- Wilson, ___ CA5 ___, ___ CR3 ___ (20) #D074992
Def. sent child porn via attachments in Gmail, which is owned by Google. Google has an automated system that flags potential child porn. The system then generates a report, complete with copies of the images, and sends it to the National Center for Missing and Exploited Children (NCMEC). This is called a “Cybertip.” Determining that the internet address in the email came out of San Diego, the NCMEC forwarded the report to the San Diego Internet Crimes Against Children (ICAC) task force.
Using the information contained in the report, and based on his review of the images, an ICAC investigator obtained a search warrant to obtain from Google all content and user information associated with the Gmail address. This resulted in the discovery of Def’s e-mails offering to pay a minor to molest and exploit children and the distribution of child pornography to others. Another warrant issued for Def’s apartment and vehicle, resulting in finding a thumb drive with thousands of child porn images.
Def. moved under 1538.5 to suppress the search of the original images, and all subsequent evidence. Denied. The Court of Appeal, per Guerrero, J., affirmed.
The court held that Google’s automated search was private, not done in concert with law enforcement. It also held, per Jacobsen, 466 US 109 (84) that the subsequent viewing of the evidence did not expand on the original private search.
In sum, the government’s warrantless search of Wilson’s four images was permissible under the private search doctrine. Google’s private search frustrated Wilson’s expectation of privacy in the files before they were viewed by the government. Google had already identified Wilson’s files as having matching hash values to images that had previously been viewed and identified by a Google employee as apparent child pornography. The government’s subsequent opening and viewing of the four photographs did not significantly expand on the search that had previously been conducted by Google. The agent’s actions in opening the files and viewing the images merely confirmed that the flagged files were child pornography, as reflected in Google’s Cybertip report.
Warrantless Cell Phone Ping Justified Under “Exigent Circumstances”
- Bowen, 52 CA5 130, 265 CR3 824 (20) #A155630
Def had a dispute with Dennis N. over the car of Def’s dog, Dash. Dennis said Def owed him $2,000. Def said Dennis was doing it “pro bono.” A series of texts ensued.
Eventually, Def went to Dennis’s mobile home. Things got ugly—Def and Dennis gave conflicting accounts—but Def stabbed Dennis several times in the neck with a three-inch pocket knife. Dennis ran toward a nearby preschool, screaming for help. Def fled the scene.
The police arrived. Dennis gave them Def’s cell number. And officer called police dispatch, asked them to contact defendant’s mobile phone service provider to determine the defendant’s possible location. This was done, officers went to the location and found Def walking on the trail wearing a backpack, a jacket, and no shirt. He was arrested; his cell phone, backpack, and several knives were seized. Def had blood on his right ear, and DNA tests confirmed the blood was consistent with both defendant’s and Dennis N.’s.
Def filed a motion to suppress the evidence seized from his backpack on the grounds that the police failed to obtain a warrant before having defendant’s service provider ping his cell phone to locate him. The People argued the warrantless cell phone ping was justified by exigent circumstances.
Suppression denied. The Court of Appeal, per Jackson, J., affirmed. This was a situation where the hot pursuit of a dangerous suspect created an emergency under the exigent circumstances exception to the warrant requirement.
Here, at the time Officer Adams requested a ping of defendant’s cell phone, the information available to him was that less than an hour earlier Dennis N. had been repeatedly stabbed in the neck in an unprovoked attack, within 200 yards of a preschool and near a shopping center and multiple neighborhoods. Further, the suspect, who was possibly still armed with a knife, had fled on foot. The area where the witnesses indicated the defendant had headed was a several-hundred-yard field with multiple entrances and exits leading to a creek trail, houses and apartment complexes, and a store; and there are “hundreds of people moving about” the area. The police were actively looking for defendant when they received the CSLI [cell-site location information]. Based upon the circumstances known to Officer Adams, he believed it was imperative that the suspect be found as soon as possible to prevent another possible unprovoked attack. We agree with the trial court’s determination that the exigent circumstances exception applies under the facts of this case, and defendant’s motion to suppress was properly denied.
Justice Amy Coney Barrett and the Fourth Amendment
How will the newest Justice of the Supreme Court rule when it comes to the Fourth Amendment? Of course, no one can know for certain what cases and facts will come before the Court. But two Seventh Circuit decisions authored by Justice Barrett may hold a clue.
In U.S. v. Terry, 915 F3 1141 (19), then-Judge Barrett wrote the following as the lead to her opinion:
Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect’s residence? We hold that the answer is no. The officers could reasonably assume that the woman had spent the night at the apartment, but that’s about as far as a bathrobe could take them. Without more, it was unreasonable for them to conclude that she and the suspect shared access to or control over the property.
What’s nice about that paragraph is how clean it is. It clearly elucidates the facts, the issue, and the law.
The other opinion of note is United States v. Watson, 900 F3 892 (18). Judge Barrett’s opening was, again, clear:
The police received an anonymous 911 call from a 14‐year‐old who borrowed a stranger’s phone and reported seeing “boys” “playing with guns” by a “gray and greenish Charger” in a nearby parking lot. A police officer then drove to the lot and blocked a car matching the caller’s description. The police found that a passenger in the car, David Watson, had a gun. He later conditionally pleaded guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), but preserved for appeal his argument that the court should have suppressed the gun because the stop lacked reasonable suspicion.
We agree with Watson that the police did not have reasonable suspicion to block the car. The anonymous tip did not justify an immediate stop because the caller’s report was not sufficiently reliable. The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful.