Friday, January 10, 2014

The Laptop, Child Pornography and the Private Search

After a jury convicted him of “two counts of aggravated sexual abuse in violation of 18 U.S. Code § 2241(c) (Counts 1 and 2); two counts of interstate transportation of a minor with intent to engage in criminal sexual activity in violation of 18 U.S. Code § 2423(a) (Counts 3 and 4); and one count of accessing child pornography with intent to view in violation of 18 U.S. Code §§ 2252A(a)(5)(B) and 2252A(b)(2) (Count 5)” and the district court judge who had the case sentenced him to “life imprisonment, a ten-year term of supervised release, and a $400 special assessment”, Michael A. Goodale appealed.  U.S. v. Goodale, 2013 WL 6847032 (U.S. Court of Appeals for the 8th Circuit 2013).  For a little more on the charges and the facts, check out the press release you can find here.

This, according to the opinion, is how the prosecution arose:

On Saturday, September 17, 2011, thirteen-year-old M.R. showed his mother a history of gay teen pornography sites on Goodale's laptop. (Goodale was staying with M.R. and his mother.) They took the laptop to the police where two officers interviewed them.

During the taped interview, M.R. opened the laptop, demonstrating that the phrase `gay teen porn’ auto-populated when he typed `ga’ in the search box. An officer moved the laptop and touched the keypad for about 17 seconds during this process. M.R. also described how Goodale sexually abused him and Goodale's thirteen-year-old nephew, Z.G.

Police went to M.R.'s house to locate Goodale. Consenting to questioning, he accompanied police to the station where the investigating officers interviewed him. Over his objection, they seized the laptop pending a search warrant. The officers then interviewed Z.G., who also described the sexual abuse.

U.S. v. Goodale, supra.

Monday morning, another police officer applied for and received a state search warrant for the laptop based on information from M.R., his mother, and the two investigating officers. The application did not indicate that the officers had looked at the laptop or if they had seen anything on it.

U.S. v. Goodale, supra.

After a federal grand jury indicted him on the charges outlined above, Goodale moved to suppress “the information found on the laptop and his September 17 statements to police.”  U.S. v. Goodale, supra. The U.S. District Court judge who had the case denied the motion, Goodale went to trial and, as noted above, was convicted.  U.S. v. Goodale, supra.  On appeal, he argued, among other things, that the District Court judge erred in denying his motion to suppress.  U.S. v. Goodale, supra.

More precisely, he made two arguments as to why the motion to suppress the information found on the laptop should have been granted, the first of which was that “his laptop was seized and searched in violation of the 4th Amendment.”   U.S. v. Goodale, supra.  The Court of Appeals began its analysis of his argument by noting that

[w]arrantless searches `are per se unreasonable under the 4th Amendment -- subject only to a few specifically established and well-delineated exceptions.’ Coolidge v. New Hampshire, 403U.S. 443 (1971).  At issue here is the private search exception. 

The 4th Amendment “does not extend to private searches that are neither instigated by nor performed on behalf of a governmental entity.’ U.S. v. Starr, 533 F.3d 985 (U.S. Court of Appeals for the 8th Circuit 2008). If the government views items found during a private search, the ‘”legality of later government intrusions ‘must be tested by the degree to which they exceeded the scope of the private search.”’ U.S. v. Starr, supra, quoting U.S.  v. Miller, 152 F.3d 813 (8th Cir.1998)).

U.S. v. Goodale, 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 U.S. Supreme Court has held that it does not violate the 4th Amendment for an officer to view evidence a private party has already discovered. 

Getting back to Goodale’s argument, the Court of Appeals found that the

private search exception applies here. After discovering a history of teen pornography sites, M.R. and his mother took Goodale's laptop to the police station where M.R. showed officers the laptop's web history. This search was neither instigated by nor performed on behalf of the police. U.S. v. Starr, supra.  

During M.R.'s demonstration, an officer moved and touched the laptop for about 17 seconds. No evidence suggests that the officer's viewing went further than M.R.'s search. See U.S. v. Starr, supra (`When the government re-examines materials following a private search, the government may intrude on an individual's privacy expectations without violating the 4th Amendment, provided the government intrusion goes no further than the private search’).

U.S. v. Goodale, supra. 

Goodale, though, also argued that

the private search exception is inapplicable because he did not consent to M.R.'s possession or transportation of the laptop. He further believes the exception does not apply when the search and seizure results from trespass or theft by a private party. These arguments are meritless.

The private search exception applies `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) (emphasis added), citing Walter v. U.S., 447 U.S. 649 (1980). See also U.S. v. Malbrough, 922 F.2d 458 (U.S. Court of Appeals for the 8th Circuit 1990) (upholding a search by a private citizen who trespassed on another's property and viewed marijuana).

U.S. v. Goodale, supra.  If you are interested, you can read more about the private search exception, with particular application to searches for digital evidence, in the article you can find here.

Goodale’s other argument as to why his motion to suppress should have been granted involved “the officers' continuing seizure of his laptop without a warrant.”  U.S. v. Goodale, supra.  As Wikipedia notes , the 4th Amendment establishes that “the people” of the United States are constitutionally protected against “unreasonable” searches and seizures.  As Wikipedia also notes, a “search” violates a reasonable expectation of privacy in a place of thing, while a “seizure” interferes with (i) a person’s freedom of movement and (ii) someone’s possessory interest in certain property, like a laptop.

Here, the Court of Appeals began its analysis of Goodale’s argument regarding the seizure of his laptop by explaining that

`[w]here law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the [4th] Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.’ U.S. v. Clutter, 674 F.3d 980 (U.S. Court of Appeals for the 8th Circuit 2013), (quoting U.S. v. Place, 462 U.S. 696 (1983)).

U.S. v. Goodale, supra. 

The court then rejected Goodale’s argument regarding the continuing seizure of the laptop:

The officers had probable cause to believe the laptop contained contraband based on M.R.'s and his mother's statements about its internet history, and M.R.'s and Z.G.'s allegations of sexual abuse. See U.S. v. Clutter, supra. The exigencies of the circumstances also demanded continuing seizure; Goodale knew about the investigation and could destroy the evidence. See U.S. v. Beasley, 688 F.3d 523 (U.S. Court of Appeals for the 8th Circuit 2012) (upholding the warrantless seizure of a computer where, like Clutter, `the police had a legitimate interest in preventing destruction of the potential contraband’).

U.S. v. Goodale, supra. 

The Court of Appeals then took up Goodale’s related argument that the district court judge should have suppressed the “statements made to investigating officers on September 17 as fruit of the (allegedly illegal) laptop search.”  U.S. v. Goodale, supra.  The court’s reference to “fruit” is a shorthand way of referring to the exclusionary that is used to enforce the 4th Amendment’s prohibitions.  As Wikipedia notes, early in the twentieth century the U.S. Supreme Court developed the “legal metaphor” of the “fruit of the poisonous tree” to refer to evidence that is obtained as a result of law enforcement officers’ violating the 4th Amendment.  Such evidence must be suppressed absent some reason to the contrary.

Here, the Court of Appeals then noted that the

`exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or “fruit of the poisonous tree.”’ U.S. v. Riesselman, 646 F.3d 1072 (U.S. Court of Appeals for the 8th Circuit 2011) (quoting Segura v. U.S., 468 U.S. 796 1984)). `[T]he defendant bears the initial burden of establishing the factual nexus between the constitutional violation and the challenged evidence.’ U.S. v. Riesselman, supra quoting U.S. v. Marasco, 487 F.3d 543 (U.S. Court of Appeals for the 8th Circuit 2007)).

U.S. v. Goodale, supra. 

Goodale, though, had not actually preserved his right to challenge the prosecution’s use of his statements at trial.  When he moved to suppress the statements prior to trial, he argued that they should be suppressed because he was in “custody” for Miranda purposes when he made the statements but “he did not voluntarily, knowingly and intelligently waive his Miranda rights.”  U.S. v. Goodale, 2012 WL 1965600 (U.S. District Court for the Northern District of Iowa 2012). The district court judge denied his motion to suppress because she found Goodale

voluntarily accompanied law enforcement to the police station; law enforcement told him that he was free to leave; law enforcement read him his Miranda rights; [Goodale] read [him] he had the `right to not talk to’ the officers . . . and [he] then signed the waiver form. Moreover, [Goodale] demonstrated that he understood his rights by invoking his right to remain silent approximately ten minutes into the interview.

U.S. v. Goodale (U.S. District Court), supra.

The Court of Appeals therefore explained that

[i]n the district court, Goodale moved to suppress his September 17 statements on the basis of Miranda violations, not as fruit of the laptop search. Because he did not raise this argument in his pretrial motion to suppress, it is waived. See U.S. v. Green, 691 F.3d 960 (U.S. Court of Appeals for the 8th Circuit 2012) (`[T]he mere filing of a motion is not sufficient to avoid waiver of specific arguments that are advanced for the first time on appeal. The Rule 12 waiver provision applies not only to the failure to make a pretrial motion, but also to the failure to include a particular argument in the motion’). . . .

Regardless, because the laptop search did not violate Goodale's constitutional rights, his statements were not fruit of the poisonous tree.

U.S. v. Goodale, supra.  Rule 12(e) of the Federal Rules of Criminal Procedure, which governs the use of motions to suppress evidence and for other reasons, says a party waives an issue if it is not raised in a motion within the time frame set by the district court judge.

For these and other reasons, the Court of Appeals affirmed his conviction and sentence. U.S. v. Goodale, supra. 

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