Friday, December 30, 2011

MySpace, Authentication, Hearsay and Prejudice

This is another post on a topic I've covered before: the process of authenticating MySpace evidence.

The requirement of “authenticating” evidence to be used in court arises under special rules of evidence or, in some states, under statutes that serve the same purpose. For example, Rule 901(a) of the Federal Rules of Evidence says “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”

The case this post examines is from California, so it involves authentication under California’s rules of evidence. The case is People v. Valdez, __ Cal. Rptr. 3d __, 2011 WL 6275691 (California Court of Appeals 2011), and this is how it arose:

Around 6:30 p.m. on April 27, 2007, rival gang members in a red Honda fired shots at Isaac Villa, a member of the T.I.U. gang (`Toke It Up’ or `Tag It Up’), and Alex Urzua and Ali Hammad Guzman. The three were walking on West Alton Avenue near South Timber Street in Santa Ana. Villa had been involved in violent confrontations with members of the T.L.F. (`Thug Family Life’) gang. . . . Valdez, known by his gang moniker, `Yums,”’ drove the Honda, accompanied by four or five other T.L.F. members. . . .

Valdez made a U-turn, drove back, and stopped in front of Villa's group. Someone yelled from the car, `T.L.F.,’ and the front passenger extended his hand out the driver's side window and fired shots at Villa's group. One hit Urzua in the leg, and the car sped away. Villa and Hammad carried Urzua to Hammad's house and called an ambulance. Two of the shooting victims knew Valdez by his `Yums’ moniker, and one of them noted he recognized Valdez from Valdez's MySpace web page. . . .

[A]round 2:45 a.m. on July 29, 2007, Valdez parked an older model maroon Cadillac in an Anaheim fast food restaurant parking lot. At least one passenger, Robert Quinones, was in the vehicle with Valdez. Jonathan Kincaid, [a] . . . member of the Monte Black Gangster Crips who had dated Valdez's sister, rode by on a bicycle. . . . Kincaid's gang was not a T.L.F. rival, nor was Kincaid riding in territory claimed by T.L.F. A witness . . . [saw] Valdez and Quinones quickly close the doors on their vehicle and speed off after Kincaid. Valdez fired at least one shot at [him], but missed. Kincaid rode . . . to a convenience store and called 911. . . He stated the driver of the car had shot at him, a backseat passenger held a shotgun, and he spotted four occupants in the vehicle, who he claimed were T.L.F. members.

People v. Valdez, supra.

Officers responding to the 911 call interviewed Kincaid and stopped the car Valdez was driving and arrested Valdez and Quinones, its only occupants. People v. Valdez, supra. The arresting officer found “gunpowder on both hands of both men” and the witness who saw them in the fast food restaurant parking lot identified them. People v. Valdez, supra.

Valdez was charged with and convicted of “of two counts of attempted murder, four counts of assault with a firearm, and two counts of street terrorism . . . arising from two separate drive-by shootings.” People v. Valdez, supra. He appealed, raising several issues, one of which was the trial judges admitting an “exhibit consisting of printouts of his MySpace social media internet page.” People v. Valdez, supra.

More precisely, Valdez argued that the trial judge “erroneously admitted pages” from

his MySpace social networking site that included his gang moniker (`Yums’), a photograph of him making a gang hand signal, and written notations including `T.L.F.,’ `YUM $ YUM,’ `T.L.F.'s ′63 Impala,’ `T.L.F., The Most Wanted Krew by the Cops and Ladiez,’ and `Yums. You Don't Wanna F wit[h] this Guy.’ . . . The MySpace page included the following under `Groups’: `CO 2006, Thug Life/Club Bounce. O.C.'s Most Wanted G's. Viva Los Jews. Screaming Thug Life’ and, in an interests section, stated: `Mob[b]ing the streets and hustling, chilling with homies, and spending time with my mom.’ . . . The prosecution's gang expert, Castillo, explained that in gang parlance, the letter `G’ in `O.C.'s Most Wanted G's’ stood for `gangster.’

People v. Valdez, supra.

This is how the prosecution apparently acquired the pages:

An investigator from the district attorney's office, Kevin Ruiz, testified he printed out the web pages in May 2006, a year before the shootings, after accessing them as part of his internet search using the terms `T.L.F. Santa Ana.’ He explained that a person's MySpace pages are accessible publicly without a password, but only the person who has created that MySpace profile, or a person who has a password for the page, may upload content to it or manipulate images on it.

Ruiz explained, `[W]ithout having the password that belongs to the creator of that website, you can only view what's there[.]’ In other words, `to actually add or subtract anything, you would need the . . . password that was given by the person who created the website[.]’ Ruiz admitted he did not know who uploaded the photographs or messages on Valdez's page, who created the page, or how many people had a password to post content on the page.

People v. Valdez, supra.

The trial judge admitted the evidence for “the limited purposes of (1) corroborating a victim's statement to investigators shortly after the first shooting that [he] recognized Valdez from the MySpace site and (2) as foundation for Castillo's expert testimony” that “Valdez was an active T.L.F. gang member.” People v. Valdez, supra. Valdez argued, at trial and on appeal, that the evidence was not authenticated. People v. Valdez, supra.

In addressing his argument, the Court of Appeals noted that while writings “must be authenticated before they are received into evidence . . . , the proponent's burden of producing evidence to show authenticity is met `when sufficient evidence has been produced to sustain a finding that the document is what it purports to be.’” People v. Valdez, supra (quoting Jazayeri v. Mao, 174 Cal.App.4th 301, 94 Cal.Rptr.3d 198 (California Court of Appeals 2009)). It also noted that authentication can be “established by the contents of the writing . . . or by other means”. People v. Valdez, supra.

The Court of Appeals found that the page had been sufficiently authenticated. People v. Valdez, supra. It pointed out, among other things, that (i) Valdez did not “dispute that the MySpace page icon identifying the owner of the page displayed a photograph of” his face; (ii) greetings on the page were “addressed to him by name (`Hey, Vince’)” and “by relation (`Hey, big brother’)"; and (iii) “many posts by friends and by the page owner that included personal details”. People v. Valdez, supra. The court also noted that the

page owner's stated interests, including an interest in gangs generally and in T.L.F. specifically, matched what the police otherwise knew of Valdez's interests from their field contacts with him. This suggested the page belonged to Valdez rather than someone else by the same name, who happened to look just like him.

People v. Valdez, supra.

The Court of Appeals explained that while “Valdez was free to argue otherwise to the jury, a reasonable trier of fact could conclude from the posting of personal photographs, communications, and other details that the MySpace page belonged to him.” People v. Valdez, supra. It found, therefore, that the trial judge “did not err in admitting the page for the jury to determine whether he authored it.” People v. Valdez, supra.

The Court of Appeals also found that the trial judge could have found that “particular items on the page, including a photograph of Valdez forming a gang signal with his right hand,” established the threshold required for the jury to be able to determine their authenticity. People v. Valdez, supra. It explained that the contents of a document can be used to authenticate a writing, and noted Valdez did not dispute that he was the

person depicted in the gang signal photograph. Other `content’ in the photograph, specifically, the deliberately posed position of Valdez's hands, was precise and definite to suggest an intentional rather than inadvertent or accidental hand gesture. Nothing on the rest of the page undermined an initial impression the photograph accurately depicted Valdez making a gang hand sign instead of some other signal or motion.

Rather, the writings on the page and the photograph corroborated each other by showing a pervading interest in gang matters. . . . [T]his consistent, mutually-reinforcing content on the page helped authenticate the photograph and writings. . . .

People v. Valdez, supra. The court also noted that “[o]ther key factors” it relied on in finding that the evidence was authenticated were that the circumstances discussed above “strongly suggested the page was Valdez's personal site” and that it was “ password-protected for posting and deleting content, which tended to suggest Valdez, as the owner of the page, controlled the posted material.” People v. Valdez, supra.

Finally, the Court of Appeals explained that “nothing suggested” Valdez had an enemy “with a motive to implicate Valdez in future gang crimes by creating an entire site or individual postings on it.” People v. Valdez, supra. It noted that Ruiz’s downloading

the page contents long predated any conceivable motive in anyone to hack or fabricate a MySpace page or its content to implicate Valdez in the shooting crimes . . . which occurred a year later. We recognize, of course, that hacking may occur and that documents and other material on the internet may not be what they seem.

But the proponent's threshold authentication burden for admissibility is not to establish validity or negate falsity in a categorical fashion, but rather to make a showing on which the trier of fact reasonably could conclude the proffered writing is authentic. The prosecution met that burden here, as the trial court properly concluded. We therefore reject Valdez's authentication challenge.

People v. Valdez, supra (emphasis in the original).

Valdez also argued that the MySpace evidence was improperly admitted because it was hearsay and/or because it was more prejudicial than probative. People v. Valdez, supra. The Court of Appeals rather quickly disposed of these arguments.

Hearsay, as Wikipedia explains, is essentially second-hand evidence, i.e., is a statement someone made out of court, e.g., in general conversation months before the trial began, that is being offered in evidence to prove “the truth of the matter asserted”. If you’d like to know more about that, check out the Wikipedia entry on hearsay.

As I’ve noted in earlier posts, the rules of evidence bar the use of hearsay at trial -- subject to certain exceptions -- because its accuracy cannot be tested by cross-examination. Hearsay is therefor inadmissible unless it can be shown to be at least reasonably reliable.

The Court of Appeals found that Valdez’s hearsay argument was “without merit because the trial court did not admit the MySpace material for the truth of any assertion on the page.” People v. Valdez, supra. As noted above, the trial judge admitted the MySpace evidence for “the limited purpose” of corroborating the victim’s statement and providing a foundation for Castillo’s testimony. People v. Valdez, supra. The Court of Appeals also noted that Valdez’s hearsay argument failed because the MySpace evidence did not

consist of declarative assertions to be assessed as truthful or untruthful, but rather circumstantial evidence of Valdez's active gang involvement. For example, a reasonable jury would understand its purpose was not to determine whether Valdez and his `Krew’ were truly `Most Wanted’ by the `Ladiez’ in Orange County. Rather, as instructed, the jury was to consider the evidence in deciding what weight, if any, to put in Castillo's opinion testimony.

People v. Valdez, supra.

Finally, Valdez argued that the trial judge admitted the MySpace evidence in violation of California Evidence Code § 352. People v. Valdez, supra. Section 352 states that the trial judge has the discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice” to the defendant. The Court of Appeals disagreed:

Valdez insists admission of mere `gang braggadocio’ from his MySpace page was more prejudicial than probative, but the fact probative evidence reflects negatively on a defendant is not grounds for its exclusion. . . . Valdez suggests . . . more selective admission of the MySpace evidence would have been prudent, such as only a photograph identifying him by his `Yums’ moniker, `without the inflammatory gang-related writing.’ But he made no such suggestion below (People v. Partida, 122 P.3d 765 (California Supreme Court 2005) [trial court does not `err[ ] in failing to conduct an analysis it was not asked to conduct’]) and, as discussed, the gang evidence was relevant and probative. There was no error.

People v. Valdez, supra.

Wednesday, December 28, 2011

Divorce, Texting and Contempt

As I’ve noted in earlier posts, a judge has the power to hold one or more participants in a trial or hearing in contempt. As Wikipedia explains, contempt, or “contempt of court”, refers to a judicial order that declares someone has “disobeyed or been disrespectful of the court’s authority.”

The law of contempt encompasses two dichotomies: direct contempt versus indirect contempt; and criminal versus civil contempt. Wikipedia outlines the difference between direct and indirect contempt: Direct contempt occurs

the presence of the . . . judge . . . and may be dealt with summarily: the judge notifies the offending party that he or she has acted in a manner which disrupts the tribunal and prejudices the administration of justice. After giving the person the opportunity to respond, the judge may impose the sanction immediately.

As Wikipedia also notes, indirect contempt occurs

outside the immediate presence of the court and consists of disobedience of a court's prior order. . . . A person cited for indirect contempt is entitled to notice of the charge and an opportunity for hearing of the evidence of contempt and to present evidence in rebuttal.

The sanctions imposed on one held in contempt can be civil or criminal. As Wikipedia notes, since criminal contempt is a crime, “the contempt must be proven beyond a reasonable doubt”, and if it is proven beyond a reasonable doubt, “then punishment (such as a fine or . . . imprisonment) is imposed unconditionally.”

The sanction for civil contempt is coercive instead of punitive, i.e., is intended to coerce the contemnor into complying with the court’s order. As Wikipedia explains, the burden of proof in civil contempt is the preponderance of the evidence standard used in civil cases, and since the sanction is coercive, once the contemnor “complies with the court’s order, the sanction is lifted.”

And that brings us to Newcomer v. Newcomer, 2011 WL 6322985 (Ohio Court of Appeals 2011). Michael Newcomer and Megan L. Newcomer were “parties to a divorce action filed” in Lucas County, Ohio in September 2007. Newcomer v. Newcomer, supra. At some point thereafter, the judge who had the case entered “temporary court orders regarding child and spousal support, and payment for marital debts”; on December 31, 2009, Michael was held in contempt for failing “to pay certain debts of the parties”, a decision he later challenged. Newcomer v. Newcomer, supra.

In September of 2010, the judge issued an order that denied his challenges to the December, 2009 contempt citation and to an August 2, 2010 judgment also finding him in contempt and imposed a “30 day jail sentence,” which Michael served. Newcomer v. Newcomer, supra.

All that is simply preface to what came next. On December 8, 2010, “another hearing was held, relative to the divorce proceedings.” Newcomer v. Newcomer, supra. The opinion doesn’t specifically say this, but I gather this hearing was also concerned with marital assets and/or Michael’s ability to pay support and/or “marital debts.” Newcomer v. Newcomer, supra.

During that hearing, [Megan] called [Michael’s] girlfriend, Stephanie Emch (`Emch’) . . . to testify regarding her business, a teen nightclub. Emch had brought some business records, but it was determined during her testimony that other records were missing which were covered by the subpoena. At the court's instruction, Emch returned the next morning, bringing additional business documents and continued her testimony. It was discovered that one month's bank statement was missing, despite her efforts to comply with the subpoena.

Newcomer v. Newcomer, supra. The opinion notes that Emch testified “pursuant to a subpoena duces tecum,” which means she was subpoenaed to testify and to bring evidence with her. Newcomer v. Newcomer, supra. As Wikipedia notes, a subpoena ad testificandum orders someone to appear and testify (only), while a subpoena duces tecum orders someone to appear and produce evidence (and maybe testify, too).

At the December 9 hearing, Megan’s lawyer also questioned

Emch about alleged text messages between her and [Michael], in court the previous day. Emch acknowledged that she had texted [Michael], but that it had been during a break in the proceedings, when both attorneys were in chambers with the judge, not during her actual testimony.

Newcomer v. Newcomer, supra. “In response to this information, the judge stopped the

divorce hearing at approximately 9:30 a.m. The court then ordered [Michael] and Emch to appear at 1:00 p.m. for a contempt hearing regarding the text messaging, `visual communication’ during the hearing that morning, and `issues relative to the question of whether the subpoena has been honored.’

Emch was able to retain counsel for that hearing, who requested a continuance so that a defense could be prepared. Over counsel's vigorous objections, the court denied the request for continuance and immediately held a hearing as to the `direct contempt’ of appellant and Emch. The court also addressed Emch's failure to bring certain business documents with her to court, including the missing bank statement and `potentially, other documents.’

Newcomer v. Newcomer, supra. The contempt hearing would, therefore, address two issues: One was whether Emch should be held in contempt for not producing all of the records that were responsive to the subpoena duces tecum she had received; and the other was whether she should be held in contempt for texting with Michael during the break in the earlier proceeding.

At the contempt hearing, Emch testified, with regard to the first issue, that she had no

business background and was not an accountant or bookkeeper. She stated that her father, also not an accountant, kept the books for her business and had provided the records requested in the subpoena. After it was determined that the records were still incomplete, she had called her father that morning to bring whatever remaining records he had.

When she had attempted to tender those to [Megan’s] counsel prior to the contempt hearing, he refused them. Emch testified that, at 23 years old, she had never been subpoenaed before, had never testified or been in court before, and had thought she had complied with the subpoena when she brought the documents provided by her father. For her alleged failure to bring the requested documents, Emch was found in contempt, fined $200, and ordered to pay $250 to [Megan’s] attorney, for legal fees.

Newcomer v. Newcomer, supra.

With regard to the texting, the judge

immediately found Emch in `direct contempt,’ without permitting her to give any further testimony, except in mitigation. Emch then testified that, although she was still `on the stand,’ she had texted [Michael] during a break in the proceedings. She stated that she had not texted during her actual testimony, but did not realize that it might be inappropriate because it was during a break. Emch stated that she was nervous about testifying and feared saying anything that might harm [Michael].

For her `direct contempt’ for the alleged text messaging, Emch was sentenced to two days in the county jail, to begin immediately at the close of her testimony. Emch's attorney and the court had a lengthy, animated discussion regarding the propriety of the proceedings with no notice given, Emch's relative naiveté regarding legal proceedings, and the unintentional nature of her actions. The court denied a request for a stay and dismissed the attorney's objections, stating, `You may take it to the Court of Appeals.’

Newcomer v. Newcomer, supra.

The judge then also summarily found Michael to be in

direct contempt for engaging in texting with Emch. [Michael] also confirmed that the messaging was while Emch was on the stand, but the court was not in session, and the attorneys and judge were in chambers. [He] stated that no texting occurred during Emch's testimony and that he was also unaware that messaging was not permitted during the break. [Michael] was sentenced to serve five days in the county jail.

Newcomer v. Newcomer, supra.

Emch took the judge up on his suggestion and appealed to the Court of Appeals. In ruling on her appeal, the Court of Appeals noted that she was found guilty of

contempt for . . . texting to [Michael] Newcomer and failure to bring certain documents to court. Both contempt findings were criminal, since no purge conditions were given and the court's clear purpose was to punish Emch for perceived wrongdoing. . . . [T]he court abused its discretion in its finding of contempt for several reasons.

Newcomer v. Newcomer, supra.

The Court of Appeals found that neither action constituted direct contempt, which meant the judge “was required and failed to give proper notice of its intent to hold Emch in contempt or to grant a continuance so a defense could be prepared.” Newcomer v. Newcomer, supra. The court also found that the record in the case “fails to establish sufficient evidence that Emch’s actions constituted civil or criminal contempt, direct or otherwise.” Newcomer v. Newcomer, supra.

The Court of Appeals explained that during her testimony the first day of the hearing,

Emch, a young person, clearly established that she was wholly unfamiliar with the legal system and extremely nervous about testifying. The record shows the court's attitude towards her was overly stern from the outset, including multiple commands for her to `speak up’ or be held in contempt, despite her obvious discomfort and anxiety.

The record also indicates that the text messaging occurred the day before the court’s directive regarding any `communication, visual or otherwise’ between Newcomer and Emch while she was on the stand. The texting occurred during a break in the proceedings, while the judge and attorneys were in chambers, not during her testimony or when the court was in session. In addition, the substance of the texts was never . . . shown to have had any effect whatsoever on Emch's testimony.

Although we disapprove of texting during court proceedings, under the facts of this case, we conclude that [Emch’s] actions during the court recess did not constitute proof beyond a reasonable doubt of criminal direct contempt. The judge did not witness the action, it did not interrupt or disrupt the proceedings, and there was no proof that it threatened the administration of justice. Therefore, the trial court erred in finding Emch in contempt for the texting.

Newcomer v. Newcomer, supra.

The court also found that the judge erred in holding Emch in contempt for failing to produce all of the records. Newcomer v. Newcomer, supra. It noted that her testimony made it clear that she “knew nothing about accounting or how the books of her business . . . were kept”. Newcomer v. Newcomer, supra. It also noted that during the hearing Megan’s attorney commented that Emch clearly did not understand “`what’s going on in the business’”, after which the judge said “`that is readily apparent to the Court and to everyone sitting in this courtroom’”. Newcomer v. Newcomer, supra.

The Court of Appeals pointed out that when “the testimony and produced documents failed to reveal [Michael] was deriving any income from” Emch’s business, the judge “could have ended the search” for documents. Newcomer v. Newcomer, supra. “Instead, the court chose to elevate Emch’s business inexperience to the level of contempt” and, in so doing, “overreacted.” Newcomer v. Newcomer, supra. The Court of Appeals found that “[s]ince the court itself recognized that Emch knew nothing about the types of records requested, the record failed to support a finding of contempt, either by clear and convincing evidence or beyond a reasonable doubt.” Newcomer v. Newcomer, supra. It therefore reversed the contempt citations against Emch. Newcomer v. Newcomer, supra.

Michael also appealed the divorce court judge’s holding him in contempt for his part in the texting and sentencing him to five days in the county jail. Newcomer v. Newcomer, supra. The Court of Appeals rather cursorily disposed of his arguments on appeal:

[Michael] Newcomer argues that the court's finding of direct contempt for texting during the break was not supported by sufficient evidence. . . . [He also] asserts the trial court applied the wrong standard. We agree.

For the reasons discussed in Emch's appeal of the texting issue, we conclude that no direct contempt was committed, and the trial court erred in finding [Michael] guilty by `clear and convincing’ evidence. Since the sole purpose of the jail sentence was to punish [him], the applicable standard for criminal contempt should have been used, i.e., beyond a reasonable doubt. The record does not establish that [Michael’s] actions constituted contempt.

Newcomer v. Newcomer, supra.

Monday, December 26, 2011

Exigencies, Manufactured Exigencies and Computers

As this site notes, (i) the 4th Amendment creates a right to be free from “unreasonable” searches and seizures and (ii) creates a default preference for warrants, i.e., prefers that searches and seizures be conducted pursuant to a search (and seizure) warrant. And as I’ve noted in earlier posts, searches and seizures are “reasonable” when they are conducted without a search warrant if they were conducted pursuant to a recognized exception to the warrant requirement.

And, as I’ve explained in other posts, one of the exceptions to the 4th Amendment’s warrant requirement that can legitimately justify a warrantless search and seizure is the exigent circumstances exception. In Minnesota v. Olson, 495 U.S. 91 (1990), the Supreme Court held that an entry is justified under the exigent circumstances exception if it was made in “hot pursuit of a fleeing felon,” to prevent the “imminent destruction of evidence,” prevent a suspect's escape” or to respond to a “risk of danger to the police” or to others who are inside or outside the place to be entered. The U.S. Supreme Court agreed with the Minnesota Supreme Court that “in the absence of hot pursuit, there must be at least probable cause to believe that one or more of the other” exigent circumstance factors “were present”. Minnesota v. Olson, supra.

And that brings us to State v. Maxwell, __ P.3d __, 2011 WL 6365150 (Utah Supreme Court 2011). After being charged with “ten counts of sexual exploitation of a minor”, David B. Maxwell moved to suppress the evidence found on his computer that provided the factual basis for the charges. State v. Maxwell, supra. To understand how the issue of exigent circumstances arose in this case, it is necessary to understand the facts that led to the evidence that resulted in Maxwell being prosecuted.

The investigation of Maxwell arose “from an investigation by the Utah Attorney General’s Task Force on Internet Crimes Against Children (ICAC).” State v. Maxwell, supra. In January of 2008, ICAC agents “discovered that known child pornography was being downloaded to a particular IP address”, which was registered to “David Maxwell at his apartment in Holladay Utah.” State v. Maxwell, supra. On March 19, 2008, ICAC agents went to his apartment, knocked on Maxwell’s door and when he answered, confirmed his identity and asked if they could come in and speak with him. Maxwell let them in and

[o]nce inside, [they] confirmed that Maxwell lived alone, received internet service . . . and used file-sharing software. [They said] they had learned that `inappropriate things’ had been downloaded to his IP address. . . . [and asked] about his pornography viewing habits.

After Maxwell [said] he occasionally viewed pornography . . . , an agent asked if he . . . view[ed] child pornography. Maxwell [said] six to ten pornographic images of young teenage females had `come up’ on his computer, but he deleted them. He denied ever actively seeking child pornography. . . .

After speaking with Maxwell for approximately twelve minutes, one [agent said,]`We're going to need to take your computer. OK? You can consent to a search. Would you be willing to consent to a search so we can check that to make sure that there isn't anything on there?’ Maxwell responded with concern that he was `in trouble,’ stating he did not know what he should do and did not want child pornography on his computer. He then said, `The way I'm feeling right now is maybe I ought to just destroy my computer, if you're saying it's on there, it's going to be on there.’

The agent [said] they were going to take the computer based on the evidence they collected and on Maxwell's statements. Before the agent reached the room where the computer was, Maxwell asked if they had a search warrant. The agent [said] he did not, but . . . was going to seize the computer `based on probable cause.’ The agent [said] absent Maxwell's consent, they would not search or otherwise check the contents of the computer until they obtained a warrant. The agent then seized the computer and gave Maxwell a property receipt.

State v. Maxwell, supra.

The next day, an ICAC agent began the process of obtaining a warrant to search the computer. State v. Maxwell, supra. The warrant was issued a week later, agents searched the computer and found “seven video files and twenty-seven still images of child pornography”, which led to the charges noted above. State v. Maxwell, supra. As I also noted, Maxwell moved to suppress the evidence and, after holding a hearing on the motion, the trial court judge granted the motion, finding that

(1) there was no exigent circumstance because the State had not presented evidence proving that Maxwell could have permanently destroyed his computer; (2) the agents themselves created any exigency `at the outset when [they] informed Maxwell that they were aware that inappropriate material had been downloaded to his IP address and that they were with the Internet Crimes Against Children Task Force’; and (3) seizure of the computer was unreasonable because the agents could have ensured the integrity of the computer by less intrusive means.

State v. Maxwell, supra. Prosecutors appealed the judge’s ruling, arguing that none of the three rationales outlined above required suppression. State v. Maxwell, supra.

In ruling on the arguments made by both sides, the Supreme Court began with the trial judge’s finding that there “was no exigent circumstance.” State v. Maxwell, supra. The trial judge found that Maxwell’s saying “`maybe I ought to just destroy my computer’” was

insufficient to create a reasonable belief that [he] would successfully destroy the computer during the time it took to obtain a search warrant. The [judge] concluded that the State had failed to provide specific evidence indicating `how difficult it would have been for Maxwell to permanently destroy the evidence and how difficult it would be to recover images where a person has deleted them or attempted to destroy them.’

State v. Maxwell, supra.

The Supreme Court found that the trial judge’s holding “mischaracterizes the State’s evidentiary burden” in showing exigent circumstances. State v. Maxwell, supra. It explained that the State’s burden was simply to “show that an officer confronted with Maxwell’s statement “might reasonably have believed” he would “destroy the evidence on his computer.” State v. Maxwell, supra.

It is easy enough to imagine practical, everyday methods of damaging a computer in a way that would likely render the data on its hard drive irretrievable. Presumably a blowtorch or a power drill could do the trick. Although a computer expert could have provided the court with scientific information regarding hard-drive destruction techniques, it was not unreasonable for ICAC agents to believe Maxwell could destroy his hard drive. . . .

[He] not only had an obvious incentive to destroy his computer; he explicitly threatened to do so. Thus, the State has amply demonstrated that ICAC officers could have reasonably believed a warrantless seizure was needed to prevent Maxwell from destroying the evidence contained on his computer.

State v. Maxwell, supra.

The trial judge’s second basis for granting Maxwell’s motion to suppress, and his second argument on appeal, was based on a 2011 U.S. Supreme Court decision: Kentucky v. King, 131 S.Ct. 1849 (2011). The King Court addressed an issue it had not considered before, but that had been addressed by a number of lower courts, i.e., whether police can rely on the exigent circumstances exception if they created the exigency. As the King Court noted,

[o]ver the years, lower courts have developed an exception to the exigent circumstances rule, the so-called `police-created exigency’ doctrine. Under this doctrine, police may not rely on the need to prevent destruction of evidence when that exigency was `created’ or `manufactured’ by the conduct of the police.

Kentucky v. King, supra. The lower courts, however, had not agreed on when law enforcement conduct results in a “manufactured exigency” that defeats the application of the exigent circumstances exception. State v. Maxwell, supra. In an opinion issued after the judge granted Maxwell’s motion to suppress, the King Court resolved this issue. State v. Maxwell, supra. The King Court held that warrantless action intended to prevent

`the destruction of evidence is reasonable and thus allowed’ so long as `the police did not create the exigency by engaging or threatening to engage in conduct that violates the 4th Amendment.’ [Kentucky v. King, supra.] The Court declined. . . to examine officer motive for . . . bad faith, noting that it has `"repeatedly rejected’ a subjective approach, asking only whether ‘the circumstances, viewed objectively, objectively, justify the action."' [Kentucky v. King, supra (quoting Brigham City v. Stuart, 547 U.W. 398 (2006).] . . .

It . . . refused to examine the existence of probable cause prior to police action, reiterating that `"officers are under no constitutional duty to call a halt to criminal investigation the moment they have the minimum evidence to establish probable cause."' [Kentucky v. King, supra (quoting Hoffa v. U.S., 385 U.S. 293 (1966).] Finally, the Court refused to second-guess police investigative tactics, explaining that such an approach `fails to provide clear guidance for . . . officers and authorizes courts to make judgments on matters that are the province of those who are responsible for . . . law enforcement agencies.’

State v. Maxwell, supra.

The Utah Supreme Court explained that in granting Maxwell’s motion to suppress, the trial judge “applied a standard expressly repudiated in King,” when it found that “if there was an exigency,” the exigency was created when the agents told Maxwell they knew “`inappropriate material had been downloaded to his IP address” and they were with the ICAC Task Force. State v. Maxwell, supra. The court pointed out that since the agents’ statements “do not approach a threatened violation of Maxwell’s” 4th Amendment rights, “they do not satisfy the test established in King and are not a viable basis for affirming” the trial judge’s ruling granting the motion to suppress. State v. Maxwell, supra.

The Utah court also rejected Maxwell’s alternative argument, i.e., that the agents manufactured an exigency when one said “`We’re going to need to take your computer.’” State v. Maxwell, supra. Maxwell argued that this was “a threatened violation” of his 4th Amendment rights, which satisfied the test the U.S. Supreme Court created in King and, therefore, justified upholding the trial judge’s granting the motion to suppress. State v. Maxwell, supra.

The Utah Supreme Court disagreed:

We see no basis for an inference that the agent was threatening to violate the 4th Amendment. His exact words were: We're going to need to take your computer. OK? You can consent to a search. Would you be willing to consent to a search so we can check that to make sure that there isn't anything on there?’

Maxwell asks us to infer that the asserted `need to take your computer’ implied an intent to do so in contravention of the 4th Amendment -- regardless of any consent and whether the agents secured a warrant or discovered some other reasonable (exigent) basis for doing so. Such an inference, however, is not justified under the circumstances.

State v. Maxwell, supra. The court also found that the agent’s comment “is reasonably understood to envision a seizure of the computer upon consent”, which would comply with the requirements of the 4th Amendment. State v. Maxwell, supra.

Finally, the Utah court rejected Maxwell’s argument that the agents “should have used `less intrusive’ means to achieve their law enforcement objectives.” State v. Maxwell, supra. More precisely, Maxwell argued that because the agents seized the computer rather than securing the premises,” they failed to reconcile “`their law enforcement needs with the demands of [his] personal privacy.’” State v. Maxwell, supra (quoting Illinois v. McArthur, 531 U.S. 326 (2001)). The trial judge agreed with Maxwell, finding that even

assuming a valid exigency, the seizure was still unjustified because the agents could have responded with less intrusive action by stationing agents in Maxwell’s home to ensure the security of the evidence while others obtained a warrant. We disagree and hold that the officers’ warrantless seizure was a reasonable response to Maxwell’s claim that he thought he should destroy his computer.

State v. Maxwell, supra.

The court found that by seizing the computer instead of remaining on site, the agents

avoided subjecting Maxwell to an extended intrusion into his home. Had [they] elected to secure the premises, they would have had to remain in [his] home or seize Maxwell and remove him from his home. Those intrusions . . . would be significantly greater than mere seizure of [his] computer.

By impounding the computer . . . the agents reconciled their law enforcement needs while avoiding a significant intrusion of Maxwell's person and privacy. Their actions were accordingly reasonable, and we reverse the [trial judge’s] contrary conclusion.

State v. Maxwell, supra.

The court therefore reversed the trial judge’s ruling and remanded the case “for further proceedings consistent with this opinion.” State v. Maxwell, supra. In other words, the prosecution of Maxwell has been resuscitated.