• Evensen, ___ CA4 ___, ___ CR3 ___ (16) #A145162
By using a set of software tools known as RoundUp, Napa police learned that an IP address, later determined to be assigned to Evensen’s mother, had downloaded child pornography. RoundUp enables law enforcement officials to detect child pornography on peer-to-peer file-sharing networks. Peer-to-peer networks allow users to share digital files over the Internet. To access these networks, users need only download onto their computers a free software program. The program allows a network user to upload a file onto his or her computer, and it then allows other users to access and download the file onto their own devices. A user who buys a music CD, for example, can convert it into a digital file and upload it onto the peer-to-peer network, thereby allowing other users to access and download the file.
When a network user uploads a file, it is placed in a “shared folder” on the user’s computer. Other users can find files in shared folders by using a keyword search.
Officer Darlene Elia of the Napa Police Department used the RoundUp website to look for Napa County IP addresses used to download or share child pornography. She searched all available peer-to-peer networks. The search returned an IP address, eventually determined to be Evensen’s mother’s. RoundUp flags files known to be child pornography by coding them in red. Looking at RoundUp’s historical list for this particular IP address, Officer Elia saw over 200 red flags.
Using a public website, Officer Elia determined that the IP address was registered to Comcast. Officer Elia then obtained and executed a search warrant for Comcast records and discovered that the subscriber for the IP address was Evensen’s mother. Officer Elia then obtained a second search warrant for the mother’s home. Evensen was present when Officer Elia executed the warrant. After searching Evensen’s room, Officer Elia arrested Evensen and read him his Miranda rights.
Evensen’s arrest was made public, and evidence of more sex crimes came to light. After hearing of the arrest, Jane Doe 1 came forward and claimed that Evensen had raped her and performed other sex acts on her while she slept. Jane Doe 2, whom police identified from images on one of Evensen’s external hard drives, revealed that she had, at Evensen’s request, sent sexually explicit images of herself to him when she was 16 years old. And Jane Doe 3, who was identified by Jane Doe 1 from an image seized from Evensen’s home, told police Evensen had performed various sex acts on her while she slept.
In his motion to suppress, Evensen argued that the use of the RoundUp program amounted to an unconstitutional search and that all of the evidence against him should be suppressed because all of it emanated from this search. After a hearing, the trial court denied the motion, and Evensen then pleaded no contest to one count of advertising for sale obscene matter depicting a minor (Pen. Code, § 311.10), three counts of oral copulation of an unconscious person (id., § 288a, subd. (f)), one count of rape of an unconscious person (id., § 261, subd. (a)(4)), two counts of using a minor for sex acts (id., § 311.4, subd. (c)), and two counts of sodomy of an unconscious person (id., § 286, subd. (f)). He was sentenced to fifteen years, eight months in prison.
The denial of the suppression motion was affirmed, per Humes, P.J.
Computer users generally have an objectively reasonable expectation of privacy in the contents of their personal computers. (United States v. Ganoe (9th Cir. 2008) 538 F.3d 1117, 1127 (Ganoe).) But there are exceptions to this general rule, and one of them is that computer users have no reasonable expectation of privacy in the contents of a file that has been downloaded to a publicly accessible folder through file-sharing software.
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Evensen testified that he did not always immediately move files out of his shared folder and that another network user once partially downloaded one of his pornographic files. He cannot claim that his shared folder was private at all times or that he believed it to be. Moreover, RoundUp would not have even detected Evensen’s files if they had never been publicly accessible. According to Officer Ichige, RoundUp compiles information from files stored in network users’ shared folders and cannot search files stored elsewhere on users’ computers.
9th Circuit
“Knock and Talk” Exception Not Applicable When Officers Intended to Arrest
- LUNDIN, ___ F3 ___ (9 Cir. 16) #14-10365
At 4:00 a.m. three officers approached Eric “Whitey” Lundin’s home without a warrant. Lundin was a member of the Mongols motorcycle gang. He had threatened a woman with death, brandishing two handguns. The officers came to “knock and talk” and arrest Lundin.
On his front porch they knocked on the door. They heard crashing noises coming from the back of the house. They ran to the back, ordered Lundin to come out of the fenced-in backyard, and arrested him. After putting Lundin in a patrol car, several officers briefly searched Lundin’s home, including the back patio where they found two handguns in open view. The handguns matched the description of guns used in the threat.
Lundin was charged with being a felon in possession of a firearm and ammunition. He moved to suppress the evidence obtained from the patio and inside the house, as well as statements he had made before he was read his Miranda rights. The trial court granted with respect to the guns, but not the statements. The 9th Circuit Court of Appeals affirmed, and remanded.
The government argued exigent circumstances, in this case hearing the crashing noises in the back. The issue, then, was whether the officers had the right to be within the curtilage of Lundin’s home when they knocked on his door.
The government contends that the officers were permitted to knock on Lundin’s door under the so-called “knock and talk” exception to the warrant requirement, which permits law enforcement officers to “‘encroach upon the curtilage of a home for the purpose of asking questions of the occupants.’” Perea-Rey, 680 F.3d at 1187 (quoting United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir. 2001)). The “knock and talk” exception resembles to some degree the exception for consensual searches. The relevant “consent” in a “knock and talk” case is implied from the custom of treating the “knocker on the front door” as an invitation (i.e., license) to approach the home and knock. Jardines, 133 S. Ct. at 1415 (citation omitted).
However:
The “knock and talk” exception to the warrant requirement does not apply when officers encroach upon the curtilage of a home with the intent to arrest the occupant.
Also from the 9th Circuit:
- EVANS, ___ F3 ___ (16) #14-10024:
Applying Rodriguez v. United States, 135 S. Ct. 1609 (2015), the panel held that, by conducting an ex-felon registration check and a dog sniff, both of which were unrelated to the traffic violation for which he stopped Evans, an officer prolonged the traffic stop beyond the time reasonably required to complete his traffic mission, and so violated the Fourth Amendment, unless there was independent reasonable suspicion justifying each prolongation. The panel remanded to the district court for consideration in the first instance of whether the officer’s prolongation of the traffic stop was supported by independent reasonable suspicion.