Plain View & Consent. Other Search and Seizure Issues Likely to Arise in Digital Child Pornography Cases. Objectives

Transcription

1 Other Search and Seizure Issues Likely to Arise in Digital Child Pornography Cases 1 Plain View & Consent Priscilla M. Grantham Sr. Research Counsel Nat l Center for Justice and the Rule of Law Objectives 1. List the factors which must be present in order to satisfy the requirements of the plain view doctrine 2. Evaluate whether conditions have been met to uphold seizure of evidence under the PVD 3. Identify & analyze the issues inherent in applying the PVD to the seizure of evidence located in digital devices 1

2 Plain View Doctrine: If in the course of a lawful search, police see items in plain view that are incriminating / have evidentiary value, they may seize the item even if there was no prior authority. Requirements: 1. Prior intrusion 2. Must observe item in 3. Incriminating nature of object must be Horton v. California, 496 U.S. 128 Permissible Scope of Search Usually determined by objects sought Searching for semi-automatic shotgun Where can police look? 2

3 P.V. & Computers: Where is the Image / Info? On Computer Screen v. In Computer File cüxáxçà ÇzM The Mysterious Case of the Dying Boyfriend 3

4 Valid intrusion? Plain View? Incriminating nature immediately apparent? Immediately apparent to believe item is contraband or evidence of criminality Police may rely on and What is a computer? 4

5 What is a Search for data In a computer? A document search: Something Special: Or Critical distinction - To be admissible under P.V. doctrine, evidence must be in a place where police have a right to be. Carey, (10th Cir. 1999) Ct. said police must employ methods to avoid searching files not specified in warrant limit search by: file types and titles listed on directory key words 5

6 Carey (10 th Cir.) Police searching computer for evidence of drug trafficking; Saw JPG files w/ sexually explicit names - opened file and discovered cp; Believed he had P/C that other JPG files contained cp - continued opening files expecting to find more cp Court said: Confirming expectations - NOT inadvertent Temporarily abandoned S for drug records to look for more cp. United States v. Osorio A.F. Ct. Crim. App.(2008). Scope of Warrant: Photos taken on 2/12/05 Agent s job Mirror hard drive Didn t know scope of warrant Agent opened thumbnails to see if it was contraband; it was CP. CP admissible under PV doctrine? Was agent in a place she was allowed to be? Incriminating nature immediately apparent? 6

7 Limiting searches by file type, names, dates Sunday School Lessons State v. Shroeder (WI App. 2000) S/W to S for evidence of online harassment; Agent began opening all user-created files found image of cp; Admissible under P.V. doctrine? 7

8 computer search like a S. for paper documents; Don t have to limit S. to type of evid sought in warrant otherwise, criminals could safely hide cp in file 1986.taxreturn. 22 United States v. Gray, (E.D. Va. 1999). Computer is a type of container Computer search like a document search All documents must be examined to see if w/i scope of W. in doing so, agent discovered clearly incriminating images few people keep documents of their criminal transactions in a folder marked Crime records. Better Safe than Sorry Investigator searching computer for data specified in warrant (i.e evidence of tax fraud) discovers evidence of another crime (ie. CP), safest practice: 1. suspend search, 2. get 2d warrant encompassing new evidence, 3. Then resume search 8

9 Balco 9th Cir. (Comp. Drug Testing.) 2009 WL Judge Kozinski set forth new guidelines. When the gvt wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating i i files, or when a search for evidence could result in the seizure of a computer magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows: Balco 1. Magistrates should insist that the gvt waive reliance upon the plain view doctrine in digital evidence cases. Balco 2. Segregation and redaction must either be done by specialized personnel or an independent third party. If segregation is to be done by gvt computer personnel, it must agree in warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant. 9

10 Balco 3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. Balco 4. The government s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. Balco 5. The government must destroy or, if the recipient may lawfully possess it, return the non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. 10

11 Flashback to 2004 Judge Kozinski issued opinion which was affirmed by 9 th Cir. In which he held: 1. Due to fact that computer searches often involve intermingled materials that are difficult and time consuming to separate on-site, rsble to seize all media & take off-site for examination by expert 2. Warrant NOT overbroad based on failure to define search methodology. It is unreasonable to force police to limit their searches to files that the suspect has labeled in a particular way. There is no way to know what is in a file without examining its contents, just as there is no sure way of separating talcum from cocaine except by testing it. Ease w/ which c.p. images can be disguised forecloses D s proposed search methodology. Consent Searches 11

12 Objectives: 1. Determine if consent was voluntarily given, based on the totality of the circumstances; 2. Summarize the basic principles of third party consent in the context of searches of computers; and 3. Recognize when there is an issue as to the validity of third party consent due to the presence of passwords, forensic software or other technological tools. Voluntary (totality of circumstances) 1. Characteristics of suspect: Education/intelligence Knowledge of right to refuse Age Gender Ability to understand English 2.. Act of Government Agent Threats or Force Assertion of lawful Authority I have a search warrant. 12

13 Scope of Consent Limited by terms of authorization Described by exchange btwn one granting consent & law enforcement Standard: Objectively Reasonable What would a rsble person have understood by exchange btwn suspect and law enforcement? Computer science grad student gave l.e. consent to search computer He agreed to let officers take computer to FBI office for exam Rsble to assume he knew it would involve more than a cursory look United States v. Al-Marri, 230 F. Supp. 2d 423 (2007) 13

14 Police asked to search man s apt. assault on his neighbor Man consented Police searched his computer files Did police exceed the scope? Scope of Consent OK to search paper bag Reasonableness Test: Expressed object Statements made by Officer Statements by Suspect Officer: Suspect: I think there are drugs in your car can I search it? Sure I have nothing to hide. Limited by Terms of Authorization Expressed Object Limitations of person granting consent Modifications or withdrawal of consent during search 14

15 Defendant consented to search of computer for evidence of stalking Limited consent to D: Drive, My Files directory, Creative Writing folder Police opened and viewed contents t of a folder labeled Offshore, believing it contained evidence of tax violations. United States v. Stierhoff, 477 F. Supp 2d 423 (2007) Consent by Third Parties General rule: A search conducted by one other than the subject of the search is valid if the consenting party has either or authority. Actual Authority - origin - Not due to property interest - Mutual use of property by one having joint access or control for most purposes - Assumption of risk United States v. Matlock (1974) 15

16 Actual Authority People who might have actual authority to consent: Parents Spouses Employers (maybe; not always) Room-mates and co-tenants * Why these people? Not due to their relationship Often have mutual use and control for most purposes; Minor children generally subject to control of parents. Apparent Authority Officer may rely on consent of one who seems authorized to give consent Objective standard: Facts available to officer would warrant a person of reasonable caution in the belief that consenting party had authority over the object of the search 16

17 Caveat 3d party s authority doesn t automatically extend to every discreet enclosed space capable of being searched. Mother could consent to search of son s room in house they shared but not to locked footlocker in the room. U.S. v. Block, 590 F.2d 535 (4 th Cir. 1978) Block the rule has to be one of reason that assesses the circumstances indicating the presence or absence of a discreet expectation of privacy with respect to the particular object. Locks are critical in determining who is authorized to consent If one wants to ensure his possessions will be subject to consent search based only due to his own consent, he is free to place these items in an area over which others do not share access or control, be it a private room or a locked suitcase under a bed. Randolph 17

18 Disagreement Between Parties If a potential D. w/ a self interest in objecting is & objects, co-tenant s consent does not suffice for a reasonable search. Georgia v Randolph (2006) Do NOT search my computer! Defendant NOT Physically Present U.S. v Hudspeth (8 th Cir. 2008) Facts: Valid warrant to search H s work computer, found child porn; Asked for his consent to search home computer; he refused; Husband arrested, taken to jail; Police went to his home and asked Wife for consent to search home computer; she gave consent Valid? 18

19 Totality of Circumstances: Wife had joint access/control; authorized under Matlock told of right to refuse co-tenant was not present & objecting Unlike in Randolph, Meets 4/A rsblness requirement; U.S. v. Henderson, 536 F.3d 776 (7th Cir. 2008) Objection loses its force when defendant is validly arrested and taken to jail. An objector does not have an absolute veto. Both presence and objection by tenant are required to render co-tenant s consent unreasonable. But forever Once co-tenant refuses to grant consent, refusal remains in effect - barring an objective manifestation that he changed his mind & no longer objects. U.S. v. Murphy, (9 th Cir. 2008) 19

20 What if police removed co-tenant? Defendant lawfully arrested & placed in squad car Co-tenant asked for and gives consent to search Is Co-tenant s consent valid? Lawful arrest Reasonable to keep arrestee in back of car Defendant D. never refused to give consent (never asked) United States v. Wilburn, 473 F.3d 742 (7 th Cir. 2007) 20

21 Effect of officer s removal of Defendant more important than officer s intent But for act of police, defendant would have been present when he registered objection from back of squad car, he was deemed to be present & objecting under Randolph. State v. Jackson, 931 A.2d 452 (Del. Super Ct. 2007) Password-Protection & 3dp Consent Police are not entitled to rely on 3d party consent to search a locked area when the third party lacks a key A password is a digital lock. Marc Welcome click on your user name to begin Margaret Shaun 21

22 Conrad and Trulock shared a computer Police asked Conrad for consent to search computer She told police they each had separate, password protected files on the hard drive did not know each other s passwords Police looked at Trulock s password protected files Held: Although Conrad could consent to a general search of computer, her authority did not extend to Trulock s passwordprotected files. Why? Owner affirmatively intended to exclude others from his files No One who doesn t know passwords lacks and Trulock v. Freeh, 275 F.3d 391, 403 (4 th Cir. 2001) 22

23 What is the Effect of a Lock? 1. Manifests owner s E/P 2. Imposes practical barrier to warrantless searches. Ambiguous facts re: 3d party s authority = duty to investigate further Illinois v. Rodriguez, 497 U.S. 117 (1990) Objective Standard : would rsble person believe party granting consent had the requisite authority? Wife consents to search of home computer. Forensic software does not indicate presence of Husband s passwords Court said o.k. based on apparent authority Totality of Circumstances Officer of reasonable caution warranted in thinking wife had authority United Stated v. Buckner, 473 F.3d 551 (4 th Cir. 2007) 23

24 This is o.k.?! Maybe; maybe not Buckner, (in dicta) -can t rely on apparent authority while using technology to intentionally avoid discovery of passwords / encryption put in place by user. 91 yr old father gave consent to search son s computer Only computer in house Computer in son s bedroom Encase software did not reveal presence of passwords United States v. Andrus, (10th Cir. 2007) What would result have been if police tried to enter Andrus, jr s room and discovered the door was locked? 24

25 This practice may well be subject to question ifit is shown that there is a high incidence of password protection among home computer users. Andrus Marc Welcome click on your user name to begin Margaret Shaun Should passwords on computers receive less weight than physical locks b/c they are not apparent from a visual inspection of the outside of the computer? 25

26 How do police know if a door is locked? Is using EnCase, etc. which bypasses digital locks the same as using an x-ray machine to look through a door w/out first trying the doorknob? Gov t can not to ignore the walls of a home by relying on new technology that uses thermal imaging to perceive activities behind those walls. Kyllo v. United States, 533 U.S. 27 (2001) 26

27 Should 4/A allow govt to ignore computer passwords (locks) b/c govt has technology that can bypass them? Encase Highly configurable by users Provides users w/ ability to check for digital locks manually and easily Now you can 1. Determine if consent was voluntarily given, based on the totality of the circumstances; 2. Summarize the basic principles of 3dp consent in the context of searches of computers; and 3. Recognize when there is an issue as to the validity of 3dp consent due to passwords, forensic software or other technological tools. 27

28 Thank you! Priscilla M. Grantham (662)