Monday, March 21, 2011

No 4th Amendment Expectation of Privacy in Thumb Drive

I’ve done a few posts dealing with cases in which defendants claimed that law enforcement accessed the contents of a thumb drive in violation of the 4th Amendment. This post is about a case that’s similar in some respects, but presents what I think are some interesting issues.

The case is Miller v. State, __ S.W.3d __, 2011 WL 832126 (Texas Court of Appeals 2011), and it involves Orval Roger Miller Jr.’s appealing the denial of a motion to suppress he filed after being charged with possessing child pornography in violation of Texas law. This, according to the Court of Appeals opinion, is how the case began:

[O]n May 4, 2007, Eric Edwards, . . . an officer with the Elgin Police Department, entered the department's patrol room to print out a copy of his daily activity report from his personal thumb drive. The patrol room, [according to Edwards,] was accessible to `all the patrol officers, all Elgin PD employees,’ dispatch, law enforcement officers from other counties, the media, and animal-control personnel.

The patrol room had a computer . . . `at the front desk entering the patrol room.’ . . . [W]hen he sat down at this computer to print his report, he noticed `another thumb drive in the computer.’ Edwards did not know to whom the drive belonged: `I didn't notice any names on it or markings. I [had] never seen it before.’ In an attempt to identify the owner of the drive so he could return it, Edwards logged onto the computer and opened the drive. After doing so, Edwards saw several folders on the drive, including one that apparently contained pictures. Upon opening this folder, Edwards found a picture of an unclothed adult female. Considering the picture to be pornographic and offensive, Edwards `exited out of the thumb drive, pulled it out of the computer, and secured it for Lieutenant Corbett,’ his supervisor. Corbett gave the drive to Assistant Police Chief Phillip Taylor, who searched the drive and discovered what he believed to be child pornography. Taylor then turned the drive over to the Office of the Attorney General (OAG), and an investigation commenced.

Miller v. State, supra.

The OAG investigation was led by Sergeant Wesley Hensley; the Elgin Police Department told Hensley they “suspect[ed] the drive belonged to Miller, then an officer with the department.” Miller v. State, supra. “After performing an initial `preview’ examination of the thumb drive,” Hensley “and his team” decided to speak with Miller to confirm whether it belonged to him. Miller v. State, supra. At the hearing on Miller’s motion to suppress evidence found on the thumb drive, Hensley testified that the investigators obtained

consent from Miller to perform a `full forensics search’ of the thumb drive and permission to go to [his] house and search his laptop and desktop computers. Hensley [said] Miller `was told . . . he was not under arrest, [could] leave at any time [and] did not have to talk to us. . . .’ Miller's computers were subsequently searched, and child pornography was found on the thumb drive and the laptop.

During [this interview,] Hensley learned. . . . Miller knew how to transfer files to a thumb drive, create folders on the drive, and burn files from the drive onto a CD. Miller had a Yahoo! account . . . and used his account to check email and chat with his wife and brother. When asked if it appeared Miller `had a pretty solid understanding of how computers work and utilized them at an advanced level,` Hensley testified, `Yes, ma‘am.’ Hensley recounted how Miller told him he left his thumb drive at the police department on three prior occasions, on those occasions the drive would show up in his inbox within a day or two, and he had agreed to let Corbett place the drive in his inbox if it was ever found.

Miller v. State, supra.

Miller also testified about his interview with Hensley and the other investigators. He admitted that the

thumb drive belonged to him and he accidentally left it in the patrol room on the day Edwards had found it. Miller claimed he had an expectation of privacy in the thumb drive. According to Miller, he used the thumb drive to store his police activity reports and, like other officers, would sometimes take the drive into the patrol room to print out his reports from the computer. Miller testified that he considered the patrol room where he had left the drive to be a private area because `the way I understood it nobody was allowed to come back there unless they were escorted by a police officer.’

Miller also considered the thumb drive to be his private possession and testified that he did not share it with anyone else or give anyone permission to look through it. Comparing his thumb drive to his wallet, Miller believed that just because he had allowed other officers to return the thumb drive to his inbox if it was found did not mean that he had given other officers permission to search the drive.

Miller v. State, supra. When he was cross-examined at the suppression hearing, Miller acknowledged that

his thumb drive did not have identifying markings on it, such as his name, address, phone number, or badge number. [He] claimed . . . the initials of a former employer, the Austin Community College Police Department (`ACCPD’) were written on [it] in `faded red ink.’ Miller believed that because of this marking, employees at the department who found the drive on prior occasions might have been able to surmise [it] belonged to him. [He] admitted this marking did not necessarily identify the drive as his. Miller testified that Corbett had also worked at ACC, and agreed . . . `ACC could stand for a lot of things.’ [He] also agreed . . . that `all the other officers were using thumb drives.’ [And he] acknowledged that he did not actually know how the drive had been identified as belonging to him on the prior occasions he left it at the department and that, in fact, it could have been opened on those other occasions. Miller also acknowledged that the patrol room . . . was accessible to all . . . officers, including those from other counties, and by . . . citizens who came to the department to file a complaint, as long as they were escorted into the room by police officers. Miller acknowledged that he did not keep his thumb drive in a locked case and that it was not password protected.

Miller v. State, supra.

At the end of the suppression hearing, the trial judge denied Miller’s motion to suppress, after which he pled guilty to the charges against, him, reserving his right to appeal the denial of his motion to suppress. Miller v. State, supra. On appeal, Miller argued that the motion to suppress should have been granted because the evidence on the thumb drive was obtained in violation of his 4th Amendment right to be free from unreasonable searches and seizures. Miller v. State, supra. To be more precise, Miller argued that he “had a reasonable expectation of privacy in the computer thumb drive, and law enforcement's warrantless searches of the contents of the thumb drive were per se unreasonable.’” Miller v. State, supra.

For law enforcement conduct to violate the 4th Amendment, officers must have engaged in a “search” or a “seizure” without having first obtained a search (and seizure) warrant or relying on an applicable exception to the warrant requirement. Here, Miller was arguing that initial examination of the thumb drive was a “search” that was authorized neither by a warrant nor by an exception to the warrant requirement and therefore violated the 4th Amendment. Miller v. State, supra.

As I’ve explained in earlier posts, the test used to determine if law enforcement conduct constituted a 4th Amendment search is the test the Supreme Court articulated in Katz v. U.S., 389 U.S. 347 (1967). The test used to implement the Katz holding comes from a separate, concurring opinion by Justice Harlan, who wrote that (i) that a search violates a reasonable expectation of privacy and (ii) that a reasonable expectation of privacy exists when someone subjectively believes a place or thing is private and society agrees that the person’s subjective expectation is objectively reasonable.

Therefore, to establish that the initial examinations of the thumb drives constituted searches under the 4th Amendment, Miller had to persuade the court(s) that he had a reasonable expectation of privacy in the drive, i.e., he believed it was private and society would accept that belief as objectively reasonable. The trial judge apparently didn't explain why she wasn’t convinced Miller had such an expectation, but the Court of Appeals explained why it didn’t buy Miller’s arguments. We’ll start with the first element:

[O]n three prior occasions, [Miller] left his thumb drive in the patrol room, an area accessible to other . . . officers . . . and citizens accompanied by officers. Although Miller . . . considered the thumb drive to be his `private possession,’ . . . other than the initials `ACCPD,’ [it] did not contain external identifying marks such as his name, badge number, address, or telephone number. . . . [By] his own admission, Miller did nothing to prevent others from accessing the drive, such as protecting it with a password, encrypting the data, or placing [it] in a locked case. . . . [When] Edwards . . . found the drive in the patrol room, it was `in’ the computer -- a computer which was the property of the Elgin Police Department.

The district court could have reasonably inferred that Miller, by giving Corbett permission to return the drive to his box, expected his co-workers to ascertain whether [it] belonged to him. Because of the lack of identifying marks on the drive, the district court could have reasonably inferred Miller was aware that his co-workers might attempt to identify to whom the drive belonged by opening it.

Miller v. State, supra. The Court of Appeals also explained that even if the trial judge – the district court judge – had found that Miller exhibited a subjective expectation of privacy in the thumb drive, the lower court would not have abused its discretion in finding that “such an expectation was not objectively reasonable.” Miller v. State, supra. The Court of Appeals explained that in deciding whether an expectation of privacy is objectively reasonable, courts “may consider” the following factors:

(1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy. . . . .

Miller v. State, supra. It then found that, overall, the factors did not support Miller’s arguments:

[T]he thumb drive was his `private possession’. . . . [so] Miller had a possessory interest in [it]. However, other factors weigh against a finding of objective reasonableness. Although Miller . . . did not share his thumb drive with others, he . . . had given Corbett permission to return [it] to his box if it was found. Miller had left the drive at work on multiple occasions, and [it] was returned to him on those occasions. The district court could have reasonably inferred that to return the drive . . ., others must have taken temporary possession of [it] and possibly accessed it to ascertain whether it belonged to Miller. Thus, Miller did not exercise complete dominion or control over the drive, at least during the times he misplaced it. . . . Miller did not take precautions to maintain his expectation of privacy. [He] did not mark the drive with his name, badge number, address, or telephone number.

And, despite his knowledge of computers, Miller did not protect his drive with a password or secure [it] in a locked case. Instead, [he] left [it[ connected to the patrol-room computer where it was easily accessible to others. Furthermore, [he] . . . used [it] for storing police activity reports, which the district court could have reasonably inferred was not a private use. Finally, Miller's claim of privacy in a computer device that stores work-related data is not consistent with historical notions of privacy.

So, not surprisingly, Miller lost. The Court of Appeals affirmed his conviction, and his sentence of three years’ imprisonment, to be followed by ten years of community supervision following his imprisonment. Miller v. State, supra.

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