“Interruption of Service”

As I’ve noted in earlier posts, the basic federal computer crime statute – 18 U.S. Code § 1030 – creates a civil cause of action for those who have been “harmed” by conduct that violates the statute’s criminal provisions. That’s not uncommon. The federal anti-racketeering act (“RICO), also creates a civil cause of action for those who have been “harmed” by conduct that violates 18 U.S. Code § 1962 and related provisions.

As I’ve noted, the theory behind provisions like §1030(g) is that private citizens act essentially as “adjunct Attorneys General.” That is, private citizens who bring suits under a statute like this are presumed to enhance the effectiveness with which the statute deters criminal violations, since the private suits also act as a sanction against those who violate the statute.

This post examines a recent ruling in a civil suit brought under 18 U.S. Code § 1030(g), the section of the general federal computer crime statute that creates the civil cause of action noted above. The case is Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 2011 WL 2433504 (U.S. District Court for the Northern District of Ohio 2011) and this, according to the ruling in question, is how the case arose:

Yoder is an Ohio auction company that derives a substantial portion of its business from a yearly heavy equipment auction conducted in Florida. Though the auction is conducted in person and in the presence of the equipment, Yoder has also provided online services to its buyers and sellers for several years.

Until January 2008, Yoder had contracted with Defendant (a New Jersey LLC) to run the online bidding service. After terminating the relationship, Yoder hired RTB to maintain the online auction services for the 2010 auction. Online access to the 2010 auction was not open to the public; a potential participant must apply and satisfy both Plaintiffs.

Plaintiffs allege that Defendant obtained unauthorized access to the 2010 online auction system, using an administrative identification and password, and posted negative comments on the system chat board. Later, Defendant falsely registered for the online auction using the name of a Yoder customer who was registered for the auction in general. Further, Plaintiffs allege, Defendant used this fraudulent registration to place bids in the auction, placed the winning bid on over one million dollars worth of equipment, and failed to pay on those winning bids.

Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, supra.

I don’t have access to the First Amended Complaint, which is the source for the facts set out above, but in the original Complaint, there were two plaintiffs: Yoder & Frey and RealTimeBid.Com, LLC. Complaint, 2010 WL 4526896 (U.S. District Court for the Northern District of Ohio, July 19, 2010). According to the original Complaint, RealTimeBid.Com, LLC (`RTB’) is a limited liability company duly organized and existing under the laws of the State of Ohio, having its principal place of business in Holland, Ohio.” Complaint, supra, at ¶ 2.

When the plaintiffs filed the original Complaint, they didn’t know the names of the persons/entity/entities whom they believed engaged in the conduct outlined above, so they referred to them as the “John Doe Defendants.” Complaint, supra, at ¶ 2. At some subsequent point, they apparently identified EquipmentFacts LLC as one of the John Doe Defendants, and so substituted its name in the caption of the case, as the defendant. This is how the original Complaint describes what the John Doe Defendants allegedly did:

21. Prior to and during the annual Florida auction in 2010, the John Doe Defendants, without authorization, wrongfully and intentionally accessed the online bidding system using an administrative user name and password in order to post untrue, negative and defamatory statements on a chat board maintained as part of the system.

22. After the unauthorized use of the administrative user name and password was discovered and terminated by Plaintiffs, John Doe Defendants, without authorization, wrongfully and intentionally assumed the identity of a long-time customer of Yoder & Frey and using this stolen identity registered as a bidder for the annual Florida auction.

23. John Doe Defendants, using the stolen identity, continued to post untrue negative and defamatory statements about Plaintiffs on the chat board.

24. On February 10 and 11, 2010, John Doe Defendants using the stolen identity registration, submitted false bids on many items in the annual Florida auction sale and, in fact, submitted the highest bid on eighteen items with a combined purchase price of $1,171,074.00.

25. John Doe Defendants failed to pay for the items on which they had submitted the high bids.

Complaint, supra, at ¶¶ 22-25.

The Plaintiffs alleged several causes of action against the defendant(s), the first of which was the 18 U.S. Code § 1030 claim. Paragraph 30 of the original Complaint (and, I’m guessing, a similar/identical paragraph in the Amended Complaint) alleges that the Defendant(s) “knowingly and intentionally accessed Plaintiffs' computers and online bidding system without valid authorization or in excess of any authorization and as a result of such conduct caused damage and loss (18 USC § 1030(a)(5)(c)).” Complaint, supra, at ¶ 30.

The Defendant (I’m going to use that term because it’s shorter than the company’s name) responded by filing a Rule 12(b)(6) motion to dismiss the § 18 U.S. Code § 1030 cause of action. Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, supra. As Wikipedia explains, a Rule 12(b)(6) motion “is how lawsuits with insufficient legal theories underlying their cause of action are dismissed from court.”

The Defendant relied on the language of 18 U.S. Code § 1030(g), the portion of the statute that creates a civil cause of action for those “harmed” by a violation of 18 U.S. Code § 1030’s criminal provisions. Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, supra. Section 1030(g) provides, in part, that “[a]ny person who suffers damage or loss by reason of a violation of” § 1030(g)’s criminal provisions can bring civil suit seeking damages for that loss.

In its motion to dismiss, the Defendant challenged the “Plaintiffs’ allegation of `loss’” under the statute. As I understand it, the Defendant was claiming the Plaintiffs hadn’t actually “lost” anything as a result of the conduct alleged in the Complaint. Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, supra. The district court judge began his analysis of the argument by noting that 18 U.S. Code § 1030(e)(11)

defines `loss’ as `any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.’

Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, supra (emphasis added in opinion).

The judge first noted that the “Plaintiffs allege such consequential damages due to lost commissions from the failed auction on the items for which Defendant allegedly submitted the winning bid and the cost of making whole the sellers of those items.” Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, supra. He then explained that the “parties disagree over whether `interruption of service’ only covers large scale sabotage, such as crashing a website or a computer, or whether it can include the smaller scale sabotage at issue here, where Defendant allegedly assumed the identity of another in order to cast fraudulent bids at a site devoted to an auction.” Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, supra.

(In a footnote to this last statement, the judge said that if the “Defendant objected to the type, rather than scale, of the sabotage alleged, the Court would have to consider whether Plaintiffs' auction website was in service if Defendants submitted fraudulent winning bids for every item in the auction.” Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, supra.)

In analyzing the “interruption of service” issue, the federal judge pointed out that the statute “does not define `interruption of service’” and “[c]ase law provides little further hint” as to the correct interpretation of the phrase, “essentially leaving the Court with a question of first impression.” Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, supra. The judge found that most (all?) of the cases the Defendant relied “upon to show that the [Plaintiffs’] allegations do not involve an `interruption of service’” involved the “misappropriation of information, rather than [the] disruption of operations.” Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, supra. He also noted that the cases the Defendant relied on were “factually distinct because they involve former employees and misappropriation, they only speak to the effect of deletion, not disruption.” Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, supra.

Since neither the plain language of the statute nor case law provided the answer to the question raised by the Defendant’s Rule 12(b)(6) motion to dismiss, the judge

look[ed] for guidance to the legislative history of 18 U.S. Code § 1030(e)(11). In describing the definition of `loss’ . . . the record specifically invokes `responding to a computer hacker’ as the proper scope of the definition. 147 Cong. Rec. S10990–02, 20 (2001). Black's Law Dictionary 780 (9th ed.2009) defines `to hack’ as `to surreptitiously break into the computer, network, servers, or database of another person or organization.’ Here, Plaintiffs allege that Defendant surreptitiously (by pretending to be a particular Yoder customer) gained access to the auction website.

Given the legislative history, the language of the statute, and the paucity of case law, the Court finds Defendant's alleged intentional disruption of even a portion of the online auction through surreptitiously submitted false bids interrupted the service of that site. While the online auction was not totally thwarted, a number of individual online transactions were. As such, the auction website did not provide service to either Plaintiffs or the buyers and sellers in the auction while Defendants allegedly submitted false winning bids.

Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, supra.

The judge therefore denied the Defendant’s motion to dismiss the 18 U.S. § 1030(g) cause of action. Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, supra.

What that means, of course, is that the cause of action is still a part of the civil suit; this decision simply held that the Plaintiffs had adequately pleaded the 18 U.S. Code § 1030(g) cause of action against the Defendant. It in no way held, or established, that the Defendant is liable to the Plaintiffs under that provision. That issue will have to be decided at trial or, perhaps, on a motion for summary judgment.

IP Addresses and State Constitutions

Most of the time, when I do a post that deals with a constitutional issue, the issue arose under the U.S. Constitution or one of its amendments, especially the “Bill of Rights” amendments. As I’ve noted, though, every U.S. state also has its own constitution.

How can they do that? Wikipedia’s entry on state constitutions explains that the

Tenth Amendment to the United States, part of the Bill of Rights, provides that `The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ The Guarantee Clause of Article 4 of the Constitution states that `The United States shall guarantee to every State in this Union a Republican Form of Government.’ These two provisions give states the wide latitude to adopt a constitution. . . .

As I’ve noted in earlier posts, the state constitutions (i) can’t provide less protection to citizens than the federal constitution but (ii) can provide more protection to the citizens of that state than is available under the federal constitution. As I’ve noted, that works when the law as articulated in the state constitution is being applied by a court of that state. It doesn’t work in federal courts, even when the court sits in that state, because federal courts apply federal law, and a state constitution's provisions can't be used to trump federal law.

All of that is intended to provide a context for an analysis of the opinion in State v. Simmons, ___ A.3d ___, 2011 WL 2474275 (Supreme Court of Vermont 2011). This is how the case arose:

In 2008, two of [Graham Simmons’] neighbors on Hi Lo Biddy Road in Putney reported break-ins and stolen property, including two laptop computers. A State Police detective received a tip from an anonymous informant that a man named `Graham’” who lived on the same street as the victims, had one of the computers and was using it to access his neighbor's wireless internet network.

The detective looked through public records and learned that one Graham Simmons with previous larceny and fraud convictions lived on Hi Lo Biddy Road. The detective also learned from defendant's next door neighbor -- one of the break-in victims -- that she subscribed to Verizon internet services and had a wireless network in her home for her personal use.

The detective looked for [Simmons] on the social networking website MySpace.com and located a MySpace profile for a `Graham Simmons’ living in Putney, accompanied by a picture resembling the photograph of [Simmons] on record with the Department of Motor Vehicles. The detective then served an inquest subpoena on MySpace to obtain [Simmons’] internet protocol (IP) address -- a code identifying the computer network from which [he] accessed his MySpace account.

The records from MySpace indicated that shortly after [Simmons’] neighbor's computer was stolen, [he] logged onto his MySpace account more than 100 times over the course of a week. Each log on originated from the same IP address, identified as a Verizon internet service address.

State v. Simmons, supra.

(According to a footnote in the opinion, they’re called “inquest subpoenas” because the relevant statue says that ““[u]pon the written application of the state's attorney, a judge of the superior court may institute and conduct an inquest upon any criminal matter under investigation by the state's attorney” and “in furtherance of the inquest,” the “judge may issue necessary process to bring witnesses before [the court] to give evidence in any matter there under investigation.” 13 Vermont Statutes §§ 5131 & 5132.)

The detective got “another inquest subpoena, this time for Verizon's records concerning the same IP address.” State v. Simmons, supra. Verizon provided records that showed the only person authorized to use “the internet connection identified by that IP address was” Simmons' neighbor, the woman mentioned above. State v. Simmons, supra. “Though [she] had not given [him] permission to use her Verizon wireless connection, [he] had clearly done so.” State v. Simmons, supra.

Based “on this evidence of unauthorized access in apparent violation of” 13 Vermont Statutes § 4102, the detective obtained a warrant to search Simmons' home. State v. Simmons, supra. When officers executed the warrant, they found “a laptop computer with a serial number matching the laptop stolen from the neighbor’s residence” plus “other objects” that “resembled items reported as stolen” from Simmons’ neighbors. State v. Simmons, supra. They also found marijuana. State v. Simmons, supra.

After being charged with four counts of burglary, possession of marijuana and unauthorized access to a network, Simmons moved to suppress the evidence, claiming “the IP address was private information, defendant argued that issuing subpoenas to MySpace and Verizon without probable cause was an invalid search in violation of the Fourth Amendment of the Federal Constitution and of Chapter 1, Article 11 of the Vermont Constitution.” State v. Simmons, supra. The trial court denied the Fourth Amendment part of the motion, noting that federal courts have held that Internet users have no Fourth Amendment reasonable expectation of privacy in their IP addresses or other information they voluntarily share with their ISPs. State v. Simmons, supra.

The Vermont Supreme Court doesn’t address the Fourth Amendment issue in its opinion, so either Simmons gave up on that argument or the court was satisfied with implicitly upholding what the trial judge did with it.

Simmons seems to have concentrated on his claim that the use of the inquest subpoenas to obtain IP address information violated his right to privacy under the Vermont Constitution. State v. Simmons, supra. In the opinion, the Vermont Supreme Court says he can’t raise that issue on appeal because he didn’t preserve it below . . . but then seems to go on to address it. State v. Simmons, supra.

Before I get into what the Vermont Supreme Court had to say on this issue, I want to note that Simmons’ argument is far from specious. As I explained in an earlier post, the New Jersey Supreme Court held that under the New Jersey Constitution, citizens (and residents) of New Jersey do have a constitutional expectation of privacy in IP addresses. So, the argument has worked in at least one instance.

Simmons didn’t fare as well as the New Jersey defendant who relied on that state’s constitution to argue that IP addresses are private. For one thing, aside from

a bald assertion that the evidence should be suppressed `pursuant to . . . the Vermont Constitution, Chapter 1, Article 11,’ [Simmons] proffered no particular argument or analysis to the trial court as to why this should be so. [He] correctly points out in his brief to this Court that Article 11 been found to surpass protections afforded under the Fourth Amendment to the United States Constitution; however, he advanced no reason for expanded protection at the trial court.

State v. Simmons, supra.

The court noted that Article 11 “declares that `the people have a right to hold themselves, their houses, papers, and possessions, free from search and seizure’” and “[a]bsent exigent circumstances not at issue here, . . . prohibits a warrantless search of `only those areas or activities that a reasonable person would conclude are intended to be private.’” State v. Simmons, supra (quoting State v. Geraw, 173 Vt. 350, 795 A.2d 1219 (2001)). The Supreme Court explained that under Article 11, “`the question of whether an individual has a legitimate expectation of privacy hinges on the essence of underlying constitutional values-including respect for both private, subjective expectations and public norms.’” State v. Simmons, supra (quoting State v. Bryant, 183 Vt. 344, 950 A.2d 467 (2008)).

The court also noted that to invoke Article 11 protection, a person must exhibit an actual subjective expectation of privacy that society is prepared to recognize as reasonable. State v. Simmons, supra. If you’ve read many of my Fourth Amendment posts or are otherwise familiar with Fourth Amendment law, you’ll know that this latter requirement tracks the Fourth Amendment’s requirement for defining when a “search” occurs.

The Vermont Supreme Court explained that given the

necessary and willing exposure of an internet user's access point identification and frequency of use to third party internet service providers, such information cannot reasonably be considered confidential, especially when a provider such as MySpace openly declares a policy of disclosure. The information appears no more private than a phone number and the number of calls made, or a street address or post office box and volume of mail, neither of which could plausibly be considered private.

State v. Simmons, supra.

The court then reiterated what it had said before, i.e., that while Article 11 can

afford greater protection against warrantless searches than is sometimes accorded by the Fourth Amendment, [Simmons] presents no compelling reason to depart from federal case law as applied by the trial court in this instance. No `intimate details’ of [his] personal `activities, behavior, habits, and lifestyles’ were shown to be at stake as in State v. Morris, where Article 11 protection was extended to closed trash bags that would have been subject to warrantless search under the Fourth Amendment. 165 Vt. 111, 680 A.2d 90 (1996). . . . [Simmons’] analogies to a warrantless search of his home or mail are also unavailing. Such intrusions are incomparable to requesting and receiving, from a third party service provider, an IP address and the number of times the access was used.

State v. Simmons, supra.

In a footnote, the court conceded that the New Jersey Supreme court reached the opposite conclusion in applying the New Jersey Constitution. State v. Simmons, supra. It pointed out, though, that the New Jersey decision “was based, in part, on prior recognition of state constitutional privacy rights in matters disclosed to third parties, such as banks and telephone exchanges, whereas no such history precedes the instant case.” State v. Simmons, supra.

I don’t know that the argument Simmons rather half-heartedly tried to make could have succeeded if more effort had been put into it . . . or that it should succeed. But it is always a little aggravating to find a significant appellate court called upon to address an issue that hasn’t been adequately briefed . . . seems such a lost opportunity (even if it’s just an opportunity to clarify precisely why something isn’t protected.)

Miranda, Interrogation and the Computer Glitch

This post isn’t about a cybercrime case, per se. It is about a case that involves the intersection of criminal law (actually, of criminal procedure law) and technology . . . in a rather unusual way.

The case is Commonwealth v. Dixon, __ N.E.2d __, 2011 WL 2464771 (Massachusetts Court of Appeals 2011), and it arose when Fred Dixon was charged with second-degree murder.

We’re not concerned with either the charge or the resulting conviction, as such. We’re going to be examining a procedural issue, but to put that issue into context I need to note how Dixon came to be charged with murder:

The victim's body was found [underneath his whellchair] at . . . 9:30 P.M. [on June 29, 2004] on a landing between the third and fourth floors of a stairwell [in the Ship’s Cove apartment building]. The victim. . . . sustained blunt trauma to his head and neck and died as a result of those injuries. The victim and [Dixon] lived on the fourth floor. . . . Ship's Cove was equipped with security cameras which recorded the following events. . . .

At 9:16 P.M., the victim entered the building . . . and took the elevator to the fourth floor. [Dixon], [Felix] Marrero, and several others entered the lobby seconds later. The group, which included . . . Karrah Kenner, entered the lobby elevator. Kenner, who lived across the hall from [Dixon], went to the fourth floor while [he] and Marrero remained in the elevator, exiting on a higher floor. Within minutes, [Dixon] and Marrero took the elevator back to the fourth floor.

Shortly thereafter, [Dixon’s] next door neighbor, Maria Carreiro, heard a man scream . . . `No, no, please, no, no.’ The voice was coming through the wall adjacent to [Dixon’s] apartment. Carreiro called the police. She then observed the wall near her front door shaking, and heard the door to [Dixon’s] apartment open. Next, she heard the door to the (stairwell) open and `[s]omething rolling down the stairs. . . .

At 9:38 P.M., two Fall River police officers arrived . . . as [Dixon] and Marrero were leaving. . . . After the police discovered the victim's body, they secured the scene and obtained a search warrant for [Dixon’s] apartment. During the execution of the warrant, police observed blood stains on the wall which separated [his] apartment from Carreiro's. . . . [P]olice also observed blood in the stairwell where the body was found. [DNA] testing revealed that the blood in [Dixon’s] apartment and the stairwell matched the victim's DNA profile. . . .

Commonwealth v. Dixon, supra.

Officers also discovered other evidence that directly or inferentially linked Dixon and Marrero to the victim’s death. Commonwealth v. Dixon, supra. Because of that, they were arrested on July 2, 2004. Commonwealth v. Dixon, supra. Dixon was initially booked “at the State police barracks in the South Boston section of Boston,” but then “transported to the Fall River police station”, where he was taken to an interview room, given his Miranda rights and signed a form indicating that

he understood those rights. [Dixon] both orally and in writing, informed the officers that he did not wish to speak to them. At that point, the formal interview ended and [Dixon] was escorted to the booking room by Fall River police Detective Chace and State police Trooper Robertson.

Fall River police use a computerized booking program. . . . [T]he booking officer [was] Officer Maher. . . [Dixon] answered a number of routine booking questions posed by Officer Maher. Throughout the booking, [he] was handcuffed and stood at arm's length from Maher across a waist-high counter. Chace was standing directly beside [Dixon], and Robertson stood five feet to [his] right. On the counter was a computer into which Maher entered the information he received from [Dixon].

The computer program presents its user with a series of requests for specific information to be entered on a number of consecutive `pages’. . . . Unless the requested information is entered into the appropriate field, the program will not allow a user to proceed to the next page or to complete the booking procedure. Where . . . the charged offense is a crime of violence, the booking program requires the booking officer to answer an inquiry whether a weapon was used. Upon reaching this prompt, Maher asked Chace, who was still standing directly to [Dixon’s] left, whether a weapon was used during the incident. Chase did not respond, but [Dixon] stated,`The dude hit us.’ Maher entered `unknown’ or `none’ into the computer and proceeded with the remainder of the booking questions.

Commonwealth v. Dixon, supra. The opinion notes that Maher later “characterized this element of the program as `a glitch . . . we deal with.’” Commonwealth v. Dixon, supra.

Prior to trial, Dixon moved to suppress his comment that “The dude hit us”, claiming it was elicited in violation of his Miranda rights to silence and to counsel. Commonwealth v. Dixon, supra. As Wikipedia explains, and as I assume everyone knows, in Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that a suspect who is in “custody” (e.g., has been arrested) must be told that he has the right to remain silent and the right to have counsel appointed and present if and when he decides to talk to the police. The suspect must also be told police cannot interrogate him if he invokes the right to silence or the right to counsel.

As noted above, after being Mirandized Dixon told the officers (orally and in writing) he didn’t want to talk to them, so he invoked his right to silence. That meant that the officers could not “interrogate” him, at least not unless and until a lengthy period of time had passed and they had taken certain other steps to protect his Miranda rights.

Dixon argued that when Maher asked if a weapon was used, he, Dixon, was subjected to “interrogation” in violation of his Miranda rights. If that was true, then Dixon’s statement that “the dude hit us” would have to be suppressed. The judge who ruled on the motion to suppress held that it did not have to be suppressed because it was volunteered and therefore was “not the product of custodial interrogation”. Commonwealth v. Dixon, supra.

More precisely, the judge found that the statement could be used because

(1) [it] was not responsive to Maher's question whether a weapon had been used; (2) the question was posed to Chace and not to [Dixon’; [and] (3) Maher was not `objectively’ seeking an incriminating response when he posed the question. . .

Commonwealth v. Dixon, supra. After being convicted, Dixon appealed, arguing that the lower court erred in denying his motion to suppress. Commonwealth v. Dixon, supra.

The Court of Appeals began its analysis of his argument by noting that, under the Supreme Court’s decision in Rhode Island v. Innis, 446 U.S. 291 (1980), Miranda interrogation encompasses both (i) express questioning and (ii) “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Commonwealth v. Dixon, supra (quoting Rhode Island v. Innis, supra).

The court noted that there was an express question in this case, but also noted that the prosecution pointed out that (i) the question was “posed to Chace” rather than to Dixon and/or (ii) Dixon’s statement “was not responsive to Maher’s question whether a weapon had been used.” Commonwealth v. Dixon, supra. The court accepted the lower court judge’s finding that the question was directed to Chace, and not to Dixon, but explained that “the mere fact Maher directed his question to Chace does not address the critical question under Innis, which is whether a reasonable person in the suspect's position would perceive the question, even if not directly posed to him, as interrogation.” Commonwealth v. Dixon, supra.

The Court of Appeals concluded that a reasonable person in Dixon’s position would

so perceive Maher's question. The undisputed testimony of Chace and Robertson . . . establishes that immediately prior to asking the question whether a weapon was used, Maher had been posing questions directly to [Dixon]. Moreover, at the moment Maher asked the question, [Dixon]. . . and Chace were standing directly beside one another approximately three feet away from, and both facing, Maher. These facts do not support the Commonwealth's assertion that the statement was spontaneous. Rather, they support [Dixon’s] assertion that a reasonable person would have believed a response to the question was required. . . .

In these circumstances, Officer Maher `should have known’ that posing a substantive question directly relating to the facts of the crime under investigation, both in the presence of [Dixon] and in the course of obtaining other information from him, was `reasonably likely’ to (and did) elicit an incriminating response.

Moreover, we are not persuaded that a computer `glitch’ that requires police to inquire into the specifics of the charged offense in the presence of the accused removes those questions from the constitutional analysis. The question was a direct and explicit inquiry about the crime for which [Dixon] was being booked. As such, the police conduct amounted to the functional equivalent of interrogation and a plain failure to [honor Dixon’s] invocation of his right to remain silent. Consequently, the statement should have been suppressed.

Commonwealth v. Dixon, supra.

Dixon won on that issue but lost on the related, residual one: When an appellate court finds that a trial court committed error, it has to decide whether or not the error requires the granting of a new trial. As Wikipedia notes, if the error is determined to have been “harmless,” the appellate court won’t grant a new trial. As Wikipedia also notes, in the “evidentiary context, a harmless error is usually one where the evidence had no relevance to the issues to be decided by the trier of fact, evidence admitted actually helped the party seeking the reversal, or the remaining evidence was overwhelmingly against the party seeking reversal.”

The Court of Appeals went for the third alternative. That is, it found Dixon’s statement should not have been admitted at trial because it was obtained in violation of his Miranda right to silence, but the error was harmless: “Here, the `overwhelming’ strength of the independent, properly admitted evidence assures us that the guilty verdict in this case was not attributable to the error.” Commonwealth v. Dixon, supra. The court therefore affirmed Dixon’s conviction and the life sentence imposed on him. Commonwealth v. Dixon, supra; Brief of Appellant, Commonwealth v. Dixon, 2009 WL 4809463.