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    OCTOBER 2008

     th630 Basic Law Enforcement Academy April 28, 2008 through September 3, 2008

    President: Martin R. Shane Clallam County Sheriff's Office

    Best Overall: Brandon J. Koe Pullman Police Department

    Best Academic: Brandon J. Koe Pullman Police Department

    Best Firearms: Michael J. Clark Benton County Sheriff's Office

    Tac Officer: Randy Huserik Seattle Police Department

    *************************** st631 Basic Law Enforcement Academy May 5, 2008 through September 10, 2008

    President: Michael Sargent Arlington Police Department

    Best Overall: Matthew T. Barker Snohomish County Sheriff's Office Best Academic: Matthew T. Barker Snohomish County Sheriff's Office Best Firearms: Peter C. Teske Snohomish County Sheriff's Office

    Tac Officer: Sergeant Bryan Keller Bothell Police Department

    ***************************

    OCTOBER 2008 LED TABLE OF CONTENTS

    NINTH CIRCUIT, U.S. COURT OF APPEALS ............................................................................ 3

    SECTION 1983 CIVIL RIGHTS CASE JURY UPHELD ON ITS REASONABLENESS FINDING WHERE OFFICERS WAITED 5 TO 8 SECONDS, AFTER KNOCKING AND ANNOUNCING, BEFORE BEGINNING THEIR EFFORTS TO FORCE HOME’S STEEL SECURITY DOOR TO EXECUTE NARCOTICS SEARCH WARRANT thHowell v. Polk, 532 F.3d 1025 (9 Cir. 2008) (decision filed July 16, 2008) ......................................................... 3

    IN-HOME QUESTIONING, WITH CHILD PORN SUSPECT SURROUNDED BY OFFICERS IN A STORAGE ROOM, HELD “CUSTODIAL” UNDER TOTALITY OF CIRCUMSTANCES PER MIRANDA RULE DESPITE

    FACTS THAT THE INTERROGATING OFFICER TOLD SUSPECT THAT SUSPECT 1) WOULD NOT BE ARRESTED THAT DAY, 2) DID NOT HAVE TO ANSWER QUESTIONS, AND 3) WAS FREE TO LEAVE thU.S. v. Craighead, __ F.3d __ , 2008 WL 3863709 (9 Cir. 2008) (decision filed August 21, 2008) .................... 4

    NO PRIVACY RIGHT IN COMPUTER FILE-SHARING SYSTEM ACCESSIBLE TO OTHERS ON PEER-TO-PEER NETWORK thU.S. v. Ganoe, __ F.3d __ , 2008 WL 3546375 (9 Cir. 2008) (decision filed August 15, 2008) .......................... 7

    BRIEF NOTES FROM THE NINTH CIRCUIT, U.S. COURT OF APPEALS ............................... 9

    BECAUSE ARREST PROCESS BEGAN WHEN ARRESTEE WAS TWO HOUSES AWAY FROM CAR HE HAD JUST PARKED, CAR COULD NOT BE LAWFULLY SEARCHED INCIDENT TO ARREST thU.S. v. Caseres, 533 F.3d 1064 (9 Cir. 2008) (decision filed July 21, 2008) ...................................................... 9

    SATIRICAL MESSAGE “I AM A . . . SUICIDE BOMBER TERRORIST” PAINTED ON HIS VAN BY MILD-

    MANNERED, ANTI-GOVERNMENT “NUT” WAS PROTECTED AS “FREE SPEECH” UNDER THE FIRST

    AMENDMENT

    1

    thFogel v. Collins, 531 F.3d 824 (9 Cir. 2008) (decision filed June 27, 2008)........................................................ 9

    EXTENDING DETENTION OF ANTI-ABORTION PROTESTORS WHILE WAITING FOR A SUPERVISOR TO HELP OFFICERS INTERPRET THE LAW WAS NOT REASONABLE thCenter for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff‟s Department, 533 F.3d 780 (9 Cir. 2008)

    (decision filed July 2, 2008) ................................................................................................................................. 11

    SAN FRANCISCO JAIL POLICY OF STRIP SEARCHING WITHOUT REASONABLE SUSPICION ALL PRE-

    TRIAL DETAINEES WHO ARE TO BE PLACED IN GENERAL POPULATION HELD TO VIOLATE FOURTH AMENDMENT thBull v. City and County of San Francisco, __ F.3d __ , 2008 WL 3876757 (9 Cir. 2008) (decision filed August 22, 2008 .............................................................................................................................................................. 11

    SIX-PACK OF PHOTOS USED FOR IDENTIFICATION HELD TO BE SUFFICIENTLY QUESTIONABLE TO HELP SUPPORT CIVIL RIGHTS PLAINTIFF’S CLAIM HE WAS ARRESTED WITHOUT PROBABLE CAUSE thTorres v. City of Los Angeles, __ F.3d __ , 2008 WL 3905411 (9 Cir. 2008) (decision fled August 26, 2008)12

    COURT UPHOLDS MULTI-MILLION DOLLAR VERDICT FOR LAPD OFFICERS IN THEIR CIVIL RIGHTS LAWSUITS AGAINST AGENCY FOR ARRESTING THE OFFICERS WITHOUT PROBABLE CAUSE thHarper v. City of Los Angeles, 533 F.3d 1010 (9 Cir. 2008) (decision filed July 14, 2008) ............................... 14

    BECAUSE PROBATION OFFICERS INVESTIGATING SUSPECTED VIOLATION HAD PROBABLE CAUSE TO BELIEVE THAT PROBATIONER LIVED AT A RESIDENCE, IT WAS LAWFUL FOR THE OFFICERS TO FORCE ENTRY WITHOUT A SEARCH WARRANT thU.S. v. Mayer, 530 F.3d 1099 (9 Cir. 2008) (decision filed June 30, 2008) ...................................................... 15

    CIVIL RIGHTS LAWSUIT WILL GO FORWARD ON PLAINTIFFS’ ALLEGATIONS THAT OFFICERS

    LOOKING FOR A PAROLE VIOLATOR UNLAWFULLY FORCED A WARRANTLESS ENTRY OF THEIR HOME WITHOUT PROBABLE CAUSE TO BELIEVE THAT THE PAROLEE LIVED THERE thCuevas v. De Roco, 531 F.3d 726 (9 Cir. 2008) (decision filed June 27, 2008) ............................................... 15

    BRIEF NOTES FROM THE WASHINGTON STATE SUPREME COURT ................................ 16

    STALKING STATUTE ITSELF INCLUDES ACTING THROUGH OTHER PERSONS, SO STALKING CONVICTION STANDS EVEN THOUGH JURY WAS NOT INSTRUCTED ON ACCOMPLICE LIABILITY State v. Becklin, 163 Wn.2d 519 (2008) .............................................................................................................. 16

    COURT REJECTS 1) CLAIM OF CONSTITUTIONAL RIGHT TO JURY TRIAL IN JUVENILE COURT, AND 2) CONSTITUTIONAL CHALLENGE TO LEGISLATURE’S USE OF COMMON LAW DEFINITION OF ASSAULT

    State v. Chavez, 163 Wn.2d 262 (2008) ............................................................................................................. 16

    PRISONER HELD NOT TO HAVE CONSTITUTIONAL RIGHT TO STARVE HIMSELF

    McNabb v. DOC, 163 Wn.2d 393 (2008) ............................................................................................................ 16

    WASHINGTON STATE COURT OF APPEALS ....................................................................... 17

    SEX OFFENDER’S CONVICTION FOR FAILURE TO REGISTER UPHELD - - EVIDENCE ON 1) CHANGE-

    OF- RESIDENCE AND 2) KNOWLEDGE ELEMENTS OF CRIME HELD SUFFICIENT TO SUPPORT CONVICTION

    State v. Shoemaker-Castillo, 144 Wn. App. 584 (Div. III, 2008) ......................................................................... 17

    EVIDENCE OF PREMEDITATION SUFFICIENT TO SUPPORT ATTEMPTED MURDER CONVICTIONS RELATED TO SHOOT-OUT WITH LAW ENFORCEMENT OFFICERS WHERE EVIDENCE SHOWED (1) MOTIVE TO AVOID ARREST, (2) PROCUREMENT OF GUN, (3) SHOOTING TO KILL, AND (4) STEALTH DURING SHOOTOUT

    State v. Barajas, 143 Wn. App. 24 (Div. III, 2007) .............................................................................................. 18

    THE STATE LACKS CRIMINAL JURISDICTION OVER TRIBAL MEMBER IF THE ALLEGED NON-TRAFFIC CRIMINAL VIOLATION IS UNRELATED TO AN EXCEPTION TO RCW 37.12.010(1)-(8) State v. Pink, 144 Wn. App. 945 (Div. II, 2008) ................................................................................................... 19

    2

BRIEF NOTES FROM THE WASHINGTON STATE COURT OF APPEALS ........................... 22

    DIVISION ONE AGAIN REJECTS ARGUMENT THAT CONSTITUTIONAL DUE PROCESS PROTECTIONS REQUIRE ELECTRONIC RECORDING OF ALL INTERROGATIONS

    State v. Turner, __ Wn. App. __ , 187 P.3d 835 (Div. I, 2008) ............................................................................ 22

    “PUBLIC DUTY DOCTRINE” PRECLUDES NEGLIGENCE-BASED LAWSUIT FOR ARREST ON

    WARRANT THAT HAD BEEN QUASHED

    Vergeson v. Kitsap County, __ Wn. App. __ , 186 P.3d 1140 (Div. II, 2008) ...................................................... 22

    EVIDENCE IN FIRST DEGREE PREMEDITATED MURDER CASE SUPPORTS CONVICTION, INCLUDING PREMEDITATION ELEMENT

    State v. Sherrill, __ Wn. App. __ , 186 P.3d 1157 (Div. III, 2008) ....................................................................... 23

    JUDGE’S ORDER TO DEPUTY SHERIFF TO ESCORT PRISONER FROM COURTROOM TO JAIL DID NOT

    GIVE THE DEPUTY “JUDICIAL IMMUNITY” FROM A CIVIL SUIT FOR NEGLIGENCE WHEN THE PRISONER ESCAPED EN ROUTE AND CAUSED INJURY TO A COURTHOUSE SECURITY GUARD Lallas v. Skagit County, 144 Wn. App. 114 (Div. I, 2008) ................................................................................... 23

    DVPA PROSECUTION EVIDENCE HELD SUFFICIENT TO PROVE THAT DEFENDANT KNEW WHERE

    PROTECTED PERSON RESIDED

    State v. Vant, __ Wn. App. __ , 186 P.3d 1149 (Div. II, 2008) ............................................................................ 23

    “CRIMINAL LIBEL” STATUTE RULED UNCONSTITUTIONAL BASED ON FREE SPEECH PROTECTIONS OF FIRST AMENDMENT

    Parmelee v. O‟Neel, __ Wn. App. __ , 186 P.3d 1094 (Div. II, 2008) ................................................................. 24

    NEXT MONTH .......................................................................................................................... 25

    ***************************

    NINTH CIRCUIT, U.S. COURT OF APPEALS

    SECTION 1983 CIVIL RIGHTS CASE JURY UPHELD ON ITS REASONABLENESS FINDING WHERE OFFICERS WAITED 5 TO 8 SECONDS, AFTER KNOCKING AND ANNOUNCING, BEFORE BEGINNING THEIR EFFORTS TO FORCE HOME’S STEEL SECURITY DOOR TO EXECUTE NARCOTICS SEARCH WARRANT thHowell v. Polk, 532 F.3d 1025 (9 Cir. 2008) (decision filed July 16, 2008)

    Facts and Proceedings below: (Excerpted from Ninth Circuit opinion)

    Around 6:30 in the morning, a team of police officers arrived at the Howell

    residence to execute a search warrant [for narcotics]. The officers were required

    to knock and announce their presence before they could use force to enter the

    home. Wilson v. Arkansas, 514 U.S. 927 (1995) Sept 95 LED:03. At trial,

    witnesses testified that at least one officer knocked on the door and yelled “police,

    search warrant.” The police testified that, because the front door was a steel-

    reinforced “security door” that would take some time to breach, they began to

    force the door open when they didn't hear a response after five to eight seconds

    of knocking and yelling. It took the police twenty to thirty seconds to open the

    door. At least one officer continued to yell “police” while the others were forcing

    entry.

    ISSUE AND RULING: Are the Howells entitled to summary judgment on grounds that, as a matter of law, the officers were unreasonable in waiting only five to eight seconds before starting to force the front steel security door to execute a narcotics search warrant? (ANSWER:

    No)

    3

    Result: Affirmance of U.S. District Court (Arizona) judgment against the Howells based on the

    jury‟s verdict for the government.

    ANALYSIS: (Excerpted from Ninth Circuit opinion)

    The district court instructed the jury to determine whether execution of the search warrant was reasonable given the totality of the circumstances. The jury found that it was. On appeal, the Howells argue that the jury should have been instructed to find only the number of seconds that elapsed between the first knock and the police starting to break down the door, and whether that amount of time was reasonable as a matter of law.

    Determining whether the officers' entry into the house was reasonable required balancing complex considerations: The Howells argued that it wasn't, because the police waited only five to eight seconds before starting to break down the door. According to the Howells, few area residents would be awake-and thus able to dispose of evidence, flee or arm themselves-at 6:30 in the morning. The police countered that they had no choice but to start the process quickly because they knew that the steel security door would take a while to breach, and if they had waited any longer, the Howells would have had time to arm themselves [Court’s footnote: [Concern for safety] turned out to be well-founded. As the police were forcing the door open, Robert Howell retrieved a revolver from his bedroom, loaded it and fired one shot at the intruders. Upon realizing that the men at his door were police, he dropped his gun and surrendered.] or dispose of

    evidence. The police further argued that the large picture window in the front of the house would have given a resident a vantage point from which to shoot at officers, that the small size of the house would have allowed the occupants to quickly hide evidence and that the drugs for which police were looking could have been flushed down the toilet in seconds. See United States v. Banks, 540

    U.S. 31 (2003) Jan 04 LED:02 (“the opportunity to get rid of [narcotics]” is a factor in how long officers must wait).

    The Howells argue that, because the case requires balancing competing interests in privacy and law enforcement, only the district judge may determine whether the conduct was reasonable. But we frequently entrust juries with the task of determining the reasonableness of police conduct. For example, in excessive force lawsuits, the jury is usually charged with deciding whether the force used by police in effecting an arrest was reasonable. As in this case, determining whether an officer used excessive force requires the jury to balance the state's interest in law enforcement against the plaintiff's interest in personal security. If a jury is capable of weighing the reasonableness of a use of force, then it is also capable of weighing the reasonableness of an entry into a building. In other section 1983 lawsuits, the jury decides whether the police had probable cause to search. If the jury can weigh probable cause, a tricky and legalistic doctrine if ever there was one, then it can also decide whether a warrant was lawfully executed. The district court didn't err in submitting the issue of reasonableness to the jury.

    The Howells also appeal the district court's denial of their motion for summary judgment. They argue that the court erred in not holding that the search was unreasonable as a matter of law. While there are some entries that are

    4

    unreasonable as a matter of law, (finding, under the totality of circumstances,

    that five seconds was unreasonable), this one was not among them. Plaintiffs

    lived in a small house, with a large picture window and a difficult-to-breach

    security door. In these circumstances, a jury might have found the search

    unreasonable, but was not required to do so. The district court didn't err in

    denying plaintiffs summary judgment on their claim of unlawful entry.

[Some citations, one footnote omitted]

    IN-HOME QUESTIONING, WITH CHILD PORN SUSPECT SURROUNDED BY OFFICERS IN A STORAGE ROOM, HELD “CUSTODIAL” UNDER TOTALITY OF CIRCUMSTANCES PER MIRANDA RULE DESPITE FACTS THAT THE INTERROGATING OFFICER TOLD THE

    SUSPECT THAT THE SUSPECT: 1) WOULD NOT BE ARRESTED THAT DAY, 2) DID NOT HAVE TO ANSWER ANY QUESTIONS, AND 3) WAS FREE TO LEAVE AT ANY TIME

     thU.S. v. Craighead, __ F.3d __ , 2008 WL 3863709 (9 Cir. 2008) (decision filed August 21,

    2008)

     thFacts: (Excerpted from 9 Circuit opinion)

    [A child pornography] search warrant for Craighead's residence on [an] Air Force

    base was executed at approximately 8:40 A.M. on July 27, 2004. Eight law

    enforcement officers, representing three different agencies, went to Craighead's

    residence: five FBI agents, a detective from the Pima County Sheriff's

    Department, and two members from the OSI. All of these law enforcement

    officers were armed; some of them unholstered their firearms in Craighead's

    presence during the search. All of the FBI agents were wearing flak jackets or

    “raid vests.” Two non-agents accompanied the law enforcement officers: an FBI

    evidence control clerk, and Air Force Sergeant Mike Ramsey, who the

    government later represented was present for Craighead's “emotional support”

    [though Craighead was not so informed and saw the Sergeant‟s presence there

    as being in a supervisory role].

    At the hearing on Craighead's motion to suppress, SA Andrews testified that

    while other officers executed the search warrant, she introduced herself to

    Craighead as Robin Andrews from the FBI. She also introduced Jeff Englander,

    the detective from Pima County. She told Craighead that the two of them would

    like to talk with him about the search warrant. She told him that he was not

    under arrest, that any statement he might make would be voluntary, and that he

    would not be arrested that day regardless of what information he provided. SA

    Andrews also testified that she told Craighead that he was free to leave [and the

    U.S. District so found].

    SA Andrews and Detective Englander then directed Craighead to a storage room

    at the back of his house, “where [they] could have a private conversation.” SA

    Andrews did not handcuff Craighead at any point while escorting him to the

    storage room nor during the interview that followed. As SA Andrews described

    the storage room, it was cluttered with boxes. She could not recall whether

    Craighead sat on a box, or whether he sat on a chair grabbed from the kitchen.

    SA Andrews squatted on the ground, taking notes. Detective Englander stood

    leaning against the wall near the exit, with his back to the door. Detective

    Englander wore a flak jacket and a sidearm. SA Andrews testified that they shut

    5

    the door “for privacy.” Although Sergeant Ramsey had ostensibly been brought along to provide emotional support for Craighead, he was not permitted to accompany Craighead into the storage room. SA Andrews testified that this was because he was “non-law enforcement” and therefore would “never” be permitted to be present during an FBI interview.

    The interview lasted approximately twenty to thirty minutes. SA Andrews testified that it was her practice to tell interviewees that they are “free to leave” at the beginning of each interview, even if she has already told them this when escorting them to the interview location. However, she could not recall whether she actually repeated this statement to Craighead after they entered the back storage room and she closed the door. During the interview, SA Andrews did not make any threats or promises to induce Craighead to speak. She did not use any force. She did not read Craighead the Miranda warnings.

    Craighead testified that he felt that he was not free to leave because he “would have either had to have moved [Detective Englander] or asked him to move.” He also testified that the “prevailing mood of the morning” left him with the impression that he was not free to leave. He knew there were members of three different law enforcement agencies present in his home: the FBI, the Pima County Sheriff's Department, and the Air Force OSI. He believed that even if SA Andrews permitted him to leave, members of the other two law enforcement agencies would not. He was concerned that the agencies had not coordinated and so members of the other agencies might not know that SA Andrews had authorized him to leave. Similarly, he was unsure if he needed permission from all three agencies to leave, or if the Air Force investigators believed that he needed such permission.

    Craighead also testified that he was unaware during the interview that Sergeant Ramsey had been invited to provide emotional support. Rather, as Craighead explained, Sergeant Ramsey was his “first sergeant,” a superior with authority over him. Craighead assumed Sergeant Ramsey was required to be there by Air Force regulation. It was not until after everyone had left his house that he had a moment to speak with Sergeant Ramsey and discover the reason for Sergeant Ramsey's presence.

    During the interview, Craighead admitted that he downloaded child pornography using LimeWire, that he stored child pornography on his computer, and that he had saved some to a disk. Craighead was not arrested at the end of the interview. He was never arrested at any time prior to his conviction; he appeared in court by summons only.

    The search resulted in the seizure of the hard drive and loose storage media (compact discs and 3.5-inch floppy diskettes) from Craighead's computer. The FBI computer forensics expert located [extensive child pornography].

    Proceedings below:

    Craighead was charged in U.S. District Court in Arizona with violating federal child pornography

    law. He moved to suppress the statements he gave to officers on grounds that he should have

    received Miranda warnings before questioning. The District Court denied his motion, and he

    was convicted and sentenced to 78 months imprisonment.

    6

    ISSUE AND RULING: Under the totality of the circumstances of the questioning, including the facts: 1) that questioning took place in a small, closed, back room with the door closed; 2) that Craighead was surrounded by armed law enforcement officers; and 3) that his Air Force Sergeant was excluded from the room, was Craighead in “custody” for Miranda purposes

    despite the fact that the interrogating officer told him that he would not be arrested that day, that he did not have answer any questions, and that he was free to leave at any time? (ANSWER:

    Yes)

    Result: Reversal of U.S. District Court (Arizona) conviction of Ernest Craighead for violating federal child pornography.

    ANALYSIS:

    Under the U.S. Supreme Court‟s Miranda decision, an interrogation must be preceded by

    Miranda warnings if the circumstances are custodial. The courts apply a totality-of-the-circumstances test to determine custody, which means that anticipating how the courts will rule on the custody question is not easy to predict. The custody determination turns on such factors as: (1) the location of the questioning (e.g., street corner questioning is less likely to be held custodial than police station interrogation room questioning); (2) the duration of the questioning (questioning during a brief Terry investigatory detention is ordinarily not deemed to be Miranda

    custody, while extended interrogation-room questioning is more likely to be deemed custodial); (3) the words used by the police (including communication of the officers‟ perceived probable

    cause facts, their communication regarding the length of time that the interrogation might be expected to last, and any express communication that the suspect need not answer questions or is free to leave at any time); (4) the intensity, tone, and manner of questioning; (5) the use of restraints or a show of force prior to or at the time of the questioning; and (6) the release or incarceration of the suspect at the end of the questioning.

    The Craighead Court notes that often an interrogation by law enforcement officers in the suspect‟s own home is held to be non-custodial because there is less police domination than in

    police station questioning. But even for in-home questioning, the determination is one that depends on all of the circumstances of the particular case. The Court explains in lengthy, detailed, fact-based analysis that an in-home interrogation may become police-dominated depending upon (1) the number of law enforcement personnel, the number of agencies represented, and whether they were armed and at some point guns were unholstered; (2) whether the suspect was at any point restrained, either by physical force, by threats or by positioning of officers; (3) whether the suspect was isolated from others; and (4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made. Ultimately, the Craighead Court concludes that the

    questioning here occurred in an atmosphere that was so police-dominated that it was custodial.

    LED EDITORIAL COMMENT: The test for custody is so multi-factored and fact-based that many prosecutors and police legal advisors will tell officers that the better course of action, whenever in doubt as to Miranda applicability, is to Mirandize. This is yet another

    case that illustrates the point.

    But we have said in the past that there will be cases where experienced officers, in their best judgment regarding the particular case and particular suspect, will reasonably decide that their best chance of obtaining a statement is to conduct purely voluntary, non-Mirandized questioning of a suspect. In those cases, we have suggested in the past, officers will generally want to do the following - - (1) they must procure the suspect’s

    presence in the room voluntarily; (2) they should make clear before any questioning that

    7

    the suspect is free not to answer any questions, is not under arrest, and is free to leave at any time; and (3) they should be prepared to release the suspect once the questioning is completed. All of these things were done in the Craighead case. We now add to that

    suggestion that officers also evaluate the setting in which the questioning is conducted so that the setting seems as non-coercive as practicable. If the questioning in the Craighead case had occurred at a kitchen table or living room sofa or on the porch, we guess that the outcome would have been different.

    NO PRIVACY RIGHT IN COMPUTER FILE-SHARING SYSTEM ACCESSIBLE TO OTHERS ON PEER-TO-PEER NETWORK thU.S. v. Ganoe, __ F.3d __ , 2008 WL 3546375 (9 Cir. 2008) (decision filed August 15, 2008) thFacts: (Excerpted from 9 Circuit opinion)

    On January 5, 2004, Immigration and Customs Enforcement Special Agent Ken

    Rochford was using LimeWire to locate people using file-sharing programs to

    trade child pornography. LimeWire is a file-sharing program that can be

    downloaded from the internet free of charge; it allows users to search for and

    share with one another various types of files, including movies and pictures, on

    the computers of other persons with LimeWire. Once a user downloads the

    program onto his computer, the user can click on an icon that connects his

    computer to others on the network. Users can input search terms and receive a

    list of responsive files available on other computers connected to the network.

    Upon observing a file entitled “Baby J Compilation,” Rochford downloaded and

    viewed the movie, confirming that it depicted an adult having sexual intercourse

    with a very young girl. (The computer forensics expert testified that “BabyJ” is a

    common term in the world of child pornography, referring to “a specific victim of

    child exploitation” depicted in a series of pictures and movies.) Rochford used

    LimeWire's “Browse Host” feature to view all of the files being shared by a

    particular “Host,” thereby discovering four additional file titles that suggested

    similar content. Rochford downloaded and viewed these files, observing that

    they too contained footage of children engaged in sexually explicit conduct.

    Rochford determined that the downloads originated from a computer with a

    particular IP address, and that the IP address was assigned to Tyrone Ganoe,

    located at a specified residence in Norwalk, CA.

    Agents obtained a search warrant for that address, which was executed on

    March 9, 2004. Tyrone Ganoe arrived at the residence while the agents were

    engaged in the search. He spoke with Agent Margaret Condon, who advised him

    that he was not under arrest but that she would like to ask him a few questions.

    Ganoe agreed, confirming that he lived at the house with his mother Josephine

    and his sister Yvette. Condon asked Ganoe if he knew why the agents were

    there, and he said that he did; he explained that he had been using LimeWire to

    download music and had inadvertently downloaded child pornography. He

    stated that the “bad stuff” could be found in the “z” folder on the iMac. Upon

    examination, the “z” folder was found to contain 72 image and movie files

    suspected to be child pornography.

    The day after the search of Ganoe's residence, Agent Condon called Ganoe on

    his cell phone to inform him that he could retrieve some of the items taken during

    the search. Ganoe volunteered that he was seeking counseling for his

    8

    “problem.” Agent Condon asked him what he meant, and he stated that he was

    referring to his habit of viewing child pornography.

    Proceedings below:

    Ganoe was charged in U.S. District Court in California with several counts under federal child pornography laws. The District Court rejected his motion to suppress the evidence taken from his computer under the search warrant. The District Court concluded that Ganoe “knew or should have known that the [filesharing] [software that he had loaded into his computer] might allow others to access his computer.”

    Ganoe was convicted and sentenced to 96 months.

    ISSUE AND RULING: Did Ganoe have a privacy right in a file-sharing computer system that he had loaded into his computer and that he knew others could freely access through their computers? (ANSWER: No)

    Result: Affirmance of U.S. District Court (California) conviction and sentence of Tyrone Alan Ganoe. thANALYSIS: (Excerpted from 9 Circuit opinion)

    Ganoe asserts that when Agent Rochford used LimeWire to access the child

    pornography files on his computer, Rochford conducted a warrantless search

    that was illegal under the Fourth Amendment. The district court denied Ganoe's

    motion to suppress evidence obtained from Rochford's search on the grounds

    that having installed file sharing software on his computer, Ganoe “knew or

    should have known that the software might allow others to access his computer”

    and thus lacked a reasonable expectation of privacy in the files stored on his

    computer. We agree and affirm the denial of the motion to suppress.

    Although as a general matter an individual has an objectively reasonable

    expectation of privacy in his personal computer, . . . we fail to see how this

    expectation can survive Ganoe's decision to install and use file-sharing software,

    thereby opening his computer to anyone else with the same freely available

    program. The crux of Ganoe's argument is that he simply did not know that

    others would be able to access files stored on his own computer. But he knew

    he had file-sharing software on his computer; indeed, he admitted that he used it-

    he says to get music. Moreover, he was explicitly warned before completing the

    installation that the folder into which files are downloaded would be shared with

    other users in the peer-to-peer network. Ganoe thus opened up his download

    folder to the world, including Agent Rochford. To argue that Ganoe lacked the

    technical savvy or good sense to configure LimeWire to prevent access to his

    pornography files is like saying that he did not know enough to close his drapes.

    Having failed to demonstrate an expectation of privacy that society is prepared to

    accept as reasonable, Ganoe cannot invoke the protections of the Fourth

    Amendment.

    [Citations omitted]

    ***************************

    BRIEF NOTES FROM THE NINTH CIRCUIT, U.S. COURT OF APPEALS

    9

(1) BECAUSE ARREST PROCESS BEGAN WHEN ARRESTEE WAS TWO HOUSES

    AWAY FROM THE CAR THAT HE HAD JUST PARKED, THE CAR COULD NOT BE thLAWFULLY SEARCHED INCIDENT TO HIS ARREST In U.S. v. Caseres, 533 F.3d 1064 (9

    Cir. 2008) (decision filed July 21, 2008), the Ninth Circuit holds that an arrestee‟s car was not subject to search incident to arrest because he was two houses away from his car when the arrest process began.

    An LAPD officer decided to investigate whether tinting of the windows of Caseres‟ car was lawful. Caseres had parked his car and had walked two houses away from the car to arrive in front of his own house. At that point, the officer contacted Caseres and asked to talk to him. Caseres threatened the officer, and the officer told him he was under arrest and attempted to take control of him. Caseres broke free and was taken into custody a few blocks away.

    The Ninth Circuit holds that for purposes of the search incident rule for car searches, Caseres was not near enough to his car to support searching it as incident to arrest. The Court says this is so regardless of whether one uses as the location of the arrest: 1) the place of the initiation of the arrest process, or 2) the place of final successful apprehension of Caseres.

    Result: Reversal of U.S. District Court (California) conviction of Joseph Caseres for violation of Federal law prohibiting convicted felons from possessing firearms ammunition.

    LED EDITORIAL NOTE: A similar exclusionary ruling on somewhat similar facts was

    made by the Washington Court of Appeals, Division Two, in State v. Rathbun, 123 Wn.

    App. 372 (Div. II, 2004) Jan 05 LED:08.

    (2) SATIRICAL MESSAGE “I AM A . . . SUICIDE BOMBER TERRORIST” PAINTED ON

    HIS VAN BY MILD-MANNERED, ANTI-GOVERNMENT “NUT” WAS PROTECTED AS “FREE thSPEECH” UNDER THE FIRST AMENDMENT In Fogel v. Collins, 531 F.3d 824 (9 Cir. 2008)

    (decision filed June 27, 2008), the Ninth Circuit rules that, taking into account the full context of the investigation of messages painted on a 1970 white VW van, officers did not have justification, in light of constitutional freedom of speech protection, to arrest and jail the suspect, to impound his van, or to make him paint over the van‟s messages.

    The Fogel Court describes the van‟s decoration as follows:

    The words “I AM A FUCKING SUICIDE BOMBER COMMUNIST TERRORIST!”

    were painted in block letters on the back of the van above the rear window. On

    the rear window was painted “PULL ME OVER! PLEASE, I DARE YA[.]” Below

    the window in slightly smaller letters was the text “ALLAH PRAISE THE

    PATRIOT ACT ... FUCKING JIHAD ON THE FIRST AMENDMENT! P.S.

    W.O.M.D. ON BOARD!” A small American flag was attached to the van below

    the lettering. The rest of the van was decorated with slogans and paintings that

    had no political or threatening character.

    A citizen complained about the van. Law enforcement officers from a Utah town investigated. They concluded on contacting him that Fogel was a mild-mannered anti-government enthusiast, who some others in the community called an “anti-government nut.” Fogel consented to a

    search of the van, which the officers did, but in doing so they did not treat the van as if it actually contained a bomb. The search yielding nothing. Nonetheless, solely because of the messages on the van, the officers arrested him, took him to jail, and impounded his van, and made him paint over the messages before allowing him to retrieve the van from impound. The prosecutor declined to file charges, and Fogel sued.

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