Friday, September 06, 2013

The Search Warrant, Probable Cause and the Keystroke Logger

After Amber R. Galemore pled guilty, “[i]n two separate cases,” of “possession with intent to sell or deliver cocaine and to theft of property” and was “sentenced to an effective sentence of eight years on probation”, she appealed.  State v. Galemore, 2013 WL 4679982 (Tennessee Court of Criminal Appeals 2013). She also reserved the right to appeal a "certified question of law" under Tennessee Rule of Criminal Procedure 37(b)(2).  State v. Galemore, supra.

This is the certified question of law Galemore reserved the right to appeal:

`Whether the search warrant issued by a General Sessions Judge for Montgomery County, Tennessee, which was based on statements of an unknown person outside the defendant's residence and computer keystroke software results[,] provided a sufficient nexus to make a probable cause determination.’

State v. Galemore, supra.

The court begins the opinion by explaining that the case arose from a burglary that

occurred on March 8, 2011. After an investigation, police sought, obtained, and executed a search warrant on [Galemore’s] home. After execution of the search warrant, a Montgomery County grand jury indicted [her] in two separate cases. In case number 41101226, [Galemore] was indicted for possession with intent to sell or deliver cocaine, hydrocodone, and oxycodone and for possession of a firearm during the commission of a dangerous felony. In case number 41200139, [she] was indicted for theft of property valued over $1,000 and making a false report to authorities.

State v. Galemore, supra.

Prior to pleading guilty, Galemore filed a motion to suppress the evidence police

obtained as a result of the search of her residence. She contended that there was no nexus between the computer stolen during the burglary and [her] residence. Rather, the search warrant was obtained on a mere `hunch’ that the computer would be in the residence, which did not pass constitutional standards.

State v. Galemore, supra.

Galemore’s motion, and her argument on appeal, both concern the requirements of the 4th Amendment to the U.S. Constitution.  As Wikipedia notes, the amendment states that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[

[emphasis added].  If you would like to read a discussion of what, precisely, constitutes “probable cause,” check out Wikipedia’s entry on the issue.

The trial judge held a hearing on her motion to suppress, at which “the parties based their arguments solely on the search warrant itself.”   State v. Galemore, supra.  The affidavit supporting the warrant, which was admitted as an exhibit at trial, stated:

On March 8, 2011 Anita Pitts reported that unknown person(s) forced entry into her residence, located at. . . Clarksville, TN, and removed several of her personal items, to include Apple I–Pod Touch, . . . X–Box Harddrive 250 GB; . . . Raider's silver pocket watch; Del Inspiron 1525 Laptop; Kodak Easy Share Digital Camera. . . . These items were taken without Anita Pitts['] consent.

On March 9, 2011[,] Anita Pitts contacted `Absolute Computrace’ which is [a] `Lo Jack’ for computers. It's a program that was downloaded to this computer when it was purchased. Pitts provided the case number that she was given for her aggravated burglary report to Absolute Comput[r]ace. Absolute Computrace at some point then began the track on her computer.

Absolute Computrace is able to track the computer by capturing the keystrokes of the person typing on the computer. The keystroke logger also captures usernames and passwords[,] which is stored on Absolute Software servers.

On March 16, 2011[,] Detective Kevin Rushing of the Clarksville Police Department received an email from Absolute Computrace. The email contained the investigative report from Absolute Computrace[,] and it showed that `Amber Galemore’ had logged onto `Facebook’ using the email account of ambergalemore Absolute Computrace researched the email address and name[,] then located the address of 1481 Buchanon Drive, Clarksville, TN for Amber Galemore. 

Absolute Computrace then attempted to access Amber Galemore's Facebook page [,] which is public access, but was unable to unless you were added as a `friend’ to her Facebook page. There was a picture on the public access page [that] contained the name Amber Galemore next to it.

The name Amber Galemore was then entered into the `Criminal Justice Portal [,]’ which is a Tennessee driver's license data base computer program. The search revealed Amber Rose Galemore, DOB: 04/03/1982, social security number [XXX]-[XX]-[XXXX], driver's license number [XXXXXXXXX], residing at 1481 Buchanon Drive, Clarksville, TN. 

The search also provided Amber Rose Galemore's drivers['] license picture[,] which was identified by Detective Kevin Rushing as the same person in the picture on Amber Galemore's Facebook page.

Detective Kevin Rushing then checked with Clarksville Department of Electricity and was advised that Amber Harris is on the account for 1481 Buchanon Drive, Clarksville, TN[,] and has had power at that address since October 2010. Amber Harris had provided them a DOB: 04/03/1982, [the same social security number as identified with Amber Galemore], [the same driver's license number as identified with Amber Galemore], which leads your affiant to believe Amber Rose Galemore and Amber Harris are the same person.

Your affiant has worked with Absolute Computrace in the past and successfully recovered a computer that was stolen in an aggravated burglary. With this information provided by Absolute Computrace[,] your affiant believes that the computer will be recovered, along with other stolen property[,] and the property will be returned to its owner.

On March 18, 2011[,] your affiant made contact with Amber Galemore at 1481 Buchanon Drive and requested to look for the computer in her residence. An unknown black male who was present at the time of the request stated that the computer was inside but stated the affiant could not go inside to retrieve it.

State v. Galemore, supra.

When an officer applies for a search warrant, he/she submits a form – an application for the warrant – to a magistrate who is authorized to issue warrants.  To establish probable cause, the officer usually attaches an affidavit in which he/she explains why there is probable cause for the magistrate to issue a warrant to search the place specific in  the application.  You can, if you are interested, find examples of both here.

Galemore argued, on appeal (and probably before the trial judge) that the above affidavit

did not provide probable cause to search her residence for several reasons. First, the tracking software enabled by Absolute Computrace was not GPS oriented, and therefore, she could have been anywhere, not necessarily her home, when she logged into the computer. 

She argued that she could have simply been typing on the computer of a `friend .’ Therefore, [Galemore] contended, there was nothing that pinpointed the actual location of the computer so as to provide a nexus between the criminal activity associated with this computer and the house at Buchanon drive.

State v. Galemore, supra. 

The prosecution, on the other hand, argued that there was a “sufficient nexus” between

the address and the criminal activity. The affidavit stated Amber Galemore used the computer, and police went to the address of Amber Galemore, where she answered the door. A man there said that the computer was in the home but police could not retrieve it. This supported the theory that the computer would be found in the home.

State v. Galemore, supra.  On appeal, at least, Galemore also argued that “the `unknown black male’ who was present at the time of the detective's request for the computer had no basis of credibility” because there was “no evidence he had direct knowledge that the computer was in the house.”  State v. Galemore, supra. 

After the hearing on the motion to suppress, the trial judge “took the matter under advisement” and then held a second hearing.  State v. Galemore, supra.  At that hearing, the judge said

`part of my ruling is that I ... do not accept the statement made by the unknown black male as corroboration. What he said may or may not have been true, and there's no way to know whether what he said was true or not, or had any reliability at all, because it doesn't even tell us who he is. It's like this person just said it and then left . . . who was that guy? And so I don't think that what he said has anything to do with whether the search warrant is constitutionally . . . sound.’

State v. Galemore, supra.  The judge denied the motion to suppress, stating

`[t]hat was the other thing that . . .  I'm glad you said what you did, because there was not a long passage of time here. The Computrace information that was sent to Detective Rushing was done on March 16, and the officer went to her house on the 18th. The closer in time you get[,] the stronger your argument is. If they had said on the 16th we think it's a person named Amber Galemore, she lives on Buchanan Place, then I think the argument is real -- a lot stronger. Whether passage of two days weakens it or not, I guess is for an appellate court to decide.’

`I'm denying the suppression motion. I'm finding that there was sufficient information, properly gathered[,] to establish a nexus between the [Illegible Text] the likely place of this stolen

State v. Galemore, supra.  (The quote ends after “stolen.”)

The Court of Appeals began its analysis of the case by explaining that it will uphold a

`trial court's findings of fact in a suppression hearing unless the evidence preponderates otherwise.’ State v. Hayes, 188 S.W.3d 505 (Tennessee Supreme Court 2006). . . .Our review of a trial court's application of law to the facts is de novo, with no presumption of correctness.  State v. Walton, 41 S.W.3d 75 (Tennessee Supreme Court 2001). 

When the trial court's findings of fact are based entirely on evidence that does not involve issues of witness credibility, however, appellate courts are as capable as trial courts of reviewing the evidence and drawing conclusions, and the trial court's findings of fact are subject to de novo review. State v. Binette, 33 S.W.3d 215 (Tennesee Supreme Court 2000).

State v. Galemore, supra. 

It also pointed out that when an officer relies on an affidavit to establish probable cause for the issuance of a search warrant,

must appear in the affidavit [itself]. . . . State v. Moon, 841 S.W.2d 336 (Tennessee Court of Criminal Appeals 1992). To sufficiently make a showing of probable cause, an affidavit `must set forth facts from which a reasonable conclusion might be drawn that the evidence is in the place to be searched.’ State v. Smith, 868 S.W.2d 561 (Tennessee Supreme Court 1993). . . .

An affidavit must show a nexus between the criminal activity, the place to be searched, and the items to be seized in order to give a magistrate probable cause to issue a warrant. State v. Reid, 91 S.W.3d 247 (Tennessee Supreme Court 2002). . . .

State v. Galemore, supra. 

The Court of Appeals then held that,

[a]fter a careful review of the search warrant in this case, we conclude there was a substantial basis for finding probable cause. We find unpersuasive [Galemore’s] argument that she `could have’ logged onto her Facebook account from anywhere a laptop could travel, and not necessarily at her home; therefore, there was no nexus to her home. [Galemore] herself was in possession of the laptop, stolen property, when Comptrace tracked her logging into her online accounts using the laptop.

While the laptop was portable, it was reasonable to infer that [she] retained possession of it. The officers learned [Galemore’s] address and went to that address. Someone at her home said a laptop was inside but the officer could not retrieve it. 

The officer left and, on this basis, applied for a search warrant. Under these circumstances, it was reasonable for the magistrate to infer that the laptop would be located in [Galemore’s] residence. 

State v. Galemore, supra. 

The Court of Appeals therefore affirmed the trial judge’s denial of Galemore’s motion to suppress.  State v. Galemore, supra. 

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