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

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

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

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

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

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

State v. Sena, supra. 

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

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

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

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

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

State v. Sena, supra. 

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

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

State v. Sena, supra. 

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

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

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

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

State v. Sena, supra. 

The court went on to note that

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

State v. Sena, supra. 

Regarding these two cases, the court explained that in

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

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

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

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

State v. Sena, supra. 

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

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

State v. Sena, supra. 

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

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

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

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

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

State v. Sena, supra. 

The court then explained that the

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

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

State v. Sena, supra. 

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

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

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

State v. Sena, supra. 

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

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

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

State v. Sena, supra. 

The court therefore found that

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

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

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

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

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

State v. Sena, supra. 

The court therefore held that,

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

State v. Sena, supra. 

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

The Apple Iphone4, Prostitution and the Search Warrant

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

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

People v. English, supra.

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

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

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

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

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

People v. English, supra.

The court went on to explain that English

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

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

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

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

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

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

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

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

People v. English, supra. 

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

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

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

People v. English, supra. 

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

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

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

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

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

The Supreme Court went on to note that

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

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

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

The court went on to hold that

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

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

People v. English, supra.  

The Court-Martial, the iPhone and the Fifth Amendment

This post examines an opinion from the U.S. Army Court of Criminal Appeals: U.S. v. Mitchell, 2016 WL 1128111 (2016).  The court begins the opinion by explaining that

[Mitchell] stands accused of three specifications of conspiracy to commit an offense; one specification of failure to go to an appointed place of duty; one specification of disrespect to a superior commissioned officer; five specifications of disobeying a superior commissioned officer; two specifications of sexual assault; two specifications of stalking; one specification of indecent broadcasting; one specification of assault consummated by battery; one specification of child endangerment; one specification of obstruction of justice, one specification of solicitation, one specification of communicating a threat; two specifications of online impersonation; one specification of indecent broadcasting of intimate images, and three specifications of harassment, in violation of Articles 81, 86, 89, 90, 120,120a, 120c, 128 and 134, Uniform Code of Military Justice, 10 U.S.C. § 881, 886, 889, 890, 920, 920a, 920c, 928 and 934 (2012) [hereinafter UCMJ].

U.S. v. Mitchell, supra.

The opinion went on to explain that

[t]his case is before this court pursuant to a government appeal of a military judge's ruling filed in accordance with Article 62, UCMJ. The government challenges the military judge's decision to suppress appellant's iPhone 6 and all evidence derived from a search of that phone.

U.S. v. Mitchell, supra.  The court appended a footnote at the end of the second sentence quoted above, in which it explained that the military judge who presided over the court-martial

also suppressed a hardbound notebook, dubbed the `green book.’ The government does not challenge that part of the military judge's ruling, so we adopt it as the law of the case. See U.S. v. Parker, 62 M.J. 459, 464 (U.S. Court of Appeals for the Armed Forces 2006).

U.S. v. Mitchell, supra. 

The opinion then went on to outline the “background” of the case:

On 29 September 2015, trial defense counsel filed a motion to suppress appellee's laptop computer, cellular telephones, a hardbound notebook, and evidence derived from a digital forensic examination of the electronic devices. In addition to the pleadings and enclosures filed by both parties, the military judge also considered two audio recordings, two videos and at least nineteen additional enclosures. The military judge suppressed the iPhone 6 and evidence derived therefrom. The military judge's ruling, (Appellate Exhibit LIV, attached as an Appendix to this opinion) contained extensive factual findings.

Based on the findings of fact, the military judge concluded `that the verbal and subsequent written search authorizations sufficiently described the places to be searched and the items to be seized.’ She further held that the investigator's request of the accused to unlock his iPhone by entering his PIN violated the appellee's Fifth Amendment right against self-incrimination, as the act was testimonial in nature.

Finally, she ruled appellee's Fifth Amendment right to counsel was violated when the investigator, three hours after appellee invoked this right, asked appellee to use a PIN or passcode to unlock the telephone.

U.S. v. Mitchell, supra. 

The Court of Criminal Appeals then outlined the standards it applies in reviewing a

`military judge's ruling on a motion to suppress for an abuse of discretion.’ U.S. v. Baker, 70 M.J. 283, 287 (U.S. Court of Appeals for the Armed Forces (2011) (quoting U.S. v. Rodriguez, 60 M.J. 239, 246 (U.S. Court of Appeals for the Armed Forces 2004) (internal quotation marks omitted)). `In reviewing a military judge's ruling on a motion to suppress, we review factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard.’ U.S. v. Ayala, 43 M.J. 296, 298 (U.S. Court of Appeals for the Armed Forces 1995) (citations omitted). Where mixed questions of law and fact are involved, `a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect.’ Id. 

An abuse of discretion requires `more than a mere difference of opinion. The challenged action must be “arbitrary, fanciful, clearly unreasonable, or clearly erroneous.”’ U.S. v. White, 69 M.J. 236, 239 (U.S. Court of Appeals for the Armed Forces 2010) (quoting U.S. v. Lloyd, 69 M.J. 95, 99 (U.S. Court of Appeals for the Armed Forces 2010)).

U.S. v. Mitchell, supra. 

The court went on to explain that

[i]n conducting a review under Article 62(b), UCMJ, of a military judge's decision to exclude matters, this court may act only with respect to matters of law. United States v. Gore, 60 M.J. 178, 185 (U.S. Court of Appeals for the Armed Forces 2004). In conducting this limited review of matters of law, `the question is not whether a reviewing court might disagree with the trial court's findings, but whether those findings are ‘fairly supported by the record.’ Id. (quoting U.S. v. Burris, 21 M.J. 140, 144 (U.S. Court of Military Appeals 1985)).

When reviewing a ruling on a motion to suppress, `we review[ ] the evidence in the light most favorable to the prevailing party at trial.’ U.S. v. Wicks, 73 M.J. 93, 98 (U.S. Court of Appeals for the Armed Forces 2014) (citation omitted).

`Where factual issues are involved in ruling upon such a motion [to suppress], the military judge shall state essential findings of fact on the record.’ Military Rule of Evidence [hereinafter Mil. R. Evid.] 304(d)(4)]. However, `[i]f the findings are incomplete or ambiguous, the “appropriate remedy . . . is a remand for clarification’ or additional findings’, U.S. v. Lincoln, 42 M.J. 315, 320 (U.S. Court of Appeals for the Armed Forces 1995) (quoting United States v. Kosek, 41 M.J. 60, 64 (U.S. Court of Military Appeals 1994)); See United States v. McDonald, ARMY MISC 20130423 CCA LEXIS 516 (Army Courtof Criminal Appeals 24 June 2013) (mem. op.).

U.S. v. Mitchell, supra. 

The court then pointed out that

[c]oncerning the ruling that Investigator BT infringed appellee's Fifth Amendment right against self-incrimination, we are uncertain what the military judge relied on in determining the appellee used a PIN or passcode to unlock his iPhone. The testimony of various witnesses called on the suppression motion failed to establish any one of them saw appellee type in a PIN or a passcode. This may have been a factual conclusion drawn by the military judge as a fair inference of the testimony or based the audio recordings and nineteen other exhibits admitted on the motion.

In holding Investigator BT infringed appellee's right to counsel, the military judge relied on U.S. v. Hutchins, 72 M.J. 294 (U.S. Court of Appeals for the Armed Forces 2013), citing the Supreme Court's decision in Edwards v. Arizona, (Edwards rule) which provided, in part, that when an accused invokes his right to counsel during custodial interrogation, he `is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.’ Edwards v. Arizona, supra. The military judge also referenced U.S. v. Bondo, 2015 CCA Lexis 89 (Air Force Court of Criminal Appeals 18 March 2015) for the same proposition.

In both Hutchins and Bondo, the accused was in custody during the initial stages of the interrogation and later when interrogations were reinitiated.

In military practice, Mil. R. Evid. 305(e)(1) incorporates the Edwards rule. To invoke the Edwards rule, `the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks to suppress.’ Maryland v. Shatzer, 559U.S. 98, 113 (2010) (emphasis added).

U.S. v. Mitchell, supra. 

The court then enunciated its ruling in this case:

Here, the military judge noted appellee was released to his unit after the initial custodial interrogation by Investigator BT. When Investigator BT returned three hours later, he found appellee `in or outside' of the commander's office. Investigator BT's request to appellee to unlock the iPhone occurred outside the commanders office.

What is uncertain from our review of the record is whether appellee was in custody the entire time, including when he returned to his unit, was released from custody after the initial interrogation, or, if released from custody, was placed back into custody status prior to the request to unlock his iPhone.

For the reasons above, we cannot find that the appellant's Fifth Amendment right against self-incrimination and his Fifth Amendment right to counsel or the Edwards rule were violated. Therefore, we must return the matter to the military judge for clarification and action in accordance with this decision.

We therefore hold that the military judge's factual findings are ambiguous, incomplete, and insufficient for us to perform a proper review under Article 62, UCMJ.

U.S. v. Mitchell, supra. 

The U.S. Army Court of Criminal Appeals therefore held that the  

appeal of the United States pursuant to Article 62, UCMJ, to the military judge's decision to suppress the appellee's iPhone 6 is GRANTED. The ruling of the military judge as it pertains to the suppression of the iPhone is SET ASIDE and the record of trial will be returned to the military judge for action consistent with this opinion.

We make no ruling as to the admissibility of the iPhone or the evidence derived therefrom. The military judge may, sua sponte, or on request of a party, permit additional evidence and argument on the issue of the whether appellee's act of unlocking the iPhone was `testimonial,’ whether appellee was in custody when he unlocked the cell phone, or any other matter relevant to the suppression motion or to the resolution of this case.

The military judge shall make detailed findings of fact and conclusions of law to support her decisions on these matters. The trial may then proceed or the United States may again pursue appeal under Article 62, UCMJ, if appropriate.

U.S. v. Mitchell, supra.