Divorce, Joint Custody and the Emails

This post examines a recent opinion from the Court of Appeals of Kentucky:  Wedding v. Harmon, 2016 WL 1534682 (2016).  The court begins the opinion by explaining that

John Michael Wedding (Father) appeals an order of the Jefferson Family Court granting Heather Lynn Harmon's (Mother) motion to prohibit Father from harassing her by copying and forwarding routine co-parenting emails to individuals within the parties' local community and from sending mass emails to the parties' friends, family and other members of their community regarding the parties' dissolution, custody proceedings and co-parenting. Father's sole contention on appeal is that the order is an unconstitutional infringement on his speech.

Wedding v. Harmon, supra.

It went on to provide the factual and litigation background of the case, to this point:

The parties, who married September 27, 2003, have two children together. They were divorced on August 27, 2013, and were awarded joint custody with a shared parenting schedule that divided parenting time equally. Pursuant to a separate visitation order of the same date, the mode of communication between the parties was limited to email.

The order stated in pertinent part:

The parties shall continue to communicate regarding the children by e-mail only. The content of the e-mails shall be restricted to factual information specifically regarding the children, the parenting schedule, and parenting issues only.

Wedding v. Harmon, supra.

The court goes on to explain that,

[s]ubsequently on May 28, 2014, Mother moved the family court to prohibit the parties from sharing their co-parenting email communications with third parties after Father began forwarding and copying the emails to their oldest child's teacher, the child's classmates' parents, and members of Mother's family. In her motion Mother alleged Father's conduct was destructive to the co-parenting process and embarrassing to the parties and their children. The motion was called on June 2, 2014. After argument by counsel, the family court admonished Father.

However, the court declined to rule on Mother's motion, stating:

`Mr. Wedding, I will direct my comments to you sir. This goes beyond bad form. It is a form of harassment and intimidation. It does embarrass the children. It makes the other person copied uncomfortable. The person who will look bad for sending this email is not Dr. Harmon, it is you. It puts other people uncomfortably in the middle of the friction between you and your ex-wife and they don't want to hear that. If I get continued behavior like that I will reconsider the Motion. These are just out of line.’

Father failed to heed the family court's admonishment, copying the oldest child's teacher on a September 24, 2014 email to Mother, explaining:

`I've copied Mrs. English on this email so she will know that the blue folder will be kept in [our daughter's] backpack. Mrs. English, this is done because Heather chooses to communicate via email only and even though I disagree with it, I will oblige until hopefully addressed and changed through our court system. Heather, thank you for communicating and meeting [me and our daughter] at her doctor's appointment last Thursday morning. I'm glad that you and I didn't have to email our dialogue back and forth while we were both alone in the same small exam room with [our daughter]. That might have been a little weird.’

Wedding v. Harmon, supra.

The opinion goes on to explain that on

a separate occasion Father sent an email to hundreds of individuals, including teachers and school administrators, parents of classmates, and others within the parties' community, wherein he recounted the pain, misery and struggle of his divorce. The email implored the recipients to talk to both of the parties about their divorce and allegations of domestic violence so the recipients could `form their own opinion based on facts’ and `help [the parties] heal in [their] own way and help hold [the parties] accountable for [their] own actions.’

Mother subsequently filed another motion, alleging Father's conduct was malicious harassment intended to embarrass, coerce, and hurt Mother. She also alleged it was harmful to her professional reputation, destructive to the co-parenting process and embarrassing the children, damaging their relationship with friends, friends' parents and teachers.

The motion was called on November 26, 2014, and the family court heard testimony from Mother, Father, and Mark Parish, a licensed marriage and family therapist who had counseled Mother through the divorce and co-parenting process.

Finding Father's continued conduct would ostracize the parties' children and jeopardize Mother's business, the family court granted Mother's motion and ordered the parties not to forward to others any private email communications between themselves and not to email others with comments regarding the interaction of the parties, the communication between the parties, the details of the parties' divorce, or any arrangements to be made through the parties. Concurrently, the family court held Father in contempt after he failed to timely return the children on the day they were scheduled to leave on vacation with Mother. Father now appeals.

Wedding v. Harmon, supra.

The court inserted a footnote after the reference to domestic violence in one of the passages above, which included the following information:
Mother filed a petition for emergency protective order immediately preceding her petition for dissolution. We affirmed the family court's denial of a domestic violence order in Harmon v. Wedding, 2013 WL 2150681 (Kentucky Court of Appeals  May 17, 2013).

Wedding v. Harmon, supra.

The Court of Appeals then outlined the “standard of review” it would employ in reviewing the propriety of the Family Court order described above:

At its essence, the focus of this appeal is upon the propriety of court-ordered injunctive relief. Our standard of review is set forth in [Kentucky Rules of Civil Procedure] 52.01, which states:

[I]n granting or refusing temporary injunctions or permanent injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. . . . Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. . . .

See Rogers v. Lexington–Fayette Urban County Government, 175 S.W.3d 569 (Kentucky Supreme Court 2005). To determine if findings are clearly erroneous we look to see if they are without adequate evidentiary support or occasioned by erroneous application of the law. Oakwood Mobile Homes, Inc. v. Sprowls, 82 S.W.3d 193 (Kentucky Supreme Court 2002).

Domestic relations cases allow broad discretion to the trial court which hears the cases without a jury. The legal standards a judge must apply in these cases demonstrate the need for such discretion. . . . Clearly, the court must make its judgment based on how it perceives the effect of the evidence on the question to be resolved. And, as we have often said, due deference must be given to the judgment of the court that hears the evidence, knows the facts of the case, and can judge the credibility of the witnesses.

McFelia v. McFelia, 406 S.W.3d 838 (Kentucky Supreme Court 2013).

Wedding v. Harmon, supra.  The Court of Appeals also noted that

[s]imilarly, `injunctive relief is basically addressed to the sound discretion of the trial court. Unless a trial court has abused that discretion, this Court has no power to set aside the order below.’ Maupin v. Stansbury, 575 S.W.2d 695, 697–98 (Kentucky Court of Appeals 1978) (citations omitted).

Wedding v. Harmon, supra. 

The court then began its analysis of the issues in this case, explaining that

Father argues the family court's order is unconstitutional in that it infringes on his right to freedom of speech under the First Amendment of the United States Constitution and Section 8 of the Kentucky Constitution. We affirm the order of the family court because: (1) Father's emails were constitutionally unprotected conduct intended to harass, annoy or alarm Mother; (2) the injunction was narrowly drawn to proscribe Father's unprotected conduct; and (3) the best interest of the children are supported by the family court's limitation on Father's speech.

Wedding v. Harmon, supra. 

The court went on to analyze the merits of “Father’s” First Amendment argument:

`At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.’ Hustler Magazine,Inc. v. Falwell, 485 U.S. 46 (1988). Very few restrictions upon the content of speech are permitted. R.A.V. v. St. Paul, 505 U.S. 377 (1992). `The United States Supreme Court has recognized a tension between protection of reputation and protection of freedom of expression, which is the strongest when there is a media defendant, the subject matter is one of public interest or the plaintiff is a public official or a public figure.’ Hill v. Petrotech Resources Corp., 325 S.W.3d 302 (Kentucky Supreme Court 2010) (citations omitted). `This case does not come close to implicating such weighty concerns. Nevertheless, it is clear that even where a purely private matter between private parties is at issue, the defendant's freedom of expression is still implicated and the First Amendment still affords some, though less substantial, protections.’ Id. (citing Innes v. Howell Corp., 76 F.3d 702 (U.S. Court of Appeals for the 6^th Circuit 1996)).

Wedding v. Harmon, supra. 

The opinion then points out that

[y]et `[o]ur freedom of speech does not include freedom to convey messages when, where, and how one chooses. That right must be adjusted to the rights of others.’ Yates v. Commonwealth, 753 S.W.2d 874 (Ky.App.1988) (citing Breard v. Alexandria, 341 U.S. 622 (1951)); see also [Kentucky Revised Statutes] 535.050 (criminalizing communication that is intended to harass, annoy or alarm another person). Accordingly, various kinds of communication are subject to regulation or outright preclusion by governmental action when they run afoul of established principals of law or policy. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982).

Wedding v. Harmon, supra. 

The Court of Appeals then began the process of applying the standards outlined above to this case, noting, initially, that

Father construes the family court's order as a prior restraint on his speech, and relies on Hill v. Petrotech Resources Corp., 325 S.W.3d 302 (Kentucky Supreme Court 2010), to support his argument. In Hill the defendant contacted plaintiff's business associates and investors, called plaintiff a crook and scam artist, and published similar statements on industry web sites. Plaintiff filed suit alleging defendant's speech was defamatory and sought an injunction on that basis. Without holding a hearing to determine the truth or falsity of defendant's speech, the trial court concluded defendant's speech was defamatory and entered an order enjoining defendant from contacting plaintiff's customers, clients, investors or business associates, and from publishing any defamatory comments related to plaintiff's business.

We denied the defendant's motion for interlocutory relief, but the Kentucky Supreme Court accepted discretionary review and as a matter of first impression, adopted a modern approach to analyzing claims for injunctive relief against defamatory statements or invasions of privacy. Hill v. Petrotech Resources Corp., supra; see Lassiter v. Lassiter, 456 F.Supp.2d 876 (U.S. District Court for the Eastern District of Kentucky 2006) aff'd, 280 Fed.Appx. 503 (U.S. Court of Appeals for the 6th Circuit 2008). It held that when a court is afforded the opportunity to rule on the propriety of such injunctions, it would do so only under the following standard:

1. That the injunction be clearly and narrowly drawn so as not to prohibit protected expression;

2. That the falsity or illegality of the expression be finally adjudicated prior to the issuance of the injunction;

3. That the falsity or illegality be established by at least a preponderance of evidence;

4. That the enjoined expression not be political in nature, or otherwise protected by the First Amendment, or on a subject so imbued with the public interest that its publication outweighs the social policy in the protection of reputation and privacy; and

5. That the usual equitable requirements for an injunction be met.

Hill v. Petrotech Resources Corp., supra. . . .

Applying this modern standard to the circumstances in Hill, our Supreme Court found the trial court's order was an unconstitutional prior restraint because the order enjoined all defamatory speech and was thus overbroad, and because the trial court failed to hold a hearing and make a final adjudication of whether the defendant's speech was constitutionally protected before enjoining the speech.

Wedding v. Harmon, supra. 

The Court of Appeals then returned its analysis to the issues in this case, explaining that

[w]e disagree with Father's analogy to Hill. Although the enjoined speech in both Hill and the instant case affect a party's reputation, there are significant factual and procedural distinctions between the two cases. In contrast to Hill — where the trial court's order proscribed all speech that was defamatory—here the court's restrictions were narrowly drawn. And unlike Hill, the family court held a hearing before determining Father's conduct was unprotected. Most importantly, Father's speech also affected the children's interests, a concern upon which our law places perhaps the greatest emphasis.

While neither party's brief applies the modern standard set forth in Hill to the circumstances of this case, our application leads us to conclude that the family court's order enjoining Father's harassing conduct was not an abuse of discretion. First, the injunction was narrowly tailored to prohibit only unprotected speech. Second, because the court held a hearing there was a final adjudication prior to issuance of the injunction. Third, substantial evidence supports the family court's determination the enjoined speech was unprotected. Fourth, Father's speech was not subject to heightened scrutiny because of the nature of the speech.

And finally, the balance of equities weigh in favor of enjoining Father's conduct because Mother has a right to be left alone; Father's conduct runs counter to the best interests of his children; the Commonwealth has a compelling interest in protecting its youngest citizens; and the public has a limited interest in receiving the content of Father's communications or receiving it by email. Plainly, Father's interference with Mother's privacy and his children's well being outweighs his absolute exercise of his right of free speech.

Wedding v. Harmon, supra. 

The court therefore held that

[w]hile the family court's order restricts Father's ability to convey specific, private content through email, its conclusion that Father's speech was unprotected was supported by substantial evidence of record and its order was consistent with the modern approach adopted in Hill. Accordingly, we find no abuse of discretion and AFFIRM the order of the family court.

Wedding v. Harmon, supra.  

Child Pornography, the Unit of Prosecution and the Rule of Lenity

This post examines an opinion from the Court of Appeals of New Mexico:  State v. Sena, 2016 WL 1063166 (2016).  The court, as courts usually do, began by explaining how, and why, the prosecution arose:

This case arose after Defendant acquired and retained possession of several digital images of child pornography through peer-to-peer software and stored these images on the hard drive of his computer in a `shared’ file, thus allowing other users of this peer-to-peer software to download the images stored in the shared file on Defendant's computer. Los Lunas Police Officer Aaron Chavez was monitoring child pornography on the internet when he discovered that Defendant possessed several images of child pornography on his computer.

On October 21, 2010, Officer Chavez used peer-to-peer software to locate and download three separate still images of child pornography from the shared file on Defendant's computer. On November 4, 2010, Officer Chavez again used the peer-to-peer software to download an additional seven separate still images of child pornography from the shared file on Defendant's computer. Based upon the content of the shared file on Defendant's computer, he was indicted for twenty counts of possession of child pornography, contrary to Section 30–6A–3(A), and ten counts of distribution of child pornography, contrary to Section 30–6A–3(B).

On September 6, 2013, Defendant initially pled guilty to all ten counts of distribution of child pornography. Each count was represented by a still image that Officer Chavez downloaded from the shared file on Defendant's computer and separately identified in the grand jury indictment. Sentencing on the ten counts was postponed until April 28, 2014. On April 21, 2014, the Supreme Court issued its opinion in the Olsson case, addressing the statutory construction of Section 30–6A–3(A) regarding the unit of prosecution for possession of child pornography, and held that the rule of lenity applies to the possession of multiple images of child pornography. State v. Olsson, 324 P.3d 1230 (Supreme Court of New Mexico 2014) (consolidating the appeals filed by two separate defendants, James Olsson and Willard Ballard).

Olsson did not specifically address the application of its holding to related issues involving distribution of child pornography. State v. Olsson, supra. The parties agreed to amend Defendant's plea agreement to make it a conditional plea, allowing Defendant to appeal the issue of whether the Supreme Court's holding in Olsson (specifically referring to defendant Ballard whose case was consolidated with defendant Olsson) also applied to multiple convictions for distribution of child pornography. Defendant then filed this appeal.

State v. Sena, supra. 

Next, the court explained what the issue before the court was and what the respective positions of the parties were:

The issue presented is whether subsequent access or transfer of Defendant's shared file images, that a third party is capable of accomplishing without Defendant's further knowledge or involvement, support separate and distinct charges for distribution of child pornography against Defendant. Defendant argues that charging for distribution of child pornography under Section 30–6A–3(B) should be controlled by Olsson, and, as a result, he can only be convicted on a single count based upon the one `shared’ file created on his computer. By pleading guilty, Defendant stipulated that possessing child pornography images in a `shared’ file accessible on peer-to-peer software that third parties can download did create a sufficient factual basis to support a charge of distribution of child pornography.

Defendant argues that the act of making this singular file available for download was a unitary act and this was his only act of distribution under the facts in this case. In addition, Defendant also argues that the act of distribution is not inherently committed one image at a time, the statutory definition utilized to determine the unit of prosecution for distribution of child pornography is ambiguous, and the rule of lenity must be applied in this case.

The State asserts this case is controlled by State v. Leeson, 149 N.M. 823, 255 P.3d 401 (New Mexico Court of Appeals 2011), and that Defendant's ten convictions did not violate double jeopardy. It argues that the legislative intent behind the statute criminalizing distribution of child pornography is to protect children from continued exploitation through dissemination of the recorded images of their abuse, and the file sharing that occurred in this case is the type of dissemination the statute prohibits.

The State argues that—just like in Leeson, where we held that the defendant could be charged separately for each image created—a separate charge is appropriate for each image of child pornography that is distributed. The State acknowledges our Supreme Court's holding in Olsson but argues that the Olsson decision should be limited solely to the unit of prosecution for possession of child pornography. Accordingly, the State requests that all of Defendant's convictions be affirmed.

State v. Sena, supra. 

The court went on to explain what “standard of review” it would employ in reviewing Sena’s argument, and his convictions: 

Under the Act, issues regarding the unit of prosecution are addressed as a matter of law and subject to de novo review. State v. Olsson, supra. We now address the district court's decision de novo.

State v. Sena, supra. 

The Court of Appeals began its analysis by examining the relevant unit(s) of prosecution:

Double jeopardy protects defendants against multiple punishments for the same offense. New Mexico Constitutionarticle II, § 15; State v. Pierce, 110 N.M. 76, 792 P.2d 408 (New Mexico Supreme Court 1990); see Benton v. Maryland, 395 U.S. 784 (1969). The number of separate acts that may be prosecuted under one criminal statute, known as a unit of prosecution case, is a scenario that can trigger a double jeopardy violation. State v. Leeson, supra. In unit of prosecution cases, the defendant is charged with multiple violations of a single statute based upon acts that may or may not be considered a single course of conduct. State v. Barr, 127 N.M. 504, 984 P.2d 185 (New Mexico Supreme Court 1999). To determine the correct unit of prosecution, the relevant inquiry is `whether the [L]egislature intended punishment for the entire course of conduct or for each discrete act’ undertaken by a defendant. Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (New Mexico Supreme Court 1991).

To determine the legislative intent for establishing the unit of prosecution in any particular case, the courts employ a two-part test. State v. Gallegos, 149 N.M. 704, 254 P.3d 655 (New Mexico Supreme Court 2011). First, courts look to the plain language of the statute to determine if the Legislature has defined the unit of prosecution. State v. Swick, 2012–NMSC–018, ¶ 33, 279 P.3d 747 (New Mexico Supreme Court 2012). If so, the inquiry is complete and proceeds no further. State v. Swick, supra.

If the unit of prosecution is not clearly defined in the plain language of the statute, courts usually proceed to analyze whether a defendant's acts are separated by sufficient `indicia of distinctness’ to justify multiple punishments. State v. Gallegos, supra (internal quotation marks and citation omitted). In determining distinctness, the district court reviews six factors that were originally articulated in Herron v. State, 111 N.M. 357, 805 P.2d 624 (New Mexico Supreme Court 1991). As applied to the Act, the Herron factors are described to be: (1) time between criminal acts, (2) location of the victim during each act, (3) existence of any intervening events, (4) distinctions in the manner of committing the acts, (5) the defendant's intent, and (6) the number of victims. See State v. Olsson, supra. If there is not sufficient distinctness between the acts that are separately charged, the rule of lenity applies. Herron v. State, supra. Under the rule of lenity, doubt is resolved in a defendant's favor and against turning a single act into multiple offenses. Id.

State v. Sena, supra. 

The court went on to note that

[t]wo New Mexico cases have provided specific guidance regarding the unit of prosecution for charges under the Act. See State v. Olsson, supra; State v. Leeson, supra. In Olsson, our Supreme Court considered the unit of prosecution issue as applied to possession of child pornography. In State v. Leeson, this Court considered the unit of prosecution issue as applied to manufacturing of child pornography. Neither court addressed the unit of prosecution issue as applied to the distribution of child pornography.

State v. Sena, supra. 

Regarding these two cases, the court explained that in

Olsson, our Supreme Court held that the statutory language addressing possession of child pornography was ambiguous.  State v. Olsson, supra.  An ambiguity existed because the statutory definition for what constitutes a `visual or print medium’ contains both singular types of images, such as a photograph or slide, and multiple types of images, such as a book, diskette, or film. State v. Olsson, supra; Section 30–6A–2(B). Given this contrast, a plain meaning as to the correct unit of prosecution for possession of child pornography was not readily apparent. State v. Olsson, supra.  Additionally, our Supreme Court found that the legislative history and purpose of Section 30–6A–3 do not define a clear unit of prosecution and that the Herron test of distinctness does not apply in possession cases. State v. Olsson, supra.

It determined that the Herron factors apply where a defendant has direct 2 contact with a victim, but these factors do not translate to possession cases because many of the factors are irrelevant to possession or are inconclusive if applicable. State v. Olsson, supra. Because the statutory language was `insurmountably ambiguous’ and the indicia of distinctness factors could not be applied in possession cases, the rule of lenity was applied in the defendant's favor. State v. Olsson, supra. Thus, the Court held that only one count of possession of child pornography could be imposed. State v. Olsson, supra.  

In Leeson, this Court considered the unit of prosecution as applied to the act of manufacturing child pornography. State v. Leeson, supra. This Court found that the unit of prosecution for manufacturing child pornography under Section 30–6A–3(D) was readily discernible and that a separate charge could be brought for each image created. State v. Leeson, supra.

To manufacture is specifically defined in the Act as engaging in `the production, processing, copying by any means, printing, packaging, or repackaging of any visual or print medium’ depicting child pornography. Section 30–6A–2(D). Thus, under a plain language analysis of this separate statutory wording, each photograph taken is a distinct action involving a victim and a distinct violation of the statute State v. Leeson, supra. As a result, this Court determined that the prosecution of the act of manufacturing each separate photograph did not violate double jeopardy. State v. Leeson, supra.

State v. Sena, supra. 

The Court of Appeals then took up the issue involved in this appeal, noting that

to determine the unit of prosecution for distribution of child pornography, we must now consider the language of Section 30–6A–3(B) and try to give effect to the legislative intent. State v. Leeson, supra. `If the statute does not clearly define the unit of prosecution, we must determine whether the different offenses are separated by sufficient indicia of distinctness.’ State v. Leeson, supra. (internal quotation marks and citation omitted).

State v. Sena, supra. 

It went on to explain that Section 30–6A–3(B) states: 

It is unlawful for a person to intentionally distribute any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts any prohibited sexual act or simulation of such act and if that person knows or has reason to know that one or more of the participants in that act is a child under eighteen years of age.

`[V]isual or print medium’ is defined as:

(1) any film, photograph, negative, slide, computer diskette, videotape, videodisc or any computer or electronically generated imagery; or

(2) any book, magazine or other form of publication or photographic reproduction containing or incorporating any film, photograph, negative, slide, computer diskette, videotape, videodisc or any computer generated or electronically generated imagery[.]

State v. Sena, supra. 

The court then explained that the

wording used in Section 30–6A–3(B) for distribution of child pornography is the exact same language used in Section 30–6A–3(A) regarding possession of child pornography except for one word; the word `distribute’ is used in place of the word `possess.’  Neither `possess’ nor `distribute’ is defined elsewhere in the Act. Because the identical statutory language is utilized by the Legislature, we conclude that our Supreme Court's analysis in State v. Olsson is the most applicable statutory construction precedent and Olsson should guide our analysis in the present case.

We hold that the use of the word `distribute’ in Section 30–6A–3(B) in place of the word `possess’ under Section 30–6A–3(A) reflects an identical ambiguity with regard to the interpretation of the unit of prosecution. Therefore, consistent with Olsson, we agree that the statutory language in Section 30–6A–3(B) is ambiguous regarding the intended unit of prosecution for distribution of child pornography. State v. Olsson, supra.  As recognized in Olsson, the same controlling definition of `visual or print medium’ that is set forth in Section 30–6A–2(B) of the Act, providing for both singular and multiple types of images, also applies to factual scenarios involving acts of distribution rather than simple possession. State v. Olsson, supra. The history and purpose of Section 30–6A–3 discussed in Olsson similarly fails to provide further guidance as to a clear unit of prosecution in either scenario. State v. Olsson, supra.  

State v. Sena, supra. 

The court then went on to address a related issue, explaining that

[w]hile distribution may align with possession in certain factual scenarios, we must address how both may differ with manufacturing under State v. Leeson, supra. The language of Section 30–6A–3(D) for the manufacture of child pornography differs from the language for possession and distribution. Notably, Section 30–6A–3(D) defines manufacture somewhat differently than possession and distribution, and Section 30–6A–2(D) provides a more specific and detailed definition for the word `manufacture.’ This Court recognized that this more specific definition of `manufacture’ provides the proper unit of prosecution as to each image manufactured. State v. Leeson, supra. 

Both distribution and possession lack this additional defined clarity. Furthermore, this Court in Leeson distinguished manufacturing from possession, noting having been troubled by what the Legislature intended by the word `possess’ and `questioned whether [it] meant to criminalize the possession of a collection of child pornography or the possession of each individual image within a collection.’ State v. Leeson, supra. Because the statutory definition of distribution is similarly ambiguous and applies the identical definition for `visual or print medium’ used to define possession, our holding in State v. Leeso, supra, only confirms the same concerns that were addressed and resolved by our Supreme Court in State v. Olsson.

State v. Sena, supra. 

The court then took up the issue in this case, noting, initially, that

[w]ith the unit of prosecution for distribution of child pornography unclear from the statute and legislative history, we must ultimately consider whether Defendant's acts have sufficient distinctness to justify multiple punishments. As concluded in State v. Olsson, supra, the Herron factors to determine distinctness should apply when a defendant is charged with having direct contact with the victim. Distribution of child pornography does not entail direct contact with a child victim and Defendant was not charged with any direct contact with a victim in this case.

Assuming without deciding that an individual receiving a distribution of child pornography can be considered `a separate type of victim’ under Section 30–6A–3(B) and the Herron factors should be applied, Defendant's actions in this case were not shown to be distinct with regard to any images placed in the `shared’ file. No multiplicity of separate actions was alleged to have occurred. No evidence was presented to establish that Defendant personally sent any image to a third party. Even Officer Chavez established that he could download one or more of the images located in Defendant's shared file at any one time, without any indicia of distinctiveness that can be attributed to Defendant.

State v. Sena, supra. 

The court therefore found that

the Herron factors to establish distinctness, if applicable to separate acts of distribution of child pornography, did not exist in this case.

Finally, we turn to the rule of lenity. Just as the rule of lenity was applied to the ambiguity regarding the unit of prosecution in State v. Olsson, it also applies to Defendant's actions regarding the distribution of child pornography in this case. . . .  

Defendant created one distinct computer file containing multiple images of child pornography. Defendant does not dispute that he committed an act of distribution of child pornography by making his file accessible through peer-to-peer sharing software. Defendant did not perform any other readily discernible act that would justify a separate, distinct, additional charge of distribution. The rule of lenity applies to limit the number of charges and convictions upon which Defendant may be found guilty. That number is one. The indirect actions of accessing Defendant's shared computer file by Officer Chavez do not support additional charges of distribution under the current statutory language of Section 30–6A–3(B). Accordingly, to prevent double jeopardy, Defendant's ten convictions for distribution of child pornography are now reduced to one.

This Court does not address, and is specifically reserving the question of, whether multiple actions undertaken by some other defendant to affirmatively share images of child pornography with a third party may constitute separate acts of sufficient distinctiveness to warrant multiple units of prosecution for the distribution of child pornography under the Act and the current statutory language of Section 30–6A–3(B).

As our Supreme Court respectfully recommended in State v. Olsson, this Court also requests that the Legislature consider clarification and specificity regarding the intended unit of prosecution for possession of child pornography and the distribution of child pornography, especially in light of rapidly advancing technology and changes in society regarding the use of the internet.

State v. Sena, supra. 

The court therefore held that,

[f]or the reasons set forth herein, we reverse all but one of Defendant's convictions for distribution of child pornography. We further remand this case to the district court to correct Defendant's judgment and sentence and to conduct any further proceedings that may be necessary to effectuate this Court's decision.

State v. Sena, supra. 

You can, if you are interested, read more about this case and this opinion in the news stories you can find here and here.

The Apple Iphone4, Prostitution and the Search Warrant

This post examines an opinion from the Supreme Court – Bronx County, New York:  People v. English, 2016 WL 1424493 (2016).  The opinion begins by explaining that

[o]n November 16, 2013, defendant was arrested and charged in a felony complaint with attempting to kidnap and compel then fourteen-year-old T.C. to engage in prostitution. Incident to defendant's arrest, an Apple Iphone 4 was seized from his person. Later that evening, at 8:30 p.m., a Judge of the Criminal Court signed a search warrant that authorized the search of the contents of the seized cellphone (Search Warrant B371–2013), as well as a search warrant that authorized the search of the premises where the incident took place—1995 Davidson Avenue, Apartment B2 (Search Warrant B372–2013).

People v. English, supra.

Next, the court explains that “[i]n pertinent part,” Search Warrant B372–2013

authorizes law enforcement to search the cellphone seized from defendant at the time of his arrest and to acquire:

any and all numbers, text messages (SMS), picture messages (MMS) and direct connect contained within said cellar telephone which are believed to have been used in furtherance of the attempted kidnaping of T.C., and any and all evidence tending to establish ownership of the cellular telephone and connect persons to said cellular telephone.

The affidavit attached thereto, sworn by Police Officer Johnny Chalen, states that defendant first met T.C. in September 2013 in an online chatroom, that they exchanged text messages on their respective cellphones, that on November 16, 2013, they met in person at defendant's apartment at 1995 Davidson Avenue, and that while inside defendant's apartment, defendant asked T.C. to work as a prostitute and showed her photos of male clients that were stored on his computer. When T.C. refused defendant's entreaties, defendant placed a gun to her head and did not allow her to leave the apartment. (See Affidavit of Police Officer Chalen at ¶¶ 5–7.) Pursuant to this search warrant, Police Officer Jonathan Reifer of the NYPD, Computer Crime Squad searched the contents of the seized cellphone utilizing forensic software that extracts data from cellphones and converts it into a format readable to a layperson. It is uncontested that all of the text messages, chat logs, emails, locations, images and video that were contained on the cellphone were recovered from it. (See Exhibits C and D attached to defendant's motion.) It is also uncontested that, although the forensic software permitted a trained user to limit the search of the cellphone by keyword, date, time, and type of file, no such limitations were utilized by Officer Reifer.

Included in what was recovered from this cellphone are conversations between defendant and his male clients about T.C. and conversations between defendant and T.C. (See People's Memorandum of Law at p. 5.) In addition, almost all of the text and picture messages recovered from this cellphone relate to defendant's escort business. These include voluminous communications between defendant and male clients and defendant and other sex workers, regarding prices, locations, and sex acts, as well as numerous photographs of sex workers that were sent to male clients. (See People's Memorandum of Law at pp. 9–10.)

People v. English, supra.

The court went on to explain that English

moves to controvert this search warrant on the ground that the search of the entire contents of defendant's cellphone exceeded the scope of the warrant. Defendant claims that because the search warrant authorized only the search of defendant's cellphone for evidence related to the attempted kidnaping of T.C., to satisfy the Fourth Amendment it was incumbent upon the executing officer to utilize the forensic software to limit his search to the date and time of the offense, or to limit his search using as search terms T.C.'s name and phone number. (See Defendant's motion, Affirmation of Sidney Thaxtor at ¶ 27.)

Defendant further contends that because his Fourth Amendment rights were violated, `blanket’ suppression of all the evidence recovered from defendant's cellphone is required. (See Defendant's motion, Affirmation of Sidney Thaxtor at ¶ 28–30.) For the following reasons, defendant's motion to controvert search warrant B371–13 is denied.

People v. English, supra.  I am assuming that a “motion to controvert” is the same as, or similar to, a motion to suppress. 

The Supreme Court then outlined the “legal principles” that were relevant to ruling on English’s motion to controvert the search warrant:

The Fourth Amendment to the United States Constitution and section 12 of Article I of the New York State Constitution speak with one voice in requiring that search warrants `particularly describ[e] the place to be searched, and the persons or things to be seized.’ Particularity is required to protect against `wide-ranging exploratory searches unsupported by probable cause,' see United States v. Rosa, 626 F.3d 56, 61 (U.S. Court of Appeals for the 2d Circuit 2010); however, it does not require an issuing court to `set forth precisely the procedures to be followed by the executing officers.’ Dalia v. United States, 441 U.S. 238 (1979); see also United States v. Grubbs, 547 U.S. 90 (2006) (`nothing in the language of the Constitution . . . suggests that . . . search warrants must include a specification of the precise manner in which they are to be executed’).

This is especially true with respect to searches of the contents of computers, cellphones and other electronic devices, where courts have developed a flexible approach with respect to the execution of search warrants. Rather than require law enforcement to utilize specific search protocols or minimization undertakings as basic predicates for upholding digital search warrants, many courts have afforded law enforcement leeway in searching computers for incriminating evidence within the scope of materials specified in the warrant. See e.g., United States v. Metter, 860 F. Supp.2d 205 (U.S. District Court for the Eastern District of New York 2012); United States v. Graziano, 558 F.Supp.2d 304 (U.S. District Court for the Eastern District of New York 2008) (collecting cases).

This is so because there is no way for law enforcement to know in advance how a criminal may label or code his computer files and/or documents which contain evidence of criminal activities. United States v. Graziano, supra. Therefore, to follow defendant's invitation and to require courts in advance to restrict the computer search to certain methodologies or terms would give criminals the ability to evade law enforcement scrutiny by utilizing coded terms in their files or documents, or placing such documents in areas of the computer that would not normally contain such files/documents. Id. 

Thus, by necessity government efforts to locate particular files will require examining many other files to exclude the possibility that the sought after data are concealed there. See United States v. Galpin, 720 F.3d 436 (U.S. Court of Appeals for the 2d Circuit 2013); see also United States v. Riley, 906 F.2d 841 (U.S. Court of Appeals for the 2d Circuit 1990) (allowing some latitude with respect to examining records to determine if they fall with those described in the warrant simply recognizes the reality that few people keep documents of their criminal transactions in a folder marked drug records'). Finally, it is axiomatic that in executing a search warrant, law enforcement officers may properly seize an item in `plain view’ if they find the item in a place where one reasonably would have expected to look while searching for an object particularly described in the warrant. See People v. Brown, 96 N.Y.2d 80, 89–90 (2001) (of course there are limits in this regard as `the police may not open dresser drawers searching for a stolen piano’).

People v. English, supra. 

The Supreme Court then applied “these legal principles to the warrant at issue,” explaining that

it is plain that both the warrant on its face and the concomitant search by Officer Reifer pass constitutional muster. Initially, the Court notes that in a decision dated February 27, 2015, after examining the warrant, the affidavit and sworn testimony thereto, the Court ruled that this warrant was properly issued upon a finding of probable cause. Moreover, the warrant on its face was sufficiently specific in that it identified: 1) a specific offense for which the police had established probable cause (the attempted kidnaping of T.C.); 2) the place to be searched (defendant's cellphone); and 3) the items to be seized (numbers, text messages, picture messages, etc.) by their relation to the designated crime (the attempted kidnaping of T.C.). See United States v. Galpin, supra. 

Thus, Officer Reifer plainly was authorized to search the contents of defendant's cellphone for evidence in relation to T.C., and all of the evidence recovered from the cellphone in relation to T.C. clearly fell within the scope of the warrant. Similarly, all of the evidence that was recovered that established ownership of the phone clearly fell within the scope of the warrant. With respect to the evidence recovered that related to defendant's escort business, although these items were not specified in the warrant as items to be seized, because of the latitude conferred upon executing officers in searching computers and cellphones, Officer Reifer had the right to recover such files and to open them. See In the Matter of a Warrant for All Content Associated with a Gmail Account, 33 F.Supp.3d 386 (U.S. District Court for the Southern District of New York 20140; United States v. Graziano, supra; United States v. Fumo, 2007 WL 3232112 (U.S. District Court for the Eastern District of Pennsylvania 2007); United States v. Scarfo, 180 F.Supp. 2d 572 (U.S. District Court for the District of New Jersey 2001). And, because the incriminating character of the items related to defendant's escort business were immediately apparent, the executing officer had the right to seize them. See People v. Brown, supra. Accordingly, defendant's motion to controvert this search warrant is denied.

People v. English, supra. 

The court then took up English’s motion to controvert the other search warrant: Search Warrant B372–2013.  People v. English, supra.  It began by explaining that

this warrant authorized the search of the apartment where the November 16, 2013 incident with respect to T.C. allegedly took place. Specifically, the warrant states:

`You are hereby authorized and directed to search the premises at 1995 Davidson Avenue, Apartment B2, Bronx, NY, and to seize the following property unlawfully possessed, to wit: one (1) firearm holster, three (3) rounds of ammunition, firearms, computer equipment and related paraphernalia including but not limited to hard drives, flashdrives, compact discs and dvds, recording cameras and related equipment, any pornographic material, condoms, sexual instruments used for sexual gratification and evidence tending to establish ownership of the premises of the premises and connect persons found therein to the premises, to wit: personal papers and effects. You are further authorized and directed to search the contents of any computer equipment and related paraphernalia including and not limited to hard drives, flash drives, compact discs and dvds, recording cameras and related equipment and pornographic material seized.’

The warrant was supported by the affidavit of Police Officer Chalen, which included the same averments as those in his affidavit attached to search warrant B371–2013. Pursuant to the search warrant, the police seized from the above apartment: a firearm holster, three rounds of ammunition, nine cellphones, two Samsung tablet computers, one Ipad, three computer towers, one wi-fi router, one camera and five USB drives. Also, pursuant to this warrant, the police conducted complete searches, without restriction, of the computers and cellphones utilizing forensic software, and provided all data and files contained on the electronic devices to the assigned prosecutors in a format readable by a layperson. (See People's Answering Affirmation, Exhibit 3, Defendant's motion to controvert, Appendix A.) The evidence recovered from these devices included copious amounts of images of nude or scantily-clad women and teenage girls that appear to have been taken inside of defendant's apartment. (See People's Memorandum of Law at p. 10.)

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

The Supreme Court went on to note that

[w]ith respect to this search warrant, the Court agrees with defendant that this warrant lacked the requisite specificity to allow for a tailored search of defendant's electronic media. Unlike search warrant B371–2013, on its face, search warrant B372–2013 authorized a general search of defendant's electronic devices as it failed to link the evidence sought on defendant's cellphone and computers and the criminal activity supported by probable cause.  As a result, the portion of the warrant that authorized the search of the computers, cellphones and other electronic devices seized from the apartment, violated the Fourth Amendment's proscription against general searches. See United States v. Galpin, supra; United States v. Rosa, supra.

The People's reliance on People v. Nieves, 36 N.Y.2d 396, 401 (1975) to argue that any defect in the search warrant may be cured by reference to its supporting documents, which make clear that the searches of the electronic devices were limited to gathering evidence in connection with the attempted kidnaping of T.C. and defendant's escort business, is misplaced. This is so because to the extent that Nieves permits the consideration of unincorporated supporting documents to cure an otherwise defective search warrant, it has been abrogated by the Supreme Court's decision in Groh v, Ramirez, 540 U.S. 551 (2004). In addressing whether the supporting documents could save a search warrant which was facially defective, the Court stated that `[the fact that the application adequately described the things to be seized does not save the warrant from its facial invalidity’ because the Fourth Amendment `by its terms requires particularity in the warrant.’ Groh v. Ramirez, supra.  Because this Court may no longer rely on unincorporated supporting documents to cure an otherwise defective search warrant, with respect to the search of the electronic devices, the warrant fails for lack of particularity.

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

The court went on to hold that

[t]his, however, does not end the inquiry as it is now settled law that when a search warrant is partially but not wholly invalid, only the fruits of the invalid portion need be suppressed. See People v. Brown, supra. Here, in addition to the unparticularized directive with respect to the electronic devices, the warrant particularly authorized the seizure of a firearm, a firearm holster, ammunition, and other non-electronic items. Because the warrant was specific with respect to these items and because their seizure was supported by probable cause, the Court finds that the constitutionally infirm authorization with respect to the electronic devices may be severed from the remainder of the warrant. People v. Brown, supra.

Thus, the evidence seized pursuant to the search of the electronic devices is suppressed, and the evidence seized (the holster, ammunition, and other non-electronic items) pursuant to the valid portion of the warrant may be admitted. Accordingly, defendant's motion to controvert search warrant B372–2013 is granted in part and denied in part, in accordance with this decision. This is the decision, opinion and order of the Court.

People v. English, supra.