Laptops and the Vehicle Exception

As I explained in a post I did last fall, the vehicle exception is one of the principles that lets law enforcement officers search a place and seize evidence without first obtaining a search (and seizure) warrant.

As I noted in that post, the vehicle exception dates back to 1925, when the U.S. Supreme Court held, in Carroll v. U.S., 267 U.S. 132, that an officer didn’t need a search warrant to search a vehicle if he had probable cause to believe the vehicle contained evidence of a crime.

I also noted that the exception was originally premised on the fact that vehicles are mobile, which means a suspect could frustrate the officer’s ability to search his vehicle by driving it away while the officer’s trying to get the warrant. More recently, the Supreme Court has said the exception is also predicated on the diminished expectation of privacy we have in our vehicles; the Court said our expectation of privacy is diminished because we operate them in public, the interiors are open to public view and they are highly regulated by the government.

Enough background. As I noted in the post I did last fall, I’ve been looking for cases that apply the vehicle exception to an officer’s seizing (and maybe searching) a laptop he finds in a vehicle. In the case I wrote about last fall, the court didn’t decide if laptops – like other containers, such as briefcases and purses – come within the scope of the vehicle exception.

I’ve finally found a case that actually addresses this issue. The case is State v. Newman, 2010 WL 1528518 (Idaho Court of Appeals 2010) and this is how it arose:

Late one summer night, police were dispatched to a grocery store parking lot to investigate a report of suspicious activity at a nearby city park. The police were met at the parking lot by the victim and her husband, who had called the police after responding to an online advertisement for a free iPod. The victim told police she received e-mails from the person posting the ad directing her to come to the park after dark to retrieve the free iPod from a portable restroom. Feeling suspicious, the victim and her husband went to the park to investigate and saw two cars parked near portable restrooms. After watching the vehicles for fifteen to twenty minutes, the[y] . . . called the police.

The officers examined e-mails provided by the victim and indicated they would investigate the situation and retrieve the iPod if they located it in the park. Once in the park, the officers observed a vehicle matching the description given by the victim still parked next to a portable restroom. The vehicle had tinted windows, making it difficult for the officers to see if anyone was sitting inside. The officers searched a portable restroom and did not find an iPod. One officer approached the vehicle and knocked on the passenger-side window. [Stephen] Newman, who was seated in the vehicle, rolled down the window. The officer immediately noticed that Newman was sweating and wearing a black stocking cap. The officer questioned Newman about why he was at the park after closing and why he was wearing a black stocking cap on a hot summer night. Newman responded that he had been working on his laptop computer in the park for over an hour and later planned to do some exercises in the park. The officer asked Newman to step out of the vehicle and, as he was doing so, Newman appeared to hide something behind his seat. The officer questioned Newman about what he put behind his seat. Newman did not answer. The officer looked into the vehicle and saw what appeared to be a handgun. The officer also noticed a pair of black ski gloves and a laptop computer on the passenger side of the vehicle.

Newman was placed under arrest for being in the park after dark in violation of a city ordinance and for carrying a concealed weapon. Newman was handcuffed and placed on a nearby curb. The officers then performed a search of Newman's vehicle incident to his arrest. The officers seized a pellet gun hidden between two seats, a knife hidden under the pair of black ski gloves, some pieces of paper, a man's belt, and the laptop computer. The computer's contents were later searched pursuant to two search warrants. These searches revealed evidence linking Newman to the iPod advertisement and to the victim's e-mails as well as other evidence indicating that Newman planned to commit rape the night of his arrest.

State v. Newman, supra. Newman was charged with attempted rape in violation of Idaho Code §§ 18-306 & 18-6101(4). State v. Newman, supra.

He moved to suppress the evidence the officers found after they arrested him, “asserting that the search of his car violated the” 4^th Amendment. State v. Newman, supra. The trial court denied the motion and a jury convicted Newman of attempted rape. State v. Newman, supra. He appealed, claiming the trial judge erred in denying his motion to suppress. State v. Newman, supra.

As the excerpt from the opinion quoted above notes, the officers relied on the search incident to arrest exception to the 4^th Amendment to justify searching Newman’s car. State v. Newman, supra. As I explained in another post, the search incident exception lets an officer who’s arrested someone automatically search (i) that person and (ii) the area around him to which he could lunge and obtain a weapon or destroy evidence. When the officers searched Newman’s car, they were operating under the U.S. Supreme Court’s decision in New York v. Belton, 453 U.S. 454 (1981), which held that when an officer arrests someone who was in a vehicle, the officer can automatically search the passenger compartment of that vehicle – including “containers” in the compartment – for evidence or to find and disable a weapon. As Wikipedia explains, in 2009, in Arizona v. Gant, 556 U.S. __, the Supreme Court held that when police arrest someone they “may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.” On appeal, Newman claimed the search of his vehicle violated the 4^th Amendment under the decision in Gant. State v. Newman, supra.

The Idaho Court of Appeals didn’t address Newman’s Gant argument because it found that “the search of Newman’s vehicle was valid under the automobile exception”, which was “dispositive of the issue at hand”. State v. Newman, supra. In other words, the Court of Appeals found that even if the search violated the 4^th Amendment under Gant, which cut way back on the scope of a vehicle search based on the Belton search incident exception, it was valid under the automobile exception . . . and that resolved the issue. There was, therefore, no need to consider the validity of the search under the search incident exception.

For the search to have been valid under the vehicle exception, the officers had to have had probable cause to believe evidence of a crime would be found in Newman’s car. He claimed they didn’t have probable cause to believe evidence of “specific criminal activity” would be found in the car, but the Court of Appeals disagreed:

Newman's vehicle was parked in a city park after dark, which was not only unusual but also violated a city ordinance. Officers were dispatched to the park in response to a report of suspicious behavior involving e-mails soliciting the victim to come to that park late at night to retrieve a free iPod from a portable restroom. Newman's vehicle matched the description provided and was parked next to a portable restroom-in the exact location detailed in the e-mails. The officers searched a portable restroom and did not discover an iPod inside. Upon approach by the officers, Newman told police he had been working on his computer in the park for over an hour, which supported the victim's story. Newman's clothing and behavior were also unusual, as he was sweating and wearing a black stocking cap in July. . . . [and] were inconsistent with his explanation that he was going to exercise in the park on a hot summer night. The officers also noticed a pair of winter ski gloves on the passenger seat of Newman's vehicle. Once the police ordered Newman out of his car, Newman attempted to hide what appeared to be a handgun behind his seat so that officers would not discover it. Newman was then hesitant to answer the officer's questions about what he had hidden. . . .

[B]ased on the totality of the circumstances and the objective facts presented to the officers, probable cause existed to believe that evidence of a crime would be found in Newman's vehicle. Newman argues that, at the time of the search, the officers were not presented with sufficient information to support a finding that Newman intended to commit a particular crime. However, to establish that probable cause existed to search Newman's vehicle, the state was not required to show the officers knew whether the purpose of luring the victim to the park was to commit . . . assault, theft by trick, rape, kidnapping, murder, robbery, or any number of other possible crimes. All that was required was a showing that probable cause existed to believe that evidence of criminal activity would be found in the vehicle.

State v. Newman, supra. Having lost on that issue, Newman then argued that even if

the warrantless search of his vehicle was reasonable under the automobile exception, the laptop computer was unlawfully seized because the officers had no probable cause to seize such an ordinary item. However, in this case, there is a direct nexus between the computer and the suspected criminal activity. Newman admitted to officers that he was sitting in his car working on his computer around the same time that the victim reported receiving e-mails directing her to a portable restroom in the park. The e-mails triggered the investigation, and were the very means by which the victim was lured to the park in the first place. The suspicious circumstances of this case -- Newman's dress, demeanor, location, and gun -- coupled with Newman's admission to recently working on his laptop computer, created a direct nexus between the suspicious e-mails and Newman's computer. Because the search of Newman's vehicle was supported by probable cause to believe evidence of a crime would be discovered, and because the computer could reasonably be considered to be evidence of a crime, we conclude that the seizure of the computer was proper under the Fourth Amendment.

State v. Newman, supra. So Newman lost on that argument, too. If you’d like to see what he looks like and read a little more about the case, check out this news story.

There you have it: the automobile exception can justify the seizure of a laptop computer. As I assume you noted, the officers obtained search warrants authorizing a search of the laptop before they began looking through its contents. I, for one, think that’s the proper way to proceed . . . but I have a hard time justifying that view based on the way courts have interpreted the vehicle exception. As a federal district court judge noted, the vehicle exception lets officers search the vehicle and all its contents, so they can go through purses and other traditional “containers” they find in the vehicle. U.S. v. Blair, 2006 WL 2883119 (U.S. District Court for the Western District of Missouri 2006) (officers had the right to “search the vehicle, defendant’s purse, and it contents under the vehicle exception”). Why, then, should laptops be treated differently?

Passwords and the 5th Amendment Privilege

In two earlier posts I analyzed Sebastien Boucher’s efforts to rely on the 5^th Amendment privilege against self-incrimination as his justification for refusing to give law enforcement officers the key used to encrypt part of the files on his laptop. Until now, those are the only reported case I could find that dealt with the 5^th Amendment privilege’s applicability to encryption keys and passwords.

The U.S. District Court for the Eastern District of Michigan recently addressed this issue in U.S. v. Kirschner, 2010 WL 1257355 (2010). Here, according to the district court judge, is how the issue arose:

On December 10, 2009, the Federal Grand Jury issued an indictment charging Defendant Thomas Joseph Kirschner with three felony counts:

Count One: 18 U.S. Code § 2252A(a)(2)(A)-Receipt of Child Pornography on or about May 9, 2009, `including by computer.’

Count Two: 18 U.S.C. § 2252A(a)(2)(A)-Receipt of Child Pornography on or about June, 2009, `including by computer.’

Count Three: 18 U.S.C. § 2252A(a)(2)(A)-Receipt of Child Pornography on or about August 2009, `including by computer.’

On November 20, 2009, an Assistant U.S. Attorney (`AUSA’) issued a `subpoena to Defendant Kirschner to testify before a Grand Jury’ on December 8, 2009. The subpoena required Defendant `to provide all passwords used or associated with the . . . computer . . . and any files.’

On December 7, 2009, Defendant Kirschner filed a Motion to Quash Grand Jury Subpoena asserting Defendant's Fifth Amendment privilege against self-incrimination.

On December 22, 2009, the Government filed a Response, which stated in the accompanying brief:

In order to examine the contents of the encryption file, the government issued a grand jury subpoena ordering Defendant to provide all passwords associated with its computer.

On February 11, 2010, Defendant filed a Reply.

U.S. v. Kirschner, supra. Rule 17 of the Federal Rules of Criminal Procedure governs the use of subpoenas in federal criminal practice. Rule 17(c)(2) states that “[o]n motion made promptly, the court may quash . . . the subpoena if compliance would be unreasonable or oppressive.” As Black’s Law Dictionary (8^th ed. 2004) explains, a motion to quash a subpoena asks the court to “nullify” it, i.e., declare the subpoena null and void and therefore unenforceable. So Kirschner was asking the court to quash the subpoena because he claimed that forcing him to comply with it would violate his 5^th Amendment privilege against self-incrimination. If forcing him to comply would violate his 5^th Amendment privilege, then that justifies quashing the subpoena as oppressive. In re August 1993 Grand Jury, 854 F.Supp. 1392 (U.S. District Court for the Southern District of Indiana 1993).

Before addressing the 5^th Amendment issue, the federal judge addressed another issue, one he raised on his own: whether the subpoena was “being utilized post-indictment to investigate additional charges.” U.S. v. Kirschner, supra. As the judge noted, a

`grand jury is given its broad investigative powers to determine whether a crime has been committed and an indictment should issue, not to gather evidence for use in cases in which indictments have already issued. Accordingly, both state and federal courts hold that it is an abuse of the grand jury process to use grand jury subpoenas `for the sole or dominating purpose of preparing an already pending indictment for trial.’

U.S. v. Kirschner, supra (emphasis added & quoting LaFave, Israel, King and Kerr, Handbook on Criminal Procedure (2d ed. 2007)). When the judge raised this issue at the hearing he held on Kirschner’s motion to quash the subpoena, that prompted this exchange with the Assistant U.S. Attorney (AUSA) handling the case:

The government concedes that the instant grand jury subpoena was issued to secure evidence of child pornography allegedly contained in Defendant Kirschner's computer, which spawned the three counts contained in the indictment:

AUSA: [I]t's our position that the grand jury is still investigating the contents of the encryption file.

COURT: It's the same computer.

AUSA: It is the same computer.

(Hr'g Tr., Feb. 16, 2010, p. 10.)

U.S. v. Kirschner, supra. The judge ultimately held that since the AUSA said he would “use the indicted defendant’s testimony solely to pursue a different, separate offense”, the government was not prevented from using a grand jury subpoena for this narrow purpose, but that he might have to revisit the issue later. U.S. v. Kirschner, supra.

In the instant case, the post-indictment grand jury questioning will relate to the same computer that provided the evidence for the existing charges, and likely the same type of criminal behavior. Does this evidence relate to a wholly different and separable offense? Stay tuned.

U.S. v. Kirschner, supra. The judge then took up the 5^th Amendment privilege issue:

Insofar as the subpoena is valid, can the Defendant refuse to testify based on his Fifth Amendment privilege against self-incrimination? Defendant contends that requiring him to testify before the grand jury pursuant to the subpoena issued by the government would violate his Fifth Amendment right against self-incrimination under the United States Constitution. The subpoena calls for the Defendant to testify to the password he utilizes for his computer. Defendant declines to testify invoking his Fifth Amendment privilege against self-incrimination.

U.S. v. Kirschner, supra. Here, as in the Boucher case, the issue was whether requiring Kirschner “to provide the password is a testimonial communication.” U.S. v. Kirschner, supra. As I explained in my posts on the Boucher case, to claim the 5^th Amendment privilege, you have to show that the government (i) is compelling you (ii) to give testimony that (iii) incriminates you, i.e., implicates you in the commission of a crime. The grand jury subpoena constitutes compulsion because Kirschner either has to (i) comply with it, (ii) refuse to comply with no justification and be locked up until he agrees to provide the password or (iii) successfully refuse to comply on the grounds that doing so would violate his 5^th Amendment privilege. If he can show that giving up the password requires him to “testify” in a fashion that incriminates him, he can claim the privilege and have the subpoena quashed, or declared null and void.

The Supreme Court has held, basically, that you’re giving testimony – testifying – when you’re communicating, i.e., when you’re revealing your knowledge of certain facts or sharing your thoughts or opinions with the government. U.S. v. Kirschner, supra. You can’t claim the 5^th Amendment privilege to refuse to surrender physical evidence such as your blood, hair or saliva; it only applies to communications, i.e., to something that look like what a witness does when she takes the stand at trial.

In addressing this issue, the Kirschner judge noted that in U.S. v. Doe, 487 U.S. 201 (1987), the Supreme Court said compelling someone “`to reveal the combination to [their] wall safe’” constitutes testimony within the scope of the 4<sup>th</sup> Amendment privilege. In this case, the AUSA “described the requested testimony [from Kirschner] in these terms: `It's like giving the combination to a safe.’” U.S. v. Kirschner, supra. That wasn’t a good way to describe it, because the judge then noted that the “Supreme Court has held that this type of procured testimony is protected by the . . . Fifth Amendment privilege.” U.S. v. Kirschner, supra. The judge also explained that “the government is not seeking documents or objects -- it is seeking testimony from the Defendant, requiring him to divulge through his mental processes his password-that will be used to incriminate him.” U.S. v. Kirschner, supra. He therefore granted Kirschner’s motion to quash the grand jury subpoena, which meant it became null and void and therefore unenforceable. U.S. v. Kirschner, supra.

As I explained in my posts on the Boucher case, that left the government with three options:

(1) Appeal this judge’s decision to the U.S. Court of Appeals for the Sixth Circuit.

(2) Give up on trying to use Kirschner’s computer as the source of evidence on which to base additional charges.

(3) Give Kirschner immunity for disclosing his computer passwords to the grand jury.

The government may go with (2), but I suspect they’re more likely to try (1). They could give Kirschner immunity for the act of disclosing the passwords, but if the government does that it can’t use the passwords themselves or any evidence derived from to charge and prosecute Kirschner for additional crimes. Section 6002 of Title 18 of the U.S. Code, which you can find here, allows the government to give someone immunity, which then strips them of the ability to claim the 5^th Amendment privilege and refuse to testify. As I noted in my Boucher posts, the premise is that if the government promises it won’t use what you say to prosecute you, then your testimony doesn’t “incriminate” you and you don’t need the 5^th Amendment privilege to protect you.

As I also noted in the Boucher posts, the problem the government faces in a case like this is that if it gives the suspect immunity to get the encryption key or passwords, it can’t use the key or the passwords or any evidence derived from them, i.e., any evidence they find when they access the encrypted or password-protected computer or computer media, against that person. So if the government doesn’t appeal this court’s ruling or if the U.S. Court of Appeals for the 6^th Circuit affirms that ruling, it means Kirschner doesn’t have to worry about the government using evidence that’s in his computer to prosecute him for new crimes . . . unless, of course, the government can somehow bypass his password protection.

"Telecommunications Device"

Several years ago, I did a post dealing with one of the offenses created by 47 U.S. Code § 223. In it, I focused on the statute’s apparently making it a federal crime to use a “telecommunications device” to transmit communications with the “intent to annoy, abuse, threaten, or harass” any person who “receives the communications.”

In that post, I focused on whether the federal government (or a state, for that matter) can constitutionally make it a crime merely to “annoy” someone. I concluded that it isn’t; for my reasoning, check out that earlier post.

This post is about a different issue that arises under the same statute. I got a voicemail from a woman whom I won’t identify, for reasons that will become apparent in a moment. She wanted to know if the statute only applies to emails or if it also encompasses posting content online.

I don’t have much in the way of details in terms of what’s been happening to her “for almost 4 years”, but she said it’s “scared the hell out” of her. She said someone – I think she knows who is it but am not sure – has been posting things online that link her name with “rape porn” and other “pretty horrific” postings. She said she went to an assistant district attorney and to an FBI agent and both of them told her they can’t do anything about what’s happening to her, but also told her “not to go out alone”. That’s all I know, but I decided to address the question she raised in a blog post because others may be having the same problem.

(I’m not sure what statute this woman is thinking of suing under; at least one federal court has held that 47 U.S. Code § 223 is a criminal statute only. Dimeo v. Max, 433 F.Supp.2d 523 (U.S. District Court for the Eastern District of Pennsylvania 2006). This court threw out the plaintiff’s attempt to bring a civil suit under § 223 because it found that the statute does not create a private, civil cause of action for people who have been the victims of conduct prohibited by the statute.)

For the purposes of analysis, we’ll assume that whatever has been posted online was posted with the “intent to annoy, abuse, threaten, or harass” this woman who qualifies as the recipient of those communications. In other words, I’m assuming that the content of the communications falls within the prohibitions of 47 U.S. Code § 223(a)(1)(C). The issue we’re going to be dealing with is whether the person who posted the content online utilized the method prohibited by the statute. In a sense, we’re parsing what the statute means by “communicating” with the victim.

Section 223(a)(1)(C) of Title 47 of the U.S. Code makes it a crime to “utilize[] a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person . . . who receives the communications”. (emphasis added) Our presumptive victim read the content online, so we’ll also assume, for the purposes of analysis, that she “received” it.

The issue to be resolved is whether “utiliz[ing] a telecommunications device” only encompasses a direct transmission of content to the victim via email, instant messaging or any analogous means of transmitting content. There’s a good argument that it only encompasses this type of communication: As I noted in my earlier post on the statute, § 223(a)(1)(C) was added to the federal code in 1968 to criminalize phone harassment. In 1968, telephone harassment was necessarily one-to-one communication, i.e., A called B and harassed him/her. In 1968, average citizens didn’t have the capacity to broadcast communications; today, they do.

As I noted in my earlier post, in 1996 the Communications Decency Act, Public Law No. 104-104 sec. 502, 110 Stat. 56 amended § 223. The CDA expanded § 223(a)(1)(C) so that it encompassed the use of a "telecommunications device," as well as a telephone. That’s the version of the statute we’re dealing with. Telecommunications Act of 1996, P.L. 104-104, House Conference Report No. 104-458, 1006 WL 46795 (1996).

Section 223(h) defines certain of the terms used in the statute. Section 223(h)(1) provides as follows:

The use of the term `telecommunications device’ in this section--

(A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this chapter;

(B) does not include an interactive computer service; and

(C) in the case of subparagraph (C) of subsection (a)(1), includes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet. . . .

Section 223(h)(1)(B) incorporates the definition of “interactive computer service” that is included in 47 U.S. Code §230(f)(2). Section 230(f)(2) provides as follows:

The term `interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

It looks to me like this definition encompasses ISPs; if I’m right, then the definition of “telecommunications device” in § 223(h)(1)(B) doesn’t include an ISP. That theory is supported by a comment a federal judge made in American Civil Liberties Union v. Reno, 929 F. Supp. 824 (U.S. District Court for the Eastern District of Pennsylvania 1996). After noting that this court was not required to resolve “the tension between the scope of `telecommunications device’ and . . . `interactive computer service’” as defined by what is now § 223(h)(1), he noted that it was

sufficient for us to conclude that the exclusion of § 223(h)(1)(B) is probably a narrow one (as the Government has argued), insulating an interactive computer service from criminal liability under the CDA but not insulating users who traffic in indecent and patently offensive materials on the Internet through those services.

American Civil Liberties Union v. Reno, supra. I think that’s probably right. I think the exclusion is a provision meant to immunize ISPs from liability for what users of their services do.

Since we’re analyzing § 223(a)(1)(C)’s applicability to content posted online, we can also rely on the definition of telecommunications device contained in § 223(h)(1)(C), which seems pretty expansive. Section 223(a)(1)(C) was added to the statute in 2006. Pub. L. 109-162, Title I, § 113(a), 119 Stat. 2987, Jan. 5, 2006. I found a law review article that analyzes the impact of this amendment under the principles of statutory construction. Ryan M. Hubbard, How I Learned to Stop Worrying and Love the Communications Decency Act, 2007 University of Illinois Journal of Law, Technology and Policy 345 (2007). This author concludes that under one those principles (at least), “it would seem that posting content to the Internet . . . would be covered by the statute.” 2007 University of Illinois Journal of Law, Technology and Policy at 358. He also concludes, later in his analysis, that the 2006 amendment was meant to clarify something the federal judge in American Civil Liberties Union v. Reno, supra, said in a footnote:

[T]he [American Civil Liberties Union v. Reno] judge read the definition of a `telecommunications device’ to include a modem and that of an `interactive computer service’ only to exclude entities such as Internet service providers. Thus, the [2006] amendment would seem to be not so much altering the definition, as merely clarifying it to reflect what has already been included in judicial interpretation of the definitions. The amendment language would provide positive guidance and clarification for the definition of a `telecommunications device’ but would not alter the definition from what the court had already interpreted the law to encompass. Under this definition, e-mail, Usenet, Web pages, and other postings to the Internet would all be covered by the statute. However, this would be due to the Communications Decency Act of 1996, not the most recent amendment.

2007 University of Illinois Journal of Law, Technology and Policy at 359-360.

And that, I’m afraid, is all I can find in terms of sources that address the issue we’re dealing with. When I first started looking into this, I was really surprised that there weren’t any cases dealing with this issue. Then as I thought about the conduct the statute is designed to criminalize, I realized that wasn’t so surprising, after all.

It isn’t surprising when you think about the dynamic involved in intentionally annoying, abusing, threatening and/or harassing someone by using a remote communications device (like a phone). Until relatively recently, as I noted above, you had to do this by directly contacting that person via telephone. I suspect, then, that the dearth of cases dealing with annoying, etc. a victim by posting content online is to some extent a product of how we think about this kind of conduct. We assume it has to be specifically directed at the victim because that’s how it was done in the past. I also suspect that the people who engage in this kind of activity enjoy directing this kind of conduct at the victim; they want to make the victim suffer, after all . . . and they probably want to know that the victim is suffering as a result of what they’ve done.

I don’t see why we have to limit the scope of the statute to how this was done in the past. I agree with the author of the law review article – I think the statute should (does?) encompass content that is posted online . . . even when the perpetrator doesn’t do anything to call the victim’s attention to what’s now out there. I don’t know if courts will agree with me or not.

So, there you have it . . . a pretty inconclusive analysis of the issue we started with. If anyone has any insights on this issue that I’ve missed, I’d like to hear them.

MySpace Page as Impeachment Evidence

Last fall I did a post on authenticating MySpace content as evidence that could be admitted at a trial. I’ve also noted other issues concerning the authentication of MySpace pages and similar online content. This post is about another evidentiary issue that can arise when MySpace content is offered as evidence in a judicial proceeding.

I’m going to use two cases to explore some of these issues. The first is State v. Winkfield, 2010 WL 796917 (Tennessee Court of Criminal Appeals 2010). Samuel Winkfield was convicted of second-degree murder and tampering with evidence in violation of Tennessee law. This is how the case arose:

On October 19, 2006, Billy England lived at 300 Roland Street in Jackson, Tennessee. Around 10:10 a.m., he was leaving his home and heard what sounded like moaning coming from nearby. . . . [H]e saw James Charles Haney . . . in the front yard of another residence. Haney was partially clothed. England suspected the man was drunk so he told him to go home. Haney entered . . . 324 Roland Avenue. England drove around the block and saw that the front door to 324 Roland Avenue was still open. It was cold and raining, so England stopped and entered the residence to check on Haney. . . . [He] found Haney face down on the floor. . . . England was unable to find a pulse, so he called the police. . . .

Officers responded . . .at around 10:18 a.m. . . . and found a `lifeless' Haney lying face-down on the floor with gunshot wounds to the right leg and chest. . . . Mr. Haney was partially clothed at the time. . . .

[O]fficers learned that Haney lived at 324 Roland Avenue with Terrence McGee. [Winkfield[ began living with them in September of 2006. . . . Several weeks prior to [Haney’s] death, [Winkfield[ told McGee someone was stealing his marijuana. . . .

On October 18, 2006, . . . several people were at 324 Roland Avenue, including McGee, [Winkfield], and Haney. . . . The next morning, . . ., McGee arose at 8:30 a.m. and got ready for class. Several other students stayed the night at the residence, and McGee dropped them off at school before going to class. When he left the residence, Haney and [Winkfield] were the only people present. . . .

McGee's class was over around 9:50 a.m. At the end of class, he realized he left his cell phone at home. McGee borrowed [a] cell phone. . . to call his cell phone. [Winkfield] answered the phone, informed McGee that something had happened to Haney, and instructed him to come home. McGee described [Winkfield’s] voice as `scared.’

McGee . . . drove quickly home. He pulled in the alley behind the house, and [Winkfield] ran out the back door carrying a black trash bag and a .380 pistol. It was the same .380 pistol that McGee had previously given to Haney. . . . McGee tried to go in the house, but [Winkfield] `yanked’ him back into the car and. . . . even pointed the gun at [him.]

[Winkfield told] McGee to drive the car to his girlfriend's, Ciara Lasley's, apartment. On the way there, [he] informed McGee he was `sorry’ but `[Haney] kept playing with me, playing with me and testing me and playing with me.’ [Winkfield] took a stack of money out of his pocket. The money was neatly wrapped in the same manner that the victim kept his money. . . .

[Winkfield had] McGee's cell phone. During the trip to Lasley's apartment, [he] used the cell phone. . . . [to call] someone named `Booky’ and told him to `go get [Haney] he's got two bullets in him.’ When they arrived at Lasley's apartment, [Winkfield left] the vehicle with the trash bag and the gun. He left the cell phone and told McGee to keep quiet. McGee . . . . return[ed] to campus and attend[ed] classes. McGee received a call from a friend at around 1:00 p.m. that afternoon informing him that Haney was dead. . . .

Nicholas Parks, also known as Booky,. . . . received a call on October 19 in the morning. He was asleep when the phone rang but noticed that the phone number was blocked by caller ID. When he answered . . . a voice instructed him to `go get [Haney], he has two bullets in him.’ Parks ignored the call and went back to sleep.

State v. Winkfield, supra. The opinion provides more detail on what happened that day, but I think you get the idea. After being convicted, Winkfield appealed, arguing, in part, that “the trial court improperly denied the admission of Terrence McGee's MySpace page in which he claimed to be `armed and dangerous.’” State v. Winkfield, supra.

Winkfield filed a motion prior to trial to allow the introduction of a picture of McGee from his MySpace page that

[showed] McGee with the caption `armed and dangerous . . . I repeat armed and dangerous.’ [Winkfield’s lawyer] sought to use the information . . . to impeach the credibility of McGee. On appeal, [Winkfield claimed] the trial court abused its discretion and the exclusion of the evidence amounted to `an unreasonable restriction on [his] right to cross-examine’ the witness in order to show his lack of credibility.

State v. Winkfield, supra. What Winkfield wanted to do, of course, was use the photo to impeach McGee. As Wikipedia explains, “in the law of evidence, [impeachment] is the process of calling into question the credibility of an individual who is testifying in a trial.” At trial, Winkfield’s defense attorney argued that the “armed and dangerous” caption

impeached McGee's testimony in which he claimed he was afraid of [Winkfield] when [he] pointed a gun at him. . . . [Counsel also] that the statement impeached McGee's veracity . . . because he admitted at . . . trial that he was not `armed and dangerous,’ he only used the statement on his webpage to further his career as a rap artist.

State v. Winkfield, supra. The prosecution argued that “the trial court properly utilized Rule 608(b) of the Tennessee Rules of Evidence and determined that the information had no probative value and would only serve to confuse the jury.” State v. Winkfield, supra. Rule 608(b) provides, in part, as follows:

Specific instances of conduct of a witness for the purpose of attacking . . . the witness's character for truthfulness . . . may not be proved by extrinsic evidence. They may, however, if probative of truthfulness or untruthfulness and under the following conditions, be inquired into on cross-examination of the witness concerning the witness's character for truthfulness or untruthfulness. . . .

One of the requirements is that the trial court “hold a hearing outside the jury's presence and . . determine that the alleged conduct has probative value”. Rule 608(b)(1). The trial judge did precisely that in the Winkfield case.

The trial court conducted a . . . hearing on . . . and determined that the evidence was not admissible because it was not probative. We determine that the trial court followed the proper procedure and did not abuse its discretion. The statements of a witness on a personal webpage designed to further a musical career are clearly unrelated to any particular instance of conduct that would show the witness's character or reputation for truthfulness as a witness. The trial court properly determined that the evidence was irrelevant. . . .

State v. Winkfield, supra. The Court of Appeals therefore held that this argument was “without merit.” State v. Winkfield, supra. I couldn’t find any news stories on this case, but I did find, somewhat ironically, a Facebook page that discusses the case and seems to argue that Winkfield should have been acquitted.

Another defendant – Richard Howard – made a similar argument in appealing his conviction “for numerous crimes, including murder, stemming from the shooting death of Larry Ritch.” Howard v. State, 286 Ga. 222, 686 S.E.2d 764 (Georgia Supreme Court 2009). At trial, one witness testified that he saw a man later identified as Howard shoot Ritch after demanding money from him; another woman also testified about the shooting and a third witness saw a car leaving the parking lot of the apartment complex where the crime occurred. Howard v. State, supra. That witness gave police the license number of the car and an officer pulled it over; Howard and his cousin Tandy Cole were in the car. Howard v. State, supra. Officers arrested both of them and both were “charged with the same crimes”. Howard v. State, supra.

Cole testified against Howard, saying, among other things, that he heard gunshots after Howard got out of the car at an apartment complex; Cole also said that after he heard gunshots Howard “jumped in” the car and told him to “`drive.’” Howard v. State, supra. After being convicted, Howard appealed, arguing, in part, that the trial judge erred in

refusing to permit him to introduce computer images from Cole's MySpace website that Howard claims were relevant to show that Cole shot the victim. At trial, Howard informed the trial court that he had [an] image from Cole's MySpace website that depicted Cole holding a rifle, with a caption saying `a pistol equals respect.’ Howard contended that this image was relevant evidence that Cole committed the offense in question

.

Howard v. State, supra. The trial judge didn’t agree, and neither did the Georgia Supreme Court:

[E]ven assuming that Howard could authenticate the image of Cole holding a rifle or the caption that accompanied it, the fact that at some point Cole created such an image or caption would only raise a speculative or conjectural inference that he murdered Ritch on the night in question. This Court has held that such weak inferences are inadmissible to show that another person committed the crime in question. . . . Accordingly, the trial court did not err in excluding the evidence.

Howard v. State, supra.

These cases obviously don’t stand for the proposition that what someone posts on a MySpace or Facebook page can never be used to impeach an adverse witness. All they establish – correctly IMHO – is that online content won’t be admitted as impeachment evidence unless the proponent of the evidence can show a real connection between the content in question and the impact it has on the adverse witness’ testimony.

Admissibility of MySpace Photos

In an earlier post, I analyzed the evidentiary issues that arise when a defendant or the prosecution wants to introduce postings from someone’s MySpace pages. This post is about a different, but related issue: the admissibility of photos posted on someone’s MySpace page.

The issue arose in U.S. v. Drummond, 2010 WL 1329059 (U.S. District Court for the Middle District of Pennsylvania). This is the factual context from which the issue arose:

On May 6, 2009, Rahseem Drummond was arrested while traveling as a passenger in a vehicle south of Harrisburg. On May 13, [he] was indicted on charges of possessing with intent to distribute cocaine and marijuana, using a communication facility in furtherance of drug trafficking, and conspiring to distribute cocaine and marijuana. On July 29, 2009, a Superseding Indictment was issued adding the charge of using interstate commerce in furtherance of drug trafficking. On July 30, 2009, [Drummond] moved to suppress evidence obtained at the time of the arrest, but the motion was denied by the Court.

On February 4, 2010, [Drummond] filed this motion in limine to preclude introduction of prejudicial evidence at trial. Specifically, [he] learned through discovery provided by the Government that the Government intends to present photographs from [his] MySpace page at trial. . . . [Drummond] argues that the photographs . . . should be precluded from trial under [the] Federal Rules of Evidence. . . .

U.S. v. Drummond, supra.

Before we get to the evidentiary issues Drummond raised, I need to explain what kind of motion Drummond filed and how it differs from a motion to suppress.

As you probably know, a motion to suppress asks a judge to exclude certain evidence from being presented at trial. As Wikipedia explains,

[T]he term `motion to suppress’ typically encompasses motions in criminal cases where the proposed basis for exclusion arises from the United States Constitution, a state constitution or a specific statute permitting the exclusion of certain types of evidence. . . .

As Wikipedia also notes, a motion “to exclude evidence where the . . . basis for exclusion arises from the rules of evidence is . . . a motion in limine.” Wikipedia explains that the phrase “in limine” is Latin for “at the threshold” and that a motion in limine is “made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial.” Since Drummond wasn’t claiming that the government obtained the MySpace photos by violating the 4^th Amendment or some other constitutional provision, he filed a motion in limine.

In ruling on Drummond’s motion, the court noted that the photos in question depicted

[Drummond] counting, showing-off, and throwing large wads of cash while wearing a hat and sunglasses. It is unclear from the photos the amount of money in [his] possession or the way in which he obtained the bills. Additionally, one photo depicts [Drummond] either pretending to point a gun at the camera or pointing a gun at the camera. The Court's copy of the latter precludes the Court from discerning whether any weapon actually is shown in the photograph.

U.S. v. Drummond, supra. Drummond argued that the photos

are not probative of any of the crimes charged. Alternatively, [he] argues that the probative value of the photos is substantially outweighed by the danger of unfair prejudice. By contrast, the Government maintains that testimony will demonstrate that [Drummond] had no job at the time the photographs were taken and thus no known means of income. From this, the Government argues, it is logical to infer that [he] obtained the cash from drug sales. The Government asserts that the photos of [Drummond] holding cash are circumstantial evidence of drug trafficking. Likewise, with respect to the photo of [him] pointing a gun, the Government contends that his possession of firearms is `intrinsic’ to the crime of conspiring to distribute drugs, and thus all evidence related to possession of a firearm is necessarily admissible as direct evidence of the crime charged.

U.S. v. Drummond, supra.

Drummond’s first argument – that the photos weren’t probative of the crimes charged – was made under Rule 402 of the Federal Rules of Evidence. It provides as follows:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

The federal judge to whom the Drummond case is assigned found that the photos of Drummond “holding cash are relevant” because the “[p]ossession of large amounts of cash on-hand can be circumstantial evidence of drug trafficking.” U.S. v. Drummond, supra. That disposed of the Rule 402 issue.

The judge also found, however, that the photos are “without question . . . prejudicial to” Drummond. U.S. v. Drummond, supra. The existence of prejudice required the judge to decide if Rule 403 of the Federal Rules of Evidence barred the government from using the photos. Rule 403 provides as follows:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The judge explained that the photographs at issue in the Drummond case

pose a significant risk of provoking an emotional reaction from the jury -- that he is a drug dealer because he looks like a drug dealer in the photos --, which is likely to outweigh the probative value of him possessing an unknown amount of cash from an unknown source. See Federal Rules of Evidence, advisory committee's note (defining unfair prejudice as `an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’). Moreover, evidence that [Drummond] possessed large quantities of cash despite his absence of a job or known source of income is, in all likelihood, capable of being presented through oral testimony much less prejudicial than these photos, making the prejudice of these photos avoidable.

U.S. v. Drummond, supra. She ultimately found, though, that she could not

at this point, make a determination as to whether the photos are admissible under Rule 403, in advance of knowing what exactly the testimony will reveal at trial. See In re Paoli Ry. PCB Litigation, 916 F.2d 829, 859 (U.S. Court of Appeals for the 3d Circuit 1990) (`We believe Rule 403 is a trial-oriented rule.’). The Court notes only that, if testimony presents evidence that [Drummond] had no known source of income and yet often had significant quantities of cash on-hand, but [he] disputes having possessed large amounts cash, it is possible that the relevance of the photos could outweigh any unfair prejudice.

U.S. v. Drummond, supra.

The federal judge then found that “the same issues” applied to the photograph in which Drummond “is posing as if pointing a gun”. U.S. v. Drummond, supra.

As the Government suggests, possession of a firearm may be relevant to a charge of drug trafficking because firearms are known to be “tools of the trade” of drug trafficking. . . . However, the Government has not stated that testimony in this case will support the assertion that [Drummond] or the members of his conspiracy used firearms in furtherance of their drug-trafficking endeavors. Therefore, it is unclear to the Court that, in this case, possession of a firearm is intrinsic to the drug trafficking or conspiracy charged. . . . More importantly, the photograph is problematic because the Court cannot determine from the photocopy provided whether [Drummond] actually is possessing a firearm, or whether he is simply mimicking the stance of a shooter. Thus the Court cannot make a final determination on the admissibility of this photograph without more information.

U.S. v. Drummond, supra. She therefore “deferred ruling on the admissibility of all” of the photos “appended to” Drummond’s motion in limine and noted that she would rule on them when the case goes to trial. U.S. v. Drummond, supra.

I decided to do a post on this case because it’s the only reported case I can find that addresses the admissibility of photographs posted on someone’s MySpace page. I suspect the issues raised here will come up again in future cases.