Posts by SusanBrenner:
- 18 U.S. Code § 2711(1)(referring to §2510(12)). The term `electronic storage’ means
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That the injunction be clearly and narrowly drawn so as not to prohibit protected expression;
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That the falsity or illegality of the expression be finally adjudicated prior to the issuance of the injunction;
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That the falsity or illegality be established by at least a preponderance of evidence;
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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
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That the usual equitable requirements for an injunction be met.
The Doctor, the Lawsuit and “Exceeding Authorized Access”
June 14th, 2016By Susan Brenner.
This post examines an opinion the U.S. District Court for the District of Massachusetts issued in a civil case: Padmanabhan v. Healey, 2016 WL 409673 (2016).
The District Court Judge begins by noting that “[t]his arises from allegations that defendants intentionally accessed a protected computer database in order to obtain information about plaintiff’s patients and to accuse plaintiff falsely of Medicaid fraud.” Padmanabhan v. Healey, supra. He also explained that
[p]ending before the Court are defendants’ motion to dismiss the complaint and plaintiff’s motion for sanctions. For the reasons that follow, defendants’ motion to dismiss will be allowed and plaintiff’s motion for sanctions will be denied.
Padmanabhan v. Healey, supra.
The judge went on to explain why, and how, the litigation arose:
The Court accepts as true the following allegations by plaintiff Bharanidharan Padmanabhan (`plaintiff’ or `Padmanabhan’) for the purpose of resolving the motion to dismiss.
Plaintiff is a doctor and neurologist who lives and works in Massachusetts and has chosen to represent himself pro se. Plaintiff filed a criminal complaint against the former Director of the Massachusetts Office of Medicaid in March, 2013 and a second criminal complaint against defendant James Paikos (`Paikos’) in January, 2015 for aiding and abetting Medicaid fraud. The Massachusetts Attorney General apparently declined even to investigate those allegations.
In September, 2015, plaintiff filed a complaint against the following defendants: 1) Maura Healey (`Healey’), the Attorney General of the Commonwealth of Massachusetts, 2) Steven Hoffman (`Hoffman’), the Deputy Chief of the Medicaid Fraud Division at the Office of the Attorney General, 3) Chris Cecchini (`Cecchini’), an investigator at the Office of the Attorney General, 4) Adele Audet (`Audet’), the Assistant Director of the Drug Control Program at the Massachusetts Department of Public Health who oversees the Prescription Monitoring Program computer database (`the PMP database’), 5) Paikos, an investigator for the Massachusetts Executive Office of Health and Human Services (`the Massachusetts HHS’), 6) Loretta Kish Cooke (`Cooke’), an investigator who works alongside Paikos at the Massachusetts HHS, 7) Jane Doe, an unidentified female agent of the Office of the Attorney General or the Massachusetts State Police and 8) other unidentified defendants.
The complaint asserts that 1) defendants unlawfully accessed the protected PMP database in April, 2015 to obtain a list of 16 patients who were treated by plaintiff and who received Medicaid benefits, 2) Healey falsely and maliciously accused him of violating the Social Security Act and committing Medicaid fraud, 3) Healey improperly sought access to the unredacted medical records of the 16 patients and 4) Healey sent Cecchini and Jane Doe to his house to arrest him and to seize his computer and medical records under the pretext of legitimate investigative activity. Those actions allegedly violated a) the Computer Fraud and Abuse Act (“CFAA”), 18 U.S. Code § 1030 et seq., b) the Stored Communications Act (“SCA”), 18 U.S. Code § 2701, c) the equitable Clean Hands Doctrine’ and d) unidentified statutes concerning civil conspiracy.
Padmanabhan v. Healey, supra.
The Federal Rules of Civil Procedure establish the ground rules for civil litigation in federal courts, and Rule 3 states that “[a] civil action is commenced by filing a complaint with the court.” So, when this judge “refers to Padmanabhan’s “filing a complaint” in the U.S. District Court in which he sits, he is explaining that, in doing this, Padmanabhan was initiating a civil suit against the parties his complaint names as defendants. Padmanabhan v. Healey, supra. Wikipedia outlines what needs to be included in a civil complaint.
The same Wikipedia entry also explains that
[a]fter the complaint has been filed with the court, it has to be properly served to the opposite parties, but usually petitioners are not allowed to serve the complaint personally. The court also can issue a summons – an official summary document which the plaintiff needs to have served together with the complaint. The defendants have limited time to respond, depending on the State or Federal rules. A defendant’s failure to answer a complaint can result in a default judgment in favor of the petitioner.
For example, in United States federal courts, any person who is at least 18 years old and not a party may serve a summons and complaint in a civil case. The defendant must submit an answer within 21 days after being served with the summons and complaint, or request a waiver, according to FRCP Rule 12. After the civil complaint has been served to the defendants, the plaintiff must, as soon as practicable initiate a conference between the parties to plan for the rest of the discovery process and then the parties should submit a proposed discovery plan to the judge within 14 days after the conference.
Wikipedia also explains that the defendant’s obligation to file an answer to the complaint arises under Rule 7(a) of the Federal Rules of Civil Procedure and that “an answer to a complaint” is one of the pleadings allowed in federal civil litigation. As Wikipedia notes, “an answer is the first pleading by a defendant, usually filed and served upon the plaintiff within a certain strict time limit after a civil complaint . . . has been served upon the defendant.” And Federal Rule 12 states that a defendant “must serve an answer . . . with 21 days after being served with the summons or complaint”.
Instead of filing an answer to the complaint, a defendant in a civil case can file a motion to dismiss the complaint and the cause(s) of action it asserts. Rule 12(b) of the Federal Rules of Civil Procedure states that a defendant can assert any of several, listed defenses in a motion, instead of an answer. One of them, which is probably one of the most-often-asserted defenses, is that the plaintiff’s complaint fails “to state a claim upon which relief can be granted.” A defendant’s ability to assert this defense in a motion is established by Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Getting back to the opinion, the judge began his analysis of the defendants’ Rule 12(b)(6) motion by explaining that in order to
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007). Exhibits attached to the complaint are properly considered `part of the pleading for all purposes.’ Federal Rules of Civil Procedure Rule 10(c). In considering the merits of a motion to dismiss, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Santiago v. Puerto Rico, 655 F.3d 61, 72 (U.S. Court of Appeals for the 1st Circuit 2011). Threadbare recitals of the legal elements, supported by mere conclusory statements, do not suffice to state a cause of action. Ashcroft v. Iqbal, 556 U.S.662 (2009). A complaint does not state a claim for relief where the well-pled facts fail to warrant an inference of any more than the mere possibility of misconduct. Ashcroft v. Iqbal, supra.
Padmanabhan v. Healey, supra.
The Judge then began the process of applying the above standards to the allegations in the Complaint, starting with the Computer Fraud and Abuse Act (“CFAA”). The judge explained that the CFAA
prohibits an individual from 1) intentionally accessing a computer without authorization or exceeding authorized access and thereby 2) obtaining information from any federal department, federal agency or protected computer. 18 U.S. Code §1030(a)(2).
A `protected computer’ is a computer that 1) is exclusively used by the federal government, 2) is used by or for the federal government and the conduct constituting the offense affects that use by or for the federal government or 3) is used in or affects interstate or foreign commerce or communication of the United States. 18 U.S. Code § 1030(e)(2). The statute defines `exceed[ing] authorized access’ as accessing a computer with authorization and using that access to obtain or alter information without authorization. § 1030(e)(6).
The CFAA provides a private right of action to any person who suffers `damage or loss by reason of a violation’ of the CFAA. 18 U.S. Code § 1030(g). The statute defines `damage’ as any `impairment to the integrity or availability of data, a program, a system, or information’ and `loss’ as
`any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service. . . .’
18 U.S. Code §§ 1030(e)(8), (11).
Padmanabhan v. Healey, supra.
The judge went on to analyze the arguments made by both sides to this litigation:
Here, Count 1 asserts that defendants unlawfully accessed the protected computers hosting the PMP database 1) in violation of 105 CMR 700.012 because the access occurred during a Medicaid fraud investigation, not a drug-related investigation, and with insufficient cause, given that plaintiff has never `billed the Government’ for treating Medicaid patients and 2) for the criminal or tortious purpose of `aiding and abetting Medicare Fraud and tampering with a witness who reported it.’ Padmanabhan proclaims that those actions violated § 1030 and caused him financial and professional losses comprising 1) `direct costs owing to having to respond to this violation’ such as consulting with affected patients, seeking legal advice and initiating this action and 2) harm to his professional reputation and ability to practice medicine.
Defendants move for dismissal for failure to state a claim under § 1030. They dispute that the computers hosting the PMP database are `protected computers’ and contend that plaintiff failed to specify which, if any, of the defendants accessed the PMP database with the requisite intent. They argue that, even if one or more of them did access the database, their conduct was specifically authorized by the Office of the Attorney General and is thus expressly exempt from § 1030 as lawfully authorized investigative activity. Defendants further proclaim that plaintiff suffered no cognizable damage or loss under the statute because his purported injuries were not directly related to the costs incurred by an owner of a computer associated with repairing or restoring the computer, a loss of access to or use of the computer, or uncovering the extent of unauthorized access to the computer.
The Court agrees with defendants that the patient consulting costs, legal fees and professional injuries claimed by plaintiff do not qualify as losses under the statute. Although the First Circuit Court of Appeals has held that the CFAA does not restrict `loss’ under the statute to purely physical damage, EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 584 (U.S. Court of Appeals for the 1st Circuit 2001), nothing in the statute suggests that the alleged loss or costs can be for matters unrelated to the computer, Shirokov v. Dunlap, Grubb & Weaver, PLLC, 2012 WL 1065578 (U.S. District Court for the District of Massachusetts Mar. 27, 2012). Plaintiff does not claim, for example, that defendants’ alleged actions 1) affected or impaired his ability to use the computers hosting the PMP database, 2) required him to engage in computer investigation or repair or 3) forced him to incur costs due to an inoperative computer system. See Shirokov v. Dunlap, Grubb & Weaver, supra. Nor do his legal fees constitute loss under the statute because they are not directly attributable to the alleged access to the PMP database. See Shirokov v. Dunlap, Grubb & Weaver, supra.
Accordingly, the complaint does not assert a qualifying loss within the meaning of § 1030 of the CFAA. The Court will allow defendants’ motion to dismiss Count 1 for failure to state a claim.
Padmanabhan v. Healey, supra.
The judge then took up Padmanabhan’s claim under the Stored Communications Act (“SCA”), explaining that the SCA
prohibits an individual from 1) intentionally accessing a facility that provides an electronic communication service without authorization or exceeding an authorization to access that facility and thereby 2) obtaining, altering or preventing authorized access to an electronic communication while it is in electronic storage in such a system. 18 U.S. Code § 2701(a) The SCA defines `electronic communication’ by reference to 18 U.S. Code § § 2510 which, in turn, defines it as
`any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce. . . .’
`any temporary, intermediate storage of . . . [an] electronic communication incidental to the electronic transmission thereof; and [ ] any storage of such communication by an electronic communication service for purposes of backup protection of such communication[.]’
18 U.S. Code1711(1) (referring to § 2510(17)).
Padmanabhan v. Healey, supra.
The judge also noted that the Stored Communications Act
provides a private right of action to any `person aggrieved’ by conduct that violates the SCA and that was performed with a knowing or intentional state of mind. 18 U.S. Code §2707(a). An `aggrieved person’ is a person who was a party to an intercepted electronic communication or against whom the interception was directed. 18 U.S. Code § 2711(1) (referring to § 2510(11)).
In our case, plaintiff alleges in Count 2 that defendants unlawfully accessed the computer system which hosts the PMP database without authorization or, alternatively, in excess of any authorization, and thereby accessed patient information stored in the database. Plaintiff reiterates that defendants lacked or exceeded any authorization because 1) their access was in violation of 105 CMR 700.012 and 2) they acted pursuant to a criminal or tortious purpose.
Defendants respond that plaintiff fails to state a claim under the SCA because 1) the patient information in the PMP database is not `electronic information in electronic storage’ and is therefore unprotected by the statute and 2) he is not a “person aggrieved” because he has no ownership, privacy or confidentiality right in that information.
The Court agrees with defendants that plaintiff fails to allege that the purportedly accessed information is protected by the SCA. That is because plaintiff neither claims that the patient information is an electronic communication within the meaning of § 2510(20 nor asserts that the PMP database is stored at a facility that provides an electronic communication service.
Accordingly, the complaint does not state a claim under § 2701 of the SCA and defendants’ motion to dismiss Count 2 will be allowed.
Padmanabhan v. Healey, supra.
After addressing several other, related issues, the District Court Judge held that
[f]or the foregoing reasons, defendants’ motion to dismiss (Docket No. 23) is ALLOWED and plaintiff’s motion for sanctions (Docket No. 35) is DENIED.
Furthermore, the Court forewarns plaintiff, once again, that he will be subject to the imposition of sanctions himself if he continues to make gratuitous, inflammatory and groundless charges against defendants and their counsel.
Padmanabhan v. Healey, supra (emphasis in the original).
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Mail Fraud, the Hard Drive and Encryption
June 10th, 2016By Susan Brenner.
This post examines a recent opinion from a U.S. District Court Judge who sits in the U.S. District Court for the District of South Carolina: U.S. v. Hartsoe, 2016 WL 70819 (2016). The judge begins by explaining that
Defendant [Jerry Elmo Hartsoe] was indicted in this District for mail fraud, a violation of 18 U.S. Code §1341, and aiding and abetting, a violation of 18 U.S. Code § 2 (Counts 1 through 8); and making false statements in violation of 18 U.S. Code §1001 (Count 9). Defendant was thereafter charged in a superseding indictment with an additional count of passing fictitious financial instruments in violation of 18 U.S. Code § 514 (Count 10).
Defendant, along with two co-defendants, proceeded to trial. Count 10 (passing fictitious financial instruments) was dismissed by the court prior to submission to the jury; Defendant was thereafter convicted of the remaining counts (Counts 1 through 9). The matter was then set for sentencing.
On March 24, 2014, Defendant’s counsel filed a motion for status of counsel hearing. On May 7, 2014, the court conducted a hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), at which the court ruled that Defendant would be allowed to represent himself at sentencing. Sentencing was then rescheduled to allow additional time for Defendant to review and respond to the Presentence Report (PSR).
On July 15, 2014, Defendant appeared pro se for sentencing. After overruling in part and sustaining in part Defendant’s pro se objections to the PSR, the court sentenced Defendant to 120 months’ imprisonment, five years’ supervised release, a $900 special assessment, and ordered $681,410 in restitution.
Defendant filed a Notice of Appeal. Appellate counsel was appointed by the Fourth Circuit Court of Appeals. On January 29, 2015, Defendant’s conviction and sentence were affirmed. United States v. Hartsoe, 591 F. App’x 216 (U.S. Court of Appeals for the 4th Circuit 2015). Defendant then timely filed the current motion for relief under 28 U.S. Code § 2255.
U.S. v. Hartsoe, supra.
You can, if you are interested, read about the charges and facts that brought Hartsoe to this point in the news stories you can find here, here and here.
In his 28 U.S. Code § 2255 motion, Hartsoe raised “six Grounds for Relief”, but this post only examines one of them: “Ground Two”. U.S. v. Hartsoe. According to the Judge, in “Ground Two” Hartsoe “claim[ed] the Government committed prosecutorial misconduct in failing to turn over exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and/or in corrupting the above-noted computer hard drive so that it was inaccessible for review.” U.S. v. Hartsoe, supra. As Wikipedia explains, Brady v. Maryland,
was a landmark United States Supreme Court case in which the prosecution had withheld from the criminal defendant certain evidence. The defendant challenged his conviction, arguing it had been contrary to the Due Process Clause of the Fourteenth Amendment to the United States Constitution. . . .
The Supreme Court held that withholding exculpatory evidence violates due process “where the evidence is material either to guilt or to punishment”; and the court determined that under Maryland state law the withheld evidence could not have exculpated the defendant but was material to the level of punishment he would be given. Hence the Maryland Court of Appeals’ ruling was affirmed.
A defendant’s request for `Brady disclosure’ refers to the holding of the Brady case, and the numerous state and federal cases that interpret its requirement that the prosecution disclose material exculpatory evidence to the defense. Exculpatory evidence is `material’ if there is a reasonable probability that his conviction or sentence would have been different had these materials been disclosed.’ Brady evidence includes statements of witnesses or physical evidence that conflicts with the prosecution’s witnesses, and evidence that could allow the defense to impeach the credibility of a prosecution witness.
Getting back to the opinion, the Judge explained that, in “Ground One”, Hartsoe claimed
[his] counsel was ineffective in failing to access and review a computer hard drive seized by the Government. Defendant maintains this computer hard drive contained exculpatory evidence of `Satisfaction of Mortgage’ documents, copies of which he contends did not exist in customers’ files and were evidence of the viability of Defendants’ `debt elimination’ scheme.
Based on information obtained during an investigation, the Federal Bureau of Investigation (FBI) secured a search warrant for the offices of Eden Gifted Properties (EGP), the business of Defendant and his co-Defendants. On June 1, 2012, the FBI executed the search warrant seizing . . . a variety of documentary evidence and a computer hard drive which operated as a server for EGP computers. The Government retained this evidence throughout the prosecution of this matter. . . .
During the course of trial, counsel for co-Defendants Chappell Dew and Mark Manuel argued that they attempted to review the contents of the hard drive and were unsuccessful. . . . Initially, counsel for co-Defendant Dew argued that he and counsel for co-defendant Manuel were unable to access material on the hard drive because of encryption placed on the hard drive by the Government. . . . The Government denied it had placed any encryption on the hard drive, asserting that it had `not placed any sort of locks or restrictions [on access to the information] and that any restrictive access on this hard drive would be something that the defendants have done themselves on their own computer.’ . . . The Government indicated it was able to review material on the hard drive through use of a `forensic tool kit,’ but that `the encryption is the defendants’. Id. at 146. The court noted that Defendants `can either tell their lawyers how to get through their encryption or the FBI would have to unencrypt it for them if they can’t un-encrypt it any more.’ . . . The Government maintained that if it `un-encrypted” the information for defense counsel, that would “alter[ +] the evidence,’ . . . and `[w]e want to give them a copy of what exactly was on there.’
U.S. v. Hartsoe, supra.
The opinion goes on to explain that the trial judge then
attempted to ascertain whether the FBI was indicating that `they had to use some method to break through the encryption[.]’ . . Counsel for co-Defendant Manuel contended that counsel had downloaded the forensic tool kit but that the files were still inaccessible because `we needed some Oracle database running underneath the tool kit. And I don’t have that. I don’t even know what that is.’ . . .
`After a lunch break, the Government informed the court that the FBI had looked at certain parts, [and had gotten] through the encryption on that computer. However, what they saw from looking at it seemed to be electronic copies of the hard copies that we already had. A full [un]encryption would have required the computer to be sent to Quantico. We did not do that. We instead told the defense that if they wanted to come see it to let us know six months ago. So, from speaking with the [FBI personnel], it does not appear that even we were able to open all of it because of the encryption placed on it by the defendants. . . .’
The next day, counsel for co-Defendant Dew indicated that all defense counsel had gone to the review the hard drive at its location (at the local FBI facility), and that the files on the hard drive were not encrypted but that the files – `thousands and thousands and thousands of pages,’ . . . – were not searchable. Counsel for Hartsoe, Mr. Craig, stated that the FBI agent who assisted counsel in accessing the hard drive indicated counsel could access the material on the hard drive and `search it[,]’ . . ; counsel for Dew indicated that counsel understood that to mean counsel would have to search the hard drive by looking at each file. . . .The undersigned then indicated that because counsel had sufficient time prior to trial to review the material, it was at a loss to remedy the problem as trial was in process.
U.S. v. Hartsoe, supra (emphasis in the original).
The opinion then explains that Hartsoe’s
Ground for Relief asserts that counsel failed to access the computer hard drive in a timely manner; that is, that the alleged ineffectiveness arose prior to trial. . . . Therefore, it must be determined whether Craig’s failure to review the computer hard drive in possession of the Government prior to trial was ineffective and, if so, whether this failure prejudiced Defendant.
Assuming for purposes of this motion that counsel was ineffective in failing to review the computer hard drive prior to commencement of trial, Defendant cannot establish prejudice resulting from counsel’s alleged failure. First, at no time during the proceedings did any defendant contend that the hard drive contained specific documents showing that the process had resulted in an actual satisfaction of the mortgage of any EGP client. Notably, Defendant fails to proffer any evidence of any such document, presumably available from any county clerk of court where the mortgage had been originally recorded, in support of his argument.
Third, the evidence of Defendant’s guilt was voluminous and overwhelming. The Government introduced over 600 exhibits, most of which were EGP client files containing numerous frivolous documents sent through the mails in an effort to execute Defendants’ fraudulent scheme. As noted above, at least one letter contained in those files was introduced by defense counsel and evidenced satisfaction of a mortgage; however, Defendant provides no evidence other than his self-serving, unverified statement4 that these documents noting satisfaction of a mortgage `validated the effectiveness of the process being used by [co-defendants].’ . . . Defendant’s conviction evidences the jury’s rejection of the argument that the satisfaction of mortgage was by any means other than via payment of the mortgage balance.
Therefore, as Defendant cannot establish prejudice on this Ground for Relief, the Government is entitled to summary judgment and it is dismissed with prejudice.
U.S. v. Hartsoe, supra (emphasis in the original).
The District Court Judge also pointed out that
the evidence of [Hartsoe’s] guilt was voluminous and overwhelming. The Government introduced over 600 exhibits, most of which were EGP client files containing numerous frivolous documents sent through the mails in an effort to execute [Hartsoe’s] fraudulent scheme. As noted above, at least one letter contained in those files was introduced by defense counsel and evidenced satisfaction of a mortgage; however, [Hartsoe] provides no evidence other than his self-serving, unverified statement that these documents noting satisfaction of a mortgage `validated the effectiveness of the process being used by [co-defendants].’ . . . Defendant’s conviction evidences the jury’s rejection of the argument that the satisfaction of mortgage was by any means other than via payment of the mortgage balance.
Therefore, as Defendant cannot establish prejudice on this Ground for Relief, the Government is entitled to summary judgment and it is dismissed with prejudice.
U.S. v. Hartsoe, supra.
The District Court Judge then ruled on Hartsoe’s Brady claim, explaining that Hartsoe
maintains the Government violated Brady v. Maryland, 374 U.S. 83 (1963), in allegedly rendering the above-discussed computer hard drive inaccessible. There are three components to a Brady violation: (1) the evidence at issue must be favorable to the accused; (2) that evidence must have been suppressed by the Government; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263 (1999).
As noted above, Defendant fails to establish that any Government action rendered the computer hard drive inaccessible. Counsel went to review the hard drive at its location (at the local FBI facility), and the files on the hard drive were not encrypted but the files – `thousands and thousands and thousands of pages,’ Trial Tr. (Non-Testimony Portions) at 192, ECF No. 416 – were not searchable. Craig stated that the FBI agent who assisted counsel in accessing the hard drive indicated counsel could access the material on the hard drive and `search it[,]’ . . . ; counsel for co-Defendant Dew indicated that counsel understood that to mean counsel would have to search the hard drive by looking at each file. Id. Therefore, it appears the computer hard drive was not inaccessible; rather, the volume of material on the hard drive was such that it was not feasible to review it during trial. Therefore, appellate counsel was not ineffective in failing to assert a claim under Brady, and this ground for relief is rejected.
U.S. v. Hartsoe, supra.
For these and other reasons, the District Court Judge held that “the Government’s motion for summary judgment is granted and Defendant’s motion for relief is dismissed with prejudice.” U.S. v. Hartsoe, supra. In other words, Hartsoe lost
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Unauthorized Access, the Former Employees and the Computer Fraud and Abuse Act
June 9th, 2016
By Susan Brenner.
This post examines an opinion a U.S. Magistrate Judge who sits in the U.S. District Court for the District of Colorado issued recently: Wolf v. Schadegg, 2016 WL 1117364 (2016). As judges usually do, this judge begins her opinion by explaining how and why the civil suit arose:
The relevant factual background for this motion involves data, trade secrets, and other confidential information allegedly obtained by Defendants Michael Schadegg and Shawn Cochran, former employees of Plaintiff Wolf Auto Center Sterling, LLC (`Wolf Auto’), in contravention of state and federal law. See Complaint [# 1]. Plaintiff David Wolf is the owner and sole member of Plaintiff Wolf Auto, a car dealership selling Ford and Chrysler cars as a franchisee. Id. ¶ 3-4. Both of the named Defendants were former employees of Plaintiff Wolf Auto: Defendant Schadegg was a general manager of several of its dealerships until he was terminated on April 14, 2014, and Defendant Cochran was its finance and insurance manager until he left his job on May 7, 2014. Id. ¶ 7-8, 11. Both Defendants were subsequently employed by one of Wolf Auto’s competitors, Korf Continental Sterling (`Korf’). Id. ¶ 9, 11.
Plaintiffs allege that in late 2014 they discovered numerous instances of unauthorized access to Wolf Auto’s computer systems and servers. Id. ¶ 64. Specifically, Plaintiffs claim that Defendants used their prior usernames, passwords, and company email accounts to obtain data, confidential information, and trade secrets from Wolf Auto after they had ceased being employees. Id. ¶¶ 26-33. Plaintiffs cite to several specific instances, alleging that, for example, an individual or several individuals using a computer with an IP address3 assigned to Korf accessed data from Wolf Auto’s website on several occasions from May 2014 to September 2014. Id. ¶ 34.
Thus, on May 15, 2015, Plaintiffs filed this action alleging a claim against Defendants for violation of the Computer Fraud and Abuse Act (`CFAA’), 18 U.S. Code § 1030, as well as several state law claims for theft of trade secret information, civil theft, conversion, breach of fiduciary duty, unjust enrichment, civil conspiracy, and tortious interference with prospective business advantage. Complaint [# 1] ¶¶ 53-120. Based on the CFAA claim, Plaintiffs allege that subject-matter jurisdiction is appropriate pursuant to 28 U.S. Code § 1331, and that the Court thus has supplemental jurisdiction over the remainder of Plaintiffs’ claims pursuant to 28 U.S. Code § 1367(a). Complaint [# 1] ¶ 51.
Wolf v. Schadegg, supra.
The Magistrate Judge went on to explain that
[o]n July 21, 2015, Defendants filed the present Motion, requesting that the Court dismiss Plaintiffs’ CFAA claim for failure to state a claim pursuant to Rule 12(b)(6). Motion [# 12] at 2. Defendants also argue that because Plaintiffs have failed to state a claim under the CFAA—Plaintiffs’ sole basis for federal question jurisdiction—the state law claims should consequently be dismissed for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1). Id. at 6. Thus, because the Court denies the request for dismissal under Rule 12(b)(6), the Court does not reach Defendants’ argument for dismissal pursuant to Rule 12(b)(1).
Wolf v. Schadegg, supra.
Next, the Magistrate Judge outlined the “legal standard” she was required to apply in ruling on the defendants’ motions to dismiss the suit:
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test `the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.’ Mobley v. McCormick, 40 F.3d 337, 340 (U.S. Court of Appeals for the 10th Circuit 1994); Fed. R. Civ. P. 12(b)(6) (stating that a complaint may be dismissed for `failure to state a claim upon which relief can be granted’). `The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.’ Sutton v. Utah State School for the Deaf & Blind, 173 F.3d 1226, 1236 (U.S. Court of Appeals for the 10th Circuit 1999). To withstand a motion to dismiss pursuant to Rule 12(b)(6), `a complaint must contain enough allegations of fact “to state a claim to relief that is plausible on its face.”’ Robbins v. Oklahoma, 519 F.3d 1242, 1247 (U.S. Court of Appeals for the 10th Circuit 2008) (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (U.S. Court of Appeals for the 10th Circuit 2007) (`The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to support the plaintiff’s allegations’) (quoting Bell Atlantic v. Twombly)).
`A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009). `A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.’ Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint `must be enough to raise a right to relief above the speculative level.’ Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188 (U.S. Court of Appeals for the 10th Circuit 2009). `[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,’ a factual allegation has been stated, `but it has not show[n] that the pleader is entitled to relief,’ as required by Rule 8(a). Ashcroft v. Iqbal, supra.
Wolf v. Schadegg, supra.
The Magistrate Judge then began her analysis of the defendants’ arguments in the Rule 12(b)(6) motion to dismiss, noting, initially, that the
CFAA is primarily a criminal statute, and a list of potential violations is set forth in 18 U.S. Code § 1030(a). Of those violations, the parties appear to agree that any of the following subsections in particular might apply here: (a)(2)(C), (a)(4), (a)(5)(B), or (a)(5)(C). See Motion [# 12] at 3; Response [# 18] at 6. Each of these subsections differs in various ways—such as in the scienter requirement necessary to establish a violation—but, because none of the elements of these subsections is presently in dispute here, the Court will dispense with a lengthy discussion of the subsections and cite to Subsection (a)(2)(C) by way of example. A violation under that subsection occurs where a defendant (1) intentionally accesses a computer; (2) without or exceeding authorization; and (3) thereby obtains information from a protected computer. 18 U.S. Code § 1030(a)(2)(C).
An additional factor must be satisfied to establish a civil violation under the CFAA, which is the subject of Defendants’ present motion. Pursuant to Section 1030(g), a private right of action may be brought by `[a]ny person who suffers damage or loss . . . if the conduct involves 1 of the factors set forth in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i).’ 18 U.S. Code §1030(g). . . . The parties agree that only Subclause (I) is relevant here: `loss to 1 or more persons during any 1-year period . . . aggregating at least $5,000 in value.’ Id. § 1030(c)(4)(A)(i)(I). Subsection (e)(11) defines ‘loss’ as `any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service[.]’ Id. § 1030(e)(11).
This definition of `loss’ does not include lost revenue apart from the lost revenue incurred as a result of the interruption of service, and hence does not `include lost revenue resulting from the dissemination of the computer information to a competitor.’ Am. Family Mut. Ins. Co. v. Gustafson, 2011 WL 782574, at *5 (U.S. District Court for the District of Colorado Feb. 25, 2011), amended, 2012 WL 426636 (D. Colo. Feb. 10, 2012).
Wolf v. Schadegg, supra.
The Magistrate Judge then took up the arguments made by both sides, noting that they
dispute whether Plaintiffs have sufficiently alleged damages pursuant to [18 U.S. Code] §1030(g). With respect to damages under the CFAA claim, the Complaint alleges that `Wolf Auto hired a computer forensic firm to investigate and assess the extent of Schadegg’s and Cochran’s unauthorized access to its computer systems, for which it incurred charges in excess of $5,000’ and that, `[u]pon discovering Schadegg’s and/or Cochran’s repeated unauthorized access to its computer systems and server in late 2014, Wolf Auto took actions to secure its computer systems and servers from further unauthorized access by Schadegg, Cochran, and others.’ Compl. [# 1] ¶ 63-64.
Defendants argue that `Plaintiffs have failed to allege facts demonstrating that any discrete act of either Mr. Schadegg or Mr. Cochran caused them a loss or losses “aggregating at least $5,000 in value.”’ Motion [# 12] at 5. More specifically, Defendants contend that Plaintiffs `do not attribute their computer forensic investigation charges to any one act or even any one individual,’ and because they `cannot apply their loss across separate acts and, presumably, across multiple individuals, Plaintiffs’ allegation of their loss is insufficient to state a claim under the CFAA.’ Id. at 5-6.
Wolf v. Schadegg, supra.
The Magistrate Judge went on to explain that the plaintiffs
respond that courts interpret the CFAA as imposing no requirement that the damage or loss be attributable to any particular instance, but rather that `the $5,000 floor applies to how much damage or loss there is to the victim over a one-year period, not from a particular intrusion.’ Response [# 18] (quoting Creative Computing v. Getloaded.com LLC, 386 F.3d 930, 934 (U.S. Court of Appeals for the 9th Circuit 2004). As a preliminary matter, the Court agrees with Plaintiffs’ argument here, and notes that many other courts have rejected Defendants’ argument that $5,000 threshold be met with respect to each particular intrusion. See, e.g., Freedom Banc Mortg. Servs., Inc. v. O’Harra, 2012 WL 3862209, at *7 (U.S. District Court for the Southern District of Ohio Sept. 5, 2012); Del Vecchio v. Amazon.com, Inc., 2012 WL 1997697, at *5 (U.S. District Court for the Western District of Washington June 1, 2012); Ticketmaster L.L.C. v. RMG Techs., Inc., 507 F. Supp. 2d 1096, 1113 (U.S. District Court for the Central District of California 2007); Sprint Nextel Corp. v. Simple Cell, Inc., Civ. No. CCB-13-617, 2013 WL 3776933, at *7 (U.S. District Court for the District of Maryland July 17, 2013).
Wolf v. Schadegg, supra.
But the Magistrate Judge also went on to note that,
[h]owever, Defendants also aver that Plaintiffs `make no attempt to allocate the cost of the computer forensic investigation to each individual,’ and thus that `Plaintiffs potentially may be using the cost of a computer forensic investigation made necessary by the acts of one individual . . . to state CFAA claims against other individuals. ’Reply [# 19] at 3 (emphases added). Further, Defendants note that because the Complaint also alleges that Plaintiffs discovered instances of unauthorized access from a former employee who is not a party to this action, it therefore follows that at least some of the loss Plaintiffs attribute to Defendants may not have been caused by them at all. Id.; Complaint [# 1] ¶ 35. Thus, Defendants argue that because Plaintiffs do not clearly allege that each Defendant’s individual act or acts caused loss in the amount of $5,000 or more, Plaintiffs have failed to state a claim for relief under the CFAA. Id.
Wolf v. Schadegg, supra.
The Magistrate Judge went on to explain that the
Court finds Defendants’ argument unpersuasive. Defendants premise their argument on CFAA’s language stating that `[a]ny person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator[.]’ 18 U.S. Code § 1030(g) (emphasis added). But the argument that Plaintiffs are required to allege what specific loss was incurred by each Defendant and in what amounts at the pleading stage is flawed for several reasons.
First and foremost, Defendants’ argument is simply one inference of many that may be drawn from Plaintiffs’ Complaint. However, as the Supreme Court has noted, a plaintiff has sufficiently pled a claim when it has `factual content that allows the court to draw the reasonable `factual that the defendant is liable for the misconduct alleged Ashcroft v. Iqbal, supra (emphasis added). Here, Plaintiffs cite to numerous instances of alleged unauthorized access to Wolf Auto’s computer systems by both Defendants or individuals who were using the usernames and passwords previously assigned to Defendants. See Complaint [# 1]. These allegations permit, for example, an inference that both Defendants were working together to access Plaintiffs’ data, particularly given that Defendants were working for the same rival company and undoubtedly were familiar with each other by virtue of their past employment with Plaintiff Wolf Auto.
Wolf v. Schadegg, supra (emphasis in the original).
The Magistrate Judge concluded her opinion by explaining that,
[f]urther, while the parties both note that there appear to be no cases determining whether a plaintiff is required to meet the $5,000 floor with respect to each defendant individually or all defendants collectively, cases confronting analogous issues under the CFAA are nonetheless instructive. For example, in Sprint Nextel Corp. v. Simple Cell, Inc., supra, the defendants argued on a motion to dismiss that the plaintiff could not sufficiently relate the loss it claimed to have suffered to any particular alleged action. Sprint Nextel Corp. v. Simple Cell, Inc., 2013 WL 3776933, at *7.
The court held that whether the actions could be `provably tied to any CFAA violation is an issue of fact,” and found that plaintiff had “sufficiently pled its CFAA claims.’ Id. Similarly, the real questions presented by Defendants’ argument—who caused the alleged loss sustained by Plaintiffs and to what degree each individual caused this loss—are also questions of fact whose answers are not necessarily available to Plaintiffs prior to discovery. See also Quantlab Techs. Ltd. (BVI) v. Godlevsky, 2015 WL 1651251 (U.S. District Court for the Southern District of Texas 2015) (remarking that it may be the case that a plaintiff need `only show $5,000 of expenses in response to all of Defendants’ alleged intrusions’ but ultimately concluding that it was unnecessary to reach this question, because an issue of material fact existed as to whether the plaintiff incurred $5,000 in qualifying losses from each particular defendant’s actions); see also Carnegie Strategic Design Engineers, LLC v. Cloherty, 2014 WL 896636, at *4 (U.S.District Court for the Western District of Pennsylvania, Mar. 6, 2014) (`Plaintiff may show loss by alleging that it expended an amount to investigate whether such damage occurred’), appeal dismissed (Aug. 26, 2014).
Wolf v. Schadegg, supra.
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The Fourth Amendment, Qualified Immunity and the “Work Computer”
June 7th, 2016By Susan Brenner.
This post examines an opinion the U.S. Court of Appeals for the 6th Circuit issued in a civil case: Lange v. McGinnis, 2016 WL 1296753 (2016). The Court of Appeals begins its opinion by explaining that
[f]ormer Benton Harbor Director of Public Safety Roger Lange sued the City of Benton Harbor, Michigan, and City employees, Dan McGinnis and Tony Saunders, under 42 U.S. Code §1983 and Michigan law. Lange claimed that the defendants violated his Fourth Amendment rights when McGinnis deleted all the files on a personal hard drive that Lange had attached to his work computer. The district court held that McGinnis was not entitled to qualified immunity as to Lange’s § 1983 claim. We respectfully disagree and reverse.
Lange v. McGinnis, supra.
The Court of Appeals went on to
recite the facts in the light most favorable to Lange. Benton Harbor hired Lange as its Chief of Police in 2009. A year later, the State of Michigan determined that Benton Harbor was in a financial emergency. In 2011, the Benton Harbor Police and Fire Departments merged to form the Department of Public Safety, with Lange as its Director. In January 2013, the Local Emergency Financial Assistance Loan Board appointed Tony Saunders as the City’s Emergency Manager.
In July 2013, the City Commissioners received an anonymous fax complaining that Lange was not trained as a firefighter. An attorney advised Saunders that he should require Lange to pass the firefighter-certification test. The next day, Saunders placed Lange on paid administrative leave until he could pass the firefighter-certification test in August. Lange turned in his office and vehicle keys, and his firearm. Thereafter, Lange was permitted on City property only to the extent necessary to prepare for the exam. In August, Lange passed the written part of the firefighter exam, but not the practical part.
Lange v. McGinnis, supra.
The opinion also explains that,
[a]fter the August exam, the City offered Lange a job as Community Liaison Officer, which he declined. Lange instead asked Saunders to reinstate him as Director of Public Safety. Saunders refused and told Lange that his choices were to take the Liaison position, go on unpaid leave until he passed the firefighter test, or resign. Lange went on unpaid leave in October 2013.
A few weeks later, Lange asked for permission to retrieve his personal belongings from his office. Saunders said no, and instead told Lange to itemize his belongings so that someone could retrieve them for him. Lange sent Saunders a list of items, including a hard drive. Saunders asked the Captain of the Police Division of the Department of Public Safety, Dan McGinnis, to clear the hard drive of any City files. In March 2014 the City returned the hard drive, but it was empty: McGinnis had deleted all the files, City and personal alike.
Lange thereafter brought this lawsuit, claiming that the deletion of his files was an unconstitutional search and seizure under § 1983. Lange also asserted several state-law claims. McGinnis moved for summary judgment on the§ 1983 claim, asserting qualified immunity. The district court denied his motion. We review the denial de novo. Whitney v. City of Milan, 677 F.3d 292, 296 (U.S. Court of Appeals for the 6th Circuit 2012).
Lange v. McGinnis, supra.
The Court of Appeals then took up the legal issues in the case, explaining that
McGinnis is entitled to qualified immunity unless a reasonable jury could find that he violated a constitutional right that was clearly established at the time of his actions. See DiLuzio v. Vill. of Yorkville, Ohio, 796 F.3d 604, 608–09 (6 U.S. Court of Appeals for the 6th Circuit 2015). `For a right to be clearly established, the contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.’ McGlone v. Bell, 681 F.3d 718, 735 (U.S. Court of Appeals for the 6th Circuit 2012).
Lange v. McGinnis, supra.
As Wikipedia explains, qualified immunity,
is available to state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate `clearly established law’. The defense of qualified immunity was created by the U.S. Supreme Court, replacing a court’s inquiry into a defendant’s subjective state of mind with an inquiry into the objective reasonableness of the contested action. A government agent’s liability in a federal civil rights lawsuit now no longer turns upon whether the defendant acted with `malice’, but on whether a hypothetical reasonable person in the defendant’s position would have known that his or her actions violated clearly established law.
As outlined by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982), qualified immunity is designed to shield government officials from actions `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’
Lange v. McGinnis, supra.
Getting back to the 6th Circuit’s opinion in the Lange case, the court went on to explain that
[t]he Fourth Amendment provides that `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]’ U.S. Const. amend. IV. Government employees are entitled to some Fourth Amendment protections in the workplace. See O’Connor v. Ortega, 480U.S. 709, 717 (1987) (plurality opinion); id. at 737 (Scalia, J. concurring).
The plurality in O’Connor held that, to invoke the protections of the Fourth Amendment, government employees must first show they had a `reasonable expectation of privacy’ in the subject of the search. Id. at 711–12. Employees must then show that the search was unreasonable at its inception, or as to its scope, or both. Id. at 726. Justice Scalia would have skipped the question whether the employee had a reasonable expectation of privacy, reasoning that `the offices of government employees, and . . . files within those offices, are covered by Fourth Amendment protections as a general matter.’ Id .at 731 (Scalia, J. concurring). Under either approach the outcome turns on whether `the governmental intrusion was reasonable.’ See id. at 732 (Scalia, J. concurring); id. at 726 (plurality opinion).
Lange v. McGinnis, supra.
The Court of Appeals then explained that
[w]e skip to the question whether McGinnis’s actions violated any clearly established right. Although the district court analyzed the issue as if McGinnis executed only a search, he in fact executed a search and then a seizure. We consider the search first. `Ordinarily, a search of an employee’s office by a supervisor will be justified … when … the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file.’ O’Connor v. Ortega, supra Id. (internal quotation marks omitted); see also id. at 732 (Scalia, J. concurring).
Here, Lange concedes that the City was entitled to delete any work files on his hard drive. To determine whether any work files were on the drive, the City needed to search the drive. And the search itself was minimally invasive: It entailed only opening the hard drive and seeing that its contents included City files. The search was also undisputedly non-investigative. We see nothing about the search, therefore, that would have made clear to a reasonable officer that the search was unconstitutional.
Lange v. McGinnis, supra.
The next section of the court’s opinion takes up a different issue: whether McGinnis’s actions also constituted a “seizure” of Lange’s files. Lange v. McGinnis, supra. As Wikipedia explains, the Fourth Amendment prohibits unreasonable “searches” (which, as the above discussion demonstrates, involves privacy) and unreasonable “seizures” (which involve interfering with someone’s possession and use of his or her property).
The court goes on to explain that
McGinnis effected a seizure when he deleted all of the files on Lange’s hard drive. See Soldal v. Cook County, 506 U.S. 56 (1992). Lange’s concession that the City was entitled to delete any work files on his hard drive amounts to a concession that the City was entitled to effect a seizure to some extent.
The question is whether McGinnis clearly went too far by deleting all the files on the drive. McGinnis could have deleted fewer files by combing through the files one-by-one and then deleting only the work files; but that approach would have effected a much more invasive search. Or he could have done what he did, which was to effect a minimal search and a broader seizure. No caselaw made clear to McGinnis that the latter choice was a constitutionally impermissible one.
Lange v. McGinnis, supra.
The Court of Appeals went on to conclude that the
cases that Lange cites only underscore the point. O’Connor concerned physical files and said nothing about choosing between a broader search and a broader seizure. Our decision in James v. Hampton, 592 F. App’x 449 (U.S. Court of Appeals for the 6th Circuit 2015), came a year after McGinnis’s actions and thus offered him no guidance then.
And the other cases that Lange cites—a Seventh Circuit opinion and a district-court one—are far afield from this case factually and legally. See Narducci v. Moore, 572 F.3d 313 (U.S. Court of Appeals for the 7th Circuit 2009); Maes v. Folberg, 504 F.Supp. 2d 339 (U.S. District Court for the NorthernDistrict of Illinois 2007). No caselaw from this court, the Supreme Court, or any other circuit court established that McGinnis’s actions were unconstitutional at the time he took them. McGinnis is therefore entitled to qualified immunity as to Lange’s § 1983 claim.
We reverse the district court’s order denying qualified immunity to McGinnis, and remand the case for further proceedings consistent with this opinion.
Lange v. McGinnis, supra.
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Attempts to Solicit Boys for Sex, Child Pornography and Probable Cause
June 6th, 2016By Susan Brenner.
This post examines an opinion from the U.S. Court of Appeals for the Armed Forces: U.S. v. Hoffman, 75 M.J. 120 (2016). As courts usually do, this court began the opinion by explaining how, and why, this case came before it:
Government investigators collected electronic media during a consent search of [Hoffman’s] barracks room. During the collection process, [Hoffman] withdrew his consent. Nevertheless, the investigators seized the electronic media. The following day [he] formally revoked his consent in writing and demanded the return of all property in the Government’s possession without it being searched. We granted review to determine whether the military judge erred in refusing to suppress the fruit of a search of the seized media made pursuant to a commander’s authorization issued four months after U.S. v. [Hoffman] revoked his consent to search and seize.
U.S. v. Hoffman, supra.
The Court of Appeals went on to outline the “procedural history” of the case, to this point:
[a] general court-martial of officer and enlisted members convicted [Hoffman], contrary to his pleas, of attempted sodomy of a child, indecent liberties with a child, child enticement, and possession of child pornography. Articles 80, 120, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S. Code §§ 880, 920, 934 (2012). The convening authority approved the adjudged sentence: a dishonorable discharge, confinement for seven years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The United States Navy–Marine CorpsCourt of Criminal Appeals (CCA) affirmed. U.S. v. Hoffmann, 74 M.J. 542, 555 (U.S. Navy-Marine Corps Court of Criminal Appeals 2014) [“CCA”].
U.S. v. Hoffman, supra.
The opinion then outlines the facts that resulted in this prosecution (referring to Hoffman as “Appellant”):
Appellant was taken into custody on board Camp Lejeune, North Carolina, on suspicion of committing indecent liberties with children. Investigators alleged that he had driven around Camp Lejeune and solicited young boys for sex. Appellant was advised of his right to counsel and his right to remain silent and invoked both. Nevertheless, Appellant consented to the search of his barracks room, and specifically `all items used for storage that are locked and unlocked.’ He further consented to the removal and retention of `any property or papers found during the search which are desired for investigative purposes.’
Approximately twenty-five minutes into the search, after Appellant noticed the investigators collecting various digital media, Appellant withdrew his consent. Staff Sergeant Anthony Rivera and other investigators terminated the search but seized the items they had previously collected. In an undated letter provided to the investigators the day after the search, Appellant formally revoked his consent to search or seize any of his property and demanded the return of the property previously seized. The items were not returned.
Four months later, Appellant’s battalion commander issued investigators a command authorization to search the digital media that had previously been seized for evidence of child pornography. The authorization was based on a lengthy discussion the commander had with Special Agent Dana Shutt, and an affidavit, asserting that she knew through her `training and experience that there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography.’ In the affidavit, the investigator noted that the request for search authorization related to items that had been seized as a result of Appellant’s consent. Nowhere did it inform the commander that Appellant had revoked his consent. A forensic analysis of the digital media seized revealed child pornography.
U.S. v. Hoffman, supra.
As Wikipedia explains,
[i]n the U.S., the simplest and most common type of warrantless searches are searches based upon consent. No warrant or probable cause is required to perform a search if a person with the proper authority consents to a search. A consent search requires the individual whose person or property is being searched to freely and voluntarily waive his or her Fourth Amendment rights, granting the officer permission to perform the search. Where consent is obtained through `deception’ on the part of government personnel, the search may be determined to be an unreasonable search in violation of the Fourth Amendment.
The person has the right to refuse to give consent, and except in limited cases may revoke consent at any point during the search. . . .
As Wikipedia also explains, consent is one of a number of exceptions to the Fourth Amendment’s default requirement that officers obtain a search warrant before they embark up on searching someone’s property.
Getting back to U.S. v. Hoffman, the opinion goes on to explain that at his trial, Hoffman
moved to suppress the fruit of the search of the electronic media. The military judge held a suppression hearing. While the commander who issued the search authorization was testifying on direct telephonically, it came to light that he was using documents to assist him. When the defense counsel sought to obtain copies of those materials in order to cross-examine the search authority, the military judge stated that the Government had met its burden and that the commander’s testimony was `overkill.’ She refused to continue the motions hearing to allow the defense counsel to obtain the documents.
The military judge denied the motion to suppress. She found that the seizure was lawful because Appellant withdrew his consent for search and seizure after investigators had seized the electronic media. The military judge opined that, even if Appellant had withdrawn consent before the seizure, the doctrine of inevitable discovery applied and that probable cause existed to seize and search the computer equipment. The military judge gave substantial deference to the commander as an impartial magistrate and concluded that the Government had established that the evidence was not obtained as a result of an unlawful search or seizure.
U.S. v. Hoffman, supra.
The Court of Appeals ends this portion of the opinion with the observation that
[o]n appeal, the CCA declined to rule on the issue of whether Appellant revoked his consent before or after the seizure of the media. . . . Instead, the CCA focused on the inevitable discovery doctrine, concluding that had Appellant declined to consent to the search and seizure of his room, the investigators would have frozen the scene and sought a search authorization, providing sufficient evidence to the search authority to establish probable cause. . . . We granted review.
U.S. v. Hoffman, supra.
The court wnet on to outline the legal issues in the case and the standard it would apply in analyzing those issues:
The Fourth Amendment protects the people against unreasonable searches and seizures and provides that warrants shall not be issued absent probable cause. U.S. Const. amend. IV. The military has implemented the Fourth Amendment through Military Rules of Evidence (M.R.E.) 311–17.
Searches conducted after obtaining a warrant or authorization based on probable cause are presumptively reasonable whereas warrantless searches are `presumptively unreasonable unless they fall within “a few specifically established and well-delineated exceptions.”’ United States v. Wicks, 73 M.J. 93, 99 (U.S. Court of Appeals for the Armed Forces 2014) (quoting Katz v. United States, 389 U.S.347, 357 (1967). . . . A search conducted with the consent of the accused is `one of the specifically established exceptions to the requirements of both a warrant and probable cause.’ Schneckloth v. Bustamonte, 412 U.S.218, 219 (1973); see M.R.E. 314(e). `Property . . . may be seized with consent consistent with the requirements applicable to consensual searches under Military Rule of Evidence 31(c)(3).’ The government bears the burden of showing the applicability of the exception. United States v. Wicks, supra.
We review a military judge’s ruling on a motion to suppress evidence for an abuse of discretion, viewing the evidence in the light most favorable to the party prevailing below. United States v. Keefauver, 74 M.J. 230, 233 (U.S. Court of Appeals for the Armed Forces 2015). That means we review the military judge’s findings of fact for clear error but her conclusions of law de novo. United States v. Keefauver, supra.
U.S. v. Hoffman, supra.
The Court of Appeals then began the process of applying the above principles to the facts in this case. It began with the officers’ seizure of Hoffman’s property:
The scope of a consent search or seizure is limited to the authority granted in the consent and may be withdrawn at any time. M.R.E. 314(e)(3), 316(c)(3); see United States v. Dease, 71 M.J. 116, 120 (U.S. Court of Appeals for the Armed Forces 2012). The military judge concluded that Appellant validly withdrew his consent but only after `the investigators had already seized the digital media, as there had already been a meaningful interference with the accused’s possessory interest in that property.’
U.S. v. Hoffman, supra.
The court then explained that a
`”seizure”’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.’ United States v. Jacobsen, 466U.S. 109, 113 (1984) (emphasis added). By employing the term `meaningful interference,’ the Supreme Court must have `contemplated excluding inconsequential interference with an individual’s possessory interests.’ United States v. Va Lerie, 424 F.3d 694, 706 (U.S. Court of Appeals for the 8th Circuit 2005) (emphasis in the original) (en banc). It must be more than a technical trespass. United States v. Va Lerie, supra (bag moved from overhead compartment to seat so drug dog could sniff for drugs was not `meaningful interference’); United States v. Gant, 112 F.3d 239, 242 (U.S. Court of Appeals for the 6th Circuit (1997) (same); United States v. Lovell, 849 F.2d 910 (U.S. Court of Appeals for the 5th Circuit 1988) (agents removed checked luggage from baggage conveyor belt, compressed sides of luggage several times, smelled marijuana, then subjected luggage to a dog sniff was not seizure).
A seizure requires law enforcement agents to exercise a fair degree of dominion and control over the property. See United States v. Jacobsen, supra (field testing contents of a package for illegal substances was `meaningful interference’); Hudson v. Palmer, 468 U.S. 517 (1984) (completely destroying the property was `meaningful control’).
Appellant withdrew his consent while the media were still sitting in his room. While the agents may have moved the media to a central location in the room, they did not meaningfully interfere with it until they removed it. As the seizure of the media occurred after Appellant had withdrawn his consent, the seizure violated the Fourth Amendment.
U.S. v. Hoffman, supra.
The Court of Appeals then took up the issue of whether the inevitable discovery principle applied in this case. U.S. v. Hoffman, supra. It began by explaining that
[n]ormally, the fruits of a search or seizure that violates the Fourth Amendment are inadmissible. Mapp v. Ohio, 367U.S. 643, 654–55 (1961); United States v. Conklin, 63 M.J. 333, 334 (U.S. Court of Appeals for the Armed Forces 2006); M.R.E. 311(a).
Notwithstanding the invalidity of the seizure of the digital media, the inevitable discovery doctrine provides an exception to the exclusionary rule, `allowing admission of evidence that, although obtained improperly, would have been obtained by another lawful means.’ United States v. Wallace, 66 M.J. 5, 10 (U.S. Court of Appeals for the Armed Forces 2008); see Nix v. Williams, 467U.S. 431, 443–44 (1984); M.R.E. 311(c)(2).
To take advantage of this doctrine, the prosecution must establish, by a preponderance of the evidence, `”that when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence and that the evidence would inevitably have been discovered in a lawful manner had not the illegality occurred.”’ United States v. Dease (quoting (quoting United States v. Kozak, 12 M.J. 389, 394 (U.S. Court of Military Appeals 1982)) (emphasis added). The military judge made no findings as to the state of probable cause at the time Appellant withdrew consent.
U.S. v. Hoffman, supra.
The opinion goes on to point out that
[t]here is no evidence that, at the time of the seizure, the government agents possessed or were actively pursuing leads that would have inevitably led to discovery of the child pornography images by lawful means. The assumption that the investigators could have lawfully frozen the scene at Appellant’s barracks room and pursued a command authorization based on probable cause is unjustified. Freezing the scene to procure a command authorization requires probable cause or exigent circumstances. Segura v. United States, 468 U.S. 796, 810 (1984) (plurality opinion). The Government has not argued and the record does not contain any exigent circumstances justifying freezing the scene. Moreover, as discussed below, the Government failed to establish that the investigators had probable cause to believe that child pornography or evidence of the alleged offenses would be found on Appellant’s computer equipment.
Several months after seizing the digital media, investigators sought and obtained command authorization to search the digital media for child pornography. If supported by probable cause known to the investigators at the time of the seizure and otherwise valid, the search authorization could overcome the fact that the digital media on which child pornography was found was seized illegally.
U.S. v. Hoffman, supra.
The court then took up the issue of probable cause, explaining that
[a]n impartial commander `who has control over the place where the property . . . to be searched is situated’ is authorized to issue a search authorization, M.R.E. 315(d)(1), `based upon probable cause.’ M.R.E. 315(f)(1). Probable cause to search exists when, based on written and oral statements and `information as may be known by the authorizing official that would not preclude the official from acting in an impartial fashion,’ M.R.E. 315(f)(2)(c), there `is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched.’ M.R.E. 315(f)(2). A valid search authorization requires the impartial authorizing official to `make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity’ and `basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ Illinois v. Gates, 462 U.S. 213, 238 (1983) (emphasis added); see United States v. Cowgill, 68 M.J. 388, 393 (U.S. Court of Appeals for the Armed Forces 2010); see also Ornelas v. United States, 517 U.S. 690 (1996)(probable cause to search `exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found’ in a particular place).
`”In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”’ Illinois v. Gates, supra (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). . . . The authorizing official is free to draw `reasonable inferences’ from the material supplied by those applying for the authority to search. Illinois v. Gates, supra.
U.S. v. Hoffman, supra.
The court applied these principles to the issue before it, explaining that the
affidavit accompanying the request for a search authorization detailed the affiant investigator’s credentials and experience in forensic digital media collection and conducting investigations into child exploitation via the Internet. The affidavit detailed facts and circumstances leading to Appellant’s apprehension: one of three boys who had complained about being solicited on the street for sex had identified Appellant’s vehicle and Appellant as the perpetrator; and another victim had described a truck similar to Appellant’s and picked Appellant out of a photo lineup.
The investigator testified that she had explained to the search authority that in a majority of cases of child pornography there was evidence of solicitation. The search authority was unable to confirm this, and the military judge made no finding that the investigator had. Nor is it clear from the record that the investigator advised the search authority: (1) that a GPS tracking device had been placed on Appellant’s vehicle but had not produced any information of evidentiary value; (2) that she had not determined whether Appellant had Internet access in his room; (3) that the Internet Crimes Against Children Taskforce had no information on Appellant’s screen name; (4) a criminal background check on Appellant was negative; and (5) no relevant information was revealed from canvassing Appellant’s acquaintances.
The investigator then concluded:
`As this affiant knows through training and experience that there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography, this Affiant believes there is probable cause to believe evidence of the sexual exploitation of children by means of the receipt and possession of child pornography . . . is present within [the seized digital media].’
U.S. v. Hoffman, supra.
The appellate court then explain that the
military judge’s inevitable discovery ruling was based on the following: (1) testimony of Staff Sergeant Anthony Rivera, one of the investigators, that, had Appellant not consented to the seizure, he would have sought a search authorization; (2) Special Agent Dana Shutt’s affidavit in support of a search authorization, submitted four months after the seizure, explaining that there is `”an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography”’; (3) the search authority’s testimony concerning his discussion of the evidence and his decision to grant the search authorization; (4)United States v. Colbert, 605 F.3d 573 (U.S. Court of Appeals for the 8th Circuit 2010); and (5) the substantial deference to which a search authority is entitled in determining probable cause.
The CCA, noting that this was a case of first impression in the military, surveyed case law from the federal circuit courts of appeals. . . . It concluded that, where the affiant expressly alleges the nexus between child molestation and child pornography, the issuing authority is able to weigh the credibility of information before deciding whether to authorize the search. . . . `View[ing] the facts in a common sense manner,’ the CCA determined that `an individual accused of deliberately seeking out boys walking home alone and then engaging in brazen, repeated attempts to entice those boys into sexual activity is likely to possess child pornography, either as a means to gratify their desires or as an aid in those activities.’ . . .
U.S. v. Hoffman, supra.
It went on to point out that Hoffman claimed
none of the facts and circumstances provided to and relied upon by the search authority established a nexus between the attempt to entice children on the street to commit sex acts and the possession of child pornography on his digital media. We agree.
No evidence connected Appellant’s acts to his possession of child pornography. In place of the missing evidence, both the military judge and the CCA found persuasive language from an opinion by the United States Court of Appeals for the Eighth Circuit that matches the language Special Agent Shutt employed in her affidavit: `”There is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography.”’. . . .
The problem with relying on Colbert is that the facts were considerably different in that case. Colbert conversed for forty minutes with a five-year-old girl he met in the park, telling her that he had movies and videos in his apartment that she would like to see. During a consent search of his vehicle, police found handcuffs and other police-type gear. The Eighth Circuit held that, although a close case, the affidavit established probable cause by showing a direct link between the alleged enticement of a child and movies in his apartment, the place searched pursuant to a search warrant. U.S. v. Colbert, supra. That link is not present in Appellant’s case.
Under the circumstances of Appellant’s case, the facts before the search authority were simply not sufficient to provide a substantial basis for concluding that there was probable cause to believe Appellant possessed child pornography. See Dougherty v. City of Covina, 654 F.3d 892, 898–99 (U.S. Court of Appeals for the 9th Circuit 2011) (evidence of child molestation did not establish probable cause to search for child pornography).
U.S. v. Hoffman, supra.
The Court of Appeals therefore held that the
judgment of the United States Navy–Marine Corps Court of Criminal Appeals is reversed. The findings and sentence are set aside. Specification 2 of Charge III is dismissed with prejudice. A rehearing is authorized.
U.S. v. Hoffman, supra.
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Divorce, Joint Custody and the Emails
June 4th, 2016By Susan Brenner.
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 6th 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:
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.
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The Boyfriend, the Text Message and Driving While Impaired
June 3rd, 2016By Susan Brenner.
This post examines an opinion from the Court of Appeals of Minnesota: Tomlinson v. Commissioner of Public Safety, 2016 WL 2842941 (2016). The court begins, as courts usually do, by explaining how the case arose and the legal issues it raised:
Christine Tomlinson’s boyfriend contacted the sheriff’s office after midnight and reported that, based on his impression from a text-message exchange with Tomlinson and her custom of driving home drunk from the club meeting she had just left, he believed that Tomlinson was driving drunk. A deputy identified and stopped the truck Tomlinson was driving, finding Tomlinson to be considerably considerably intoxicated. Tomlinson stipulated to the state’s case, and the district court convicted her of two counts of driving while impaired.
Tomlinson argues on appeal that the district court should have suppressed all post-stop evidence because the deputy lacked reasonable suspicion to justify the stop. . . .
Tomlinson v. Commissioner of Public Safety, supra. You can, if you are interested, read about Minnesota’s DWI/DUE law here.
The opinion goes on to outline the facts that resulted in Tomlinson’s conviction:
About an hour and a half after midnight on a Thursday night in March 2015, Jay Janzen called the Watonwan CountySheriff’s Office. Janzen said that his girlfriend, Christine Tomlinson, was driving drunk from Vernon Center to their shared home east of Ormsby. Deputy Mark Slater drove to the couple’s rural home to investigate.
Deputy Slater spoke with Janzen. He learned from Janzen that Tomlinson was still not home, that she was driving from a snowmobile club meeting from which she regularly drives home drunk, and that his text-message exchange with Tomlinson informed him that Tomlinson had become lost.
Deputy Slater found Tomlinson’s pickup truck at about 2:20 a.m. traveling rapidly down a gravel road. The deputy drove close behind for some distance, until the truck slowed quickly and pulled to the right. The deputy stopped the truck. Tomlinson appeared to be drunk. Deputy Slater administered field sobriety tests, confirming his suspicion. He arrested her, took her to jail, and administered a breath test that indicated that her alcohol concentration was twice the per se intoxication limit.
The state charged Tomlinson with two counts of impaired driving based separately on her physical impairment and on her alcohol-concentration level. Tomlinson moved the district court to suppress all evidence obtained after the stop, arguing that Deputy Slater lacked reasonable suspicion to stop the truck.
Tomlinson v. Commissioner of Public Safety, supra.
As Wikipedia explains, in
Terry v. Ohio, the U.S. Supreme Court ruled that a person can be stopped and briefly detained by a police officer based on a reasonable suspicion of involvement in a punishable crime. If the officer has reasonable suspicion the detainee is armed, the officer may perform a `pat-down’ of the person’s outer garments for weapons. Such a detention does not violate the Fourth Amendment prohibition on unreasonable searches and seizure, though it must be brief. Reasonable suspicion does not provide grounds for arrest; however, an arrest can be made if facts discovered during the detention provide probable cause that the suspect has committed a crime.
Getting back to the Tomlinson case, the opinion also explains that the
district court conducted a hearing. The parties presented the deputy’s squad-car video recording depicting Deputy Slater following closely and then stopping Tomlinson’s pickup on the gravel road. The deputy said he based the stop on the tip and on Tomlinson’s driving. He emphasized her rapid deceleration and her movement to the right. Tomlinson countered, testifying that her deceleration and rightward movement was reasonable to allow the tailing car to pass.
The district court denied Tomlinson’s motion, deeming the stop justified based on the drunk-driving tip and on Tomlinson’s driving. Tomlinson stipulated to the state’s case under Minnesota Rule of Criminal Procedure 26.01, subdivision 4, preserving for appeal her right to challenge the district court’s suppression decision. The district court found Tomlinson guilty of impaired driving. She appeals.
Tomlinson v. Commissioner of Public Safety, supra.
The Court of Appeals began its analysis of Tomlinson’s appeal by noting she
asks us to reverse the denial of her motion to suppress, arguing that the stop was unconstitutional. We review de novo a district court’s conclusion that an officer had the constitutional ground to stop a motorist. State v. Burbach, 706 N.W.2d 484, 487 (Minnesota Supreme Court 2005). Police may stop a motorist without a warrant without offending the motorist’s Fourth Amendment rights if the officer bases the stop on reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21–22 (1968); State v. Timberlake, 744 N.W.2d 390, 393 (Minnesota Supreme Court 2008).
Tomlinson convincingly argues that her driving did not warrant the stop. A traffic violation itself would certainly be sufficient. State v. Anderson, 683 N.W.2d 818, 823 (Minnesota Supreme Court 2004). But an objectively reasonable officer would not conclude that Tomlinson’s driving was either illegal or suspicious. A reasonable officer would know that a late-night driver may be alarmed and act defensively upon being approached rapidly from behind and then tailgated by an unknown vehicle. Allowing oneself to be tailgated at high speed on a barren gravel road can be dangerous regardless of the tailgater’s condition or intentions. Cf. State v. Brechler, 412 N.W.2d 367, 368 (Court of Appeals of Minnesota 1987) (reasoning that a driver’s conduct could have been caused by the presence of a police car following in close proximity). At that hour a reasonable driver might also fear that the tailgater has criminal intentions or is suffering from some mental impairment, like, for instance, intoxication. We agree with Tomlinson that there was nothing objectively suspicious, illegal, or unusual about her slowing and pulling to the side of the road.
Tomlinson v. Commissioner of Public Safety, supra.
But the court also went on to explain that
there was more than Tomlinson’s driving. We assess the constitutionality of a traffic stop on all relevant circumstances, including the time, the location, and the officer’s ability to draw inferences and conclusions based on his training. Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minnesota Supreme Court1987). And reasonable suspicion may arise from information supplied by an informant. Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minnesota Supreme Court 1980). Although Tomlinson admitted to the district court that she had informed Janzen that she had been drinking, the record does not indicate that he relayed this specifically to the deputy.
The deputy nevertheless was aware of the following details: Tomlinson was driving very late, after midnight; Tomlinson reportedly customarily drives home drunk after she leaves the club meeting she had just left; Tomlinson got lost despite her apparent familiarity with her route; Tomlinson had still not found her way home in the 45 minutes between the time of the call and the time the deputy encountered her on the road; and Tomlinson’s boyfriend, who lives with Tomlinson, believed that her communication to him indicated that she was drunk. These circumstances would allow any reasonable officer to suspect that Tomlinson may have been driving drunk. This reasonable suspicion warrants the minimal intrusion of the brief traffic stop. Immediately after the stop the deputy saw that Tomlinson appeared to be drunk, justifying the longer detention necessary for the deputy to administer field sobriety tests.
Tomlinson v. Commissioner of Public Safety, supra.
The court also pointed out that Tomlinson argued that
Deputy Slater’s knowledge of tumult in her and Janzen’s relationship undermines the reliability of Janzen’s tip. We reach a different conclusion. When an informant gives sufficient detail allowing police to locate him and hold him accountable if his information turns out false, the officer can assume that the informant is telling the truth. City of Minnetonka v. Shepherd, 420 N.W.2d 887, 890 (Minnesota Supreme Court 1988). Janzen identified himself to the sheriff’s office and then spoke at his home in-person with the deputy. Janzen’s open exposure to punishment constituted a weighty counterbalance to the possibility that he might be trying to trouble Tomlinson by a false police report.
Tomlinson v. Commissioner of Public Safety, supra.
The Court of Appeals went on to explain that
[w]e are not persuaded otherwise by Tomlinson’s contention that Janzen’s report lacked credibility because he did not personally observe Tomlinson—or even hear her speak—before he told police she was intoxicated. The contention has only faint support in the caselaw. In Olson v. Commissioner of Public Safety, for example, the Supreme Court invalidated a stop that rested on an anonymous caller’s `bare assertion of a possibly drunk driver on the road.’ 371 N.W.2d 552, 556 (Minnesota Supreme Court 1985). Similarly, in Rose v. Commissioner of Public Safety, we concluded that the officer lacked reasonable suspicion when he relied on a gas-station attendant’s report that a driver was intoxicated, reasoning that the informant had not personally observed the driver and the circumstances did not inform the officer how the attendant concluded that the driver was intoxicated. 637 N.W.2d 326, 330 (Minnesota Court of Appeals 2001), review denied (Minn. Mar. 19, 2002).
But Olson and Rose are easily distinguished from this case. Janzen was not an anonymous informant who provided only a `bare assertion’ of `possibly’ drunk driving, like the informant in Olson. 371 N.W.2d at 556. Nor was he a stranger-informant who failed to provide any basis for his conclusion, like the informant in Rose. 637 N.W.2d at 330. Janzen expressed that Tomlinson was intoxicated, not just possibly intoxicated, and he was convinced of it based on his personal experience with Tomlinson’s regularly driving home drunk after her snowmobile club meetings and on her getting lost after leaving the meeting late that night. As for the nature of the contact between Janzen and Tomlinson, we recognize that a written exchange would almost certainly not prove intoxication. But even a text-message communication, particularly between people very familiar with each other, might raise the suspicion of intoxication either by its substance or its form.
Tomlinson v. Commissioner of Public Safety, supra (emphasis in the original).
The court therefore found that
[t]his case is sufficiently similar to those in which the informant confidently communicated drunk driving and in which the basis for the report was apparent. In Shepherd, the supreme court affirmed a stop based on a gas-station attendant’s reporting that he saw a drunk driver leave the station. City of Minnetonka v. Sheppherd, 420 N.W.2d 887, 890 (Minnesota Supreme Court 1988).
In Playle v. Commissioner of Public Safety, we deemed a fast-food employee’s tip sufficient after the employee reported encountering a drunk driver at a drive-up window. 439 N.W.2d 747, 748–49 (Court of Appeals of Minnesota 1989). And in Jobe v. Commissioner of Public Safety, we held that the stop was justified when the informant stated that he saw the reported driver swerving. 609 N.W.2d 919, 920, 923 (Court of Appeals of Minnesota 2000). The deputy here was reasonably satisfied from the informant’s familiarity with Tomlinson’s habits and from their contemporaneous communication that Tomlinson may be driving drunk.
The district court appropriately denied Tomlinson’s motion to suppress the evidence that followed the traffic stop.
Tomlinson v. Commissioner of Public Safety, supra.
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The Email Hack, the “Stolen Domain Names” and Personal Jurisdiction
June 2nd, 2016
By Susan Brenner.
This post examines a relatively brief opinion ithat was recently ssued by a U.S. District Court Judge who sits in the U.S. District Court for the District of Arizona: Wu v. BDK DSD, et al., 2016 WL 1059534. The first paragraph of the Complaint Yao Wu filed to initiate the lawsuit states that
Plaintiff brings this action pursuant to 18 U.S. Code § 2510 et seq., 18 U.S.C. § 2701 et seq., and state and federal common law for Defendant’s willful and unlawful access, interception, monitoring and viewing of Plaintiff’s electronic and stored electronic communications without his consent or authorization. Upon information and belief, Defendants illegally gained entry to Plaintiff’s email account and used or removed documents stored on his personal computer by using various methods, including, but not limited to, key loggers and other computer programs designed to enable remote access to, unmask passwords contained on someone else’s computer without leaving a trace.
Armed with Plaintiff’s personal information, Defendants stole the domain names . . from his account (accessible via his email) with his domain name registrar, eNom, and transferred it to Defendants’ domain name registrar, GoDaddy, in Arizona.
Complaint, Wu v. BDK DSD, et al., supra.
The Complaint goes on to outline factual allegations that, if proven, would support the plaintiff’s (Wu’s) claims against the defendants. Complaint, Wu v. BDK DSD, et al., supra. Among other things, the Complaint seeks a judgment that would “[a]ward Plaintiff compensatory damages according to proof at trial but in an amount not less than $100,000.00”. Prayer for Relief Complaint, Wu v. BDK DSD, et al., supra.
It also asks that, as part of the judgment, the District Court Judge
[e]nter a temporary and permanent order, pursuant to 18 U.S. Code § 2515 and 18 U.S. Code § 2707(b), enjoining Defendants from directly or indirectly using or disclosing any information contained within any of Plaintiff’s electronic communications, documents attached to any such electronic communication that Defendants may have received, and documents stored on Plaintiff’s personal computers. . . .
Complaint – Prayer for Relief, Wu v. BDK DSD, et al., supra.
The Complaint was filed with the District Court on September 22, 2015 and initiated Civil Case 2:15-cv-01898-DLR. Wu v. BDK DSD, et al., supra.
According to the opinion, on February 26, 2016, the District Court Judge who has the case
ordered that Plaintiff show cause why the case should not be dismissed for lack of jurisdiction and venue. (Doc. 18.) In the Order, the Court doubted whether it has personal jurisdiction over Defendant, who has no connection with Arizona, based solely on Defendant’s alleged agreement to non-party GoDaddy.com, LLC’s terms and conditions of service. The terms and conditions contain an Arizona forum selection clause, which Plaintiff claims subjects Defendant to personal jurisdiction in this forum.
Wu v. BDK DSD, et al., supra.
The opinion went on to note that
Plaintiff brought suit against Defendant BDK DSD for allegedly hacking into his email accounts and stealing numerous domain names. (Doc. 1, ¶ 1.) Because Defendant’s name, address, and country of origin are unknown, the Court permitted service by email. (Doc. 11.)
Plaintiff served Defendant via email, and moved for default judgment after Defendant failed to respond. (Docs. 12, 17.) The Court denied the motion, citing concerns with exercising personal jurisdiction over an unknown Defendant with no connection to Arizona, and ordered Plaintiff to file a supplemental brief addressing the issue. (Doc. 18).
Wu v. BDK DSD, et al., supra. In a footnote to the above paragraph, the opinion notes that “BDK DSD’s listed country of residence appears to be China.” Wu v. BDK DSD, et al., supra.
The reference to “service by email” in the above paragraph goes to the need, in U.S. civil litigation, for the party who brings the suit (plaintiff) to “serve” the party or parties that are being sued (defendant(s)) with notice that the suit has been filed and with documents that apprise the defendant(s) of what it involves.
Wikipedia’s entry on “Service of Process” explains what is involved and lists the various options plaintiffs have in effecting service of process, e.g., personal service by an individual engaged to do this or service by mail. Rule 5(b)(2)(E) of the Federal Rules of Civil Procedure, which you can find here, allows sending service “by electronic means” under certain circumstances.
And, as Wikipedia explains, in civil litigation a default judgment
is a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. The failure to take action is the default. The default judgment is the relief requested in the party’s original petition.
Default can be compared to a forfeit victory in sports. In a civil trial involving damages, a default judgment will enter the amount of damages pleaded in the original complaint. If proof of damages is required, the court may schedule another hearing on that issue. A party can have a default judgment vacated, or set aside, by filing a motion, after the judgment is entered, by showing of a proper excuse.
Getting back to the opinion, the District Court Judge went on to explain that a court can
exercise personal jurisdiction only when the defendant has sufficient `minimum contacts’ with the forum state `such that jurisdiction does not offend traditional notions of fair play and substantial justice.’ International Shoe Co. v. Washington, 326 U.S. 310 (1945). . . . The minimum contacts requirement may be satisfied by establishing either general or specific jurisdiction. See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984).
Here, Plaintiff only argues the Court may exercise specific personal jurisdiction over Defendant.
To establish specific personal jurisdiction, a plaintiff must show: (1) the nonresident defendant purposefully directed his activities at the forum, (2) the claim arises out of the defendant’s forum-related activities, and (3) the exercise of jurisdiction is reasonable. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (U.S. Court of Appeals for the 9th Circuit 2004). “The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant focuses on the relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (internal quotation marks omitted).
Furthermore, `[f]or a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State.’ Walden v. Fiore, supra. (emphasis added).
Wu v. BDK DSD, et al., supra.
The District Court Judge went on to point out that the
Plaintiff argues that Defendant `entered into contracts with Arizona-based GoDaddy concerning the stolen domain names at issue.’ (Doc. 19 at 1.) By stealing the domain names, Plaintiff asserts Defendant `agreed to be subject to personal jurisdiction for disputes concerning the registration and use of these stolen domain names’ in Arizona. (Id.at 2 (emphasis in original).) The Court disagrees.
Wu v. BDK DSD, et al., supra.
The judge went on to explain that the
only connection Defendant is alleged to have with Arizona is based on GoDaddy’s terms and conditions, which contain a forum selection clause. The clause provides:
`any action relating to or arising out of this Agreement shall be brought in the state or federal courts of Maricopa County, Arizona, and you hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to) jurisdiction and venue in the state and federal courts of Maricopa County, Arizona.’
(Doc. 20-1 at 25.) Under general contract principles, a forum selection clause may give rise to waiver of objections to personal jurisdiction, provided that the defendant agrees to be so bound[.]” Holland Am. Line Inc. v. Wartsila N.A., Inc., 485 F.3d 450, 458 (U.S. Court of Appeals for the 9th Circuit 2007) (internal citations omitted).
Plaintiff relies on Productive People, LLC v. Ives Design, No. CV-09-1080-PHX-GMS, 2009 WL 1749751 (U.S. District Court for the District of Arizona June 18, 2009), to support his argument that the Court has personal jurisdiction over Defendant based solely on the forum selection clause. In that case, the plaintiff brought suit in Arizona against Ives Design, a Colorado company, for trademark infringement arising out of its use of the plaintiff’s `NAMEDROP’ mark by operating `namedrop.com.’ Id. at *1.
The plaintiff also named GoDaddy.com as a defendant because it served as the host for the domain name. Id. Ives Design argued that the court lacked personal jurisdiction over it because it had no contacts with Arizona. Id. But the court did not decide whether Ives Design had sufficient contacts with the forum for purposes of specific personal jurisdiction. Id.
Instead, the court resolved the jurisdictional question based on Ives Design’s undisputed agreement to GoDaddy’s terms of service agreement when it purchased the domain name from GoDaddy. Id. The terms of service agreement contained an Arizona forum selection clause, which the court found sufficient to create personal jurisdiction over Ives Design. Id. at *2.
Wu v. BDK DSD, et al., supra (emphasis in the original).
The judge then explained that the decision in
Productive People is distinguishable from this case. There, it was undisputed that Ives Design agreed to be bound by the forum selection clause, especially given that it directly contracted with GoDaddy to purchase the domain. In other words, Ives Design chose to contract away its right to raise certain defenses.
Here, GoDaddy is not a party, and Defendant did not contract with GoDaddy to purchase the domain names. Defendant stole them. Though certainly illegal, such conduct hardly represents an agreement to be bound by the forum selection clause. Nor does it suggest Defendant contracted away the right to assert the defense.
Much like contract formation, personal jurisdiction based on a forum selection clause is grounded on some form of consent, see S.E.C. v. Ross, 504 F.3d 1130, 1149 (U.S. Court of Appeals for the 9th Circuit 2007) (`the parties may consent to jurisdiction through a forum selection clause in a contract’), but the Court finds no consent here.
Thus, the Court cannot exercise personal jurisdiction over a nonresident Defendant based on a provision in a contract to which Defendant is not a party.
Wu v. BDK DSD, et al., supra.
He also pointed out that,
[i]n addition, the Court finds that it lacks specific personal jurisdiction over Defendant. Defendant has no contact with Arizona and did not cause harm in Arizona. If anything, Defendant directed his illegal activities at California, the location of Plaintiff’s residence, and presumably, his home computer containing the emails and information related to the domain names.
Certainly, Defendant’s `suit-related conduct,’ i.e., hacking into Plaintiff’s computer files and stealing several domain names, does not create a `substantial connection’ with Arizona sufficient to create specific jurisdiction. See den v. Fiore, supra. Plaintiff has failed to demonstrate that this Court’s exercise of personal jurisdiction over Defendant would be consistent with due process, and has therefore failed to show cause to avoid dismissal.
Wu v. BDK DSD, et al., supra.
The District Court Judge therefore held that
IT IS ORDERED that Plaintiff’s motion for default judgment . . . is DENIED. Plaintiff has not shown cause in accordance with the Court’s February 26, 2016 Order . . . and thus Plaintiff’s complaint is dismissed. The Clerk is directed to terminate this action.
Wu v. BDK DSD, et al., supra (emphasis in the original). (I’m posting this today because I’m going to be tied up all day Monday and wouldn’t be able to post it then.)
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Child Pornography, Miranda and the Clock Settings
June 1st, 2016By Susan Brenner.
This post examines an opinion from the Appellate Court of Connecticut: State v. Spence, 2016 WL 1567017 (2016). The opinion begins by explaining that the facts,
which the jury reasonably could have found, and procedural history are relevant to this appeal. The state police began investigating the defendant’s activities when they received a tip that a person with a Connecticut Internet protocol (IP) address was downloading child pornography over peer-to-peer file sharing networks. Using a computer program tailored for law enforcement, the state police accessed the identified IP address and downloaded images of child pornography. The state police applied for and were granted an ex parte order to require the Internet service provider to reveal the name and street address associated with the identified IP address. The state police then obtained a search warrant for the defendant’s home.
On June 13, 2012, state troopers and local police executed a search and seizure warrant at the defendant’s home at 34 May Street in Fairfield. Police entered the home shortly after 6 a.m. and found the defendant, his wife, three children, and mother-in-law in the single-family residence. At that time, the lead investigator, state police Detective David Aresco, asked the defendant if he could explain why the state police were in his home. In response, the defendant asked if `he could speak with Detective Aresco in private.’ Once outside, the defendant received a Miranda warning and then provided an oral and written statement acknowledging that he had downloaded more than 150 images and videos of child pornography and that he had exclusive control of the computer where the files were stored.
State v. Spence, supra.
Spence was convicted, “after a jury trial, of possession of child pornography in the first degree in violation of [Connecticut] GeneralStatutes § 53a–196d (a)(1).” State v. Spence, supra. The opinion explains that, on appeal, Spence claimed that the
trial court committed error by (1) `denying the defendant’s motion to suppress his statements’ made to the police prior to his formal arrest; (2) `giving a constructive possession instruction that treated a computer as the equivalent of a premises’; and (3) `permitting the state to offer rebuttal evidence on matters that it knew were at issue during the case-in-chief.’
State v. Spence, supra.
Prior to his trial, Spence
moved to suppress the statements he made to the state police on the day his home was searched. On September 6, 2013, the trial court conducted a hearing on the motion. Ultimately, the trial court denied the motion and the defendant was convicted by a jury of possession of child pornography in the first degree.
State v. Spence, supra.
The Appellate Court began its analysis of Spence’s argument concerning his motion to suppress by explaining that he claimed the
trial court improperly denied his motion to suppress his statements to the police on the day the search warrant was executed at his home. Specifically, the defendant argues that when the police entered his home and gathered together the residents in one room, based on the circumstances, a reasonable person in his situation would believe he was in custody. Accordingly, he claims that the police should have provided a Miranda warning before they asked any questions. Prior to trial, the defendant sought to suppress his initial response to Detective Aresco asking if he could speak to the detective `in private.’ He also sought to suppress the oral and written statements he made after receiving Miranda warnings. The defendant argued that the lack of a Miranda warning prior to his initial request to speak with the police in private tainted the statements that followed.
State v. Spence, supra.
The Appellate Court began its analysis of Spence’s argument by explaining that the
search warrant was executed at the defendant’s home at approximately 6:10 a .m. on June 13, 2012. Eight to ten state troopers and police officers entered the home. The officers were wearing standard issue side arms, bulletproof vests, and clothes that identified that they were law enforcement. The defendant was sleeping on the second floor when the police arrived. After the police conducted a protective sweep of the rooms in the home, they gathered the entire family into the kitchen or dining room area.
Without issuing a Miranda warning, Aresco informed the residents that he was investigating a computer crime and then asked the defendant if he could explain why the police were in his home. The defendant responded by asking if they could speak in private. The defendant therefore was brought outside to an unmarked police car. He was advised of his Miranda rights and signed a waiver notice to confirm that he was aware of his rights. The defendant was questioned and Aresco recorded notes and prepared a written statement. The three page written statement was read back to the defendant. After rereading it and making corrections, the defendant signed the statement and initialed each page. The questioning lasted for approximately one and one-half hours and the defendant was allowed to take a cigarette break. The court held a hearing on the motion to suppress that included testimony from Aresco and another state trooper who was involved with the execution of the search warrant at the defendant’s home. The court denied the defendant’s motion after concluding that the defendant was not in custody when he initially responded to Aresco’s inquiry.
State v. Spence, supra.
As Wikipedia explains, officers are only required to give Miranda warnings when a suspect is in “custody” and is subject to “interrogation.” The Appellate Court took up that issue, explaining, initially, that
a reasonable person in the defendant’s position would not have believed that he was in police custody of the degree associated with a formal arrest. On the basis of the facts that the trial court reasonably could have found, the police presence did not overwhelm the defendant to the point that a reasonable person would believe that he was in custody.
Any questioning that occurred in the defendant’s home was informal in nature and short in duration. Aresco advanced a general question that introduced his presence in the home. The defendant did not answer the question. Instead, he effectively put off any discussion by requesting to speak with the investigators in private. While inside the home, the defendant was not handcuffed or restrained. The surroundings were familiar to the defendant. He was in an open area of the home, and he was surrounded by his family including other adults. While there were as many as ten police officers in the home assisting with the execution of the search warrant, they were not brandishing their weapons.
Considering the totality of the circumstances, the trial court properly determined that the defendant was not in custody and therefore a Miranda warning was not required. We do note that Aresco did initiate the questioning and the defendant was not informed by police that he was free to leave. These . . . factors weigh in favor of a custodial environment, however, a consideration of the remaining factors applied to this case compels the conclusion that a reasonable person in the defendant’s position would not have believed that he was in police custody of the degree associated with formal arrest.
State v. Spence, supra.
The Appellate Court therefore held that the trial court judge “properly denied the motion to suppress the defendant’s statements.” State v. Spence, supra.
The court then took up Spence’s argument that the trial judge
erroneously instructed the jury on constructive possession. The trial court instructed the jury that it could infer that the defendant possessed the images of child pornography if it found that the defendant had control of the computer that contained the images. The defendant argues that the trial court was required to instruct the jury that it could infer possession of pornography only if it found that the defendant had control over the computer and the premises within which it was found.
State v. Spence, supra.
The opinion goes on to explain that
following additional facts are relevant to the defendant’s claim. During the course of the trial, Detective Aresco testified that one computer was removed from the defendant’s home as a result of the execution of the search warrant on June 13, 2012. The computer was found in the defendant’s bedroom, and he told police that he kept it under his bed. The defendant lived in the home with his wife, three children, and his wife’s parents. Aresco testified that other computers also were found in the home and examined for child pornography, but only the defendant’s computer was found to contain the illicit images. In his statement to the state police, the defendant stated that his computer was password protected and `I am the only person that has that computer—that uses that computer.’
State v. Spence, supra.
The court also noted that
[a]t the close of the trial, the court instructed the jury regarding constructive possession: `The state has submitted evidence in order to show that the defendant had control over the computer where the video files were found. Control of the computer gives rise to the inference of unlawful possession. And the mere access by others is insufficient to defeat this inference. If it is proven that the defendant is the exclusive owner of the computer where the video files were found, then you may infer that he controlled the computer. However, when it is shown that ownership or use of the computer is not exclusive, you may no longer make this inference. The ability to control the computer must be established by independent proof.’ The court also instructed the jury that in order to convict the defendant, they were required to find beyond a reasonable doubt that he `knowingly possessed the child pornography.’
State v. Spence, supra.
The Appellate Court found that the trial court’s jury
instruction included an explanation of each of the elements the jury had to find present in order to convict the defendant of the alleged crime. Finding control of the home in this case is not a requirement to infer possession of the contraband when the contraband is contained within another object, here the computer, that itself could be controlled and secured through the use of a password. `To mitigate the possibility that innocent persons might be prosecuted for . . . possessory offenses. . . it is essential that the state’s evidence include more than just a temporal and spatial nexus between the defendant and the contraband. . . While mere presence is not enough to support an inference of dominion or control, where there are other pieces of evidence tying the defendant to dominion and control, the [finder of fact is] entitled to consider the fact of [the defendant’s] presence and to draw inferences from that presence and the other circumstances linking [the defendant] to the crime.’ (Internal quotation marks omitted). State v. Smith, 94 Conn. App. 188, 891 A.2d 974 (Appellate Court of Connecticut 2006). . . . It was not necessary for the jury to find that the defendant controlled the premises in order to infer that he possessed the child pornography.
State v. Spence, supra.
The court then took up Spence’s last argument, i.e., that
the trial court abused its discretion when it allowed the state to present rebuttal evidence concerning the clock settings on the defendant’s computer. Although the state had the opportunity to present this evidence during its case-in-chief, the evidence in question became relevant only when the defendant opened the door by presenting an alibi defense that he was working when the pornographic images were downloaded.
State v. Spence, supra.
The court also pointed out that the
following additional facts are relevant to the defendant’s claim. During the presentation of the state’s case-in-chief, defense counsel cross-examined Detective Aresco about the dates and times that the pornographic images were downloaded to the defendant’s computer. Defense counsel provided Aresco with a copy of the state police computer analysis report that had been generated following an examination of the defendant’s computer. Using the report to refresh his memory, Aresco read the dates and times captured in the report for when specific files were downloaded. On redirect examination, Aresco testified that based on his training, the report’s recorded download time was not reliable evidence.
On recross-examination, Aresco testified that the file download times captured in the report may have been off by at least two hours from the time when the files were actually downloaded by the defendant because Aresco observed that the clock in the computer was set to the Pacific time zone. The next day, after the state rested and prior to the defense presenting any witnesses, the state informed the court that following his testimony, Aresco had further reviewed file download times and found that his testimony regarding a two hour difference in time was incorrect.
Aresco was now prepared to testify that when he examined the computer he observed a nine hour difference between the clock in the defendant’s computer and the `actual time.’ The state informed the court and defense counsel that Aresco would be presented as a rebuttal witness. The defendant objected to any rebuttal testimony regarding the time to which the clock in the computer was set because he considered it to be new forensic evidence that was available to the state before it rested its case. The trial court deferred making a ruling on the objection so it could consider the defendant’s argument.
The defendant then called as his first witness a manager from the bus company where he was employed. The manager testified to the dates and times when the defendant drove his bus route. The defendant sought to establish that he was driving a bus at the time that the child pornography images were downloaded to his computer. This theory was predicated on Aresco’s earlier testimony regarding when each illicit image was downloaded to the defendant’s computer.
State v. Spence, supra.
Next, the opinion explains that after Spence rested his defense case, the trial judge
found that the defendant would not be prejudiced by rebuttal testimony from Aresco because the defendant had been given notice of the state’s claim that the time recorded on the computer was inaccurate. Aresco returned to the witness stand and testified that he had been mistaken in his prior testimony and that he had observed a nine hour difference between the time on the clock in the defendant’s computer and the `actual time.’ The defendant cross-examined Aresco about why his testimony changed and the difference in time.
State v. Spence, supra.
The Appellate Court found that this procedure did not prejudice Spence:
On the basis of our review, we conclude that the trial court did not abuse its discretion by permitting the state to recall the pertinent witness to clarify an earlier representation as to when child pornography was downloaded to the defendant’s computer. The testimony was proper rebuttal evidence. The defendant was on notice of the timing issue and was able to cross-examine the witness on rebuttal. See State v. Cavell, supra, 235 Conn. 728 (state forensic analysis that was not relevant during case-in-chief was allowed as rebuttal evidence). The state was not required to prove the timing of when the child pornography was downloaded, only that the defendant was in possession of it. It was the defense that made relevant the computer recorded download times.
State v. Spence, supra.
It also noted that
[f]ollowing the defendant’s cross-examination of Aresco, the state took immediate steps to determine the actual temporal discrepancy and informed the trial court and the defendant that it would seek to introduce rebuttal evidence. Prior to presenting his defense, the defendant was aware that the state was prepared to offer rebuttal evidence regarding the computer time. The defendant did not seek a continuance to afford himself time to address the state’s additional evidence. The trial court was within its discretion to allow the state to refute the testimony presented by the defendant.
State v. Spence, supra.
So, for these and other reasons, the court affirmed Spence’s conviction. State v. Spence, supra.
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The Tire Shop, the Robbery and Accomplice-Witness Testimony
May 31st, 2016By Susan Brenner.
This post examines an opinion from the Court of Appeals of Texas – Texarkana: Walker v. State, 2016 WL 1600268
(2016). As courts usually do, the Court of Appeals began by explaining how the case arose:
Edgar Llorens was robbed at Eddie’s Tire Shop, his business in McLennan County, by three men, each armed with a handgun and each having his face at least partially covered. Though video surveillance cameras recorded the robbers and Llorens, Llorens could not identify any of the men. Bronchea Gerad Walker was charged with aggravated robbery, along with Oliver Johnson and Willie Clark, who by definition are accomplices. Much evidence came from Johnson’s testimony concerning the robbery and regarding text messages exchanged between Walker’s and Johnson’s cell phones. From his conviction for which he received a sentence of twenty-three years’ incarceration, Walker appeals, urging two points of error, both related to the status of Johnson and Clark as accomplices.
(1)
Walker v. State, supra.
The brief Walker filed on appeal noted that, when interviewed by police, Llorens said
men came and held him at gunpoint around 8:00 that morning. . . . He allowed them to take a few hundred dollars that were in his pocket. . . . One of the men searched the desk in Llorens’s office and took a camera and a radar detector. . . . The State then published a video recording marked as State’s Exhibit 1 . . . to the jury. . . .
After the State played the recording from Camera 1,4 Llorens explained that the men arrived at around 8:03 and had left by 8:04:18. He then went outside and called the police. . . . The State then played the recording from Camera 2. . . . Llorens testified that all three men had guns. . . . One of them shoved him after Llorens said he did not have any money other than the money in his pocket. . . . This man had a white t-shirt and a black ski mask. . . . Llorens later testified that this man put a `gun in my face.’ . . .
Appellant’s Brief, Walker v. State, supra.
The Court of Appeals went on to note that Walker’s two arguments on appeal both dealt with whether text messages from Johnson’s cell phone were properly admitted at his trial. Walker v. State, supra. More precisely, Walker argued that (i) the text messages from Johnson’s phone “constituted inadmissible hearsay”; and (ii) the trial testimony of Walker’s accomplices, Johnson and Clark, was not sufficiently corroborated. Walker v. State, supra. (In a footnote, the court explains that “Johnson and Walker exchanged a series of text messages on August 9 and August 14, 2013, in which they ostensibly discussed plans for the robbery that took place on August 14, 2013.”) The court took up each argument, in this order. Walker v. State, supra.
Walker argues that text messages from Johnson’s cell phone were not sufficiently authenticated and therefore constituted inadmissible hearsay, as there was insufficient evidence to connect those messages with Walker. We disagree.
We review the admissibility of evidence for an abuse of discretion and will reverse the trial court’s decision only if its ruling lies outside the zone of reasonable disagreement. Butler v. State, 459 S.W.3d 595, 600 (Texas Court of Criminal Appeals 2015); Tillman v. State, 354 S.W.3d 425, 435 (Texas Court of Criminal Appeals 2011). A text message, a short, typed communication typically sent and received using cellular telephones, is, like other evidence, authenticated when evidence supports a finding that it is what its proponent claims it to be. Butler v. State, supra; see TEXAS RULES OF EVIDENCE 901(a) (proponent must produce evidence sufficient to support finding that item is what proponent claims). While a text shown to have originated from a particular individual’s cell phone might point to him or her as the probable author of that message, the proponent needs other authenticating information, given that someone else could have used the individual’s phone. Butler v. State, supra. The proponent of a text message as evidence could authenticate the message in various ways, including use of a witness who has knowledge about the message or pointing out distinctive characteristics of the message that tend to connect it to a particular person. Butler v. State, supra; see TEXAS RULES OF EVIDENCE 901(b)(1), (4). Here, the State provided both types of authenticating evidence.
Walker v. State, supra.
The court went on to explain that
[I]n addition to evidence that the number of the cell phone originating the messages was linked to Walker, within the messages themselves is information that tends to connect them with Walker as the author. (In a footnote, the court explains that
Johnson testified that the text messages originated from `Bshay,’ identified by Johnson as Walker. Haywood Sawyer, who at the time of trial was an investigator with the Bellmead Police Department, testified that he extracted Walker’s cell phone number from Johnson’s cell phone by looking at the contacts and getting the number for `Bshay.’ Sawyer then ran this number through a Facebook search engine. Sawyer explained that the search engine will tie the number to a person with a Facebook account, if that person listed his telephone number on Facebook when the account was initiated or updated. The number Sawyer extracted from Johnson’s cell phone for `Bshay’ matched Walker’s Facebook account, and Sawyer was able to obtain a correct spelling of Walker’s name.
Walker v. State, supra. The court also noted that the
author of the messages knew when Walker’s mother left the house for work and the fact that Walker did not own a car. Johnson testified from his years of dealing with Walker and from the fact that intervening voice calls came from the same telephone that Walker was originating the text messages and calls from that number, as was his custom.
Walker v. State, supra. In yet another footnote, the court explained that
Johnson testified that he and Walker discussed plans for the robbery on their cell phones during the time they were also discussing these plans via text messages. Johnson and Walker exchanged twenty-seven cell phone calls on August 10 through August 12, and nine additional calls on August 13 and 14. The cell phone record reflecting this series of calls was an accurate depiction of an image from Johnson’s cell phone showing the history of calls between Johnson and the contact known as `Bshay.’
Walker v. State, supra.
The Court of Appeals then took up the substance of Walker’s argument, noting that
Walker claims that, since Johnson was an accomplice, his testimony authenticating the text messages, without corroboration, cannot be used to support Walker’s conviction. We disagree. The authentication rule requires the proponent of evidence to supply supporting information sufficient to support a finding that the item of evidence is what the proponent claims it is. TEXAS RULES OF EVIDENCE 901. Here, we are concerned solely with Johnson’s testimony that the text messages he received were from Walker. The purpose of the authentication rule is to ensure the trustworthiness of the information offered into evidence. See Venable v. State, 113 S.W.3d 797, 800 (Court of Appeals of Texas –Beaumont 2003, pet. ref’d). There is no rule that would require the trial court to permit only those witnesses whom it finds credible and sufficiently disinterested to testify regarding authentication. The credibility of a witness is a question for the jury. The trial court has discretion to admit evidence that a reasonable juror could find sufficiently identified. Druery v. State, 225 S.W.3d 491, 504 (Texas Court of Criminal Appeals 2007).
In contrast, the policy underlying the accomplice-witness rule is to make sure that a conviction is not based solely on testimony of a biased accomplice who perhaps has good reason to incriminate the defendant. Accomplices often strike bargains with the State, in which the State agrees to a favorable sentencing recommendation in return for the accomplice’s testimony against the defendant. See Blake v. State, 971 S.W.2d 451, 460 (Texas Court of Criminal Appeals 1998). Additionally, `those accused of crimes tend to try to place the responsibility for the commission of the crime on the other participants while downplaying their own participation, often in order to avoid the consequences of criminal acts.’ Blake v. State, supra. Consequently, the rule was designed to prevent a defendant from being wrongly convicted. Blake v. State, supra.
Walker v. State, supra.
It went on to explain that the
authentication rule and the accomplice-witness rule thus fulfill different purposes at trial. The authentication rule is an evidentiary rule that guards against admitting evidence unless it is supported by evidence suggesting that it is what the proponent claims it is. The accomplice-witness rule is not an evidentiary rule, but is designed to protect the defendant from being wrongfully convicted on the testimony of an accomplice alone.
We see no reason to append the additional requirement of corroboration to the authentication rule when the authentication testimony is offered by an accomplice, and decline to hold that such a requirement is mandated either under the authentication rule or the accomplice-witness rule.
Because the trial court acted within its discretion to find that the text messages were properly authenticated, they were properly admitted into evidence.
Walker v. State, supra.
The Court of Appeals therefore held that “[b]ecause the trial court acted within its discretion to find that the text messages were properly authenticated, they were properly admitted into evidence.” Walker v. State, supra.
It then took up Walker’s argument that “there is no evidence corroborating the trial testimony of accomplices Johnson and Clark and that, therefore, his conviction cannot stand.” Walker v. State, supra. It went on to explain that
[t]here is no dispute that Johnson and Clark were accomplices. Walker’s claim is that no, or insufficient, evidence in this record, other than accomplice testimony within the meaning of Article 38.14 of the Texas Code of Criminal Procedure, tends to connect Walker with the commission of the charged offense. See Id. We find in this record sufficient evidence tending to connect Walker with the robbery in question.
Walker v. State, supra. In a footnote, the court quoted the article in question:
A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of an offense.’ Article 38.14 of the Texas Code of Criminal Procedure.
The Court of Appeals went on to explain that the
[t]he corroborating evidence needed to allow use of accomplice-witness testimony need only tend to connect the defendant with the crime; it need not be sufficient alone to establish guilt. Castillo v. State, 221 S.W.3d 689, 691 (Texas Court of Criminal Appeals 2007); Medrano v. State, 421 S.W.3d 869, 883 (Texas Court of Appeals — Dallas 2014, pet. ref’d). Instead, the evidence must only link the defendant in some way to the commission of the offense such that rational jurors could conclude that this evidence sufficiently tends to connect the defendant to the offense. Malone v. State, 253 S.W.3d 253, 257 (Texas Court of Criminal Appeals 2008). Such corroboration may come from small details. Trevino v. State, 991 S.W.2d 849, 852 (Texas Court of Criminal Appeals 1999); Medrano v. State, supra. Based on the particular facts and circumstances of each case, our analysis involves the combined force of all the non-accomplice evidence that tends to connect the accused to the offense. Smith v. State, 332 S.W.3d 425, 442 (Texas Court of Criminal Appeals 2011); Medrano v. State, supra.
Walker v. State, supra.
The court then applied the above principles to the issue in this case, explaining that the
[o]fficers were able to gain access to Johnson’s cell phone containing text messages and voice call logs reflecting communications with a `Bshay,’ whom officers were able to identify independently as Walker. The text messages are communications between Johnson and Walker, ostensibly planning the robbery. Walker contends that the text message evidence is inadmissible and therefore cannot be used to corroborate the accomplice-witness testimony. We have determined that the text messages were admissible. Even if they were improperly admitted, they should be considered in our review of the sufficiency of corroborating evidence. Medrano v. State, supra. Walker next argues that, at most, the text messages connect Walker to Johnson, but not to the commission of the offense. We disagree.
The text messages from Friday, August 9 reveal (1) that Walker and Johnson were looking for some `wheels’ and the time at which those wheels would be needed at Walker’s house early that morning, (2) that Walker reassured Johnson that they would not come out `empty handed,’ (3) that they both needed money, (4) that Walker was skeptical about letting someone he did not know drive, even though that person would not say anything, (5) that Walker stated that he would wait, rather than to get it done on that morning with a driver he did not know, and that they could `go anytime of the week.’ The text messages from Wednesday, August 14 reveal (1) that, at 2:17 a.m., Walker told Johnson, `We [are] on 4 2mrrw,’ (2) that Walker told Johnson that he was up at 6:17 a.m., but asked Johnson to wait until about 6:45 to leave, and (3) that, when Johnson told Walker he was on his way at 6:50 a.m., Walker told him, `[W]ait till My [mother] leave[s].’ Johnson explained that Walker was asking him to wait until his mother left for work. The robbery took place at 8:00 a.m. that morning.
These text messages establish that Walker needed a car for the purpose of getting money, that he did not trust someone that he did not know to drive the car, even though he was assured that the driver would not talk, and that he did not want Johnson to pick him up until his mother left for work on the morning of August 14, slightly more than one hour before the robbery took place. Additional non-accomplice evidence showed that Walker’s mother was scheduled to arrive at work on the morning of the robbery at 7:00 a.m., that she worked her usual shift that day, and that Johnson was at the scene of the robbery that morning.
Walker testified in his own defense and admitted to having known Johnson for several years and having texted Johnson as reflected in the messages introduced into evidence. He explained that the text messages reflected his agreement to front Johnson marihuana so Johnson could sell it to get money. Walker further testified that he and Johnson were set to do a drug deal the morning of August 14 at the same time the robbery happened. The jury could have found this testimony lacked credibility and was simply an attempt to explain away incriminating evidence. The totality of this evidence would permit a reasonable fact-finder to conclude that the text messages tend to connect Walker to the robbery. See Cerna v. State, 441 S.W.3d 860, 866 (Texas Court of Appeals — Houston [14th Dist.] 2014, pet. ref’d) (among other things, fact that defendant exchanged text messages with accomplice just before murder corroborated testimony of accomplice).
Also, Walker’s physical characteristics are said to be consistent with physical characteristics of one of the robbers captured by the video recordings of the robbery, other than Clark and Johnson. That, too, tends to connect Walker with the crime.
We find sufficient corroboration of Clark’s and Johnson’s testimony at trial to allow its admission and, thus, Walker’s conviction.
We affirm the judgment of the trial court.
Walker v. State, supra.
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The Internet Search Engine, Confidential Informants and the Fourth Amendment
May 30th, 2016By Susan Brenner.
This post examines a recent opinion from the Supreme Court –Kings County, New York: People v. Pierre, 2016 WL 1229083 (2016). The court begins by explaining that Jimmy Pierre, the defendant in this case,
moves to controvert the search warrant issued in this case, and for suppression of evidence seized pursuant to its execution. The People oppose. In deciding this motion, the court reviewed defendant’s Motion to Controvert, the People’s Affirmation in Opposition and defendant’s Response to the People’s Opposition. The court also examined unredacted copies of the search warrant and supporting affidavit presented to the issuing judge, a copy of the applicable Terms of Service from Google, and an affidavit from a Google manager, all submitted by the People.
People v. Pierre, supra.
The opinion goes on to explain that
[p]ursuant to a complaint received on April 24, 2014, defendant was arrested on July 3, 2014, and indicted under Indictment No.5362/2014 (hereinafter the 2014 indictment) for Course of Sexual Conduct Against a Child in the First Degree (P.L. § 130.75[1][a] ) and other charges. The offenses alleged under this indictment took place at 47 McKeever Place in Kings County.
On September 11, 2014, Detective Luciana Queiroga, acting upon information received from the National Center for Missing and Exploited Children (hereinafter NCMEC), showed the Assistant District Attorney prosecuting defendant under the 2014 indictment 14 images of child pornography. The 14 images in question had been uploaded to a Google Picasa account. They were detected by Google, confirmed by means of a manual human review and subsequently reported to NCMEC’s CyberTip line on or about August 20, 2013. Detective Queiroga’s investigation, which included subpoenas to Google and relevant cellular service providers, determined that the Google Picasa account to which the images were uploaded belonged to defendant, whose address was 47 McKeever Place in Kings County. Upon reviewing the images the Assistant District Attorney determined that the subject depicted is the complaining witness in the 2014 indictment.
On September 17, 2014, Detective Queiroga applied to a judge of this court for a warrant to search 47 McKeever Place for property, including computer equipment, electronic media storage devices, cameras, cellular telephones and physical records. The search warrant application also requested authority for forensic examination of any electronic devices recovered as a result of the search. The issuing judge granted the application and signed the search warrant as submitted. It was executed the next day. The property recovered during the execution of the warrant included computers, cellular telephones and electronic media storage devices. Forensic examination led to the discovery of 47 images of child pornography.
On June 4, 2015, defendant was indicted on 47 counts of Possessing a Sexual Performance by a Child (P.L. § 263.16–one for each image recovered in the search) and other charges, under Indictment # 3505/2015. The present motion practice ensued.
People v. Pierre, supra. Pierre made a number of arguments on appeal, but this post only examines some of them — the ones I thought were most interesting.
The court went on to explain that Pierre made
three arguments in support of his motion to controvert: 1) that the information supplied to the issuing judge in support of the search warrant failed to establish the reliability and basis of knowledge of the informant and thus failed to provide probable cause for the search; 2) that Google and NCMEC acted as agents of the government, and therefore violated defendant’s Fourth Amendment rights, by accessing and examining the images in question without a search warrant; and 3) that the information forming the basis for the search warrant was too stale to provide probable cause.
People v. Pierre, supra.
Pierre’s first argument on appeal was that
the search warrant must be controverted, pursuant to Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), because the People failed to establish probable cause for the search by demonstrating to the issuing judge the reliability of a confidential informant, namely Google, and the basis for Google’s knowledge of the images in question.
The People argue that the Aguilar–Spinelli test is inapplicable here, since Google is not a confidential informant and probable cause for the search warrant could be established without any reference to Google as the source of the information concerning the images in question.
This court recognizes the `strong judicial preference for search warrants’ (People v. Leggio, 84 A.D.3d 1116, 1117, 923 N.Y.S.2d 188 [2d Dept 2011] [citations omitted] ). It is understood that the `search warrant application must provide the court with sufficient information to support a reasonable belief that evidence of illegal activity will be present at the specific time and place of the search’ (People v. Williams, 249 A.D.2d 343, 344, 670 N.Y.S.2d 893 [2d Dept 1998], lv denied 92 N.Y.2d 883 [1998]; see also People v. Corr, 28 A.D.3d 574, 816 N.Y.S.2d 82 [2d Dept 2006], lv denied 7 N.Y.3d 787 [2006]).A search warrant must be supported by evidence establishing probable cause to believe that an offense has been or is being committed, or that evidence of criminality may be found in a certain place (People v. Londono, 148 A.D.2d 753, 539 N.Y.S.2d 484 [2d Dept 1989]; see also People v. Bigelow, 66 N.Y.2d 417 [1985]; People v. Schiavo, 162 A.D.2d 639, 556 N.Y.S.2d 954 [2d Dept 1990], lv denied 76 N.Y.2d 864 [1990]).
People v. Pierre, supra.
The court went on to explain that Pierre
equates the People’s reliance upon Google’s initial report of the child pornography in question to reliance upon a confidential informant. As a result, defendant argues, the People were required to establish the reliability of the report and the basis for Google’s knowledge before a search warrant could be issued. This court declines to adopt defendant’s characterization of Google as a confidential informant.
Although defendant and the People accurately summarize the current state of New York law regarding the use of confidential informants in applications for search warrants, neither provides New York or federal precedent that addresses whether an internet search engine, such as Google, can be considered a confidential informant under these circumstances. Indeed, the authority offered by both sides pertains instead to individual confidential informants, who provided information related to potential searches of physical locations for tangible property.
Owing to the paucity of New York case law on the subject, the court relies, primarily, upon federal case law in reaching its decision. Although no federal court has specifically addressed the issue of an internet search engine as a confidential informant, the relevant case law does reveal a consistent pattern of facts from which this court can draw a reasonable conclusion on probable cause.
The fact patterns in these cases are very similar. An internet search engine or service provider detects child pornography and then reports the contraband to NCMEC, which verifies and reports to the appropriate law enforcement agency. The law enforcement agency secures a search warrant, relying upon, among other things, the actions of NCMEC and the internet search engine or service provider (see United States v. Heleniak, 2015 WL 521297 [WD N.Y.2015]; United States v. Ackerman, 2014 WL 2968164 [D Kan. 20140; United States v. DiTomasso, 56 F Supp 3d 584 [SD N.Y.2014, supra; United States v. Keith, 980 F.Supp.2d 33 [D Mass 2013]; United States v. Cameron, 733 F.Supp.2d 182 [D Maine 2010]).
Upon defendants’ motions to suppress or exclude evidence obtained as a result of the search warrants, the federal courts were called upon to consider whether the internet search engine or service provider was a private or government actor; whether the defendant waived Fourth Amendment rights by accepting the terms of service of the internet search engine or service provider; whether the information relied upon was too stale to provide probable cause; and whether the defendant had an expectation of privacy in the electronic media in question. While the various district courts may have reached differing conclusions on these issues, they are unanimous in their tacit acceptance of the reports made by the internet search engines or service providers in question. Not a single court in the above-referenced cases challenged the reliability of the information reported or the basis of knowledge of the reporter. The legal discussions proceed following recitations of facts which uniformly accept the initial reports without question.
People v. Pierre, supra.
The court went on to explain that,
[g]iven the absence of state and federal case law addressing the specific issue of internet search engines or service providers as confidential informants, it is reasonable for this court to consider that the federal courts, having addressed numerous issues surrounding the issuance of search warrants in digital child pornography cases in great detail, have demonstrated no skepticism toward the reliability and basis of knowledge of the information at the genesis of such investigations. Accordingly, having been presented with no relevant case law to support it, the court rejects defendant’s assertion that Google acted as a confidential informant, requiring the issuing court to apply the Aguilar–Spinelli test in its evaluation of probable cause, and finds that there was sufficient probable cause for the search warrant.
People v. Pierre, supra.
Finally, the Supreme Court Judge took up Pierre’s argument that the information used to establish probable cause was “stale.” People v. Pierre, supra. As I explained in a post I did several years ago, the defendant in a then-recent federal case
argued the evidence should be suppressed because the `warrant lacked probable cause because the information relied upon was stale.’ U.S. v. Silva, supra. The staleness principle adds a temporal element to the probable cause requirement. As one court noted, `[u]nder the staleness doctrine, “information supporting the . . . application for a warrant must show that probable cause exists at the time the warrant issues.”’ U.S. v. Meryl, 2009 WL 943574 (U.S. Court of Appeals for the Eleventh Circuit 2009).
The staleness doctrine is a matter of common sense: If an informant tells an officer that `a year ago they were selling drugs out of the house at 344 Brown Street, and I bought drugs from them’, that information probably can’t be used in establishing probable cause to search 344 Brown Street for drugs today. Because someone was selling drugs out of the house a year ago does not mean they’re selling drugs there today; to get a warrant to search 344 Brown Street, officers have to show probable cause to believe that drugs are being sold there now. Silva essentially claimed they hadn’t done that in his case.
Getting back to the Pierre case, that judge held that
`[p]robable cause is not to be determined by counting the number of days between the occurrence of the events relied upon and the issuance of the search warrant. Information may be acted upon as long as the practicalities dictate that a state of facts existing in the past, which is sufficient to give rise to probable cause, continues to exist at the time of the application for the search warrant’ (People v. Clarke, 173 A.D.2d 550, 550, 570 N.Y.S.2d 305 [2d Dept 1991]). . . .
In the case at bar, the evidence sought by means of the search warrant consisted of digital images stored electronically by means of computer equipment. Electronic media makes digital photographs, in particular, extremely convenient to collect and store. Additionally, one does not need to be a computer expert to know that digital images, even if deleted, are recoverable with the proper skills and equipment. Given the nature of the evidence sought, and the demonstrated likelihood that it would be found in digital form, it was reasonable for the issuing judge to conclude that a set of facts which existed in the past, sufficient to give rise to probable cause, continued to exist at the time of the application.
Although approximately one year had elapsed between Google’s report to NCMEC and the application for the warrant, it was reasonable for the issuing judge to believe that such contraband would still exist. Therefore, the information relied upon by the judge was not too stale to provide probable cause for issuance of the search warrant.
People v. Pierre, supra.
For all these reasons, the judge denied Pierre’s “motion to controvert the search warrant . . . in its entirety.” People v. Pierre, supra.
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“Operating a Motor Vehicle upon a Highway while Using Hand-Held Mobile Phone”
May 30th, 2016By Susan Brenner.
This post examines an opinion from the Appellate Court of Connecticut: State v. Dunbar, 2016 WL 1566996 (2016). The court begins the opinion by explaining that
[t]he defendant, Lonnie Dunbar, appeals from his judgment of conviction, rendered after a trial to the court, on the charge of operating a motor vehicle upon a highway while using a hand-held mobile telephone in alleged violation of General Statutes § 14–296aa (b).
On appeal, the defendant claims that the trial court improperly found him guilty under that statute. We agree with the defendant, and accordingly we reverse the judgment of the trial court and remand the case with direction to render a judgment of acquittal.
State v. Dunbar, supra
Before I outline the facts and procedural history of the case, I need to note that
Connecticut General Statutes § 14–296aa(b)(1) provides as follows:
Except as otherwise provided in this subsection and subsections (c) and (d) of this section, no person shall operate a motor vehicle upon a highway, as defined in section 14-1, while using a hand-held mobile telephone to engage in a call or while using a mobile electronic device. An operator of a motor vehicle who types, sends or reads a text message with a hand-held mobile telephone or mobile electronic device while operating a motor vehicle shall be in violation of this section, except that if such operator is driving a commercial motor vehicle, as defined in section 14-1, such operator shall be charged with a violation of subsection (e) of this section.
And Connecticut General Statutes § 14-1(54) defines “motor vehicle” as
any vehicle propelled or drawn by any nonmuscular power, except aircraft, motor boats, road rollers, baggage trucks used about railroad stations or other mass transit facilities, electric battery-operated wheel chairs when operated by physically handicapped persons at speeds not exceeding fifteen miles per hour, golf carts operated on highways solely for the purpose of crossing from one part of the golf course to another, golf-cart-type vehicles operated on roads or highways on the grounds of state institutions by state employees, agricultural tractors, farm implements, such vehicles as run only on rails or tracks, self-propelled snow plows, snow blowers and lawn mowers, when used for the purposes for which they were designed and operated at speeds not exceeding four miles per hour, whether or not the operator rides on or walks behind such equipment, motor-driven cycles as defined in section 14-286, special mobile equipment as defined in section 14-165, mini-motorcycles, as defined in section 14-289j, and any other vehicle not suitable for operation on a highway. . . .
Getting back to the Appellate Court’s opinion, it begins by explaining that at
trial, the state presented the testimony of Trooper Josh McElroy of the Connecticut State Police. McElroy testified that on the morning of April 19, 2014, while he was on traffic enforcement duty observing passing traffic on Route 66 in Columbia from an elevated parking lot, he saw the defendant drive by in a gray car while holding a cell phone in his right hand, `right around the steering wheel—or I mean the steering wheel height in the center of, the center of the car.’ Upon making that observation, McElroy pulled out from the parking lot, activated the lights of his cruiser, and pulled the defendant’s vehicle over. When McElroy stopped the defendant, the defendant told him that he was `just answering’ his cell phone. McElroy observed that `[h]e had some type of microphone. It looked like from like a Walkman almost on his head. . . . He said that’s what he used to talk on the phone.’ McElroy explained to the defendant that he had been cited for an infraction because `[y]ou were using your cell phone while you were driving.’
Based upon the foregoing evidence, the trial court concluded: `[T]he state has established beyond a reasonable doubt that the defendant, on April 19, 2014, was using a hand-held device while operating a motor vehicle. . . . Accordingly, the court finds the defendant guilty of violating . . . § 14–296aa as a second time offender.’ The court imposed a fine of $250 plus fees and costs. This appeal followed.
On appeal, the defendant claims that the evidence was insufficient to sustain the court’s finding of guilt because the state failed to prove beyond a reasonable doubt that he was engaged in a call, as required to prove a violation of § 14–296aa, instead of merely answering his cell phone at the time that the trooper observed him holding it in his right hand. We agree.
State v. Dunbar, supra.
The Appellate Court went on to explain that
`In [a defendant’s] challenge to the sufficiency of the evidence . . . [w]hether we review the findings of a trial court or the verdict of a jury, our underlying task is the same. . . . We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. . . .
In assessing the defendant’s claim that the evidence against him was insufficient to establish his guilt . . . we must look to the trial court’s findings of fact…. [W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses. . . .’
`In evaluating evidence that could yield contrary inferences, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier [of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier [of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact’s] verdict of guilty.’ (Citations omitted; internal quotation marks omitted.) State v. Drupals, 306 Conn. 149, 157–58, 49 A.3d 962 (Connecticut Supreme Court 2012).
State v. Dunbar, supra.
The Appellate Court then took up the issue in this case, explaining that
Section 14–296aa(b)(1) provides in relevant part: `[N]o person shall operate a motor vehicle upon a highway, as defined in section 14–1, while using a hand-held mobile telephone to engage in a call or while using a mobile electronic device. . . .’ Here, the trial court did not set forth the factual findings underlying its determination that the state had established beyond a reasonable doubt that the defendant had violated § 14–296aa. In order to make that determination, however, the court necessarily had to find that the defendant had been operating his vehicle while using his hand-held mobile telephone to engage in a call. The defendant claims on appeal that the state failed to prove that he was engaged in a call as he was merely answering his cell phone at the time that the trooper observed it in his right hand. In response to the defendant’s claim, the state argues that the court could have presumed that the defendant was engaged in a call at that time due to the proximity of the phone to his ear.
To `[e]ngage in a call’ is defined in § 14–296aa(a)(6) as `talking into or listening on a hand-held mobile telephone, but does not include holding a hand-held telephone to activate, deactivate or initiate a function of such telephone.’ Section 14–296aa(b)(2) provides: `An operator of a motor vehicle who holds a hand-held mobile telephone to, or in the immediate proximity of, his or her ear while operating a motor vehicle is presumed to be engaging in a call within the meaning of this section. The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call.’ Section 14–296aa (a)(7) defines `[i]mmediate proximity’ as `the distance that permits the operator of a hand-held mobile telephone to hear telecommunications transmitted over such hand-held mobile telephone, but does not require physical contact with such operator’s ear.’
State v. Dunbar, supra.
The court then pointed out that, at trial, the prosecution
offered no direct evidence to support a finding that the defendant was engaged in a call when McElroy saw him holding his cell phone. McElroy testified that he saw the defendant from approximately twenty feet away, while the defendant was driving on the highway, holding his cell phone in his right hand in the center of the car at the approximate height of the steering wheel. Although the court could have inferred from that testimony that the defendant was seen holding a cell phone in his hand that it was no further from his ear than the length of his arm, no evidence was presented as to the length of the defendant’s arm, or whether he was holding the phone in such a way as to suggest that he was then using it to engage in a call.
McElroy’s testimony that the defendant was holding the phone `in the center of the car’ does little to elucidate its precise location. More importantly, perhaps, no evidence was presented as to what type of phone the defendant was holding, what speaker feature it may have had, whether any such speaker features were then engaged, and, if so, at what volume they were set. There was thereby no evidence from which the court reasonably could have inferred that the phone was being held close enough to the defendant’s ear to permit him to hear telecommunications transmitted over it. Absent such proof, the statutory presumption was unavailable to support the necessary finding that the defendant was then engaged in a call.
State v. Dunbar, supra.
The court therefore held that
[a]bsent any basis for the presumption, the only evidence as to how the defendant was using the phone as he held it came from the defendant’s statements to McElroy when he was pulled over, all of which are inconsistent with the court’s finding of guilt.
To begin with, the defendant’s statement that he was holding the phone to answer it merely brought his conduct within the statutory exception for holding a phone to activate or initiate a function on it, which does not constitute `engaging in a call’ as a matter of law. Second, his statement that the Walkman-like device on his head was the apparatus he used to speak on the phone tended to show that the device held in his hand was not what he used for that purpose. Although the court need not have believed these statements, it could not have drawn an inference to the contrary of either statement merely because the defendant made it. See State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (Connecticut Supreme Court 1985).
State v. Dunbar, supra.
The Appellate Court therefore ordered that the “judgment is reversed and the case is remanded to the trial court with direction to render a judgment of acquittal.” State v. Dunbar, supra.
You can, if you are interested, you can find a news story here, that describes the traffic stop at issue in this case, and adds some other details.
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The Cell Phone, the Fourth Amendment and Border Searches
May 28th, 2016By Susan Brenner.
This post examines a recent opinion from the U.S. District Court for the Southern District of California: U.S. v. Caballero, 2016 WL 1546731 (2016). The judge begins by explaining that before the Court
is Defendant’s motion to suppress evidence. Defendant seeks to suppress statements made and cell phone evidence discovered during questioning. . . .
U.S. v. Caballero, supra.
He goes on to outline the factual “background” for the motion to suppress and for his ruling on it. U.S. v. Caballero, supra. As the opinion explains, [a]ccording to the Complaint, Defendant drove his automobile from Mexico to the United States Port of Entry in Calexico, California. He was the sole occupant of the automobile. At the Port of Entry, United States Customs and Border Protection officers decided to search the automobile and discovered fifteen kilograms of methamphetamine and one kilogram of heroine inside the gasoline tank. Defendant was arrested. Several hours later Defendant was questioned while his cell phone was being manually searched.
Defendant has now provided a sworn declaration in support of his motion. Defendant states that during his post-arrest questioning, one of the officers manually searched his cell phone and discovered a photograph of a large sum of money. He now seeks to suppress that photographic evidence and the officer’s observation. He argues that it should be suppressed under the exclusionary rule as the fruit of an illegal search, based on Riley v. California, 134 S.Ct. 2473, 2485 (2014). The Government remonstrates that Riley has no application and that the search was permissible under the long-standing border search doctrine described in U.S. v. Flores–Montano, (541 U.S. 149, 152 (2004)).
U.S. v. Caballero, supra.
In a footnote to the first sentence in the second paragraph above, the judge explains that Southern District of California Local Rule 47.1(g)(1) requires a declaration. `Criminal motions requiring a predicate factual finding must be supported by declaration(s). . . .The court need not grant an evidentiary hearing where either party fails to properly support its motion of opposition.’
U.S. v. Caballero, supra.
In another footnote that follows the first, the judge explains that
[a]lso provided is a video recording of the Defendant’s questioning in custody, and a partial translation of the Spanish language used during the questioning. The questions and answers are in Spanish and the video lasts approximately one hour. Defendant provides an English translation for 37 seconds of questioning. The 37 seconds of transcribed and translated questioning takes place midway through the interrogation. The Government provides a translation for the entire interrogation. The video picture is difficult to see. Much of the time, the Defendant is `off camera.’ At times, it appears that one of the officers is holding a dark object in his hand; the object could be a cell phone.
U.S. v. Caballero, supra.
He then began his analysis of the substantive legal issues in the case, explaining that
[i]nternational travelers carry in their hands, pockets, handbags, and backpacks: laptop computers, iPhones, iPads, tablets, phablets, flip phones, smart phones, contract phones, no-contract phones, and digital cameras. These devices often contain private and sensitive data and photographs. U.S. v. Cotterman, 709 F.3d 952 (U.S. Court of Appeals for the 9th Circuit 2013) (en banc). . . . Particularly for cell phones, Riley announced that arresting officers must generally obtain a search warrant before conducting a search. Riley v. California, supra. Fair enough. But, does Riley apply to a border arrest and search?
U.S. v. Caballero, supra.
The judge went on to explain that,
[b]efore deciding whether Riley applies to this search, the issue of Defendant’s standing needs to be addressed. Standing is required before a court will consider whether evidence found during a search will be suppressed at trial. U.S. v. Padilla, 111 F.3d 685, 688 (U.S. Court of Appeals for the 9th Circuit 1997) (`We do not hold that members of a conspiracy can never have standing to contest a search of items or places related to the conspiracy. However, conspirators must show that they personally have “a property interest protected by the Fourth Amendment that was interfered with. . ., or a reasonable expectation of privacy that was invaded by the search”’) (citation omitted).
The Government argues that Caballero has not shown he has standing to contest the cell phone search. However, his declaration presents enough facts to demonstrate standing. Specifically, in his declaration, Caballero says that at the time of the arrest he possessed a black LG cell phone, that he used the cell phone, and that the phone was given to him by an ex-girlfriend. He did not consent to the search of that cell phone. This comports with the interrogation transcript and the officer’s arrest report and is sufficient for standing. U.S. v. Lopez–Cruz, 730 F.3d 803 (U.S. Court of Appeals for the 9th Circuit 2013) (standing exists where defendant has possession of phone, uses the phone, has right to exclude others from using the phone, did not abandon or attempt to dispose of the phone, and legitimately possessed the phone).
U.S. v. Caballero, supra.
In another footnote, the judge quotes from a transcript of the officers’ questioning Caballero about the photo and the phone that took it:
Officer: Yes, and these photos?
Def: Which ones?
Officer: Do you take money into Mexico?
Def: No.
Officer: That’s your phone.
Def: That’s my phone.
Officer: Where did you take that photo?
Def: But that phone’s not in my name. I use it. But the other one is in my name.
Officer: Oh, [expletive], man.
Def: I just use the phone.
Officer: Hey, look, do you think we’re stupid or what?
Def: No, sir.
Officer: So then?
Def: I’m not saying you’re stupid or anything. Those two are my phones. Those two are.
Officer: Ah, and this one? Oh, what about that one? Did you find it?
Def: Those two are in my name.
Officer: And this phone? What’s the deal with this phone?
Def: Ah, somebody gave me that phone.
Officer: Who?
Def: A person.
Officer: Uh huh, a person.
U.S. v. Caballero, supra.
The opinion goes on to explain that the
interrogation transcript along with the declaration makes clear that agents conducted a cursory search of Defendant’s cell phone and discovered the photo. There is no evidence that the agents did an extensive forensic search or transported the phone away from the border for computerized searching.
U.S. v. Caballero, supra.
The Judge then outlines the specific legal issues that arise in this case:
The issue of whether such a search violates the Fourth Amendment stands at the intersection of two avenues of law. Heading in one direction is the Supreme Court’s bright line rule in Riley: law enforcement officers must obtain a warrant to search a cell phone incident to an arrest. Heading on a different course is the border search exception. The border search exception describes an exception to general Fourth Amendment principles. It is the notion that the government may search without a warrant anyone and anything coming across its border to protect its national sovereignty. sovereignty. U.S. v. Cotterman, 709 F.3d 952 (U.S. Court of Appeal sfor the 9th Circuit 2013) (`The broad contours of the scope of searches at our international borders are rooted in “the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.” Thus, border searches form “a narrow exception to the Fourth Amendment prohibition against warrantless searches without probable cause”’) (citations omitted).
The question presented by this case is this: once a person is placed under arrest at the border, may officers conduct a cursory search of the arrestee’s cell phone without a warrant? Riley says, `No.’ But, Riley does not address a search at the border. The border search exception says, `Yes.’ But, neither the Supreme Court, nor the Ninth Circuit, has decided a case involving the heightened privacy interests implicated by a cell phone search at the border after an arrest.
U.S. v. Caballero, supra.
He also noted that, a
decade before Riley, the Supreme Court reaffirmed the Government’s historical right to search without a warrant people and property crossing the border into the United States. Flores–Montano, supra. Flores–Montano explains,
[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated that `searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.’ Congress, since the beginning of our Government, `has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.’ The modern statute that authorized the search in this case, 19 U.S. Code § 1581(a), derived from a statute passed by the First Congress, the Act of Aug. 4, 1790, ch. 35, § 31, 1 Stat. 164, and reflects the `impressive historical pedigree’ of the Government’s power and interest. It is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity.
Flores–Montano, supra (citations omitted).
The judge went on to address a case that complicated the analysis even further, noting that the 9th Circuit Court of Appeals’ decision in U.S. v. Cotterman, supra,
applied the border search doctrine to digital storage devices. In particular, a laptop computer. The decision offers several guideposts. To begin with, `border searches are generally deemed “reasonable simply by virtue of the fact that they occur at the border.”” U.S. v. Cotterman, supra (quoting U.S. v. Ramsey, 431 U.S. 606 (1977)). `Individual privacy rights are not abandoned’ at the border but are weighed against the interests of the sovereign. U.S. v. Cotterman, supra. . . .`That balance “is qualitatively different . . . than in the interior” and is ‘struck much more favorably to the Government.’ U.S. v. Cotterman, supra (quoting Montoya de Hernandez, 473 U.S. 531, 538, 540, 105 S.Ct. 3304 (1985)). `Nonetheless, the touchstone of the Fourth Amendment analysis remains reasonableness. The reasonableness of a search or seizure depends on the totality of the circumstances, including the scope and duration of the deprivation.’ U.S. v. Cotterman, supra (citations omitted).
U.S. v. Caballero, supra.
The judge pointed out that,
[a]pplying these principles to a border search, the Ninth Circuit held (pre-Riley) that a manual (or cursory) search of a personal electronic device such as a laptop computer needs no warrant. U.S. v. Cotterman, supra. The court noted that it had previously approved – under the border search doctrine—`a quick look and unintrusive search of laptops’ without suspicion or a warrant. U.S. v. Cotterman, supra. . . . Cotterman did not change that.
What Cotterman did change was the standard for conducting a deep, forensic search of a laptop at the border. Cotterman attempted to achieve the correct balance between: (a) the increased interests of the sovereign at the border; (b) a traveler’s diminished expectations of privacy in general at the border; and (c) the substantial personal privacy interests implicated by the broad amount of data contained in or accessible through a digital device. `Notwithstanding a traveler’s diminished expectation of privacy at the border, the search is still measured against the Fourth Amendment’s reasonableness requirement, which considers the nature and scope of the search. Significantly, the Supreme Court has recognized that the “dignity and privacy interests of the person being searched” at the border will on occasion demand “some level of suspicion in the case of highly intrusive searches of the person.”’ U.S. v. Cotterman, supra.
U.S. v. Caballero, supra.
He therefore found that the
warrantless, cursory search of Defendant’s cell phone in this case is clearly permissible under the border search doctrine enunciated by Cotterman. With the discovery of undeclared, illicit drugs hidden in Defendant’s vehicle, law enforcement officers had plenty of evidence to meet the heightened standard: reasonable particularized suspicion of unlawful conduct. Officers certainly had reasonable suspicion to search the cell phones carried by Caballero after finding 15 kilograms of methamphetamine and one kilogram of heroin hidden in the gas tank of Caballero’s automobile as he crossed the border.
There is no question that a cell phone search, limited as it was in this case, qualifies as a reasonable search at the international border when performed prior to an arrest. Cotterman dictates this much. Since the Cotterman decision is almost on all fours, it controls the outcome of this motion to dismiss. Reviewing the totality of the circumstances, the Caballero cell phone search: (1) took place at a port of entry; (2) was based on reasonable suspicion of criminal activity; (3) was conducted manually and appeared to be a cursory search of the device’s contents; (4) did not involve the application of forensic software; (5) did not destroy the cell phone; (6) was performed in minutes, as opposed to hours or days; (7) was performed upon a device being brought into the country, rather than being taken out of the country; and (8) was performed approximately four hours after Caballero was placed under arrest.
Other than the last factor, each of these factors was either similar to or less intrusive than the warrantless search Cotterman decided was reasonable. . . .
U.S. v. Caballero, supra.
The Judge, however, also found that
[w]hat makes this case different is that there was no arrest before the laptop search in Cotterman. Cotterman was permitted to pass into the country. Only his laptops and a camera were detained and searched. In fact, Cotterman was able to flee to Australia two days later. Once an international traveler is placed under arrest at the border, the context changes. While, `[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border’ (Flores–Montano, supra), once unwanted drugs have been discovered and a person arrested, it can be said that the Government has achieved its goal of discovery.
A `stopping and examining [of] persons and property crossing into this country’ (Flores–Montano, supra), has already taken place. Illicit narcotics have been discovered. Reasonable suspicion has jelled into probable cause. Any goal the Government might have of proceeding expeditiously to avoid delaying innocent travelers, evaporates. There is no more need for agents to work expeditiously to return the digital device to the traveler so that he or she may be on their way. Agents may take their time to obtain a search warrant.
U.S. v. Caballero, supra.
He went on to explain that,
[i]f this Court were free to decide the question in the first instance, it would hold that the warrantless cell phone search under these circumstances would be unreasonable. See e.g., U.S. v. Djibo, 2015 WL 9274916 (U.S. District Court for the Eastern District of New York 2015) (“In this case, the search was undertaken to find contraband or currency and neither were found. . . . Based on the line of [the government agent’s] questioning and Djibo’s outbound status, this cannot be considered within the purview of a border search. . . . He could have been arrested, his phone seized pursuant to the border authority, and a search warrant obtained before any searching occurred. [The government agent] sought to sidestep these constitutional guarantees’). A warrantless search of a cell phone incident to an arrest in the interior of the country, is clearly a Fourth Amendment violation under Riley v. California, supra.
After all, in an area where bright line rules are few, Riley paints a fairly bright line: `Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.’ Riley v. California, supra. Requiring a search warrant after an arrest at the border would offer a consistently bright line.
U.S. v. Caballero, supra.
He then explained why he could not apply the Supreme Court’s decision in Riley v. California, supra. He pointed out that,
[a]lthough Riley could be applied to a cell phone search at the border, this Court is bound by Cotterman. The Ninth Circuit [Court of Appeals] has answered the `sometimes very difficult question’ of when a district court may reexamine normally controlling circuit precedent in the face of an intervening Supreme Court case. See Miller v. Gammie, 335 F.3d 889 (U.S. Court of Appeals for the 9th Circuit 2003) (en banc). It adopted a `clearly irreconcilable’ standard:
`We hold that in circumstances like those presented here, where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled.’
Id. at 893 (emphasis added). In other words, `the relevant court of last resort must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.’ Miller v. Gammie, supra. Here, the reasoning and theory of Cotterman is not clearly irreconcilable with the reasoning and theory of Riley, as evidenced by a number of courts finding that Riley simply does not apply to cell phone searches at the border.
U.S. v. Caballero, supra.
The judge therefore held that,
[b]ecause the cases are not clearly irreconcilable, this Court is bound by the en banc decision in Cotterman, which requires neither warrant nor reasonable suspicion to justify a manual cursory search of a digital device being brought across an international border. Therefore, the motion to suppress is denied.
U.S. v. Caballero, supra.
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The Conspiracy to Commit Larceny, Identity Fraud and The One Fund
May 27th, 2016By Susan Brenner.
This post examines an opinion from the Supreme Judicial Court of Massachusetts,
Suffolk: Commonwealth v. Mattier, 2016 WL 2758931 (2016). The opinion begins by explaining that the defendants,
Branden E. Mattier and his half-brother Domunique D. Grice, were convicted by a jury on indictments charging one count each of conspiracy to commit larceny, [Massachusetts General Laws] chapter 274, § 7, and attempted larceny, [Massachusetts General Laws] chapter 274, § 6. Mattier also was convicted on an indictment charging one count of identity fraud, [MassachusettsGeneral Laws] chapter 266, § 37E. The charges stemmed from an attempt by the defendants to defraud The One Fund Boston (One Fund) of approximately $2 million by claiming that a long-deceased aunt had been injured in the 2013 bombing at the finish line of the Boston Marathon.
The judge imposed on each defendant a State prison sentence of from three years to three years and one day on the conspiracy count and three years’ probation on the attempted larceny count, to run from and after the committed sentence. Mattier was sentenced to an additional concurrent probationary term for his conviction of identity fraud. The defendants appealed, and we granted their applications for direct appellate review.
Commonwealth v. Mattier, supra. You can, if you are interested, read more about the facts and the defendants in the news stories you can find here, here and here.
The court also explained that
[a]lthough the appeals were not formally consolidated, we have treated them as such, given the substantial congruence of the issues raised by the defendants. Mattier contends that his conviction of identity fraud fails as a matter of law because the charged conduct is insufficient to meet the elements of the statute. Both defendants claim that the judge erred in (1) denying the motion to suppress evidence obtained as a result of Mattier’s warrantless arrest for the identity fraud and attempted larceny charges; (2) denying the motions for required findings of not guilty on all charges; and (3) denying the motion to strike for cause jurors who donated to One Fund. Grice also challenges statements made by the prosecutor in closing argument.
Commonwealth v. Mattier, supra.
The Supreme Judicial Court began the substantive part of its opinion by explaining how, and why, the prosecution arose:
After two bombs exploded near the finish line of the Boston Marathon on April 15, 2013, One Fund was established. . . . In early May, 2013, the administrator of One Fund held two community meetings to discuss distribution. Mattier and Grice attended one of the meetings, and Mattier registered on One Fund’s Web site the following day. On May 15, 2013, One Fund disseminated the claims protocol to those persons registered on One Fund’s Web site. The levels of payment were based on severity of injury, with the largest amount going to those victims who suffered double amputation. The protocol required that a claimant submit a `hospital statement’ confirming the dates of hospital treatment and the nature of the injury. All claims were due by June 15, 2013.
One Fund received a claim form from Mattier on June 12, 2013, stating that Mattier’s aunt had been injured in the bombing and had required double amputation as a result of her injuries. Mattier requested that the claim disbursement check be made payable to him at his Boston address. On June 7, he signed the claim form as representative for his aunt, and his signature was notarized. Attached to the claim form was a signed letter purporting to be from Dr. Peter A. Burke, chief of trauma services at Boston Medical Center. The letter, dated May 2, 2013, stated that both of the aunt’s legs had been amputated as a result of injuries from the marathon bombings.
One Fund administrators suspected that Mattier’s claim form might be fraudulent and conducted an internal investigation. After learning that the aunt died in 2000, they rejected the claim. One Fund administrators alerted the Attorney General’s office of the false claim.
As part of the Attorney General’s investigation into the matter, the police created a `sting’ operation using an overnight courier to deliver a letter to Mattier’s residence on July 1, 2013, which stated that the claim had been approved and a check would be arriving July 2, 2013. On July 1, police officers observed Mattier sign for and accept the letter outside his residence while holding his cellular telephone. Subsequently, the police officers obtained a search warrant for Mattier’s residence and for Mattier himself at that location.
Commonwealth v. Mattier, supra.
The opinion explains that, on July 2, 2013,
police conducted a controlled delivery of a fake check to Mattier. State police Trooper John Banik drove to Mattier’s residence dressed as a Federal Express delivery driver in a white van bearing a Federal Express logo. Mattier was standing just outside his apartment building when Trooper Banik arrived. The two walked toward each other and met on the sidewalk in front of Mattier’s apartment building. Trooper Banik asked Mattier to produce his driver’s license and, after explaining that he was delivering a claim check, asked whether Mattier was injured in the bombings. Mattier responded that his aunt had been injured. The trooper copied Mattier’s driver’s license number onto his paperwork and handed Mattier the envelope. Other police officers in the area then surrounded Mattier and arrested him for identity fraud and attempted larceny.
During booking, Mattier’s cellular telephone was placed into his property inventory. After being given the Miranda warnings, Mattier waived his rights and spoke with Trooper Banik. He admitted to submitting the claim on behalf of his long-deceased aunt and explained how he created the doctor’s letter using forms obtained from the Internet. Trooper Banik obtained Mattier’s cellular telephone from inventory, placed it in his office, and obtained a search warrant authorizing the search of the telephone.
Commonwealth v. Mattier, supra.
The court then points out that the search of the cell phone
produced hundreds of cellular telephone text messages between Mattier and Grice. The brothers corresponded about One Fund on the day of the community meeting they had attended, expressed their joy at receiving news that their claim had been approved, and ruminated about the type of Mercedes Benz vehicle that each would buy using the funds awarded on their claim. In one of the text messages, sent before Mattier created the forged letter regarding their dead aunt’s claimed injuries, Grice wrote to Mattier: `Subject: Auntie, Nevie Shelton ss# Hospitalized from 4–15–13 til 5–3–13 18 days. Yes to double amputation and permanent brain damage.’
Commonwealth v. Mattier, supra.
The Court then took up Mattier’s conviction for identity fraud, explaining that Massachusetts General Laws chapter 266 § 37E, provides as follows:
Whoever, with intent to defraud, poses as another person without the express authorization of that person and uses such person’s personal identifying information to obtain or to attempt to obtain money, credit, goods, services, anything of value, any identification card or other evidence of such person’s identity, or to harass another shall be guilty of identity fraud and shall be punished by a fine of not more than $5,000 or imprisonment in a house of correction for not more than two and one-half years, or by both such fine and imprisonment.
Commonwealth v. Mattier, supra.
The court went on to explain that
[t]he essential elements of the crime are that a defendant `(1) posed as another person; (2) did so without that person’s express authorization; (3) used the other person’s identifying information to obtain, or attempt to obtain, something of value; and (4) did so with the intent to defraud.’ Commonwealth v. Giavazzi, 60 Mass.App.Ct. 374, 802 N.E.2d 589 (2004). The essence of the Commonwealth’s case was that Mattier downloaded a template of a letter from the Boston Medical Center onto his computer, composed a letter on the template, copied Dr. Burke’s signature onto that letter, and then submitted the letter to One Fund together with his claim form.
Commonwealth v. Mattier, supra.
The opinion notes that the defendants challenged
this conviction on the ground that the particular conduct at issue here was insufficient to establish the first and third elements of the crime. They argue that Mattier did not `pose’ as Dr. Burke within the meaning of the statute and that even if he did, he did not obtain or attempt to obtain money from One Fund while posing as Dr. Burke. In rebuttal, the Commonwealth argues that the evidence, taken in the light most favorable to it, Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979), was sufficient to prove that Mattier `pose[d]’ as Dr. Burke because the language of the letter implicitly asserted that he, as drafter, was Dr. Burke and that the statute does not require proof that the posing occurred at the same time as the attempt to obtain funds. The trial judge, in denying the defendants’ motions for a required finding of not guilty on the identity fraud charges, focused on the `pos[ing]’ element and accepted that Mattier did not `directly’ pose as Dr. Burke. He noted that the `statute is stretched in this case’ because the defendants `did not represent themselves to be Dr. Burke at all. They used Dr. Burke’s identity to validate their intended fraud.’ He then concluded that the jury should decide whether Mattier `indirectly posed as [Dr. Burke] by inserting that dummied up letter.’
Commonwealth v. Mattier, supra.
The Supreme Judicial Court began its analysis of the defendants’ argument by noting that the
issue before us is whether, on the facts of this case, Mattier’s conduct is encompassed within the reach of the statute. When the meaning of a statute is at issue, `[w]e begin with the canon of statutory construction that the primary source of insight into the intent of the Legislature is the language of the statute.’ International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 443 N.E.2d 1308 (1983). Where `the statutory language ‘[could] plausibly be found to be ambiguous,’ the rule of lenity requires the defendant[s] be given ‘the benefit of the ambiguity.’ Commonwealth v. Constantino, 443 Mass. 521, 525, 822 N.E.2d 1185 (2005). . . .
Commonwealth v. Mattier, supra.
The court explained that it agreed with the
defendant’s argument that he did not `pose’ as another person in the manner contemplated by the statute. General Laws c. 266, § 37E (a), defines `[p]ose’ to mean `falsely represent[ing] oneself, directly or indirectly, as another person or persons.’ Where G.L. c. 266, § 37E, does not define the phrase `falsely represent,’ we interpret the term in accordance with `approved usage of the language’ . . . Commonwealth v. Hinds, 437 Mass. 54, 768 N.E.2d 1067 (2002), cert. denied, 537 U.S. 1205 (2003). In that regard, other cases interpreting allegations of false representations require the existence of another party on the receiving end of the representation. . . .
Accordingly, we interpret the phrase `falsely represent’ in G.L. c. 266, § 37E, to require the Commonwealth to prove that a defendant “pose[d]” as Dr. Burke in his dealings with a third party, One Fund.
Here, the operative act for the purposes of the identity fraud charge was the submission of a forged letter, purportedly written by Dr. Burke, to One Fund. Although Mattier misrepresented the authenticity of the letter to One Fund in claiming that the letter was from Dr. Burke, nothing in the evidence establishes that he ever falsely represented himself to be Dr. Burke. Mattier submitted the claim form to One Fund under his own name; he did not falsely represent to One Fund that he was Dr. Burke at the time that he submitted the letter. Thus, Mattier’s deception does not fall within the scope of the identity fraud statute; his criminal deception was properly charged as attempted larceny.
Commonwealth v. Mattier, supra.
The defendants in this case raised a number of issues on appeal, but due to the complexity of those issues, this post only examines two of them, the second of which is the brothers’ argument that
their rights under the Federal and State Constitutions were violated by the trial judge’s denial of the motion to excuse for cause jurors whom they claim were biased by their donations to One Fund (donating jurors). During voir dire, the judge asked each juror, `Have you or a member of your family raised any money for or contributed to or filed a claim with or received funds from the Boston One Fund?’ Over objections, the judge denied Grice and Mattier’s motions to strike two donating jurors for cause. The judge explained that the mere act of donating was not sufficient for a juror to be excused for cause so long as the jurors credibly stated that they could be objective.’
Commonwealth v. Mattier, supra.
The opinion explains that the trial judge
excused four donating jurors for cause where the jurors did not explicitly say that they could be indifferent. In one instance, the judge found a juror to be indifferent notwithstanding the fact that he and his firm had donated to One Fund. After being alerted by Mattier’s counsel that the juror’s firm had donated $1 million to the fund, the judge noted that he was going to `err on the side of caution,’ and he excused this juror for cause. Two donating jurors sat on the deliberating jury.
Commonwealth v. Mattier, supra.
The court then referred to the applicable law, noting that
`Article 12 of the Declaration ofRights of the Massachusetts Constitution and the Sixth Amendment to the United States Constitution, applied to the States through the due process clause of the Fourteenth Amendment, guarantee the right of a criminal defendant to a trial by an impartial jury.’ Commonwealth v. Andrade, 468 Mass. 543, 11 N.E.3d 597 (2014), quoting Commonwealth v. McCowen, 458 Mass. 461, 494, 939 N.E.2d 735 (2010). `The presence of even one juror who is not impartial violates a defendant’s right to trial by an impartial jury.’ McCowen, supra, quoting Commonwealth v. Vann Long, 419 Mass. 798, 802, 647 N.E.2d 1162 (1995). `The defendant has the burden of showing that the juror was not impartial and must do so by a preponderance of the evidence.’ Commonwealth v. Amirault, 399 Mass. 617, 626, 506 N.E.2d 129 (1987).
Commonwealth v. Mattier, supra.
The Supreme Judicial Court then enunciated its ruling on the brothers’ argument that jury bias prejudiced them:
`[o]n a claim of structural error alleging that a jury were not impartial because a particular juror was biased, the defendant must show actual or implied juror bias.’ Commonwealth v. Hampton, 457 Mass. 152, 163, 928 N.E.2d 917 (2010). In deciding whether a juror is actually biased, `it is sufficient for the judge to ‘determine whether jurors [can] set aside their own opinions, [properly] weigh the evidence . . . and follow the instructions of the judge.’ Commonwealth v. Andrade, supra . . . . quoting Commonwealth v. Perez, 460 Mass. 683, 688–689, 954 N.E.2d 1 (2011).
We review for `clear abuse of discretion or a showing that the judge’s findings were clearly erroneous.’ Commonwealth v. Torres, 437 Mass. 460, 469, 772 N.E.2d 1046 (2002), quoting Commonwealth v. Amirault, supr . . . . This is because such a determination `is essentially one of credibility, and therefore largely one of demeanor.’ Commonwealth v. McCowen, supra. . . . quoting Commonwealth v. Ferguson, 425 Mass. 349, 352–353, 680 N.E.2d 1166 (1997).
After a careful review of the record, we conclude that the judge did not abuse his discretion in finding that the jurors were not actually biased. The jurors either responded with a direct `No’ when asked whether the contribution would affect his or her ability to be objective or were further questioned until the judge was satisfied that each juror could be objective.
Commonwealth v. Mattier, supra.
For these and other reasons, the Supreme Judicial Court affirmed
the convictions of attempted larceny and conspiracy against Grice and Mattier. Because we conclude that the evidence was insufficient to convict Mattier of identity fraud, we vacate that conviction and order entry of a judgment of not guilty. We do not remand to the Superior Court for resentencing, where Mattier’s sentence is unlikely to be affected by our decision.
Commonwealth v. Mattier, supra.
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The Former Employee, the Computer Fraud and Abuse Act and Trade Secrets
May 25th, 2016By Susan Brenner.
This post examines an opinion recently issued by a U.S.District Court Judge who sits in the U.S. District Court for the District of Puerto Rico: Sun West Mortgage Company, Inc. v. Matos Flores, 2016 WL 1030074 (2016). The judge begins by explaining that
[i]n this action, Plaintiff Sun West Mortgage Company (`Sun West’) contends that its former employee, Defendant Miguel Matos Flores (`Matos’) breached his employment agreement and made unauthorized disclosures regarding company trade secrets in violation of The Computer Fraud and Abuse Act, 18 U.S. Code § 1030, et seq. (`CFAA’), the Stored Wire and Electronic Communications and Transactional Records Access Act, 18U.S. Code §§ 2071-2712 et seq. (the`Stored Communications Act’ or the `SCA’), and the Wire and Electronic Communication and Interception of Oral Communications Act, 18U.S. Code §§ 2510-2522 et seq. (the `Wiretap Act’). (Docket No. 1 ¶¶ 36-58.)
In addition to these federal claims, Sun West also contends that Matos violated various Puerto Rico laws, invoking diversity jurisdiction. (Docket No.¶¶ 1, 59-93.)
Presently before the Court is Matos’ motion to dismiss the federal claims pursuant to FEDERALRULES OF CIVIL PROCEDURE Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Docket No. 25). Additionally, Matos requests jurisdictional discovery in order to ascertain whether the parties are completely diverse and Sun West’s state law claims are properly before the Court. (Docket No. 25).
Sun West Mortgage Company, Inc. v. Matos Flores, supra.
The judge then outlined the “relevant factual and procedural background,” i.e., the facts and events that brought the case before him and required that he resolve certain issues:
Sun West hired Matos as a loan officer on April 11, 2011. (Docket No. 1 ¶ 5.) He was responsible for `sourc[ing] prospective consumer borrowers’ and signing them up for single-family loan mortgage packages. Id. ¶ 6. As a result of his position, Matos had access to Sun West’s borrower, broker, customer and investors lists, contractual arrangements, lists of real estate agents, vendors, suppliers, and service providers that had contractual arrangements with Sun West, Sun West’s pricing and financial structures, marketing programs and plans, operational methods and cost information, accounting procedures, and research and development. Id. ¶ 7. Pursuant to the Employment Agreement (the `Agreement’), Matos agreed not to `publish, disclose or allow to be published or disclosed, Trade Secrets to any person who is not an employee of Sun West unless such disclosure is necessary for the performance of Loan Officer’s obligation under the Agreement.’ Id. ¶ 8.
Carlos Gaztambide is the Executive President of Multiples Mortgage Corp, a competitor of Sun West in Puerto Rico. (Docket No. 1 ¶¶ 14-15.) Sun West alleges that on December 5, 2014, Matos told Gaztambide that he wanted to refer a client to Multiples Mortgage and that he was unhappy at Sun West. Id. ¶¶ 15-16. Sun West also contends that Matos indicated he could set up a team of Sun West employees who would leave to join Multiples Mortgage. Id. ¶ 17.
In an affidavit appended to the Complaint, Gaztambide states that he notified Matos that he would not hire anyone from Sun West without first speaking with Sun West’s Executive Vice President Raul Padilla, and that Multiples Mortgage could not compensate any Sun West loan officers for referrals. (Docket No. 1-5 ¶¶ 5, 8.)
Gaztambide also stated that after Matos complained that Sun West was not properly compensating loan originators, Gaztambide asked to see Sun West’s pricing. Id. ¶ 10. Gaztambide states that Matos accessed this information on his telephone and showed it to him. Id. Gaztambide states that later that day, Matos contacted him again to request that he keep their conversation confidential. Id. ¶ 11.
Sun West alleges that Matos sent and downloaded to his personal e-mail account 270 transmissions containing Sun West’s confidential information and trade secrets without authorization, though it has not determined if Matos reproduced or revealed any of this information. (Docket No. 1 ¶¶ 22-23.)
Sun West Mortgage Company, Inc. v. Matos Flores, supra.
The judge went on to outline the “standard of review” he was obliged to apply in ruling on the defendant’s motion:
When considering a motion to dismiss for failure to state a claim upon which relief can be granted, see FED. R. CIV. P. 12(b)(6), the court analyzes the complaint in a two-step process under the current context-based `plausibility’ standard established by the Supreme Court. See Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (U.S. Court ofAppeals for the 1st Circuit 2012) (citing Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011) which discusses Ashcroftv. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
First, the court must `isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements.’ Id. A complaint does not need detailed factual allegations, but `[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ Ashcroft v. Iqbal, supra. Second, the court must then `take the complaint’s well-[pleaded] (i.e., non-conclusory, non-speculative) facts as true, drawing all reasonable inferences in the pleader’s favor, and see if they plausibly narrate a claim for relief.’ Schatz v. Republican State Leadership Comm., supra. Plausible, means something more than merely possible, and gauging a pleaded situation’s plausibility is a context-specific job that compels the court to draw on its judicial experience and common sense. Schatz v. Republican State Leadership Comm., supra (citing Ashcroft v. Iqbal, supra). This `simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary element. Bell Atl. Corp. v. Twombly, supra.
`[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.”’ Ashcroft v. Iqbal, supra (quoting FED. R. CIV. P. 8(a)(2)). If, however, the `factual content, so taken, “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” the claim has facial plausibility.’ Ocasio-Hernández v. Fortuño-Burset, supra (quoting Ashcroft v. Iqbal, supra).
Sun West Mortgage Company, Inc. v. Matos Flores, supra.
The judge then turned to the analysis of the issues raised in Matos’ motion to dismiss, explaining that Matos argues that
`the bare assertion that the [ ] 270 emails sent to his personal email were trade secrets is insufficient to state a claim under CFAA, SCA or the Wire Tap Act.’ (Docket No. 25 ¶ 4.3.) The Court will address each in turn.
Sun West Mortgage Company, Inc. v. Matos Flores, supra.
He began his analysis of the plaintiff’s CFAA claim by explaining that the CFAA
provides a civil remedy for victims who suffer damages in excess of $5,000 as a result of an individual who `knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access’ in furtherance of fraud.18 U.S. Code §1030(a)(4). Accordingly, to state a claim under the CFAA, Sun West must demonstrate that Matos accessed a protected computer `without authorization’ or that he `exceeded’ his `authorized access’ in order to commit a fraud. Id. Despite the CFAA’s expansive language, the statute was not intended to criminalize `benign activities such as workplace procrastination.’ Advanced Micro Devices, Inc. v. Feldstein, 951 F. Supp. 2d 212, 218 (U.S. District Court for the District of Massachusetts 2013) (citing United States v. Nosal, 676 F.3d 854, 866 (U.S. Court of Appeals for the 9th Circuit 2012)).
The term `without authorization’ is not defined by the statute and courts have split on whether to take a broad or narrow view of the language. Advanced Micro Devices, Inc, 951 F. Supp. 2d at 217-18 (describing CFAA interpretations). The narrow interpretation of the CFAA holds that the term `without authorization’ only reaches conduct by outsiders who did not have permission to access the plaintiff’s computer. E.g., Shamrock Foods v. Gast, 535 F. Supp. 2d 962, 967 (U.S. District Court for the District of Arizona 2008). This interpretation of the statute would preclude a claim under the CFAA by an employer against its employee. Conversely, the broad view allows for an employer’s CFAA claim against an employee who accesses a computer whenever he, without the employer’s knowledge, `acquires an interest that is adverse to that of his employer or is guilty of a serious breach of loyalty.’ Guest-Tek Interactive Entm’t, Inc. v. Pullen, 665 F. Supp. 2d 42, 45 (D. Mass. 2009) (analyzing CFAA interpretations). Although the [U.S. Court of Appeals for the] 1st Circuit has not specifically addressed the meaning of `without authorization’ or `exceeded authorization,’ it has favored a broader reading of the statute. Guest-Tek Interactive Entm’t, Inc. v. Pullen, supra. . . .
Sun West Mortgage Company, Inc. v. Matos Flores, supra.
The judge went on to explain that
[e]ven under a broad interpretation of the statute, Sun West failed to satisfy the Twombly and Iqbal pleading requirements as to the CFAA claim. Sun West’s allegation that Matos forwarded information to his personal e-mail account, sending 270 transmissions, is insufficient to state a claim. Sun West specifically does not allege that he copied, revealed to third parties, or reproduced any information, proprietary or otherwise. (Docket No. 1 ¶ 23.) Sun West also does not allege that Matos sent such emails with `intent to defraud,’ in furtherance of a fraud, or that he obtained anything of value. 18 U.S. Code § 1030(a). Similarly, Sun West’s allegation that Matos showed confidential pricing information to Gaztambide on his telephone is insufficient to support an inference that he accessed a Sun West computer without authorization, or in excess of his authorization, absent allegations he did so in furtherance of a fraud. At most, the Court interprets this alleged incident as an attempt to justify his desire to leave Sun West to Gaztambide, who expressed skepticism that Matos was being mistreated by Sun West. (Docket No. 1-5 ¶ 10.)
Sun West Mortgage Company, Inc. v. Matos Flores, supra.
The judge therefore went on to find that Sun West’s claim
under the CFAA also fails to satisfy the damages requirement. The CFAA defines damage as `any impairment to the integrity or availability of data, a program, a system or information. . . .’ 18 U.S. Code § 1030(e)(8). This language does not encompass any harm resulting from the disclosure to a competitor of trade secrets or other confidential information. Courts have interpreted this to include `the destruction, corruption, or deletion of electronic files, the physical destruction of a hard drive, or any diminution in the completeness or usability of the data on a computer system.’ E.g., New South Equip. Mats, LLC v. Keener, 989 F. Supp. 2d 522 (U.S. District Court for the Southern District of Mississippi 2013) (finding that mere copying of electronic information is not enough to satisfy the CFAA’s damage requirement). Although the First Circuit has not limited `loss’ under the statute to purely physical damages, the statute does not permit claims for matters unrelated to the computer. See Shirkov v. Dunlap, Grubb & Weaver, PLLC, 2012 WL 1065578, at *24 (U.S. District Court for the Southern District of Mississippi, Mar. 27, 2012).
Sun West asserts that its damages include `the hiring of a forensic computer examiner to determine the scope of Matos’ breach and a damages assessment; the hiring of counsel to bring this legal action; the management’s time necessary for addressing, responding to and remediating Matos’ wrongdoings; and the value of the information Matos retrieved from the Sun West premises.’ (Docket No. 1 ¶ 41.) These damages are not sufficient to trigger the CFAA. Courts have held that legal fees do not constitute a loss under the CFAA. Wilson v. Moreau, 440 F. Supp. 2d 81 (U.S. District Court for the District of Rhode Island 2006). Similarly, management’s time spent evaluating whether Matos’ conduct is actionable is not recoverable under the CFAA. Id.
The value of information Matos may have retrieved from Sun West is speculative at best because Sun West concedes it has no basis to believe Matos `copied, revealed to third parties [or] reproduced’ any of this information. (Docket No. 1 ¶ 23.) Sun West does not allege that its computers or network were out of commission or damaged in any way. Neither does Sun West contend that it incurred costs repairing its computers. Thus, the motion to dismiss Sun West’s claim pursuant to the CFAA is hereby GRANTED.
Sun West Mortgage Company, Inc. v. Matos Flores, supra (emphasis in the original).
The Judge then addressed and disposed of Sun West’s claims under the Stored Communications Act and the Wiretap Act. Sun West Mortgage Company, Inc. v. Matos Flores, supra. He began with the Stored Communications Act (“SCA”), explaining that it
prohibits an individual from intentionally accessing, without authorization, a facility that provides an electronic communication service or exceeding an authorization to access that facility, and thereby obtaining, altering or preventing authorized access to a wire or electronic communication while it is in electronic storage in such system. 18 U.S. Code § 2701(a). Under the statute, `any person aggrieved’ by knowing and intentional conduct that violates the SCA has a private right of action. 18 U.S. Code § 2707(a). An aggrieved person is one who was a party to an intercepted electronic communication, or against whom the interception was directed. Padmanabhan v. Healey, 2016 WL 409673, at *3 (U.S. District Court for the District of Massachusetts Feb. 2, 2016).
Since the SCA was established in 1986, courts have struggled with the same language at issue under the CFAA, namely `access without authorization’ and `exceed [ ] an authorization to access’ a facility. Cheng v. Romo, 2012 WL 6021369 (U.S. District Court for the District of Massachusetts Nov. 28, 2012). As with the CFAA, the First Circuit has not directly addressed the meaning of these terms under the SCA; however, courts in the First Circuit have consistently applied CFAA caselaw in analyzing the SCA. Id. at *4 (citing Guest-Tek Interactive Entm’t, Inc. v. Pullen, 665 F. Supp. 2d 42 (U.S. District Court for the District of Massachusetts 2009).
Thus, the Court’s analysis under this statute is the same as under the CFAA. The Complaint fails to allege sufficient facts to support an inference that Matos obtained, altered, or prevented authorized access to a wire or electronic communication. The mere assertion that he sent Sun West’s confidential information and trade secrets to his personal e-mail account, without more, does not satisfy the Plaintiff’s pleading requirements under Twombly and Iqbal. The motion to dismiss Sun West’s claim pursuant to the SCA is GRANTED.
Sun West Mortgage Company, Inc. v. Matos Flores, supra (emphasis in the original).
Finally, the judge took up Sun West’s claim under the Wiretap Act, explaining that
[w]ithout providing citation to a specific chapter or provision of the U.S. Code, Sun West claims that `Matos’ actions were in violation of the Wiretap Act, which entitles Sun West to recover damages (compensatory and punitive) costs and attorneys’ fees against Matos and injunctive relief to enjoin Matos from further violating the Wiretap Act.’ . . . 18 U.S. Code § 2511 prohibits any person from intentionally intercepting, endeavoring to intercept, or procuring any other person to intercept any wire, oral or electronic communication. It also prohibits disclosure and intentional use of information or the contents of such communications. Id. Under the statute, `intercept’ is the `acquisition of the contents of any . . . electronic communication . . . through the use of any electronic, mechanical or other device.’ 18 U.S. Code § 2510(4).
Sun West Mortgage Company, Inc. v. Matos Flores, supra (emphasis in the original).
The judge then went on to explain that, in order to
prevail under this statute, a plaintiff must demonstrate that the defendant `acted with the purpose of committing a criminal or tortious act other than the recording of the communication itself.’ Vazquez-Santos v. El Mundo Broad. Corp., 283 F. Supp. 2d 561, 566-67 (U.S. District Court for the District of Puerto Rico 2003) Similarly, `a disclosure or use of the contents of any intercepted communication is only unlawful if the person knows or has reason to know that the interception was illegal.’ Vazquez-Santos v. El Mundo Broad. Corp, supra. Importantly, the Wiretap Act permits interception of electronic communications if consent is given by at least one of the parties to the communications. United States v. Bennett, 538 F. Supp. 1045 (U.S. District Court for the District of Puerto Rico 1982).
In this case, Sun West has not specified which factual allegations in its Complaint support this claim. To the extent Sun West bases this claim on its allegations regarding the `270 transmissions to [Matos’] personal email from Sun West’s information computer system,’ Sun West offers nothing to support its claim under the Wiretap Act that Matos acted with a criminal or tortious intent. (Docket No. 1 ¶ 22.) Sun West presents exclusively conclusory statements that support only a threadbare recitation of the elements of a claim. Allegations that Matos `intercepted the confidential information with a tortious intent’ and that he `intends to benefit economically from the confidential information he intercepted’ are insufficient to satisfy the pleading requirements. These allegations do not allow the Court to infer more than a mere possibility of misconduct, and thus, do not support a reasonable inference that Sun West is entitled to relief under the Wiretap Act. The motion to dismiss this claim is GRANTED.
Sun West Mortgage Company, Inc. v. Matos Flores, supra (emphasis in the original).
The judge then went on to explain that
[i]n sum, the Court GRANTS Defendant’s motion to dismiss the federal claims under CFAA, the Stored Communications Act, and the Wiretap Act. These claims are DISMISSED with prejudice. Judgment shall be entered accordingly.
Sun West Mortgage Company, Inc. v. Matos Flores, supra (emphasis in the original).
As Wikipedia explains,
[p]rejudice is a legal term with different meanings when used in criminal, civil or common law. . . . Two of the more common applications of the word are as part of the terms `with prejudice’ and `without prejudice’. In general, an action taken with prejudice is essentially final; in particular, `dismissal with prejudice’ would forbid a party from refiling the case. . . .
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GoDaddy, the Teamsters Union and Defamation
March 26th, 2015
By Susan Brenner.
This post examines a recent opinion from the U.S. Court ofAppeals for the Second Circuit: Ricci v. Teamsters Union Local 456, 2015 WL 1214476 (2015). The court began its opinion by explaining that
[p]laintiffs Peter and Barbara Ricci (“the Riccis”) bring this action pro se against GoDaddy.com, LLC (`GoDaddy’) and the Teamsters Union Local 456 (the `Union’ or the `Teamsters’), alleging that false statements about the Riccis in a Union newsletter were republished on a website hosted on GoDaddy’s servers.
As relevant here, plaintiffs sue GoDaddy for defamation; they sue the Teamsters for retaliation in violation of sections 7 and 8 of theNational Labor Relations Act (`NLRA’), 29 U.S. Code§§157, 158(b)(1)(A), and for breach of the NLRA’s implied duty of fair representation.
Ricci v. Teamsters Union Local 456, supra.
Next, the court notes that this
case arises out of a dispute between Peter Ricci and the Teamsters Union 456. According to the Complaint, Appellant Peter Ricci has been a Teamster Union member since 1983. . . . In September 2002, Mr. Ricci attended a meeting in which he was asked to speak in support of a fellow union member, Eddie Doyle. . . . Mr. Ricci declined to do so. . . . Shortly thereafter, Mr. Ricci began having employment problems, which he believes was retaliation by Mr. Doyle for not speaking on his behalf at the September 2002 independent review board meeting. . . .
Almost ten years later, on August 22 and 23, 2012, unidentified individuals allegedly associated with the Teamsters Union Local 456, not GoDaddy, distributed newsletters to unidentified union members, which [the Riccis] contend contained defamatory statements about them and their family members. . . .
No specific details regarding the statements have been alleged. The newsletters were subsequently posted by an unidentified third party on two websites registered by someone with no affiliation to GoDaddy. . . . GoDaddy did not author or post the allegedly defamatory material. . . .
Ricci v. Teamsters Union Local 456, supra.
The brief filed on appeal on behalf of Teamsters Union Local 456 adds the following:
Ricci was a truck driver member of . . . Teamsters Local 456 from September 7, 1983 to December 6, 2012. . . . Teamsters Local 456 is a `labor organization’ . . representing truck drivers in Westchester County, New York and providing, through Local 456 Taft-Hartley employee benefit funds, various pension, welfare and other benefits to covered workers, retirees, and their dependents via collective bargaining agreements with employers and trust and plan documents.
[The Riccis] commenced this action July 8, 2013. . . . The Complaint, inter alia, contained indeterminate causes of action . . . seeking 5 million in damages from the Teamsters Local 456 for purported retaliation and defamation arising from Peter Ricci’s alleged decision to refrain from assisting Local 456 by speaking at a membership meeting in 2002. . . .
Brief and Appendix for Teamsters Union Local 456, Ricci v. Teamsters Union Local 456, 2014 WL 6721023.
The Riccis filed their lawsuit in the Supreme Court of New York but Teamsters Union Local 456 moved it into a U.S. District Court,pursuant to a process allowed by federal law. Ricci v. Teamsters Union Local 456, supra. The Teamsters Union and GoDaddy then moved to dismiss the suit pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failing to state a claim upon which relief can be granted. Ricci v. Teamsters Union Local 456, supra.
The U.S. District Court Judge who had the case granted both motions to dismiss, which effectively ended the Riccis’ lawsuit. Ricci v. Teamsters Union Local 456, supra. They appealed the dismissals, and in this opinion the Court of Appeals is reviewing the correctness of the U.S. District Court Judge’s rulings. Ricci v. Teamsters Union Local 456, supra.
In its opinion, the Court of Appeals explains that the Riccis
do not allege that GoDaddy had any role in creating the allegedly defamatory newsletters. To the contrary, their complaint repeatedly alleges that the newsletters were drafted and distributed by others. See Complaint ¶ 9 (alleging that `Teamsters Union Local 456’ is `the creator of the newsletters’); see also id. ¶ 10 (alleging that GoDaddy (eventually) `decided to reveal the . . . identity of the publisher and creators of the newsletters’).
As to GoDaddy, the only allegations in the complaint are: (1) GoDaddy hosted a website that published the allegedly defamatory newsletters, see id. ¶¶ 9–10; (2) GoDaddy `refused to remove the newsletter’ from its servers, id. ¶ 9; and (3) GoDaddy `completely refused to investigate Barbara Ricci’s complaints,’ id. None of those allegations are disputed by the parties.
Ricci v. Teamsters Union Local 456, supra.
The court began its analysis with the dismissal of the Riccis’ claim against GoDaddy, explaining that
[a]ccepting as true all of the allegations in the complaint, GoDaddy is immune from the Riccis’ defamation claims under a provision of the Communications Decency Act of 1996: `[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.’ 47 U.S. Code § 230(c)(1). Preemption is express: ‘No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.’ 47U.S. Code § 230(e)(3).
The Riccis seek to hold GoDaddy liable as a `publisher or speaker’ of allegedly defamatory statements authored by someone else-that is, “another information content provider.” 47 U.S. Code § 230(c)(1). So if GoDaddy is being sued in its capacity as a provider of an `interactive computer service,’ d., it is immune from defamation liability under the Communications Decency Act.
Ricci v. Teamsters Union Local 456, supra.
The Court of Appeals went on to explain that the statute
defines `interactive computer service’ expansively, to include `any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.’ 47 U.S. Code§ 230(f)(2). This wording has been construed broadly to effectuate the statute’s speech-protective purpose:
`Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. . . . Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum. . . .
None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. . . .Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages. Zeran v.
America Online, Inc., 129 F.3d 327 (U.S. Court of Appeals for the 4th Circuit 1997). In short, a plaintiff defamed on the internet can sue the original speaker, but typically `cannot sue the messenger. Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (U.S. Court of Appeals for the 7th Circuit 2008).
Ricci v. Teamsters Union Local 456, supra.
The Court of Appeals then noted that
[w]e have never construed the immunity provisions of the Communications Decency Act, but other courts have applied the statute to a growing list of internet-based service providers. See, e.g., Klayman v. Zuckerberg, 753 F.3d 1354 (U.S. Court of Appeals for the D.C. Circuit 2014); Doe v. MySpace, Inc., 528 F.3d 413 (U.S. Court of Appeals for the 5th Circuit 2008); Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., supra.
That includes GoDaddy. See Kruska v. Perverted Justice Found. Inc., 2008 WL 2705377 (U.S. DistrictCourt for the District of Arizona 2008) (`GoDaddy, as a web host, qualifies as an interactive computer service provider under the CDA.’).
We join this consensus. The Riccis allege only that GoDaddy `refused to remove’ from its web servers an allegedly defamatory newsletter that was authored by another. These allegations do not withstand the Communications Decency Act, which shields GoDaddy from publisher liability (with respect to web content provided by others) in its capacity as a provider of an interactive computer service.
Ricci v. Teamsters Union Local 456, supra. The court therefore found that the District Court Judge did not err in dismissing the Riccis’ claims. Ricci v. Teamsters Union Local 456, supra.
It also affirmed the court’s dismissal of the Riccis’ “labor law claims against the Teamsters Union” because it found they were
all barred by the six-month statute of limitations in the NLRA. See 29 U.S. Code § 160(b); see also DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151 (1983). The last event referenced in the complaint took place on December 6, 2012, when Peter Ricci left the Teamsters Union. Even assuming the statute did not begin to run until then, the complaint, which was filed on July 8, 2013, was about a month late.
Ricci v. Teamsters Union Local 456, supra.
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