Friday, May 22, 2015

The OnStar GPS Tracking Service, the iPads and Harassment

This post examines an opinion from the Court of Appeals of Minnesota:  Boggs v. Boggs, 2015 WL 1961179 (2015).  As the caption suggests, the case involves spouses who were in the process of divorcing when the events that produced this suit arose. Boggs v. Boggs, supra.  As the Court of Appeals explained,
[m]arried for twenty years, the parties begin divorce proceedings in March 2014. They have two residences, one in Minnesota and one in Arizona. At the time of the HRO [harassment restraining order] proceedings, husband lived in Arizona with the parties' minor son, and wife lived in Minnesota with the parties' minor daughter.

[Husband] owns the Minnesota property but agreed that [wife] would reside there until May 2014. [His] business operates a horse farm with stables in the vicinity of and at the Minnesota residence. Several vehicles are titled in the business name, including the one driven by [wife]. S.O. is an employee of the business and is responsible for maintaining the stables and vehicles and caring for the horses. In the winter and during times relevant to this matter, there were no horses at the stables. The horses were in Arizona.
Boggs v. Boggs, supra.  David is the husband and Terry Ann is the wife to whom the opinion respectively refers to in the passage above. 
The court goes on to explain that on May 2014, Terry ann filed a petition for 
an HRO against [David]. [She] alleged that [he] physically assaulted her, had S.O. follow and stalk her, monitored her social life, had a tracking device attached to the vehicle she used, made threats to her, and frightened her with threatening behavior. [She] stated in the petition that the conduct made her feel like she was `being persecuted and followed, and treated like a fugitive. I have no privacy or protection from [him]. I do not feel safe being alone at my home anymore.’ The district court granted an ex parte HRO. [David] contested the order.
Boggs v. Boggs, supra. 
The Wright County District Court Judge who had the case then held an
evidentiary hearing on the HRO with testimony from both parties and one other witness. [Terry Anne] testified that, during an argument in May 2014, [David] grabbed her arms, she elbowed him, they both fell, and she sustained bruises. [Terry Anne] also testified that employee S.O. came to her Minnesota residence without her knowledge or consent on multiple occasions in March and April 2014, that his presence was pursuant to the direction of [David], and that [David] was tracking her vehicle through the use of OnStar Family Link GPS services. [Terry Anne] further pointed out that she had a male friend and that [David] attempted to monitor her activities with that individual and restrict his presence at the Minnesota residence.

[David] testified that as the owner he had a legitimate business interest in the use, care, and maintenance of the Minnesota residence and nearby stables, that S.O. frequently goes to the Minnesota residence because his job requires that he maintain the property and stables, and that as the owner he communicated with S.O. regarding the premises. [David] stated that he did not intend for S.O. to engage in any stalking of [Terry Anne]. [He] also testified that all of the business vehicles had OnStar services and that the vehicle used by [Terry Anne] was not treated differently.
Boggs v. Boggs, supra. 
The District Court Judge “granted [Terry Anne] an HRO, finding that [David] did not physically assault [her] but that [he] `intentionally engaged in repeated incidents of intrusive or unwanted acts.’”  Boggs v. Boggs, supra.  David then appealed.
The Court of Appeals began its analysis of his appeal by explaining that it reviews
the District Court's grant of an HRO for abuse of discretion. Kush v. Mathison,683 N.W.2d 841 (Minnesota Court of Appeals 2004). . . . To find an abuse of discretion, we `must conclude that the district court erred by making findings unsupported by the evidence or by improperly applying the law.’ State v. Underdahl, 767 N.W.2d 677 (Minnesota Supreme Court 2009). The district court's findings of fact `shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses.’ Minnesota Rules of Civil Procedure Rule 52.01.

An HRO may be granted if `there are reasonable grounds to believe that the [subject of the HRO] has engaged in harassment.’ Minnesota Statutes § 609.748, subd. 5(b)(3) (2014). Harassment includes `repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another.’ MinnesotaStatutes § 609.748, subd. 1(a)(1) (2014).

To sustain an HRO petition, the petitioner must prove `objectively unreasonable conduct or intent on the part of the harasser’ and `an objectively reasonable belief on the part of the [harassed] person’ that such conduct has a substantial adverse effect on her safety, security, or privacy. Peterson v. Johnson, 755 N.W.2d 758 (Minnesota Court of Appeals 2008) (quotations omitted). Here, the district court found [David] `intentionally engaged in repeated incidents of intrusive or unwanted acts’ that established the `objectively unreasonable’ requirements. The court cited four incidents to support the issuance of the HRO.
Boggs v. Boggs, supra. 
The first incident occurred in March of 2014, when David
instructed S.O. to investigate the area around [Terry Anne’s] residence after S.O. reported motorcycles were at the house and there were signs of a party. [David] testified that S.O.'s report of motorcycles and other indications that a party was occurring at the Minnesota residence led him to worry that `there may be alcohol or damage to my property.’ [David] testified that it was part of S.O.'s job `to check on the property on almost a daily basis. . . . Horses eat on holidays, so you're on properties and work 24/7 in the horse business.’

[Terry Anne] testified that the horses were in Arizona for the winter, that the stables were empty in March and April, and that normally `employees do not come to the Minnesota home anytime over the winter. There's zero reason for them to do that.’ The district court found that with the horses in Arizona, some of S.O.'s presence on the property and communications with [David] constituted harassment monitoring by [David] of [Terry Anne] and of her residence.
Boggs v. Boggs, supra. 
As to the second incident, the Judge found that
S.O. reported to [David] that a `strange vehicle’ was leaving the Minnesota residence on the evening of April 23, 2014, and [David] instructed S.O. to go to the property to look around. [David] testified that while S.O. was `checking on the property, or going by or something,’ S.O. called [David] to inform him that a strange car was in the driveway. [David] testified that he asked S.O. to obtain the license-plate number of the strange car and S.O. subsequently told [him] that the car belonged to a friend of the parties' minor daughter. After dark, while S.O. was investigating the car, the daughter saw him in the shrubbery and became frightened that an intruder was on the property. . . .

[David] stated that he did not intend for S.O. to stalk [Terry Anne]. [She] testified that her daughter called her at 9:00 p.m., crying and scared because of `a car in the driveway that had followed her friends and then returned to the driveway.’ [Terry Anne] testified that her daughter then observed S.O. hiding between two trees in front of the garage. [Terry Anne] testified that it frightened her to learn S.O. was following her daughter's friends. The district court found [David’s] testimony that S.O. `just happened to be in the area . . . when he saw the strange vehicle’ was not credible and found [David] directed S.O. to observe the property and respondent and report his observations back to [him].
Boggs v. Boggs, supra. 
With regard to the third incident, Terry Anne testified that the next day S.O. was
`checking out the property’ and reported to [David] that there was `a strange white van’ at the residence. [David] asked S.O. to get the license-plate number or find out why it was there. S.O. reported . . . that [Terry Anne] had requested a security-system firm come to work on the locks at the residence. [David] testified that `there was no need for her to change any locks’ because [she] was vacating the residence in May. [Terry Anne] testified that she requested security maintenance because `the actual security alarm to the home hadn't been working . . . and the children had asked me for their security to please reconnect the security system.’ [Terry Anne] testified that the security-system employee called her saying S.O. had told him to leave and had followed him down the road. . . .

The district court found that [David] sent S.O. to the property to monitor [Terry Anne’s] activities and report back to him. The district court found that [David’] testimony that he was simply concerned for his property was not credible. The district court again found [Terry Anne’s] testimony credible, that S.O. did not need to be at the property during the winter months, and that it was reasonable that [she] felt it was unsettling, undermining, and scary to know that S.O. was monitoring the property and herself.
Boggs v. Boggs, supra. 
As to the fourth incident, the District Court Judge found that in April of 2014, David,
or someone at his direction, arranged for the activation of the OnStar Family Link GPS tracking service on the vehicle [Terry Anne] was driving. [David] testified that his assistant, N.W., used OnStar `to know where the vehicle was’ because it belonged to his business, and the intent was not to follow [her]. [Terry Anne] testified that she spoke to an OnStar representative, who informed her that [David] arranged to have the OnStar Family Link GPS tracking service activated on April 8, 2014. 

[She] testified that she was scared and felt violated by [David] tracking her movements. The district court found that [his] business owned the vehicle but that [Terry Anne] had exclusively driven the vehicle except for two occasions. The district court found [David] `had no reason to activate the OnStar Family Link other than to track [her] movements.’ The district court found that tracking [Terry Anne’s] movements by using the OnStar capabilities invaded [her] privacy.
Boggs v. Boggs, supra. 
Finally, in his appeal, David also objected to the trial judge’s considering
evidence of text messages between [him] and N.W. to show that [David] tracked the vehicle's location. [He] argued that [Terry Anne] illegally intercepted the text messages without [his] knowledge. Both parties testified that [David] owns two iPads and that [Terry Anne] uses [his] older iPad. The older iPad uses the data plan associated with [David’s] mobile phone and receives text messages intended for [him].

When this occurs, [Terry Anne] sees the text messages without [his] knowledge. [Terry Anne] testified that she usually told N .W. when she saw text messages to or from [David], but when she received the text messages between [David] and N.W. that indicated [David] was tracking respondent's movements in her vehicle, she did not tell N.W.
Boggs v. Boggs, supra. 
On appeal, David argued that the 
Federal Electronic Communications Privacy Act (ECPA) prohibits [Terry Anne’s] receipt of the text messages, and therefore the district court erred by relying on the text-message evidence to find that [David] harassed [her] through tracking the vehicle. [David] did not make this argument to the district court. This court will not consider matters not argued to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580 (Minnesota Supreme Court 1988). 

Even if this issue were properly before us, the ECPA prohibits the intentional interception of an electronic communication. 18 U.S. Code § 2511 (2012). Nothing in the record here demonstrates that [Terry Anne] intentionally obtained [David’s] electronic communication or that she intercepted the text messages. Instead, the district court found that `the text messages automatically “pop up” when [respondent] is working on the iPad,’ which indicates that [Terry Anne] inadvertently received the text messages. In these circumstances, the district court did not err in considering the testimony regarding the text messages when it found that [David’s] tracking of [her] vehicle was an intrusive or unwanted act.
Boggs v. Boggs, supra (emphasis at the original).
For these and other reasons, the Court of Appeals held that
[b]ecause the record supports the district court's findings and because its findings support the conclusion that [David] intentionally engaged in repeated incidents of intrusive or unwanted acts that had a substantial adverse effect on [Terry Anne’s] safety, security, or privacy, we conclude that the district court did not abuse its discretion in issuing the HRO.
Boggs v. Boggs, supra.  

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