Friday, December 09, 2016

Child Pornography, the Network Investigative Technique and the 4th Amendment

This post examines an opinion issued by a U.S. District Court Judge who sits in the U.S. District Court for the District of South Carolina: U.S. v. Knowles, 2016 WL 6952109 (2016). The District Court Judge begins the opinion by explaining that the defendant
is charged with possession of child pornography, in violation of 18 U.S. Code § 2252A. The charge arises from the Government's investigation of a website known as `Playpen,’ a global forum for distributing child pornography, which used `Tor’ software to avoid detection by law enforcement. (Dkt. No. 59 at 1.) Tor prevents tracing internet communications to the actual user. To overcome that obstacle, FBI agents utilized a Network Investigative Technique (`NIT’) to identify Playpen users. Using information obtained from the NIT, FBI agents connected Defendant's home address to a Playpen username used to access child pornography. Agents then obtained a warrant to search Defendant's home, wherein they seized computer media containing child pornography. Defendant now moves to suppress those items, arguing the Government's use of an NIT, which was authorized by a search warrant issued in the [U.S. District Court for the] Eastern District of Virginia, to obtain information from Defendant's computer, which was located in South Carolina, violated the Fourth AmendmentRule 41(b)of the Federal Rules of Criminal Procedure, and 28 U.S. Code § 636(a).
U.S. v. Knowles, supra.
The judge then outlines what he refers to as “Internet Background,” explaining that
Defendant's challenge to the use of an NIT raises issues requiring some background on communications between a website and its users. Websites exist on computers called `servers.’ A computer accessing the website is a `client’ computer. Website servers and their clients typically are not part of the same home or office computer network. Thus, communications between server and client require a connection between networks—a means of `internetworking’ (hence, the `internet’). This is accomplished by assigning internet protocol (`IP’) addresses, bundling communications into data `packets’ bearing source and destination IP addresses, and using specialized devices, `network nodes,’ to forward the data packets between networks. Each data packet has a `header’ containing the source IP address, the destination IP address, and other data needed to route the packet. Network nodes use those IP addresses to route the packet between the user's location and the website's location, which might be the other side of the world.

The process may be analogized to physical mail. Communications are bundled into an envelope or `packet,’ having a `header’ with source and destination addresses. The packet is forwarded among various `nodes,’ post offices and mail distribution centers, resulting, ultimately, in delivery to the intended recipient. By that analogy, to interact with a website is to engage in a correspondence with it. A closer analogy may be correspondence via telephone text messaging—an exchange of short messages across a communications network between persons using devices associated with unique numbers. The text message analogy illustrates IP addresses are subscriber numbers assigned by a service provider, like a telephone number, and not physical locations, like a mailing address. An internet service provider can provide subscriber information, including location information, regarding IP addresses, just as a telephone service provider may provide subscriber information regarding telephone numbers. (See Dkt. No. 47–1 ¶ 22.) The service provider responsible for a given IP address may be identified using publicly available information, again, just as a telephone company may be identified for a given telephone number. (Id.)

Finally, not all network addresses are used to route communications across the internet. Some addresses are local addresses valid for communications only within a single network or portion of a network. . . . These addresses again can be analogized with telephones, as number extensions on a shared line—persons in the same office can reach one another by dialing an extension, but outside persons must dial the number for main line and all outgoing calls display that number on `caller ID.’

A media access control address (`MAC address’) is a type of local address at issue in this case. A MAC address is assigned to a network interface, usually by the manufacturer, to identify devices on a network. Smith, supra, at 462–63; see also Azure Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014) (discussing MAC addresses). . . . MAC addresses generally not transmitted over the internet, and websites generally cannot request (or “instruct”) a client to transmit its MAC address directly. Flickenger, supra, at 45. To obtain a client's MAC address, a website must somehow bypass the client's normal security measures.
U.S. v. Knowles, supra.
The Judge then takes up the issue of the Tor Network, explaining that
[n]ormally, law enforcement can review a website's IP address logs after they seize a website to determine which IP addresses visited the site. (See Dkt. No. 47–1 ¶ 22.) They can then search public information to determine which internet service provider owned a target IP address and issue a subpoena to that service provider for the identity of the user of that IP address. (Id.) Playpen users, however, concealed their IP addresses with Tor. (Dkt. No. 47–3 ¶ 7.) The Department of Defense designed Tor to protect government communications, but it is now free software available to the public. (Id.) The NIT search warrant affidavit describes Tor as masking users' IP addresses by “bouncing their communications around a distributed network of relay computers run by volunteers all around the world.” (Id. ¶ 8.) However, `bouncing . . . communications around a distributed network . . . all around the world’ describes most internet communications. More specifically, Tor utilizes `onion routing’ to make internet communications anonymous. (Tor is an acronym for `The Onion Router.’) In onion routing, packets are the core of layered cells or “onions.” Around that core are layers of encryption. Special software on the user's computer chooses a `circuit’ through the network of Tor servers, known as `onion routers.’ There are approximately seven thousand publicly listed routers and another two thousand unlisted routers (used to prevent service providers from blocking access to the Tor network). See Tor Metrics, The Tor Project, Inc., https://metrics.torproject.org/networksize.html. Each onion router decrypts a layer of the onion, receiving instruction on where next to relay it. No onion router knows how many routers are in the circuit, and only the last router in the circuit, the `exit node,’ knows its position in the circuit. When the onion leaves the exit node, it proceeds to its destination as any other internet traffic, but with the exit node's IP address rather than the actual sender's IP address.
U.S. v. Knowles, supra.  The opinion also notes that “Tor also allows websites, such as Playpen, to operate as a `hidden service.’”  U.S. v. Knowles, supra. 
For these and other reasons, the court denied Knowles’ motion to suppress. 
The opinion goes on to explain that
Playpen needed the anonymity Tor provides because it was `dedicated to the advertisement and distribution of child pornography, [and] the discussion of matters pertinent to child sexual abuse.’ (Id. ¶ 6.) The website's home page displayed an image of two partially clothed prepubescent females with their legs spread apart. (Id. ¶ 12.) That page prompted users either to register an account or to login using an existing username and password. (Id.) . . . The message also stated, `This website is not able to see your IP address and can not [sic] collect or send any other form of information to your computer except what you expressly upload.’ (Id.)

After logging in, users saw a page listing discussion boards for images, videos, or text related to child pornography, including `Preteen Photos,’ `Pre-teen Videos,’ `Pre-Teen Photos,’ `Family—Incest’ and `Toddlers.’ (Id. ¶ 14.) . . . Over 1,500 unique users visited Playpen daily and over 11,000 unique users visited the site over the course of a week. (Id. ¶ 19.) By March 2015, Playpen contained a total of 117,773 posts, 10,622 total topics, and 214,898 total members. (Dkt. No. 47–1 ¶ 12.)

In December 2014, a foreign law enforcement agency informed the FBI it suspected a United States-based IP address was associated with Playpen. (Dkt. No. 47–3 ¶ 28.) The FBI determined the subject IP address was owned by a server hosting company headquartered in North Carolina.  (Id.; Dkt. No. 59 at 2.) The FBI subsequently obtained a search warrant for the server. (Dkt. No. 47–3 ¶ 28.) FBI agents examined the server and determined it contained a copy of Playpen. They then stored the copy of the website on a computer server at a government facility in Newington, Virginia. Newington is located in the Eastern District of Virginia. (Id.) Additional investigation revealed a Florida resident controlled Playpen. (Id.) On February 19, 2015, FBI personnel executed a court-authorized search of the administrator's residence in Florida. (Id. ¶ 30.) The FBI arrested the suspect and assumed control of Playpen. (Id.)
U.S. v. Knowles, supra. 
The opinion then takes up the Network Investigative Technique, explaining that on
February 20, 2015, Special Agent Douglas Macfarlane applied to a United States Magistrate Judge in the Eastern District of Virginia for a search warrant to use an NIT with Playpen (the `NIT search warrant’). . . . In the warrant application, Agent Macfarlane stated the NIT was necessary to overcome the anonymity Tor provides. . . . The warrant application sought operating system, computer name, and MAC address information to enable identification of a specific computer within a household sharing an IP address, and possibly identification of a specific user of a shared computer. Hr'g Tr. 27:19–30:11. United States v. Matish, Crim. No. 4:16–16 (E.D. Va. May 19, 2016), Dkt. No. 61.

The warrant provided that the NIT would activate `each time that any user or administrator log[ged] into Playpen by entering a username and password.’ (Dkt. No. 47–3 ¶ 36.) However, in practice the FBI configured the NIT to activate only when a user accessed certain posts within Playpen. Hr'g Tr. 20:19–25, Matish, Crim. No. 4:16–16, Dkt. No. 61. . . .The NIT did not activate when a user reached Playpen's home page, created an account, or logged into that account. . . . To activate the NIT, a user actually had to access child pornography. See, e.g.,Hr'g Tr. 27:19–30:11, Matish, Crim. No. 4:16–16, Dkt. No. 61. . . . Once activated, the NIT caused the “activating computer—wherever located—to send to a computer controlled by or known to the government network level messages containing information that may assist in identifying the computer, its location, other information about the computer and the user of the computer.” (Dkt. No. 47–3 ¶ 46.) The FBI could then link a username and its corresponding activity on the site with an IP address. (Id. ¶ 37.) As explained above, IP addresses can be used to determine location, and other information gathered by the NIT, such as a local computer account name and MAC address, can link a particular computer found at a location to a Playpen user. . . .
U.S. v. Knowles, supra. 
I cannot include all of the information in the opinion because it is very long. If you would like to request a copy of the entire opinion, you can contact U.S. District Court Judge Gergel via this website: http://www.scd.uscourts.gov/Judges/distjudge.asp.
Getting back to the opinion, it then explains that the
FBI used the NIT to, among other things, trace Knowles’ use of the Playpen system, which led to agents’ executing a search warrant at his residence, which apparently turned up evidence that was used to indict Knowles.  U.S. v. Knowles, supra.  After he was indicted, he filed a motion to suppress “evidence seized pursuant to the search warrant of February 20, 2015, which authorized use of the NIT.” U.S. v. Knowles, supra.  Like most motions to suppress, this one argued that the FBI agents violated the 4th Amendment in their investigation of Knowles’ use of the site. U.S. v. Knowles, supra.
Getting back to the opinion, the District Court Judge began his analysis of the motion to suppress and the prosecutors’ argument that it should not be granted by explaining that
[t]he Fourth Amendment protects `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ U.S. Const. amend. IV. All warrants must `(1) be issued by a neutral and detached magistrate, (2) contain a particular description of the place to be searched, and the person or things to be seized, and (3) be based upon probable cause, supported by Oath or affirmation.’ United States v. Clyburn, 24 F.3d 613, 617 (U.S. Court of Appeals for the 4th Circuit 1994). Evidence seized pursuant to a warrant lacking one of those requirements may be suppressed. However, `[s]uppression of evidence . . . has always been [the court's] last resort, not [the court's] first impulse.’ Hudson v. Michigan, 547 U.S. 586 (2006). Because the consequences of suppression are dire, a defendant urging suppression carries a heavy burden. See Hudson v. Michigan, supra. Suppression is limited to cases in which its deterrent effect against law enforcement's misconduct outweighs the costs inherent in barring evidence that law enforcement expended great resources to obtain. See Penn. Bd. of Prob. & Parole v. Scott, 524 U.S. 357 (1998). . . .  
U.S. v. Knowles, supra. 
The court went on to explain that
Defendant argues the NIT search warrant does not contain a particular description of the place to be searched, because the location of Defendant's computer was unknown when the warrant issued, and so violates the Fourth Amendment. (Dkt. No. 47 at 13–14.) Defendant also argues the NIT search warrant's issuance in Virginia violates Rule 41(d) in a manner requiring suppression, (1) because it was void ab initio because it exceeded the magistrate judge's authority under the Federal Magistrates Act, (2) because the violation prejudiced Defendant, and/or (3) because law enforcement acted in bad faith or with deliberate disregard of Rule 41 when obtaining the warrant. (Id. 5–11.) He moves to suppress evidence seized from his home, because the probable cause supporting the warrant for that search was a fruit of the NIT search warrant.

Many federal courts have addressed the NIT search warrant at issue here. Courts generally find the magistrate judge in Virginia lacked authority to issue the NIT search warrant without finding suppression to be appropriate. 
U.S. v. Knowles, supra. 
The judge went on to point out that a Fourth Amendment “search” takes place
when `the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action.’ Smithv. Maryland, 442 U.S. 735 (1979). There are two components to a reasonable expectation of privacy: `first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.”’ Katz v. UnitedStates, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Defendant claims the NIT violated his Fourth Amendment rights. He must therefore demonstrate that the NIT violated a subjective expectation of privacy and that society is prepared to recognize that expectation as reasonable. Smith v. Maryland, supra.

The NIT retrieved several types of information from Defendant's computer. (See Dkt. No. 47–3 ¶¶ 34.) The most important information retrieved from Defendant's computer was his IP address, which informed authorities of Defendant's location and led to the search that Defendant wishes suppressed. The government contends Defendant had no reasonable expectation of privacy in his IP address. (Dkt. No. 59 at 14–15.) Courts uniformly hold there is no reasonable expectation of privacy in an IP address, a number assigned Defendant by his service provider, which he voluntarily provided to third parties every time he used the internet. See United States v. Laurita,Crim. No. 8:13–107, 2016 WL 4179365, at *5 (D. Neb. Aug. 5, 2016); see also United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010) . . . . But the IP address was not the only information the NIT retrieved from Defendant's computer. It also retrieved his MAC address, local computer operating system information, and local compute operating system login username. (Dkt. No. 47–3 ¶ 34.) The Government needed that information to identify Defendant as the person accessing Playpen under the user name mim878. See Hr'g Tr. 27:19–30:11, Matish, Crim. No. 4:16–16, Dkt. No. 61. To obtain that information, the NIT surreptitiously placed code on Defendant's personal computer that extracted the information. (See Dkt. No. 47–3 ¶¶ 33–34.) Thus, the relevant inquiry is whether Defendant has a reasonable expectation of privacy in the contents of his personal computer, which was located in his home, not whether he has a reasonable expectation of privacy in his IP address.
U.S. v. Knowles, supra. 
The opinion then explains that individuals
generally have a reasonable expectation of privacy in the contents of their home computers. See United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004). . . . The Court is aware of no authority holding persons have no reasonable expectation of privacy in their personal computers located within their homes. . . .

The NIT `downloaded’ surreptitiously to Defendant's computer to search his computer for personally identifying information not routinely disclosed over the internet. That is a search within the meaning of the Fourth Amendment. . . .

There is little doubt that had law enforcement officers obtained Defendant's IP address from a non-Tor-based server and issued a subpoena to the ISP to determine Defendant's physical address, a motion to suppress the information obtained from the ISP would be without merit. However, Defendant's IP address was discovered only after property residing within Defendant's home—his computer—was searched by the NIT. . . .
U.S. v. Knowles, supra. 
The court went on to find that the NIT search warrant complied with the
Fourth Amendment's requirements of probable cause and particularity. See U.S. Const. amend. IV (providing `no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized’). The application for the NIT search warrant provided substantial probable cause for the warrant to issue by describing overwhelming evidence Playpen was used to host and exchange child pornography. . . . All courts analyzing the NIT search warrant have found it supported by probable cause. . . .

Defendant's constitutional challenge to the NIT search warrant is that it `failed to comply with the Fourth Amendment's particularity requirements.’ (Dkt. No. 47 at 13.) The Court finds no merit in that argument. As the U.S. District Court for the Northern District of California noted in U.S. v. Henderson, 2016 WL 4549108 (N.D. Cal. Sept. 1, 2016) observed, the warrant provides the NIT will
`obtain[ ] information. . .from the activating computers,' that are “those of any user or administrator who logs onto [Playpen] by entering a username and password.” NIT Warrant, Attachment A. This description is sufficiently particular because it is limited only to individuals that log onto the Playpen website using a username and password. Because of the structure of the Tor network, only individuals actively attempting to access the Playpen website, with sufficient knowledge of the website and its contents, are able to access it. The Warrant is sufficiently particular as it specifies that the NIT search applies only to computers of users accessing the website, a group that is necessarily actively attempting to access child pornography.
U.S. v. Knowles, supra. 
The opinion also noted that
[t]his Court agrees: A search warrant seeking an address from any computer that deliberately logs into a hidden, illegal website hosted on a particular server is sufficiently particular. . . . The point of the NIT search warrant was to learn the location of computers accessing Playpen. If the Government knew Defendant's computer was in South Carolina, no NIT search warrant regarding this Defendant would have issued because the Government would not have needed one. Moreover, the Supreme Court has squarely rejected Defendant's argument. . .
U.S. v. Knowles, supra. 
Finally, the Judge found that suppressing the evidence gathered by the NIT was
inappropriate for several separate and independent reasons. The search warrant was not void ab initio, as Defendant argues. Rather, it was a valid search warrant, at least in the Eastern District of Virginia, that satisfied all Fourth Amendment requirements. Even if that were not the case, the Government relied upon its validity in good faith. Even if the Government had learned Defendant was in South Carolina, exigent circumstances would have justified the NIT search without first obtaining a warrant in South Carolina. Finally, the ministerial violation of Rule 41 that occurred in this case does not justify the exclusion of evidence seized on probable cause and with advance judicial approval, because the Government did not intentionally disregard the rule and because the violation did not prejudice Defendant.
U.S. v. Knowles, supra. 
The court’s reference to a violation of Rule 41 of the Federal Rules of Criminal Procedure deals with a related, but distinct, issue. As Wikipedia explains, the 
Federal Rules of Criminal Procedure are the procedural rules that govern how federal criminal prosecutions are conducted in United States district courts and the general trial courts of the U.S. government. 
Even if the collection of evidence at issue in this case violated the provisions of Rule 41, which operationalize the requirements of the Fourth Amendment, the court found that a violation or violations of Rule 41 would not justify suppressing evidence. As Wikipedia explains, the exclusionary rule is only used to enforce individuals’ Constitutional rights.

Wednesday, December 07, 2016

Murder, the iPhone and the Fourth Amendment

This post examines a recent opinion from the Appeals Court of Massachusetts:  Commonwealth v. Williams, 2016 WL 7041629 (2016).  The court begins by explaining that “[b]efore us is the defendant's interlocutory appeal from the denial of his motion to suppress evidence discovered on his cellular telephone (iPhone), which was seized without a warrant.”  Commonwealth v. Williams, supra.
The opinion goes on to explain that the “motion judge”, i.e., the judge who heard Williams’ argument as to why his motion to suppress should have been granted, “found the following pertinent facts.” Commonwealth v. Williams, supra.
Shortly after 5:30 P.M. on November 19, 2012, police responded to a shooting in the Brighton section of Boston and found the victim, Leroy Cooper, unresponsive. The victim had been in a car with two men, Athanasios Paloukos and Sadar Yaraghi, who told police that the three were engaged in a transaction to sell marijuana. The victim had made and received calls on his cellular telephone (cell phone) while sitting in the front passenger seat during the drive to Brighton in order to arrange the deal. The three men picked up two young men outside a housing development. One of the men (suspect one) sat in the middle back seat, and the other (suspect two) sat behind the front passenger seat. Marijuana was handed to one of the suspects, and both then exited the vehicle. After a dispute about payment for the marijuana, suspect two pulled out a gun and fatally shot the victim. Both suspects then fled on foot.

The victim's cell phone showed that he had exchanged text messages, arranging a meeting place, with a particular telephone number with an 857 area code (857 number) in the hours preceding the shooting. The victim had also answered a call from the 857 number just minutes before the shooting. The 857 number was associated with an individual named Patrick Malone, who had given the 857 number as his telephone number when booked for an unrelated crime two weeks before the shooting.  Malone, who was wearing a global positioning system tracking device, was in the area of the shooting when it occurred. The 857 number was registered to a `Warren Sapp’ (the name of a former professional football player); service to the cell phone associated with that number was terminated shortly after 6 P.M. on the day of the shooting.
Commonwealth v. Williams, supra.
The court goes on to explain that
Yaraghi and Paloukos both gave physical descriptions of the suspects, and Paloukos told police he thought one of the suspects was named Robert. Four days after the shooting, both witnesses were shown photograph arrays including a picture of Malone, and both identified Malone as resembling suspect one. Malone was arrested eleven days after the shooting.
Commonwealth v. Williams, supra.
The opinion then explains what happened next:
The victim's cell phone records led police to another individual who identified the defendant as one of two people who possibly matched the witness descriptions of suspect two. Police included a photograph of the defendant in a second set of photograph arrays, and both Yaraghi and Paloukos selected the defendant as bearing a resemblance to suspect two, although neither could so state with certainty. The defendant lived near Malone and near the location where the victim and the two witnesses had picked up the two suspects on the day of the shooting.

The defendant agreed to an interview with police two weeks after the shooting. He stated that he had known Malone for twenty years and that Malone had spoken to him (by telephone) on the morning of the shooting. The defendant provided his iPhone number and shortly thereafter invoked his right to counsel. At the end of the interview, the police seized the defendant's iPhone. A detective switched the iPhone into `airplane mode,’ disabled security features, powered it off, and wrapped it in aluminum foil. The police returned the defendant to his residence and secured the iPhone until they obtained a warrant to search it a few days later.
Commonwealth v. Williams, supra.
The opinion then explains that Williams
was charged with and indicted for murder, armed robbery, and unlawful possession of a firearm. He filed several motions to suppress evidence from the warrantless seizure of his iPhone, which were denied. The motion judge concluded that police had probable cause to believe that evidence of the defendant's involvement in the shooting might be found on his iPhone, and that (as the defendant concedes) exigent circumstances justified its seizure to prevent destruction or removal of evidence during the time it would take to obtain a search warrant.
Commonwealth v. Williams, supra.
The Appeals Court then begins its analysis of the lower court’s ruling on the motion to suppress:
The sole issue before us is whether there was probable cause to seize the defendant’s iPhone. When reviewing a decision on a motion to suppress, `we accept the judge's subsidiary findings of fact absent clear error, but independently review the judge's ultimate findings and conclusions of law.’ Commonwealth v. Jewett, 471 Mass. 624, 628 (Massachusetts Supreme Judicial Court 2015) (quotation omitted).

Here, we conclude that there was probable cause to believe that the defendant’s iPhone would contain evidence linking his alleged coventurer Malone to the 857 number and thus to the shooting. Before the seizure, the police had evidence that the 857 number associated with Malone as of two weeks earlier had been used to communicate with the victim just before the shooting, and the defendant admitted that he had spoken to Malone by telephone earlier that day. 

Although there was no evidence that the conversation took place by cell phone rather than by landline, it was a reasonable inference, even if not compelled, that cell phones were used. Accordingly, because the defendant admitted that he had known Malone for twenty years and had spoken with him by telephone that day, the police had probable cause to believe that the defendant's iPhone would contain evidence of a call between the iPhone and a cell phone being used by Malone on the day of the shooting. Establishing what cell phone number Malone was using on the day of the shooting was important because the 857 number was not registered in Malone's name.

Thus the seizure of the iPhone was supported by probable cause to believe it contained evidence relevant to who was involved in the shooting, even if the defendant himself had not been suspected of involvement in the shooting. Compare Matter of a Grand Jury Investigation, 427 Mass. 221, 225, cert. denied, 525 U.S. 873 (Massachusetts Supreme Judicial Court 1998) (`[T]here is no requirement at all that the person to whom a search warrant is directed should himself even be suspected of crime, much less that there be probable cause to believe him guilty’); Commonwealth v. Augustine, 472 Mass. 448, 456 n. 11 (Massachusetts Supreme Judicial Court 2015).
Commonwealth v. Williams, supra.
The court goes on to explain that,
[l]ike the motion judge, we are not persuaded by the defendant's remaining argument: that the police had insufficient grounds to infer that the iPhone seized from him at his interview two weeks after the shooting was the same cell phone he had been using on the day of the shooting. Where an object possessed by a defendant is `durable, of continuing utility to the defendant[ ], and . . . not inherently incriminating to possess,’ it is reasonable to infer that the object has not been disposed of and may be found at the defendant's home. Commonwealth v. James, 424 Mass. 770, 778 (Massachusetts Supreme Judicial Court 1997). See Commonwealth v. Wilson, 427 Mass. 336, 343 (Massachusetts Supreme Judicial Court 1998); Commonwealth v. Thevenin, 82 Mass.App.Ct. 822, 827 (2012).

We think the same factors make it reasonable to infer that the defendant here had not disposed of the cell phone he used on the day of the shooting, but instead that he continued to keep it on his person (as is typical of a cell phone), including when he came to the police station for an interview two weeks later. Compare Commonwealth v. Fleurant, 2 Mass.App.Ct. 250, 255 (1974) (because, `[u]nlike drugs or liquors, a collection of weapons is not likely to be consumed or destroyed,’ age of information in search warrant application was of less significance). See Commonwealth v. Blye, 5 Mass.App.Ct. 817, 818 (1977).
Commonwealth v. Williams, supra.
The Appeals Court concluded the opinion with these observations:
Finally, this case is quite unlike Commonwealth v. White, 475 Mass. 583, 588–591 (Massachusetts Supreme Judicial Court 2016), where the court held that there was no probable cause to seize a murder suspect's cellphone, absent information that the cell phone had any `nexus’ with the crime. There, the police had `inferred that, if the defendant planned and committed multiple crimes with two coventurers, it was likely he did so, at least in part, using his cellular telephone, and that evidence of these communications would be found on the device.’ Id. at 591. The court held that this inference did not establish a nexus; `even where there is probable cause to suspect the defendant of a crime, police may not seize or search his or her cellular telephone to look for evidence unless they have information establishing the existence of particularized evidence likely to be found there.’ Id. at 590–591. 

Here, unlike in White, the police had information suggesting that the defendant’s iPhone would contain particularized evidence: the cell phone number that Malone was using on the day of a crime of which Malone was suspected and in which it was known that cell phone communications played a central role.
Commonwealth v. Williams, supra. 

Monday, December 05, 2016

The Civil Suit, the Juror’s Tweets and the Motion for a New Trial

This post examines an opinion the District Court of Appeal  of Florida – Fourth District recently issued in a civil appeal that involved a jury verdict in an action seeking damages for injuries sustained in an automobile accident:  Murphy v. Roth, 2016 WL 5803658 (2016).
The Court of Appeal begins by explaining that
Michele L. Murphy (hereinafter `Plaintiff’) appeals from a final judgment and seeks review of an order denying her motion for a new trial. Plaintiff contends that a juror engaged in misconduct by posting comments about the case on social media and by failing to disclose certain information during voir dire. The sole issue on appeal is whether the trial court abused its discretion in denying Plaintiff's motion for a new trial based on this alleged misconduct. . . .
Murphy v. Roth, supra.
The opinion goes on to explain how, and why, the lawsuit arose:
This case involved an automobile accident. Plaintiff brought suit against Michael B. Roth (`Defendant’), claiming that she sustained injuries due to Defendant's negligent operation of his vehicle. Issues of liability and damages were hotly contested. At the trial below, Plaintiff claimed that she was hit from behind by a phantom car, causing her to swerve and lose control, and that she was then hit in the front by Defendant's car and forced off the road. Defendant claimed that Plaintiff struck his car on the rear passenger side, skewing his car to the right, and then hit the front right side of his car, sending him spinning off the road.

At the beginning of voir dire, the trial court instructed the jurors not to communicate with anyone about the case or their jury service:

`You must not communicate with anyone, including friends and family members, about this case, the people and places involved, or your jury service. You must not disclose your thoughts about this case or ask for advice on how to decide this case.’

`I want to stress that this rule means you must not use electronic devices or computers to communicate about this case, including tweeting, texting, blogging, emails, posting information on a website or chatroom, or any other means at all. Do not send or accept any messages to and from anyone about this case or your jury service.’
Murphy v. Roth, supra.
The court goes on to explain that during voir dire,
the trial court inquired whether anyone had been involved in a similar situation:

`This is a case about injuries received in an automobile accident. Ms. Murphy claims that Mr. Roth caused an automobile accident that resulted in certain injuries. Mr. Roth denies those claims. Instead, Mr. Roth claims Ms. Murphy caused the accident and that the injuries from the accident are not as extensive as Ms. Murphy claims.’

`All right. You have heard me give you a brief description of what this case is about. And, again, that's all you're going to be allowed to hear until a jury is picked. Is there anyone here personally or has had a close relative or a very close friend involved in a situation that sounds similar in any way to this case, whether or not it resulted in a lawsuit or not?’

In response, several prospective jurors discussed accidents involving themselves or their family members, all of which involved either a lawsuit or an injury. The trial court then asked: `All right. Anyone else?’ The juror at issue herein (`Juror 5’) did not respond.’
Murphy v. Roth, supra.
The opinion goes on to explain that,
[l]ater during voir dire, Plaintiff's counsel asked if anyone had a family member or friend who had undergone a cervical fusion. Juror 5 responded that his step-mother was in a car accident and had some plates inserted in her neck, but was not sure if the procedure was a cervical fusion. Plaintiff's counsel asked him a few follow-up questions about his step-mother's recovery after surgery, but did not inquire further about the accident or whether a lawsuit arose.

At another point during voir dire, Plaintiff's counsel asked the jurors about their feelings towards personal injury lawsuits. In addition to believing that there were probably more frivolous lawsuits than there should be, Juror 5 stated the following:

`I'm kind of like indifferent about it. Like, I really don't—it's necessary. Some people, sure they need it. But I feel like some people also do it just for the money, like he said up front.’

`I wouldn't say 80%. I can't put a number on it. But I feel like, sure, a good amount of people sue for dumb reasons.’
Murphy v. Roth, supra.
Next, came the trial and,
[a]fter the jury was selected and sworn, the trial court again gave an instruction to the jury to not communicate about the case:

`In this age of electronic communication I want to stress again that just as you must not talk about this case face-to-face, you must not talk about this case by using an electronic device. Do not send or accept any messages related to this case or your jury service. Do not discuss this case or ask for advice by any means at all, including posting information on an Internet website, chatroom, or blog.’

The trial took place between May 12 and May 16, 2014. The jury returned a $39,000 verdict for past and future medical expenses and apportioned liability, 60% to Plaintiff and 40% to Defendant. Since the jury did not find that Plaintiff had suffered a permanent injury, no damages for pain and suffering were awarded.
Murphy v. Roth, supra.
The opinion goes on to explain that
Plaintiff filed a motion for juror interview based on newly discovered evidence, wherein she contended that her right to a fair and impartial jury was compromised by Juror 5. Plaintiff also filed a motion for new trial incorporating, by reference, her motion for juror interview. In support of these motions, Plaintiff alleged that Juror 5 posted a series of tweets on his Twitter account during the days of jury selection and trial, which included the following:

a. `I got picked as a juror . . . I hate this s––– I'm so pissed, I even half assed all my answers and I dressed terrible.’

b. `Being a juror isn't bad, people I'm working with are pretty cool. But I still hate the fact that I have to be here all day.’

c. `Everyone is so money hungry that they'll do anything for it.’
Murphy v. Roth, supra.
The court then noted that
[a]fter conducting two hearings, the trial court granted the motion for juror interview. During the interview, Juror 5 admitted that the Twitter account in question, although titled under a pseudonym, was his and that he posted all of the tweets at issue. The trial court asked Juror 5 about his understanding of the court's instruction to not communicate about the case or his jury service on social media. Juror 5 responded that he thought the instruction `pretty much’ meant `don't talk about the case.’ Juror 5 testified that he did not tweet while sitting in the courtroom during the trial and that he did not intentionally or deliberately disobey the court's order regarding the use of social media. Finally, Juror 5 denied telling anyone else his views about the case at any time prior to the commencement of deliberations.
Murphy v. Roth, supra.
The court then points out that the
trial court specifically asked Juror 5 about his tweet that he `half assed’ his answers. Juror 5 replied that he was `kind of confused’ by what Plaintiff's counsel was saying during jury selection. Juror 5 elaborated: `Because, like, I got nervous so when he was asking me questions I didn't really know what to say so all my questions were all mumble jumbled and then that's pretty much what I meant by it.’ And finally, the trial court asked Juror 5 whether he was referring to the trial when he tweeted, `Everyone is so money hungry that they will do anything for it’? Juror 5 responded:

`No, ma‘am, I was not. I was actually tweeting about the fact that we got into an accident, me and my father, May 2, and then my dad got the court order during the trial case, and that's when I woke up after my nap he told me about it.’

After conducting what would be the fourth post-trial hearing on this case, the trial court denied Plaintiff's motion and declined to take any action against Juror 5. Thereafter, the trial court entered a final judgment in favor of Plaintiff for $27,535.17 from which this appeal was taken.
Murphy v. Roth, supra.
The Court of Appeals then began its analysis of the facts and the legal issues in the case by explaining that a
trial court's order on a motion for new trial is reviewed for an abuse of discretion. Duong v. Ziadie, 125 So.3d 225, 227 (Fla. 4th District Court of Appeal 2013). `If reasonable people could differ as to the propriety of the court's ruling, then the abuse of discretion standard has not been met.’ Taylor v. Magana, 911 So.2d 1263, 1267 (Fla. 4th District Court of Appeal 2005) (quoting Vanderbilt Inn on the Gulf v. Pfenninger, 834 So.2d 202, 203 (Fla. 4th District Court of Appeal 2002)). As the Florida Supreme Court explained in Canakaris v. Canakaris, `[i]n reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the ‘reasonableness' test to determine whether the trial judge abused his discretion.’ 382 So.2d 1197, 1203 (Florida Supreme Court 1980). A discretionary ruling of a trial judge should be disturbed only when the decision fails to satisfy this test of reasonableness. Id.

Plaintiff argues that the comments posted within Juror 5's tweets showed not only a disdain for the court system and his jury service but also a clear bias against Plaintiff which, when coupled with his failure to disclose a recent accident involving him and his father, deprived Plaintiff of the right to a fair and impartial jury. Accordingly, Plaintiff contends that the trial court abused its discretion in denying her motion for a new trial. Defendant argues that Juror 5's tweets do not amount to prejudicial misconduct and that Plaintiff cannot, on this record, establish that she is entitled to a new trial based on the nondisclosure of the recent accident.

`When the embrace of social media is ubiquitous, it cannot be surprising that examples of jurors using platforms like Facebook and Twitter “are legion.’” United States v. Feng Ling Liu, 69 F.Supp.3d 374, 386 (U.S. District Courtfor the Southern District of New York 2014) (citation omitted). `Prejudice can come through a whisper or a byte.’ Dietz v. Bouldin, 136 S.Ct.1885, 1895 (2016).
 Murphy v. Roth, supra.
The Court of Appeal went on to explain that
[a]lthough no Florida court has directly addressed the issue of juror misconduct arising from the use of social media during a trial, in United States v. Fumo, 655 F.3d 288 (U.S. Court of Appeals for the 3rd Circuit 2011), the Third Circuit held that the trial court did not abuse its discretion in denying the defendant's motion for a new trial on the basis of a juror's comments about the trial on Facebook and Twitter. The trial court questioned the juror and determined that, although in violation of the court's instruction not to discuss the case outside the jury room, the comments were `nothing more than harmless ramblings having no prejudicial effect.’ Id. at 298–99. The trial court found that the comments `raised no specific facts dealing with the trial,” and that nothing in the comments “indicated any disposition toward anyone involved in the suit.’ Id. at 306.

The Third Circuit explained that `while prohibiting and admonishing jurors from commenting —even obliquely— about a trial on social networking websites and other internet mediums is the preferred and highly recommended practice, it does not follow that every failure of a juror to abide by that prohibition will result in a new trial.’ Id. at 305. Rather, courts should determine if the complaining party was `substantially prejudiced.’ Id. In light of the trial court's findings, which were based in large part on the juror's testimony and demeanor, the Third Circuit reasoned that there was `no plausible theory’ for how the defendant `suffered any prejudice, let alone substantial prejudice,’ from the juror’s Facebook and Twitter comments. Id. at 306.

Similarly, the Missouri Court of Appeals held that a trial court did not abuse its discretion in denying a motion for a new trial based on a juror's Facebook posts in which he mentioned that he was on jury duty, noted that he was `sworn to secrecy’ as to the details of the case, and joked that `there is no beverage service and the 3pm cocktail hour is not observed!’ J.T. ex rel. Taylor v. Anbari, 442 S.W.3d 49, 57–60 (Missouri Court of Appeals 2014). The Missouri court reasoned that the trial court did not abuse its discretion in finding that the juror `did not reveal any details about the case and any appearance of impropriety was not more prejudicial to any party over the other.’ Id. at 58 (internal quotation marks omitted). The court explained that the question of whether a new trial is required `is essentially a factual one, and that the trial court is in the best position to determine the credibility of the witnesses and any prejudicial effect of the alleged misconduct because it hears the evidence regarding the alleged misconduct.’ Id. at 59. The court further emphasized that the juror's remarks did not violate the trial court's `instructions not to post on Facebook about this case.’ Id. (emphasis in original). The court noted that: `To say the comments in this case, which simply informed people [the juror] was serving jury duty, were improper simply because they were posted on Facebook would be to ignore the reality of society's current relationship with communication technology.’ Id. at 59–60.
Murphy v. Roth, supra.
The court then noted that in this case, Murphy
relies on Dimas–Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238 (2011). In that case, the Arkansas Supreme Court held that a defendant in a death penalty case was denied a fair trial where a juror disregarded the trial court's instructions and tweeted about the case, even after the trial court questioned the juror about his tweets and admonished him to stop tweeting and to otherwise refrain from discussing the case any further. During the proceedings, the juror tweeted: `Choices to be made. Hearts to be broken. We each define the great line.’ Id. at 246. When the trial court questioned the juror about the tweet, the juror admitted posting on Twitter during the trial and explained that the tweet in question did not pertain only to the case, but also to `future stuff.’ Id. The trial court refused to strike the juror. Id. The Arkansas Supreme Court found troubling the fact that `even after the juror was questioned, admitted to the misconduct, and was again admonished not to discuss the case, he continued to tweet, specifically during sentencing deliberations.’ Id. at 247.

Dimas–Martinez is distinguishable in that it involved a situation where a juror continued to post comments on social media even after the trial court became aware, mid-trial, of the juror's postings and expressly instructed him to stop. Thus, the juror was unquestionably either unwilling to follow the court's instructions or simply incapable of doing so. Here, Juror 5's tweets were discovered after the verdict had been rendered and were the subject of four separate hearings conducted by the trial court, including one in which the trial court questioned Juror 5 in detail about these tweets.
Murphy v. Roth, supra.
The court went on to point out that,
[i]n denying Plaintiff's motion for a new trial and taking no action against Juror 5, the trial court necessarily credited and accepted Juror 5's explanation that this misconduct was neither intentional nor willful, and that none of his tweets related specifically to this case. Although its order contained no written findings, the trial court likewise necessarily found that the comments contained in Juror 5's tweets were insufficiently prejudicial to Plaintiff to require a new trial. There is no evidence that any of the other jurors saw, or had any discussions about, Juror 5's tweets. Moreover, nothing in the plain language of Juror 5's tweets discusses any facts specific to this case or the parties involved. Thus, it cannot be said that the trial court abused its discretion in concluding that Juror 5 misinterpreted the scope of the trial court's instruction not to post about his jury service and that he did not intentionally violate the court's order. While Juror 5's tweets are potentially offensive on a number of levels, the trial court acted within its discretion to interview Juror 5, assess his credibility and, in doing so, deny Plaintiff's motion for a new trial based thereon.

With regard to whether Juror 5's tweet that `[e]veryone is so money hungry that they'll do anything for it’ demonstrates that he was biased against Plaintiff, the trial court clearly credited Juror 5's testimony that the `money hungry’ post was not about Plaintiff or the trial in this case. More importantly, during voir dire, Juror 5 expressed similar opinions that some people sue `just for the money’ or for `dumb reasons,’ and that there were probably more frivolous lawsuits than there should be.  Thus, Juror 5's mid-trial tweet that `everyone is so money hungry’ is consistent with the views he had expressed in voir dire—hence, no argument can be made that there was any prejudice to Plaintiff based on this tweet.

In addition to the arguments with respect to Juror 5's tweeting, Plaintiff contends that she is entitled to a new trial because Juror 5 lied during voir dire by failing to disclose a recent accident involving him and his father. Defendant contends that Plaintiff is not entitled to a new trial because Plaintiff cannot establish that Juror 5's nondisclosure was material, that Juror 5 concealed this information, or that Plaintiff's counsel acted diligently to discover this information during voir dire.
Murphy v. Roth, supra.
The Court of Appeals then pointed out that,
[f]or a juror's nondisclosure of information during voir dire to warrant a new trial, the complaining party must establish that: (1) the information is relevant and material to jury service in the case; (2) the juror concealed the information during questioning; and (3) the failure to disclose the information was not attributable to the complaining party's lack of diligence. De La Rosa v. Zequeira, 659 So.2d 239, 241 (Florida Supreme Court 1995). Under De La Rosa, the burden is on the moving party to prove entitlement to a new trial on the basis of juror nondisclosure. Beyel Bros., Inc. v. Lemenze, 720 So.2d 556, 557 (Florida District Court of Appeals 4th District 1998).
Murphy v. Roth, supra.
The court then applied the above standards to Murphy’s argument, noting, initially, that
[h]ere, the record is insufficient to establish that Juror 5's nondisclosure of the accident with his father was material. If Juror 5 was involved in an automobile accident that occurred a week before trial, and the accident involved injuries and/or involved someone making a claim or filing a lawsuit, such information would clearly be material in the context of a personal injury case arising out of an automobile accident. However, the only information on the record is that Juror 5 and his father “got into an accident” on May 2, 2014, and that his father `got the court order’ during the trial of Plaintiff's case, which coincided with Juror 5’s tweet that `[e]veryone is so money hungry that they will do anything for it.’ It is unclear, however, whether the accident involved an automobile, a golf cart, a boat, or something else, whether there were any injuries, minor or serious, who was at fault, what were the damages, and what was the substance of the court order Juror 5's father received.
Murphy v. Roth, supra.
The opinion goes on to explain that
[i]n addition, during the juror interview, Plaintiff did not seek to ask any questions of Juror 5 about this accident or about why he did not disclose it in voir dire. Instead, after the trial court had asked all of its questions of Juror 5, Plaintiff asked the court, and it agreed, to pose two or more additional follow-up questions unrelated to the accident. In any event, Plaintiff's counsel conceded at the hearing on the motion for a new trial that he was not seeking reexamination of Juror 5 on the nondisclosure issue. Thus, without more information about the facts of the undisclosed accident, Plaintiff cannot meet her burden to establish the materiality prong of De La Rosa.

Under the second prong of De La Rosa, `information is considered concealed for purposes of the three part test where the information is ‘squarely asked for’ and not provided.’ Birch ex rel. Birch v. Albert, 761 So.2d 355, 358 (District Court of Appeal of Florida For the Third District 2000). `Finally, the third prong addresses whether the cause of the failure to elicit the information was due to the fault of the complaining party.’ Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d 418, 429 (Fla. 4th DCA 2014). Because there is insufficient record evidence to establish the first prong of De La Rosa, we decline to address the second and third.
Murphy v. Roth, supra.