Wednesday, January 30, 2013

Impersonating a Federal Officer, the Laptop and the 4th Amendment

After being charged with detaining a person while impersonating a federal officer in violation of 18 U.S. Code § 913, producing a fraudulent identification document in violation of 18 U.S. Code § 1028(a)(1) and possessing a fraudulent identification document in violation of 18 U.S.Code § 1028(a)(6), Eric Marques Devlin–Bell, Jr. moved “to suppress all evidence taken from the laptop” found in his car on April 12. U.S. v. Bell, 2013 WL 194200 (U.S.District Court for the Eastern District of Pennsylvania 2013).  

The case began on April 6, 2012, when Cain Township Police Department Sergeant

Chris Sambuco stopped a dark blue Ford Crown Victoria driven by Bell for failure to use a turn signal. . . . Bell's car had tinted windows, three antenna mounts, and two LED suction cup police-style warning lights adhered to the back window. A female was in the front passenger seat. Upon approaching the driver side door, Sambuco noticed Bell was wearing a nylon police belt with pouches and carrying a handgun. Sambuco also heard a cellular phone in the car scanning the Chester County Police radio.

Sambuco directed Bell to place both hands on the steering wheel and asked for his driver's license, vehicleregistration and proof of insurance. Bell produced the registration, proof of insurance, and a Pennsylvania identification card. Sambuco walked back to his patrol car to verify the information, and learned Bell's Pennsylvania driver's license was suspended, but his insurance and registration were in proper order.

U.S. v. Bell, supra.

Sambuco went back to the car and “invited” Bell to speak with him outside the passenger’s hearing.  U.S. v. Bell, supra. They walked to the rear of Bell’s car, where Sambuco told Bell he was going to issue him several citations (one of which apparently involved “his car’s window tint”).  U.S. v. Bell, supra. After telling Bell he could not drive the car because his license was suspended, Sambuco left Bell in the parking lot where the encounter took place.  U.S. v. Bell, supra.

On April 10, 2012, Tredyffrin Township Police Department Detective Todd Bereda began investigating an encounter involving Michael Boykins, whose car was disabled, and “a man wearing security gear, police related regalia, and a badge, and driving a dark blue Ford Crown Victoria outlined with lights and whip antennas”. U.S. v. Bell, supra. Boykins later identified the man as Bell.  U.S. v. Bell, supra. Bereda learned about that and also learned about Sambuco's encounter with him. U.S. v. Bell, supra. And he found out Bell’s driver's license was suspended until 2015.  U.S. v. Bell, supra.

On April 12, Bereda met with Sambuco and Chester County Detective Matthew Gordon to set up a consensual encounter with Bell to discuss the encounter between Bell and Boykins. U.S. v. Bell, supra.  Among other things, they “partially filled out” a Waiver of Rights and Consent to Search form to use during the encounter. It authorized a search of Bell’s Crown Victoria and the seizure of “any police lights and any police and/or law enforcement style identifications.”  U.S. v. Bell, supra.

Bereda and Sambuco then used a marked Caln Township Police patrol car to drive to Bell's last known address. U.S. v. Bell, supra. As they drove, “they saw Bell driving the dark blue Crown Victoria”.  U.S. v. Bell, supra. Sambuco turned the emergency lights on, signaling Bell to stop. U.S. v. Bell, supra. Bell pulled into a parking lot; the stop began at approximately 6:00 p.m. U.S. v. Bell, supra.

Sambuco pulled into the lot and parked 10 to 20 feet behind Bell's car. U.S. v. Bell, supra. He got out, approached the driver's side of Bell's car and asked for his driver's license, vehicle registration and insurance card. U.S. v. Bell, supra. Sambuco saw Bell's firearm in a holster on the front passenger seat. U.S. v. Bell, supra. Bell gave Sambuco his registration, insurance card and Pennsylvania identification card. U.S. v. Bell, supra.

After Bell gave him his identification and documents, Sambuco removed the ammunition from Bell's firearm and put it and the ammunition “in separate locations in the car for safety.” U.S. v. Bell, supra. At Sambuco's request, Bell got out of the car and walked with Sambuco to the rear of his car. U.S. v. Bell, supra. Sambuco t handed Bell's documents Det. Bereda, who began talking to Bell. U.S. v. Bell, supra. 

Sambuco then told Bell that while they could issue a citation for driving with a suspended license, they had decided not to do so; Bereda gave Bell his documents and told him he was free to leave.  U.S. v. Bell, supra. Bereda started walking back to the patrol car, but stopped and asked Bell if he would talk about the encounter with Boykins.  U.S. v. Bell, supra.  After they had chatted for about an hour, standing near Bell’s vehicle, Bereda asked Bell if he would consent to a search of his car, handing Bell the consent to search form the officers had partially filled out earlier.  U.S. v. Bell, supra.

After Bell signed the form, the officers searched his car and seized these items:

i. One silver security officer's badge attached to a chain;

iii. One `U.S. Enforcement Officer’ identification card depicting Bell's photograph; and

iv. One laptop computer.

U.S. v. Bell, supra.

Bell was “cooperative and congenial” until they found the laptop. U.S. v. Bell, supra. The officers were “suspicious” of the checks because “title” was misspelled and the phone number on them “was disconnected.”  U.S. v. Bell, supra.  When Bereda said he thought they were counterfeit, Bell said “a copy of one of the checks was on the computer,” and offered to show them. U.S. v. Bell, supra.  When he turned on the laptop, the officers “saw the emblem of the Federal Bureau of Investigations on the screen.” U.S. v. Bell, supra.  Because Gordon thought Bell might delete what was on the laptop, he did not ask for consent to search it, “but rather stopped talking to Bell, effectively ending the consent search.” Det. Gordon then seized the laptop and left. U.S. v. Bell, supra. The other officers left a few minutes later.  U.S. v. Bell, supra.

On April 13, Gordon got a warrant to search the laptop “for evidence of forgery.”  U.S. v. Bell, supra. On June 5, a U.S. Magistrate Judge issued a warrant authorizing a search of the laptop for evidence of the “federal crimes of impersonating a federal officer, producing and/or possessing a fraudulent identification document, mail fraud, and wire fraud.” U.S. v. Bell, supra.  The laptop was searched on July 27, 2012 and the search apparently produced evidence that led to the federal charges.  U.S. v. Bell, supra.

In moving to suppress, Bell claimed the search of his laptop violated the 4th AmendmentU.S. v. Bell, supra. He conceded that the traffic stop did not violate the 4th Amendment because Bereda and Sambuco knew he was driving without a driver’s license, which allowed them to “seize” Bell by stopping him to issue a citation for the violation.  U.S. v. Bell, supra. (The 4th Amendment creates a right to be free from “unreasonable” searches and seizures; a “seizure” of person involves law enforcement officers’ interfering with a person’s freedom of movement, such as stopping Bell and detaining him while they checked out the violation.)

The U.S. District Court judge who has the case disagreed, finding that the seizure of

Bell terminated when, within five minutes of the initiation of the stop, Bereda returned Bell's insurance card, registration, and identification; told Bell he was not citing him for driving with a suspended license; informed Bell he was free to leave; and began walking back to his patrol car. The subsequent conversation about the April 9 incident between Bell and Bereda was entirely consensual.

U.S. v. Bell, supra.

By consenting to an encounter with police, a person waives, or gives up, his or her 4th Amendment rights.  So, since Bell could have left but did not, he was not “seized” by the officers, so the encounter raised no 4th Amendment issue.  The judge also found that Bell consented to the search of his car, which meant that, as noted above, he waived his 4th Amendment rights with regard to the search.  U.S. v. Bell, supra.

Finally, Bell argued that the evidence found on the laptop “must be suppressed because the Government detained it for an unreasonable amount of time in violation of his 4th Amendment rights.”  U.S. v. Bell, supra. As noted above, it was seized on April 12 but the federal search was not conducted until July 27.  U.S. v. Bell, supra.

In addressing this argument, the judge noted that a “‘seizure lawful at its inception can nevertheless violate the 4th Amendment if its manner of execution unreasonably infringes possessory interests protected by the 4th Amendment's prohibition on unreasonable seizures.’“ U.S. v. Bell, supra (quoting U.S. v.Jacobsen, 466 U.S. 109 (1984)). Bell argued that the interference with his 4th Amendment interests in his

computer is particularly intrusive because computers are commonly used to store highly personal information. . . . his new business venture. This argument . . . is somewhat undermined by the fact that after the computer was seized, Bell never asked for it to be returned. . . . The fact Bell protested the seizure of his laptop adds little to the balancing because he nevertheless has not asked for its return.

U.S. v. Bell, supra.

The judge also found it was “significant” that a warrant to search Bell’s computer was

obtained the day after it was seized. `The longer the police take to seek a warrant, the greater the infringement on the person's possessory interest will be, [because] a greater infringement on possession than a shorter one.’ U.S. v. Burgard, 675 F.3d 1029 (U.S. Court of Appeals for the 7th Circuit 2012). In U.S. v. Mitchell, 565 F.3d 1347 (U.S. Court of Appeals for the 11th Circuit 2009), . . . the Government waited 21 days before applying for a warrant, an amount of time which the court found was unreasonable. . . As noted in Mitchell, one of the purposes of obtaining a search warrant promptly after an item is seized is to ensure the item is promptly returned should the search reveal no incriminating evidence. 

Here, within one day of the seizure, a Chester County magisterial district judge determined probable cause existed that the computer contained evidence of a crime and issued a search warrant. . . . Bell admitted during the April 12 encounter and in a call with Bereda soon after the encounter that the computer contained evidence concerning fraudulent checks. Thus, the likelihood that Bell's computer would not be returned to him significantly mitigates the intrusion upon his 4th Amendment interests. 

U.S. v. Bell, supra.

Bell also claimed the delay in obtaining the federal search warrant was objectionable, but the judge found it was not “unreasonable” in violation of the 4th Amendment because

federal investigators did not begin their investigation of Bell until April 13, the same day the state warrant was issued. Accordingly, some delay in obtaining the federal warrant was necessary to allow federal investigators an opportunity to determine (a) whether a federal crime had been committed, and (b) whether Bell's computer contained evidence of those federal crimes. Meanwhile, Bell's interest in the property remained relatively weak because he admitted the computer contained evidence he had forged checks, a possible state and federal crime.  Moreover, in investigating Bell's commission of federal crimes, the federal investigators relied heavily on cooperation from Chester County and Tredyffrin Township law enforcement agencies. There is an obvious public and government interest in promoting local and federal cooperation on criminal investigations.

U.S. v. Bell, supra.

Finally, the judge found there was no reason to believe “probable cause to search Bell's computer dissipated after the [state] warrant was issued” because “the computer remained in the custody of the Chester County Detectives Office and then federal law enforcement officers.”  U.S. v. Bell, supra.  He therefore denied Bell’s motion to suppress.  U.S. v. Bell, supra.

If you would like to read more about the facts in this case, check out the news story you can find here

Monday, January 28, 2013

Illegal Gratuities, Emails and Official Acts

After a jury convicted him of three counts of honest-services fraud in violation of 18 U.S. Code § 1346, one count of paying an illegal gratuity in violation of 18 U.S. Code § 201(c) and one count of conspiracy to pay illegal gratuities and commit honest-services fraud in violation of 18 U.S. Code § 371, Kevin A. Ring appealed.  U.S. v. Ring, __ F.3d __, 2013 WL 276020 (U.S. Court of Appeals for the D.C. Circuit 2013).

On appeal, he made three arguments, only one of which I’ll address in this post.  That argument challenged his conviction under 18 U.S. Code § 201(c), the paying an illegal gratuity charge.  U.S. v. Ring, supra.  

The first of the other two arguments challenged his convictions for honest-services fraud; more precisely, Ring claimed that the district court judge who presided over his trial improperly instructed the jury on “the quid pro quo” element of the offense. For more on that issue, check out the article you can find here. The other argument challenged the judge’s admission of certain evidence.

To understand the illegal gratuity charge (and the whole prosecution), it is necessary to understand what Ring was doing prior to being indicted:

[A]fter stints working for a member of the U.S. House of Representatives, a U.S. Senate committee, and the House Republican caucus, [Ring] joined Jack Abramoff's lobbying team in 1999. Until its fall from grace, Abramoff's group maintained a successful and wide-ranging lobbying practice in Washington, D.C. Playing a role some characterized as the team's `chief operating officer,’ Ring managed some of Abramoff's most important clients and maintained close relationships with several public officials.

Ring and the other Abramoff lobbyists relied heavily on campaign contributions to maintain relationships with elected officials and promote their clients' political interests. But it was Ring's other lobbying tactics that got him in trouble.

These tactics chiefly included treating congressional and executive branch officials to dinners, drinks, travel, concerts, and sporting events. Ring referred to officials with whom he had the closest ties and with whom his lobbying efforts were most successful as his `champions’ As regular beneficiaries of Ring's largesse, these `champions’ often took actions that were favorable to Ring's clients.

U.S. v. Ring, supra.  The opinion notes that in 2004, a “federal investigation of a kickback scheme masterminded by Abramoff and another of his associates . . . spawned the broader investigation that ultimately ensnared Ring.”   U.S. v. Ring, supra. 

That brings us to the illegal gratuity charge.  The appellate court noted explained that the

illegal-gratuity statute makes it unlawful to `give[ ], offer[ ], or promise [ ] anything of value to any public official . . . for or because of any official act.’ 18 U.S. Code § 201(c). The statute defines `official act’ as `any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit.’ 18 U.S. Code § 201(a)(3). This Circuit treats the question whether an action constitutes an `official act’ as one of `sufficiency of the evidence.’ See Valdes v. U.S., 475 F.3d 1319 (U.S. Court of Appeals for the District of Columbia Circuit 2007). . . . 

U.S. v. Ring, supra. 

The court then addressed the factual basis of this count, noting Ring was charged

with paying an illegal gratuity when he gave Washington Wizards tickets to an attorney at the Justice Department's Office of Intergovernmental Affairs as a reward for helping to expedite review of a visa application for a foreign student seeking to attend a private school owned by Abramoff. Upon receiving a request for assistance from Ring, the attorney forwarded Ring's email to another Justice Department official who recommended he contact someone at the U.S. Immigration and Naturalization Service (`INS’).

Following this advice, the attorney called an INS official's secretary and urged her to expedite the application. He then forwarded Ring's email to the secretary along with a personal note:

`Thank you for looking into this. I do not know if anything can be done but I said I would look into it. If, for any reason, nothing can be done, please email me so I can pass that along. Thank you very much for you[r] assistance.’

The secretary, in turn, passed the email along to five different INS officials in an effort to, as she testified, `make sure . . . action was being taken to answer the request’ because it had come from `higher headquarters’ at the Department of Justice.

Within a single business day, INS agreed to expedite the application. After getting the news that the attorney's efforts had been successful, Ring sent Abramoff an email reporting that the attorney had `[h]elped on the school and [was] now looking for tickets’ to two Washington Wizards basketball games. Abramoff promptly agreed, and the attorney attended the games on Abramoff's dime.

U.S. v. Ring, supra. 

The Court of Appeals noted that by

convicting on the illegal-gratuity count, the jury found -- and Ring does not now dispute -- that he provided the tickets `for or because of’ the attorney's assistance with the visa application. Instead, Ring argues that the government failed to offer sufficient evidence that the attorney took an `official action’ within the meaning of the illegal-gratuity statute.

U.S. v. Ring, supra. 

The court explained that in Valdes v. U.S., supra, it considered the

scope of `official act’ in the illegal-gratuity context. There, a police officer accepted money from an undercover agent and, at the agent's request, conducted searches of license-plate and warrant databases. . . . Emphasizing that the illegal-gratuity statute is concerned not with purely informational inquiries, but rather with `inappropriate influence on decisions that the government actually makes,’ . . . we held that the jury lacked sufficient evidence to find that the officer's searches constituted `official acts’. . . .  

In so doing, we listed some examples of acts that `the statute easily covers: a clerk's manufacture of official government approval of a Supplemental Security Income benefit, as in U.S. v. Parker, 133 F.3d 322 (U.S. Court of Appeals for the 5th Circuit 1998); a congressman's use of his office to secure Navy contracts for a ship repair firm, as in U.S. v. Biaggi, 853 F.2d 89 (U.S. Court of Appeals for the 2d Circuit 1988); and a Veterans' Bureau official's activity securing a favorable outcome on a disability claim, as in Beach v. United States, 19 F.2d 739 (U.S. Court of Appeals for the 8th Circuit 1927) (based on a predecessor statute).’ Valdes v. U.S., supra. We further noted that `official acts’ include acts that have been established as part of an official's position by virtue of past practice or custom.  Valdes v. U.S., supra.

U.S. v. Ring, supra. 

Ring based his argument on the Court of Appeals’ holding in Valdes, claiming that here, as in that case,

no reasonable juror could have found that the attorney's forwarding of the email constituted an `official act.’ Because the attorney lacked decision-making authority with respect to visa applications, Ring argues that the attorney's intercession was not a `decision or action’ on a `question, matter, . . . [or] proceeding’ that was or ever would be `pending’ or `brought’ before him. 18 U.S. Code § 201(a)(3).

Instead, according to Ring, the attorney's act of forwarding the email to the INS secretary amounts to nothing more than an informational inquiry, analogous to the database search in Valdes or a receptionist's transfer of a phone call.

U.S. v. Ring, supra. 

The Court of Appeals did not buy his argument.  U.S. v. Ring, supra.  It noted, first, that

[c]onsidering the evidence in the light most favorable to the government,. . .  we think it clear that a rational jury could have found that the attorney's efforts to expedite the visa application qualified as official action.

The secretary who received the attorney's email testified that the Justice Department's Intergovernmental Affairs Office was part of INS's `higher headquarters’ and was `responsible for . . . assisting other agencies and other state and local governments if they ha[d] an issue.’ In other words, unlike attorneys in DOJ units who litigate on behalf of agency clients, attorneys in the Intergovernmental Affairs Office are responsible for reaching across agency boundaries to get things done. And as the secretary went on to explain, she felt unable to ignore the attorney's request because of the office he held. Ultimately, the attorney's swift success in procuring expedited review spoke for itself.

U.S. v. Ring, supra. 

The court then explained that

[c]ontrary to Ring's contention, the attorney's actions are categorically different from those Valdes suggests fall outside the scope of `official action.’ Unlike the Valdes police officer, the attorney was neither `moonlighting’ nor making a purely informational inquiry. . . . Rather, the attorney acted in his official capacity to influence the visa application process, conduct better analogized to an action Valdes explained was clearly within the statute's coverage: `a congressman's use of his office to secure Navy contracts for a ship repair firm.’ Valdes v. U.S., supra.

To be sure, the attorney himself lacked independent authority to expedite visa applications. But Ring's attempt to import a requirement that the official in question have ultimate decision-making authority into the definition of `official act’ has no statutory basis. . . . Indeed, the statute states that `official act[s]’ include both decision[s]’ and `action[s].’ 18 U.S. Code § 201(a)(3).

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

For this and other reasons, the Court of Appeals affirmed Ring’s convictions and sentence.  U.S. v. Ring, supra.  If you would like to read more about the case, check out Wikipedia’s entry on Kevin Ring.  

Friday, January 25, 2013

Private Searches, Wireless Networks and the 4th Amendment

After he was charged with “one count of Transportation of Child Pornography and one count of Possession of Child Pornography” in violation of federal law, John Henry Ahrndt filed a motion to suppress certain evidence, which the federal district court judge who has the case denied.  U.S. v. Ahrndt, 2013 WL 179326 (U.S. District Court for the District of Oregon 2013).  

When the judge denied his motion, Ahrndt “entered a conditional guilty plea to Count 2,” the possession charge, the prosecution dismissed the other count and he was sentenced to “the mandatory minimum of 120 months” in prison on Count 2.  U.S. v. Ahrndt, supra. (You can find my post on that decision here.)

Ahrndt appealed the denial of his motion to the U.S. Courtof Appeals for the 9th Circuit, which reversed and remanded the case to the district court “for additional fact finding” regarding the actions that led to the discovery of the evidence at issue.  U.S. v. Ahrndt, 475 Fed. App’x 656 (9th Cir. 2012). The district court judge then granted his motion to withdraw his guilty plea and granted the prosecution’s motion to dismiss Count 1 (the transportation charge), so Count 2 is all that is left of the case. U.S. v. Ahrndt, supra.

In this opinion, the district court judge is ruling, again, on Ahrndt’s motion to suppress.  U.S. v. Ahrndt, supra.  He is basing this ruling on evidence presented at the evidentiary hearing he originally held on the motion and on a second hearing he held after the issue was remanded to him.  U.S. v. Ahrndt, supra.  Since the facts are critical to the ruling, I need to outline them in a fair amount of detail (though less than the opinion does).

We start with the wireless network problem:

On February 21, 2007, a woman [`JH’] was using her computer at her home in Aloha, Oregon. She was connected to the internet via her own wireless network, but, when her network malfunctioned, her computer automatically picked up another nearby network called `Belkin54G.’ Belkin54G refers to a wireless router . . .  that broadcasts a wireless signal in a roughly 400 foot radius. Its default setting has no security.

At the second evidentiary hearing, defense expert Robert Young testified that JH's laptop would not have automatically connected to Belkin54G the first time she lost her signal. Instead, her computer would have sent a signal to search for wireless routers within range of her computer and the names of available wireless routers would have appeared in a list on her computer. JH would have clicked on Belkin54G to prompt her computer to connect to that wireless router. If the router was secured, she would have had to enter a password to connect to the wireless router.

Because the Belkin54G was not secured, JH connected without entering a password. From that time forward, her computer remembered the available connection and she did not have to select Belkin54G again when her own signal failed. Nevertheless, even after that first time, to connect to Belkin54G, JH's computer needed to send a signal into Ahrndt's computer and the router's processor to use the wireless network.

U.S. v. Ahrndt, supra.  The opinion notes that a Belkin54G router comes with CD manual that notes the need to secure networks, but there was “no evidence” Ahrndt had read or received this manual. U.S. v. Ahrndt, supra. 

After JH went online via the Belkin54G network, she opened her iTunes software to listen to music. U.S. v. Ahrndt, supra.  The opinion explains that the software lets users

browse music and video stored in the iTunes libraries of other computers on the same network, if those libraries are enabled to `share.’ . . . iTunes software on one computer (`computer 2) integrates with LimeWire installed on another (`computer 1’) so when the computers are on the same network iTunes will display media on computer 2 available through LimeWire on computer 1. . . . [W]hen JH opened her iTunes, she noticed another user's library -- `Dad's LimeWire Tunes’ -- was available for sharing. . . .

U.S. v. Ahrndt, supra. 

JH opened Dad's Limewire Tunes and observed files with names that prompted her to call the Washington County Sheriff's Office a little before 10:45 p.m. U.S. v. Ahrndt, supra.  The transcript of the call shows that she began with this:

`I just um was looking at my ITunes um and I, you can share music with people that are I guess in your area and I was just um sharing some music with this I guess it's a neighbor, I have no way of knowing where they are or whatever but it's a whole bunch of um underage child pornography. I just wanted somebody to know about that.’

U.S. v. Ahrndt, supra. 

JH gave her name, address and phone number and when she was asked, “[H]ow long ago did you get, receive that?’” she said

`Its up there now. I just turned on my computer and turned on my Itunes and just saw that I was sharing music so I just checked it and um I just saw it. I mean I didn't open any of the stuff but the names are all stuff about 11 year old girls and 9 year olds you know, just stuff that I don't it sounds inappropriate.’

U.S. v. Ahrndt, supra. 

Deputy John McCullough came to her house within an hour and JH showed him “a play list of approximately 25 picture and video files”, which “had pornographic titles that indicated” they “were of underage children.” U.S. v. Ahrndt, supra.  They could not open files or identify the owner.  U.S. v. Ahrndt, supra. McCullough called his sergeant to ask “`if it would be appropriate or not . . . to look further into those files and try to determine what was enclosed within them.’” U.S. v. Ahrndt, supra.  

After talking to his supervisor, McCullough concluded it would be acceptable to investigate and asked JH to open one of the files (by then, she was able to do so). U.S. v. Ahrndt, supra. They saw a “sexually explicit image of a boy masturbating” but JH’s computer lost the signal and she could not open other files.  U.S. v. Ahrndt, supra. 

JH told McCullough the Belkin54G showed as an available network on her computer when she moved in; at the time, only one other person lived in her development. U.S. v. Ahrndt, supra.  She pointed out an older house, about 150 feet away.  U.S. v. Ahrndt, supra. McCullough ran the plates of a car in the driveway of the house and learned that Ahrndt, a convicted sex offender, lived there. U.S. v. Ahrndt, supra. 

Two days later, Sheriff's Detective Ray Marcom and Department of Homeland Security Senior Special Agent James Cole interviewed JH.  U.S. v. Ahrndt, supra.  She told them “much of what she had told McCullough.” U.S. v. Ahrndt, supra.  She remembered one file name: “11–yr old masturbating .” She remembered words such as “tiny,” “fuck,” and “cunt,” in conjunction with acronyms like “5yoa” and “8yoa.” U.S. v. Ahrndt, supra.  Cole also spoke with McCullough, who reported that some of the age acronyms, like “5yoa,” were followed by the words “getting raped” and “being raped.”  U.S. v. Ahrndt, supra. 

On April 7, 2007, Cole got a search warrant to “access the Belkin54G wireless network for the purpose of determining the internet protocol (`IP”) address associated with the router.” U.S. v. Ahrndt, supra. That same day, he drove near the house, accessed the Belkin54G network, and determined its IP address. U.S. v. Ahrndt, supra.  He used the American Registry for Internet Numbers to determine that it was a Comcast IP address and used a summons served on Comcast to learn Ahrndt was the subscriber for that IP address.  U.S. v. Ahrndtsupra. 

On April 17, Cole got a second warrant to search Ahrndt’s home for wireless routers, computers, and any files or storage media that could contain images of child pornography. U.S. v. Ahrndt, supra.  The next morning officers searched Arndt’s home and seized “one tower computer, a Belkin wireless router, various hard drives, numerous disc media and flash media.”  U.S. v. Ahrndt, supra. 

When the agents interviewed Ahrndt, he admitted “downloading child pornography as recently as eight months” before, using LimeWire, but “had deleted any images he downloaded from that time.”  U.S. v. Ahrndt, supra.  A forensic examination of the equipment found “20 images, 17 of which depicted children engaged in sexually explicit conduct.” U.S. v. Ahrndt, supra.  The first three were “advertising pages in an `orphan’ file, meaning its parent file had been deleted.” U.S. v. Ahrndt, supra. 

The next four were in a Google Hello “scache,” indicating they had been sent or transmitted. U.S. v. Ahrndt, supra.  Image 8 was a .mpg movie that had been viewed in Windows Explorer or by using a My Computer thumbnail or filmstrip view. U.S. v. Ahrndt, supra.  Image 9 was a deleted file and the last ten images were deleted files recovered from the flash drive. U.S. v. Ahrndt, supra.  The opinion notes there was evidence Ahrndt had used LimeWire to download child pornography eight months earlier, but “no evidence he was using iTunes or deliberately sharing files.”  U.S. v. Ahrndt, supra. 

The judge then turned to Ahrndt’s argument that McCullough’s conduct constituted a search that was unlawful under the 4th Amendment because it was justified neither by a search warrant nor by an exception to the warrant requirement.  U.S. v. Ahrndt, supra.  He found, first, that McCullough’s viewing the file names in Dad’s LimeWire Tunes did not violate the 4th Amendment because he did nothing JH had not already done.  U.S. v. Ahrndt, supra.  

As I have noted in prior posts, the 4th Amendment only applies to state action, i.e., to law enforcement conduct, and so does not apply when a private person conducts what would otherwise be a 4th Amendment “search.”  As I have also noted, the Supreme Court has held that it does not violate the 4th Amendment for an officer to view evidence a private party has already discovered. 

The judge then addressed the next issue:  whether McCullough’s directing JH to open an image was an unlawful 4th Amendment “search”, because it exceeded the scope of what JH had done on her own.  U.S. v. Ahrndt, supra.  He found that it did exceed the scope of what she did, and so was an unlawful search.  U.S. v. Ahrndt, supra. 

The judge then took up the third issue, whether McCullough’s clicking on the image

violated Ahrndt's 4th Amendment rights. [T]o assess [his] 4th Amendment rights, I must evaluate whether any subjective expectation of privacy was objectively reasonable. . . . [M]y previous opinion incorrectly framed the issue as whether it is reasonable to have an expectation of privacy in the contents of a shared iTunes library on a personal computer connected to an unsecured home wireless network. 

In fact, the issue is whether it is reasonable to have an expectation of privacy in the contents of a LimeWire file, when there is no evidence of intentional sharing over the wireless network or the internet, on a personal computer connected to an unsecured home wireless network.

U.S. v. Ahrndt, supra (emphasis in the original). (As I have noted in earlier post, a 4th Amendment “search” violates a “reasonable expectation of privacy” in a place or thing.)

The judge found that Ahrndt’s 4th Amendment expectation of privacy in his computer “was not eliminated when he attached it to his unsecured wireless network router.”  U.S. v. Ahrndt, supra.  He based that, in part, on the fact that the manual that presumably came with the router noted the need for security but did not warn users that not securing their network could make their files accessible to others. U.S. v. Ahrndt, supra.  

He also found there was no evidence Ahrndt was sharing files on the peer-to-peer network:

[T]he evidence suggests LimeWire was likely configured to run whenever Ahrndt turned his computer on. The evidence also suggests [it] was set to its default mode of sharing content on Ahrndt's [network] making that content `accessible for Itunes and other Digital Audio Access Protocol enabled Players.’ . . .  [T]o preclude LimeWire from sharing with iTunes on his network, Ahrndt would have had to seek out and uncheck the sharing option, or choose to require a password for those wishing to access the contents of his LimeWire file.. . .[T]here is no evidence Ahrndt `intentionally’ enabled sharing of his files over his wireless network.

U.S. v. Ahrndt, supra. 

The judge therefore held that McCullough’s “clicking on the image in JH's iTunes directory to open the image violated Ahrndt's 4th Amendment rights”, which meant that his “description of the image, and any related tainted evidence, must be stricken from” the affidavit Agent Cole used to get the search warrant.  U.S. v. Ahrndt, supra. 

The judge then addressed whether there would have been probable cause to issue either the warrant to obtain Ahrndt’s IP address or to search his house if McCullough’s description of the image had not been included in the affidavit used to get both.  U.S. v. Ahrndt, supra.  Ahrndt conceded that a magistrate might have issued the first warrant, but argued that, “lacking specific titles and the description of an image, a magistrate would never have authorized police to invade Ahrndt's home and search his personal computer.”  U.S. v. Ahrndt, supra. 

The judge agreed, and therefore ordered that the “evidence obtained from his storage media” and his statements to the officers be suppressed, which probably ends the case. U.S. v. Ahrndt, supra.