Michigan Court of Appeals Holds Warrantless Computer Search Illegal
On November 6th, 2014, the Michigan Court of Appeals held in a criminal case that a police officer violated the Fourth Amendment's warrant requirement when he viewed incriminating files on defendant's computer without a search warrant after defendant had voluntarily given his computer to Best Buy for repairs.
In People v Gingrich, Docket No. 310416, the Michigan Court of Appeals addressed the issue of whether the Fourth Amendment's prohibition against unreasonable searches and seizures.
The Court first recited the facts of the case.
The limited facts pertinent to this appeal were developed at defendant’s preliminary examination on charges of two counts of possessing child sexually abusive material, MCL 750.145c(4), and two counts of using computers to commit a crime, MCL 752.796. At the preliminary examination, Chad Vandepanne, a computer repair technician for Best Buy, testified that he received a work order to perform a “diagnostic repair with a backup” on defendant’s computer. The requested work required Vandepanne to physically remove the computer’s hard drive, backup all of the data on the computer, and then perform a full hardware/software diagnostic, repairing any problems that were discovered. A machine performing the backup would display computer file names but not permit the files to be opened, as Vandepanne testified that Best Buy’s policy did not permit employees to open any customer computer files. During the backup of defendant’s computer, Vandepanne noticed files entitled, “12-year old Lolita” and “12-year-old female virgin’s pussy,” which led him to suspect the files might be child pornography. After seeing the file names, Vandepanne informed his manager of what he saw. Kent County Sheriff’s Deputy Gary Vickery arrived 15 minutes later and Vandepanne pointed out the suspicious file names while the backup of defendant’s computer was still running.
According to both Vandepanne and Vickery, when the backup process ended Vickery requested that Vandepanne open the suspicious files. To do so, Vandepanne had to remove the hard drive from the backup machine and attach it to a computer that would permit opening and browsing the suspect files. When he did this, the suspect files were opened and displayed pictures of pornography involving minors. Vickery requested and Vandepanne gave him the computer hard drive containing the suspected child pornography. Vickery also seized defendant’s computer, power supply, and nine software discs. Vickery admitted that a search warrant could have been, but was not, obtained before opening the suspicious computer files.
After Vickery’s testimony, defendant moved to suppress the evidence of the photographs found on his computer. He argued that Vickery did not obtain a warrant and that no exception to the warrant requirement applied to his case. The prosecution argued that the motion was premature, and that defendant did not have an expectation of privacy in the files that were opened because he turned the computer over to Best Buy for repairs. The district court agreed with the latter argument, ruling that defendant had no valid expectation of privacy because he voluntarily delivered his computer to a large corporation for repair with knowledge that technicians might view its stored images while performing repair work.
In the circuit court, defendant moved to quash the information or in the alternative to suppress the evidence and dismiss the charges. As noted already, the circuit court ruled that the initial search of defendant’s computer by Vickery was unreasonable because a search warrant was not obtained.
The Court's analysis of whether law enforcement needed a search warrant to open defendant's computer files followed.
A warrant is only required if the government conducts a search of an object or area that is protected by the Fourth Amendment. See O’Connor v Ortega, 480 US 709, 715; 107 S Ct 1492; 94 L Ed 2d 714 (1987). The Fourth Amendment itself protects “[t]he right of the people to be secure in their persons, homes, papers, and effects, against unreasonable searches and seizures . . . .” US Const, Am IV. Under the plain terms of the Amendment, “[w]hen ‘the Government obtains information by physically intruding’ on persons, houses, papers or effects, ‘a search within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’ “ Florida v Jardines, ___ US ___, ___; 133 S Ct 1409, 1414; 185 L Ed2d 495 (2014), quoting in part United States v Jones, 565 US ___, ___ n 3; 132 S Ct 945, 950-951; 181 L Ed 2d 911 (2012) (some internal quotation marks omitted). A “[t]resspass alone does not qualify, but there must be conjoined with that . . . an attempt to find something or to obtain information.” Jones, 565 US at __ n 5; 133 S Ct at 951.
In addition, the government needs a warrant (assuming no exception applies) before searching something in which the person has a reasonable expectation of privacy. Soldal v Cook County, 506 US 56, 63; 113 S Ct 538; 121 L Ed 2d 450 (1992). But, if the government physically intrudes on a constitutionally protected area (a person’s home, papers, and effects) in search of evidence without a warrant, then the Katz reasonable expectation inquiry is unnecessary. Jardines, 565 US at ___; 133 S Ct at 1417, citing Jones, 565 US at ___; 132 S Ct at 950-952; Carman v Carroll, 749 F3d 192, 197 (CA 3, 2014). That is because the Katz reasonable-expectation test is in addition to the traditional property-based understanding of the Fourth Amendment. Id. In other words, these are separate tests that can be applied depending on the interest at issue, but a finding that one is met is sufficient to find a violation of the Fourth Amendment.
As defendant argues, this matter is easily resolved. A search for purposes of the Fourth Amendment occurred in this case because “the officers learned what they learned only by physically intruding on [defendant’s] property [his computer] to gather evidence [which] is enough to establish that a search occurred.” Jardines, 565 US at __; 133 S Ct at 1417. It can hardly be doubted that a computer, which can contain vast amounts of personal information in the form of digital data, is an “effect,” US Const, Am IV, and a “possession,” Const 1963, art 1, § 11, within the meaning of the constitutional proscription against unreasonable searches and seizures. See People v Smith, 420 Mich 1, 20; 360 NW2d 841 (1984) (opining that as used in the two constitutional provisions, “ ‘possessions’ and ‘effects’ are virtually identical in meaning” and therefore there exists no reason to treat those provisions differently).
The record evidence also shows that only at the command of the police did the Best Buy employee physically take the hard drive to defendant’s computer (thus, a trespass on defendant’s “effects”) and attach it to a store computer in order to gather evidence of child pornography. Since the officers did not have a search warrant to do so, and no exception to the warrant requirement applies, the circuit court correctly held that a warrant was required before police directed the Best Buy employee to attach the hard drive to another computer for purposes of searching the hard drive for evidence. Having reached this conclusion, there is no need to determine whether defendant also had a reasonable expectation of privacy in the information contained in the computer. Jardines, 565 US at ___; 133 S Ct at 1417, citing Jones, 565 US at ___; 132 S Ct at 951-952.
Our conclusion that it was necessary for the police to obtain a search warrant before exceeding the scope of the private search is further buttressed by the decision in Jones. In Jones, government agents tracked the movements of a suspected drug trafficker by placing an electronic Global-Positioning-System (GPS) device on the undercarriage of a vehicle registered to the suspect’s wife while it was parked in a public parking lot. Jones, 565 US at ___; 132 S Ct at 948. Jones was later charged with, among other offenses, conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. Id. The district court denied Jones’s motion to suppress the GPS evidence, finding that one “ ‘traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ “ Id. (citation omitted). The United States Court of Appeals for the District of Columbia Circuit reversed Jones’s conviction “because of admission of the evidence obtained by warrantless use of the GPS device . . . .” Id. at 949. The United States Supreme Court affirmed, holding that attaching the GPS tracking device to an individual’s vehicle, and thereby monitoring the vehicle’s movements on public streets, constituted a search or seizure within the meaning of the Fourth Amendment. Id. at 948-949.
Justice Scalia, writing for the Court, noted that it was “beyond dispute that a vehicle is an ‘effect’ as that term is used in the [Fourth] Amendment,” id. at 949 (citation omitted), and added that “[b]y attaching the [GPS] device to the Jeep, officers encroached on a protected area,” id. at 952. “The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at 949 (citation omitted). Consequently, because the government obtained information by physically intruding on a constitutionally protected area, the Court concluded a search within the protection of the Fourth Amendment had occurred. Id. at 950 n 3. Hence, when the government commits a trespass on “houses,” “papers” or “effects” (or invades a Katz reasonable invasion of privacy) for the purpose of obtaining information, such a trespass or invasion of privacy is a search within the meaning of the Fourth Amendment. Id. at 951 n 5 . . .
In sum, we hold that under the Fourth Amendment as reinforced by Jardines and Jones a personal computer storing personal information in the form of digital data must be considered defendant’s “effect” under the Fourth Amendment, and “possession” under the Michigan Constitution, see Const 1963, art 1, § 11. To access the data and obtain information from defendant’s computer, his “effect” or “possession,” the Best Buy employees as directed by the police physically attached another device to its hard drive. Such action was a trespass—a search under the Fourth Amendment and Const 1963, art 1, § 11—because the government physically intruded defendant’s property to obtain information. Jones, 565 US at ___; 132 S Ct at 949-953; see also Smith, 420 Mich at 7 n 2, 18-20. The police did not obtain a warrant to conduct the search and the prosecution’s brief offers no exception to the warrant requirement to justify the police’s action.
As the circuit court ruled, “[a] search and seizure without a warrant is unreasonable per se and violates the Fourth and Fourteenth Amendments of the United States Constitution and Const 1963, art 1, § 11, unless shown to be within one of the exceptions to the rule.” People v Wagner, 114 Mich App 541, 546-547; 320 NW2d 251 (1982) (citation omitted); see also Riley v California, ___ US ___; 134 S Ct 2473, 2482, 2493; 189 L Ed 2d 430 (2014) (“[T]he warrant requirement is an important working part of our machinery of government, not merely an inconvenience to be somehow ‘weighed’ against the claims of police efficiency”) (some internal quotation marks and citation omitted), and Katz, 389 US at 357 (“Over and again this Court has emphasized that the mandate of the (Fourth) Amendment requires adherence to judicial processes, and that searches conducted outside the judicial process . . . without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”) (Citations and quotation marks omitted). Consequently, we conclude that the police search in this case without a warrant or applicable exception to the warrant requirement, was per se unreasonable under the Fourth Amendment and Const 1963, art 1, § 11.