Opinion
09-CR-6174
06-02-2011
UNITED STATES OF AMERICA, v. BRYAN J. GRISWOLD, Defendant.
REPORT AND RECOMMENDATION
Preliminary Statement
Currently before the Court is a motion by defendant Bryan J. Griswold to suppress oral and written statements he gave to law enforcement and certain evidence seized from his computer, cell phone and digital camera. (Docket # 17). Both the statement and the tangible evidence were obtained from Griswold on August 5, 2009. The Government filed papers in opposition to Griswold's motion. (Docket # 18). A suppression hearing was held on October 6, 2010, after which the parties filed supplemental memoranda of law. (Dockets ## 23, 27, 31). By Order of Judge David G. Larimer, dated September 15, 2009, all pretrial motions have been referred to this Court pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). The following is my Report and Recommendation as to the defendant's suppression motions.
Relevant Facts
Unlike many issues litigated in suppression motions, the facts relevant to plaintiff's Fourth Amendment claims here are largely undisputed. In June 2009 the New York State Police began an undercover investigation into "peer to peer" sharing of child pornography on the internet. Keith Becker, an experienced Investigator with the State Police's Computer Crimes Unit identified an IP (Internet Protocol) address that appeared to be involved in sharing child pornography files. After subpoenaing subscriber information from Time Warner, Becker was able to identify that the subscriber associated with the IP address under investigation was Frank Williamee who resided at 2918 Main Street in Corning, New York. Thereafter, fellow Investigator James Vaughan began to draft a search warrant application for Williamee's Main Street residence.
On August 5, 2009 at approximately 10:00 a.m., and before applying for a search warrant application, Investigators Becker and Vaughan drove past the Williamee residence. In investigating the dwelling, Becker discovered that in and around the residence there existed "an open, unsecured wireless router" in the neighborhood. See Suppression hearing transcript (hereinafter "Tr.") (Docket # 21) at p. 6. Concerned that the IP address under investigation could have been accessed by someone not associated with the residence, Becker and Vaughan decided to knock on the door of the residence and try pursuing their investigation without a search warrant.
Investigator Vaughan knocked on the door and it was opened by Melissa Williamee, the defendant's mother. The investigators identified themselves as New York State Troopers and told Mrs. Williamee that the IP address associated with her home may be involved in the sharing of child pornography. Mrs. Williamee confirmed that she had a Time Warner account that was in the name of her husband. The investigators asked Mrs. Williamee if they could "preview" any computers within the residence and Mrs. Williamee agreed to allow them to do so.
After being invited into the residence, Becker noticed a desktop computer in plain view in the dining room. Becker asked if Mrs. Williamee would give written consent to search the computer and she agreed to do so. After the consent was executed, Becker performed a preview of the desktop computer "and didn't find anything." (Tr. at p. 65). Becker then asked if there were other computers in the house and Mrs. Williamee stated that her eighteen year old son Bryan had a laptop computer that was in Bryan's bedroom. Becker asked if "we could take a look at it." Id. Mrs. Williamee agreed and went upstairs to retrieve the computer while Vaughan and Becker remained downstairs. After returning with the laptop, Becker asked Mrs. Williamee if he could search the laptop. Mrs. Williamee agreed and signed another consent form. See Government Exhibit 1.
After the consent form was signed, Becker commenced a search of the laptop. The computer was on and, according to Becker, the screen had Bryan's name on it and indicated it was "locked." Becker shut down the computer, inserted a "read only" CD containing a forensic tool known as "Helix" and re-booted the computer. Becker testified that the Helix software allows him to "browse the hard drive without a password." (Tr. at pp. 67, 85). Becker then discovered an image containing child pornography, and after showing the image to Investigator Vaughan and Mrs. Williamee, decided to seize the computer.
Becker told Mrs. Williamee that the police needed to talk to Bryan based on what they had found on the computer. Mrs. Williamee said she thought her son was working at the YMCA in Corning and she would call him and have him come to the State Police Barracks in Painted Post, New York. Investigator Becker gave Mrs. Williamee a receipt for the computer and returned to the barracks. Upon arriving at the barracks, Becker continued his search of the laptop using the Helix software.
Just before noon, the defendant arrived at the State Police barracks in Painted Post. Vaughan went to the lobby where Griswold was waiting and introduced himself. Vaughan then escorted Griswold back to Vaughan's office where Investigator Becker joined them. After Becker introduced himself, he left to continue his search of the laptop computer.
Vaughan testified that the defendant was not retrained or placed under arrest, and sat in their chair across from Vaughan's desk. Vaughan testified that he began the interview by stating: "I understand this is embarrassing, but we need to talk about what's on your computer." (Tr. at p. 18). Vaughan then told Griswold that what "we found on [the] computer was illegal" and therefore he needed to advise Griswold of his Miranda rights. (Tr. at p. 19). Using a rights card issued by the State Police, Vaughan read the defendant his Miranda rights and asked if he understood them. Griswold responded that he did. Vaughan then asked Griswold to explain how the child pornography images got on his computer. During the interview, Griswold stated that he had downloaded both adult and child pornography to his laptop and had also taken pictures of children at the YMCA that he downloaded to the computer. Griswold also admitted to sexually abusing two children who were family members.
After obtaining a verbal statement from the defendant, Vaughan told Griswold that he was going to confirm the verbal statement he had given by typing it up in a "question and answer" format. Vaughan explained that he would then print the statement, read it to Griswold and allow Griswold to make any changes so the statement was completely accurate. Investigator Vaughan told Griswold that once the statement was accurate he would print the statement out and have Griswold sign it. Vaughan testified that creating the three page statement took about thirty minutes and Griswold signed the statement at 1:53 p.m. (Tr. at p. 27). Vaughan testified that Griswold was calm, cooperative and courteous throughout the interview process and never asked to speak to an attorney or family member.
After the written statement was obtained, Griswold was asked to meet with Investigator Becker to try to identify individuals depicted in some of the images found on his laptop. After admitting that he had other images on his cell phone and a digital camera, Griswold agreed to walk to his car in the parking lot and surrender both the cell phone and the camera. Once the cell phone and camera were also in police custody, Griswold was asked by Becker if he would sign a form consenting to the search of the laptop computer, the digital camera and the cell phone. Becker testified he filled out the form, allowed Griswold to review it and then asked the defendant to sign the form indicating he consented to the search of the listed items. After Griswold signed the form he then "went through the computer" with Becker, helping Becker locate files and identify various illegal images found on the hard drive.
After assisting Becker as he searched the files on the laptop, Griswold was eventually informed that he was being placed under arrest. Griswold was processed at the State Police barracks and then driven to Corning City Court where he appeared before a Corning City Court Judge who released him to the custody of his mother.
Discussion
A. Consent to Search the Laptop Computer: It has long been a "basic constitutional rule" that warrantless searches "are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well delineated exceptions." Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971). One such "well delineated" exception occurs where the search "is conducted pursuant to the consent of an authorized person." United States v. Snype, 441 F.3d 119, 130 (2d Cir. 2006). The government bears the burden of establishing the validity of a consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).
To be valid, a consent need not be provided by the actual owner of the property searched. A consent search will be upheld if the government can demonstrate that the consent was given by "a third party who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171 (1974); see United States v. Davis, 967 F.2d 84, 87 (2d Cir. 1992)("[A] third-party consent to a search will validate the search if two prongs are present: first, the third party had access to the area searched, and, second, either: (a) common authority over the area; or (b) a substantial interest in the area; or (c) permission to gain access."). Finally, "[e]ven if the person giving consent in fact lacked authority to do so, the consent may nonetheless validate the search if the person reasonably appeared to the police to possess authority to consent to the search." United States v. McGee, 564 F.3d 136, 139 (2d Cir. 2009). This variation of consent allows law enforcement to rely on the "apparent authority" of a person giving consent to search, even if that person lacked actual authority to consent. The critical inquiry when the government relies on apparent authority is an objective one: "[W]ould the facts available to the officer at the time the consent is given warrant a person of reasonable caution in the belief that the consenting party had authority over the item to be searched?" United States v. James, 353 F.3d 606, 615 (8th Cir. 2003). "The standard of reasonableness is governed by what the law-enforcement officers know, not what the consenting party knows." Id. In determining whether the agents' reliance on consent of a third party is reasonable, the rule "is not that they always be correct, but that they always be reasonable." Illinois v. Rodriguez, 497 U.S. 177, 185 (1990).
With these constitutional principles in mind, the Court turns now to the threshold issue of whether Griswold's mother had actual or apparent authority to consent to the search of her son's laptop computer.
The defendant did not raise third-party consent as an issue for the Court to decide in either his initial moving papers or during the suppression hearing. After the government's first witness testified, the Court told defense counsel that the issue of third party consent appears to the Court to be the "crucial issue" in determining the legality of the search of the defendant's laptop as well as whether an illegal search could have tainted any subsequent searches of the computer. (Tr. at pp. 58-59). After the proof at the suppression hearing was closed, defense counsel made an oral motion to amend his moving papers "to challenge the propriety of the alleged consent provided by the mother." (Tr. at p. 91). Without objection from the government, the Court granted the motion to amend. (Tr. at pp. 99-100).
Actual Authority to Consent: As stated earlier, a valid consent to search may, in some circumstances, be given by someone other than the target of the search. The critical inquiry for actual third party consent is whether the third party giving the consent had actual authority to consent to the search of the place or item searched. United States v. Matlock, 415 U.S. at 171. Here, the government's post-hearing brief does not seriously argue that Griswold's mother had actual authority to consent to search the files on her son's laptop computer. This concession is appropriate as I agree that on these facts the government has failed to meet their burden of proving that Mrs. Williamee had actual authority to consent to the search of the laptop. "A homeowner's consent to a search of the home may not be effective consent to a search of a closed object inside the home." United States v. Karo, 468 U.S. 705, 725 (1984). Thus, while the defendant's mother had the right to retrieve the laptop from the defendant's bedroom and deliver it to the officers, the laptop itself is akin to a closed container that has been "locked" by the defendant's deliberate use of a password. The government's proof simply did not demonstrate that Mrs. Williamee had actual authority to consent to the search of the contents of what she identified to the investigators as her son's laptop computer. See United States v. Block, 590 F.2d 535 (4th Cir. 1978)(mother had no authority to consent to search of footlocker in son's room); United States v. Robinson, 999 F. Supp. 155, 162-63 (D.Mass. 1998)(mother had authority to consent to search of adult son's bedroom for items open to view but not a closed vinyl bag in the room or the pockets of a pair of pants in the room); see also Georgia v. Randolph, 547 U.S. 103, 135 (2006)(Roberts, C.J., dissenting) ("To the extent a person wants to ensure that his possessions will be subject to a consent search only due to his own consent, he is free to place these items in an area over which others do not share access and control, be it a private room or a locked suitcase under a bed.") Apparent Authority to Consent: The government's primary argument is that "the investigators reasonably relied on Mrs. Williamee's apparent authority to consent to a search of her son's Bryan Griswold's [sic] laptop." See Government's Post-Suppression Hearing Memorandum (Docket # 27) at p. 12. "A determination of whether apparent authority exists is based on the totality of the circumstances, whether the facts available to the officers at the time they commenced the search would lead a reasonable officer to believe that the third party had the authority to consent." United States v. Marandola, No. 08-C R-195A(Sr), 2010 WL 3608288, at *8 (W.D.N.Y. May 3, 2010)(Report and Recommendation adopted by 2010 WL 3608263 (W.D.N.Y. Sept. 9, 2010)). Put differently, would reasonable officers, given the information that Investigators Vaughan and Becker possessed, believe that Mrs. Williamee had joint control of the files within the laptop sufficient to authorize her to consent to the search of her son's laptop?
Based on the rather limited facts presented at the suppression hearing I do not believe that the government has met its burden of proving apparent authority. There are several factors impacting this determination. First, Mrs. Williamee clearly distinguished for the Investigators the distinct ownership difference between the two computers located in the house. As to the computer located in the living room, Mrs. Williamee described it to Investigator Vaughan as the "family computer." (Tr. at p. 8). As to whether there were any other computers in the home, Vaughan testified Mrs. Williamee stated there also "was a laptop that belonged to her son." (Tr. at pp. 9-10)(emphasis added). Investigator Becker testified that Mrs. Williamee told him that her son kept the laptop in his bedroom. (Tr. at p. 66). Thus, at the time Mrs. Williamee retrieved the laptop pursuant to the Investigators' request, they knew that unlike the desktop computer in the dining room, the laptop upstairs did not belong to Mrs. Williamee, but belonged to her eighteen year old son and he kept it in his bedroom.
Second, the type and location of the computer is significant to the consent analysis. A portable laptop computer kept in a bedroom belonging to an adult suggests a greater privacy interest in the computer's files than a desktop computer located in a common area that is readily accessible to a number of different users. See United States v. Andrus, 483 F.3d 711, 719 (10th Cir. 2007)("[C]ourts also consider the location of the computer within the house and other indicia of household members' access to the computer in assessing third party authority."). Here, aside from describing the laptop as belonging to her son, Mrs. Williamee made the Investigators aware that unlike the desktop computer in plain view in the dining room, the laptop was not kept in a common area of the household but rather was in her adult son's bedroom.
Third, once Mrs. Williamee returned with her son's laptop, the Investigators apparently made absolutely no inquiry about what relationship Mrs. Williamee had to the contents of her son's laptop and instead simply asked her to sign a consent to search form. It seems, at least to this Court, that a reasonable officer who knows that an eighteen year old has a laptop computer described by the parent as "belonging to" the son and kept in the son's bedroom, would make further inquiry, however limited, before coming to the mistaken conclusion that the parent has actual authority to allow the police to search and view the contents of the son's laptop computer. To be sure, Mrs. Williamee did not refuse or object to sign the consent form, but acquiescence is surely not the litmus test for third party consent, particularly where the officers know that the third party has (1) expressed no joint ownership or other interest in the place to be searched and (2) has affirmatively told the officers that the object of the requested search actually "belongs to" another. At the very least the facts surrounding who the laptop belonged to and what extent Mrs. Williamee had joint access or control over the contents of the laptop created the need for the Investigators to inquire further before proceeding with a consent search.
After the defendant appeared at the police station and was confronted with the images of child pornography, Investigator Becker asked Griswold for his consent to search the laptop and to provide his password. When the Court inquired of Becker why he asked Griswold for consent at this juncture of the encounter, his reply was "[b]ecause it was his laptop." (Tr. at p. 73)(emphasis added).
The government cannot establish that its agents reasonably relied upon a third party's apparent authority if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry. If the agents do not learn enough, if the circumstances make it unclear whether the property about to be searched is subject to 'mutual use' by the person giving consent, then warrantless entry is unlawful without further inquiry.United States v. Walker, 426 F.3d 838, 846 (6th Cir. 2005)(internal quotations and citations omitted); see United States v. Cos, 498 F.3d 1115, 1128 (10th Cir. 2007)("Importantly, 'where an officer is presented with ambiguous facts related to authority, he or she has a duty to investigate further before relying on the consent.'")(quoting United States v. Kimoana, 383 F.3d 1215, 1222 (10th Cir. 2004)).
Finally, before looking at any files on the computer, Investigator Becker was aware that the laptop had been "locked" but nevertheless used a "special forensic tool" to "bypass a password" and gain access to the files on the hard drive. (Tr. at p. 68). When it comes to the search of personal computers, the use of passwords implicates the same privacy concerns as the search of a locked container. "Password protected computers or files have been likened to private, locked compartments, so that where officers know that the person offering consent lacks the key, or password, they cannot reasonably conclude that the person in question has the authority to consent to a search of any 'locked' areas." United States v. Cole, No. 8-CR-93-JAW, 2008 WL 2952762, at *4 (D. Me. July 24, 2008); see Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2004)("[P]assword-protected files are analogous to the locked footlocker inside the bedroom."). The fact that the defendant's laptop was protected by a password is a clear indication of his intent to exclude others, including his mother, from examining or allowing others to examine personal files stored on his laptop. Trulock v. Freeh, 275 F.3d at 403. It makes no difference that Investigator Becker was able to bypass the password with his "special forensic tool." Software that allows law enforcement to bypass passwords is not a constitutionally authorized justification to override password protected files and simply proceed with the search. Again, at the very least, once they discovered that access to the defendant's laptop required a password, the Investigators were under an obligation to inquire further before starting the search. "[S]ometimes the facts known by the police cry out for further inquiry, and when this is the case it is not reasonable for the police to proceed on the theory that 'ignorance is bliss.'" 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.3(g) at 180 (4th ed. 2004). It must be remembered that in determining whether the agents' reliance on consent of a third party is reasonable, the rule "is not that they always be correct, but that they always be reasonable." Illinois v. Rodriguez, 497 U.S. 177, 185 (1990).
"[I]s a computer more like a shared duffel bag ... or more like a locked footlocker under the bed? We believe the answer depends on factors such as the identity of the user(s), whether password protection is used, and the location of the computer in the house." United States v. Stabile, 633 F.3d 219, 232 (3d Cir. 2011)(citations omitted).
For example, if the investigators had asked Mrs. Williamee if she knew her son's password and she was able to provide it to them, it would have been objectively reasonable for them to rely on her consent to search his computer. Similarly, if the investigators had ascertained whether she had bought the laptop for her son, or had used the laptop in the past, or knew whether other family members had access to the files on the laptop, an affirmative answer could have made reliance on her consent to search objectively reasonable. But the hearing testimony contained no such evidence.
In their brief the government relies heavily on United States v. Andrus, 483 F.3d 711 (10th Cir. 2007). In Andrus, a split panel of the 10th Circuit ruled that a father had apparent authority to consent to a search of a computer located in his adult son's bedroom. The majority and dissenting opinions in Andrus focused on whether law enforcement can "use software deliberately designed to automatically bypass computer password protection based on third-party consent without the need to make a reasonable inquiry regarding the presence of password protection and the third party's access to that password." Id. at 722 (McKay, J., dissenting). The majority in Andrus held that there is no onus on law enforcement to affirmatively ask if a computer is password protected before obtaining and relying on consent from a third party. While recognizing that a passworded protected computer is analogous to a "locked container," the court nevertheless found that absent an affirmative statement by a parent suggesting that the parent did not have authority to access the computer belonging to an adult child, it was reasonable for law enforcement to believe such actual authority in fact existed. "If the circumstances reasonably indicated [the father] had mutual use of or control over the computer, the officers were under no obligation to ask clarifying questions." Andrus, 483 F.3d at 720.
The government does not argue that the Second Circuit has yet adopted the Andrus holding on apparent authority as to password protected computers and the reasoning behind the Andrus decision has been questioned by both a leading Fourth Amendment scholar and several law review student commentators. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.3(g) at 180 (4th ed. 2004, 2010-11 Supplement)("Remarkably, the majority in Andrus, on these facts, upheld the search on an apparent authority basis."); David D. Thomas, Note, Dangerously Sidestepping the Fourth Amendment: How Courts Are Allowing Third-Party Consent To Bypass Warrants for Searching Password-Protected Computers, 57 Clev. St. L. Rev. 279, 304-05 (2009)(It is constitutionally wrong to "allow police officers to skate around the Fourth Amendment by intentionally avoiding asking questions of third parties while obtaining consent, as well as allowing them to ignore password "locks" on computers that, as shown, courts have held to be analogous to locks on physical items."); Michael J. Ticcioni, Comment, United States v. Andrus: Does the Apparent Authority Doctrine Allow Circumvention of Fourth Amendment Protection in the Warrantless Search of a Password-Protected Computer, 43 New Eng. L. Rev. 339, 355 (Winter 2009)("The Tenth Circuit erred in its holding that law enforcement agents were reasonable in relying on the apparent authority of a ninety-one year old man to consent to a search of his son's password-protected computer."); Michael Smith, Survey, The Fourth Amendment, Password- Protected Computer Files and Third Party Consent Searches: The Tenth Circuit Broadens the Scope of Warrantless Searches, 85 Denv. U. L. Rev 701, 723 (2008) ("The Andrus rule essentially does three things: first, it removes the requirement for a third party consenter to have a key to a locked container; second, it replaces the key requirement with a government actor's reasonable belief that there is no need for a key; and third, it allows the use of technology to bypass a key (or password) without first determining whether the container (or computer) is locked."); Noah Stacy, Comments and Casenotes, Apparent Third Party Authority and Computers: Ignorance of the Lock is No Excuse, 76 U. Cin. L. Rev. 1431 (Summer 2008)("The court's holding sets a dangerous precedent under which law enforcement may evade the Fourth Amendment requirement of either a warrant or valid consent by claiming ignorance of any password protection and relying upon the apparent authority of a third party."); Sarah M. Knight, Casenote, United States v. Andrus: Password Protect Your Roommate, Not Your Computer, 26 J. Marshall J. Computer & Info. L. 183, 184 (Fall 2008)("As a consequence of this holding, third-parties can consent to searches beyond their authority, and individuals' efforts to secure their data are rendered useless."); John-Robert Skrabanek, Note, Apparent Authority in Computer Searches: Sidestepping the Fourth Amendment, 97 Ky. L.J. 721, 728-29 (2008-09)("By allowing such searches, these courts have created the incentive for law enforcement not to ask questions."). In addition, in responding to a petition for rehearing, the Tenth Circuit panel in Andrus issued a decision limiting its holding to the "narrow question" presented by the facts and was not controlling authority on facts not presented such as a situation where "law enforcement confronts password protection or user profiles on home computers." United States v. Andrus, 499 F.3d 1162 (10th Cir. 2007)(rehearing denied).
But aside from doubts as to its constitutional logic, the facts in Andrus are distinguishable in an important way from the search of Griswold's laptop. In Andrus the court specifically relied on the fact that when the officers began opening files on the computer they were not aware (and did not inquire about) whether the computer was locked or password protected. "Even if [the defendant's] computer was protected with a user name and password, there is no indication in the record that the officers knew or had reason to believe such protections were in place." 483 F.3d at 721. Here, however, the proof is the opposite. Investigator Becker testified that before commencing the search he noted that "[t]he laptop was on and it showed a screen and it said Bryan on the screen and it said locked." (Tr. at p. 67)(emphasis added). Instead of inquiring further about the fact that the computer was locked, Becker testified he then shut down the computer, inserted his special forensic software disk, booted up the computer, and then was able to "browse the hard drive without a password." (Tr. at p. 67). The need for a password to enter an otherwise locked computer, known to Investigator Becker prior to opening any files and commencing his search, clearly indicated that Griswold had taken steps to protect his privacy and exclude others from looking at files on his laptop computer. At that point, without more information, it was unreasonable for the Investigators to assume that Mrs. Williamee had actual authority to consent to the search of her son's laptop.
In sum, based on the totality of circumstances present here, I find that the government has failed to meet its burden of demonstrating that it was objectively reasonable for the Investigators to believe that Mrs. Williamee had the authority to consent to a search of a password protected laptop computer belonging to her eighteen year old son and retrieved from her son's bedroom.
Inevitable Discovery: In seeking to avoid suppression, the government has offered an alternative argument: "Even if this Court finds that Mrs. Williamee had neither actual nor apparent authority to consent to the search of the laptop, the evidence would have been inevitably discovered by the police." See Government's Post-Suppression Hearing Memorandum (Docket # 27) at p. 20. The government argues that "a search warrant was prepared and ready to be presented to a County Court judge" and therefore the Court can "confidently conclude" that even if Mrs. Williamee had not given consent to search the defendant's laptop, "a lawful search warrant would nonetheless have issued." Id. at p. 21.
The inevitable discovery doctrine holds that "evidence that was illegally obtained will not be suppressed if the government can prove that the evidence would have been obtained inevitably even if there had been no statutory or constitutional violation." United States v. Mendez, 315 F.3d 132, 137 (2d Cir. 2002)(internal quotation marks and citations omitted). "The exception requires the district court to determine, viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred." United States v. Cabassa, 62 F.3d 470, 473 (2d Cir. 1995)(quoting United States v. Eng, 997 F.2d 987, 990 (2d Cir. 1993)). "[T]he government cannot prevail under the inevitable discovery doctrine merely by establishing that it is more probable than not that the disputed evidence would have been obtained without the constitutional violation. On the contrary, we held in Cabassa that proving that a judge could validly have issued a warrant supported by probable cause was not necessarily enough to establish that a judge would have issued the warrant in question." United States v. Heath, 455 F.3d 52, 58-59 (2d Cir. 2006)(internal citation omitted).
The facts in Cabassa are instructive here. In Cabassa the government had information from a confidential informant (CI) that a suspect ran a "drug business" from his home in New York City. 62 F.3d 470 (2d Cir. 1995). After corroborating the CI information, some agents maintained surveillance on the target premises while others went to the United States Attorney to obtain a search warrant. The agents on surveillance were told that they would be called "as soon as the warrant was procured." Id. at 472. However, prior to being told that the search warrant had been signed, the agents on surveillance decided to gain entry to the home and begin the search. In seeking to avoid suppression, the government argued that the information they would have included in the warrant application amounted to probable cause. Therefore, according to the government, "a legal search was about to lead to the discovery of the evidence that is the subject of Cabassa's motion to suppress." Id. at 473.
In rejecting the government's inevitable discovery argument, the Court discussed the importance of when the illegal search was conducted.
In cases in which a claim of inevitable discovery is based on expected issuance of a warrant, the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search is of great importance. First, the extent of completion relates directly to the question of whether a warrant would in fact have issued; ultimate discovery would obviously be more likely if a warrant is actually obtained. Second, it informs the determination of whether the same evidence would have been discovered pursuant to the warrant. If the process of obtaining a search warrant has
barely begun, for example, the inevitability of discovery is lessened by the probability, under all the circumstances of the case, that the evidence in question would no longer have been at the location of the illegal search when the warrant actually issued.Id. at 473 (footnote omitted).
Here, the government's proof falls short of what was found to be inadequate in Cabassa. First, Vaughan and Becker testified they did not have a search warrant at the time they approached the residence on August 5, 2009, and, unlike the agents in Cabassa had not begun the process of submitting an application to a judicial officer for review. While Vaughan testified they "initially planned on using a search warrant" (Tr. at p. 6), that plan was abandoned when some "preliminary investigation" by Becker discovered that "there was an open, unsecured wireless router that we believed was coming from the Williamee residence." (Tr. at p. 6). The importance of this "discovery" to a finding of probable cause was explained by Investigator Becker:
A wireless router would be used so that people within the residence could use their computers without hooking up directly to the internet. Those are normally secured with a password so that nobody outside the residence or nobody that the owner doesn't want to have access to the internet wouldn't be allowed to [sic]. In this case there was no password assigned to it, so we thought perhaps somebody parked out in front of the residence, maybe a neighbor was using it without their knowledge.(Tr. at pp. 6-7). Indeed, Becker testified their plan was to knock on the door, let the homeowner know about their investigation and tell them "that we had discovered that there was an unsecured wireless router and perhaps the residence really wasn't the target of our investigation." (Tr. at p. 7)(emphasis added). This testimony indicates the Investigators themselves had doubts whether there was sufficient probable cause to obtain a search warrant.
Second, although the government argues that a "search warrant was prepared and ready to be presented to a County Court" prior to August 5, 2009, unlike Cabassa, the government here chose not to introduce the draft search warrant application into evidence making it difficult for the Court to ascertain precisely what facts existed to support probable cause prior to the illegal search of the laptop. Indeed, the only search warrant sought for the laptop was the application submitted to Steuben County Court Judge Peter C. Bradstreet on August 14, 2009, more than a week after Becker and Vaughan had seized and searched the defendant's laptop. Apparently, and for reasons not clear to this Court, law enforcement decided not to rely solely on Mrs. Williamee's consent to search her son's computer (or the defendant's later consent to search the laptop) and instead decided to obtain a search warrant. However, the subsequent search warrant application is of no help to the arguments the government makes here because the application relies exclusively on events occurring after Becker and Vaughan obtained Mrs. Williamee's consent to search the laptop, including the results of the search and Griswold's post-search admissions.
See United States v. Cabassa, 62 F.3d at 474 n.3 (describing the contents of the draft affidavit).
Finally, the government has not shown that "the same evidence would have been discovered pursuant to the warrant" during a hypothetical subsequent search. Cabassa, 62 F.3d at 473. Mrs. Williamee knew the nature of the investigation and the interest in her son's computer. Had she refused to consent to the search it is logical that she would have alerted her son to law enforcement's investigation and interest in his laptop. Under these circumstances, it is certainly plausible that the laptop would no longer be in the defendant's bedroom by the time a warrant was obtained and executed. See United States v. Eggers, 21 F. Supp. 2d 261, 272 (S.D.N.Y. 1998)(government's reliance on inevitable discovery rejected where it did not establish that the sought after documents "inevitably would have remained in the house by the time a warrant was obtained and executed").
In sum, I conclude that Mrs. Williamee did not have actual or apparent authority to consent to the search of her son's laptop computer and that the government's alternative argument of inevitable discovery is without sufficient basis in the record.
B. Motion to Suppress Statements: Griswold seeks suppression of oral and written statements he made to Investigators Vaughan and Becker at the police barracks in Painted Post, New York. According to Griswold, his statements are inadmissible because (1) they were the result of custodial interrogation and procured without the benefit of Miranda warnings and (2) were the "fruits" of the illegal search of his laptop computer. As to Griswold's first argument, I find that Griswold was read his Miranda rights by Investigator Vaughan before making verbal or written admissions to Vaughan. (Tr. at pp. 21-22). However, the defendant's second argument merits more substantive discussion.
In Wong Sun v. United States, 371 U.S. 471 (1963), the Supreme Court held that evidence seized after an illegal search is subject to suppression as the so called "fruit of the poisonous tree" unless the government can demonstrate that obtaining the evidence resulted from "an intervening independent act of free will" sufficient to "purge the primary taint" of the unlawful search. Id. at 486.
Of the various fruits present on the poisonous tree, perhaps the most easily identifiable is a confession resulting from an illegal search. When a defendant is confronted by law enforcement with incriminating evidence obtained by an illegal search and then makes admissions about that evidence, it is ordinarily obvious that there has been an exploitation of the illegality. See, e.g., United States v. Davis, 332 F.3d 1163, 1170 (9th Cir. 2003)(statements made to police suppressed as fruit of the poisonous tree where defendant questioned about weapons several hours after an illegal search during which guns were found in his gym bag); United States v. Richardson, 583 F. Supp. 2d 694, 723-24 (W.D. Pa. 2008)(where agents exceeded the scope of consent in their search of a computer hard drive and then discovered images of child pornography, defendant's subsequent statements suppressed as "being tainted by the illegally obtained images"). Once a defendant thinks that he has been caught "red handed," the futility of remaining silent can be more easily exploited by law enforcement. "This is because the realization that the 'cat is out of the bag' plays a significant role in encouraging the suspect to speak." See 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.4(c) at 306 (4th ed. 2004)(internal quotation and citation omitted).
Here, the government seeks to avoid suppression by arguing that the "fruit of the poisonous tree doctrine does not apply due to attenuation." Government's Post-Suppression Hearing Memorandum of Law, (Docket # 27) at p. 21. The government contends that the illegality of the search was "purged" by the defendant "taking himself to the New York State Police Barracks to give a statement to authorities" which occurred "well over 45 minutes after the investigators left the Williamee residence." Id. at pp. 21-22. I disagree. Griswold's appearance at the police station within an hour after Vaughan and Becker left his residence was not a coincidence and, in fact, was specifically directed by law enforcement. According to Investigator Vaughan, after Mrs. Williamee unsuccessfully tried to contact her son by cell phone, "[w]e then told her that when she did get ahold of him, to have him come to the state police barracks in Painted Post." (Tr. at p. 14)(emphasis added). Upon his arrival, Vaughan immediately informed Griswold: "I understand this is embarrassing, but we need to talk about what's on your computer." (Tr. at p. 18). After Griswold was brought to Vaughan's office, Vaughan began the interview by telling Griswold that "the material that we found on [your] computer was illegal, that we were going to be talking about a crime, and that I need to advise him of his Miranda warnings before we spoke about it." (Tr. at p. 19). See United States v. Martinez, 696 F. Supp. 2d 1216, 1252 (D.N.M. 2010)(fact that defendant agreed to go to police station was not a significant intervening circumstance that caused taint of illegal search of home to become attenuated); United States v. Richardson, 583 F. Supp. 2d at 724 (where "there would have been no basis to invite the Defendant to the [police station] and commence any conversation regarding child pornography images" without an illegal consent search, the suppressions of statements made when defendant voluntarily appeared to talk to agents was required). Moreover, while there exits no bright line test for temporal proximity in determining whether the link between the illegality and the confession has been attenuated by the lapse of time, a review of the case law clearly suggests 45 minutes is insufficient. See United States v. Martinez, 696 F. Supp. 2d at 1249 (collecting federal cases).
In sum, the particular facts present here provide little room for the government to argue that the statements Griswold made at the police station were not substantively and temporally tainted by the illegal search. During the interview Griswold told the Investigators that additional images could be found on his cell phone and digital camera. At the request of the Investigators, Griswold surrendered the camera and cell phone and consented to allowing a search of these items as well. Because the discovery of these items is causally related to the exploitation of the images found on Griswold's laptop and his subsequent interrogation, they too are subject to suppression as being derived from and tainted by the illegal search of the computer. Murray v. United States, 487 U.S. 533, 536-37 (1988)("exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search").
The fact that Miranda warnings were given to Griswold prior to his confession does not attenuate the taint of the Fourth Amendment violation. Brown v. Illinois, 422 U.S. 590, 602-03 (1975)("Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a 'cure-all,' and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to 'a form of words.'").
That Griswold eventually signed a consent form permitting a search of his laptop does not remove the taint of the Fourth Amendment violation. The form was signed only after Griswold was confronted with the illegally seized images and questioned at length about those images and where they were stored. "When a consent to search follows an illegal entry, this circuit requires the government to show more than the voluntariness of the consent; it must also demonstrate that the taint of the initial entry has been dissipated in order to admit evidence seized following the illegal entry." United States v. Snype, 441 F.3d 119, 132 (2d Cir. 2006)(internal quotation marks and citation omitted).
Good Faith: The final issue requiring discussion is whether the exclusion of evidence is an appropriate sanction for the violation of Griswold's Fourth Amendment rights. Whether the exclusionary rule should be imposed "is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct." United States v. Leon, 468 U.S. 897, 906 (1984)(internal quotation marks and citation omitted). Rather, "application of the exclusionary rule requires the additional determination that the officers' conduct was 'sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.'" United States v. Rosa, 626 F.3d 56, 66 (2d Cir. 2010)(quoting Herring v. U.S., 555 U.S. 135, 129 S. Ct. 695, 702 (2009)). Pursuant to the Supreme Court's recent decision in Herring, the court's "good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of 'all of the circumstances.'" Herring, 555 U.S. 135, 129 S. Ct. 695 at 703 (quoting United States v. Leon, 468 U .S. at 922 n.23)).
In determining the issue of apparent authority, this Court has already found that a reasonably well trained officer would have known that the "consent" search of Griswold's password protected laptop computer was illegal and I see no reason to alter that determination for purposes of finding good faith. While I found Investigators Vaughan and Becker's hearing testimony to be credible, candid and forthright, that is not the issue. It is 2011. The "computer age" has certainly progressed to the point where the storage of personal information and data on computer hard drives and other forms of electronic media is no longer a novelty, and is deserving of the protections afforded by the Fourth Amendment. United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004)("Individuals generally possess a reasonable expectation of privacy in their home computers."). In this age of electronically stored information a reasonably well trained police officer should know that an individual's use of a password to protect against unauthorized access to electronic files stored on his or her computer is no less an indication of personal privacy than the use of a lock and key by the owner of a file cabinet. Moreover, it is equally apparent that a reasonably well trained police officer should know that simply because an individual can retrieve a laptop computer from another's bedroom in a common residence does not mean that the owner of the laptop computer has given the third party unfettered access to the files stored on that computer, particularly where, as here, the police are aware prior to opening any files that the owner of the computer has tried to protect access to those files by locking the computer and requiring a password to view the files. In these circumstances, the use of special forensic software to override the password protection is no less offensive to the Fourth Amendment than the use of a bolt cutter to break open the locked file cabinet. At the very least, a reasonably well trained police officer would know that further inquiry was required before relying on the consent of the third party to search a password protected and locked computer belonging to another.
"It cannot be seriously disputed that society's reliance on computers and electronic data is substantial, if not essential. Computers and digital information are ubiquitous and pervade all aspects of business, financial and personal communication activities. Indeed, this opinion was drafted in electronic form, stored in a computer's memory and disseminated to the Judges of this Court via e-mail. We cannot conceive of any reason in law or logic why this process of virtual creation should be treated any differently from production by pen on paper or quill on parchment. A document stored on a computer hard drive has the same value as a paper document kept in a file cabinet." Thyroff v. Nationwide Mut. Ins. Co., 8 N.Y.3d 283, 291-92 (2007).
In this federal indictment Griswold is charged with crimes associated with downloading and viewing images of child pornography. (During the detention hearing, the government disclosed that the defendant is being prosecuted in Steuben County Court for New York State crimes relating to sexual abuse of several minor children depicted in images found on his computer, cell phone and digital camera.) This Court is, of course, aware that suppression of the images at issue here may make prosecution of the defendant in federal court impossible and is also cognizant that exclusion of evidence "has always been our last resort, not our first impulse." Herring, 555 U.S. 135, 129 S. Ct. 695 at 700. In deciding whether to suppress, the Court must ascertain whether the benefits of deterrence outweigh the costs to the justice system. Based on the totality of circumstances, I conclude that the balance tips in favor of excluding the evidence at issue here. I find that the conduct of the Investigators was deliberate and sufficiently culpable that it rises to the level where deterring future violations is worth the price paid by the justice system in excluding the evidence. See United States v. Martinez, 696 F. Supp. 2d at 1262 ("It would thus be consistent with the deterrent policy of the exclusionary rule to exclude [the statement] because officers should generally be deterred from using illegally obtained information to convince a criminal suspect to confess a crime.").
Conclusion
For the foregoing reasons, it is my Report and Recommendation that defendant's motions to suppress be granted.
SO ORDERED.
/s/_________
JONATHAN W. FELDMAN
United States Magistrate Judge Dated: June 2, 2011
Rochester, New York Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed. R. Civ. P. 72(b) and Local Rule 72.3(a)(3).
Counsel is advised that a new period of excludable time pursuant to 18 U.S.C. § 3161(h)(1)(f) commences with the filing of this Report and Recommendation. Such period of excludable delay lasts only until objections to this Report and Recommendation are filed or until the fourteen days allowed for filing objections has elapsed. United States v. Andress, 943 F.2d 622 (6th Cir. 1991); United States v. Long, 900 F.2d 1270 (8th Cir. 1990).
The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Wesolek v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72 .3 (a) (3) , or with the similar provisions of Rule 72 .3 (a)(2) (concerning objections to a Magistrate Judge's Decision and Order) , may result in the District Court's refusal to consider the objection.
Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the Plaintiff and the Defendant.
SO ORDERED.
/s/_________
Jonathan W. Feldman
United States Magistrate Judge Dated: June 2, 2011
Rochester, New York