The 4th Amendment, the Wiretap Act and Google Voice

This post examines a decision a federal district court in Illinois recently issued in a civil case:  Loucks v. Illinois Institute of Technology, 2012 WL 5921147 (U.S. District Court for the Northern District of Illinois 2012).   

Jonathan Loucks brought the suit, alleging that the Illinois Institute of Technology [IIT] and two individuals -- Ashley Lucas and Elizabeth Pinkus–Huizenga – “violated the 4th Amendment and the Federal Wiretap Act, 18 U.S. Code § 2520.” Loucks v. Illinois Institute of Technology, supra.

This, according to the Complaint Loucks filed to initiate the suit, is how the case arose:

b. Ashley Lucas is the Service Coordinator for the Office of Residence and Greek Life and [Loucks’] former supervisor who was and still is a resident of Chicago in Cook County of the State of Illinois.

c. Elizabeth Pinkus-Huizenga is the Director for Residential Education for the Office of Residence and Greek Life who was and still is a resident of Chicago in Cook County of the State of Illinois. . . .

5. At all times hereinafter mentioned the following individuals and their respective positions act as representative employees of [IIT]:

a. Whereas Ashley Lucas served as the direct supervisor to [Loucks] in her capacity as the Service Coordinator for the Office of Residence and Greek Life. . . .

b. Whereas Elizabeth Pinkus-Huizenga serves as the Director of Residential Education for the Office of Residence and Greek Life. . . .

c. Whereas Terrence Humphrey serves as the Director for Residential Operations and Administration for the Office of Residence and Greek Life. . . .

d. Whereas Katherine Murphy-Stetz serves as the Dean of Students for the Division of Student Affairs. . . .

e. Whereas Victoria Tolbert serves as the Illinois Institute of Technology Ombudsperson and the Assistant to Dean of Students for the Student Affairs Division. . . .

f. Whereas Raymond Martinez serves as the Director of Public Safety for the Department of Public Safety. . . .

g. Whereas Marcus Scott serves as the Assistant Director of Public Safety for the Department of Public Safety at the Illinois Institute of Technology. . . .

6. Whereas . . . Loucks, began employment on May 1^st, 2012 with the Office of Residence and Greek Life as Team Leader for the Community Desk Assistant Program after serving as a Resident Advisor and Community Desk Assistant since August 12^th, 2011.

7. Whereas [he] was expected to serve in an on-call rotation as part of his position using his personal cell phone as a receiver for the third-party call forwarding service, Google Voice.

8. Whereas the forwarding service was simply explained as strictly a forwarding service without any privacy agreement or provisions set forth or made available to [Loucks] by Ashley Lucas or Elizabeth Pinkus-Huizenga whom advocated the use of the new service.

9. Whereas on May 15^th, 2012 a series of text messages sent from [Loucks’] personal phone to the personal phone of Westin Ripley, a fellow [IIT] student, was recorded and logged by the Google Voice account, held by the Office of Residence and Greek Life of [IIT].

10. Whereas a transcript of these text messages was provided to [Loucks] in an investigatory hearing with Lucas, Pinkus-Huizenga, Scott, and Martinez on May 21^st, 2012.

11. Whereas [Loucks] maintained that these text messages were private and sent to his personal cell phone and were not intended for public view or dissemination.

12. Whereas [Loucks] was interrogated by Scott and Martinez regarding the nature of the text messages and informed that he would be subject to disciplinary action and likely termination by Pinkus-Huizenga and Lucas.

13. Whereas [Loucks] filed a formal complaint to Victoria Tolbert on May 22^nd, 2012 stating that his right to privacy was violated by Pinkus-Huizenga, Lucas, Martinez, and Scott after private text messages were viewed and distributed to the officials mentioned in Paragraph 5.

14. Whereas [Loucks] informed Tolbert of his intention to seek legal counsel on the legality of his likely termination of employment.

15. Whereas [Loucks] was suspended without pay in an email communication from Lucas on May 23^rd, 2012.

Complaint, Loucks v. Illinois Institute of Technology, et al., ¶¶ 4-15, 2012 WL 5216652.  On May 25, Loucks “met with Murphy-Stetz who informed him . . . that his employment was to be terminated and he would be required to vacate his provided residence by June 4^th, 2012.”  Complaint, Loucks v. Illinois Institute of Technology, et al., supra at ¶ 22.

As the opinion explains, as part of his employment at IIT’s Office of Residence and Greek life, Loucks used Google Voice,

a third-party call forwarding service, on his personal cell phone. The Google Voice account was held by the Office of Residence and Greek Life. [Loucks] alleges that a series of text messages, sent from his cell phone to the phone of fellow IIT student Westin Ripley were recorded and logged by the Google Voice account.  

A transcript of these text messages was provided to [Loucks] in an investigatory hearing with his direct supervisor, Lucas; the Director of Residential Education for the Office of Residence and Greek Life, Pinkus–Huizenga; the Director of Public Safety, Raymond Martinez; and the Assistant Director of Public Safety, Marcus Scott. Ultimately, IIT terminated Plaintiff's employment because the text messages revealed that he had `prompted a drug deal to happen on campus.’ 

Loucks v. Illinois Institute of Technology, supra.

The defendants responded to Loucks’ complaint by filing a Rule 12(b)(6) motion to dismiss the suit. Loucks v. Illinois Institute of Technology, 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. For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion.

The district court judge began his analysis of the defendants’ motion by noting that

[t]o survive a motion to dismiss under Rule 12(b)(6), a complaint must allege `enough facts to state a claim to relief that is plausible on its face.’ Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In other words, a plaintiff's complaint `must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level.’ Independent Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930 (U.S. Court of Appeals for the 7th Circuit 2012).

Loucks v. Illinois Institute of Technology, supra.

 He then took up Loucks’ two causes of action, starting with his claim that the defendants violated the 4^th Amendment.  Loucks v. Illinois Institute of Technology, supra.

[T]he Court notes that an alleged wrongful search or seizure conducted by private sector employers -- without governmental participation or knowledge -- is not actionable under the 4th Amendment. Burdeau v. McDowell, 256 U.S. 465 (1921); see also U.S. v. Jacobsen, 466 U.S. 109 (1984) (“This Court has also consistently construed [4th Amendment] protection as proscribing only governmental action; it is wholly inapplicable to a search or seizure . . . effected by a private individual not acting as an agent of the Government’. . . .)

In his opposition to [the] motion to dismiss, [Loucks] concedes that IIT is a private institution. [His] vague, broad based claim rails to allege participation or knowledge of any governmental official. Further, [Loucks’] argument that IIT `could be operating as proxy agents of the Police Department’ because the Chicago Police Department `quickly became involved’ and arrested Ripley on felony drug distribution charges . . . is without merit. . . . As such, [Loucks’] 4th Amendment claim is dismissed.

Loucks v. Illinois Institute of Technology, supra.  (For more on the private search issue, check out this prior post.)

The judge then took up Loucks’ claim under the federal Wiretap Act, which is codified as part of Title 18 of the U.S. Code.  As he noted, 18 U.S. Code § 2520 “provides a civil remedy when a person's communications are `intercepted, disclosed, or used in violation of” the Wiretap Act.  Loucks v. Illinois Institute of Technology, supra.  The judge also pointed out that while Loucksdid not

specifically aver which provision he relies upon for relief, it appears that [Loucks] is alleging a violation of [18 U.S. Code] § 2511, which prohibits the intentional interception and disclosure of wire, oral, or electronic communications. 

Loucks v. Illinois Institute of Technology, supra (emphasis added).

Since Loucks was not alleging that IIT was a state agent, his Wiretap Act claim was apparently brought under 18 U.S. Code § 2511(2)(d) of Title 18, which says it is not unlawful for a person who is

not acting under color of law [i.e., someone who is not a state agent] to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

Loucks v. Illinois Institute of Technology, supra. 

In analyzing Loucks’ Wiretap Act claim, the judge explained that Loucks alleged that,

prior to deploying Google Voice software, IIT was not fully aware of its ability to record or log messages. See Complaint ¶¶ 19–20 (alleging that the Dean of Students for the Division of Student Affairs, Katherine Murphy–Stetz, stated that the `Office of Residence and Greek Life should have adequately researched the functions of the Google Voice service’ and `that had the Google Voice features been investigated and thoroughly explained upon deployment of the software, the situation would not have escalated or even arisen’).

Even drawing all reasonable inferences in [Loucks’] favor, these allegations, at most, allege a plausibly negligent act. Thus, `[b]ecause the complaint does not allege that defendants intercepted a communication for the purpose of committing any criminal or tortious act, it fails to state a claim under section 2511.’  Lucas v. Fox News Network, LLC, 248 F.3d 1180 (U.S. Court of Appeals for the 11th Circuit 2001). . . . 

Loucks v. Illinois Institute of Technology, supra. 

The judge therefore held that Loucks’ “Federal Wiretap claim is . . . dismissed.”  Loucks v. Illinois Institute of Technology, supra.  He also noted, though, that the complaint was dismissed without prejudice, which means Loucks can try again.  Loucks v. Illinois Institute of Technology, supra.  (The opinion notes that he is proceeding pro se, i.e., is representing himself, which might have prompted the judge to give him another opportunity.)  Loucks v. Illinois Institute of Technology, supra. 

So Loucks has “one final opportunity to file an amended complaint on or before December 21, 2012.”  Loucks v. Illinois Institute of Technology, supra. 

4th Amendment, Overnight Guests and Passwords

After being convicted of “committing a lewd and lascivious act upon a child” in violation of California Penal Code § 288(a) and “possessing child pornography” in violation of California Penal Code § 311.11(a) and sentenced prison for “62 years to life”, Joseph White appealed, making several arguments as to why evidence should have been suppressed. People v. White, 2012 WL 5990991 (California Court of Appeals 2012).

I’m only going to focus on two of them: (i) that his girlfriend’s mother did not have authority to consent to the search of the apartment; and (ii) that a laptop in which White had a 4^th Amendment reasonable expectation of privacy was improperly seized without a warrant. First, though, this is how the case arose:

Eight-year-old Haley lived at an apartment complex in Sacramento. In April of 2009, a resident of the complex, Nicole Buzzetta (Nicki) came by Haley's apartment and asked if she wanted some kittens. Haley went to Nicki's apartment with her sister to look at the kittens. On May 12, Haley told her mother she was going to the complex's parking lot to show a friend her glasses and then see the kittens. People v. White, supra. 

Haley returned home “very scared.” People v. White, supra.  She told her mother Nicki's boyfriend, White, grabbed her by the hand and asked her what she was doing in the parking lot. He led Haley to a green truck; while he sat in the truck and she stood outside it, he stuck his hand down her shorts and touched her vagina.  People v. White, supra. 

Someone contacted the police, because Sacramento County Sheriff’s Detective Darin Pometta “learned from Haley” that the person who had touched her was associated with

Nicki who resided in apartment 104. Pometta . . . learned the tenants for apartment 104 were Nicole Buzzetta and Tommie Butler. . . .

[O]n June 16, Pometta and . . . Detective Anthony Saika knocked on the door of apartment 104. . . . Butler invited the[m] in. . . . Buzzetta and Butler . . . agreed to answer questions. . . . Pometta met with Buzzetta in the parking lot while Saika met with Butler in the apartment. . . .

Butler . . . told [Saika] her son, [White], was engaged to Buzzetta. . . . Butler said [he] was out of town looking for work. . . . Saika learned the green Chevy Tahoe . . . identified by Haley was registered to Buzzetta's father but it was, for practical purposes, Buzzetta's car.

People v. White, supra. 

The detectives went back to the station, compared notes and decided to focus on White.  People v. White, supra.  A records check showed that he “had outstanding warrants and was a registered sex offender from Santa Cruz County.” People v. White, supra.  The detectives went back to the apartment to find out more about White. People v. White, supra.  They knocked on the door around 11:00 a.m. and Butler answered:

  

Pometta . . . asked if they could. . . speak with her. Butler opened the door and gestured with her hand in an inviting manner, and the detectives entered the apartment. Pometta asked if there was anyone else in the apartment. Butler said her daughter and two grandsons were sleeping in a bedroom in the back. Pometta asked if he could look in the bedrooms and verify. Butler said he could. She directed him down the hallway to a room on the right, and he entered the room. He saw a female sleeping on the floor with an infant next to her and another toddler sleeping in a crib.

Pometta left . . . and asked Butler if anyone else was in the apartment. She said there was not. Pometta went into the adjacent room. The door . . . was slightly ajar, and appeared to be leading to the master bedroom area. As he opened the door and entered the room, he noticed a man standing motionless to his left. The man was standing inside the threshold of an adjacent door. This startled Pometta, but he recognized the man as [White]. With his weapon drawn, he ordered [White] to the ground.

People v. White, supra. 

Pometta cuffed White and led him into the living room. Butler. People v. White, supra. White said his wallet was on top of the bed in the master bedroom. People v. White, supra.  Pometta went back to the master bedroom and retrieved a wallet from the bed. People v. White, supra.  As he did so, “he noticed a black laptop computer on the floor at the foot of the bed” that was “plugged into the wall socket.” People v. White, supra.  Butler told Saika White had been “living in the apartment with her since she had moved in approximately a year and a half ago.” People v. White, supra.   

The officers took White to the station, where he asked Pometta to give the wallet to Butler.  People v. White, supra.  Butler and Buzzetta came to retrieve it, and Pometta wound up interviewing Buzzetta.  People v. White, supra.  She told him about Haley’s coming to the apartment to see the kittens and said she had a photograph of Haley and White together, which she thought was in her digital camera. People v. White, supra.  Pometta told Saika to go to the apartment and get the digital camera or the memory card with the photo. People v. White, supra.  He told Buzzetta that Saika would meet her at her apartment; she had no objections. People v. White, supra. 

Pometta also told Saika to get the laptop he saw in the master bedroom. People v. White, supra. Saika went to the apartment where Buzzetta showed him a digital camera and a photo of Haley and White. People v. White, supra. Saika asked for the camera's memory card, and Buzzetta gave it to him. People v. White, supra.  Saika then told her he wanted to take the laptop because it might contain other useful photos.  People v. White, supra. Buzzetta picked up the laptop, sat on the bed, and began pushing keys; Saika asked if there was a password on it. People v. White, supra. 

Buzzetta said she had a password and White had a password, but the computer was hers. People v. White, supra.  She initially said she did not know his password but later said “she checked his settings in regards to the pictures she had on the computer.” People v. White, supra.  Buzzetta turned off the laptop, unplugged it and gave it to Saika; and she told him her password. People v. White, supra.  On July 3, Pometta got a laptop and viewed “some of the items on" it, which “included child pornography.”  People v. White, supra.  That led to the possession charge noted above.

That brings us to White’s first argument as to why the evidence should be suppressed:  that his mother did not have authority to consent to a search of the apartment.  Wikipedia notes, consent is an exception to the 4^th Amendment’s default warrant requirement, i.e., to the requirement that officers have a warrant in order to search for and seize evidence.  And as I have noted in earlier posts, consent substitutes for a warrant because by consenting, you basically waive your 4^th Amendment rights.

As I have also noted in earlier posts, consent substitutes for a warrant if the person who consented to the search and/or seizure had actual authority to consent OR if the officers reasonably, though incorrectly, believed the person had such authority (apparent authority).  For more on that, check out this article. 

Here, White argued that the trial judge erred in denying his motion to suppress by finding that Butler “had the authority to consent to the detectives entering the apartment and [his] bedroom.” People v. White, supra.  The trial judge found that the “detectives reasonably relied on Butler's apparent authority, even if she had no authority in fact, to admit them into [White’s] bedroom.”  People v. White, supra. 

The Court of Appeals agreed.  It explained that “whether or not” Butler had actual

authority to consent to the search of the master bedroom, the detectives' belief that she had that authority was reasonable. Nothing in the . . . circumstances would have led a reasonable person to doubt Butler's authority. She and Buzzetta were listed on the lease as the only tenants. She was the person who invited the detectives into the apartment on the first two visits and consented to Pometta searching the bedrooms on the second visit. Based on what she and Buzzetta had told them, the detectives had no reason to believe anyone else lived at the apartment.

When the detectives made their second visit, there was no indication Buzzetta had exclusive control of the master bedroom. The door to that room was slightly open, and from what the detectives knew . . . the room could have been used by Butler or Buzzetta or both, since the other bedroom was occupied by a woman and two children, . . . whom Butler identified as her daughter and grandchildren. Under these circumstances, the detectives' belief in Butler's authority to consent to their searches was reasonable and did not violate [White’s] rights under the 4th Amendment.

People v. White, supra. 

The Court of Appeals also noted that “[m]ore significantly,” the evidence admitted based on the

detectives' second visit to the apartment was discovered upon defendant's consent. After bringing a handcuffed [White] to the living room, Pometta asked him for identification. [White] told him it was in his wallet on top of the bed in the master bedroom, implicitly granting Pometta consent to reenter the bedroom and retrieve [his] wallet. [At the suppression hearing,] Pometta testified it was not until he went back into the master bedroom to retrieve [White’s] wallet that he saw the laptop. And it was that laptop, first seen by Pometta under consent from [White], which led to the discovery of the additional evidence found in the room.

People v. White, supra (emphasis in the original.)

Based on these facts, the Court of Appeals held that “the detectives reasonably relied on Butler's apparent authority and [White’s] actual authority to enter [his] bedroom without a search warrant.”  People v. White, supra. 

That brings us to White’s other argument: that “the seizure of Buzzetta's laptop violated his 4th Amendment rights because he had a reasonable expectation of privacy in” it.  People v. White, supra.  The court noted that the “`application of the 4th Amendment depends on whether the person invoking its protection can claim a “`reasonable . . . expectation of privacy' that has been invaded by government action.’” People v. White, supra (quoting Smith v. Maryland, 442 U.S. 735 (1979)).  As I’ll explain in a moment, I think this is the wrong standard to be used in analyzing White’s concededly ill-framed argument.

The court then explains, correctly, that to have a reasonable expectation of privacy in a place or thing, the person must subjectively believe it is private and society must accept that belief as objectively reasonable.  People v. White, supra.  For more on that, check out this prior post.

           

The Court of Appeals found that White did not have a reasonable expectation of privacy in the laptop because it

belonged to Buzzetta, not [White]. Although he had a profile and a password on the computer, he apparently had shared those with Buzzetta, as she checked his settings regularly regarding her photographs. Thus, he did not exclude Buzzetta from his profile, nor did he control his settings on the laptop.

[White] analogizes his situation to that of an overnight houseguest, who the courts have held has a legitimate expectation of privacy in his host's home. (Minnesota v. Olson, 495 U.S. 91 (1990).] But this analogy does not address [his] expectation of privacy in Buzzetta's laptop computer.

An overnight guest who shares a laptop computer with his host will not have a reasonable expectation of privacy in the shared laptop, particularly when he does not own or control the laptop. The 4th Amendment's protection depends on the reasonable expectations of privacy held by people, not simply on the location of the item the people seek to keep private. (Katz v. U.S., 389 U.S. 347 (1967).)

People v. White, supra. 

For this and other reasons, the court rejected White’s 4th Amendment arguments and affirmed his convictions.  People v. White, supra.  In People v. Blair, 321 Ill. App.3d 373, 748 N.E.2d 318 (Illinois Court of Appeals 2001), which also involved a prosecution for possessing child pornography, the defendant’s motion to suppress challenged his father’s authority to consent to officers’ seizing a computer that belonged to him (not his father) and that his father did not use.  The court explained that the authority to consent to a seizure, unlike authority to consent to a search, is predicated on ownership, not on a reasonable expectation of privacy.  The Court of Appeals held that the consent of a

third party is ineffective to permit the government to seize property in which the third party has no actual or apparent ownership interest. Rather, a seizure is lawful only when the owner of the property consents to the seizure. . . .

People v. Blair, supra. The court therefore held that the father’s consent was ineffective, which meant the son’s motion to suppress should have been granted, which means that his convictions were reversed.  People v. Blair, supra.  Here, the laptop belonged to Buzzetta, so she would have actual authority to consent to its seizure.  So my problem with this part of the court’s opinion is not that the result is wrong . . . but that the court used the wrong 4^th Amendment principle to uphold the trial judge’s denying the motion to suppress.

Subscriber Information, the Stored Communications Act and the Exclusionary Rule

After a jury convicted him of “of second degree assault, reckless endangerment, and carrying a concealed deadly weapon” and the trial judge sentenced him  “to ten years' imprisonment for the assault charge and three years" in prison, "suspended, for the weapons charge”, Alan Upshur appealed.  Upshur v. State, __ A.3d ___, 2012 WL 5949365 (Maryland Court of Appeals 2012).  On appeal, he made three arguments, only two of which I’ll address in this post.  The third argument challenged the reliability of an identification of him by the victim. 

This post deals with Upshur’s challenging the admission of certain evidence. Upshur v. State, supra.  More precisely, it deals with the Court of Appeals’ analysis of and ruling on these two arguments:

I. Did the trial court err in finding that records obtained pursuant to a State's Attorney's subpoena served outside of the State of Maryland and outside of Somerset County provided an independent source to justify admitting evidence obtained in violation of the Maryland Stored Communications Act?

II. Did the trial court err in holding that subscriber information illegally obtained in the course of a police investigation was not subject to the exclusionary rule because it was evidence of the [Upshur’s] identity?

Upshur v. State, supra.

This, according to the opinion, is how the case arose:

On December 5, 2010, Princess Anne County Police responded to a 911 call. Darren Whittington had been stabbed, but he managed to evade his attackers and summon paramedics and police. Corporal Rob Smith questioned Whittington at the hospital. . . . Whittington said a person known to him as `Ace’ had stabbed him. Smith inquired about Ace's `real name,’ but Whittington said he only knew the man as Ace. . . . 

Whittington said Ace was a black male and a student at the University of Maryland -- Eastern Shore. Whittington guessed his age as around 24, and described Ace as having a `short top’ haircut. . . . Whittington said Ace's telephone number was stored in his phone's contacts list. Whittington consented to Princess Anne County Police retrieving the number from the phone, which had been left at the scene. . . .

Detective Sergeant Bozman located Whittington's cell phone and retrieved from [its] contact list the number associated with `Ace Campus.’ [He] typed the number into an Internet search engine and determined that Sprint Communications provided service to that number. [He] contacted Sprint's offices in Kansas to obtain information about the subscriber. 

Sprint faxed an `exigent circumstances’ request form, which Bozman filled in and faxed back. Shortly thereafter, Sprint faxed to Bozman the subscriber information for the telephone number found in Whittington's contact list. [It] indicated Upshur and Desiree Davis were the subscribers for that cell phone number.

Upshur v. State, supra.

Bozman then ordered other officers to put Upshur’s apartment under surveillance and

applied for a search warrant for [his] home and automobile. Before officers obtained the warrant, Upshur and his roommate, Jamal Hood, were observed leaving the apartment. Officers stopped their vehicle, arrested Upshur, and detained Hood for questioning. 

Later, officers obtained a search warrant for Upshur's home and automobile, and executed that warrant. Evidence seized in the apartment and automobile included a sheath to a fixed blade knife, a digital scale, a key for a Lexus automobile, and suspected marijuana, among other items.

Upshur v. State, supra.

On January 11, 2011, the Somerset County State’s Attorney

issued a State's Attorney's subpoena to Sprint for the subscriber information associated with the number Whittington identified as associated with Ace. Sprint provided the same information it had given to Detective Bozman a month prior.

Upshur v. State, supra.

Upshur filed several motions to suppress evidence at trial, which the trial judge eventually denied.  Upshur v. State, supra.  As noted above, he renewed two of his arguments as the propriety of suppressing certain evidence at trial.  Like the Court of Appeals, we’ll begin with the first of the two, in which Upshur claimed officers collected

his identifying subscriber data -- his name and address -- in violation of the Maryland Stored Wire and Electronic Communications and Transactional Records Access Act (`Maryland SCA’), Maryland Code Courts & Judicial Proceedings Article (`CJP’), § 10–4A–01, et seq.  

The [Maryland SCA] provides. . . that a provider of telecommunications services shall not provide a law enforcement officer electronic records, including `name, address, local and long distance telephone connection records, or records of session times and durations . . . or other subscriber number or identity,’ § 10–4A–04(c)(1)(i), unless the officer:

1. Uses a subpoena issued by a court of competent jurisdiction, a State grand jury subpoena, or a subpoena authorized under § 15–108 of the Criminal Procedure Article;

2. Obtains a warrant from a court of competent jurisdiction;

3. Obtains a court order requiring the disclosure under subsection (d) of this section; or

4. Has the consent of the subscriber or customer to the disclosure.

Upshur v. State, supra (quoting CJP § 10–4A–04(c)(2)(ii)).

The Court of Appeals noted that the Maryland SCA “mirrors its federal counterpart, the Electronic Communications Privacy Act,” except that the federal statute “includes an exception for disclosure in exigent circumstances, 18 U.S. Code § 2702(c)(4), which the Maryland statute lacks.” Upshur v. State, supra.

Upshur's subscriber data fell within the definition of `records’ in the Maryland SCA, and Bozman initially requested it “without first obtaining a subpoena, warrant, court order, or Upshur's consent, as required by” that Act. Upshur v. State, supra. Sprint provided the data to Bozman “on the basis of an exigent circumstances form, which would have been sufficient to authorize release under the federal statute,” but which did not satisfy the Maryland SCA. Upshur v. State, supra. The Court of Appeals noted that even if the Maryland SCA “did contain an exception for exigent circumstances, Bozman conceded, in his testimony at the suppression hearing, that there was no such emergency at the time he requested the records from Sprint.” Upshur v. State, supra.

This meant Bozman’s obtaining “Upshur's name and address from Sprint violated” the Maryland SCA. Upshur v. State, supra. Upshur argued that the evidence should, as a result, be excluded and “any evidence police gained as a result of improperly obtaining that subscriber data should also be excluded as fruit of the poisonous tree.” Upshur v. State, supra. The State argued that Upshur's subscriber data was not subject to an exclusionary rule and that, even if it was, the January 11 subpoena was “as an independent source and/or a form of inevitable discovery that removed any taint from the unlawfully obtained evidence.” Upshur v. State, supra.

The Court of Appeals found that to suppress the evidence, Upshur would have to show that an exclusionary rule was available “to redress the violation of the” Maryland SCA. Upshur v. State, supra. Upshur argued that the 4^th Amendment and the Maryland SCA, “considered in combination, mandate exclusion of evidence obtained in violation of the act.” Upshur v. State, supra.

The Court of Appeals found that, under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), individuals generally do not have a 4^th Amendment expectation of privacy in information they voluntarily convey to a third party, such as a phone company.  Upshur v. State, supra. (For more on that, check out this prior post.) The court therefore found that the “threshold question is whether Upshur had an expectation of privacy in his subscriber data, and, if so, the second question is whether society regards this expectation of privacy as reasonable.”  Upshur v. State, supra.  In other words, the court said Upshur would have to show that the information at issue was “private” under the Supreme Court’s holding in Katz v. U.S., 389 U.S. 347 (1967).

The Court of Appeals found it was not protected by the 4^th Amendment, noting that the federal courts to “have considered the issue of an expectation of privacy in subscriber identifying information have all determined there is no such protected expectation”. Upshur v. State, supra.  It said that, “[f]or example, in U.S. v. Bynum, 604 F.3d 161 (2010), the U.S. Court of Appeals for the 4th Circuit determined that a person does not have a reasonable expectation of privacy in subscriber data conveyed to the provider”. Upshur v. State, supra.   

The court therefore held that “Upshur's name and address were not protected by a 4th Amendment right of privacy”. Upshur v. State, supra.  If he had no 4^th Amendment expectation of privacy in the data, the 4th Amendment exclusionary rule would not apply, which would mean the evidence could not be suppressed on that basis.

The Court of Appeals found, however, that the lack of a 4th Amendment remedy did not

end our inquiry . . . because police in this case did . . . violate CJP § 10–4A–04(c)(2)(ii), and Upshur claims that violation of that statute should lead to the exclusion of evidence obtained by such violation. Nevertheless, the Court of Appeals has held that Maryland courts may not . . . create an exclusionary rule where one does not exist: `In the absence of statute or a rule promulgated by this Court, the Circuit Court does not have the inherent power to create an exclusionary rule of evidence under a statute that itself does not have an exclusionary rule.’ Thompson v. State, 395 Md. 240, 909 A.2d 1035 (Maryland Supreme Court 2006). . . .

Upshur v. State, supra.  

The Court then explained that the Maryland SCA

does not provide any remedy requiring courts to exclude evidence obtained by law enforcement officers who fail to comply with the act. Rather, the remedy for a violation of this statute is a civil suit for equitable or declaratory relief and money damages. See CJP §10–4A–08.

Upshur v. State, supra.  

Upshur argued that the

very existence of the [Maryland SCA] indicates that the Maryland legislature intended to provide citizens with greater protection of privacy in the information defined as records in CJP § 10–4A–04(c)(1)(i), and we should infer a legislative intent to exclude evidence obtained in violation of the act. 

The legislature, however, is capable of expressly providing a suppression remedy when it intends to do so, as it did when it included a suppression remedy in the Wiretapping and Electronic Surveillance Act, enacted prior to the Stored Communications Act. See CJP § 10–405(a). Accordingly, we will not create a suppression remedy for Upshur where the legislature did not create one at the time it enacted the statute.

Upshur v. State, supra.  

The Court of Appeals therefore held that “[b]ecause we conclude Upshur's name and address were not protected by the 4th Amendment after he provided that information to Sprint, we need not reach the question . . . about the effect of the subpoena issued by the State's Attorney to an out-of-state witness.”  Upshur v. State, supra.  Because of that, and because it also rejected his argument that the witness identification was not reliable, the court affirmed Upshur’s convictions and sentence.  Upshur v. State, supra.  

The Court-martial, Child Pornography and “Original Images”

After being convicted by a military judge “sitting as a general court-martial” of “knowingly and wrongfully possess[ing] eleven (11) images of child pornography, which conduct was prejudicial to good order and discipline in the Armed Forces and was of a nature to bring discredit upon the Armed Forces,” in violation of Article 134 of the Uniform Code of MilitaryJustice, Craig Rankins appealed.  U.S. v. Rankins, 2012 WL 5077656 (U.S. Army Court of Criminal Appeals 2012). 

More precisely, Rankins appealed after he was convicted and sentenced to “a bad-conduct discharge, confinement for nineteen months, and reduction to the grade of E–1.”  U.S. v. Rankins, supra.  (He was apparently a Specialist when the events described below occurred.  U.S. v. Rankins, supra.)

As Wikipedia notes, the Uniform Code of Military Justice “is the foundation of military law in the United States.”  The UCMJ is codified in Title 10 of the U.S. Code.  As Wikipedia explains, Congress created the UCMJ

in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that `The Congress shall have Power . . .To make Rules for the Government and Regulation of the land and naval forces.’

Article 134 of the UCMJ is codified as 10 U.S. Code § 934 and provides as follows:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

Rankin raised three issues on appeal:  (i) that the military judge erred in not suppressing evidence seized from his computer; (ii) that he erred in not suppressing a statement to an Agent of the U.S. Army Criminal Investigative Division Command because it was “coerced”; and (iii) that the evidence was “legally and factually insufficient to support the finding of guilty for knowingly and wrongfully possessing child pornography images. U.S. v. Rankins, supra. 

To understand the first issue, it is necessary to understand how the child pornography on Rankins’ computer came to light.  On September 25, 2008, Rankins

brought his personal laptop computer to his place of duty, the `fuel standby shack’ on Forward Operating Base (FOB) Iskan, Iraq. [His] duties at that location included standing by to issue fuel to those who might need it. Around 1200 that day, SPC TM temporarily relieved [Rankins], and [he] left the shack to update his Servicemembers Group Life Insurance (SGLI) form. When [Rankins] left, his computer was open and running in plain view.

Specialist TM sat down at the desk with [Rankins’] laptop computer and saw it was playing a `Japanimation video.’ After `roughly five minutes,’ SPC TM closed the` Japanimation video’ to look for something else to play on [Rankins’] computer. 

Specialist TM clicked on a folder titled `recently changed’ in order to find a movie to play. Instead, SPC TM viewed `thumbnail images of child pornography’ and saw film titles that indicated the files contained child pornography.

[At the court-martial], Specialist TM testified that it was common for soldiers to use another's computer to watch movies. This was done to help pass the time during a standard twelve hour shift at the fuel shack. 

Specialist TM's squad leader, SGT MS, entered the fuel shack that day minutes after SPC TM found the images on [Rankins’] computer. When SGT MS entered the shack, SPC TM showed him what he had found on [the] computer.

U.S. v. Rankins, supra.

In addressing Rankins’ first argument, the Court of Appeals explained that under the

4th Amendment, a `search’ constitutes `a government intrusion into an individual's reasonable expectation of privacy.’ U.S. v. Daniels, 60 M.J. 69, 71 (U.S. Court of Appeals for the Armed Forces 2004). To determine if [Rankin] had a reasonable expectation of privacy in his computer files . . . we must ask `first, whether the individual by his conduct has exhibited an actual (subjective) expectation of privacy and, second, [whether] the expectation [is] one that society is prepared to recognize a reasonable.’  Id. (quoting Katz v. United States, 389 U.S. 347 (1967)).

U.S. v. Rankins, supra.  (For more on the Katz test, check out this prior post.)

The Court of Appeals found that Rankins did not have a reasonable expectation of privacy in the files on his computer, for two reasons:

First, [he] never prohibited SPC TM from using his computer or otherwise took measures to restrict the use of his computer by another fellow soldier. While the computer may have had a password protection feature, [Rankins] did not activate this feature prior to leaving the shack. In fact, he did not turn his computer off, carry his computer with him, or take any other steps to prevent third-party use of his computer prior to leaving the fuel shack. Thus, [his] conduct did not subjectively exhibit any actual expectation of privacy. . . .

Second, [Rankins’] failure to take affirmative measures to limit a fellow soldier's access to his computer in an area readily accessible by others makes any expectation unreasonable. See U.S. v. Barrows, 481 F.3d 1246 (U.S. Court of Appeals for the 10th Circuit 2007) (stating `[t]hose who bring personal material into public spaces, making no effort to shield that material from public view, cannot reasonably expect their personal materials to remain private’). . . .

U.S. v. Rankins, supra.  The court therefore rejected Rankins’ first argument.  U.S. v. Rankins, supra. 

And the Court of Appeals quickly rejected Rankins’ argument that the statement he gave to the investigator was coerced.  It noted that the interrogation was relatively short and the investigator (SA MH) gave Rankins the Miranda warnings, added to which his “age (28), education (high school graduate), military experience (over five years), intelligence (103 GT score)” indicated that his will was not easily overborne, which is what is needed to show that a confession was coerced and therefore violated due process of law. The court therefore rejected Rankins’ second argument.

Finally, the Court of Appeals rejected Rankins’ argument that the evidence was “legally and factually insufficient to support the finding of guilty”.  U.S. v. Rankins, supra.  It noted, first, that Rankins admitted to his interrogator, SA MH, that he

`did possess child pornography’ and recognized in August 2008 that the images depicted in files on his computer constituted child pornography. He admitted he moved these files into a separate folder on his computer. 

While [Rankins] stated he intended to delete the images in this separate folder at a later time, he admitted he maintained them for at least a month and that the images of child pornography could still be found on his computer despite the fact he eventually deleted the folder.

U.S. v. Rankins, supra. 

The Court of Appeals also cited the testimony of Special Agent BM,

an expert in the field of computer forensic examinations. Special Agent BM found child pornography images in a folder titled `original images,’ which is hidden from the user under the normal, default computer settings. An image goes into the `original images’ folder only after the user edits the original condition of a file. 

Thus, the `original images’ hidden folder only contains copies of images in their original, unedited version, and SA BM testified that the images in the `original images’ folder were created on 28 August 2008.

Moreover, SA BM testified even if a user deletes an image, it will remain in the unallocated space of the computer until it is overridden by other files. Thus, SA BM expected to find images in the unallocated space of [Rankins’] computer. 

However, SA BM did not find a single image (child pornography or otherwise) in the unallocated space of [the] computer. This led SA BM `to conclude that more than likely an application of some sort had been run to wipe the unallocated space, to render files unrecoverable that were perhaps resident in [the] unallocated space.’

U.S. v. Rankins, supra. 

The Court of Appeals therefore found that Rankins’

statement and SA BM's testimony regarding his forensic examination of [Rankins’] computer provide ample support for the finding that [he] knowingly possessed images of child pornography. [Rankins] admitted to possessing child pornography, edited images of child pornography, and then took steps to delete the images from the unallocated space of his computer.

U.S. v. Rankins, supra. 

So the court found “the findings of guilty and the sentence as approved by the convening authority to be correct in law and fact”, and so affirmed both.  U.S. v. Rankins, supra.