Friday, August 21, 2015

The Podiatrist, the Computer and the Child Pornography

Pete G. Thomas, “a podiatrist,” was
convicted of possessing child pornography after the police found numerous images of naked young girls on his computer. He contends reversal is required because the police unlawfully seized and searched his computer. . . .
People v. Thomas, 2015 WL 778839 (California Court of Appeals – 4th District 2015).
As courts usually do, the Court of Appeals begins its opinion by explaining how, and why, the prosecution arose:
On the morning of October 25, 2012, computer technician John Edwards went to Coastline Podiatry in Santa Ana to install a scanner/copier at appellant's office. [Thomas] was not present at the time, but in order to complete the job, Edwards had to access the `default folder’ on [Thomas’] computer. When he did, approximately 20 “`thumbnail’ photographs of young girls appeared on the screen. The girls, who Edwards estimated were seven to eight years old, were naked from the waist down, and one of them had her legs spread out, revealing her vaginal area. Edwards did not say anything to anyone in [Thomas’] office about the pictures. But later that day, he called the police and told Corporal Israel Garcia what he had seen.

Garcia promptly relayed the information to sex crimes Detective Mike Judson, the lead investigator on the case. Judson instructed Garcia to go to [Thomas’] office that afternoon and see if he could get [his] consent to search his computer. However, when Garcia went to [Thomas’] office, [he] was not there. So, at Garcia's request, the office receptionist contacted [Thomas] and put him on the phone with Garcia.

Garcia told [Thomas] he was investigating a lead about child pornography and asked [him] if he could come to his office to talk. [Thomas] said he could not because he was in Los Angeles. Garcia then asked [Thomas] if it would be okay if the police searched his computer. When [he] said no, Garcia told him officers would be staying at his office until a search warrant could be obtained. [Thomas] said he wanted to read the warrant before they took his computer, and Garcia told him they would leave a copy of the warrant in his office.

By that time it was nearly 5:00 p.m., and [Thomas’] office was about to close for the evening. Garcia's shift was also coming to an end, so he radioed for assistance. Garcia requested that officers be sent out to [Thomas’] office so that they could `sit on the place’ until a warrant could be obtained. Garcia also contacted Detective Judson and informed him of the situation. Judson told Garcia to make sure [Thomas’] computer remained guarded while he obtained a warrant.
People v. Thomas, supra.
The court then goes on to explain that
Judson did not seek a warrant at that time. Instead, he discussed the situation with other detectives in his unit, and together they came to the conclusion exigent circumstances existed to seize [Thomas’] computer without a warrant. Given that [Thomas] knew the police were standing over his computer in anticipation of getting a warrant, the fear was [he] `could potentially be wiping the hard drive, cleaning the hard drive and eliminating [any incriminating] pictures from his computer from another location.’ So, Judson called Garcia and told him to seize [Thomas’] computer, which he did. The computer was then booked into the evidence department of the Santa Ana Police Department with the expectation Judson would obtain a warrant to search it. No one from the department looked at the contents of the computer before then.

As it turned out, Judson was off work the next three days (Friday, Saturday and Sunday) and did not start preparing the warrant affidavit until Monday, October 29. The search warrant was issued the following day, five days after [Thomas’] computer was seized. Forensic testing revealed over 1,000 images of child pornography on the computer, including about 100 photos depicting children who were engaged in sex acts with adults.
People v. Thomas, supra.
The Court then notes that Thomas subsequently
moved to suppress the images on two grounds: 1) The police lacked justification to seize his computer without a warrant; and 2) the five-day delay between the seizure and issuance of the search warrant was unreasonable. At the suppression hearing, the parties stipulated that had the police simply unplugged [Thomas’] computer while it was at his office, it would have prevented anyone from deleting evidence on it remotely. Judson testified he thought about that option at that time but surmised that unplugging or turning off the computer was tantamount to seizing it. He said the destruction of evidence is always a concern once a suspect knows the police are interested in a particular piece of evidence.

Speaking of his experience in other cases, Judson testified he had obtained telephonic search warrants in the past. However, he did not know how long it would have taken him to get such a warrant in this case. He did not discuss that option in talking with Garcia. It is undisputed that had Judson sought a telephonic search warrant, all he would have had to do was get in touch with the on-call magistrate and explain the basis for his request.

The trial court felt this was a close case in terms of whether the police acted lawfully in seizing and searching appellant's computer. However, the court found exigent circumstances existed for Corporal Garcia to seize [Thomas’] computer without a warrant because, had he not done so, [Thomas] could have gone to his office and deleted the incriminating images from it or instructed someone else to do so. The court also determined the five-day delay from when the computer was seized until a search warrant was obtained was reasonable. Therefore, it denied [Thomas’] motion to suppress the pornographic images that were discovered on his computer.
People v. Thomas, supra.
It went on to explain that,
[i]n light of that ruling, [Thomas[]pleaded guilty to one count of possessing child pornography. (California Penal Code § 311.11, subd. (a)). The court sentenced him to probation on the condition that he spend one year in local custody, but it stayed execution of the sentence pending this appeal.
People v. Thomas, supra.
The Court of Appeals begins its analysis of Thomas’ argument on appeal by noting that he “contends that in obtaining the incriminating images from his computer, the police violated his rights under the 4th Amendment. We disagree.”  People v. Thomas, supra.  It prefaced its analysis of the issues in this case by explaining that the
4th Amendment to the United States Constitution provides, `The 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. . . .’ . . .  `As the text makes clear, “the ultimate touchstone of the 4th Amendment is “reasonableness.”’ Riley v. California, 134 S.Ct. 2473 (2014). Reasonableness `’is measured in objective terms by examining the totality of the circumstances'. . . . People v. Robinson (2010) 47 Cal.4th 1104 (California Supreme Court 2010).

Relying on Riley and Missouriv. McNeely, 133 S.Ct. 1552 (2013), [Thomas] contends it was unreasonable for the police to seize his computer without a warrant. But McNeely and Riley are search cases, not seizure cases. In McNeely, the United States Supreme Court held the natural dissipation of alcohol from the body does not per se constitute exigent circumstances justifying a warrantless search in the form of a blood draw from a person who is suspected of driving under the influence. . . . Missouri v. McNeely, supra.

And in Riley, the court held that, absent a warrant, the police may generally not search digital information on a cell phone that has been seized from a person who has been arrested. Riley v. California, supra. Both of those cases involved searches that were highly intrusive in terms of the privacy interests they implicated Riley v. California, supra. [recognizing cell phone searches typically reveal far more private information to the police than most house searches]; Missouri v. McNeely, supra [describing an involuntary blood draw as `a compelled physical intrusion’ of bodily integrity that invades `an individual's “most personal and deep-rooted expectation of privacy”’].)
People v. Thomas, supra.
It also explained that,
[i]n comparison, the threshold issue here is whether the police acted reasonably in seizing appellant's computer from his office. A seizure is `far less intrusive than a search.’ (U.S. v. Payton, 573 F.3d 859 (U.S. Court of Appeals for the 9th Circuit 2009). Whereas a search implicates a person's right to keep the contents of his or her belongings private, a seizure only affects their right to possess the particular item in question. Segura v. U.S., 468 U.S. 796(1984). Consequently, the police generally have greater leeway in terms of conducting a warrantless seizure than they do in carrying out a warrantless search. As a matter of fact, the United States Supreme Court has `frequently approved warrantless seizures of property . . . for the time necessary to secure a warrant, where a warrantless search was either held to be or likely would have been impermissible.’  Segura v. U.S. supra.

Practical considerations also favor a more relaxed standard for warrantless seizures than warrantless searches. `Where 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 [4th] Amendment . . . permit[s] seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it. . . .’ U.S. v. Place, 462 U.S. 696 (1983). Exigent circumstances include “the need to prevent the destruction of evidence.” Kentucky v. King, 31 S.Ct. 1849 (2011). Therefore, if the police officers in the present case reasonably believed 1) [Thomas’] computer contained evidence of a crime, and 2) the delay necessary to obtain a warrant to search the computer might result in the loss or destruction of evidence, then they had every right to seize the computer. Illinois v. McArthur, 531 U.S. 326 (2001); U.S. v. Place, supra; Roaden v. Kentucky, 413 U.S. 496 (1973)Schmerber v. California, California, 384 U.S. 757 (1966). . . .
People v. Thomas, supra.
The Court of Appeals then took up the facts in this case, explaining that Thomas did not
dispute the police had probable cause to believe his computer contained evidence of a crime. However, he contends the police could `have obviated any exigency in this case’ by simply turning off or unplugging his computer until they obtained a search warrant. Doing this would have eliminated the possibility of remote data destruction. But it would not have prevented [Thomas] (or someone acting on his behalf) from going to his office and either manually deleting information from the computer or damaging its hard drive in such a way as to foreclose the possibility of data retrieval. See State v. Maxwell, (Utah 275 P.3d 220 (Utah Supreme Court 2012) [noting that to impair a hard drive so as to prevent the retrieval of incriminating evidence on a computer, `[p]resumably a blowtorch or a power drill could do the trick.’].)

Other than taking [Thomas’] computer, the only practical way the police could have preserved the evidence on it is by standing guard over the machine in [his] office until a search warrant could be obtained. However, that would have constituted a seizure, as well. See Hortonv. California, 496 U.S. 128 (1990) (for 4th Amendment purposes, a seizure occurs whenever the police deprive a person of dominion and control over his property). In fact, had the police opted to do that, the resulting interference with [Thomas’] possessory interest in the computer would have been no different than what occurred by virtue of the physical seizure. And it probably would have resulted in a very awkward and cumbersome situation at [his] office until the warrant arrived. `[I]t is difficult to believe [appellant] would seriously [have found] it a lesser intrusion to have [had] . . . . armed officers on his property/ than to have had the officers seize his computer and go on their way. People v. Link, (California Court of Appeals 1994).

In arguing lack of exigency, [Thomas] makes much of the fact the police made no attempt to seek a telephonic search warrant before seizing his computer. But even if the police had pursued a telephonic warrant instead of a traditional warrant, it still would have entailed some delay. While this course of action would likely have reduced the duration of the seizure, there still would have been a gap in time during which [Thomas’]  computer would have been vulnerable to manipulation or attack by outside forces had the police not taken measures to secure it. The truth of the matter is, once the police alerted [him] to the fact they were at his office and wanted to search his computer for evidence of child pornography, they really had no other option than to seize his computer to prevent the possible destruction of evidence.
People v. Thomas, supra (emphasis in the original).
The Court of Appeals therefore found that
the seizure was justified under the exigent circumstances doctrine. See People v. Coddington, 23 Cal.4th 529 (California Supreme Court 2000) disapproved on other grounds in Price v. Superior Court, 25 Cal.4th 1046 (California Supreme Court 20010 [failure to seek telephonic warrant immaterial where prompt police action was needed to prevent the destruction of evidence]. . . .
People v. Thomas, supra.
It also, though, noted that
`[e]ven a permissible warrantless seizure, such as the initial seizure here, must comply with the 4th Amendment's reasonableness requirement. Thus, the [United States] Supreme Court has held that after seizing an item, police must obtain a search warrant within a reasonable period of time.’ U.S. v. Burgard, 675 F.3d 1029 (U.S.Court of Appeals for the 7th Circuit 2012). . . . Unfortunately, there is `no bright line past which a delay becomes unreasonable. Instead, [we must] assess the reasonableness of [the delay] by weighing ‘the nature and quality of the intrusion on the individual's 4th Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ U.S. v. Burgard, supra. . . . quoting U.S. v. Place, supra. . . . We must also consider whether the police diligently pursued their investigation and if good cause existed to justify the delay that occurred.  U.S. v. Burgard, supra.
People v. Thomas, supra.
The court therefore began its analysis of the facts in this case, noting that
[d]uring the five-day period the police had [Thomas’] computer, he obviously did not have access to it, and thus his right to control and use the computer was infringed. However, the police did not search the computer, so [his] privacy interest in its contents was not infringed. Moreover, that five-day period included a Saturday and a Sunday, which are not traditional working days. There is nothing in the record to suggest had [Thomas]  would have used his computer on those days had the police not seized it from his office.

`On the other side of the equation, law enforcement's interests [in seizing had [Thomas’] computer] were . . . strong,’ in that the police had probable cause to believe it contained evidence of child pornography. U.S. v. Burgard, supra.  Child pornography is not only a reprehensible offense in and of itself, it `is proximately linked to the sexual abuse of children [citation], “a most serious crime and an act repugnant to the moral instincts of a decent people”’. In re Grant, 58 Cal.4th 469 (California Supreme Court 2014). It cannot be gainsaid that the police were pursuing an important governmental interest in this case.

Finally, with regard to the diligence factor, the record shows appellant's computer was seized at the end of the business day on Thursday, October 25, 2012 and that Detective Judson was off work the next three days. When Judson returned to his office on Monday the 29th, he began preparing the search warrant materials, and the warrant was issued the following day. Thus, the five-day delay between the seizure and the warrant's issuance was largely attributable to Judson's schedule; it was `not the result of complete abdication of his work or failure to “see any urgency”’ in the investigation. U.S. v. Burgard, supra. . . .  

Under these circumstances, the delay cannot be said to have been unreasonable. While it certainly was not optimal, we must remember `police imperfection is not enough to warrant reversal. With the benefit of hindsight, courts ‘can almost always imagine some alternative means by which the objectives of the police might have been accomplished,’ but that does not necessarily mean that the police conduct was unreasonable. U.S. v. Burgard, supra.
People v. Thomas, supra.
And, finally, it explained that,
[a]t bottom, we are convinced the police acted reasonably in both seizing and searching appellant's computer. Although five days transpired between those two events, the delay was not unreasonable under the circumstances presented. U.S. v. Burgard, supra. . . . [six-day delay between the seizure of the defendant's cell phone and the securing of a search warrant to look for evidence of child pornography on the device was not unduly lengthy even though the police `should have been able to submit the warrant application more quickly’]; . . . State v. Maxwell, supra (4th Amendment did not require suppression of pornographic images of children that were found during a search of the defendant's computer eight days after the police seized it from his home).
People v. Thomas, supra.
The Court of Appeals therefore affirmed Thomas’ conviction. People v. Thomas, supra.

You can, if you are interested, read more about the case in the news stories you can find here and here.

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