4th Amendment Argument

[repeter]

I'm on my school's Mock Trial team, and I am the pre-trial attorney for our Defense. As such, I have to argue the constitutionality of a search conducted by the officer in our case, Detective Malone.

The purpose of this thread is primarily to discuss the arguments to be made, because my team is going to State in San Jose on Friday, and I thought it'd be great to get some outside views on this matter.

Now, the facts of the case are as follows: The Defendant (Bratton) had a laptop in his house. Malone had a search warrant for records of purchase information (or the like) related to the death of the victim, Preston Palmer on magnetic, electrical, or electronic storage devices, ie the laptop's hard drive.

Malone found no purchase information, but he went to the internet history tab, and clicked on a link which took him to this thing called (in the case) Yell Up. Malone didn't know what the site did, but it stated on the homepage that it was a "review website with the purpose of helping people connect with/find great businesses such as restaurants, mechanics, doctors, events and hotels."

Malone found a log in thing on the homepage, with the email and password filled in. Malone then logged in, and found nothing. After logging in the site said, "Welcome Tyler Torcher T (aka Bratton), and he went to the message tab, and then the inbox for the account, where a message opened. This message was from Preston palmer stating that he would never take down the review he posted about Jo the Joker (aka Bratton).

Malone then went to the sent section of the messages tab. Malone immediatly found a threatening message from Tyler Torcher T (Bratton) to Palmer, the victim. There was no information about purchases found anywhere on the Yell Up site. Malone collected the message from Bratton to Palmer as evidence.

I am arguing that Malone exceeded the bounds of his search warrant to reach the Yell Up homepage. At that point, he left the scope of his warrant, but was able to view ONLY the homepage under probable cause, checking to see if the site was related to the warrant. But when it told him it was a review website, rather then an amazon/ebay style site, he should have stopped his search.

Because Malone didn't, I argue he then violated the plain-view doctrine, which allows the search/seizure of items outside the warrant if the searching officer passes a three-point test. This test states that 1. police must be in a position to lawfully view the item. 2. the item's incriminating character must be immediatly apparent, and 3. the officers umst have a lawful right of access to the item.

There are a number of cases I can use, along with 2 legal essays. The following link will take you to the case on the CRF (California Right's Foundation) website. Also on the site is the errata, with a few changed facts. Click on the link on the site entitled "2009-2010 Case Packet-People v. Bratton"

CRF-USA - Forms-Download

The log in code to view the case packet is r321axm.

I would greatly appreciate any input

 

[MyOwnDrum]

I recently saw a Law and Order episode. The suspect was a woman who was the murdered woman roommate, who was stabbed repeatedly. Brisco and Curtis arrived to the suspects apartment and the suspect was in bed, in a drugged stupor. Curtis looked under the suspect's bed, purportedly for empty pill bottles, only to find the murder weapon. That evidence was thrown out, also the case was won after diligent and clever cross examination by Jack McCoy.

 

[repeter]

I recently saw a Law and Order episode. The suspect was a woman who was the murdered woman roommate, who was stabbed repeatedly. Brisco and Curtis arrived to the suspects apartment and the suspect was in bed, in a drugged stupor. Curtis looked under the suspect's bed, purportedly for empty pill bottles, only to find the murder weapon. That evidence was thrown out, also the case was won after diligent and clever cross examination by Jack McCoy.

While this is off subject...that evidence should have gotten in under plain view. Goes to show Law and Order and reality don't always intersect.

 

[Hoplite]

For the OP, I would clarify if the detective had sufficient cause to search through the internet history pursuant to the warrant. If he's looking for purchase information, why is he searching Internet history?

Furthermore, he logged into a website using personal information. Why did he do that? Did he have reason to suspect there might be the information he was looking for stored on the website? If so, what led him to suspect that?

It's a somewhat clear-cut case of the detective going fishing.

 

[MyOwnDrum]

While this is off subject...that evidence should have gotten in under plain view. Goes to show Law and Order and reality don't always intersect.

In Law and Order it depends on the judge doing the ruling. They often get evidence thrown out on technicalities as a ploy to make the show more interesting. The plain view argument was the one made, but the judge was more sympathetic to the defense in that particular case.

 

[repeter]

For the OP, I would clarify if the detective had sufficient cause to search through the internet history pursuant to the warrant. If he's looking for purchase information, why is he searching Internet history?

Under quite a few of the cases listed under the pre-trial information, Detective Malone was able to search everywhere on the computer to search for possibly mis-labeled directories. For the internet history tab, Malone had probable cause to think Bratton could have procured some item on his warrant from an internet site. What I argue is that he should have known that Yell Up was not related to his warrant, and then logging in and going to the messages tab, then inbox was outside his warrant, and failed the three point test for plain view.

Furthermore, he logged into a website using personal information. Why did he do that? Did he have reason to suspect there might be the information he was looking for stored on the website? If so, what led him to suspect that?

It's a somewhat clear-cut case of the detective going fishing.

That is one stopping point I try to use. I distinguish his logging into the site as a seperate search outside his warrant, analogous to finding a cabinet, and then opening a drawer. The message tab is a container in the drawer, and the inbox is a folder inside the container. Inside that folder is the first message, as a sheet of paper.

Malone then closed that folder, and looked inside another folder in the container, the sent section. Inside that folder he found the threatening message.

The problem with that analogy is that in U.S. v. Carey, the courts rejected comparing a computer to a filing cabinet or drawer. I have some other metaphors as well besides the file cabinet one...

By the way, thanks for giving me your input.

 

[repeter]

In Law and Order it depends on the judge doing the ruling. They often get evidence thrown out on technicalities as a ploy to make the show more interesting. The plain view argument was the one made, but the judge was more sympathetic to the defense in that particular case.

Yeah I love when that happens. Too often, the judge's personal views control what his ruling on the motion is. Once, I blew this Prosecution Attorney out of the water, but the judge ruled against me.

But I don't get scored in the Mock Trial based on winning/losing the motion, its how I argue it, thankfully

 

[Hoplite]

Under quite a few of the cases listed under the pre-trial information, Detective Malone was able to search everywhere on the computer to search for possibly mis-labeled directories. For the internet history tab, Malone had probable cause to think Bratton could have procured some item on his warrant from an internet site. What I argue is that he should have known that Yell Up was not related to his warrant, and then logging in and going to the messages tab, then inbox was outside his warrant, and failed the three point test for plain view.

That is a valid argument to make. Yell Up was not pertinent to his warrantand was thus outside the scope of his ability to search

That is one stopping point I try to use. I distinguish his logging into the site as a seperate search outside his warrant, analogous to finding a cabinet, and then opening a drawer. The message tab is a container in the drawer, and the inbox is a folder inside the container. Inside that folder is the first message, as a sheet of paper.

Malone then closed that folder, and looked inside another folder in the container, the sent section. Inside that folder he found the threatening message.

The problem with that analogy is that in U.S. v. Carey, the courts rejected comparing a computer to a filing cabinet or drawer. I have some other metaphors as well besides the file cabinet one...

By the way, thanks for giving me your input.

The detective accessed a secure website that couldnt reasonably contain any information he was looking for. He saw the site and saw what it was and thus should have concluded that the site was outside his purview. Logging in and searching means the information was not anywhere where it could have been reasonably found under the "in plain sight" idea.

 

[repeter]

Thanks for your help, I just got back from the California State Mock Trial Finals. I won 2 out of 3 of my pre-trial arguments concerning this thread. The only one I lost was against the best pre-trial attorney in California. I'm not real sad about that though, she was amazing.

Hillside High from San Mateo County will represent California in the National Mock Trial Finals. They were in every aspect of the word amazing.

 

[Caine]

While this is off subject...that evidence should have gotten in under plain view. Goes to show Law and Order and reality don't always intersect.

No no, Law and Order did a good job on documenting the idiocy of the decisions made by our legal systems judges.

But carry on, lol

 

[Caine]

That is a valid argument to make. Yell Up was not pertinent to his warrantand was thus outside the scope of his ability to search

Why not?

The OP stated that Yell Up was a "review website with the purpose of helping people connect with/find great businesses such as restaurants, mechanics, doctors, events and hotels"

If the detective is looking for "purchase information" would it not be reasonable to believe, based upon the website's own description, that the defendant used "Yell up" to connect with a business where he made a purchase in the commission of the crime?

The detective accessed a secure website that couldnt reasonably contain any information he was looking for. He saw the site and saw what it was and thus should have concluded that the site was outside his purview. Logging in and searching means the information was not anywhere where it could have been reasonably found under the "in plain sight" idea.

Read above... lol

 

[repeter]

Why not?

The OP stated that Yell Up was a "review website with the purpose of helping people connect with/find great businesses such as restaurants, mechanics, doctors, events and hotels"

If the detective is looking for "purchase information" would it not be reasonable to believe, based upon the website's own description, that the defendant used "Yell up" to connect with a business where he made a purchase in the commission of the crime?

The argument I was supposed to make (in general terms) was that Malone was unfamiliar with the website, and while he could view the homepage under probable cause, to proceed into the site was outside the scope of the warrant, as Malone did not know there would be information related to his warrant on the site. At this point, Malone should have stopped, and obtained another warrant for Yell Up before proceeding inside.

This was actually a great argument for me to make, the Defendant was in custody at this point, and Detective Malone could have accessed the site at his choosing, after obtaining another warrant to expand the scope of his search. I was specifically told twice that was why I won the motion.

 

[Hoplite]

Why not?

The OP stated that Yell Up was a "review website with the purpose of helping people connect with/find great businesses such as restaurants, mechanics, doctors, events and hotels"

If the detective is looking for "purchase information" would it not be reasonable to believe, based upon the website's own description, that the defendant used "Yell up" to connect with a business where he made a purchase in the commission of the crime?



Read above... lol

FIND businesses, not actually do business with them. It's like expecting the Yellow Pages to have purchase information recorded.

 

[Caine]

FIND businesses, not actually do business with them. It's like expecting the Yellow Pages to have purchase information recorded.

Its the investigative equivalent of looking through this guy's phone book to see if he had anything written in the pages of it to indicate he used a particular business, thus narrowing the search down to particular groups he may have done business with, based upon such indicators.

 

[repeter]

Its the investigative equivalent of looking through this guy's phone book to see if he had anything written in the pages of it to indicate he used a particular business, thus narrowing the search down to particular groups he may have done business with, based upon such indicators.

Post # 12. It then comes down to the Judge's view, and normally, it depends on who has the most moderate view, and which agrees most with the judge.

 

[Caine]

Post # 12. It then comes down to the Judge's view, and normally, it depends on who has the most moderate view, and which agrees most with the judge.

After 4 years in law enforcement, thats a point well known by me

 

[Hoplite]

Its the investigative equivalent of looking through this guy's phone book to see if he had anything written in the pages of it to indicate he used a particular business, thus narrowing the search down to particular groups he may have done business with, based upon such indicators.

Not exactly true. If the site allowed you to bookmark business info or kept a record of businesses that you'd contacted, you'd have a point. If it's basically just a Yellow Pages where it gives you the contact info and then the information is lost as soon as you close the browser page, then it's outside the scope of the warrant.

You could argue that the officer didnt know how the site functioned, but that could be quickly countered by pointing out the officer didnt attempt to ascertain the nature of the site before fishing.

 

[Keorythe]

This might help: Appeals Court Says Feds Need Warrants to Search E-Mail | Threat Level | Wired.com

Appeals Court Says Feds Need Warrants to Search E-Mail
A federal appeals court on Monday issued a landmark decision (.pdf) that holds that e-mail has similar constitutional privacy protections as telephone communications, meaning that federal investigators who search and seize emails without obtaining probable cause warrants will now have to do so.

The DOJ reading of the statue in practical terms is that any e-mail you have opened it can obtain without a warrant," Bankston said. But the district court ruled that the Fourth Amendment holds otherwise. And the appellate court affirmed the lower court’s decision, agreeing that e-mail users have a reasonable expectation of privacy, regardless of how old their correspondence is and where it is stored. From the decision:

"In considering the factors for a preliminary injunction, the district court reasoned that e-mails held by an ISP were roughly analogous to sealed letters, in which the sender maintains an expectation of privacy. This privacy interest requires that law enforcement officials warrant, based on a showing of probable cause, as a prerequisite to a search of the e-mails."

 

[repeter]

This might help: Appeals Court Says Feds Need Warrants to Search E-Mail | Threat Level | Wired.com

The thing is there is a warrant in this case. The problem is the extent of that warrant, which I argued was to the Yell Up homepage.

 

[Keorythe]

The thing is there is a warrant in this case. The problem is the extent of that warrant, which I argued was to the Yell Up homepage.

Yes, and your analogy was correct. In this case the ruling states that the emails are considered sealed entities and therefore require a separate warrant to view without probable cause.

How did your debate go by the way?

 

[repeter]

Yes, and your analogy was correct. In this case the ruling states that the emails are considered sealed entities and therefore require a separate warrant to view without probable cause.

How did your debate go by the way?

I presented my motion a total of 6 times in competition. I won I believe 4 of the motions, and only one time because the other person was clearly better then me, and she was ranked as the best pre-trial attorney in the state of California, so I'm not complaining about that loss

 

[Caine]

Not exactly true. If the site allowed you to bookmark business info or kept a record of businesses that you'd contacted, you'd have a point. If it's basically just a Yellow Pages where it gives you the contact info and then the information is lost as soon as you close the browser page, then it's outside the scope of the warrant.

You could argue that the officer didnt know how the site functioned, but that could be quickly countered by pointing out the officer didnt attempt to ascertain the nature of the site before fishing.

Well, if the site had a function where you could post info to other users, as mentioned in the OP, then its reasonable to believe it had a way to keep a record of businesses you have 'reviewed'.

How are you certain that the officer didn't attempt to ascertain the nature of the site before 'fishing' (as you eloquently call it) when the OP states that the site's own description is listed as I mentioned.

 

[Hoplite]

Well, if the site had a function where you could post info to other users, as mentioned in the OP, then its reasonable to believe it had a way to keep a record of businesses you have 'reviewed'.

That's somewhat shaky IMO

How are you certain that the officer didn't attempt to ascertain the nature of the site before 'fishing' (as you eloquently call it) when the OP states that the site's own description is listed as I mentioned.

The question is did the officer KNOW that was how the site worked and if he didnt know, did he make a reasonable attempt to find out.

 

[Caine]

That's somewhat shaky IMO

The question is did the officer KNOW that was how the site worked and if he didnt know, did he make a reasonable attempt to find out.

When I go to a website's homepage and it gives a description of itself on the homepage.... I can reasonably say that I have made an attempt to find out, as I just read it on the first page when I went to the address...........

 

[Hoplite]

When I go to a website's homepage and it gives a description of itself on the homepage.... I can reasonably say that I have made an attempt to find out, as I just read it on the first page when I went to the address...........

Except if the main page does not describe the full functionality of the website. Since we are talking about a theoretical website, we cant exactly check.