Monday, November 17, 2014

The Laptop, the Best Buy Technician and the Child Pornography

After Maximilian Paul Gingrich was charged with “two counts of possessing child sexually abusive material, [Michigan Compiled Laws] 750.145c(4), and two counts of using computers to commit a crime, [Michigan Compiled Laws] 752.796”, he filed a motion to suppress certain evidence.  People v. Gingrich, 2014 WL 5783091 (Court of Appeals of Michigan 2014).  The trial judge granted Gingrich’s motion to suppress
evidence of child pornography . . .  found on [Gingrich’s] laptop computer following a warrantless search by police after being notified by Best Buy employees of suspicious file names the employees saw while performing repairs to the computer. The circuit court ruled that a search without both probable cause and a warrant is generally unreasonable unless a recognized exception to the warrant requirement applied, and that in this case, the search and seizure was not permissible under the exigent circumstances, consent, plain view, or inevitable discovery exceptions. 
People v. Gingrich, supra.  The prosecution appealed the judge’s ruling, which is what Court of Appeals reviewed in this opinion.  People v. Gingrich, supra. 
The Court of Appeals began its analysis of the issue in question by explaining the facts that supported the charges against Gingrich:
At the preliminary examination, Chad Vandepanne, a computer repair technician for Best Buy, testified that he received a work order to perform a `diagnostic repair with a backup’ on [Gingrich’s] computer. The requested work required Vandepanne to physically remove the computer's hard drive, backup all of the data on the computer, and then perform a full hardware/software diagnostic, repairing any problems that were discovered. A machine performing the backup would display computer file names but not permit the files to be opened, as Vandepanne testified that Best Buy's policy did not permit employees to open any customer computer files. 
During the backup of [Gingrich’s] computer, Vandepanne noticed files entitled, `12–year old Lolita’ and `12–year–old female virgin's pussy,’ which led him to suspect the files might be child pornography. After seeing the file names, Vandepanne informed his manager of what he saw. Kent County Sheriff's Deputy Gary Vickery arrived 15 minutes later and Vandepanne pointed out the suspicious file names while the backup . . . was still running. 
According to both Vandepanne and Vickery, when the backup process ended Vickery requested that Vandepanne open the suspicious files. To do so, Vandepanne had to remove the hard drive from the backup machine and attach it to a computer that would permit opening and browsing the suspect files. When he did this, the suspect files were opened and displayed pictures of pornography involving minors. Vickery requested and Vandepanne gave him the computer hard drive containing the suspected child pornography. Vickery also seized [Gingrich’s] computer, power supply, and nine software discs. Vickery admitted that a search warrant could have been, but was not, obtained before opening the suspicious computer files.
People v. Gingrich, supra. 
As noted above, Gingrich filed a pre-trial motion to suppress, and the judge held that the
warrantless search and seizure by the police violated [Gingrich’s] constitutional rights because no exception to the warrant requirement applied. Consequently, the exclusionary rule required that the items seized and observations made be excluded from evidence, along with the fruit of the illegal search. 
Because no other evidence beyond that which was suppressed supported the charges against [Gingrich], they were also dismissed. The circuit court subsequently ruled that the prosecution's motion for reconsideration was not timely, and therefore denied it.
People v. Gingrich, supra.  That ruling led to the prosecution’s appeal. People v. Gingrich, supra. 
The Court of Appeals began its analysis of the correctness of the trial judge’s ruling buy explaining that a search warrant is
only required if the government conducts a search of an object or area that is protected by the Fourth Amendment. See O'Connor v. Ortega, 480 U.S. 709 (1987). The 4th Amendment itself protects `[t]he right of the people to be secure in their persons, homes, papers, and effects, against unreasonable searches and seizures. . . .’ U.S. Const, Am IV. Under the plain terms of the Amendment, `[w]hen “the Government obtains information by physically intruding” on persons, houses, papers or effects, `a search within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’ Florida v. Jardines, 133 S.Ct. 1409 (2014), quoting in part U.S.v. Jones, 132 S.Ct. 945  (2012). . . . A `[t]respass alone does not qualify, but there must be conjoined with that . . . an attempt to find something or to obtain information.’ U.S. v. Jones, supra.
 In addition, the government needs a warrant (assuming no exception applies) before searching something in which the person has a reasonable expectation of privacy. Soldal v. Cook County, 506 U.S.56 (1992). But, if the government physically intrudes on a constitutionally protected area (a person's home, papers, and effects) in search of evidence without a warrant, then the Katz reasonable expectation inquiry is unnecessary. Florida v. Jardines, supra, citing U.S. v. Jones, supra. . . .
 That is because the Katz reasonable-expectation test is in addition to the traditional property-based understanding of the 4th Amendment. Id. In other words, these are separate tests that can be applied depending on the interest at issue, but a finding that one is met is sufficient to find a violation of the 4th Amendment.
People v. Gingrich, supra. 
The court then turned to the issue in this case, explaining that as Gingrich argued, 
this matter is easily resolved. A search for purposes of the 4th Amendment occurred in this case because `the officers learned what they learned only by physically intruding on [Gingrich’s] property [his computer] to gather evidence [which] is enough to establish that a search occurred.’ Florida v. Jardines supra.
 It can hardly be doubted that a computer, which can contain vast amounts of personal information in the form of digital data, is an `effect,’ U.S. Const, Amendment IV, and a `possession,’ [Michigan] Const 1963, art 1,§ 11, within the meaning of the constitutional proscription against unreasonable searches and seizures. See People v. Smith, 420 Mich. 1, 20, 360 N.W.2d 841 (Michigan Supreme Court 1984) (opining that as used in the two constitutional provisions, “ ‘possessions' and ‘effects' are virtually identical in meaning” and therefore there exists no reason to treat those provisions differently).
People v. Gingrich, supraThe Court of Appeals went on to explain that 
the evidence in the court record also shows that only at the command of the police did the Best Buy employee physically take the hard drive to [Gingrich’s] computer (thus, a trespass on defendant's `effects’) and attach it to a store computer in order to gather evidence of child pornography. Since the officers did not have a search warrant to do so, and no exception to the warrant requirement applies, the circuit court correctly held that a warrant was required before police directed the Best Buy employee to attach the hard drive to another computer for purposes of searching the hard drive for evidence. 
Having reached this conclusion, there is no need to determine whether [Gingrich] also had a reasonable expectation of privacy in the information contained in the computer. Florida v. Jardines, supra.
People v. Gingrich, supra (emphasis in the original).
The court then explained that its conclusion that it was necessary for
the police to obtain a search warrant before exceeding the scope of the private search is further buttressed by the decision in U.S. v. Jones, supra. In Jones, government agents tracked the movements of a suspected drug trafficker by placing an electronic Global–Positioning–System (GPS) device on the undercarriage of a vehicle registered to the suspect's wife while it was parked in a public parking lot. U.S. v. Jones, supra. Jones was later charged with, among other offenses, conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. U.S. v. Jones, supra. The district court denied Jones's motion to suppress the GPS evidence, finding that one `”traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”’ U.S. v. Jones, supra. The United States Court of Appeals for the District of Columbia Circuit reversed Jones's conviction `because of admission of the evidence obtained by warrantless use of the GPS device. . . .’ U.S. v. Jones, supra. The United States Supreme Court affirmed, holding that attaching the GPS tracking device to an individual's vehicle, and thereby monitoring the vehicle's movements on public streets, constituted a search or seizure within the meaning of the Fourth Amendment. U.S. v. Jones, supra.
 Justice Scalia, writing for the Court, noted that it was `beyond dispute that a vehicle is an “effect” as that term is used in the [4th] Amendment,’ . . .  and added that `[b]y attaching the [GPS] device to the Jeep, officers encroached on a protected area. . . ‘U.S. v. Jones, supra.   `The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the 4th Amendment when it was adopted.’ U.S. v. Jones, supra.   Consequently, because the government obtained information by physically intruding on a constitutionally protected area, the Court concluded a search within the protection of the 4rth Amendment had occurred. U.S. v. Jones, supra. Hence, when the government commits a trespass on `houses,’ `papers’ or `effects’  (or invades a Katz reasonable invasion of privacy) for the purpose of obtaining information, such a trespass or invasion of privacy is a search within the meaning of the 4th Amendment. . . .
People v. Gingrich, supra. 
The Court of Appeals therefore held that under the 4th Amendment to the U.S. Constitution,
as reinforced by Jardines and Jones a personal computer storing personal information in the form of digital data must be considered defendant's `effect’ under the 4th Amendment, and `possession’ under the Michigan Constitution, see Const 1963, art 1, § 11. To access the data and obtain information from [Gingrich’s] computer, his `effect’ or `possession,’ the Best Buy employees as directed by the police physically attached another device to its hard drive. 
Such action was a trespass-a search under the 4th Amendment and Const 1963, art 1, § 11 -– because the government physically intruded defendant's property to obtain information. U.S. v. Jones, supra. . . . The police did not obtain a warrant to conduct the search and the prosecution's brief offers no exception to the warrant requirement to justify the police's action. 
As the circuit court ruled, `[a] search and seizure without a warrant is unreasonable per se and violates the 4th and 14th Amendments of the United States Constitution and Const 1963, art 1, § 11, unless shown to be within one of the exceptions to the rule.” People v. Wagner, 114 Mich.App. 541, 320 N.W.2d 251 (Court of Appeals of Michigan 1982) (citation omitted). . . . Consequently, we conclude that the police search in this case without a warrant or applicable exception to the warrant requirement, was per se unreasonable under the 4th Amendment and Const 1963, art 1, § 11.
People v. Gingrich, supra. 

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