Wednesday, November 30, 2016

Armed Robbery, the Text Message and the Cell Phone

This post examines an opinion from the Court of Appeals of Ohio – Fifth District:  State v. Hidey, 2016 WL 5885507 (2016). The court begins by explaining that “[a]ppellant the State of Ohio appeals a judgment of the Tuscarawas County Common Pleas Court suppressing a cell phone seized from appellee Kody S. Hidey.”  State v. Hidey, supra.
It goes on to explain that
[o]n October 28, 2014, an armed robbery took place at Marty’s Coaches Corner in New Philadelphia, Ohio. Detective Shawn Nelson of the New Philadelphia Police Department commenced an investigation. Det. Nelson received a tip from Charla Hamilton on October 29, 2014, that a man by the name of Devonte Sherman might be responsible for the robbery.

Ms. Hamilton informed Det. Nelson that she received a text message on the day of the robbery from Devonte Sherman asking if she knew of anywhere to `make some moves.’ She understood `make some moves’ to be a slang term for committing a robbery or stealing. She told Det. Nelson that Devonte Sherman did not have a phone, but had been staying with appellee and shared appellee's phone. The text messages from Sherman came to her from a number she recognized as appellee's cell phone number. She further indicated that Sherman used appellee's phone after the robbery, saying he was `hot’ in New Philadelphia and needed to let things cool down before coming back.
State v. Hidey, supra.
The opinion continues with its account of the facts that led to the charges against Hidey and this appeal:
After police met with Hamilton, they prepared a photo lineup that was shown to the employees who worked in Marty's Coaches Corner on the night of the robbery. Both employees identified Devonte Sherman as the perpetrator of the armed robbery.

Det. Nelson conducted an interview with appellee at the police department on November 3, 2014. Det. Nelson asked appellee if he had his phone with him. He asked appellee to see the phone, saying, `I'm not taking it. I just want to see it while you're sitting here with me. Make sure it's off.’ Tr. 13. After confirming that Sherman used appellee's phone, Det. Nelson told appellee that he was taking the phone. On November 13, 2014, police obtained a search warrant to retrieve the contents of appellee's phone.
State v. Hidey, supra.
The Court of Appeals goes on to explain that
[a]ppellee was indicted by the Tuscarawas County Grand Jury with one count of aggravated robbery (Ohio Revised Code 2911.01(A)(1)) with a firearm specification. Appellee filed a motion to suppress all evidence obtained from the warrantless seizure of his cell phone.

Following a hearing, the court found that although there may have been probable cause to seize the phone, there were no exigent circumstances to justify the seizure because Det. Nelson knew about the phone's potential link to criminal activity prior to his interview with appellee, and could have obtained a warrant to seize the phone. The court found that even if the seizure was proper, the seizure subsequently became unreasonable because the detective waited ten days after the seizure to obtain a warrant for the information contained in the phone. The court accordingly granted appellee's motion to suppress.
State v. Hidey, supra.
In the paragraph above, the court is explaining that even if one assumes the officers had probable cause – the standard used in determining if a Fourth Amendment search or seizure is “reasonable” – the seizure violated the Fourth Amendment because it was not justified under the exigent circumstances exception’s to the default requirement that officers obtain a search and seizure warrant to take possession of evidence.
In its appeal, the State of Ohio, e.g., the prosecution, argued that “that the [trial] court erred in finding that the seizure of appellee's cellphone violated the Fourth Amendment.”  State v. Hidey, supra. It went on to argue that
[a] seizure of personal property is ordinarily per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized. United States v. Place, 462 U.S. 696, 701(1983). However, 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 Fourth Amendment permits 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. Id. Different interests are implicated by a seizure than by a search, as a seizure implicates only the person's possessory interests, while a search affects the person's privacy interests. Segura v. United States, 468 U.S. 796, 806 (1984). Because the nature of a seizure is generally less intrusive than a search, the United States Supreme Court has frequently approved a warrantless seizure of property on the basis of probable cause, for the time necessary to secure a warrant. Id.
State v. Hidey, supra.
The Court of Appeals also noted that
[a]lthough the Ohio Supreme Court has declined to define a cell phone as a closed container, once the cell phone is in police custody, the State has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the information found on the phone is neither lost nor erased. State v. Smith, 124 Ohio St.3d 163, 169, 920 N.E.2d 949, 955, ¶ 23 (Ohio Supreme Court 2009). But because a person has a high expectation of privacy in a cell phone's contents, police must obtain a warrant before intruding into the phone's contents. Id.
State v. Hidey, supra.
The court went on to outline its analysis of the legality of the seizure of the cell phone:
The evidence presented at the hearing demonstrated that the detective had probable cause to believe appellee's cell phone contained evidence of the armed robbery of Marty's Coaches Corner on October 28, 2014. Charla Hamilton told Det. Nelson of a photo of the front page of the local newspaper talking about the robbery which was sent or received from that phone. Messages from Devonte Sherman asking her about `moves’ had come from appellee's phone, as well as Sherman's message that he needed to stay clear of New Philadelphia until things cooled down. Further, Hamilton had some, but not all, of the messages on her phone to corroborate her statements to police. Sherman had been identified by both employees from a photo lineup as the person who robbed the store. While talking to appellee, Det. Nelson confirmed that Sherman had used appellee's phone.

However, the trial court erred in finding that the exigencies which supported the seizure of the phone were created by Det. Nelson by his failure to secure a warrant to seize the phone, and could not be relied on to support the warrantless seizure of the phone. The officer testified that prior to locating appellee, he did not have information he needed to get a warrant to seize the phone. He testified that needed information such as the phone number, the pin number, and the description of the device being sought. All he knew was that appellee had a phone which may or may not be in his possession, and police would not know where to execute a warrant for the phone.

Further, the court erred in finding that the warrantless seizure was not demanded by the exigencies of the situation. Appellee knew from the interview that police suspected his phone had been used by Sherman to relay information concerning a crime. Det. Nelson testified that he therefore had reason to believe that the minute appellee walked out the door, the phone would be destroyed or thrown in the river, or all the information on it would be deleted. The seizure of the cell phone from appellee at the police interview did not violate the Fourth Amendment.
State v. Hidey, supra.

Monday, November 28, 2016

The “Romantic Relationship,” the AOL Email Account and the Facebook Account

This post examines an opinion the U.S. Court of Appeals for the Second Circuit issued last summer in a civil suit:  Sewell v. Bernardin, 795 F.3d 337 (2015).  The court begins by explaining that
[i]n order to resolve this appeal, we address a matter of first impression in this Circuit: the operation of the statutes of limitations applicable under the civil enforcement provisions of the Computer Fraud and Abuse Act (CFAA.), 18 U.S. Code § 1030, and the Stored Communications Act (SCA.), 18 U.S. Code § 2701, et seq. A plaintiff bringing an action under the CFAA's civil enforcement provision must do so `within 2 years of the date of the act complained of or the date of the discovery of the damage.’ 18 U.S. Code § 1030(g). The SCA provides that `[a] civil action under this section may not be commenced later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.’ 18 U.S. Code § 2707(f).
Sewell v. Bernardin, supra.
The court goes on to explain that
[t]he plaintiff, Chantay Sewell, filed suit under both statutes alleging that her former boyfriend, defendant Phil Bernardin, had gained access to her e-mail and Facebook accounts without her permission and therefore in violation of the CFAA and the SCA. She asserts that she discovered that she could not log into her (AOL.) e-mail account on or about August 1, 2011 `because her password was altered.’ Complaint ¶ 11(J.A. 5). More than six months later, on or about February 24, 2012, she contends, she discovered that she could not log into her (`Facebook’) account `because her password was altered.’ Complaint ¶ 12 (J.A. 5). The district court granted Bernardin's motion to dismiss Sewell's claims as untimely, and Sewell appealed.
Sewell v. Bernardin, supra.
The Court of Appeals then outlined the facts that led to this litigation:
We accept as true at this stage of the proceedings all facts alleged in Sewell's complaint. See Town of Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir.2012). According to those allegations, Sewell and Bernardin were involved in a `romantic relationship’ from in or about 2002 until 2011. Sewell maintained a private e-mail account with AOL and a private social media account with Facebook, including in 2011 and 2012. She did not knowingly share her account passwords with Bernardin or any other person and was the only authorized user of each account.

On or about August 1, 2011, Sewell discovered that her AOL password had been altered, and she was therefore unable to log into her AOL e-mail account. That same month, malicious statements about her sexual activities2 were e-mailed to various family members and friends `via Sewell's own contacts list maintained privately within her email account.’ Compl. ¶ 19 (J.A. 6).

On February 24, 2012, Sewell found herself unable to log into her Facebook account. Then, on March 1, 2012, someone other than she posted a public message from her Facebook account containing malicious statements, again concerning Sewell's sex life.
Sewell v. Bernardin, supra.
The opinion continues, explaining that
Sewell alleges that Bernardin obtained her AOL and Facebook passwords without her permission while he was a guest in her home. Verizon Internet records confirmed that Bernardin's computer was used to gain access to the servers on which Sewell's accounts were stored. He then changed her AOL and Facebook passwords. Bernardin allegedly thereby obtained access to Sewell's electronic communications and other personal information and sent messages purporting to be from her.

On May 15, 2013, Sewell filed a separate suit against Bernardin's wife, Tara Bernardin, and `John Does # 1–5,’ apparently believing that Tara Bernardin and others unknown to her had gained access to her Internet accounts. The complaint raised claims strikingly similar to those that she is pursuing in the instant action. Tara Bernardin settled her suit with Sewell on September 27, 2013, and the court accordingly entered judgment in Sewell's favor shortly thereafter. Several months later, on January 2, 2014, Sewell filed the instant action against Phil Bernardin, alleging violations of the SCA and CFAA. On August 2, 2014, the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge) granted Bernardin's motion to dismiss, holding that Sewell's claims were time-barred under the CFAA's and SCA's applicable two-year statutes of limitations. This appeal followed.
Sewell v. Bernardin, supra.
The Court of Appeals then outlined the standard it applies when a case involves the
grant of a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) de novo, `accepting as true factual allegations made in the complaint, and drawing all reasonable inferences in favor of the plaintiff[ ].’ Town of Babylon, 699 F.3d at 227. `Dismissal under Federal Rules of Civil Procedure 12(b)(6) is appropriate when a defendant raises a statutory bar,’ such as lack of timeliness, `as an affirmative defense and it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a matter of law.’ Staehr v. Hartford Fin. Servs. Grp., 547 F.3d 406, 425 (2d Cir. 2008) (internal quotation marks, alterations, and emphasis omitted).
Sewell v. Bernardin, supra.
The court then summarized the applicable law under the Computer Fraud and Abuse Act and the Stored Communications Act:
The CFAA criminalizes, inter alia, `intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing] . . . information from any protected computer,’ 18 U.S. Code § 1030(a)(2)(C), and `intentionally access[ing] a protected computer without authorization, and as a result of such conduct, caus[ing] damage and loss,’ id. § 1030(a)(5)(C).

The statute also provides a civil cause of action to `[a]ny person who suffers damage or loss by reason of a violation of this section.’ Id. § 1030(g). To be timely, such a civil suit must be filed `within 2 years of the date of the act complained of or the date of the discovery of the damage.’ Id .`“Damage,’ in turn, is defined as `any impairment to the integrity or availability of data, a program, a system, or information.’ Id. § 1030(e)(8). The statute of limitations under the CFAA accordingly ran from the date that Sewell discovered that someone had impaired the integrity of each of her relevant Internet accounts.

Under the SCA, it is a crime to:
(1) intentionally access[ ] without authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceed[ ] an authorization to access that facility; and thereby obtain[ ], alter[ ], or prevent[ ] authorized access to a wire or electronic communication while it is in electronic storage in such system. . . .

18 U.S. Code § 2701(a).

As with the CFAA, the SCA establishes a civil cause of action. `[A]ny . . . person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind’ may file suit. Id. § 2707(a). A civil action under this section must be commenced no `later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.’ Id. § 2707(f). In other words, the limitations period begins to run when the plaintiff discovers that, or has information that would motivate a reasonable person to investigate whether, someone has intentionally accessed the `facility through which an electronic communication service is provided/ and thereby obtained unauthorized access to a stored electronic communication. Id. § 2701(a).
Sewell v. Bernardin, supra.
The Court of Appeals then began its analysis of the issue in this case, explaining that
[t]he district court granted Bernardin's motion to dismiss Sewell's claims as untimely based on the court's conclusion that Sewell was `aware that the integrity of her computer had been compromised’ as of August 1, 2011. Sewell v. Bernardin, 50 F.Supp.3d 204, 212 (E.D.N.Y. 2014). The court reasoned that Sewell's August 1, 2011, discovery—which related to the unauthorized use of her AOL account—provided her with a reasonable opportunity to discover the full scope of Bernardin's alleged illegal activity more than two years before she brought this suit on January 2, 2014. We agree with the district court as its decision related to Sewell's AOL account, but disagree with it as it related to her Facebook account.
Sewell v. Bernardin, supra.
The court then began its analysis of the issues outlined above, beginning with this:
Sewell discovered the `damage’ to her AOL account for CFAA purposes on August 1, 2011, when she learned that she could not log into her AOL e-mail account. That she may not have known exactly what happened or why she could not log in is of no moment. The CFAA's statute of limitations began to run when Sewell learned that the integrity of her account had been impaired.

The SCA's statute of limitations began to run when Sewell `first . . .  had a reasonable opportunity to discover,’ 18 U.S. Code § 2707(f), that someone had `intentionally access[ed] [her AOL account] without authorization,’ id. § 2701(a). She had such an opportunity as soon as she discovered that she could not obtain access to that account because her password had been `altered’ inasmuch as, accepting her other allegations as true, further investigation would have led her to Bernardin.

Sewell's CFAA and SCA claims with regard to her AOL account were first made on January 2, 2014, and were premised on damage and unauthorized access to her AOL account which she had or should have discovered some two years and five months earlier. The two-year statutes of limitations had therefore run.
Sewell v. Bernardin, supra.
The court then explains that, with regard to
Sewell's Facebook-related claims, by contrast, appear to have accrued on or about February 24, 2012. Her complaint alleges that she “was the sole authorized user of” her Facebook account. Compl. ¶ 10 (J.A. 4). On or about `February 24, 2012, [she] discovered that she could no longer log into or access her account with because her password [had been] altered.’ Compl. ¶ 12 (J.A. 5). There is nothing in the facts as alleged in the complaint from which to infer that anyone gained unauthorized access to her Facebook account before then. Thus, taking these allegations as true, there would have been no damage, for CFAA purposes, or violation, for SCA purposes, for Sewell to discover with respect to her Facebook account before that date, which was less than two years before the suit was brought.

The fact that Sewell had discovered `damage’ to her AOL account based on her inability to access AOL's computer servers at an earlier date does not lead to a different result. Contrary to the district court's remark, Sewell did not allegedly discover `that the integrity of her computer had been compromised’ as of August 1, 2011. Sewell, 50 F.Supp.3d at 212 (emphasis added). She discovered only that the integrity of her AOL account had been compromised as of that time. Her CFAA claim accordingly is premised on impairment to the integrity of a computer owned and operated by AOL, not of her own physical computer. As a result, Sewell has two separate CFAA claims, one that accrued on August 1, 2011, when she found out that she could not access her AOL account, and one that accrued on February 24, 2012, when she found out that she could not access her Facebook account.

Sewell v. Bernardin, supra (emphasis in the original).

The opinion goes on to point out that,

[l]ike her Facebook-related CFAA claim, Sewell's Facebook-related SCA claim is also timely. Under the SCA, a civil plaintiff must file her claim within two years of discovery or a reasonable opportunity to discover intentional and unauthorized access to an electronic communication facility. The district court concluded that Sewell `had a reasonable opportunity to discover the Defendant's illegal activity’ vis-à-vis her Facebook account as of August 1, 2011. Sewell, 50 F.Supp.3d at 213 (internal quotation marks and brackets omitted). But as we have noted, there is no allegation in the complaint that Sewell's Facebook account and the computer servers on which her information was stored were tampered with before February 24, 2012, when she alleges that she was unable to log into her Facebook account. She could not reasonably be expected to have discovered a violation that, under the facts as alleged in the complaint, had not yet occurred.

The district court's conclusion may rest on the assumption that a plaintiff is on notice of the possibility that all of her passwords for all of the Internet accounts she holds have been compromised because one password for one Internet account was compromised. We do not think that that is a reasonable inference from the facts alleged in the complaint. We take judicial notice of the fact that it is not uncommon for one person to hold several or many Internet accounts, possibly with several or many different usernames and passwords, less than all of which may be compromised at any one time. At least on the facts as alleged by the plaintiff, it does not follow from the fact that the plaintiff discovered that one such account—AOL e-mail—had been compromised that she thereby had a reasonable opportunity to discover, or should be expected to have discovered, that another of her accounts—Facebook—might similarly have become compromised.
Sewell v. Bernardin, supra.
The court went on to note that
[w]e pause to acknowledge that the statutes of limitations governing claims under the CFAA and SCA, as we understand them, may have troubling consequences in some situations. Even after a prospective plaintiff discovers that an account has been hacked, the investigation necessary to uncover the hacker's identity may be substantial. In many cases, we suspect that it might take more than two years. But it would appear that if a plaintiff cannot discover the hacker's identity within two years of the date she discovers the damage or violation, her claims under the CFAA and SCA will be untimely.

The plaintiff does have the option of initiating a lawsuit against a Jane or John Doe defendant, but she must still discover the hacker's identity within two years of discovery or a reasonable opportunity to discover the violation to avoid dismissal. This is because we have concluded `that Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities.’ Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 470 (2d Cir.1995).
Sewell v. Bernardin, supra.

The Court of Appeals therefore held that “[f]or the foregoing reasons, the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part for further proceedings.” Sewell v. Bernardin, supra.

Friday, November 25, 2016

Criminal Conspiracy, “Alleged Drug Activity” and Authentication of Evidence

This post examines an opinion from the Superior Court of Pennsylvania:  Commonwealth v. Howard, 2016 WL 5266632 (2016).  The opinion begins by explaining that “Nathan Howard, appeals from the judgment of sentence entered in the Court of Common Pleas of Erie County for his conviction of criminal conspiracy.” Commonwealth v. Howard, supra. The conspiracy charge was filed under 18 PennsylvaniaStatutes and Consolidates Statutes § 903. Commonwealth v. Howard, supra.

The opinion goes on to explain how, and why, Howard was charged with, and convicted of conspiracy:

On April 26, 2014, police officers conducted surveillance of the El Patio Motel in Millcreek Township as part of an investigation of alleged drug activity. N.T. Jury Trial, 1/15/15, at 34-36. Officers received information that an individual known as `NASS’ (Carnell Tinson) had been selling heroin from motel room 123. Id. at 35. While conducting surveillance of the motel, officers observed Appellant and Tinson enter room 123 at 5:07 p.m. N.T. Jury Trial, 1/16/15, at 17, 18, 23. At approximately 7:45 p.m., the officers saw Tinson exit room 123, enter a vehicle, and drive away. Id. at 32-35. Officers followed Tinson but did not apprehend him. Id.

At approximately 8:45 p.m., police officers executed a search of room 123 pursuant to a warrant. N.T. Jury Trial, 1/15/15, at 37. Inside the room the officers found Appellant, another individual, an envelope containing a quantity of heroin approximately half the size of a golf ball in plain view on the bed, a digital scale, lottery tickets, and a duffel bag belonging to Appellant. Id. at 37, 39-40. Inside of the duffel bag was a denim jacket with $1,610 in cash in one of the pockets. Id. Detective Adam Hardner found a cell phone in plain view in a bedroom. N.T. Jury Trial, 1/16/15, at 51-53. Appellant admitted the cell phone belonged to him and consented to a search of the phone. Id.

James Krayeski, a police informant, testified that he had purchased heroin from Tinson on several prior occasions and had contacted Tinson by cell phone to arrange the transactions. Id. at 4-6. Krayeski had Tinson's cell number and gave it to the officers. Id. 4-6, 8. There were two incoming text messages on Appellant's cell phone originating from Tinson's cell phone number. Id. at 53-57. When Detective Hardner read the text messages out loud to Appellant, Appellant stated, `that mother fucker set me up.’ Id. at 54. These text messages, sent at 8:31 p.m. and 8:42 p.m., stated, respectively, `flush the work’ and `they are out back behind the building.’ Id. at 57.

Detective Hardner testified that, in his experience, `work’ is a term that refers to drugs. Id. Lieutenant Michael Nolan of the Erie Police Department Drug and Vice Unit testified that drug dealers typically accumulate large amounts of cash and use lottery tickets as packing material for heroin. N.T. Jury Trial, 1/15/15, at 46-47). Detective Hardner testified that, based on his experience, the text message `flush the work’ would mean `flush the drugs down the toilet because the police are there.’ N.T. Jury Trial, 1/16/15, at 57.
Commonwealth v. Howard, supra.
The opinion then notes that
[a]fter being found guilty of criminal conspiracy, Appellant filed a post-sentence motion for a new trial. The trial court denied Appellant's motion and filed a memorandum opinion on June 4, 2015. Appellant timely appealed.
Commonwealth v. Howard, supra.
In his appeal, Howard made two arguments:
1) The jury's verdict in this case was against the weight of the evidence.
2) The court erred in admitting the text messages since they were not authenticated by law enforcement as being those of the defendant in accordance with Pennsylvania Rule of Evidence901.
Commonwealth v. Howard, supra.
This post only examines the second argument, e.g., whether the text messages were properly authenticated under Pennsylvania Rule of Evidence 901.  The court began its analysis of that argument by noting that
[a]ppellant next argues the trial court erred in admitting text messages from Appellant's cell phone into evidence as they were not properly authenticated under Pa.R.E. No. 901. Appellant claims that without these messages the Commonwealth could not prove a criminal conspiracy. The messages received on Appellant's cell phone from Tinson's cell phone stated, `flush the work’ and `they are in the back of the building.’ 
Commonwealth v. Howard, supra.
The court then explained that its “standard of review for admissibility of evidence is well-established”, e.g.,
[t]he admission of evidence is solely within the province of the trial court, and a decision thereto will not be disturbed absent a showing of an abuse of discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias[,] or ill-will discretion . . . is abused.
Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (citations and quotation marks omitted).
Commonwealth v. Howard, supra.
The Howard Superior Court went on to explain that,
[a]s [Howard] correctly notes, this Court in Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), in an apparent case of first impression, addressed authentication of a text message as a prerequisite to its admissibility into evidence. We held that emails and text messages are documents subject to the same requirements for authenticity as non-electronic documents generally. The consistent difficulty in authenticating emails and text messages is establishing authorship, as it is generally conceded that cellular phones are not always exclusively used by the person to whom the phone number is assigned.

Accordingly, authentication of electronic communications requires more than confirmation that the phone number or address belongs to a particular person. Authentication requires some evidence tending to show the identity of the defendant as the person who either sent or received the message(s). This may be shown through circumstantial evidence. In Koch, we held that the Commonwealth failed to authenticate the text messages in question, as there were no contextual clues in the messages that revealed that the defendant was the sender. We further concluded that the defendant's physical proximity to the phone was of no probative value as to whether she authored the messages days and weeks before.

Significantly, the Commonwealth conceded it could not confirm that the defendant was the author of the text messages and acknowledged that the defendant did not write some of the messages that referred to her in the third person. The Commonwealth was able to establish only that it accurately transcribed the text messages from the defendant's phone. Without some evidence, even circumstantial, that the defendant sent the messages, we held that the trial court in Koch improperly admitted the messages, since they were not properly authenticated.
Commonwealth v. Howard, supra.
The Superior Court explained why it reached that conclusion, e.g., that
[i]n its memorandum opinion, the trial court held that the text messages were properly admitted into evidence based upon `the phone numbers, relation of the parties, attendant circumstances before and after the texts and distinctive characteristics of the texts in light of the events occurring.’ T.C.O., 6/4/15, at 1 n.1. We find no error as to sufficient authenticity of the text messages as a prerequisite to their admission into evidence in this case. Appellant does not dispute that the messages at issue were sent from the phone owned by Tinson, a known drug dealer. Nor does Appellant dispute the meaning of the messages intended to relate to the recipient that the drugs should be flushed down the toilet, as the police were outside the building.

The question remaining is whether the text messages were intended for and received by Appellant. Sufficient circumstantial evidence exists here to indicate that Appellant was the intended recipient and in fact the recipient of the text messages. The police previously observed Tinson, a known drug dealer, enter the motel room with Appellant. A short time later, Tinson left and thereafter, pursuant to a warrant, the room was searched by police.

Drugs and a cell phone admittedly owned by Appellant were found in the room. When police read the subject messages to Appellant, he did not deny they were intended for him, but rather, tacitly admitted receipt of the messages by his response that Tinson had set him up. Moreover, there is no evidence that anyone other than Appellant and one other person were in the motel room during the relevant time period. The temporal proximity of these events, together with Appellant's admission of ownership and response to the text messages present sufficient circumstantial evidence to authenticate the text messages as intended for and received by Appellant immediately prior to the police entering the motel room.

Although Appellant's second issue as phrased does not contend the trial court erred by admitting text messages that constituted inadmissible hearsay, Appellant did raise the argument in post-trial motions and developed the issue in the argument section of his brief. Because the hearsay issue is fairly contemplated by the overall issue of admissibility of the test messages, we shall address his hearsay argument. See PennsylvaniaRules of Appellate Procedure 2116(a) (`The statement [of questions involved] will be deemed to include every subsidiary question fairly comprised therein.’).
Commonwealth v. Howard, supra.
The Superior Court went on to explain that
[h]ere, the trial court found the texts were admissible as a co-conspirator's statement. See Commonwealth v. Stocker, 622 A.2d 333, 344 (Pa. Super. 1993) (`The co-conspirator exception applies to hearsay statements made during the course of, and in furtherance of a conspiracy. The foundation required is proof, by a fair preponderance of the evidence, that a conspiracy existed’).

Howard argues that the Commonwealth had not met its burden of demonstrating a conspiracy existed before introducing the texts. However, the record shows that Howard and Tinson were seen entering the motel together, that Howard remained in the motel room when Tinson left, and that Howard acknowledged the text messages were intended for him. These factors, combined with the totality of the circumstances surrounding the text conversation, were sufficient to meet the preponderance of the evidence burden of proof of a conspiracy.
Commonwealth v. Howard, supra.
The court therefore held that the
text messages were properly authenticated. Further, the text messages at issue were admissible as an exception to the rule against hearsay since they were statements made by Tinson, a co-conspirator, in furtherance of the conspiracy to possess heroin with intent to deliver. We find no error in the trial court's admission of the text messages.
Commonwealth v. Howard, supra.
The court therefore affirmed the “[j]udgment of sentence.” Commonwealth v. Howard, supra. 

Wednesday, November 23, 2016

The Guilty Plea, Felony Probation and the Electronic Search Condition

This post examines an opinion from the California Court of Appeal – Fourth District:  People v. Key, 2016 WL 6407997 (2016).  The court begins the opinion by explaining that
[f]ollowing Holly Key's guilty plea to possession of marijuana for sale (Health & Safety Code, § 11359), the trial court suspended imposition of sentence and placed Key on formal felony probation for a period of three years, including as a condition of probation that Key submit her `computers’ and `recordable media’ to search at any time (the electronic search condition). Key contends that the electronic search condition is invalid because it is unconstitutionally overbroad. 
People v. Key, supra.
The Court of Appeals then outlines the facts that led to the prosecution and to Key’s guilty plea:
While driving a car that had been reported stolen by a rental car agency, Key was pulled over by the California Highway Patrol. Upon searching the vehicle, officers found approximately 1,420 grams of marijuana in the rear hatch area. Key was charged with one count of importing and transporting marijuana into California (Health & SafetyCode, § 11360, subd. (a)) and one count of possession of marijuana for sale (Health & Safety Code, § 11359).

Key pled guilty to possession of marijuana for sale (Health & Safety Code, § 11359) in exchange for an agreement that the People would dismiss the remaining count and that Key would be sentenced to time served in local custody and placed on probation.
People v. Key, supra.
The opinion goes on to explain that at
the sentencing hearing on January 8, 2016, defense counsel objected to conditions of probation that would require Key to allow searches of her electronic devices. Defense counsel's objection appears to have been occasioned by an addendum to the probation order which Key was asked to sign, under which she would acknowledge and accept a waiver of her rights as to searches under the Fourth Amendment to the United States Constitution (the Addendum). The Addendum specifically referenced Key's consent to provide information that would otherwise be protected by the California Electronic Communications Privacy Act (Penal Code, § 1546, et seq.) (the ECPA). Regarding the ECPA, the Addendum stated that Key agreed to the examination of `call logs, text and voicemail messages, photographs, e[-]mails, and social media account contents contained on any device or cloud or internet connected storage owned, operated, or controlled by the defendant, including but not limited to mobile phones, computerscomputer hard drives, laptops, gaming consoles, mobile devices, tablets, storage media devices, thumb drives, Micro SD cards, external hard drives, or any other electronic storage devices.’ The Addendum also required Key to `disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any of the aforementioned devices or social media accounts.’
People v. Key, supra.
The court continued, explaining that at
the outset of the sentencing hearing, defense counsel originally asked for a continuance so that he could properly brief his objections to the Addendum. He then changed his mind about the continuance and instead proceeded to explain generally that `the conditions requested are unconstitutional, invalid, based upon a variety of reasons.’ Among other things, defense counsel made the point that access to `electronic information is fundamentally different and allows a much greater scope’ of intrusion than a physical search of a probationer's home or car. Defense counsel cited objections under `the 4th, 5th, 6th and 14th amendment, and the California Constitution.’

The trial court rejected defense counsel's argument and required Key's agreement to the Addendum as a condition of probation. The trial court explained, `Well, in this case your client is currently charged with a drug-related offense. She has a history of drug-related offenses, at least one other one. And I do think it's necessary for probation in order to make sure she's not engaged in any illegal activity to make sure she is properly supervised to have that Addendum on there as a search condition. And she's going to have a [Fourth] Amendment waiver anyway on this case.’

Key signed the Addendum and the trial court entered an order granting formal probation. The order includes, as one of the conditions of probation, that Key shall `[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media to search at any time . . . when required by [a probation officer] or law enforcement officer.’ (Italics added.)
People v. Key, supra.
Next, the opinion notes that “Key filed a notice of appeal on January 25, 2016.”  People v. Key, supra. It goes on to explain that,
[o]n May 18, 2016, the parties entered into a stipulation, approved by the trial court, which invalidated the Addendum, nunc pro tunc, to the date it was imposed. However, the terms of the stipulation, on its face, did not apply to any of the probation conditions in the order granting formal probation. Thus, Key remains subject to the probation condition requiring that she submit her “computers . . . and recordable media to search.”
People v. Key, supra.
The Court of Appeals then begins its analysis of the issue in the case, explaining that
Key's sole argument on appeal is that the electronic search condition is unconstitutionally overbroad as it is not narrowly tailored to avoid unnecessary infringement of her right to privacy.

It is without question that a person has a constitutional right to privacy in the content of his or her electronic devices, protected from search by the Fourth Amendment. (Riley v. California (2014) 573 U.S.–––– [189 L.Ed.2d 430] [law enforcement officers generally must secure a warrant before searching the digital content of a cell phone incident to an arrest]; People v. Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton ) [stating that `[i]t is well established that individuals retain a constitutionally protected expectation of privacy in the contents of their own computers,’ and observing that `[m]uch of the reasoning in Riley—which recognized how the immense storage capacity of modern cell phones allows users to carry large volumes of data—would apply to other modern electronic devices’].) Here, by requiring that Key submit her computers and recordable media to search, the electronic search condition in the order granting probation unquestionably imposes a limitation on Key's Fourth Amendment rights.

`[A]dult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights.’ (People v. Olguin (2008) 45 Cal.4th 375, 384.) However, `[a] probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.’ (In re Sheena K. (2007) 40 Cal.4th 875, 890.) Specifically, the issue is `whether the condition is closely tailored to achieve its legitimate purpose.’ (Olguin, at p. 384.) `It is not enough to show the government's ends are compelling; the means must be carefully tailored to achieve those ends.’ (People v. Harrisson (2005) 134 Cal.App.4th 637, 641.) `The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.’ (In re E.O. (2010) 188 Cal. App. 4th 1149, 1153.)
People v. Key, supra.
Next, the Court of Appeals notes that,
`[w]ith respect to the standard of review, while we generally review the imposition of probation conditions for abuse of discretion, we review constitutional challenges to probation conditions de novo.’ (Appletonsupra, 245 Cal.App.4th at p. 723.)
People v. Key, supra.
The Court of Appeals then began its analysis of the law and of Key’s arguments, noting that
[h]ere, the trial court stated that the purpose of the electronic search condition is `to make sure [Key is] not engaged in any illegal activity’ by providing tools for the probation officer to `make sure she is properly supervised.’ Similarly, the People state that the purpose of the electronic search condition is to `address [Key's] future criminality.’ In light of this expressed purpose, Key argues that the electronic search condition `is fatally not narrowly tailored to prevent future criminal activity.’ Key contends that the electronic search condition is overbroad because the court could impose `less restrictive alternatives to meet the People's goal of preventing future criminal activity.’ Key does not suggest how the electronic search condition could be narrowed to alleviate the overbreadth problem, stating that she `questions whether the Court could modify the electronic search condition to adequately preserve [Key's] constitutional rights.’

In support of her argument that the electronic search condition is impermissibly overbroad, Key relies primarily on the Sixth District's opinion in Appletonsupra, 245 Cal.App.4th 717. In Appleton, the defendant, who pled no contest to false imprisonment by means of deceit, challenged the probation condition providing that `”[a]ny computers and all other electronic devices belonging to the defendant, including but not limited to cellular telephones, laptop computers or notepads, shall be subject to forensic analysis search for material prohibited by law.”’ (Id. at p. 721.) Appleton concluded that the electronic search condition was overbroad because it `would allow for searches of vast amounts of personal information unrelated to defendant's criminal conduct or his potential for future criminality.’ (Id. at p. 727.)

As Appleton observed, `a search of defendant's mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity. These could include, for example, medical records, financial records, personal diaries, and intimate correspondence with family and friends.’ (Id. at p. 725). Appleton accordingly ordered that the electronic search condition be stricken as overbroad, and it remanded the matter to the trial court to consider whether the trial court could `impose a valid condition more narrowly tailored to the state's interests.’ (Id. at p. 727.)

Key argues that the electronic search condition at issue in this case is similarly overbroad because it is not narrowly tailored for the purpose of supervising her to prevent future criminal activity, as the access to her computers and devices containing recordable media `constitute a digital record or nearly every aspect of her life,’ including `her most intimate details, . . . her every move, her political and religious associations, and her sexual expression and thought,’ and thus reaches more broadly than necessary to monitor her future criminality.
People v. Key, supra.
The court went on to explain that      
Key also relies on the opinion of Division One of the First District in In re P.O. (2016) 246 Cal.App.4th 288 (In re P.O.). In re P.O. determined that Appletonsupra, 245 Cal.App.4th 717, was persuasive on the overbreadth issue and concluded that a probation condition imposed on a juvenile requiring him to ‘[s]ubmit . . . electronics including passwords under [his] control to search’ was overbroad. (In re P.O. at p. 292.)

The People, in contrast, advocate that we decline to follow Appleton and instead follow a decision of Division Four of the First District, in which our Supreme Court granted review after the People filed their brief in this case. (In re J.E. (2016) 1 Cal.App.5th 795 (In re J.E.), review granted Oct. 12, 2016, S236628.) In In re J.E., the minor was required as a condition of probation to submit to a search of his ‘electronics, including passwords.’ (Id. at p. 798.) In re J.E. explained that although a different division of the First District had concluded in In re P.O.supra, 246 Cal.App.4th 288, that a nearly identical electronic search condition was overbroad, the case before it differed because the minor's case was especially severe, which `require[d] intensive supervision to ensure his compliance with his probation conditions.’ (In re J.E., at p. 805.) Even had our Supreme Court not granted review, we would not find In re J.E. to be persuasive here for two reasons. First, unlike the minor in In re J.E., there is no indication in Key's criminal history or the details of the instant offense that would indicate she requires especially intensive supervision to address future criminality. More importantly, In re J.E. was a juvenile wardship proceeding. As In re J.E.recognized, a minor is `deemed to be more in need of guidance and supervision than adults, and . . . [his] constitutional rights are more circumscribed. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents ... [and] may “curtail a child's exercise of . . . constitutional rights.”’ (In re J.E.supra, at p. 805, quoting In re Antonio R.(2000) 78 Cal.App.4th 937, 941.)
People v. Key, supra.
The opinion continues, explaining that
[t]his case is also not like People v. Ebertowski (2014) 228 Cal.App.4th 1170, which was cited in In re J.E. during its discussion of overbreadth. (In re J.E.supra, 1 Cal.App.5th at p. 805.) In Ebertowski, the defendant pleaded no contest to making criminal threats and resisting or deterring an officer, and he admitted a gang allegation. (Ebertowski, at p. 1172.) The trial court imposed a condition of probation stating that ‘[t]he defendant shall provide all passwords to any electronic devices (including cellular phones, computers or notepads) within his or her custody or control and shall submit said devices to search at anytime [sic] without a warrant by any peace officer.’ (Id. at p. 1173.) Ebertowski concluded that the electronic search condition was not overbroad, as the defendant had a history of promoting his gang on social media, and `access to all of defendant's devices and social media accounts is the only way to see if defendant is ridding himself of his gang associations and activities, as required by the terms of his probation, or is continuing those associations and activities, in violation of his probation.’ (Id. at p. 1175, italics added.) The court explained that defendant had not suggested how the electronic search condition could be more closely tailored to `the purpose of monitor[ing] and suppress [ing] defendant's gang activity.’ (Ibid.) Here, in contrast, the articulated purpose for having access to Key's electronic devices is much less compelling and much less specific. Unlike in Ebertowski where the electronic search condition was necessary because of a specific concern about gang activity on social media, there has been no showing here that broad permission to search any of Key's electronic devices is `the only way to see’ if Key is remaining law abiding. (Ibid.)

In sum, we do not find the People's argument for rejecting the holdings in Appleton and In re P.O. to be persuasive. As in those cases, the electronic search condition imposed on Key is very broad and the People have not attempted to articulate how the provisions of the electronic search condition are narrowly tailored to the purpose of monitoring Key's future criminality.
People v. Key, supra.
The court went on to explain that
[a]lthough Key takes the position that no electronic search condition can be sufficiently tailored to avoid an unnecessary infringement on her privacy rights given the circumstances presented by her case, we decline to reach that issue and instead remand the matter to the trial court to decide, in the first instance, whether and how to fashion an appropriate electronic search condition. In so deciding, we have kept in mind that during the sentencing hearing the trial court was under the assumption that the Addendum would become part of the electronic search condition, and it therefore did not have the opportunity to decide whether the reference to `computers . . . and recordable media’ could be effectively narrowed. Under those circumstances, it is appropriate to give the trial court an opportunity to address the issue in the first instance.

We accordingly order that the electronic search condition in the formal order of probation referring to the search of `computers . . . and recordable media’ be stricken as overbroad, and the matter be remanded to the trial court to consider whether, and how, the electronic search condition can be narrowly tailored to addressing Key's future criminality.
People v. Key, supra.
The court ended the opinion with a formal statement of its disposition of the case:
We strike the portion of the formal order of probation requiring Key to submit her `computers . . . and recordable media’ to search, and we remand to the trial court with directions to consider whether and how the electronic search condition can be more narrowly tailored.
People v. Key, supra.