Friday, June 28, 2013

The Electronics Store, Burglary and the Laptops

After he was convicted of burglary in violation of California Penal Code § 459 and sentenced to four years in prison, Hoang V. Nguyen appealed. People v. Nguyen, __ Cal.Rptr.3d __, 2013 WL 3013535 (California Court of Appeals 2013).

This, according to the opinion, is how Nguyen came to be convicted of burglary:

[Nguyen] entered an electronics store and walked to the computer department. One of the store's loss prevention officers, Angel Gonzalez, saw [him] open a box, place something under it, and leave the store. When Gonzalez checked the aisle where [Nguyen] had been, he found a printer that had been removed from its box and placed on a bottom shelf behind other items, but he was unable to locate a corresponding empty printer box. Gonzalez took the printer, which retailed for about $100, to the front of the store.

Soon after, [Nguyen] reentered the store. Gonzalez watched on a security camera as [Nguyen] returned to the computer department. He saw [him] pick up an opened box and bring out a roll of tape from inside his jacket. At this Gonzalez left his station to confront [Nguyen].

When he arrived, Gonzalez found [Nguyen] in the process of sealing a printer box. Looking inside, Gonzalez found two laptop computers, which retailed for $450 each. Because of the positioning of the computers in the box, it would have been difficult to tell from the outside that they had been substituted for the cheaper printer. [Nguyen] was detained and arrested.

People v. Nguyen, supra.

At Nguyen’s trial, after both parties had presented their evidence and rested, the judge

instructed the jury on burglary and attempted grand theft by larceny. . . . As given by the court, the elements of theft by larceny were (1) defendant took possession of property owned by someone else, (2) defendant took that property without the owner's consent, (3) when defendant took the property he intended to deprive the owner of it permanently, and (4) defendant moved the property and kept it for a period of time.

People v. Nguyen, supra.

While they were deliberating, the jury

sent a note asking, `Are theft and defraud the same? Meaning, because his intent to pay for a lesser item, is that the definition of theft?’ The court responded, `. . . . The owner's consent cannot be obtained by fraud or deceit.’ The court explained to counsel, `The Court extrapolated that language from the theft-by-trick instruction. I declined to give the entire theft-by-trick instruction, but I thought that portion was appropriate in the context of this case.’

People v. Nguyen, supra.

On appeal, Nguyen argued that the evidence presented at trial

did not support a burglary conviction based on intent to commit larceny, the theory of theft on which the jury was instructed. He argues the evidence supports a conclusion he intended to commit, if anything, theft by false pretenses by disguising the laptop computers in the printer box, paying the stated price for the printer at the sales counter, and, contrary to the theory of larceny, `tak[ing] the laptops from the store with consent.’

People v. Nguyen, supra (emphasis in the original).

The Court of Appeals began its analysis of his argument by noting that the

statutory crime of theft is comprised of several different common law crimes, including embezzlement, theft by larceny, theft by trick or device, and theft by false pretenses. . . . In 1927, these common law crimes were consolidated in Penal Code section 484 into a single statutory crime. . . .

`The purpose of the consolidation was to remove the technicalities that existed in the pleading and proof of these crimes at common law. Indictments and informations charging the crime of “theft” can now simply allege an “unlawful taking.” . . . Juries need no longer be concerned with the technical differences between the several types of theft, and can return a general verdict of guilty if they find that an “unlawful taking” has been proved.’ People v. Ashley, 42 Cal.2d 246 (California Supreme Court 1954).

People v. Nguyen, supra.

This court noted, though, that

[t]he simplification envisioned by the Legislature has not been entirely realized. Rather than following the lead of the Legislature and collapsing the disparate theories of theft into a single crime, the courts have maintained their separate existence. 

People v. Nguyen, supra.

It also explained that

[r]eported decisions suggest juries continue to be instructed on the elements of the individual theories, rather than being asked to render a general verdict of theft. Further complicating matters, the trial judge must instruct on the proper theory of theft, since `the [theft] offense shown by the evidence must be one on which the jury was instructed and thus could have reached its verdict.People v. Curtin 22 Cal. App. 4th 528 (California Court of Appeals 1994). While technicalities of pleading may have been eliminated by the consolidation, the technicalities of proof remain.

People v. Nguyen, supra.

The court then noted that the

separate theories of theft are largely `aimed at different criminal acquisitive techniques.’ People v. Ashley, supra.  Theft by larceny, the theory on which the trial court instructed the jury, `is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. . . .

The act of taking personal property from the possession of another is always a trespass unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property.’ (People v. Davis, 19 Cal.4th 301 (California Court of Appeals 1998).

Because possession of the stolen item must be gained without the owner's consent, larceny is classically a crime of stealth. Given the `carrying away’ requirement, known as `asportation,’ it necessarily applies to the theft of tangible items. 

Embezzlement is characterized by the wrongful taking of property voluntarily entrusted. It therefore features acquisition by breach of trust. People v. Sisuphan, 181 Cal.App.4th 800 (California Court of Appeals 2010).

People v. Nguyen, supra.  (For more on asportation, check out this Wikipedia entry.)

Next, the Court of Appeals pointed out that the

two remaining theories, theft by trick or device and theft by false pretenses, are crimes of deception, involving the taking of property of another after consent to its possession has been obtained by fraud or deceit. The two are nearly identical in substance, except that with theft by trick, the property owner transfers, and intends to transfer, only possession, whereas with theft by false pretenses the owner transfers both possession and ownership. . . .

[A] conviction for theft by false pretenses is generally held to have `a special corroboration requirement’ not applicable to theft by trick or device. People v. Curtin, 22 Cal.App.4th 528 (California Court of Appeals 1994). Although theft by trick or device and false pretenses are often applied to the taking of money or intangibles, which are less susceptible of asportation, the elements of the two offenses do not limit their application to intangibles. . . .

People v. Nguyen, supra.

The court addressed one final prefatory issue before it turned to Nugyen’s case:

The concept of valid consent was further narrowed in . . . Davis, supra. In that decision, the defendant was convicted of larceny after taking a shirt from its hanger in a department store, carrying it to the sales counter, claiming to have purchased it earlier, and requesting a refund. . . . 

In affirming the conviction, the court held that [Davis] took possession of the shirt by removing it from the hanger while still in the store and satisfied the asportation requirement by carrying the shirt to the sales counter. . . .

The court found trespass merely in [his] taking the shirt from a hanger with the intent to steal it. Although recognizing department stores are ordinarily presumed to consent to customers' carrying items for sale within the store, Davis found no consent to such transport if committed with a larcenous intent. . . .

People v. Nguyen, supra.

The Court of Appeals then explained that the above discussion revealed “the two flaws” in Nguyen’s argument.  People v. Nguyen, supra.

First, although he claims to have intended `to take the laptops from the store with consent’ by paying the lower price for the printer, the store would not be deemed to have `consented’ to [his] taking the laptops, at least for purposes of the law of larceny, merely because store employees permitted him to leave the store with them.

Rather, under the narrow view of retail consent found in Davis, a customer has implied consent to take items from the shelf only if he or she does so with honest intent. . . . Accordingly, [Nguyen] satisfied the elements of larceny by picking up the laptop computers and placing them in the empty printer box with the intent of taking them from the store without paying the full laptop price. 

He did not merely attempt or  to commit larceny, which would have been sufficient to satisfy the elements of the charged offenses; under Davis, he could have been convicted of the completed crime.

People v. Nguyen, supra (emphasis in the original).

It then addressed the second flaw in his argument, noting that this case was not

an `either/or’ situation. [Nguyen] could have intended to commit both offenses, since the theories are not mutually exclusive. Particularly given the narrow definition of `consent’ courts have adopted in connection with larcenous conduct, the use of deception, rather than stealth, to steal tangible objects . . . can qualify both as theft by larceny and false pretenses. 

The narrow view of retail store consent adopted by Davis creates a similar overlap in that context. [Nguyen] cites no decisions holding that conduct constituting theft must qualify under only a single legal theory. On the contrary, several decisions have found the same conduct to constitute theft under more than one common law theory. . . .

In support of his argument, [Nguyen] relies primarily on People v. Lorenzo, 64 Cal. App. 3d Supp. 43 (California Court of Appeals 1976), in which the defendant was found to have committed theft by false pretenses when he switched price tags on retail goods. . . . 

While Lorenzo supports the argument that [Nguyen’s] intended conduct satisfied the elements of theft by false pretenses, the decision does not hold that the same conduct could not also constitute theft by larceny, since larceny was neither raised nor addressed in Lorenzo.

People v. Nguyen, supra.

The court therefore held that because Nguyen’s conduct satisfied the

elements of theft by larceny as defined by the Supreme Court in Davis, the jury's implicit finding that defendant entered the store with the intent to commit theft, and therefore his conviction for burglary, was supported by substantial evidence. Whether his conduct also constituted an attempt to commit theft by false pretenses is immaterial to that issue.

People v. Nguyen, supra.

For this and other reasons, it affirmed his conviction and sentence.  People v. Nguyen, supra.

Wednesday, June 26, 2013

The Treasurer's Office Employee, the Computer and Official Misconduct

After a jury convicted him of two counts of official misconduct in violation of 720 Illinois Compiled Statutes § 5/33–3, and “sentenced to concurrent three-year terms of imprisonment”, Jonathan Martin appealed.  People v. Martin, 2013 WL 3147643 (Illinois Appellate Court 2013). The charges arose from certain activity attributed to Martin when he was an employee of the Cook County Treasurer’s Office.  People v. Martin, supra.

The prosecution’s first witness at trial was William Kouruklis, who “had been employed there for almost 19 years.” People v. Martin, supra. He had worked “in many different capacities at the treasurer's office”, and finally became “a deputy county treasurer and the director of operations.”  People v. Martin, supra.  He explained that the treasurer’s office’s task was to “collect the $9.5 billion in annual property taxes assessed on over 1.7 million individual properties in Cook County, and then properly distribute those collected funds to over 1800 different taxing districts.” People v. Martin, supra.  To facilitate these processes, “each piece of property is assigned a property index number, or `PIN.’” People v. Martin, supra. 

The opinion explains that sometimes, the office would receive a duplicate payment or overpayment (D & O) of the property taxes owed" for a property,  which meant the taxpayer “would be entitled to a refund upon the filing and acceptance of a refund request application.” People v. Martin, supra.  The fact that a refund might be due with respect to particular property was “available to the public; the information was “provided in property tax bills, and was also available by querying the treasurer's phone system or website about the refund status of a particular PIN.” People v. Martin, supra. 

Also, employees “had access to a computer program” they could use to see if “a PIN was due a refund for a D & O payment.” People v. Martin, supra. They typically used it to assist taxpayers making inquires as to the refund status of individual properties.” People v. Martin, supra.  Employees in the D & O refund department would use this information to process refund applications submitted by taxpayers or by “third-parties working on commission to obtain refunds for taxpayers.” People v. Martin, supra. “In all such cases, the refund information . . . in the treasurer's computer files was only accessible by querying one PIN at a time.” People v. Martin, supra.  

Certain employees were authorized to access the treasurer's computer files and “obtain a list -- typically in the form of a Microsoft Excel spreadsheet file -- of all the properties in Cook County that were owed property tax refunds.” People v. Martin, supra. Kouruklis would obtain such a list “a few times” a year and “obtain separate lists of properties owed refunds for each of the prior five tax years.” People v. Martin, supra. He would obtain the list  “to analyze the effectiveness of the treasurer's collection efforts, to see how many D & O payments there were, and to see if a D & O payment in one year might be offset by a delinquency in another year.” People v. Martin, supra. 

In a five-year period, “there might be as many as 120,000 records of D & O payments.” People v. Martin, supra.  He only retrieved information for  “the prior five tax years, because there was a statute of limitations precluding a taxpayer from receiving a refund for any tax year before that time.” People v. Martin, supra.  

The D & O computer data “was secured by requiring a person to enter a user name and password that would be recognized by the treasurer's computer system as authorizing that person to access” it. People v. Martin, supra.  The authority to obtain the information was limited to Kouruklis, the Treasurer, Maria Pappas, the treasurer's chief deputies, “the chief information officer, and one or two employees of the information technology (IT) department.” People v. Martin, supra.   If other employees needed such information “for any reason, they would have to ask either Kouruklis or one of the IT employees, with all such requests typically approved by Kouruklis”.  People v. Martin, supra.  

Kouruklis worked in the treasurer's main office, which was in two floors of the County Building in downtown Chicago. People v. Martin, supra.  It was equipped with “between 44 and 48 ceiling-mounted video cameras” that were installed because of “the large amounts of money collected by the department and the need to accurately account for those funds.” People v. Martin, supra. Kouruklis described the cameras as “`casino grade,’” because “they had very powerful zoom lenses” and were “controlled by two sets of monitors and joysticks installed in” Kouruklis’ office and that of the County Treasurer. People v. Martin, supra. When “zoomed in, the cameras were capable of allowing a viewer to count money or to read `regular font size documents.’” People v. Martin, supra.  

The treasurer's office made a video recording of the live feed from these cameras, but the video quality “was not as high as the live feed.” People v. Martin, supra.  In addition to “their general use,” Kouruklis used the cameras “and the joystick in his office to monitor the office on `high collection days’ when there were a lot of cash transactions.” People v. Martin, supra.   He also used the cameras to find employees if they could not be reached by telephone at their desk.  People v. Martin, supra.  

That brings us to tothe prosecution.  On November 16, 2005, Kouruklis was using the

joystick and monitor in his office to locate Vicky Pappas, the treasurer's chief legal counsel. As he panned one of the cameras across the legal department, [he] observed [Martin] sitting at his desk working on his computer. Kouruklis had known [him] for 12 to 14 years, as [Martin] started at the treasurer's office a few years after Kouruklis. [He] had worked for Kouruklis as part of the operations team[, which meant [Martin] acted as an informal `IT facilitator’ troubleshooting employees computer problems because [he] `had enough technical savvies to go ahead and fix a problem that somebody may have had with their computer.’

By November of 2005, . . . [he] was employed in the legal department and was responsible for working on `sales in error,’ which involved errors with respect to delinquent property tax payments. This did not have anything to do with D & O payments or refunds. Nevertheless, when Kouruklis scanned [Martin’s] desk with the video camera, he observed a Microsoft Excel spreadsheet displayed on [his] computer screen. 

The spreadsheet looked familiar, and when Kouruklis zoomed in he realized [Martin] was working with a spreadsheet containing D & O refund data in the form Kouruklis semi-annually request[ed] from the IT department. To confirm this, Kouruklis checked the PIN numbers in the spreadsheet displayed on [Martin’s] screen. In each case, he found that refunds -- some in amounts `of hundreds of thousands of dollars’ -- were due on those properties.

People v. Martin, supra.  

Kouruklis later testified that he found Martin’s actions to be a

`red flag’ because: (1) nobody in the office needed that data at the time; (2) nobody else knew how to access that data; and (3) at the time, [Martin] was not working in either the refund or IT departments, or for Kouruklis. Indeed, at that time, [he] did not have authority to access the comprehensive D & O refund data and create an Excel spreadsheet of that data. Kouruklis did not know how [he] had done so.

People v. Martin, supra.  

Kouruklis continued to watch Martin on the camera and saw him do “`a lot’” of “`cutting and pasting’”, in which he highlighted information about PINs that were due refunds, copied it and pasted it “into a blank Microsoft Word document.” People v. Martin, supra.  It included information about the properties due refunds, taxpayer information, dates of prior payments and "images of checked" used to pay property taxes for a particular PIN obtained from other programs and databases."  People v. Martin, supra.

Kouruklis said Martin was “`creating a Microsoft Word document of all the history of a” PIN “`for every property.’” People v. Martin, supra.  He said there were “`100,000 records in that Excel spreadsheet’” but Martin “`was taking . . . certain ones he wanted.’” People v. Martin, supra. Kouruklis noted that when someone walked by behind Martin, his screen would “`be minimized and the sale in error screen would pop up, which was his regular duties at that time’” People v. Martin, supra.  This went on for two hours. People v. Martin, supra.  

As Kouruklis watched, this went on for a while, until he finished the Word document and emailed it and the spreadsheet to “his personal email account.” People v. Martin, supra.  He then deleted the "history of the documents he worked with, his Internet browser history,

certain `sent’ emails, the print queue, and the contents of the `recycling bin’ on his computer.” People v. Martin, supra. Martin was then asked to leave his office, which was guarded by a Sheriff’s deputy while the treasurer's office investigated what Martin had been doing. People v. Martin, supra.  It turned up the Word file and the spreadsheet. People v. Martin, supra.  At Martin’s trial, a detective testified that “the Microsoft Word document contained information regarding seven PINs, [each of which was] listed as a property owed a refund on the larger Microsoft Excel spreadsheet.” People v. Martin, supra.  

On appeal, Martin argued, among other things, that the evidence presented at trial, only a small part of which is summarized here, was not sufficient to prove his guilt beyond a reasonable doubt. People v. Martin, supra.  The court noted that when someone makes a sufficiency of the evidence argument, its task is to “review the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the elements of the crime proven beyond a reasonable doubt.” People v. Martin, supra.  It also noted that the statute Martin was convicted of violating makes it a crime for a public employee, acting “`in his official capacity,’” to “`[k]nowingly perform[] an act which he knows he is forbidden by law to perform’”. People v. Martin, supra (quoting 720 Illinois Compiled Statutes § 5/33–3).

The “forbidden by law” part of the offense refers to conduct that is otherwise illegal, i.e., is a crime.  People v. Martin, supra. The charges against Martin alleged he “committed the offense of computer tampering” in violation of 720 Illinois Compiled Statutes § 5/16D-3(a).  The statute makes it a crime “knowingly” to access “a computer or any part thereof” without being authorized to do so or in excess of “the authority granted to him” and thereby obtain “data or services.”  On appeal, Martin did not challenge the sufficiency of the evidence to prove that he was a public employee, that the

relevant acts . . . were taken in his official capacity, that he performed those acts knowingly, that he knew computer tampering was a crime, or knew that accessing comprehensive D & O refund data without authority would constitute the offense of computer tampering. Nor does [he] seriously contest the evidence that he did not . . . have authority to access comprehensive D & O data. . . . Instead, [Martin] contends the State failed to prove he actually knew he did not have authority to access comprehensive D & O data, such that the State also failed to prove [he] knew he was committing the offense of computer tampering when he accessed that data.

People v. Martin, supra (emphasis in the original).

More precisely, Martin argued that while there “was a great deal of evidence” as to his lack of authority, there was

`no testimony . . . as to whether . . . anyone ever informed [him] he had no access or authority to access the duplicate and overpayment database.’ He . . . argues there was no evidence [he] was ever shown the help desk requests removing his access to various programs and databases, nor was there any evidence that he was provided with an employee's manual, policy statement, or written memo informing him of his lack of authority to access comprehensive D & O data. Finally, he complains there was no `pop-up warning’ on his computer advising him of his lack of authority to access that data.

People v. Martin, supra.

The court found these arguments “unpersuasive”, because knowledge “`may be, and ordinarily is, proven circumstantially.’” People v. Martin, supra (quoting People v. Ortiz, 196 Ill.2d 236, 260 (Illinois Supreme Court 2001)). In other words, knowledge can be inferred from the facts proven in court. People v. Martin, supra.

The appellate court noted the prosecution presented evidence that Martin’s duties “had absolutely nothing to do with D & O payment refunds.” People v. Martin, supra.  It also noted that, at trial, the prosecution presented evidence showing that Martin

made efforts to conceal his use of the comprehensive D & O data by `minimizing”’ the Word document and the Excel spreadsheet on his computer screen when people would pass behind him, and by deleting files and emails containing this data. [He] was also observed deleting the history of the documents he had worked with that day, as well as his internet browser history, the print queue, and the contents of the `recycling bin’ on his computer.

This evidence supports an inference that [Martin] knew he did not have authority to access comprehensive D & O data on that date.

People v. Martin, supra. 

Finally, the prosecution also introduced evidence showing that prior to November, 2005, Martin had submitted a

help desk request seeking permission to access the D & O refund data, but only with respect to querying a single PIN at a time. As the State notes, the fact [he] previously sought limited access to information regarding refunds one PIN at a time, supports an inference that [Martin] knew he did not have the authority to access comprehensive D & O data about over 100,000 separate PINs, when he later did so. . . .

People v. Martin, supra. 

For these and other reasons, the appellate court affirmed Martin’s conviction and sentence. People v. Martin, supra. 

Monday, June 24, 2013

WoW, Child Abuse and Murder

After a jury convicted her of “second-degree federal murder” and child abuse, and the judge sentenced her to twenty-five years in prison, Rebecca Christie appealed.  U.S. v. Christie, __ F.3d __, 2013 WL 2477252 (U.S. Court of Appeals for the 10th Circuit 2013). Christie was prosecuted in federal court because the death at issue, and the abuse leading up to it, all occurred on an Air Force base, which meant “federal authorities bore the responsibility to investigate and the power to prosecute.”  U.S. v. Christie, supra.

As to why Christie was charged with these crimes, the Court of Appeals began its opinion with this overview:

For Rebecca Christie, life must have seemed more virtual than real. She usually awoke around noon, settled in before her computer, and logged on to World of Warcraft for gaming sessions lasting well past midnight. There she assumed a new identity in a fantastical world filled with dragons and demons where players staged heroic adventures with and against other players.

All the while back in the real world Ms. Christie ignored the needs of her three-year-old daughter. The neglect didn't prove fatal so long as Ms. Christie's husband was around to provide some care. But nine days after her husband left for an out-of-state deployment, the child was dead from dehydration.

U.S. v. Christie, supra. 

The opinion then describes the facts in the case in more detail, noting that Christie’s

child began life a healthy baby girl. But by twenty-one months, something appeared badly wrong. She plummeted to the bottom fifth percentile in weight for her age and began suffering from chronic diarrhea. A pediatrician prescribed PediaSure, a nutritional drink that helps children gain weight. That seemed to do the trick: the diarrhea soon stopped and BW (the district court and parties refer to the child by her initials) began gaining weight. By all appearances, she had turned a corner.

Eventually, Wulf faced a deployment on the other side of the country. With the little care he provided BW now gone with him . . . the child was in trouble. . . . [S]he succumbed to dehydration in nine days. An autopsy revealed. . . . BW simply died from being ignored.

[At trial, medical] experts testified that BW's desperate condition in the days before her death would have been blindingly clear. BW would have sought out water as a survival instinct. When that failed, she would have become lethargic and, on the day before her death, too weak to move. Her diapers wouldn't have needed changing. She would have had sticky saliva and then no saliva at all. She would have developed cracked lips, sunken eyes, and a sunken abdomen.

First responders confirmed this is exactly what they saw when they found the child. They testified that BW's lips were cracked and blue, her eyes glassy, and her eyelids so dry they couldn't close. They said bones protruded from her body and her gums had turned black.

U.S. v. Christie, supra.  (You can read a little more about the case in this news story.)

One of the issues Christie raised on appeal – and the only one this post examines – involved the 4th Amendment and her computer:

Much of the evidence presented at trial against Christie came from the computer she so prized. From their forensic analysis, FBI investigators learned Christie's online activities usually kept her busy from noon to 3 a.m. with little pause. They learned she was in a chat room only an hour before finding BW near death, and was back online soon afterwards. 

They learned from Christie's messages to other gamers that she was annoyed by her responsibilities as a mother and `want[ed] out of this house fast.’ When Wulf was slated for deployment, she announced to online friends that she would soon be free to `effing party.’

U.S. v. Christie, supra. 

On appeal, Christie claimed “this evidence and more from her computer was uncovered in violation of her 4th Amendment rights and the district court should have suppressed it.”  U.S. v. Christie, supra.  The court noted that she did not challenge the government’s seizure of the computer, because the agents “took possession of the computer . . . with Wulf’s consent.”  U.S. v. Christie, supra.  “Everyone accepts he was at least a co-owner of the computer -- it was a gift from his father -- and [that] he had at least apparent authority to relinquish its control.”   U.S. v. Christie, supra. 

(As Wikipedia explains, consent substitutes for the warrant required for officers to search and/or seize property.  And as I noted in an earlier post, to have authority to consent to the seizure of property, the person must be at least a co-owner of the property or police must reasonably believe he/she is a co-owner.)

Getting back to Christie’s 4th Amendment argument, she “attack[ed] the propriety of the two searches the government undertook once it had” the computer.  U.S. v. Christie, supra.  Christie claimed the warrants “were issued in violation of the 4th Amendment.”  U.S. v. Christie, supra. 

The first came in October 2006, five months after agents seized the computer. U.S. v. Christie, supra.  Christie claimed the delay violated the 4th Amendment and required the suppression of the evidence found on the computer.  U.S. v. Christie, supra.  The court began its analysis of her argument by noting that “an unreasonable delay in obtaining a search warrant can sometimes violate the 4th Amendment.” U.S. v. Christie, supra. It also noted that in “assessing the reasonableness of a delay in seeking a warrant, . . . we must take account of `the totality of the circumstances’ in each case as it comes to us, . . .wary of the temptation to impose `rigid rules, bright-line tests, and mechanistic inquiries.’ Florida v. Harris, 133 S.Ct. 1050 (2013). U.S. v. Christie, supra.  It noted its task was to balance the `the intrusion on the individual's 4th Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ U.S. v. Place, 462 U.S. 696, 703 (1983).” U.S. v. Christie, supra

The court found, first, that “it's hard to see a significant invasion of [Christie’s] 4th Amendment interests flowing from the” delay.  U.S. v. Christie, supra   It noted that while she was “its primary user and stored a great deal of personal data on the computer”, Wulf consented to its seizure and she “raised no objection to the seizure at the time or in the following weeks and months.” U.S. v. Christie, supra.  The court found that in “these circumstances, the government was entitled to assume . . . that any 4th Amendment interest in the computer's continued possession had been voluntarily relinquished. See, e.g., U.S. v. Matlock, 415 U.S. 164, 171 (1974).” U.S. v. Christie, supra.

The Court of Appeals then took up the other factor in the balancing test noted above, noting that “the government makes out at least a colorable case for holding onto the computer so long before undertaking a search.” U.S. v. Christie, supra. The agent who seized it and “later searched it says that in between he was called upon to help with out-of-town undercover operations in other cases.” U.S. v. Christie, supra. “No one . . . disputes the existence of these operations” or “questions that they amounted to a higher law enforcement priority than the computer search in this case.” U.S. v. Christie, supra.   It also noted that Christie, who bore the “burden of proof on her motion", produced evidence “suggesting her case or the others could have been transferred to another available agent.”  U.S. v. Christie, supra. The court therefore “hesitate[d] to say the government lacked any colorable grounds for its delay.” U.S. v. Christie, supra.

The Court of Appeals then balanced these interests and found that “the government's side of the ledger reveals a colorable interest in prioritizing law enforcement efforts while Christie can point to little harm to her interests in light of her husband's . . . consent and her lack of objection.” U.S. v. Christie, supra. It therefore found that the delay in this case  “falls inside the bounds of constitutionally reasonable conduct, if not by a very great margin.” U.S. v. Christie, supra.

The Court of Appeals then took up Christie’s challenge to the second warrant, which was that it did not “particularly” describe the place to be searched and things to be seized, as is required by the 4th Amendment.  U.S. v. Christie, supra.  (For more on the particularity requirement, check out this site.)  The warrant authorized a search of Christie’s computer for the following:

[a]ll records and information relating to the murder, neglect, and abuse of [BW] from June 19, 2002 (date of birth) to May 4, 2006, (date computer seized), including:

1. All photographs of [BW].

2. All correspondence and/or documents relating to [BW].

3. All records and information, including any diaries or calendars, showing the day-to-day activities of Rebecca Christie and/or [BW].

4. All addresses and/or contact information of friends, families, or acquaintances who may have had regular contact with Rebecca Christie and/or [BW].

U.S. v. Christie, supra. 

Christie claimed paragraph 3 “effectively permitted law enforcement to search any and all records and information on her computer for any and all purposes”, which violated the 4th Amendment’s particularity requirement. U.S. v. Christie, supra.  The government argued that its search efforts,

including those authorized in paragraph 3, were restricted by the warrant's opening language. . . . [T]he the government says paragraph 3 didn't authorize it to rifle through Christie's files looking for any sort of incriminating evidence. Instead, it had to direct all of its search efforts, including those specified in paragraph 3, to information related `to the murder, neglect, and abuse’ of BW. And that limiting direction, the government submits, is particularity enough under our case law.

U.S. v. Christie, supra. 

The Court of Appeals found it “hard to fault the government's reasoning.” U.S. v. Christie, supra.  While it found that the warrant was “surely open to interpretation,” it was similar to warrants it had upheld in other cases in which the warrant’s opening language limited the scope of all later enumerated searches to seeking evidence of particular federal crimes.” U.S. v. Christie, supra.  It then explained that “[a]t the very least,” given the prior cases, “we cannot deny that an objectively reasonable officer acting in good faith could have read the warrant before us in this same manner -- as restricting the scope of any search to information “related to the murder, neglect, and abuse of” BW”.  U.S. v. Christie, supra. 

Christie, though, had responded to this reasoning with the argument that

if our current case law endorses the warrant in this case then our case law needs to be reexamined. In an age where computers permit access to most every `paper and effect] a person owns, she fears that merely restricting the government to a search topic or objective does little to prevent it from examining along the way virtually every bit and byte of our lives. Risking with it the possibility the government will claim to find `in plain view’ evidence of crimes totally unrelated to the reasons spurring their search in the first place.

The text of the 4th Amendment says the government must identify with particularity `the place to be searched’ and requiring it to describe that place tersely as `a computer’ is to allow the government to traipse willy-nilly through an entire virtual world. To prevent that, Christie suggests a warrant must go further: it must specify limitations not just what the government may search for but how the government should go about its search.

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

The government responded with the argument that

it's often difficult to know what search protocols might be reasonably required at the time of a warrant application, before the computer has been examined. Computer files can be misnamed by accident, disguised by intention, or hidden altogether, leaving investigators at a loss to know ex ante what sort of search will prove sufficient to ferret out the evidence they legitimately seek.

U.S. v. Christie, supra. 

The Court of Appeals explained that, in its prior cases, it had not required search protocols, and further explained that even if courts do not require

particular search protocols up front in the warrant application process, they retain the flexibility to assess the reasonableness of the search protocols the government actually employed in its search after the fact, when the case comes to court, and in light of the totality of the circumstances. Unlike an ex ante warrant application process in which the government usually appears alone before generalist judges who are not steeped in the art of computer forensics, this ex post review comes with the benefit, too, of the adversarial process where evidence and experts from both sides can be entertained and examined. 

U.S. v. Christie, supra. 

It also noted that Christie, who bore the burden of showing this search violated the 4th Amendment, “offered little evidence or argument suggesting how protocols the government followed in this case were unreasonable or insufficiently particular, especially when compared with possible alternatives.”  U.S. v. Christie, supra. And it found that "[w]itout more help along these lines, we simply cannot assess rationally her challenge to the government's search procedures in this case and must leave the development of the law in this arena to future cases."  U.S. v. Christie, supra. 

For these and other reasons, the Court of Appeals affirmed Christie’s convictions and sentence.  U.S. v. Christie, supra.