Friday, November 30, 2012

eBlaster, the School Laptop and Child Pornography

After being “charged with two counts of receiving child pornography and two counts of accessing child pornography with intent to view it”, Thomas Wendl moved to suppress certain evidence.  U.S. v. Wendl, 2012 WL 5869589 (U.S. District Court for the Northern Mariana Islands 2012).  The charges resulted from a quite complicated set of facts.

FBI Joseph Auther was stationed in Saipan, where his son was a seventh grader at Whispering Palms school. U.S. v. Wendl, supra. His son had a laptop issued by the school provided through a federally funded program – Public School System (PSS). U.S. v. Wendl, supra.  Auther installed eBlaster on the laptop to monitor his son's Internet use. It sent emails to him several times a day that listed the sites his son visited and the keystrokes typed on the laptop. U.S. v. Wendl, supra. Auther did not tell his son about eBlaster and no icon or other sign showed it was installed on the computer.  U.S. v. Wendl, supra.

In April 2012, Auther was moved to the Denver office. U.S. v. Wendl, supra. In June, he told Thomas Wendl, the Whispering Palms principal, that he would have the laptop serviced and his son's files wiped before returning it to the school. U.S. v. Wendl, supra. He did not tell Wendl about eBlaster. U.S. v. Wendl, supra. Auther took the laptop to a computer store, which reimaged it and “Clean[ed] out files.” Auther assumed this  removed eBlaster. U.S. v. Wendl, supra.

On June 15, Auther noticed he had received a series of eBlaster e-mails and read them, which referred to searches for child pornography. U.S. v. Wendl, supra. He was shocked that his son was visiting sexually explicit websites until he remembered he returned the laptop.  Auther also wondered if Wendl was using it to access child pornography. U.S. v. Wendl, supra.  Some of the sites appeared to involve young Asian girls having sex with older men. Auther knew Wendl had married a Korean woman, and had an 11–year–old Korean stepdaughter.  U.S. v. Wendl, supra.

Auther called Wendl and pretended he was interested in buying the laptop; Wendel said he could not sell it because it he returned it to PSS. U.S. v. Wendl, supra. Auther was concerned that a child molester was operating at Whispering Palms. The next Monday, he went to the school and spoke with the technology coordinator for its PSS program, Joseph Torres.  U.S. v. Wendl, supra. He told Torres he was an FBI agent and said he was looking into a laptop that had been returned to the school; Torres said the school redistributed returned laptops to new students. U.S. v. Wendl, supra.

Around noon, Auther spoke with his wife and learned they had a new eBlaster report involving child pornography. U.S. v. Wendl, supra. That afternoon, before going to the FBI office, Auther drove by Whispering Palms and noticed Wendl's car at the school. U.S. v. Wendl, supra. He called Wendl, reiterating his desire to find the laptop and mentioning there might be inappropriate content on it. U.S. v. Wendl, supra. Wendl said he was looking into the matter and had determined that the laptop had been recirculated. U.S. v. Wendl, supra. Auther did not tell Wendl he had visited the PSS offices and knew Wendl had lied about returning the laptop there. U.S. v. Wendl, supra.

Auther reported the illicit Internet activity and Wendl's possible involvement to Special Agent Ewing and notified the CNMI Attorney General about his concerns. U.S. v. Wendl, supra. After June 18, Auther stopped receiving reports from eBlaster. U.S. v. Wendl, supra. On June 22, he forwarded the eBlaster e-mails to Ewing, who interviewed Auther and opened an investigation. U.S. v. Wendl, supra.

After being charged with the crimes noted above, Wendl moved to suppress “information regarding possible child pornography Internet searches and downloads obtained from a laptop computer without a warrant”.  U.S. v. Wendl, supra.  In other words, he moved to suppress the reports eBlaster generated as a result of Auther’s installing the program on the school-issued laptop. U.S. v. Wendl, supra.  The district court judge began her analysis of Wendl’s motion by noting that the 4th Amendment protects persons from

unreasonable searches and seizures of their home, property, papers, and effects. A search occurs in cases involving common-law trespass o4 ‘”when government officers violate a person's ‘reasonable expectation of privacy.”’ U.S. v. Jones, 132 S.Ct. 945 (2012) (quoting Katz v. U.S., 389 U.S. 347 (1967) (Harlan, J., concurring)). Thus, for a person to invoke the protections of the 4th Amendment, a search must be the product of government action, and the aggrieved person must have a reasonable expectation that the information seized would remain private -- commonly referred to as Fourth Amendment standing.

U.S. v. Wendl, supra.  The judge first addressed state action and then standing.

In opposing Wendl’s motion to suppress, the government argued that when Auther installed eBlaster on the laptop, he was not acting in his official capacity as an FBI agent – that is, as an instrumentality of the government.  U.S. v. Wendl, supra.  As I have noted in prior posts, if a civilian conducts what would otherwise be a 4th Amendment “search,” the conduct does not trigger the protections of that constitutional provision; it only applies when a state agent conduct a search.

The judge noted that the analysis of whether someone is acting as a state agent becomes more complicated when “the actor is an off-duty law enforcement officer”. U.S. v. Wendl, supra.  She also noted that Auther’s actions would qualify as state action “if they were “in some way related ‘to the performance of his official duties' ” or “pursuant to [a] government or police goal.” U.S. v. Wendl, supra (quoting Van Ort v. Estate of Stanewich, 92 F.3d 831 (U.S. Court of Appeals for the 9th Circuit 1996)).  She found that Auther's installing eBlaster on the laptop

was unrelated to the performance of his duties as an FBI special agent. His intent was solely to monitor his son's Internet activities. He had no reason to believe that anyone other than his son, to whom Whispering Palms had issued the PSS laptop, would use the computer during the period when it was loaned out to the boy. Auther was acting as a devoted father, not a law enforcement officer.

U.S. v. Wendl, supra.  

She also noted that if Auther had intentionally left eBlaster on the laptop when he returned it to Whispering Palms, knowing that he would be

duty-bound to report any observed criminal conduct, his continued receipt of eBlaster reports might be in pursuit of a police goal and therefore constitute a 4th Amendment search. But the evidence suggests Auther left eBlaster on the laptop inadvertently. . . . The fact Auther was preparing to relocate his family to the mainland makes it all the less likely that he was privately . . . launching a sting to uncover misuse of federally funded school computers on Saipan. In all likelihood, he had other things on his mind.

U.S. v. Wendl, supra. 

Wendl argued that even if Auther did not mean to leave eBlaster on the laptop,

his act of opening the eBlaster e-mails converted an inadvertent search into an intentional one. He points out that the subject lines showed that the reports covered a period of time after Auther's son no longer had possession of the laptop. The conclusion he draws is that Auther `did not have a justifiable basis (private interest or otherwise)’ for viewing the contents of the report.

U.S. v. Wendl, supra. 

The judge, however, was not persuaded:

The search was the gathering of information by eBlaster, not the viewing of the contents. The analysis would be no different if Auther had turned the reports over to other officers without having read them. However intentional the act of opening the e-mails may have been, the searches were still, at this juncture, inadvertent. The Court finds that the initial data received from eBlaster and viewed by Auther . . . prior to [his] contacting Wendl, are not the product of a search conducted under color of state law.

Neither would the initial eBlaster reports come under the 4th Amendment via the two-part test for private-party searches. Even if Auther `acquiesced in the intrusive conduct’ when he failed to direct the service technician to remove eBlaster, the intrusive conduct -- the installation of eBlaster -- was not by the government, but by Auther the private citizen. . . . [T]here is no evidence Auther intended to further a law enforcement purpose by keeping eBlaster on the laptop. Therefore, Wendl has failed to carry his burden to show that he should be accorded 4th Amendment protection from the private-party eBlaster search.

U.S. v. Wendl, supra. 

But she also found that this was jot the case for the eBlaster reports that were generated after Auther called Wendl on June 15:

By that time, Auther knew someone may have been viewing illicit material on the laptop. He suspected Wendl before he called him. When he did call, he hid his real concern about the laptop's usage behind a pretense that he was interested in purchasing the computer. After the call, he did not uninstall or disable eBlaster, even though as a private citizen he was under no obligation to continue monitoring an unknown person's offensive Internet activities.

He did not immediately call his colleagues at the FBI and hand the investigation over to them -- conduct that might have indicated Auther wanted to maintain a separation between his private self and his public persona as a law enforcement officer. After Wendl told Auther he delivered the laptop to PSS, Auther continued his investigation into the child pornography website searches.

Auther . . . was still concerned that the searches may point to his son. He was also concerned that someone within PSS may be using the laptop for these illegal searches. . . . The totality of the circumstances shows that at this point, Auther's actions were related to his official duties and in pursuit of a police goal. Although a formal FBI investigation had not been opened yet, Auther was now acting under color of law. Therefore, the searches that generated eBlaster reports after the initial phone call to Wendl are subject to 4th Amendment scrutiny.

U.S. v. Wendl, supra.  In other words, these searches had to be “reasonable.”

The prosecution argued that even if Auther’s conduct constituted state action, his

discovery of the illicit Internet activity through eBlaster e-mails was accidental and therefore does not come under the 4th Amendment. . . . [T]he Government relies on Thompson v. U.S., 382 F.2d 390 (U.S. Court of Appeals for the 9th Circuit1967). In Thompson, two police officers and a private security guard questioned Thompson in his hotel room about suspicious cashing of travelers checks. . . . [T]he security guard straightened a picture on the wall and a small packet fell from behind the frame.  One of the officers opened the packet and found marijuana.

The police arrested Thompson on narcotics charges, searched the hotel room . . . and seized stolen travelers checks. Thompson moved to suppress all evidence as the product of an illegal search and seizure. The trial judge denied the motion.  A divided panel of the Ninth Circuit affirmed, finding that the marijuana was `accidentally exposed’ and that the police were not required to `close their eyes’ to it. 

U.S. v. Wendl, supra. 

Again, the judge was not persuaded.  She explained that the holding in Thompson

is an extension of the plain-view doctrine. Police may seize incriminating evidence in plain view which they come across inadvertently when they have a “prior justification” for the intrusion. . . . That is to say, the police must be “lawfully present” on the premises. In Thompson, police were lawfully present in Thompson's hotel room because Thompson had invited them in.  The officers did not snoop around while they were there.

Auther, by contrast, had no legitimate justification to intrude on anyone's conduct on the school laptop once it was no longer on loan to his son. Moreover, the incriminating evidence did not drop out while he was straightening the icons on the computer's desktop but came into view because of intentional spying on the keyboard and hard drive. . . .

Auther's initial receipt and opening of eBlaster reports on Friday, June 15, are not 4th Amendment searches, but the receipt and opening of eBlaster reports on Monday, June 18, are.

U.S. v. Wendl, supra. 

As to the second issue -- Wendl’s standing to challenge the searches -- the judge found he did not have a “legitimate” 4th Amendment expectation of privacy in school property he “misappropriated”  . . . for his own personal use.”  U.S. v. Wendl, supra. 

Whatever expectation of privacy he developed in the contents of the laptop's hard drive and the keystrokes of Internet searches is not a legitimate one that society is prepared to accept. This is different from the situation where a search is conducted of an employee's designated workplace computer, in which to some degree an employee has a reasonable privacy expectation. . . . The laptop was not assigned to Wendl and was not his office computer. For these reasons, Wendl lacks standing to claim a 4th Amendment violation with respect to the eBlaster reports.

U.S. v. Wendl, supra.  (For more on standing, check out this prior post.)

The judge therefore denied Wendl’s motion to suppress the eBlaster reports.  U.S. v. Wendl, supra. 

Wednesday, November 28, 2012

The FBI Candidate, the Interview and the Child Pornography

After being charged with one count of possessing child pornography in violation of 18 U.S. Code § 2252(a)(5)(B), Dominick Pelletier filed a motion to suppress certain evidence.  U.S. v. Pelletier, __ F.3d __, 2012 WL 5870728 (U.S. Court of Appeals for the 7th Circuit 2012). 

To understand how the motion to suppress, and the charge, came about, it is necessary to review what happened after Pelletier applied for a job with the Federal Bureau of Investigation. 

The FBI requires applicants to undergo a personnel security interview and to take a polygraph examination, and Pelletier scheduled his examination “for August 29, 2008, his birthday.”  U.S. v. Pelletier, supra. He arrived at the FBI office, presented his identification,

passed through a metal detector, and checked his cell phone at the front desk. At about 9:45 a.m., Special Agent Cherry met Pelletier and escorted him to a ten-foot-by-ten-foot polygraph suite. Cherry was unarmed and left the door . . . unlocked. At 9:49 a.m., Pelletier read and signed a `Consent to Interview with Polygraph’ form that provided, in part: `I understand that I am not in custody, that my participation in the polygraph examination is voluntary, and that I may leave at any time.’ 

Cherry explained that the polygraph would proceed in three parts: the `pre-test’ (when they would discuss the sorts of questions that would appear during the test); the `in-test’ (the actual administration of the polygraph); and the `post-test’ interview.

During the pre-test, Cherry gave Pelletier a list of questions. Pelletier read them over and said he was concerned about the section on sexual crimes. Pelletier explained that he had done `research’ in Indonesia on child pornography and sexual abuse and was worried it might lead him to fail the test. 

Cherry assured Pelletier everything would be fine so long as the research did not involve actual possession or distribution of child pornography. Pelletier assured Cherry it did not. Cherry then administered the polygraph examination. Pelletier failed.

U.S. v. Pelletier, supra.

That brings us to the post-test interview.  Cherry began it by asking Pelletier

how he thought he did, and Pelletier replied that he had `some trouble with one of the questions’ because of a set of files on his home computer. Pelletier [said] he had looked at images of young females as part of his `research.’ . . . Pelletier admitted he had images of naked children on his home computer. Cherry asked Pelletier to write a statement summarizing their discussion, and Pelletier complied.

The statement said that Pelletier believed he failed because (1) he had used pirated software as a student; and (2) had downloaded and stored child pornography and erotica as part of his research for a graduate school project. Pelletier and Cherry signed the statement at the bottom, and Pelletier remained friendly, cooperative, and interested in the job.

U.S. v. Pelletier, supra.

At this point, Cherry said he wanted “to invite a second agent who knew more about the subject matter to join the interview” and Pelletier agreed.  U.S. v. Pelletier, supra. Cherry contacted Agent Dempsey of the FBI's Cyber Squad, who arrived at the interview room wearing his badge and sidearm.  U.S. v. Pelletier, supra.  Privately, Cherry explained that Cherry had admitting to possessing child pornography. U.S. v. Pelletier, supra.

Dempsey decided to take a low-key, conversational approach when interviewing Pelletier . . . to make [him] believe their conversation was still part of the job interview. Dempsey did not read Pelletier his Miranda rights, although he did begin the interview by telling Pelletier that `you don't have to answer any questions with us, but any questions you do answer you have to tell the truth. You can't lie.’

U.S. v. Pelletier, supra.

Pelletier told Dempsey about his research, “saying it included . . . downloading child pornography.” U.S. v. Pelletier, supra. He said his “computer crashed after he completed his research, which Dempsey took to mean there was no longer any child pornography on Pelletier's computer.” U.S. v. Pelletier, supra. He asked if he could search his computer to make sure it did not contain child pornography, but Pelletier refused, saying

he was concerned there was `child erotica’ on his computer, including photos from the `LS Models’ series. Dempsey explained that parts of the LS Models series are child pornography and pressed Pelletier on his distinction between child erotica and child pornography. [He] read Pelletier the definition of child pornography, and Pelletier admitted that parts of the LS Models series were pornographic.

Dempsey again asked for permission to search Pelletier's home computer so [he] could recover the contraband, and Pelletier refused, [saying] he was afraid he had `hardcore’ child pornography on the computer. Pelletier also thought his girlfriend might be planning a surprise birthday party for him later that evening, and did not want his friends to see the FBI searching his house. . . . 

[N]ear the end of the interview, Pelletier admitted to `inadvertently’ creating child pornography by recording himself having sex with a girl he later learned was under the age of eighteen. It is unclear . . . whether he made this admission before or after Dempsey asked for consent to search [his] computer.

U.S. v. Pelletier, supra.

After “the first or the second refusal” Dempsey left the room “and directed another FBI agent to go to Pelletier's home and freeze the premises pending a search warrant or Pelletier's consent to search.” U.S. v. Pelletier, supra. He also contacted an Assistant U.S. Attorney about getting a federal search warrant and the DeKalb Police Department about getting a state search warrant. U.S. v. Pelletier, supra. Dempsey went back into the room and told Pelletier that if he did not consent to a search, Dempsey was going to try to get a search warrant. U.S. v. Pelletier, supra. Pelletier signed a written consent form, the interview ended and Pelletier left the field office.  U.S. v. Pelletier, supra.

The agents found “more than six hundred images of child pornography” on Pelletier’s computer, which led to the charge noted above.  U.S. v. Pelletier, supra. He moved to suppress (i) his statements to the agents on the grounds that he was not given Miranda warnings and (ii) the images on the grounds that “his consent was involuntary.”  U.S. v. Pelletier, supra. 

As Wikipedia explains, Miranda warnings are required whenever someone is in police “custody” and police interrogate them about a crime.  As Wikipedia also explains, police “custody” requires that the individual’s freedom of movement was restrained by police officers, such that he or she did not feel free to leave and/or decline the interview.  Unless someone is in custody, police are not required to give the warnings.

The district court judge held an evidentiary hearing on Pelletier’s Miranda argument and

asked Pelletier to specify precisely when he believed his job interview became objectively custodial. Pelletier answered that he was in custody `once Cherry ascertained that child pornography was likely on [Pelletier's] computer,’ or, “[i]n any event . . . no later than when Dempsey[ ] entered the polygraph suite brandishing his weapon and badge.’

U.S. v. Pelletier, supra.

In reviewing the district court judge’s denial of Pelletier’s motion to suppress for a Miranda violation, the Court of Appeals explained that the test for custody is whether a reasonable person would have felt she was not at liberty to terminate the interrogation and leave.  U.S. v. Pelletier, supra.  It noted, first, that the fact Pelletier was doing a job interview did not establish custody:  “The fact Pelletier wanted a job at the FBI office does not mean he was being held there against his will.” U.S. v. Pelletier, supra.  Pelletier also argued that other aspects of the interview made it custodial:

[He] was with the agents for a substantial amount of time -- from 9:49 a.m. until 3:20 p .m. . . . Dempsey was armed and wearing a badge during his portion of the interview. It would have been awkward for Pelletier to leave; he would have had to either wander out of an unfamiliar, secured building or ask for an escort back to the front door.

That said, Dempsey testified that he would have given Pelletier an escort and let him go if Pelletier had asked. Nevertheless, these circumstances might have weighed in favor of custody if Pelletier had come to the office for questioning as a suspect. But Pelletier did not come to the FBI as a suspect; he came as a job applicant. 

U.S. v. Pelletier, supra. 

The Court of Appeals noted that a reasonable applicant for a job with the FBI would expect to go through what Pelletier went through, and therefore did not find that a reasonable person in Pelletier’s situation would have thought the interview was custodial for Miranda purposes.  U.S. v. Pelletier, supra. 

In his motion to suppress, Pelletier argued that “the FBI involuntarily obtained consent to search his computer.”  U.S. v. Pelletier, supra.  The district court judge rejected this argument, “holding that (1) Pelletier voluntarily consented to the search; and (2) even if his consent was involuntary, the pornographic images would have been inevitably discovered.”  U.S. v. Pelletier, supra.  The Court of Appeals found that it only needed to address the second issue – the inevitable discovery doctrine.  Under this doctrine, illegally seized evidence need not

be suppressed if the government can prove by a preponderance of the evidence that [it] inevitably would have been discovered by lawful means. . . . To satisfy this burden, the government must show that (1) `it had, or would have obtained, an independent, legal justification for conducting a search that would have led to the discovery of the evidence’; and (2) `it would have conducted a lawful search absent the challenged conduct.’ U.S. v. Marrocco, 578 F.3d 627 (U.S. Court of Appeals for the 7th Circuit 2009). In other words, the government must show not only that it could have obtained a warrant, but also that it would have obtained a warrant. . . .

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

The Court of Appeals found that the government had established both requirements in this case.  As to the first, the court noted that Pelletier told two FBI agents he had

child pornography on his computer. Those statements obviously provided probable cause to believe [he] possessed child pornography. Pelletier counters that many of these statements should have been suppressed because he was not given his Miranda warnings, but we have already rejected that argument. Even if these statements were suppressed, it would not make a difference. Pelletier claimed in the district court that he was entitled to Miranda warnings immediately after `Agent Cherry ascertained that child pornography was likely on [Pelletier's] computer.’

If Agent Cherry knew there `likely’ was child pornography on Pelletier's computer, then Cherry had more than enough evidence to seek a search warrant. . . .Thus, the government would have had ample evidence for a search warrant even if Pelletier prevailed in his Miranda claim.

U.S. v. Pelletier, supra. 

As to the second requirement – the government’s demonstrating that it would have obtained a search warrant -- the Court of Appeals noted that the government did not have to show that it actually obtained a warrant.  U.S. v. Pelletier, supra.  Instead, it merely needs to show that it would be unreasonable to find that after discovering the information in question, the agents would not have sought a warrant.  U.S. v. Pelletier, supra.  It then explained that the government’s case on this point was “compelling”:

It is unreasonable to think that, after Pelletier admitted to two FBI agents that he had child pornography, the FBI would have failed to follow up and obtain a search warrant. That fact alone is enough for the inevitable discovery doctrine to apply. . . . Indeed, Dempsey testified [at the suppression hearing] that, during the interview, he called both state and federal law enforcement authorities to start pursuing a search warrant, should it become necessary later. . . . [T]here is ample evidence that the FBI inevitably would have discovered Pelletier's child pornography cache.

Pelletier's only response is that the agents declined to arrest him on the day of the interview. This, he contends,  `calls into question any claim that a warrant would have inevitably been obtained.’ We disagree.

The fact that police may deprive someone of their liberty does not mean that they should. . . . Here, the FBI agents easily could have decided that immediately arresting Pelletier was unnecessary because he still thought he was a job candidate and therefore was unlikely to flee. We think that act of discretion demonstrated sound judgment, not a weak case. 

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

Monday, November 26, 2012

The Wireless Signal, Moocherhunter and the 4th Amendment

After being charged with possessing child pornography in violation of 18 U.S. Code § 2252(a)(4)(B), Richard Stanley moved to suppress certain evidence.  U.S. v. Stanley, 2012 WL 5512987 (U.S. District Court for the Western District of Pennsylvania 2012).   

On May 24, 2012, the district court judge held a hearing on his motion, at which it “heard testimony from Cpl. Robert Erdely (retired) of the Pennsylvania State Police” and received “certain exhibits” into evidence.  U.S. v. Stanley, supra. In this opinion, the judge is ruling on the motion to suppress.

In the paragraphs below, I’m summarizing the judge’s very detailed description of the investigation that led to the charges against Stanley.  Everything below comes from the opinion cited above.  U.S. v. Stanley, supra.

On November 11, 2010, Erdely was investigating the distribution of child pornography files over peer-to-peer file-sharing networks when he discovered a computer sharing seventy-seven files on the Gnutella network. By using hash values for known child pornography, he confirmed that “several” of the files contained child pornography. U.S. v. Stanley, supra.

Erdely identified the globally unique identification (“GUTD”) of the person sharing these files on the Gnutella network as “8754E6525772BA0134C4C6CACF12E300” (“300 GUID”).  U.S. v. Stanley, supra. He also identified that the subject computer was using an IP address of “” Using publically available records, Erdely determined that the IP address was subscribed to through Comcast Cable and got a court order directing Comcast to identify the subscriber of that address. U.S. v. Stanley, supra.  Comcast said it was assigned to William Kozikowski and provided his home address in Allegheny County.

Based on the information above, Erdely obtained and executed a search warrant for Kozikowski's home. He found two computers, but neither contained file-sharing software with the 300 GUID. Erdely learned that Kozikowski was running a wireless network in which one computer was connected to the wireless router via a cable, while another was connected to it via a signal. Kozikowski's network was unsecured, i.e., did not require users to enter a username and password to connect. Kozikowski told Erdely he had not given anyone outside his home permission to use his internet connection. U.S. v. Stanley, supra.

Kozikowski left his router unsecured and let Erdely place a computer in his home and connect it to his router. On January 19, 2011, Erdely was using a computer system in Harrisburg that let him view the search results of other officers’ investigations of child pornography.  He learned that Jessica Eger, an employee of the Pennsylvania Attorney General's Office and Paula Hoffa, an investigator with the Hartland Police Department, each identified a computer sharing child pornography that had the same 300 GUTD as the subject computer identified by Erdely. U.S. v. Stanley, supra.

After learning about their investigations, Erdely logged into the computer in Kozikowski's home from his computer in Harrisburg and examined the configuration of his wireless router.  The 215 IP address was assigned to Kozikowski's router; its logs showed a computer connected to it with a private IP address of “” and a MAC address of “mac=00–lC–B3–B4–48–95”. U.S. v. Stanley, supra. The networking card was an Apple wireless device, which led Erdely to believe the computer using the private 114 IP address was an Apple computer. U.S. v. Stanley, supra. Neither of Kozikowski’s computers was an Apple computer.

Erdely learned that the computer using the private 114 IP address was using port 6346 to interact with other devices assigned IP addresses. U.S. v. Stanley, supra.  He had seen port 6346 used consistently by persons using the Gnutella network to view and share child pornography.

Erdely decided to use Moocherhunter to locate the computer assigned the 114 IP address. He had received “a few minutes of training” on the use of Moocherhunter and used a free version of the program, which was available on the manufacturer's website. U.S. v. Stanley, supra. According to the opinion, the site described Moocherhunter as a free mobile tracking software tool for the real-time on-the-fly geo-location of wireless moochers, hackers and users of wireless networks for objectionable purposes”.  U.S. v. Stanley, supra.

The program has an “active mode and a passive mode”; Erdely used it in the passive mode.  U.S. v. Stanley, supra. “In the passive mode, the user . . . enters the MAC address of a wireless router that is connected to a wireless device and traces the signal of that wireless device from the wireless router back to its source.” U.S. v. Stanley, supra. Erdely downloaded the “software to his laptop, connected a directional antenna to his laptop, and used a USB wireless card to connect to Kozikowski's wireless router.” U.S. v. Stanley, supra.

Moocherhunter provides a reading that indicates how close the user of the software is to the source of a signal, with 100 being the highest possible reading. Erdely followed the signal from Kozikowski's wireless router and pointed the antenna across the street from his residence, which is directly across the street from Stanley's residence. . . . Stanley's residence is one unit in an apartment complex comprised of six units. . . .

When Erdely pointed the antenna . . . toward the . . . building in which Stanley resided, the meter reading was 67. Erdely . . . walked across the street to the sidewalk in front of the apartment building in which Stanley's unit was located. . . .

When [he] stood on the sidewalk in front of Stanley's residence and pointed the antenna toward the front door . . ., the meter reading was 100. When Erdely pointed the antenna to the left or right of Stanley's residence, the meter reading weakened. Based on the Moocherhunter readings, Erdely determined the signal from the computer assigned the 95 MAC address to connect to Kozikowski's wireless router was emanating from Stanley's residence.

U.S. v. Stanley, supra.

Erdely used the information he had obtained to get a search warrant for Stanley’s residence, which he executed.  U.S. v. Stanley, supra.  Evidence “obtained from the search of Stanley’s home and computer” was used to charge him with possessing child pornography, and was therefore the focus of the motion to suppress noted above.  U.S. v. Stanley, supra.  Stanley apparently argued that the search of his home and computer violated the 4th Amendment because while it was conducted pursuant to a warrant, the warrant was the product of another search that violated the 4th Amendment.  U.S. v. Stanley, supra.  He claimed Erdely’s use of Moocherhunter to track the wireless signal to his home was a 4th Amendment “search.”  U.S. v. Stanley, supra.

The judge began her analysis of Stanley’s argument by noting that it required her to determine whether he “had a legitimate expectation of privacy in the wireless signal he caused to emanate from the computer in his home to Kozikowski's wireless router and the wireless signal he received back from Kozikowski's wireless router in order to connect to the internet.”  U.S. v. Stanley, supra.  As Wikipedia notes, and as I have explained in prior posts, the 4th Amendment bans “unreasonable” searches and to be “reasonable” a “search” must either be conducted pursuant to a warrant or to an exception to the warrant requirement. 

As I’ve also explained in prior posts, a “search” violates a “reasonable expectation of privacy” in a place or thing.  In Katzv. U.S., 389 U.S. 347 (1967), the Supreme Court held that one has a reasonable expectation of privacy in a place or thing if (i) they believe (subjectively) that it is private and (ii) society agrees that their belief is objectively reasonable.  For more on that, check out this prior post.

The judge began her analysis of whether using Moocherhunter to track the wireless signal was a search by citing the Katz test and then pointing out that the Supreme Court “has held that under the 4th Amendment, there is no reasonable expectation of privacy in information voluntarily conveyed to third parties.”  U.S. v. Stanley, supra. 

The case the judge was referencing was the Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), which I’ve discussed in prior posts.  In Smith, the Court held that a man did not have a 4th Amendment expectation of privacy in the numbers he dialed from his home phone, and which were recorded by a pen register officers had installed on his phone, because he voluntarily conveyed that information to the phone company.  As I’ve noted, the Smith Court found that if someone shares information with another person, they assume the risk that the person will betray them by sharing it with other parties.

The judge in this case essentially found that it was indistinguishable from Smith:

Here, Moocherhunter monitored the strength of a signal that Stanley voluntarily caused to send from his computer to Kozikowski's wireless router and to receive a signal back from the wireless router in order to gain unauthorized access to Kozikowski's internet connection.

In both cases, the party seeking suppression of evidence assumed the risk that information disclosed to a third party may be turned over to the police. Notably, Moocherhunter, like the pen register, did not reveal the contents of the communications; it only revealed that communications were taking place.

U.S. v. Stanley, supra. 

The judge also noted that

[e]ven though that signal was sent from and to the inside of Stanley's home and revealed there was a computer inside of the home, no expectation of privacy existed. By connecting to Kozikowski's wireless router, Stanley exposed his wireless signal to a third party and assumed the risk that the signal would be revealed to the authorities.

Like the defendant in Smith who dialed a telephone number from inside his home, Stanley cannot hide behind sending the signal from inside his home and claim he had a reasonable expectation of privacy in the signal.

U.S. v. Stanley, supra. 

She therefore held that Stanley

did not have a reasonable expectation of privacy in the wireless signal he caused to emanate from his computer to Kozikowski's wireless router or the wireless signal he received from Kozikowski's wireless router in order to connect to the internet. The information logged on that wireless router was accessible to Kozikowski and through his consent, to Erdely.

This information showed the private IP address of Stanley's computer. Stanley, therefore, could have no reasonable expectation of privacy in the signal he was sending to or receiving from Kozikowski's wireless router in order to connect to the internet.

U.S. v. Stanley, supra. 

Finally, she also rejected Stanley’s argument that Erdely’s use of Moocherhunter was a 4th Amendment “search” under the Supreme Court’s decision in Kyllo v. U.S., 533 U.S. 27 (2001).  U.S. v. Stanley, supra. 

As I explained in a prior post, in Kyllo the Supreme Court held that it is a 4th Amendment “search” to use technology that is not in general public usage to obtain information from inside a home that could not otherwise be obtained except by entering the home.  The judge found that Kyllo did not apply because, unlike Kyllo, Stanley voluntarily shared the information at issue with a third party.  U.S. v. Stanley, supra.  

Friday, November 23, 2012

The District Attorney, Sexual Harassment and the Civil Rights Suit

The U.S. District Court for the Eastern District of Wisconsin recently issued an opinion addressing an issue that arose in a civil rights suit against a former prosecutor.  The case is S.V. v. Kratz, 2012 WL 5833185 (2012), and this is how it arose:

S.V. lived in an abusive relationship with S. K., the father of her child, for years. . . . In 2009, she reported to police that S.K. had beaten and strangled her, and on August 12, 2009, S.K. was charged in the Circuit Court for Calumet County with felony strangulation and suffocation under circumstances that constituted domestic abuse. . . .

At the time, Kratz was the District Attorney of Calumet County. Kratz met with [S.V.] three times in October 2009 in connection with the case against S.K. During the first two meetings, the office's victim-witness coordinator was present. At the third meeting, which occurred on October 20, 2009, Kratz met alone with [S.V.] in a conference room at his office. . . . Kratz confirmed that he would be in charge of the prosecution, which [S.V.] understood to mean she would be relying upon him directly for assistance regarding her participation in the process as . . . the complaining witness in the prosecution.

At 3:45 p.m. on October 20, . . . [S.V.] received the first of some thirty text messages Kratz sent to her over the next 48 hours. The messages . . . will not be repeated here. Suffice it to say that during the course of his text messaging, Kratz solicited a sexual relationship with [S.V.]. After [she] stopped responding to his messages, Kratz sent a final message at 3:25 p.m., on October 22, 2009, just short of forty-eight hours after his first. It read: `When the case is over, if you change your mind and want to meet for a drink, please tell me. Otherwise I will respect your desire to be left alone.’

S.V. v. Kratz, supra.

When Kratz was sending his final message to S.V., she was at a police department in

an adjoining county with her mother, where she had gone to file a complaint. Even though she had not communicated the fact to Kratz, [S.V.]. found his messages and solicitation unwelcome and offensive. She claims she was upset and felt uncomfortable, injured and humiliated by his behavior. She also felt frightened, threatened, and intimidated by the pressure Kratz was placing on her.

[S.V.] feared that if she confronted Kratz directly it would have an adverse effect on the prosecution of S.K. or would cause Kratz to retaliate against her in some other way. . . . Fearing that Kratz's position as District Attorney of Calumet County gave him authority over other law enforcement agencies within the County, she had decided to report his conduct to a law enforcement agency outside of the County. She also refused thereafter to have any further involvement with the prosecution of S.K.

S.V. v. Kratz, supra.

S.V. eventually filed a lawsuit “against Kratz seeking damages for violation of her civil rights under 42 U.S. Code § 1983.” S.V. v. Kratz, supra.  The issue the judge is dealing with in this opinion has nothing to do with the merits of the suit, i.e., with whether Kratz violated S.V.’s civil rights.  It involves another issue:

The State of Wisconsin and its political subdivisions are required to indemnify public officers and employees for any judgment against them . . . because of acts committed by them while carrying out their duties as an officer or employee if they are found to have been acting within the scope of their employment. Wisconsin Statutes §895.46(1)(a). The State intervened in this action seeking a determination that it had no duty to indemnify Kratz for any liability he may have to [S.V.] under this section because Kratz was acting outside the scope of his employment as the District Attorney of Calumet County when he engaged in the activities on which [S.V.]’s claim is based.

S.V. v. Kratz, supra.

The State of Wisconsin filed a motion for summary judgment, asking the judge to rule – without having the issued decided by a jury at trial – that it was not required to indemnify Kratz.  S.V. v. Kratz, supra.  As I have noted in earlier posts, a judge can grant summary judgment on an issue for a party to a civil suit is there are no “material facts”, i.e., facts the resolution of which would affect the outcome of the suit, in dispute. 

Here, the State of Wisconsin claimed it was entitled to summary judgment on the indemnification issue because Kratz was acting outside the scope of his employment

when he engaged in the alleged conduct. Under the indemnity statute, the government employer of a public officer or employee sued . . . for acts committed while carrying out duties as an officer or employee must pay any judgment entered against such defendant officer or employee if `the jury or the court finds the defendant was acting within the scope of employment. . . .’ Wisconsin Statutes § 895.46(1)(a). . . .The question presented here is whether Kratz is entitled to the benefit of this statute.

S.V. v. Kratz, supra.

The judge explained that an employee acts within the scope of his/her employment

when `doing that which is warranted within the terms of his or her express or implied authority, considering the nature of the services required, the instructions he or she has received, and the circumstances under which his or her work is being done or the services are being rendered.’ Estate of Murray v. Travelers Ins. Co., 229 Wis.2d 819, 601 N.W.2d 661 (Wisconsin Court of Appeals 1999) (quoting Restatement(Second) Of Agency § 228(2) (1957)). The inquiry thus involves looking objectively at the employee's actions in light of their employment position, authority, and duties, and also considering the employee's subjective intent.

S.V. v. Kratz, supra.

He also noted that when “an employee knowingly violates express employer policies, civil or criminal laws, licensing regulations, or disciplinary codes in engaging in the conduct at issue, such evidence may be a powerful indication that the employee was acting outside the scope of employment.” S.V. v. Kratz, supra.  But he also noted that

as a rule, employee conduct that is prohibited or even criminal does not necessarily fall outside the scope of employment. For example, other courts have examined whether a police officer's use of force or use of a weapon fell outside the scope of employment, and concluded it is a question of fact that a jury must decide. 

S.V. v. Kratz, supra. 

The judge found that the cases involving an officer’s use of force highlight a fact that

is not present in cases such as this where the defendant officer or employee is sued for actions that are sexually motivated. The need to use force is an inherent part of a police officer's duties. . . . This is especially true when a law enforcement officer is required to immediately respond to a violent or potentially violent situation. . . . The need to use force under such circumstances is an essential part of a law enforcement officer's job, and frequently it will not be clear whether an officer's use of force was a result of over-zealous policing or whether he or she had actually `fully stepped aside’ from their duties as an officer.

The same uncertainty does not exist where an employee engages in sexual misconduct. In such situations it is often easier to draw bright lines because there is no spectrum of acceptable behavior. For a prosecutor in Kratz's position, for example, soliciting a sexual relationship with a victim of a crime he is in the process of prosecuting is never a part of the job description. Thus, courts have often found as a matter of law that sexually motivated acts fall outside the scope of employment. 

S.V. v. Kratz, supra. 

He also noted, though, that this does not mean that the “mere fact” that a government

officer or employee is accused of sexual misconduct removes him from the protection of the indemnification statute as a matter of law. If the acts alleged are unclear or can be reasonably viewed as furthering a purpose other than the employee's own sexual desires, summary judgment would be inappropriate.

S.V. v. Kratz, supra. 

The judge found that in this case, “there is no reasonable view of the facts that supports the assertion that Kratz's text message sexual solicitation of [S.V.] was `at least partially actuated by a purpose to serve [his] employer.’”  S.V. v. Kratz, supra.  He noted that Kratz had stated in a declaration filed with the court that one of his job duties as

Calumet County District Attorney was to communicate personally with crime victims, including `maintaining continuing contact with [victims] regarding the prosecution.’ . . . Based on this statement, [S.V.] contends Kratz's text messages were simply an improper method of carrying out an otherwise authorized incident of his job. . . .

But Kratz has not been sued for sending text messages to [S.V.]; it is his sexual solicitation of her that forms the basis of [her] action against him. While Kratz may have regularly communicated with crime victims regarding the prosecution of cases they were involved in, that was not the activity he undertook here. No reasonable jury could find Kratz believed his continuous stream of text messages to Plaintiff culminating in his appeal -- `I'm serious! I'm the atty. I have the $350,000 house. I have the 6–figure career. You may be the tall, young, hot nimph, but I am the prize! Start convincing’ -- was in service to the county he was elected to serve. 

S.V. v. Kratz, supra. 

The judge also pointed out that the “plain language of the text messages document Kratz’s awareness that his actions were improper.”  S.V. v. Kratz, supra. 

He stated: `Its [sic] maybe not the wisest thing I can do, but you are awfully sweet. Just don't tell anyone, ok?’ and `I know this is wrong.’ He also asked [S.V.]: `Are you the kind of girl that likes secret contact with an older married elected DA . . .  the riskier the better? Or do you want to stop right know [sic] before any issues?’

Other messages stated: `[y]es you are a risk taker and can keep your mouth shut and you think this is fun . . . or you think a man twice your age is creepy so stop’ and `[r]emember it would have to be special enough to risk all.’

These messages contradict Kratz's self-serving declaration that he was intending to serve his employer's interest and to `enhance the plaintiff's confidence in me as a competent prosecutor’ despite the fact that some of the text messages were `not an appropriate way to compliment the plaintiff or build her self-esteem.’ . . . Rather, the messages transparently seek a sexual relationship with [S.V.], and do not relate to any conceivable prosecution function. 

S.V. v. Kratz, supra. 

Kratz also argued that the text messages where within the scope of his employment (i) because he used “contact information properly obtained from” S.V. and (ii) they “were all sent within normal working hours”.  S.V. v. Kratz, supra.  The judge found, as to the first  issue, that “[e]ven if Kratz obtained [S.V.]’s contact information and began the conversation with work-related purposes in mind, the offending messages can only be viewed as actions Kratz took after he had `stepped aside’ from any employment purpose.” S.V. v. Kratz, supra.  The judge also found that the fact the messages were “sent during business hours does little to tie the conduct to work.”  S.V. v. Kratz, supra. 

Since, for these and other reasons, the judge found that “no rational trier of fact could conclude that Kratz was acting within the scope of his employment,” there was no genuine issue of fact to be determined at trial, he granted the State summary judgment on the indemnification issue.  S.V. v. Kratz, supra. 

If you are interested in Kratz’s explanation for why all this happened, and for some other problems it caused for him, check out the story you can find here