State of Connecticut v. Josue Rivera
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO SUPPRESS
The defendant, Josue Rivera stands charged with Possession of Child Pornography in the First Degree in violation of General Statutes § 53a–196d. The principal evidence against the defendant is a USB thumb drive that the state alleges contains numerous images of child pornography. In the present motion, the defendant has moved to suppress the thumb drive evidence asserting that it was obtained through an illegal warrantless seizure. The defendant also seeks suppression of additional evidence obtained through two search warrants asserting that such evidence was the fruit of the initial illegal search. Hearings were held on the motion on February 23, 2012 and March 8, 2012. For the reasons set forth below, the motion to suppress is denied.
Based on the evidence presented at the hearing conducted on February 23, 2012, the court finds the following facts:
In July 2010, the Luz de Paz Funeral Home in Bridgeport, Connecticut was in charge of the funeral arrangements for the defendant's father. The services were to include a memorial slide show. On July 16, 2010, the defendant's sister came to the funeral home and handed a USB thumb drive to Anthony Villenueva, an employee of the funeral home. Villenueva's instructions were to retrieve pictures from the thumb drive in order to assemble the memorial slide show.
On July 16, 2010, Villenueva inserted the thumb drive into a computer at the funeral home. A prompt appeared on the computer screen asking Villenueva what he wanted to do. Villenueva clicked on “View all files.” The computer then displayed all of the pictures stored in the thumb drive in a gallery format. Each photograph in the gallery was a so-called “thumbnail” that displayed a portion of the complete photograph. As Villenueva examined the photos, he saw some pictures of the deceased but also pictures that he believed were child pornography. More specifically, some pictures showed children performing sex acts on children and other pictures showed adults performing sex acts on children. Villenueva recognized one of the pictures as depicting a niece of the defendant. Villenueva enlarged some of the photos as he viewed them—including the photo of the defendant's niece. This photo, which had a sexual connotation, appeared to have been created using a Photoshop type computer program. He did not, however, enlarge all of the pictures that he believed depicted child pornography. Villenueva scrolled down through all of the pictures contained on the thumb drive.
Villenueva informed the director of the funeral home, Edgar Rodriguez, of what he had seen on the thumb drive. Rodriguez took the thumb drive and inserted it into his Apple computer. Upon examining the picture folder, the only pictures displayed were family photos suitable for a funeral memorial. Rodriguez then inserted the thumb drive into Villenueva's computer that used a Windows operating system. The computer displayed a query: “What do you want to do?” and Rodriguez clicked on “Import Pictures.” At this point, the pictures on the entire thumb drive were displayed—including those stored in the recycle bin. Rodriguez scrolled through all of the thumbnail photos displayed on the gallery. He saw naked children in compromising positions. Rodriguez clicked on two of the photos he believed were child pornography. Rodriguez estimated that the thumb drive contained ten to twelve pictures depicting child pornography. After seeing the material, Rodriguez directed Villenueva to call the police.
On July 16, 2010, Officer Tesla of the Bridgeport Police Department was dispatched to the funeral home in response to the call from Villenueva. While there, an employee plugged a thumb drive into a computer and photos were displayed. There were several thumbnail photos in a gallery format. Officer Tesla noted that one photo showed a young girl exposing her private area. He clicked on at least one picture to enlarge it. Officer Tesla concluded that the thumb drive contained child pornography. He took custody of the thumb drive and turned it into the property room at the Bridgeport Police Department.
Bridgeport Police Department Detective David DeFeo was assigned to investigate the case. On July 23, 2010, he put the thumb drive obtained by Officer Tesla into his computer but did not see any pictures that might be considered child pornography. On July 28, 2010, Detective DeFeo took the thumb drive to Detective Michael Chaves of the Monroe Police Department. Detective Chaves has specialized training in computer crimes investigation.
Detective Chaves examined the thumb drive on his computer at the Monroe Police Department. His computer was equipped with so-called “Write Block” software that ensures that nothing is added or removed, and “e-case which is software that aids in the digital forensic examination. Detective Chaves opened the thumb drive and saw the gallery of pictures. He used no special strategies nor did he view anything that would not be visible on a normal Windows computer. Detective Chaves did a preview of the displayed photos to determine if any of them met the legal definition of child pornography. He determined that some, in fact, met that definition.
Detective Chaves observed that the folder structure on the thumb drive included a folder designated “.trashes.” This is the equivalent of a recycle bin. That folder was created on a Macintosh computer. It was this folder that contained the child pornography pictures and was able to be opened by the Windows machine at the funeral home.
Detective Chaves advised Detective DeFeo of the results of his preview and thereafter, on August 16, 2010, a search warrant was issued authorizing a complete search of the thumb drive. Prior to applying for the search warrant, Detective DeFeo interviewed the people at the funeral home.
The vast storage capacities of modern computers pose challenges for courts as they attempt to harmonize the protections of the Fourth Amendment with twenty-first century criminal investigations. This interface of traditional search and seizure law with the digital world has attracted the interest of legal scholars. See e.g. Digitizing the Fourth Amendment: Limiting the Private Search Exception in Computer Investigations, 96 Va.L.Rev. 677 (2010); Orin S. Kerr, Search and Seizures in a Digital World, 119 Harv.L.Rev. (2005). In Connecticut, neither our Supreme Court nor our Appellate Court has yet to confront the thorny issues involved in determining the applicability of warrant exceptions to computer searches. It is highly foreseeable that our appellate courts will have to deal with a case that raises such issues soon. This, however, is not that case.
“It is well established that the protections of the fourth amendment to the United States constitution is applicable to actions by government officials, but it is not triggered by the actions of private people ․” State v. Stevens, 26 Conn.App. 805, 816 (1992). This so-called private search exception allows for the warrantless search and seizure of property that has been the subject of a search conducted by a private individual. 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 1.8(b) (4th ed.2004). In applying this exception to the warrant requirement, the legality of the government search is tested by the scope of the antecedent private search. Id.
Probably the leading case regarding the private search exception is United States v. Jacobsen, 466 U.S. 109 (1984). In Jacobsen, a Federal Express employee examined a damaged package. The employee opened the package and discovered a ten-inch-long tube. The employee cut open the tube and found zip lock bags containing a white powder. Federal Express then notified the Drug Enforcement Administration (DEA). When a DEA agent arrived, the agent removed the zip lock bags from the tube and then opened each bag removing a trace amount of white powder. The agent then conducted a field test and identified the substance as cocaine. Id., 111–12.
The Supreme Court in Jacobsen noted that the protections of the Fourth amendment proscribe only government actions and are inapplicable to a search or seizure effected by a private individual. Id., 113. Accordingly, once the results of the private search were made known to a government agent, there was no invasion of the defendant's privacy when the agent reexamined the contents of the package. Id., 119. The Court further held that the additional intrusion occasioned by the field test was not a search subject to the Fourth Amendment. Id., 124. In addition, the destruction of the trace amount of powder through the field test was held to be reasonable. Id., 125.
Applying the reasoning of Jacobsen to the present case, this court finds that the police conduct fit well within the private search exception to the warrant requirement. All of the parties who examined the photos on the defendant's thumb drive—the funeral home employees, Bridgeport Officer Tesla and Monroe Detective Chaves—looked at the identical set of pictures. This was not a situation where the private search was limited to one computer file or folder and the police examined the entire hard drive of the computer. The key point is that the police did not expand the private search. Moreover, even if during the police examination different or additional photos were enlarged as compared to those enlarged by the funeral home employees, such action did not exceed the limits of the private search exception. Such selected enlargement of certain photos was reasonable and less intrusive than the warrantless field test upheld in Jacobsen.
The court finds that the motion to suppress the evidence obtained from the initial warrantless examination of the thumb drive by the police must be denied. In addition, the subsequent search warrants that were based (in part) on the warrantless examination of the thumb drive were not the fruit of any illegal police action.
For the reasons set forth above the motion to suppress is denied.
So Ordered at Bridgeport, Connecticut this 19th day of March 2012.
ROBERT J. DEVLIN, JR. JUDGE
Devlin, Robert J., J.