This post examines a very recent opinion from the Colorado Court of Appeals – Division VII: People
v. Phipps, 2016 WL 7473811 (2016). The court begins by explaining that
[b]ased on a plea agreement in which
many other serious charges were dismissed, defendant, Randy Scott Phipps,
pleaded guilty to sexual assault on a child. He was sentenced to an
indeterminate prison term of seventeen years to life. Phipps then sought
postconviction relief under Criminal Procedure 35(c), claiming ineffective assistance of counsel. The district court denied his motion without holding a
hearing.
People v. Phipps, supra.
The Court of Appeals then noted that “Phipps asserts on
appeal that the district court (1) was required to hold a hearing on his motion
and (2) erred in rejecting his ineffective assistance of counsel claims.” People v. Phipps, supra. We will come back to that issue later.
The opinion goes on to explain how, and why, the prosecution
arose and how, and why, Phipps was convicted.
People v. Phipps, supra. As the court explains,
[d]uring an investigation to detect
child pornography shared over the Internet, the police remotely searched a
computer onto which at least two files depicting child pornography had been
downloaded. Using that computer's Internet Protocol (IP) address, the police
determined that the computer was located in Phipps' home. The police obtained
and executed a search warrant of Phipps' home.
Phipps was not home at the time of the
search, but an officer spoke with him on the phone during the search and
explained why his home was being searched. During that recorded phone call,
Phipps admitted that he stored child pornography on his computer and that once
the officer searched his computer, `his life was over.’ The police seized
Phipps' computer, on which they found over thirty videos of children engaged in
sexual acts.
One of these videos depicted Phipps'
stepdaughter when she was approximately eight or nine years old. She was mostly
nude, and the video showed Phipps instructing her to use sex toys as well as
Phipps using sex toys on her. In her police interview, Phipps' stepdaughter
identified herself and Phipps in the video and stated that Phipps had sexually
assaulted her numerous times.
People v. Phipps, supra.
The court goes on to explain that
Phipps was charged with sexual assault
on a child (position of trust –pattern of abuse) under sections
18-3-405.3(1), (2)(b), C.R.S. 2016; aggravated incest under section
18-6-302(1)(a), C.R.S. 2016; sexual exploitation of a child (inducement)
under section 18-6-403(3)(a), C.R.S. 2016; and sexual exploitation of
children (possession) under section 18-6-403(3)(b.5). The court found
Phipps indigent and appointed counsel to represent him.
A plea agreement was negotiated and
Phipps pleaded guilty to the sexual assault charge. In exchange, the district
attorney dismissed the remaining charges and promised that the United States
Attorney would not prosecute Phipps on child pornography charges.
At the sentencing hearing, Phipps took
full responsibility for his crimes. He stated that he did not wish to put
his family through a `horrific ordeal with a jury trial,’ and that his `remorse,
regrets, shame, despair, sadness, and sorrow cannot be measured.’
People v. Phipps, supra.
On appeal, Phipps argued that his trial attorney was
ineffective, among other reasons, because he “failed to challenge the legality
of the initial, remote search of Phipps' computer, which violated his Fourth Amendment rights.” People v. Phipps, supra. That is the only argument he made on appeal that is examined
in this post.
The Court of Appeals went on to explain that Phipps
argues that if not for the
constitutionally deficient conduct of his counsel he would not have pleaded
guilty to sexual assault on a child, and he contends that the district court
erred in concluding otherwise without holding a hearing.
The United States and Colorado
Constitutions guarantee a criminal defendant's right to receive reasonably effective
assistance of counsel. U.S. Const. amends. VI, XIV; Colo. Const.
art. II, § 16; [Strickland v.Washington, 466 U.S. 668, 685-86 (1984)]; People v. Norman, 703
P.2d 1261, 1272 (Colo. 1985). To prevail on an ineffective assistance of
counsel claim, the defendant must establish that (1) counsel's performance was
constitutionally deficient and (2) the deficient performance resulted in
prejudice to the defendant. Strickland, 466 U.S. at 687; Ardolino
v. People, 69 P.3d 73, 76 (Colo. 2003).
To satisfy the prejudice prong in the
context of a guilty plea, the defendant must show that there is a reasonable
probability that `but for counsel's errors, he would not have pleaded guilty
and would have insisted on going to trial.’ People v. Stovall, 2012
COA 7, ¶ 19 (citation omitted).
In determining whether counsel's
performance was deficient, we evaluate the representation from counsel's
perspective at the time of the representation, and we `indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance.’ Ardolino v. People, 69 P.3d 73, 76
(Colorado Supreme Court).
To prove deficient performance, the
defendant must overcome the presumption that, under the circumstances, the
challenged action might be sound trial strategy. Davis v. People,
871 P.2d 769, 772 (Colo. 1994) (citing Strickland, 466 U.S. at
689); People v. Lopez, 2015 COA 45, ¶ 59. With regard to trial
strategy, defense counsel has final authority to make strategic or tactical
decisions, including `what strategy should be employed in the defense of the case.’
Arko v. People, 183 P.3d 555, 558 (Colorado Supreme Court
2008) (quoting Steward v. People, 179 Colo. 31, 34, 498 P.2d
933, 934 (1972)).
People v. Phipps, supra.
The court then took up the issue Phipps raised in his that
this post examines – the remote computer search. People v. Phipps, supra. The court began its analysis of the issue by
explaining that
We first address Phipps' argument that
his counsel provided deficient representation when he failed to challenge the
legality of the initial, remote search of his computer. The district court
rejected this claim, concluding that there was no arguable basis to make such a
challenge and that the challenge inevitably would have failed.
The police initially discovered child
pornography on Phipps' computer by using LimeWire, which is a `peer-to-peer
file sharing application that connects users who wish to share data files with one
another.’ United States v. Stults, 575 F.3d 834, 842 (U.S. Court of Appeals for the 8th Circuit 2009) (quoting United
States v. Lewis, 554 F.3d 208, 211 (U.S. Court of Appeals for the 1st Circuit 2009)).
The Eighth Circuit described the
operation of LimeWire software as follows:
`When a user wants to download files
from other users, he launches LimeWire and inputs a search term or terms. The
application then seeks matches for those terms in the file names and
descriptions of all files designated for sharing on all computers then running
the LimeWire application. . . . LimeWire will then display a list of file names
that match the search terms, and the user can select one or more of those to
begin downloading the files.
Id. (citations and
alteration omitted).’
People v. Phipps, supra.
The Court of Appeals went on to explain that the argument
Phipps made with regard to the remote computer search was predicated on the
Fourth Amendment to the U.S. Constitution. People
v. Phipps, supra. As Wikipedia’s
entry on the Fourth Amendment explains, the amendment
prohibits unreasonable searches
and seizures. It requires governmental searches and seizures to be conducted
only upon issuance of a warrant, judicially sanctioned by probable
cause, supported by oath or affirmation, describing the place to be searched
and the persons or things to be seized.
Getting back to the Court of Appeals’ opinion, the court
goes on to explain that
[w]hen the police conducted the initial
Internet search of computers to uncover child pornography, they did not have a
warrant to search any particular computer. Phipps contends that the
initial discovery of child pornography files on his computer constituted a
warrantless search that violated the Fourth Amendment.
A search violates the Fourth Amendment
only when the defendant has a `legitimate expectation of privacy in the areas
searched or the items seized.’ People v. Curtis, 959 P.2d 434, 437
(Colorado Supreme Court 1998) (citation omitted). No Colorado appellate
court has addressed whether a person has a legitimate expectation of privacy in
computer files accessed through peer-to-peer sharing software such as LimeWire.
However, federal and other state courts have uniformly held that a person who
installs and uses file sharing software does not have a reasonable expectation
of privacy in those files.
People v. Phipps, supra.
As Wikipedia’s entry on the Fourth Amendment explains, to
constitute a Fourth Amendment “search,” the law enforcement activity has to
violate someone’s “reasonable expectation of privacy” in the place or thing
searched.
The Court of Appeals goes on to explain that the
leading case is United States
v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008). There, the court held that
while, generally, an individual has a reasonable expectation of privacy in his
or her personal computer, that expectation does not survive the installation
and use of file sharing software, such as LimeWire, at least with respect to
the files made available through the file sharing software. Id.; see
also United States v. Borowy, 595 F.3d 1045 (9th Cir. 2010).
In [United
States v. Stults], 575 F.3d 834, 843 (U.S. Court of Appeals for the 8th
Circuit 2009), the Eighth Circuit similarly held that the defendant did not
have a `reasonable expectation of privacy in files that the FBI retrieved from
his personal computer where [the defendant] admittedly installed and used
LimeWire to make his files accessible to others for file sharing.’ The court
analogized the defendant's actions to giving his house keys to all of his friends,
and concluded that he `should not be surprised should some of them open the
door without knocking.’ Id.
People v. Phipps, supra.
The court goes on to explain that
[o]ther federal and state courts have
reached the same result. See United States v. Conner, 521 F.
App'x 493, 498 (6th Cir. 2013) (computer user had no reasonable
expectation of privacy in the contents of files that had been downloaded to a
publicly accessible folder through file sharing software); United
States v. Perrine, 518 F.3d 1196, 1205 (10th Cir. 2008) (same); State
v. Welch, 340 P.3d 387, 391 (Ariz. Ct. App. 2014); State v. Aston,
125 So. 3d 1148, 1154 (La. Ct. App. 2013) (same); State v. Peppin,
347 P.3d 906, 911 (Wash. Ct. App. 2015) (same). Indeed, we have found no
reported case that has held that a computer owner has a reasonable expectation
of privacy in files that he or she makes available through software such as
LimeWire.
People v. Phipps, supra.
The opinion goes on to explain that Phipps
argues that he nevertheless retained a
reasonable expectation of privacy in his computer files because he was not
aware that the files stored on his computer were publicly accessible through
LimeWire, and that, therefore, he did not `knowingly or intelligently allow[ ]
private files and information on his PC to be broadcast out to the network and
web.’ The Ninth Circuit Court of Appeals rejected a similar argument in Borowy.
In that case, the defendant had installed a feature which allowed him to
prevent others from downloading or viewing his files, but that feature was not
engaged when the police located the files. Borowy, 595 F.3d at
1047. The court concluded that because the files were `still entirely exposed
to public view,’ the defendant's `subjective intention not to share his files
did not create an objectively reasonable expectation of privacy in the face of
such widespread public access.’ Id. at 1048. We agree with
this analysis.
Consistent with these cases, we hold
that Phipps did not have a reasonable expectation of privacy in the files that
he made available for public viewing through LimeWire. Because Phipps did
not have a reasonable expectation of privacy in those files, his counsel's
failure to challenge the search on Fourth Amendment grounds, even if deficient,
could not have constituted Strickland prejudice.
People v. Phipps, supra. This Wikipedia entry explains
“Strickland prejudice.”
For these and other reasons, the Court of Appeals affirmed
the “district court's order denying Phipps' motion for postconviction relief
under Crim. P. 35(c)”. People v. Phipps, supra.
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