitering's. It found him guilty of second-degree burglary and denied his motion for a new trial.
State v. Deitering, supra.  Deitering appealed.  State v. Deitering, supra.
The Court of Appeals began the substantive part of its opinion by explaining that Deitering
argues that the district court erred by excluding evidence supporting his version of the events, depriving him of his rights to present a complete defense, to confront witnesses against him, and to a fair trial. Evidentiary rulings fall within the discretion of the district court. State v. Amos, 658 N.W.2d 201, 203 (Minnesota Supreme Court 2003). An appellant challenging an evidentiary ruling bears the burden of showing that the district court abused its discretion and that its ruling unfairly prejudiced his defense. Id. 

When a district court incorrectly excludes evidence in violation of the defendant's constitutional rights, the verdict must be reversed if `there is a reasonable possibility that the verdict might have been different if the evidence had been admitted.’ State v. Graham, 764 N.W.2d 340, 358 (Minnesota Supreme Court 2009) (quotation omitted). We apply this standard to the evidence that Deitering tried unsuccessfully to admit, which was a video recording of him and H.H. having sex, photographs of H.H. wearing lingerie, and email correspondence between them.
State v. Deitering, supra.
The opinion goes on to explain that
Deitering tried to enter into evidence a video recording that he says was filmed in April 2013 and features him and H.H. having sex. The district court declared the video irrelevant and unduly prejudicial, suspecting that it was being offered only to shame H.H.

We reject as meritless Deitering's argument that the video was relevant to show that his sexual relationship with H.H. lasted until the time of the burglary. Evidence must be relevant to be admissible. Minnesota Rules of Evidence 402. Evidence is relevant if it has `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ Deitering tried to enter into evidence a video recording that he says was filmed in April 2013 and features him and H.H. having sex. The district court declared the video irrelevant and unduly prejudicial, suspecting that it was being offered only to shame H.H.

We reject as meritless Deitering's argument that the video was relevant to show that his sexual relationship with H.H. lasted until the time of the burglary. Evidence must be relevant to be admissible. Minnesota Rules of Evidence 402. Evidence is relevant if it has `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’  Minnesota Rules of Evidence 401.  Even relevant evidence may be excluded if it is merely cumulative. Minnesota Rules of Evidence 403. Both parties agreed that Deitering and H.H. were previously engaged in a sexual relationship, so the video is either irrelevant or unnecessarily cumulative on that fact. And it is similarly irrelevant or unnecessarily cumulative as to when the sexual relationship ended, because the district court found that the relationship ended at least by July 2013, which is three months after Deitering claims the video was recorded. The recording adds nothing to the fact that the district court already found—that Deitering and H.H. had a sexual relationship that ended before the burglary.
State v. Deitering, supra.
The Court of Appeals then took up the issue of emails between H.H. and Deitering, explaining that the
district court ruled that certain emails were hearsay and irrelevant. Deitering and H.H. exchanged the emails between January and March 2013, discussing marital issues, health problems, and their relationship. Deitering argues that admitting the emails would have allowed him to impeach H.H.'s testimony as to when their relationship ended. H.H. testified that her affair with Deitering ended about a year and a half before the August 2013 burglary, but then she conceded that they might have had sex after that.

A prior inconsistent statement that was not delivered under oath may be admitted for the purpose of impeachment. State v. Thames, 599 N.W.2d 122, 125 (Minnesota Supreme Court 1999); Minnesota Rule of Evidence 613.  We have reviewed the emails and do not find anything in them clearly inconsistent with H.H.'s trial testimony or with the district court's findings. The email exchange, like the sex tape, occurred during a time that the district court found the relationship to be still ongoing. The emails were therefore irrelevant or needlessly cumulative.
State v. Deitering, supra.
The Court of Appeals then took up another argument Deitering made in his appeal, which focused on the fact that the
district court refused to admit a series of undated photographs showing H.H. wearing bras and panties, rejecting Deitering's contention that the photographs supported the allegedly planned clothing-cut-out photoshoot. See Minnesota Rule of Evidence 404(b). The district court found the photographs irrelevant and unduly prejudicial. We are not persuaded to reverse by Deitering's argument that the photographs depict the `exact situation’ of his proffered defense that he and H.H. were planning a `sexy’ photoshoot involving garments with the breast and crotch areas excised. The proffered photographs do not include underwear with cutouts. They do not make his argument any stronger, and they certainly do not depict the `exact situation’ as the supposedly planned photoshoot that he described. The district court did not abuse its discretion by excluding the photos.
State v. Deitering, supra.
Finally, the Court of Appeals took up Deitering’s final argument, i.e., that
his trial counsel gave him ineffective assistance by failing to request a hearing on the state's motions in limine to exclude the same evidence that we have just held to be either irrelevant or needlessly cumulative. To succeed on this argument, Deitering must show both that his trial counsel provided objectively deficient representation and that but for the deficiency the evidentiary decision and the trial would have come out differently. See Gates v. State, 398 N.W.2d 558, 561 (Minnesota Court of Appeals 1987).

 Deitering does not explain how a full hearing would have resulted in a different evidentiary decision or how admitting the evidence would have prompted a different verdict. Because the underlying evidence is at best cumulative and would, at most, merely corroborate the fact-findings the district court already made, the second element of the constitutional argument fails. So even assuming Deitering could establish that any minimally competent attorney would have sought and secured a hearing on the motions, he cannot prevail on his ineffective-assistance-of-counsel claim.
State v. Deitering, supra.
The Court of Appeals therefore affirmed Dietering’s conviction.  State v. Deitering, supra.