“Conscious Avoidance,” Controlled Substances and Websites

As I’m sure everyone knows, to be convicted of most crimes, the defendant must have acted with the necessary mens rea (“guilty mind”), i.e., with the necessary level of culpability.

(Some crimes are strict liability offenses, i.e., don’t require mens rea; these crimes as used to put the risk of error on the actor, so if, for example, a liquor store clerk doesn’t bother to check for a valid ID and consequently sells liquor to a minor, the clerk (and maybe the store owner) is liable for violating the law. The penalties for the crime will be relatively minor, i.e., no incarceration, which is considered to justify eliminating mens rea.)

As Wikipedia notes, until the “1960s, mens rea in the United States was a very slippery, vague, and confused concept” because it was based on common law. Common law relied on terms such as “malicious” and “wicked” to denote mens rea, none of which were exactly precise. The Model Penal Code, a template of model criminal laws, was published in 1962 and went a long way toward revising how American criminal law deals with mens rea. It established four levels of mens rea, each of which represents a decreasing level of culpability: purposely, knowingly, recklessly and negligently. If you want to know precisely what each encompasses, check out this Wikipedia entry.

That brings us to the case this post deals with – a case in which the defendants were convicted of “knowingly” guilty of distributing controlled substances in violation of 21 U.S. Code § 841(a)(1) and appealed the convictions. U.S. v. Quinones, __ F.3d __, 2011 WL 1120254 (U.S. Court of Appeals 2011). One of their arguments on appeal was that the district court judge who presided over their trial erred in giving the jury a “conscious avoidance” instruction on the law. U.S. v. Quinones, supra.

As Wikipedia notes, a conscious avoidance (or “willful blindness”) instruction is given in “a situation in which an individual seeks to avoid . . . criminal liability for a wrongful act by intentionally putting himself in a position where he will be unaware of facts which would render him” guilty. For example, another U.S. Court of Appeals found that the trial judge properly gave a conscious avoidance instruction in U.S. v. Jewell, 532 F.2d 697 (U.S. Court of Appeals for the 9^th Cir. 1976). Jewell was arrested when Customs agents found a secret compartment (“between the trunk and rear seat”) full of marijuana in the car he drove across the Mexico-U.S. border and was then charged with possessing controlled substances. U.S. v. Jewell, supra.

On appeal, he claimed the trial judge erred in giving a conscious avoidance instruction because he claimed he did not know there was marijuana in the trunk. U.S. v. Jewell, supra. The 9^th Circuit agreed with the trial court, noting that 110 pounds of marijuana was in the compartment and that a stranger he knew only as “Ray” paid him $100 (a lot of money in the 70s) to drive the car across the border to an address written on a slip of paper and leave it there with the keys in the ashtray. U.S. v. Jewell, supra. Jewell told the agent who found the marijuana that he thought there was “`probably something illegal in the vehicle’”, looked it over and saw the compartment but didn’t explore further. U.S. v. Jewell, supra. The 9^th Circuit held that the instruction was proper given that Jewell “consciously avoided” positive knowledge of the marijuana’s presence in the car. U.S. v. Jewell, supra.

Back to U.S. v. Quinones: In 2002, Antonio Quinones bought Prescriptions & Travel, a “pharmacy that filled prescriptions for an Internet pharmacy known as RX Networks”, which was owned by Vincent Chhabra. U.S. v. Quinones, supra. Antonio later hired “Steven Mahana, a website developer” to copy RX Networks’ “website design and the system [it] used to manage medication orders.” U.S. v. Quinones, supra. This is how Antonio’s eventual network of “twenty-five to thirty” pharmacy sites worked:

[Someone] who searched for a prescription medication would be directed . . . to Antonio's website. Once at the website, the customer would select his drug and provide payment information and delivery instructions. [He] would also fill out a brief medical questionnaire, which asked . . . for his name, gender, weight, allergies, current medications, reason for requesting the medication, and known medical conditions. The questionnaire was the same regardless of whether a drug required a prescription.

The order would be transmitted to a . . . `Doctor's Module,’ where the questionnaire would be reviewed by a doctor who would approve or disapprove [it]. Antonio selected the doctors who reviewed questionnaires and approved orders made on his websites. The doctors, who were paid per questionnaire reviewed, often reviewed over a hundred applications per day. Once a doctor approved an order, it would be transmitted to a licensed physical pharmacy controlled by Antonio that filled the prescription. Antonio's pharmacies typically filled one thousand orders per day. . . .

[This] system permitted no interaction between a doctor and a customer. Mahana placed a disclaimer on his invoices to Antonio stating that the system did not provide a sufficient basis to establish a relationship between a doctor and a patient. . . . [And] the system provided few safeguards against substance abuse. . . . [S]ome customers [obtained] excessive amounts of medications by placing orders to the same address using different names. Others were able to receive drugs though they did not provide all the information required by the questionnaire.

U.S. v. Quinones, supra. Antonio used a program to administer the online pharmacies that let him control the approval of prescription medication orders “even without the involvement of physicians.” U.S. v. Quinones, supra. Antonio’s son worked for his father for some period of time, and then “obtained his own website, 888meds.com, which was connected” to the network of his father’s sites. U.S. v. Quinones, supra.

In 2003, Chhabra was charged with the illegal distribution of controlled substances, after which Antonio “stopped using Prescriptions & Travel to fill orders for his websites” and began using “a new filling pharmacy, Innovative Remedies”, which was in Florida. U.S. v. Quinones, supra. When he learned that a new Florida law would require “face-to-face contact between a physician and patient,” he moves his filling pharmacy to Queens, and eventually moved it “approximately” a dozen times. U.S. v. Quinones, supra.

In 2007, Antonio and Herman were indicted, as noted above, for “knowingly” distributing controlled substances in violation of federal law. U.S. v. Quinones, supra. They went to trial, were convicted and appealed, challenging the judge’s giving the jury this conscious avoidance instruction:

In determining what the defendant knew or reasonably should have known, you may consider whether [he] deliberately closed his eyes to what otherwise would have been obvious. . . . One may not . . . avoid criminal liability by wilfully . . . remaining ignorant of a fact material and important to his . . . conduct. . . .

[I]f you find beyond a reasonable doubt that the defendant was aware there was a high probability that the doctors and pharmacists were acting outside the usual course of professional practice and not for a legitimate medical purpose, but deliberately and consciously avoided learning this fact, then you may treat this deliberate avoidance of knowledge as the equivalent of knowledge.

U.S. v. Quinones, supra.

On appeal, Antonio and Herman claimed they were entitled to a new trial because “there was an insufficient factual predicate for a conscious avoidance instruction.” U.S. v. Quinones, supra. In ruling on their argument, the 2d Circuit found that, under one of its prior decisions, their “actual but unreasonable belief in the existence of a fact – the doctors’ and pharmacists’ good faith – could not absolve” them of culpability. U.S. v. Quinones, supra. It found, therefore, that the issue to be resolved was “whether the government adduced overwhelming evidence that the defendants knew or reasonably should have known the doctors and pharmacists on whom they relied were acting in bad faith.” U.S. v. Quinones, supra.

The majority of the judges ruling on the Quinones’ argument held that the government presented “overwhelming evidence” that the defendants “knew or should have known that the doctors and pharmacists upon whom they purportedly relied were acting in bad faith.” U.S. v. Quinones, supra. In addition to the facts noted above, these judges relied on the following: (i) the defendants knew there was no interaction between “a customer and a doctor”; (ii) the number of applications doctors approved each day plus the fact they were paid based on the number of applications they reviewed; (iii) the volume of orders being approved and filled; (iv) Antonio’s moving “his operations” to different locations “as law enforcement raided or shuttered” his pharmacies, plus one employee’s being ordered to “`shred paper’” relating to orders; and (v) DEA agents indirectly informed Antonio that Internet pharmacies like the ones he operated were illegal. U.S. v. Quinones, supra. These judges therefore found that even if Antonio (and Herman) actually believed the doctors and pharmacists were operating in good faith, that belief would have been unreasonable, which would justify using conscious avoidance to establish that they acted “knowingly.” U.S. v. Quinones, supra.

One judge dissented: He found that the majority erred when it held that the Quinones’ actual but unreasonable belief in the doctors’ and pharmacists’ good faith could not absolve them of culpability, i.e., could not rebut the premise that they acted knowingly. U.S. v. Quinones, supra.

He explained that under the court’s prior cases, if “the jury found that the Quinoneses actually believed the doctors and pharmacists were acting in good faith, it could not have convicted them under the doctrine of conscious avoidance.” U.S. v. Quinones, supra. In other words, he’s saying that if you really believe something, you cannot, at the same time, be consciously avoiding knowledge that what you believe is incorrect. This judge argued that the Quinoneses should be given a new trial because there “is `a reasonable probability’” that the jury convicted them on a conscious avoidance theory but would not have convicted if it had been required to find that they actually knew the doctors and pharmacists were not acting in good faith. U.S. v. Quinones, supra.

But, of course, he lost . . . which means that unless the U.S. Supreme Court decides to hear the case – which is unlikely – the convictions will stand.

Oh, and Antonio was sentenced to serve 97 months, while Herman was sentenced to serve 18 months. U.S. v. Quinones, supra.

Due Process and the Destroyed DVD

As Wikipedia notes, due process is generically defined as “the principle that the government must respect all of the legal rights that are owed to a person according to the law.”

As Wikipedia also notes, courts in the United States have interpreted the constitutional guarantees of due process of law as having “`procedural’ and `substantive’ components, meaning that” due process guarantees impose “restrictions on legal procedures—the ways in which laws may operate—and also on legal substance—what laws may attempt to do or prohibit.”

This post is about a case in which the destruction of a DVD gave rise to a claim that the defendant’s right to due process had been violated. The case is State v. McNeil, __ S.E.2d __, 2011 WL 1015316 (Georgia Court of Appeals 2011), and this is how it began:

[Lyna Nicole] McNeil was the passenger in a vehicle driven by Corey McCoy, which Cobb County Sheriff's officers observed traveling southbound on South Cobb . . . The officers . . . initiated [a traffic stop] . . . just over the county line in Fulton County. . . .

McCoy was . . . arrested for driving with a suspended license. . . . [T]he officers noticed an open beer can between McNeil's seat and the passenger-side door. . . . [She] was told . . . she was free to leave. . . . [but] . . . was to call a friend or family member to pick her up. . . . [T]he hour was . . .approaching 2:30 a.m., and those she [called] were unable or unwilling to comply. . . . [O]ne of the responding officers -- who arrived after McCoy’s arrest . . . offered to drive her home; McNeil accepted. . . . [T[he officer asked to check [her] purse for weapons. . . . and, in plain view, the officer saw two small bags containing cocaine and marijuana on top of the purse's other contents. McNeil was arrested and ultimately indicted on one count each of possessing cocaine, possessing less than an ounce of marijuana, and possessing the open container of alcoholic beverage that was in the vehicle.

State v. McNeil, supra. After being indicted, McNeil filed a motion to suppress evidence, and at the hearing on that motion she “questioned” why a copied DVD of the traffic stop

provided by the State did not contain the officers' pursuit of McCoy's vehicle or her eventual search and arrest. This mattered to McNeil because she claimed that, upon her arrest, McCoy chivalrously yelled from the patrol car that the drugs in her purse actually belonged to him. The copied DVD . . . began at the Fulton County gas station where McCoy and McNeil were stopped and arrested, and did not contain any of the officers' interactions with McNeil. According to the officers, this was because the recording was manually stopped when they believed their investigation had concluded -- i.e., when McCoy was arrested and placed in the back of the patrol car.

State v. McNeil, supra. The Court of Appeals also noted that because the recording

began after the officers activated their emergency equipment, the copied DVD did not show the actual pursuit of McCoy's vehicle as it crossed over from Cobb County into Fulton County. In general, initiating the patrol car's emergency equipment will result in a `pre-record,’ in which the recorder jumps back to tape what occurred in approximately the half-minute before the equipment was initiated. . . [H]ere, the officers originally believed the patrol car's recording system had malfunctioned because the copied DVD did not contain this `pre-record’ of the stop of McCoy's vehicle.

State v. McNeil, supra.

McNeil subpoenaed the master DVD to compare it to the copied DVD presented at the hearing, but the subpoena wasn’t delivered until “the Friday before McNeil’s Tuesday trial date.” State v. McNeil, supra. Because it would have taken an officer “hours to manually copy the master DVD (and he was already scheduled to work multiple shifts that weekend),” the prosecution agreed to meet with McNeil’s lawyer “to view the master DVD at the Cobb County District Attorney’s Office the evening before trial.” State v. McNeil, supra.

A few hours before the viewing was to begin, an officer previewed the DVD and “advised the District Attorney’s Office that a `pre-record’ did in fact exist but had not been included in the copied DVD provided to McNeil.” State v. McNeil, supra. According to the officer, it showed the patrol car stopping McCoy’s vehicle but recording was not reinitiated after McCoy’s arrest so “there was no recording of McCoy’s alleged statements that the drugs in McNeil’s purse belonged to him.” State v. McNeil, supra. The Assistant District Attorney handling the case “never viewed the master DVD and, prior to speaking with the officer before the meeting, was not familiar with its contents.” State v. McNeil, supra.

We now come to the critical event:

When McNeil's counsel arrived at the District Attorney's Office, there were immediate issues with viewing the master DVD. Despite the assistant district attorney's best efforts and attempts at using his computer and a DVD player, the master DVD would not play. Eventually, a tech-savvy investigator was summoned to see if he could get the master DVD to play. . . .

[T[he investigator ejected the DVD, examined it, and placed it back inside the player. He then attempted to eject the master DVD again, but instead of ejecting, the player reformatted the DVD sua sponte, erasing its content. Attempts to thereafter play the master DVD were to no avail, and the State could not explain how or why the machine reformatted the DVD.

State v. McNeil, supra.

McNeil’s counsel was present during all this, and the next day filed a motion to dismiss all charges against her, due to the state’s destruction of what the defense claimed was exculpatory evidence. State v. McNeil, supra. As Wikipedia notes, exculpatory evidence is evidence that tends to negate the defendant’s guilt of the charges pending against him or her. The trial judge concluded that there was no way of knowing exactly what was on the erased DVD, but if what McNeil claimed was true, it would have contained material exculpatory evidence, and therefore granted the motion to dismiss. State v. McNeil, supra.

The prosecution appealed, and in ruling on the parties’ arguments the Court of Appeals applied the Georgia Supreme Court’s 2010 decision in State v. Miller, 287 Ga. 748, 699 S.E.2d 31. State v. McNeil, supra. In Miller, the Supreme Court applied U.S. Supreme Court cases addressing whether a defendant’s due process rights were violated when police destroy potentially exculpatory evidence. State v. Miller, supra (applying California v. Trombetta, 467 U.S. 479 (1984) and Arizona v. Youngblood, 488 U.S. 51 (1988)).

The Miller court held that in ruling on such a due process claim, a court must find that (i) the evidence was material (i.e., was relevant to guilt or innocence) and (ii) the police acted in bad faith in failing to preserve it. State v. Miller, supra. The Miller court noted that to be “material,” the evidence “must possess an exculpatory value that was apparent before it was destroyed” and must “be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. State v. Miller, supra.

The Georgia Court of Appeals found that under the Miller standard, the trial judge erred in dismissing the charges against McNeil. It disagreed with the trial court’s conclusion that the evidence was material, because it found that the lost evidence was

at best potentially exculpatory. And while we understand the trial court's trepidation over its inability to review the master DVD, the record before us does not support a finding that the loss of the master DVD's contents required dismissal of McNeil's charges. First, there was testimony at the motion hearing that the master DVD's `pre-record’ showed the officers' pursuit from Cobb County into Fulton County and . . . DVD did not contain anything else relevant to McNeil's arrest; thus, nothing suggests this evidence had apparent exculpatory value.

Second, we do not believe McNeil is unable to obtain comparable evidence. To the contrary, she may cross-examine the officers regarding . . . McCoy's alleged statements regarding ownership of the drugs in question, and may also call McCoy as a witness at trial. Accordingly, the master DVD simply does not rise to the level of constitutional materiality.

State v. McNeil, supra.

The Court of Appeals also held that because the evidence was “only potentially useful,” its destruction did

not -- in the absence of a showing of bad faith on the part of the State -- amount to a due-process violation. . . . [W]hile the destruction of the master DVD was certainly regrettable, it was not obviously intentional, as the trial court noted in its ruling. The officers involved in the traffic stop and the members of the district attorney's office might well have been negligent or perhaps carelessly unfamiliar with the workings of their own technology, as was acknowledged by the trial court, but `there is no evidence that the [master DVD] was destroyed out of an interested or sinister motive [ ] or through a conscious doing of wrong.’

State v. McNeil, supra (quoting Swanson v. State, 248 Ga.App. 551, 545 S.E.2d 713 (Georgia Court of Appeals 2001)). The Court of Appeals therefore reversed the trial judge’s dismissal of the charges, which I assume means McNeil will either go to trial or try to work out a plea deal.

Oh, and if you’re wondering about the occasional references, above, to the fact that the traffic stop began in Cobb County and actually took place in Fulton County, that goes to the issue of proper venue, an issue McNeil had raised in an earlier motion to dismiss. State v. McNeil, supra.

Interview Rooms, Cell Phones and Privacy

A recent opinion from a Florida court addresses an interesting issue concerning expectations of privacy in the calls you receive from someone. The issue arose under a Florida statute, not the Fourth Amendment, but I still think it’s worth examining.

The case is Hentz v. State, __ So.3d __, 2011 WL 890804 (Florida Court of Appeals 2011), and this is how it arose:

On March 6, 2008, Detective Shepherd of the Indian River County Sheriff's Department took . . . John Menzel, to the Sheriff's office to interview him regarding an alleged sexual battery which occurred at Menzel's home and involved the alleged victim, Menzel, and [Richard] Hentz.

Both Menzel and Hentz were asked if they would voluntarily come . . . to be interviewed; Menzel agreed to go and Hentz refused.

The audio and video recording equipment in the interview room were turned on approximately five or six minutes before Shepherd took Menzel into the room. This was standard procedure implemented to ensure that activating the recording devices would not be overlooked. About ten minutes elapsed between Menzel being seated in the interview room and Shepherd accompanying him.

In the interim, Shepherd was in the tech room collaborating with other officers regarding the evidence already obtained and how the interview should be conducted. There were TV monitors in the tech room, and Shepherd noticed Menzel making a couple of phone calls. Shepherd and the other officers could not hear what was being said because the speakers in the tech room did not allow them to.

Hentz v. State, supra.

According to Shepherd, the room Menzel was in was “pretty small and typically able to fit two or three chairs/individuals.” Hentz v. State, supra. No audio or video equipment is “readily visible to the occupants of the room,” and no one told Menzel “that there was recording equipment in the room or that his conversations would be recorded while he was awaiting his interview.” Hentz v. State, supra.

According to Detective Parrish, of the Indian River County Sheriff’s Office, the microphone in this interview room is

camouflaged to look like a light switch and . . . is inconspicuous. . . . [T]he video camera in the room is about the size of a tape cassette cover and is camouflaged to look like a motion sensor. Parrish knew . . . that the recording equipment . . . is sensitive enough to record both sides of a phone conversation taking place between an individual in the interview room and someone on the other end of the phone. . . . Parrish did not warn Menzel of that fact when he realized Menzel was having a conversation on his cell phone in the interview room. . . .

Hentz v. State, supra.

According to Menzel, he was “never told the room was an interview room” but he told

Shepherd he had phone calls to make to take care of some things [and Shepherd did not say] anything regarding the recording devices in the room. The door to the room was shut, so Menzel believed he had privacy there to make his phone calls. While on the phone, Menzel kept his voice low so no one outside the room could hear the conversation. Menzel looked around the room to see if there was any recording or video equipment; he did not see any.

Hentz v. State, supra.

At some point after this, Shepherd interviewed Menzel, and about “one week later,” he reviewed the video tape of that interview. Hentz v. State, supra. Shepherd could hear

Menzel talking to Hentz about Hentz's cell phone. Specifically, Shepherd could hear Hentz say . . . he was `freaking out’ when the officers were looking around because of the pictures and video on his cell phone and if the officers had found the phone, Menzel would have been `f*cked.’

Hentz v. State, supra. Shepherd checked with a computer forensics specialist and was told that even if Hentz deleted the photos and video, they could be “recovered as long as not too much time had passed.” Hentz v. State, supra.

Shepherd went to the Sprint cell phone store where Hentz worked and told Hentz he needed his cell phone because it “possibly contained evidence of a crime.” Hentz v. State, supra. Hentz repeatedly refused to give Shepherd his cell phone, so Shepherd got a search warrant for the phone and seized it pursuant to the warrant. Hentz v. State, supra.

In the application for the warrant, Shepherd said Hentz had made statements during this phone conversation with Menzel which led Shepherd to believe there was incriminating evidence on the phone. Hentz v. State, supra. The phone was searched, and “yielded incriminating evidence implicating Hentz and Menzel in the crimes which with they were eventually charged. Hentz v. State, supra.

The tape of the intercepted conversation was played in court at Hentz’s trial, over the defense’s objections. Hentz v. State, supra. After the trial judge denied his motion to suppress evidence, Hentz pled no contest to battery and was sentenced to 365 days in prison. Hentz v. State, supra. He then appealed the denial of his motion to suppress. Hentz v. State, supra.

Hentz moved to suppress on the grounds that his conversation with Menzel was intercepted in violation of Florida’s wiretap statute: Florida Statutes § 934.03. Hentz v. State, supra. Section 934.03 makes it unlawful to intercept the contents of any “wire, oral, or electronic communication” unless the interception is carried out in accordance with other provisions of Florida law, which would have required an order issued by a judge that authorized the interception. Florida Statutes § 934.07. Florida Statutes § 934.06 states that evidence obtained in violation of § 934.03 cannot be received into evidence in any judicial proceeding.

Florida Statutes § 934.02(2) defines “oral communication” as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation”. In moving to suppress Hentz’s statements, the defense said his statements “were made while [he] was in his home, and thus, Hentz had a reasonable expectation of privacy” in them. Hentz v. State, supra. The prosecution argued that the officers did not “intentionally” intercept Hentz’s conversation with Menzel in violation of the statute. Hentz v. State, supra.

As to that issue, the Court of Appeals found that given the officers' knowledge that the recording equipment was on and was sensitive enough to intercept the other end of a phone conversation, [they] did intentionally intercept Hentz's oral communication within the meaning of the statute”. Hentz v. State, supra. It then considered whether Hentz had a reasonable expectation of privacy in the conversation. Hentz v. State, supra.

Hentz argued that he had a reasonable expectation of privacy in the phone conversation because “he was in his home during the conversation, did not direct his communications to multiple people, and did not know Menzel was sitting in an interview room at the time of the conversation.” Hentz v. State, supra. He relied on the Florida Supreme Court’s holding in State v. Mozo, 655 So.2d 1115 (1995), that the “actual `interception’ of a communication occurs not where such is ultimately heard or recorded but where the communication originates.” State v. Mozo, supra. The Supreme Court also held that “oral communications occurring in a citizen’s home justify an expectation that such communication is not subject to interception”. State v. Mozo, supra.

The prosecution argued that the phone call in this case “`originated’ at the police station from which Menzel called Hentz”, although it acknowledged that “`Menzel originated the call and was immediately called back by the same party.’” Hentz v. State, supra.

Thus, according to the State, the call originated from the police station where Menzel had no reasonable expectation of privacy, and the phone conversation was not within the ambit of the statute. Perhaps for this reason, much of the focus below was on whether Menzel had a reasonable expectation of privacy in the interview room at the Sheriff's Office Administrative Building.

Hentz v. State, supra.

The Court of Appeals, however, noted that Hentz’s statements “provided the basis for Shepherd’s Probable Cause Affidavit and ultimately resulted in the search of” Hentz’s cellphone, which meant that “the proper focus in on whether Hentz had a reasonable expectation of privacy.” Hentz v. State, supra. It noted that the Mozo court held that the interception of an oral communication occurs “where the communication originates – not where the phone call originates or where the communication was initiated.” Hentz v. State, supra (emphasis in the original). “Here, the communication at issue -- Hentz's statements regarding pictures and video on his cell phone -- originated in his home where he was sitting during the cell phone conversation with Menzel.” Hentz v. State, supra.

In the last paragraph of its opinion, the Court of Appeals seems to be applying either the 4^th Amendment’s standard of privacy or a standard that is identical to it:

As the State points out, Hentz did know Menzel was at the police station when the conversation took place. Hentz specifically asked Menzel whether he had gone to the station yet, and Menzel replied, `I'm sitting here waiting.’ Thus, factually, this case is distinguishable from Mozo. But in light of the Mozo opinion and the protection afforded communications that occur from within one's home, Hentz had a subjective expectation of privacy in his statements and his expectation was one society accepts as reasonable.

Hentz v. State, supra. As I’ve noted in earlier posts, the test the U.S. Supreme Court uses to determine if someone has a 4^th Amendment expectation of privacy has two prongs: a subjective expectation by the person that society regards as objectively reasonable. I assume the Court of Appeals was simply using this standard as a basis for defining when it is, and is not, reasonable to believe something is private.

The Court of Appeals therefore reversed the trial court’s order denying Hentz’s motion to suppress . . . which I assume will re-open the case.