Wednesday, October 31, 2012

Probable Cause, Materiality and Unsecured Wireless Networks

After being charged with “knowing possession of child pornography in violation of 18 U.S. Code § 2252(a)(4)(B)”, Derek Thomas filed a motion to suppress “all evidence seized during a search of his residence on March 2, 2012”.  U.S. v. Thomas, 2012 WL 4892850 (U.S.District Court for the District of Vermont 2012). 

In moving to suppress, Thomas argued that “the search warrant was invalid because of material omissions from the supporting affidavit”.  U.S. v. Thomas, supra.  As I have noted in earlier posts, when a police officer or federal agents wants to obtain a warrant to search a place or thing, he/she fills out an application for the warrant and submits an affidavit, the purpose of which is to establish that there is probable cause to issue the warrant.  Federal Rule of Criminal Procedure 41(d), which you can find here, outlines the process.  And you can find an application for a federal search warrant and affidavit in support here.

To understand the basis of Thomas’ motion to suppress, it is necessary to understand what led to the issuance of the search warrant in question.  The opinion explains that on

December 21, 2011, officers with the South Burlington Police Department discovered an Internet Protocol (`IP’) address that had previously offered to share files containing child pornography on the Internet through peer-to-peer file sharing (the `IP Address’). The IP Address was assigned to Comcast.

A Special Agent with Homeland Security Investigations (`HIS’) served a subpoena on Comcast requesting identification of the subscriber to the IP Address. Comcast responded that the IP Address was registered to Diane Jarvis, who lived at 73 Granite Creek Road, Colchester, Vermont, 05446 (the `Residence’).

U.S. v. Thomas, supra.

The opinion then explains that after he received this information, HSI Special Agent

According to Fiore, the purpose of his surveillance was to confirm that Jarvis lived at the Residence, to verify for officer safely whether any other individuals lived there, and to ascertain whether there were children living at the Residence.

During the surveillance, Fiore used two different electronic devices for identifying wireless networks (each a `Portable Wireless Detector’). The Portable Wireless Detectors purport to identify wireless networks in a particular area and indicate whether the wireless networks are password protected. 

Although Fiore had not received formal training in the use of the Portable Wireless Detectors, HSI Special Agent McCullough, who works in computer forensics, advised Fiore regarding their proper use and how to decode the information they displayed.

U.S. v. Thomas, supra.

On February 1, 2012, Fiore used one of the Portable Wireless Detectors in the street

outside the condominium complex in which the Residence is located. . . . [T]he Portable Wireless Detector identified fifteen active wireless networks. Five . . . were unsecure. None of the wireless networks . . . were clearly connected with the Residence. On February 7, Fiore utilized the second Portable Wireless Detector in the driveway of the Residence. [It] identified seven wireless networks, one of which was unsecure.

During this second surveillance, Fiore observed a wireless network labeled `Jarvis,’ which the Portable Wireless Detector identified as password protected. Fiore did not seek to verify with the users of the wireless networks in the condominium complex whether the networks they were using were secure because he was concerned about maintaining the secrecy of his investigation.

U.S. v. Thomas, supra. (The opinion notes that Fiore “is aware of instances where police have searched a house, based on activity from an IP address associated with the house, and have found no evidence because the wireless network in the house was unsecure.” U.S. v. Thomas, supra.)  

Other “law enforcement officers” carried out surveillance of the Residence on February 8, “and observed wireless networks in the area using a device in their vehicle.” U.S. v. Thomas, supra. It “indicated there were twenty-nine wireless networks, eight of which were unsecure.”  U.S. v. Thomas, supra.  Fiore then drafted the search warrant

application and supporting Affidavit to search the Residence for electronic and other communications pertaining to child pornography. The Affidavit does not include information regarding the existence of secure or unsecure wireless networks. 

However, it states that it `does not contain every fact known to [Fiore] with respect to this investigation. Rather it contains those facts that [Fiore] believe[d] to be necessary to establish probable cause for issuance of a search warrant for the [Residence].’ . . .

[At the hearing on the motion to suppress,] Fiore testified that he did not believe it was necessary to include in the Affidavit information regarding the presence of unsecure wireless networks in the area surrounding the Residence or that the `Jarvis’ network was secure to establish probable cause. 

He noted that the U.S. Attorney's office reviewed and approved the Affidavit for probable cause prior to its submission to the Magistrate Judge. On February 23, 2012, United States Magistrate Judge John Conroy issued a search warrant for the Residence.

U.S. v. Thomas, supra. 

In his motion, Thomas argued that the evidence should be suppressed because Fiore

deliberately or with reckless disregard for the truth omitted from the Affidavit information regarding the existence of secure and unsecure wireless networks in the area surrounding the Residence. 

He [claims] the omitted information was material because, had it been included in the Affidavit, Magistrate Judge Conroy would not have found probable cause to search the Residence. The Government contends that probable cause existed with or without the omitted information and there is no evidence of any deliberate or reckless omission.

U.S. v. Thomas, supra. 

(As I have explained in earlier posts, in Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that if a defendant shows the government deliberately or recklessly includes false information in a search warrant affidavit, the court must void the warrant and the results of the search if the information was necessary to finding probable cause.  And as I have noted in other posts, lower courts have applied this same standard when a defendant claims the government omitted information that would have a similar effect, which seems to be what Thomas is doing.)

The court first considered whether the omitted information was “material,” i.e., was necessary to the magistrate’s finding probable cause.  U.S. v. Thomas, supra.  The prosecution argued that it was immaterial for two reasons, the first of which was that

probable cause to search the Residence would have existed even if the IP Address was associated with an unsecure wireless network. As it points out, courts have consistently concluded that there is probable cause to search a residence when an IP address associated with child pornography can be traced to the residence. . . . Here, the Affidavit clearly establishes that nexus.

Moreover, courts have generally concluded that the mere possibility that an IP address may be associated with an unsecure wireless network does not affect the probable cause determination

Although the presence of unsecure wireless networks gives rise to the possibility that a person outside of the Residence may have accessed the network to transmit messages regarding child pornography, it remains probable that the transmission originated from within the Residence and that evidence of child pornography would be found there. . .

U.S. v. Thomas, supra. 

The government’s other argument was that including the omitted information in the

Affidavit would have strengthened, not weakened, the argument for probable cause. Although [Thomas] argues that the known presence of unsecure wireless networks means that someone other than an occupant of the Residence could have used the IP Address, he does not contend that this could occur if the IP Address was associated with a secure wireless network.

The information omitted from the Affidavit included evidence that the `Jarvis’ wireless network was a secure wireless network. Accordingly, some of the information [Thomas] argues was deliberately or recklessly omitted from the Affidavit made it more likely that child pornography would be found at the Residence.

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

The court therefore held that “[b]ecause the omitted information would not have materially affected the probable cause determination and because probable cause existed even in its absence, [Thomas’] challenge to the validity of the search warrant for lack of probable cause must fail.”  U.S. v. Thomas, supra. 

The judge then took up the issue – the Franks issue noted above – as to whether the information was omitted either deliberately or recklessly.  U.S. v. Thomas, supra.  She explained that

[h]aving concluded that the omitted evidence was not material to the probable cause determination, the court need not consider whether it was omitted deliberately or with reckless disregard for the truth. The court nonetheless observes that there is no evidence before the court that Fiore concealed any evidence from the magistrate judge.

Indeed, as noted, a key part of the information omitted -- that the `Jarvis’ wireless network was secure -- would have strengthened the nexus between the IP Address and the Residence, making it more likely that child pornography would be found in Ms. Jarvis's home. The presence of other unsecure wireless networks in the area in no way alters this conclusion.

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

The judge therefore denied Thomas’ motion to suppress.  U.S. v. Thomas, supra.

Monday, October 29, 2012

The Dog, the Blog and “Civil Stalking”

As I have noted in prior posts, and as Wikipedia explains, cyberstalking (like stalking) is a criminal offense.  This post is about a case in which one neighbor (Amie Brown) complained about being stalked by another (Pamela A. Slone).

The case is Slone v. Brown, ___ P.3d ___, 2012 WL 5258952 (Utah Court of Appeals 2012), and, according to the opinion, this is how it began:

The Brown and Slone residences are separated by a pasture in which Slone sometimes kept her family's dog. On March 19, 2011, the dog escaped from confinement and Brown believed it was acting aggressively toward her children. The incident resulted in a confrontation between Brown and Slone, as well as subsequent events that Slone considered threatening and harassing.

On April 1, 2011, Slone filed a Request for a Civil Stalking Injunction against Brown. . . . The Request states that Brown `came over to [Slone's] house . . ., chased [the] dog with mace and yelled at [Slone] saying she was going to shoot [the] dog and string him up in her garage.’ It also alleges that Brown threatened to `kick [Slone's] ass,’ and that Brown `later approached [Slone's] house with a loaded shotgun.’

In addition, the Request claims Brown made a hand signal directed at Slone that mimicked pointing a gun at her and pulling the trigger. Finally, Slone indicates that Brown engaged in `harassing [Slone's] landlords’ for the purpose of getting rid of the dog and having Slone evicted.

Slone v. Brown, supra.  (A footnote says that “[a]s a result of Brown's threats to sue Slone's landlords, [they] required Slone to give up the dog.”  Slone v. Brown, supra.)

We will come back to the facts later.  First, I need to explain what Slone needed to do to obtain the injunction she sought. Slone v. Brown, supra.  The Court of Appeals explains that to “obtain a civil stalking injunction, the petitioner must establish the elements necessary to meet the definition of stalking provided in the criminal code. See Utah Code § 77–3a–101(1).” Slone v. Brown, supra.  It also noted that the Utah legislature has defined criminal stalking as follows:

A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person: (a) to fear for the person's own safety or the safety of a third person; or (b) to suffer other emotional distress.

Slone v. Brown, supra (quoting Utah Code § 76–5–106.5(2)).

Another section of § 76-5-106.5 defines “course of conduct” as

two or more acts directed at or toward a specific person, including:

(i) acts in which the actor . . . threatens, or communicates to or about a person, or interferes with a person's property: (A) directly, [or] indirectly . . .; and (B) by any action, method, device, or means; or

(ii) when the actor engages in any of the following acts . . . (C) . . . contacts a person's neighbors . . .; (D) sends material by any means for the purpose of . . . disseminating information about . . . the person to a . . .  friend, or associate of the person; . . . or (F) uses a computer, the Internet, text messaging, or any other electronic means to commit an act that is a part of the course of conduct.

After Slone filed her request for a civil stalking injunction, the trial judge granted a temporary injunction against Brown.  Slone v. Brown, supra.  Brown then asked for a hearing on the matter, which the judge held.  Slone v. Brown, supra.  At the hearing, both sides presented further evidence, after which the judge ruled that Slone had met

her burden of establishing that she was entitled to a three-year civil stalking injunction against Brown. The [judge] concluded that there were three incidents of stalking directed at Slone: (1) the threats against Slone made by Brown on March 19, 2011; (2) Brown's internet postings from March 19–23, 2011 (the blog), which included `threats which if reviewed and perceived by a reasonable person could reasonably cause emotional distress or cause an individual to be fearful of [her] personal safety or the safety of an immediate family member, spouse, sibling or child’; and (3) Brown's contacts with Slone's landlords, which the [judge] ruled were directed at Slone and caused her `reasonably to be concerned about the personal safety of herself or members of her family.’

Although the [judge] also found Brown had used a weapon, it determined that the weapon was directed at the dog and not at Slone. As a result, [he] declined to find that Brown had `used or intended to’ use a weapon against Slone. Brown filed a timely appeal.

Slone v. Brown, supra.

Brown appealed.  Slone v. Brown, supra.  On appeal, she

concede[d] that her confrontation with Slone on March 19, 2011 constitutes one instance of a course of conduct under the statutes. She challenges the trial court's consideration of either the blog or her communications with Slone's landlords as a second qualifying incident.

Slone v. Brown, supra.

Brown’s first argument in support of her appeal was that her blog entries and the

actions described in them were not `directed at’ Slone. In particular, she relies on the fact that Slone did not learn until reading the blog a week later that after the initial incident, Brown had armed herself with a loaded shotgun and started toward Slone's house intending to shoot the dog.  However, Brown admits that she assumed Slone's landlords alerted Slone to the blog entry titled `Kill Time,’ thereby strongly suggesting that Brown knew that the landlords were familiar with the site.

It is also apparent that other neighbors were aware of the blog because Slone indicated she learned of it from `some other neighbors.’ Thus, Brown's use of the internet can constitute a course of conduct under the statute, even though not sent to Slone. See UtahCode § 76–5–106.5(1)(b)(ii)(C) (defining course of conduct to include `contact[ing] a person's neighbors’); § 76–5–106.5(1)(b)(ii)(D) (defining course of conduct to include `send[ing] material by any means . . . for the purpose of . . . disseminating information about . . . the person to a . . . friend, or associate of the person’).

Nor are we persuaded by Brown's argument that the comments were not directed at Slone because she did not use Slone's name in the postings. Notwithstanding Brown's references to Slone in her blog as `the lady,’ the details of the encounter were specific enough that Slone's neighbors identified her as the target of the threats and directed her to the site.

Under these circumstances, we agree with the trial court that the comments in the blog were directed at Slone.

Slone v. Brown, supra. (A footnote in the opinion says Brown conceded that her blog entry “accurately reflects that she grabbed a loaded shotgun and left her house with the intent to return to Slone's house and shoot the dog”, but “her husband intervened and persuaded her to desist.”  Slone v. Brown, supra.)

Brown also claimed she “did not have `the requisite intent to engage in a course of conduct that . . . she knows or should know would cause a reasonable person to fear or suffer emotional distress.’” Slone v. Brown, supra (quoting Bott v. Osburn, 257 P.3d 1022 (Utah Court of Appeals 2011)).  The Court of Appeals did not agree, either with her interpretation of the intent required to commit the crime or her having displayed such intent.  As to the first issue, it explained that under the stalking statute,

`it is not a defense that the actor ... did not intend to cause the victim fear or other emotional distress.’ Utah Code § 76–5–106.5(4). Rather, if the conduct `would cause a reasonable person . . . to fear for that person's own safety or the safety of a third person; or . . . to suffer other emotional distress,’ it can constitute part of a course of conduct.  Utah Code § 76–5–106.5(2). In reviewing the court's determination, we consider the distress or fear caused from the perspective of a reasonable person under all of the circumstances. . . .

Slone v. Brown, supra.

The Court of Appeals also found that the evidence was sufficient to support the trial judge’s entry of the civil stalking injunction:

Brown admits that she `definitely yelled at [Slone] at the top of [her] lungs,’ threatened to give Slone an `ass kicking,’ and also threatened to kill the dog. She further acknowledges that she made calls to Slone's landlords complaining about the dog and threatening to sue.

Although Brown denied in court that she had pretended to shoot Slone with her finger while the police were present, she admitted posting an entry in her blog that states, `I sort of threatened [Slone] in front of the Sheriff which wasn't the best either.’ With that history, Slone read entries in Brown's blog that include the following statements, `I grabbed my 20 gauge, loaded it and put three shells in my pocket for good luck’; `I had a 20 gauge with one in the chamber, I had sprayed mace twice, and I was going to kill the dog, I had threatened the dog owner with physical bodily harm, was still possibly . . . going to kick the owner's ass’; `I am not afraid to fight in the middle of the street with witnesses, or to fight dirty in secret’; `[My husband] said I would be in jail right now based on the events and the fact that I openly threatened and had a shotgun, loaded and with one in the chamber, with the safety off’; and `I promised [my husband] I would stay out of trouble but I was having fantasy thoughts of black leather gloves with the steel shot in the knuckles.’

Under these circumstances, we are not persuaded that the trial court erred in concluding that Brown should have known that the entries in her blog would cause a reasonable person to be frightened and distressed.  Indeed, even Brown acknowledged that she could `see how Ms. Slone was upset by it.’ Thus, the trial court did not err in entering a civil stalking injunction against Brown. 

Slone v. Brown, supra.  (The opinion explains, in a footnote, that at the hearing on the injunction “Slone explained that she and her children are frightened of Brown and that Brown's internet postings are `very disturbing.’”  Slone v. Brown, supra.) 

Friday, October 26, 2012

Particularized Need, Computer Forensics and Grand Jury Transcripts

After he was indicted on and convicted of “twelve counts of pandering sexually oriented material involving a minor in violation of [Ohio Revised Code] § 2907.322 and thirty counts of illegal use of a minor in nudity oriented material or performance in violation of [Ohio Revised Code] § 2907.323," Bryan Bates appealed.  State v. Bates, 2012 WL 4358265 (Ohio Court of Appeals 2012). 

On appeal, Bates argued that the

trial court abused its discretion in not conducting an in-camera inspection of the transcripts of the evidence presented to the grand jury in his criminal case to determine whether the testimony before the grand jury was inconsistent with testimony presented at trial.

State v. Bates, supra.  As Wikipedia notes, when an appellate court reviews a trial judge’s ruling for abuse of discretion, the ruling “will not be reversed unless the decision is unreasonable.”

And as Wikipedia explains, a grand jury “is a type of jury that determines whether a criminal indictment will be issued.”  As Wikipedia also notes, it is known as a “grand” jury because historically grand juries have had 16-23 jurors, which makes them larger (“grander”) than trial juries.   

As Wikipedia also notes, the 5th Amendment requires that the federal system use grand juries to bring charges, via an indictment, for serious crimes.  And as this article notes, the U.S. Supreme Court has not interpreted that part of the 5th Amendment as binding on the states, which means that the states do not have to use the grand jury.  Notwithstanding that, most, if not all, U.S. states still use the grand jury, in various ways.

A distinctive characteristic of grand jury investigations is that everything that occurs in the grand jury must be kept secret by those that are privy to its proceedings, i.e., the grand jurors, the prosecutor, an interpreter if a witness needs one and a court reporter who transcribes the proceedings. 

Rule 6(e) of the Ohio Rules of Criminal Procedure states that these individuals are not to disclose “matters occurring before the grand jury”.  This is consistent with federal practice.  As the U.S. Supreme Court has explained, secrecy is meant to prevent (i) those being investigated from bribing or threatening grand jurors to get them to vote against indicting and/or fleeing the jurisdiction to avoid prosecution, (ii) to protect the innocent whose names come up in a grand jury investigation and (iii) to encourage witnesses to speak freely before a grand jury. 

Like its federal counterpart, Rule 6(e) of the Ohio Rules of Criminal Procedure says matters occurring before a grand jury “may be disclosed preliminarily to or in connection with a judicial proceeding, or when the defendant has shown grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.”  As to the basis for ordering such disclosure, in

U.S. v. Proctor & Gamble Co., 356 U.S. 667 (1958),  the U.S. Supreme Court found a trial court has discretion to release grand jury transcripts when a defendant demonstrates a particularized need such that the secrecy of the proceedings should be discretely and limitedly lifted.

In State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), the Ohio Supreme Court found the defendant has demonstrated a particularized need when, after a consideration of all the surrounding circumstances, the court finds it is probable that failure to disclose the grand jury testimony will deprive the defendant of a fair adjudication of the allegation placed at issue in the testimony presented at trial.

Courts have applied the same `particularized need' test for post-verdict requests for grand jury transcripts as for requests made prior to or during trial. 

State v. Bates, supra. 

In State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), the Ohio Supreme Court explained that Rule 6(e) of the Ohio Rules of Criminal Procedure

require the trial court, upon proper motion, to consider the basis of the particularized need advanced by the defendant. This may be accomplished by an in camera inspection of the grand jury minutes by the trial court assisted by counsel.

State v. Greer, supra. 

So the Ohio Supreme Court, like various federal courts, found that when a defendant seeks access to transcripts of what occurred before a grand jury, the proper procedure is for the judge to conduct an in camera – a secret – inspection of the grand jury transcript to see if the defendant has, in fact, shown particularized need for access to some portions of them.  But to trigger this requirement, the defendant has to come forward with at least a colorable showing of particularized need, which is not easy to do, given that grand jury proceedings are secret.

As to the standard to be used in reviewing a trial judge’s refusal to order in camera review and, perhaps, disclosure, the Court of Appeals explained that it

is the abuse of discretion standard. State v. Gondor, 112 Ohio St.3d 377, 860 N.E.2d 77 (Ohio Supreme Court 2006) The Supreme Court has frequently held the term abuse of discretion indicates the court's attitude is unreasonable, arbitrary, or unconscionable. . . .

State v. Bates, supra. 

As to the evidence at issue in this case, the court notes that Bates

directs us to the testimony of Agent Cameron Bryant, Detective John Davis, and Detective Ron Pollock, arguing portions of the testimony the officers variously gave in the affidavit submitted in support of the search warrant, at the suppression hearing, and at trial are internally inconsistent, giving rise to a particularized need to review their testimony before the grand jury.

State v. Bates, supra. 

The Court of Appeals explained that Bates was arguing that

Bryant testified at trial regarding how images are sent and received through the Internet and how an image is saved on a computer's hard drive. [Bates] asserts the testimony is not only inconsistent but also false and misleading. . .

[Bates] also argues Bryant's testimony was inconsistent regarding the origin of the images. Bryant testified he believed the images originated from the Internet. Thereafter, he testified the images came either from a website or from someone who sent the images with the consent of the user, by which he meant [Bryant].

Bryant testified he could not determine whether the images were downloaded from a website or received from another user.

State v. Bates, supra. 

After considering Bates’ arguments and the evidence in question, the appellate court found that “Bryant's testimony is not internally inconsistent.”  State v. Bates, supra.  

(It also noted that Bates at least “arguably” could be precluded from raising this issue in this appeal because he had not raised it in an earlier in an earlier appeal to the Court of Appeals.  State v. Bates, supra.  In that appeal, he argued that the trial judge erred in denying his motion to suppress “testimony of the State’s expert in computer forensics”.  State v. Bates, supra. 

He lost, and then filed three motions to “correct his sentence”, all of which were denied.  State v. Bates, supra.  He then filed a motion to set aside his conviction, which was denied, and which is the ruling he was appealing in this case.  State v. Bates, supra.

Bates also argued that

there was a question as to who testified at the grand jury hearing and what was presented. The computer forensic report was not completed until after the indictment was issued.

[Bates] argues the indictment states facts which could only have been retrieved using computer forensic procedures. [He] argues the question of how the facts were presented before the grand jury must be answered.

We do not agree. There is no showing that the information contained in the indictment must have been gleaned by an expert computer forensic examiner.
State v. Bates, supra. 

The court therefore rejected Bates’ attempt to obtain access to the transcripts of what occurred before the grand jury.  State v. Bates, supra. 

I decided to do a post on this opinion because it addresses an issue that, as far as I can tell, has not been addressed by other courts, at least not in published opinions.  Since grand jury law tends to be a bit arcane, lawyers and lay people often do not realize how extraordinarily difficult it is to gain access to transcripts or other information concerning what evidence a grand jury heard as it was considering whether to indict someone.

Wednesday, October 24, 2012

The Police Officer, the Tax Id Number and Identity Fraud

After being convicted of “financial identity fraud and violation of oath of office,” Demetria Gaskins appealed.  Gaskins v. State, __ S.E.2d __, 2012 WL 4841303 (Georgia Court of Appeals 2012). 

This, according to the Court of Appeals’ opinion, is how the case arose:

Gaskins, a police officer, went to an Alltel Wireless retail store to open a new personal cell phone account. The Alltel representative ran a credit check and determined that Gaskins would be required to pay a deposit before opening the new lines. Instead of paying the deposit, Gaskins told the representative she would return later with a tax identification number from her personal business so that she could open the account in the business's name.

Thereafter, Gaskins returned to the store with a number written on a piece of paper, which she handed to the Alltel agent, explaining that it was her business's tax identification number. The Alltel agent was able to open the account without a deposit using the new number, and Gaskins received four new phone lines on the account.

Gaskins’ new account eventually incurred more than $5,000 in charges, which Gaskins never paid. The number she gave to the Alltel agent was later discovered to be the social security number for a woman in Pennsylvania, who had never been to Georgia, had never met Gaskins, and had never given Gaskins permission to use her social security number in any way.

The Pennsylvania woman notified Alltel and police in Georgia that her number had been used without her permission, and after an investigation, police confirmed that Gaskins had used the number.

Gaskins v. State, supra.

“Based on Gaskins’ unauthorized use of the number, she was charged with theft of services (five counts), financial identity fraud (five counts), and violation of oath of office (one count).” Gaskins v. State, supra. A jury acquitted her on the theft of services counts, but convicted Gaskins “on the remaining counts.” Gaskins v. State, supra.

After the trial judge denied her motion for a new trial, Gaskins appealed.  Gaskins v. State, supra.  On appeal, she argued that “the evidence was insufficient to support” her convictions for identity fraud and violation of an oath of office.  Gaskins v. State, supra.

The Court of Appeals began its analysis of Gaskins’ insufficiency of the evidence arguments by noting the standard it applies when reviewing a criminal appeal:

[W]e view the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [443 U.S. 307 (1979)] and does not weigh the evidence or determine witness credibility.

Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.

Gaskins v. State, supra.

After outlining the facts that gave rise to the prosecution, as noted above, the court began its analysis by addressing Gaskins’ argument that the “evidence was insufficient to support the verdict as to identity fraud because the State failed to prove the offense as defined by the statute and as alleged in the indictment.”  Gaskins v. State, supra. When Gaskins was charged with the crime, Georgia Code § 16-9-121(1) defined the offense of identity fraud as follows:

A person commits the offense of identity fraud when without the authorization or permission of a person with the intent unlawfully to appropriate resources of ... that person . . . to his or her own use . . . he or she: . . . Obtains or records identifying information of a person which would assist in accessing the resources of that person or any other person. . . .

Gaskins v. State, supra (emphasis in the original). (The statute was subsequently revised.)

The court noted that “[c]onsistent with this [language], the indictment alleged that Gaskins `did obtain the social security number’ of another person and used it to open the account without permission.”  Gaskins v. State, supra (emphasis in the original).  Gaskins actually had two arguments as to why the evidence presented at trial was insufficient to convict her of this crime.  Gaskins v. State, supra.

The first was that “the evidence failed to show `whether or how Gaskins ‘obtained’ the Pennsylvanian woman's social security number.’” Gaskins v. State, supra. The Court of Appeals pointed out that notwithstanding this,

there was evidence that Gaskins, as a police officer, had access to a nationwide database that included people's personal information such as social security numbers. Further, there is uncontroverted evidence that Gaskins provided the written number to Alltel, so despite Gaskins’ denial that she used the police database, she could not have provided it to Alltel without first obtaining it.

The jury, as the finder of fact, was entitled to weigh the evidence and make credibility determinations as to any conflicts or inconsistencies.

Gaskins v. State, supra.

It then explained that when it reviews a sufficiency of the evidence argument, the

`relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Gaskins v. State, supra (quoting Jackson v. Virginia, supra) (emphasis in the original). The court therefore found that this argument did not provide a basis for reversing Gaskins’ conviction on the identity fraud counts.   Gaskins v. State, supra.

Gaskins’ other argument for reversing those counts was that the evidence at trial

failed to exclude the reasonable alternative hypothesis that she provided what she thought was a taxpayer identification number for her business. She points to the circumstantial nature of the evidence as to precisely how she obtained the number, and argues that the evidence did not rule out the possibility that she lawfully obtained a number assigned to her business which happened to be identical to the Pennsylvania woman's social security number.

Gaskins v. State, supra.

In making this argument, Gaskins relied on the Georgia Court of Appeals’ decision in Locklear v. State, 249 Ga.App. 104, 107(1), 547 S.E.2d 764 (2001).  Gaskins v. State, supra.  This Court of Appeals explained that the Locklear case held that in a case

`entirely dependent on circumstantial evidence, . . . the State's evidence must both be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. . . . In making a determination of whether any other reasonable hypothesis exists, the defendant's explanation must be taken into consideration insofar as it is consistent with the circumstantial evidence properly admitted.’

`Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury. However, where there appears a hypothesis from the evidence, or from the lack of evidence and the defendant's statement, pointing to the innocence of the accused, and which tested by all human experience is a reasonable one, this Court may declare it so as a matter of law.’

Gaskins v. State, supra (quoting Locklear v. State, supra).

This court did not buy Gaskins’ argument.  Gaskins v. State, supra.  It explained that she

ignores the fact that the evidence of her guilt was not entirely dependent on circumstantial evidence. There was direct, uncontroverted evidence that she supplied a social security number assigned to another person and represented it to be assigned to her business.

By contrast, documents in evidence showed that each of her businesses were registered with the State under federal identification numbers that did not match the disputed social security number. When requested by her employer, Gaskins was unable to produce any corroborating documentation linking the disputed number to her businesses.

Based on this record, the jury was authorized to disbelieve Gaskins’ explanation and to conclude that she obtained the social security number fraudulently.

Gaskins v. State, supra.

Gaskins also argued that the evidence was not sufficient to “support her conviction for violating her oath of office because there was no connection between the offense and her public duties as a police officer.”  Gaskins v. State, supra. The court noted that the oath she took as a police officer included this language:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the State of Georgia, and I will faithfully perform and discharge the duties of my position, conscientiously and without malice or partiality, to the best of my ability;

I further swear (or affirm) to obey, to adhere to, to uphold and to enforce the laws of the United States of America and of the State of Georgia at all times;

I further swear (or affirm) that I will bear true faith and allegiance to the Governor of the State of Georgia, the Chief of Police of the Albany Police Department, and the officers appointed over me according to law; so help me God.

Gaskins v. State, supra. 

It also noted that Georgia Code § 16-10-1 states that “`[a]ny public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.’”   Gaskins v. State, supra. 

Gaskins relied on the Court of Appeals decision in State v. Tullis, 213 Ga.App. 581, 445 S.E.2d 282 (1994), which reversed an officer’s conviction for violating his oath of office

by shoplifting a candy bar while on duty. This Court rejected the State's argument that `commission of a misdemeanor while on duty constitutes a violation of [the officer's] oath of office, because he implicitly swore to uphold the laws of the State of Georgia.’. . . [T]he Court pointed out that `a police officer could be subject to a felony prosecution for failure to obey a traffic signal . . . or catching nine rainbow trout, one more than the creel limit.

Gaskins v. State, supra (quoting State v. Tullis, supra).

This Court of Appeals found that the Tullis holding did not apply to what Gaskins did:

Here, the unlawful conduct was not done as part of Gaskins’ official duties. But the jury was authorized to find that she obtained the social security number without authorization by using a police database with personal information in it. This misuse of her access to sensitive information was an abuse of her position and is sufficient to support a finding that Gaskins violated her oath of office.

Furthermore, `[a] crime involving dishonesty [, such as fraud,] is considered to be one involving moral turpitude.’ Thus, by committing identity fraud, Gaskins committed a felony demonstrating an inherent moral baseness, which a jury could conclude to be a violation of her oath to adhere to the laws she helped enforce.

Gaskins v. State, supra (quoting State v. Tullis, supra).

The court therefore rejected her argument and affirmed her conviction on this charge, as well. 

If you are interested in more details of the case, the story you can find here says the judge sentenced Gaskins to five years’ probation after she was convicted and ordered her to pay restitution to Alltel and the Pennsylvania woman whose social security number she used.  The story also says she was fired from the Albany (Georgia) Police Department. 

Monday, October 22, 2012

The 4th Amendment, Text Messages and Inevitable Discovery

After Eric J. Bone was convicted of second-degree murder and sentenced “to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence,” he appealed. State v. Bone, __ So. 3d __, 2012 WL 3968515 (Louisiana Court of Appeals 2012).  On appeal, he claimed the trial judge erred in denying “his motion to suppress text messages obtained by police through a subpoena duces tecum without a showing of probable cause.”  State v. Bone, supra.

Demetrius Jackson “was shot and killed outside of Cesar's nightclub in the early morning hours of July 25, 2009.” State v. Bone, supra.  Kyron, Demetrius’ brother and “a member of the Calliope Gang, arrived at Cesar's . . . with a group of friends between 12:30 and 1:00 a.m.” State v. Bone, supra. Members of the Gert Town gang, which included Bone “and co-defendant Shawn Flott,” arrived later and “confronted the Calliope gang.” State v. Bone, supra. According to testimony at trial, the gang members began “`fussing’” with each other, which led to a “verbal confrontation,” after which “the Gert Town and Calliope members left the club.” State v. Bone, supra.   

Demetrius’ brother Kyron testified at trial that while he, Demetrius and “another Calliope gang member known as “Stink” began walking to their car, a vehicle driven by” Bone and  “occupied by other Gert Town members pulled up on the roadway and stopped”. State v. Bone, supra. Kyron also said Flott “exited the vehicle and began shooting” and Bone’s “ car circled the block to apparently see if anyone was shot before fleeing the scene.”  State v. Bone, supra. Demetrius was apparently shot in this encounter.  State v. Bone, supra.  

Officer Jacob Tapley, who “was working a detail at Cesar's nightclub on July 25,” was “outside of the club, approximately 300 feet away, when he heard gunshots.” State v. Bone, supra. Tapley “did not witness the shooting but did notice a silver four-door vehicle driving away from the scene at a high rate of speed; he radioed the description of the vehicle into headquarters and ran to the victim to render assistance.”  State v. Bone, supra.  

Officer Alton Savage “was working a detail a few blocks away from the shooting” when “he received the description of an Infiniti vehicle involved in a shooting over his radio and, within seconds, noticed a vehicle matching the given description traveling at a high rate of speed.” State v. Bone, supra. Savage “noted the vehicle's license plate number and testified that [it] appeared to contain four occupants.”  State v. Bone, supra When “the vehicle's driver refused to stop”, a high speed chase began and “continued to the interstate where Savage lost sight of the vehicle”.  State v. Bone, supra. A vehicle that matched the license plate and description given after the shooting was recovered burned and abandoned that same day in New Orleans.  State v. Bone, supra.

Detective Ashton Gibbs “reported to the shooting scene at approximately 3:00 a.m. to investigate the homicide but” the only lead he obtained was “the vehicle's license plate number, which he learned was registered to an Erica Bone.”  State v. Bone, supra. Gibbs and another officer went to Erica Bone's home. State v. Bone, supra. She said “her mother and [Eric Bone], her brother, were the primary drivers of the vehicle.” State v. Bone, supra. Erica “provided her mother's address where [Eric] also lived.” State v. Bone, supra. Gibbs went to Eric’s mother's home, but Sandra Bone told him “she did not know where her son was.”  State v. Bone, supra. Bone later gave police a statement saying he was at Cesar’s on July 25.  State v. Bone, supra.

About a week after the shooting, Kyron Jackson “identified [Eric] in a photographic lineup as the driver of the vehicle involved in the shooting.” State v. Bone, supra. Gibbs testified that Kyron “went back and forth as to the identity of the shooter but ultimately identified . . . Flott as the shooter.” State v. Bone, supra. Officers later executed search warrants at Flott’s and Eric’s homes, where they seized various items, including “a Samsung cell phone with a contact number for `Shawn’”. State v. Bone, supra.

At trial, Gibbs said Erica gave him Eric’s cell phone number and he gave it “to his supervisor to obtain a subpoena” for Eric’s cell phone records.” State v. Bone, supra. After they received the records from Sprint Nextel, the detectives learned the phone number was registered to Eric’s mother and that “many text messages received through the subpoena made reference to the shooting at Cesar's”.  State v. Bone, supra. Gibbs testified that the messages referred to Demetrius and “to the vehicle being `long gone.’” State v. Bone, supra. He used Eric’s cell phone records to identify “Sandra Bone, Erica Bone, Shykeva Bone, Wilneka McCalebb and Jasmine Dixon” as “individuals who communicated with [Eric] following the murder”.  State v. Bone, supra.

Joseph Trawiki, a records custodian for Sprint Nextel, testified that the company received a subpoena for records relating to phone number 504–415–9231. State v. Bone, supra. He also testified that Sprint Nextel responded by providing documentation “reflecting the subscriber information, a call detail record log, and a printout of text messages sent and received for the date requested, July 25, 2009.” State v. Bone, supra. The records established the information outlined above.  State v. Bone, supra. Trawicki also testified that Sprint Nextel also “produced printouts of text messages sent and received on” the phones used by Shykeva Bone, Sandra Bone, Erica Bone, Lucella McClebb, and Jasmine Dixon. State v. Bone, supra.

Eric’s friend Wilkena McClebb testified that she was with him on July 25 and that “he dropped her off in his Infiniti at approximately 1:00 a.m.”  State v. Bone, supra. She said her friend, Tia, who was with them, “used her phone to exchange text messages with Eric after the shooting.” State v. Bone, supra. The text messages stated, “`[a]lright, luv, but don't kick dat to nobody what I told you, not even Darrin,’” to which Tia responded, “`What?,’” and [Eric] stated, “`Da shit at Ceaser [sic].’”  State v. Bone, supra.

At trial, Eric testified that he and Shawn left Cesar’s after the confrontations noted above, to avoid further problems.  State v. Bone, supra. He said as he drove away from the club he “heard gunshots coming from the back seat of his car” but did not stop because Shawn’s friend, Brandon, was

in the back seat. . . ., pointing a gun to his head, instructing him to continue driving. . . . Upon returning to his neighborhood after the police chase, Brandon asked [Eric] to drive to his girlfriend's house. [Eric said] he gave Brandon the Infiniti's keys and walked to his neighbor's house to get a ride to a hotel. [Eric] explained his theory that Kyron Jackson, the victim's brother, fired the fatal shot.

State v. Bone, supra.

On appeal, Bone claimed the trial judge erred in denying his motion to suppress the text messages.  State v. Bone, supra. He argued that the text messages were obtained in violation of the 4th Amendment -- which bans “unreasonable searches and seizures” -- because the officers used a subpoena, rather than a search warrant, to obtain them from Sprint Nextel.  State v. Bone, supra

As I’ve noted, if officers conduct a 4th Amendment “search,” the search will be “unreasonable” and therefore unconstitutional if it was not conducted pursuant to a valid warrant or an exception to the warrant requirement.  As I’ve also noted, a “search” violates a reasonable expectation of privacy, which means that (i) I believe the place/object searched as “private” and (ii) society accepts my belief as objectively reasonable. 

On appeal, Bone argued that he had a reasonable expectation of privacy in the content of

text messages sent or received by a phone on which he is the `exclusive user,’ citing U.S. v. Jones, 132 S. Ct. 945 (2012). . . . The state. . . . contends that it is unreasonable for [Bone] to claim an expectation of privacy in the messages because (1) [he] is not the subscriber or owner of the cell phone number at issue; (2) the privacy policies issued by Sprint Nextel specifically warn customers that information may for certain reasons be disclosed to authorities; and (3) [Bone] admits in the messages he sent from his phone that he did not have a subjective expectation of privacy in the messages. . . .

State v. Bone, supra.

As noted above, Gibbs got Bone’s “phone call records” and the contents of “outgoing and received text messages” by serving a subpoena duces tecum on Sprint Nextel.  And he got Bone’s cell phone when he “subsequently” got and executed a search warrant for Bone’s residence.   He then (i) used another subpoena duces tecum to get “the account information and phone call detail records” of those with whom Bone communicated after the murder and (ii) a search warrant to obtain their text messages for basically the same time frame.  State v. Bone, supra.

The Court of Appeals began its analysis of Bone’s 4th Amendment argument by noting that “[w]hether a person has a protected privacy interest in the contents of his text messages sent or received on his cell phone and stored by a third-party . . .  is a matter of first impression in Louisiana.”  State v. Bone, supra.  It then explained that the U.S.

Supreme Court has consistently held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties because any reasonable expectation of privacy is destroyed when the risk of disclosure is assumed. Smith v. Maryland, 442 U.S. 735 (1979). However, the Supreme Court has also recognized a `content exception’ which draws a distinction between the content of a communication and the data log stored by a third party associated with such communication. See Smith, supra. . . . The [federal] Circuit Courts [of Appeal] have further discussed this content exception as applicable to new technologies such as email, internet searches, and text messages. . . .

State v. Bone, supra. 

The court then held that in light of this

established jurisprudence, we find that [Bone] did not have a reasonable expectation of privacy in the call detail record log associated with his phone number; we therefore find that the call detail record log associated with [his] phone number, identified as Exhibit 88B at trial, was properly obtained by the July 25, 2009, subpoena duces tecum at issue.

State v. Bone, supra. 

The Court of Appeals then took up the issue as to whether Bone had a 4th Amendment expectation of privacy in the content “of text messages sent or received on a cell phone.”   State v. Bone, supra.  It noted that some lower courts have held that “a person has a reasonable expectation of privacy with regard to cell phone and text message communications on or via privately owned equipment.” State v. Clampitt, 364 S.W.3d 605 (Missouri Court of Appeals 2102).  Other courts have reached the same conclusion.  See, e.g., U.S. v. Zavala, 541 F.3d 562 (U.S. Court of Appeals for the 5th Circuit 2008); U.S. v. Finley, 477 F.3d 250 (5th Circuit 2007); and United States v. Quintana, 594 F.Supp. 2d 1291 (U.S. District Court for the Middle District of Florida 2009).

The prosecution argued that Bone, who was “neither the owner nor subscriber of the cell phone at issue”, had “no standing to make a 4th Amendment objection and therefore cannot assert a reasonable expectation of privacy in the text messages.State v. Bone, supra. The Court of Appeals noted, however, that the U.S. Court of Appeals for the 5th Circuit held, in U.S. v. Finley, supra, that the defendant in that case had a

reasonable expectation of privacy in the text messages sent on his cell phone even though the phone was a business phone issued by his uncle's business. Although the court ultimately held the text messages admissible under an exception to the warrant requirement, the court did find that the defendant had a reasonable expectation of privacy in that phone and thus standing to assert a 4th Amendment objection. . . . 

[T]he court considered the fact that the defendant was permitted by his uncle to send personal text messages and make personal calls through the business phone and further stated that, `a property interest in the item seized is only one factor in the analysis[.]’ Id.

State v. Bone, supra. 

The Louisiana Court of Appeals therefore found that the fact that Bone

was not the owner or subscriber of the cell phone at issue does not affect his ability to make a 4th Amendment challenge where the evidence demonstrates that [he] had a possessory interest in the phone as the exclusive user and was clearly permitted to use the phone for his own personal use to the exclusion of others.

State v. Bone, supra. 

The court also found that the issue it needed to resolve was not whether the

state is permitted to obtain the content of text messages sent on a defendant's cell phone; rather, the question in this case is the standard the state must meet in order to obtain such information. We find that here, where [Bone] was the exclusive user of the cell phone and was permitted to use the phone for personal purposes, he had a reasonable expectation of privacy in the text messages sent and received on the cell phone and further find that the collection and review of the content of [his]s text messages sent and received by that phone constituted a search which required a showing of probable cause.

State v. Bone, supra. 

The prosecution then argued that it should still be able to use the contents of Bone’s text messages because it would inevitably have discovered them:

The state [claims] it would have inevitably discovered the contents of [the] text messages after an August 1, 2009, interview with [Bone’s] girlfriend, Jasmine Dixon, in which she discussed the fact that she exchanged text messages with [him] in the hours following the murder and revealed the content of said messages. The state argues that the interview with Dixon would have presented probable cause to issue a search warrant to obtain the content of [Bone’s] text messages. 

State v. Bone, supra. 

As I have noted in prior posts, the inevitable discovery exception to the 4th Amendment’s warrant requirement lets police use evidence that was obtained in violation of the 4th Amendment if they can show they would have found it anyway, via other means.  This court found the exception did not apply in this case:

[At] the time of the interview with Dixon, officers had already obtained the text messages exchanged between [Bone] and Dixon pursuant to the subpoena duces tecum . . . and informed her of their knowledge of said text messages prior to the interview. Therefore, it is speculative to assume Dixon would have disclosed to officers any communication with [Bone] following the murder, including any text messages sent or received, had she not known the officers had already seen the content of those messages. 

`Application of the inevitable discovery doctrine thus “involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment’”. State v. Lee, 976 So.2d 109 (Louisiana Supreme Court 2008).

Because we cannot determine without speculation whether Dixon would have disclosed during the interview the existence or content of the text messages exchanged with [Bone] following the murder, we decline to apply the inevitable discovery doctrine in this case. Accordingly, we find the trial court erred in denying [his] motion to suppress. . . .  

State v. Bone, supra. 

The court did not, however, reverse Bone’s conviction because it found the prosecution’s use of the text messages was “harmless error.”  State v. Bone, supra.  As Wikipedia notes, a “harmless” error “a ruling by a trial judge that, although mistaken, does not meet the burden for a losing party to reverse the original decision of the trier of fact on appeal, or to warrant a new trial.” The Court of Appeals found that the use of the text messages was harmless error because “the information obtained by said text messages was simply corroborative of other competent evidence introduced at trial.” State v. Bone, supra.  It therefore affirmed his conviction and sentence.  State v. Bone, supra. 

If you are interested in more information about the facts in this case – including the fact that Flot pled guilty to manslaughter and was sentenced to 18 years in prison – check out the news story you can find here.