Friday, April 05, 2013

Child Pornography, Private Parties and Seizure

A jury convicted Joseph Eddy Benoit of receiving child pornography in violation of 18 U.S. Code §2252(a)(2) and (b)(1), and possessing child pornography in violation of 18 U.S. Code § 2252(a)(4)(B) and (b)(2) and the district court judge who had the case sentenced “to concurrent terms of 125 and 120 months' imprisonment”. U.S. v. Benoit, __ F.3d __, 2013 WL 1298154 (U.S. Court of Appeals for the 10th Circuit 2013). 

He appealed, arguing, in part, that the federal district court judge who had originally had the case erred “in denying his motion to suppress evidence obtained from a search of his computer” on the grounds that the search violated the 4th Amendment.  U.S. v. Benoit, supra.  This is how the case arose:

Benoit and his girlfriend, Rose DeGraffenreid, resided in Tulsa, Oklahoma, in a home rented by DeGraffenreid. On the morning of July 15, 2010, Officer Mark Moore of the Tulsa Police Department (`TPD’) responded to a call from DeGraffenreid's residence relating to child pornography. When Moore arrived at the residence, he was greeted by DeGraffenreid, who invited him in and explained that while she was using Benoit's computer to pay bills, she had found what appeared to be child pornography on his computer.

DeGraffenreid and Nicole Kidd, a relative of DeGraffenreid's residing with her at the time, led Moore to a room used as an office that had two computers. [It] was unlocked. Benoit's computer was on and open to the main desktop page. 

Because DeGraffenreid was not `computer-savvy,’ she had Kidd open a child pornography video they had found. Kidd said `I can show it to you,’ to which Moore responded `Okay.’ Kidd “clicked on an icon and opened up” the video. Kidd offered to open additional files, but Moore told her that was not necessary.

Moore called Detective Scott Gibson with the TPD's cybercrimes unit. Gibson instructed Moore to seize the computer and obtain witness statements from DeGraffenreid and Kidd. DeGraffenreid did not object to Moore taking possession of the computer.

U.S. v. Benoit, supra

Benoit’s first 4rth Amendment argument was that Moore’s inspection of his

computer without first having obtained a search warrant violated his 4th Amendment rights. He claims DeGraffenreid lacked actual or apparent authority to consent to Moore's search of his computer because she had informed Moore that the computer did not belong to her.

U.S. v. Benoit, supra

The Court of Appeals began its analysis of this argument by noting that subject to

limited exceptions, the 4th Amendment prohibits warrantless searches. Illinois v. Rodriguez, 497 U.S. 177 (1990). Voluntary consent by a third party with actual or apparent authority is a well-established exception to the warrant requirement. U.S. v. Andrus, 483 F.3d 711 (U.S. Court of Appeals for the 10th Cir.2007).  `A third party has actual authority to consent to a search if that third party has either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes.’ Id. . . .

Apparent authority may be found if `the facts available to the officer’ at the time of the search would lead a person `of reasonable caution’ to believe `the consenting party had authority over the premises. Illinois v. Rodriguez, supra. . . . On this basis, `a third party has apparent authority to consent to a search when an officer reasonably . . .  believes the third party possesses authority to consent.’ U.S. v. Andrus, supra.

U.S. v. Benoit, supra.  For more on apparent authority and the Andrus case, check out this prior post.

The court then took up the issue of whether Moore conducted a search or directed a private search under the 4th Amendment.  U.S. v. Benoit, supra.  It noted that it is

well-settled that the 4th Amendment `proscrib[es] only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’ U.S. v. Jacobsen, 466 U.S. 109 (1984). . . .

`However, in some cases a search by a private citizen may be transformed into a governmental search implicating the 4th Amendment if the government coerces, dominates or directs the actions of a private person conducting the search or seizure.’ U.S. v. Poe, 556 F.3d 1113 (U.S. Court of Appeals for the 10th Circuit 2009).

U.S. v. Benoit, supra. For more on private searches, check out this prior post.

The Court of Appeals then explained that it applies “a two-step inquiry to determine whether a search by a private individual constitutes state action”:

First, we determine whether the government knew of and acquiesced in the [private person's] intrusive conduct. Second, we consider whether the party performing the search intended to assist law enforcement efforts or to further his own ends. Both prongs must be satisfied considering the totality of the circumstances before the seemingly private search may be deemed a government search.

U.S. v. Benoit, supra.  The court also requires that “knowledge and acquiescence

must also affirmatively encourage, initiate or instigate the private action.” U.S. v. Smythe, 84 F.3d 1240 (U.S. Court of Appeals for the 10th Circuit 1996). `[I]f a government agent is involved merely as a witness, the requisite government action implicating 4th Amendment concerns is absent.’ Id. . . . Police must, in `some affirmative way ... instigate, orchestrate, encourage or exceed the scope of the private search to trigger application of the 4th Amendment.’ Id. (citation omitted).

U.S. v. Benoit, supra. 

The court applied this test to what happened in the Benoit case and found that

neither DeGraffenreid nor Kidd acted as a government agent in discovering child pornography files on Benoit's computer. There is no evidence Moore `knew of and acquiesced in’ DeGraffenreid's initial search of Benoit's computer. U.S. v. Poe, supra. . . . Rather, DeGraffenreid had a `legitimate, independent motivation’ to search Benoit's property, and an `independently formed belief that something was dangerous about the [property].’ U.S. v. Smythe, supra.

DeGraffenreid explained to Moore that she `got on the computer to pay some bills and ... found some disturbing files that she thought was child pornography.’ Moreover, the record is devoid of evidence that the initial search was `intended to assist law enforcement efforts.’ U.S. v. Poe, supra. DeGraffenreid's initial discovery of child pornography was absent of any intent to aid the police.

U.S. v. Benoit, supra. 

It also pointed out that

[t]o the extent Kidd conducted a secondary search by displaying a video after Moore arrived, that search cannot be characterized as governmental action because Moore did not “affirmatively encourage, initiate or instigate the private action.” U.S. v. Smythe, supra. Moore did not touch or handle the computer or any of its parts, and did not assist or encourage Kidd as she opened the child pornography file.

Kidd appears to have retained full control over Benoit's computer while Moore passively viewed a child pornography video shown to him. As Moore testified, he never `direct[ed] Ms. DeGraffenreid or Ms. Kidd to do anything . . . [a]ll their actions were voluntary.’

U.S. v. Benoit, supra. 

The Court of Appeals also noted that while Moore responded

`Okay’ when Kidd offered to show the video, this response does not transform an otherwise private search into a government intrusion. 4th Amendment concerns are not implicated `when a private person voluntarily turns over property belonging to another and the government's direct or indirect participation is nonexistent or minor.’ U.S. v. Smythe, supra. Every instance in which a private citizen turns contraband over to the police features some form of passive acceptance from an officer.

Moreover, because DeGraffenreid and Kidd had already viewed the child pornography, this was not a case in which officers could only speculate about the contents of Benoit's computer

U.S. v. Benoit, supra.  The court therefore held that the 4th Amendment “did not apply to Moore's initial observation of Benoit's computer”.  U.S. v. Benoit, supra. 

It then addressed his argument that the seizure of the computer violated the 4th Amendment.  U.S. v. Benoit, supra.  The court began its analysis by explaining that

[a]n officer may seize evidence of a crime without a warrant if three conditions are met: (1) `the seizing officer must not have violated the 4th Amendment in arriving at the place from which the evidence could be plainly viewed’; (2) `the item must not only be in plain sight, but its incriminating character must also be immediately apparent’; and (3) the officer must `have a lawful right of access to the object.’ U.S. v. Naugle, 997 F.2d 819 (U.S. Court of Appeals for the 10th Circuit 1993).

U.S. v. Benoit, supra.  (For more on seizing property under the plain view doctrine, which is what the court is describing above, check out this Wikipedia entry.)

The Court of Appeals found that all three prongs of this test were met on the facts in the Benoit case.  U.S. v. Benoit, supra.  As to the first issue, it found it was

clear that DeGraffenreid had actual authority to invite Moore into her shared home and into the shared office. DeGraffenreid had both `mutual use of the property by virtue of joint access’ and `control for most purposes’  over the office as the renter of the shared home. U.S. v. Andrus, supra. Benoit does not contend otherwise; he challenges only DeGraffenreid's authority over his computer.

U.S. v. Benoit, supra. 

As to the second issue, the court noted that Moore was

situated in front of Benoit's computer when Kidd began playing the video and thus was in a `place from which the evidence could be plainly viewed.’ U.S. v. Naugle, supra.  Furthermore, the incriminating character of the child pornography was immediately apparent.

Moore testified [at the hearing on the motion to suppress] that the video showed a minor female having sex with an adult male and that there was no doubt in his mind that the video depicted child pornography. Accordingly, `upon viewing the object, the officer . . . at that moment ha[d] probable cause to believe the object to be contraband.’ U.S. v. Tucker, 305 F.3d 1193 (U.S. Court of Appeals for the 10th Circuit 2002). . . .

U.S. v. Benoit, supra. 

And, finally, the court explained that the lawful access factor

`is implicated in situations such as when an officer on the street sees an object through the window of a house, or when officers make observations via aerial photography or long-range surveillance.’ U.S. v. Naugle, supra. Under those circumstances, `officers cannot use the plain view doctrine to justify a warrantless seizure, because to do so would require a warrantless entry upon private premises.’ Id. 

There was `no such problem’ in Naugle because the contraband `was in the closet where the officer was permitted to be, and he did nothing more than reach out to the box containing the [contraband].’ Id. Similarly, Moore was permitted to be in the office of DeGraffenreid's residence, and having been shown evidence of child pornography, had sufficient probable cause to believe Benoit's computer contained child pornography. 

At that moment, Moore `did nothing more than reach out to’ seize the contraband. His seizure of the computer was justified under the plain view doctrine.

U.S. v. Benoit, supra.

The Court of Appeals therefore held that the district court judge did not err in denying Benoit’s motion to suppress.  U.S. v. Benoit, supra. 

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