11th Cir. upholds pre-Jones warrantless GPS under good faith exception; precedent was 1981 beeper case

Another circuit court (the 11th) has jumped on the good faith exception bandwagon and upheld pre-Jones warrantless GPS use, finding that law enforcement reasonably relied on "binding" precedent at the time the GPS tracker was installed. The case is United States v. Ransfer, __ F.3d __ (11th Cir. 2014).

--Note: While Ransfer was pending, the 11th Cir. decided United States v. Smith, __ F.3d__ (11th Cir. 2013), which involved Ransfer's co-defendants. The court upheld warrantless GPS under the good faith exception in that case, as well, with a much more detailed explanation.

The "binding precedent" the Ransfer court cites to justify warrantless GPS tracking is United States v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc) (when the 11th Cir. was created in 1981, it incorporated 5th Cir. precedent). The court also relied on United States v. Andres, 703 F.3d 828 (5th Cir. 2013), a similar warrantless GPS case holding that police reliance on Michael was reasonable (and thus the good faith exception applied). As noted by the Ransfer court:

The Fifth Circuit recently held police could rely on Michael “[d]espite any
possible technological differences between a 1981 ‘beeper’ and the GPS device
used in this case, [because] the functionality is sufficiently similar that the agents’
reliance on Michael to install a GPS device on the truck, in light of the reasonable
suspicion of drug trafficking, was objectively reasonable.” United States v. Andres,
703 F.3d 828, 835 (5th Cir. 2013) cert. denied, 133 S. Ct. 2814 (2013). We agree
with the Fifth Circuit that Michael was clear, binding precedent that holds the
electronic tracking of a vehicle without a warrant does not violate the Fourth
Amendment, particularly where officers had reasonable suspicion the vehicle was
involved in criminal activity.

The 11th Circuit distinguished Katzin -- the recent 3rd Cir. case rejecting a good faith exception argument (see my post: Third Circuit: Warrant required for GPS tracking (Katzin); answers what Sup. Ct. reserved in Jones) -- by pointing to the police's limited use of the GPS tracker. Namely, "the GPS tracker was not used to trace the movements of Defendants. The tracking device was not used until after an armed robbery was committed and the vehicle was used to flee the scene. Then the GPS tracking device was used for a very brief period of time after the robbery to pinpoint the location of the vehicle and to dispatch police to arrest Defendants..." As I see it, the court is stating that the way GPS tracking was used here was more analogous to tracking via beeper than extended electronic surveillance; therefore, the court notes:

the technological distinctions the Third Circuit found relevant in Katzin do not apply to the facts of this case: 'Unlike GPS trackers, beepers require that the police expend resources – time and manpower – to physically follow a target vehicle.' Katzin, 2013 WL 5716367 at *6. That is exactly what occurred in this case.

Of course, I am not surprised at the outcome, given that most other circuits have held similarly. However, I think the court's attempt to distinguish Katzin is clumsy and logically questionable. While I agree that the GPS tracker was used very minimally here, it still permitted the police to pinpoint the car without expending resources (i.e. having to follow the car); that is quite different than Knotts or Michael where police had to be in range of the beeper's radio signal and thus had to surveil to some extent. Katzin ("GPS technology must be distinguished from the more primitive tracking devices of yesteryear such as 'beepers.' Beepers are nothing more than 'radio transmitter[s], usually battery operated, which emit[]  periodic signals that can be picked up by a radio receiver.' United States v. Knotts, 460 U.S. 276, 277, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983). In contrast to GPS trackers, beepers do not independently ascertain their location — they only broadcast a signal that the police can then follow via a corresponding receiver. Moreover, beeper signals are range-limited: if the police move far enough away from the beeper, they will be unable to receive the signal that the unit broadcasts. At bottom, then, beepers are mere aids for police officers already performing surveillance of a target vehicle.")

More fundamentally, though, I reiterate my distaste for outcomes like this that shift the Supreme Court's Davis/Leon opinions from requiring good faith to something more akin to blind faith. Many of these cases give a whiff of backward reasoning coupled with deference to police; to me, the constitutional protections of the Fourth Amendment should take precedence.

For example, to buy the good faith argument, here, you have to accept the following:

1. That police were aware of the Michael precedent from 1981 at the time of the GPS installation
2. That police knew 5th Circuit precedent was binding because it was incorporated by the 11th in 1981
3. That "Michael articulated clear, binding precedent that installation of a device permitting electronic surveillance of a vehicle does not violate the Fourth Amendment" Ransfer.
4. That Michael referred to a beeper as an electronic tracking device and it is commonly understood that "a GPS device is an 'electronic tracking device'"; thus, arguing a difference in kind between beepers and GPS trackers makes "too fine a distinction." Smith, __ F.3d __ (11th Cir. 2013) (slip op. at 20).
5. That the Michael beeper and Ransfer GPS are technologically analogous, as well, notwithstanding that "the precise technological capabilities of the beeper were not explained in the [Michael] opinion." Andres, slip op. at 10.
6. That when police installed the GPS tracker without a warrant they "'followed the Eleventh Circuit’s . . . precedent to the letter.'" Smith.

Side Note: With regard to the actual capabilities of the beeper in Michael, I went back to the panel decision of and it seems that the beeper was merely used to aid in visual surveillance of the van (i.e. to allow police to stay farther away) and not to track it somewhere without any effort at all. See United States v. Michael, 622 F.2d 744 (5th Cir. 1980) ("The warehouse was located four days after installation of the beeper through following Michael's van with [the beeper's] aid."). It seems odd, then, for the court in Smith to assert that an argument that beepers and GPS trackers are not functionally similar draws "too fine a distinction." The law has an open texture, to be sure, but distinctions must be made and analogies must have limits when technology is involved - the much maligned "tiny constable" in Jones epitomizes this point.

With that in mind, I don't know if I'm willing to believe all six arguments/premises above and conclude that the police in Ransfer were (using the language from Davis v. United States, 131 S. Ct. 2419 (2011)) "specifically authorized" by "unequivocal" precedent (as opposed to "interpret[ing] ambiguous precedent," a situation where the good faith exception does not apply), to place a GPS tracker on the defendant's car.

My main point is that the good faith exception is worthwhile when there is actually clear, binding precedent. Once you remove clarity (as is the case here), you begin making assumptions about individual knowledge, intent, logical extrapolation, analytical thinking, and various other mental processes. The end result is judicial deference to law enforcement at the expense of subverting constitutional protections.

This is especially true in cases where the good faith exception has been applied applied despite any appellate precedent authorizing the police activity in question. See, e.g., OH App Ct: Warrantless GPS tracking OK despite no precedent; My take on the "good" left in the good faith exception.

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11th Circuit finds reasonable a 25-day delay in submitting warrant application to search computer

In United States v. Laist, the Eleventh Circuit held that a government delay of 25 days from the defendant's revocation of consent to search a computer until a search warrant application was submitted did not violate the Fourth Amendment.

The distribution of child pornography was tracked to the defendant's home, and law enforcement went to search. Upon arrival, the defendant admitted to possession of child pornography and signed a consent form allowing the search and seizure of his computer. A week later, the defendant withdrew his consent by letter. The search warrant application was submitted 25 days later, and the application was approved six days after submission. The defendant was ultimately convicted of multiple child pornography related crimes.

At trial and again on appeal, the defendant argued that the evidence should have been suppressed because the 25-day delay was an unreasonable seizure under the Fourth Amendment. "Laist argued that he had a substantial possessory interest in the items; that after he revoked his consent to their search, the FBI continued to hold them only on the basis of probable cause; and that the subsequent delay in obtaining a search warrant was unreasonable and therefore violated his Fourth Amendment rights."

The Eleventh Circuit disagreed, holding that although the interference with the defendant's possession was "not insubstantial," it was diminished as he had been given the opportunity to copy documents he needed for school off the computer prior to the seizure, and he had admitted to possession of child pornography and shown such an image to law enforcement. Nonetheless, the government was still required to "diligently obtain[] a warrant," which the Eleventh determined happened in this case. The 25-day delay was reasonable due to the amount of time needed to prepare the warrant and how busy the office was at the time.

The government's efforts here were sufficiently diligent to pass muster under the Fourth Amendment. While a 25-day seizure based solely on probable cause is far from ideal, and we have found shorter delays unreasonable under different circumstances, see Mitchell, 565 F.3d at 1352 (21-day delay), the totality of the circumstances in this case demonstrate the reasonableness of the government's actions.

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First Circuit holds that use of Yahoo!'s CP reports at trial requires author testimony under the Confrontation Clause

In United States v. Cameron, No. 11-1275 (1st Cir. 2012), the First Circuit held that certain reports prepared by Yahoo! and NCMEC as part of a child pornography investigation were testimonial, requiring the defendant to have the opportunity to confront the authors of those reports under the Sixth Amendment's Confrontation Clause. The court also held that Yahoo!'s investigation after an anonymous tip did not make it a government agent under Fourth Amendment law.

The defendant was charged with multiple child pornography crimes after law enforcement learned from Yahoo! that an account with his IP address had been sharing images of child pornography. The images had been reported by another user, and Yahoo! began an investigation which resulted in a report to NCMEC and ultimately ICAC. At trial, the defendant argued that the indictment did not meet the specificity requirement, evidence should be suppressed because Yahoo! was acting as a government agent, and evidence should be suppressed because the government was not planning to call witnesses from Yahoo! and Google which violated his Confrontation Clause rights. Each motion was denied. He was ultimately found guilty and sentenced to 192 months in prison.

On appeal, he argued each of the three above issues again. As to the sufficiency of the indictment, he argued that it was insufficient because it did not identify the specific images for each offense. The court held that a description of the offense, the date of the offense, the description of the images as digital, and the means of transportation was enough to meet the sufficiency requirement.

With the government agent argument, the defendant alleged that Yahoo!'s search of his password-protected account for images of child pornography violated his Fourth Amendment rights and made them government agents. The court, however, found that the government did not instigate or participate in the search nor did it have control over the search, and Yahoo! was therefore not acting as a government agent.

The defendant's Confrontation Clause argument centered upon whether the evidence from Yahoo! and Google were testimonial. If it was testimonial, a witness must be called that the defendant could then cross-examine.

• They presented data concerning the defendant's connections to his accounts. These records, determined the court, were not testimonial as they "were totally unrelated to any trial or law enforcement purpose." 
• Also used at trial were reports prepared by Yahoo! concerning their investigation into the report of child pornography. The court found that they were hearsay and testimonial. They were prepared to "prov[e] past events potentially relevant to [a] later criminal prosecution." Thus, the admission without the opportunity to confront violated the defendant's rights.
• The defendant also argued that CyberTipline Reports from NCMEC were testimonial because the reports were based on information contained in the Yahoo! reports. The government argued they were not statements of NCMEC because they simply forwarded Yahoo!'s report to law enforcement  The court found them to be testimonial.

Because the defendant did not have the opportunity to confront witnesses for the testimonial statements, the court reversed five of the convictions, finding the error not to have been harmless. 

A dissent by Judge Howard argued that the use of the CyberTipline Reports did not violate the Confrontation Clause as the defendant has no right "to cross-examine the person(s) who actually located the stored digital images and created a corresponding archive associated with each user name photo album."

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Eleventh Circuit finds multiple images of CP in single photography session allow for multiple production counts

In United States v. Fee, No. 11-15356 (11th Cir. 2012), the Eleventh Circuit held that the production of multiple images of child pornography during a single photography session allows for multiple counts of production.

The defendant was convicted on eight counts of production of child pornography, and she argued on appeal that the multiple counts were multiplicitous.

However, the Eleventh Circuit held that the convictions were not multiplicitous as each involved an act "of sexually explicit conduct to produce separate visual depictions of that conduct." The statute punishes the production of "any visual depiction" which should be interpreted as Congress's intent to punish "each discreet visual depiction."

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11th Circuit affirms use of chat transcript and virus scanner file list in CP case

In United States v. Rubinstein, 2012 U.S. App. LEXIS 7890 (11th Cir. 2012), the Eleventh Circuit upheld convictions for transporting and possessing child pornography. On appeal, the defendant argued that online chat transcripts and a list of files generated by the computer's antivirus program should not have been admitted into evidence. The investigation began with connecting the defendant's screen name to his ISP and residence, and then searching his home. His computer and DVD contained hundreds of images of child pornography.

The Eleventh Circuit found that the chat transcripts "were relevant because they show that child pornography was exchanged and the sexual comments about children help establish that Rubinstein knowingly exchanged the illicit images." Additionally, testimony about how the program operated and how the list was created properly authenticated it.

With regard to the virus scanner list, the court found it to be relevant "because some file names on the list were suggestive of child pornography, tending to show that Rubinstein knowingly possessed child pornography."

The use of the file list is a little troubling, though two things are important to note: (1) actual images of child pornography were found, and (2) most people are not likely to name non-CP images with names that suggest CP content. But suppose I created a document on my computer called "how_I_hacked_the_government.doc". Should that name alone be used against me in a prosecution for hacking? It could be a fictional story - you can't know without the content. It just seems that this file list was unnecessary and should not be admissible in a case where the files are not actually recovered.

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11th Circuit addresses 22 issues on appeal in international child pornography ring case

"If '[a]ll the world's a stage' as Shakespeare wrote, this case demonstrates just how much the dimensions of that stage are shrinking with the advent of the internet, at least in regards to child pornography," wrote Eleventh Circuit Judge Fay in an opinion concerning an international child pornography ring. The case, United States v. McGarity (669 F.3d 1218 (11th Cir. 2012)), was an appeal from multiple defendants convicted of taking part in a child exploitation enterprise involving 64 individuals and over 400,000 images. To become a member of the group, users had to pass a series of tests involving child pornography with the assumption being that law enforcement would be legally prohibited from following suit. The group encrypted all postings and used many other means to secure their activities. An informant turned over his account to police, allowing them to discover the identity of many others.

The defendants were charged with 40 counts and raised 22 issues on appeal. Among the findings, the court held:

• The child exploitation enterprise (CEE) statute, 18 U.S.C. § 2252A(g), was not unconstitutionally vague and overbroad.
• Charge of statutory obstruction of justice under 18 U.S.C. § 1512(c) was insufficient because the indictment did not provide sufficient notice of the factual predicate for the charge. Therefore, the conviction was vacated.
• Prosecutor closing including "The victims in these videos and images, they're the children. They're our daughters and granddaughters, neighbors, friends. Sometimes at night when I'm sitting in my house and everyone is asleep and even the puppy is down, it's awfully quiet, I can't fall asleep, sometimes you can hear the crying" was in error, but did not affect a different outcome.
• The court should have instructed the jury that the CEE statute required the jury to be unanimous in determining predicate acts to show a CEE. However, because the jury convicted the defendants of three counts that could serve as predicates, the conviction stands. (One defendant, however, was only convicted of two offenses that can serve as predicates, and therefore his conviction was reversed.)
• Two counts violated double jeopardy as Count Two (conspiring to commit certain acts underlying the CEE) was a lesser-included offense of Count One (knowingly and willfully engaging in a CEE).
• Defendants who received a life sentence plus other sentences totaling 2400 months was within the guidelines and not grossly disproportionate.
• Defendant who attempted to wipe his hard drive properly received an obstruction enhancement because although no proof was shown as to whether he was successful, the evidence clearly showed his attempt.
• Defendant properly received an enhancement for receipt of a thing of value in exchange for posting child pornography. The nature of the ring allowed him to receive more child pornography as a result of his posts. (See a prior post on this topic here.)
• Restitution award for "Amy" series was improper (prior discussion here). The proof of proximate cause is necessary as it would otherwise impose strict liability on child pornographers. The issue was remanded for a full hearing as to proximate cause.

The dissent only differed by arguing that the statutory obstruction of justice charge was sufficient.

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Eleventh Circuit decides interstate commerce proof debate, disavows Tenth Circuit opinion

The Eleventh Circuit has weighed in on a developing circuit split - specifically whether the prosecution must prove that a defendant's particular copy of an image of child pornography was obtained over the Internet and therefore traveled in interstate commerce. Finding that the "particular images" approach was an inaccurate interpretation of federal law, the court affirmed the judgement because the original images had been created in another state. United States v. Schaff, 454 Fed. Appx. 880 (11th Cir. 2012).

The defendant had attempted to delete all images of child pornography from his computer, but the images were recovered from unallocated space. Other images were obtained in thumbs.db, pagefile.sys, and hyberfil.sys files. There was no evidence presented that showed that the defendant had downloaded the images from the Internet, and therefore, no proof that his particular images had been obtained through interstate commerce.

The First, Third, and Fifth Circuits have held that the defendant's use of the Internet is enough to meet the interstate commerce requirement, and further proof regarding the specific images is unnecessary. The Tenth Circuit, on the other hand, found that evidence must demonstrate that the particular files were transferred through interstate commerce (United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007)). The "particular files" requirement is distinct from the original files. Therefore, if a neighbor had given the defendant the files on a CD, the requirement would not be met.

The Eleventh Circuit refused to adopt the Shaefer opinion, finding that the defendant's Internet use, coupled with the fact that the images had been produced in a different state, was sufficient for establishing the interstate commerce requirement.

UPDATE: The Tenth Circuit has since reversed its holding on this subject in Schaefer. Click here for more information.

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Appellate court addresses multiple issues in CP case

A recent Eleventh Circuit case presents a myriad of issues. In United States v. Cray, the defendant appealed his convictions of receipt and possession of child pornography. 450 Fed. Appx. 923 (11th Cir. 2012). He had subscribed to a website providing child pornography for $79.99 per month, and law enforcement tracked his actions on the site back to his ISP account. Among his arguments for reversal were:

• An argument that obtaining his IP subscriber information was a violation of the Wiretap Act, and thus suppression of the information was warranted. As the court noted, there is no suppression remedy under the Wiretap Act. (Also, obtaining such information is clearly not a wiretap under ECPA.)
• An expert witness should not have been allowed to testify that "Cray personally operated his laptop to access a child pornography website while in Dover, Delaware." The court found this testimony to be reliable and appropriate although the expert was not personally aware of the act.
• Admission of testimony concerning geographic location of IP addresses was not inadmissible hearsay under plain error review.
• Presentation of videos from the child pornography website to the jury was appropriate despite the fact that the videos were not located on the defendant's computer. They were relevant to show the defendant's "intent to receive and access ... child pornography" and to prove they "were actually child pornography."
• Summary chart matching "filenames found in [defendant's] laptop registry with files accessed on the Website by a subscriber using Cray's name and information" were appropriate for presentation to the jury because the information had already been established, defendant had opportunity to cross-examine, and the court provided limiting instructions to the jury.

Therefore, the trial court decision was affirmed.

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11th Circuit vacates sentence, finds swapping CP on P2P network not per se "for valuable consideration"

The Eleventh Circuit has vacated and remanded a sentence that included a five-level enhancement because it found the defendant had not received "a non-pecuniary thing of value" in exchange for sharing child pornography on a peer-to-peer network. United States v. Spriggs, 666 F.3d 1284 (11th Cir. 2012).

The defendant pled guilty to receipt of child pornography, and a five-level enhancement was applied "for distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value" at sentencing.

The court first examined whether a distribution took place. The defendant was using the Shareaza P2P software to download child pornography. Law enforcement had attempted to download files from the defendant, but were unsuccessful. There was also no proof that anyone else downloaded files from him, but because they were located in the shared folder, such proof was not necessary to show distribution.

However, the court did not find that "a non-pecuniary thing of value" was received or expected. The Eighth Circuit has determined that because possessors of child pornography often swap files on P2P networks, no proof is necessary to show it actually happened in order to apply this enhancement. United States v. Stultz, 575 F.3d 834, 849 (8th Cir. 2009). Here, the Eleventh Circuit disagreed - because files on P2P are free and downloads are not "conducted for 'valuable consideration,'" a transaction over the network is insufficient.

Without evidence that Spriggs and another user conditioned their decisions to share their illicit image collections on a return promise to share files, we cannot conclude there was a transaction under which Spriggs expected to receive more pornography.

The district court had also justified the enhancement because a user may receive faster download speeds when sharing files, but because there was insufficient proof, the argument was struck down.

RELATED CASE: Just days after Spriggs, the Eleventh Circuit decided an almost identical case in the same way - United States v. Vadnais, 667 F.3d 1206 (11th Cir. 2012).

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Reasonableness of length of time in consent search examined

A recent Eleventh Circuit case found that it was reasonable for law enforcement to wait nearly 11 months to search a computer that was obtained by consent. After signing a consent statement, Philip Edwards said he would like to have the computer back "sooner than later." At no point thereafter did he try to revoke consent.

As a result of various delays, a search warrant was not obtained for 34 days, and the computer was not analyzed until ten months later. The court held that because there was no revocation of consent and since Philip did not provide a specific amount of time, the timeliness was reasonable and within the consent.

I bring this case up not because it has anything unique about it, but to hopefully ignite discussion. I realize this is rather common place in child pornography and other cybercrime cases. Cybercrime units across the country are faced with budgets that hardly meet demand, often forcing long wait times. And obviously there an amount of time that should be considered de minimis, but eleven months seems be an unreasonable amount of time. The Sixth Amendment right to speedy trial exists, in part, to eliminate the distress of a defendant having to experience the uncertainty associated with the trial process. Certainly a similar protection should apply after a search. Due process? Cruel and unusual punishment?

Or is the key here consent? Should Emanuel have known that he could revoke his consent?

The case is United States v. Emanuel, 2011 WL 4376191 (11th Cir. 2011).

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