Politics and Law

Police Blotter is a regular CNET News report on the intersection of technology and the law.

What: California man accused of molesting his stepdaughter says her AOL "away" message calls her credibility into question.

Outcome: Conviction upheld on February 26.

What happened, according to court documents and other sources:
Earl Eugene Cannedy was accused of sexual molestation. Specifically, he was charged with oral copulation of someone who could not resist because of intoxication, and oral copulation of someone under 18 years old.

Cannedy raised an unusual defense: it involved an exculpatory "away" message one of the girls allegedly typed into AOL's instant messaging service.

The first of the two incidents took place in December 2000, when Cannedy shared a bottle of vodka with his wife's 17-year-old sister, called Jane Doe in court papers. Cannedy and his wife were living in Palm Desert, Calif., at the time.

Jane Doe passed out and woke up in a bedroom, with Cannedy allegedly pulling down her pants and performing oral sex on her. He eventually left. Jane Doe reported what happened in June 2001.

But Cannedy's wife apparently walked in on the scene, called her other sister immediately after the discovery, and the two decided to remove Jane Doe from the house but not otherwise disclose what happened. (As a side note, Jane Doe pleaded guilty to forgery and receiving stolen property a few years later and was placed on probation.)

The second incident involved Cannedy's stepdaughter, who is referred to as A.G. in court papers. A.G. was 13 years old in December 2003, when she said that Cannedy gave her a massage that ended with oral sex. She contacted the police.

A.G. used AOL's instant messaging service, and occasionally left "away" messages for her friends to see. A few weeks after the incident, she moved from her stepfather's home to her father's home.

Cannedy claimed that the following appeared as A.G.'s "away" message around that time: "To everyone who is reading this, the rumors that you heard are wrong. I just wanted to move to my dad's because everyone hates me and I don't want to put up with it anymore. Everything that you have heard isn't true. I just made it up so I could get away from it all. I'm living at my dad's where I have friends and I'm happy. I'm at (redacted) right now but I'm only going to be here for a day. You can reach me at (redacted)'s if you want to talk."

That message was written down at the time by one of A.G.'s friends, who was willing to testify that she saw it in early 2004. For her part, A.G. claimed: "I would never write anything like that because it is not true. I--it wasn't my choice to move to my dad's."

During the trial, Cannedy's lawyers argued that the jury should hear about the message and that the friend, J.C., should be called as a witness. They said that only the person with A.G's AOL password could have typed in the "away" message.

The judge denied the request, noting there were doubts about the message's authenticity: "You think those are secret from everybody? I know my wife's and she knows mine. I know my daughter's. I know my granddaughter's. She showed me how to get onto her MySpace."

Cannedy was convicted by a jury of the two oral copulation charges and sentenced to two years, on top of an earlier sentence of 10 years and 8 months in a related case. He filed an appeal to the California Court of Appeal, which rejected it on February 26.

Excerpts from the opinion from the California Court of Appeal, Fourth District, Division 2:
Defendant claims the exclusion of J.C.'s impeaching testimony violated his federal constitutional right to present a defense. In California, evidence possessing any tendency in reason to prove or disprove any disputed material fact is relevant and admissible. The trial court is vested with wide discretion in determining the relevancy of evidence. The question whether the defendant presented an adequate foundation to establish the relevance of the evidence also lays within the trial court's broad discretion.

A.G. described how defendant molested her around Christmas 2003. During cross-examination, A.G. admitted that she had access to a computer in December 2003 and early 2004. She knew about America Online (AOL) instant messaging. She had a "buddy list"...and a screen name on AOL to talk to certain people in a "private chat room."...A.G. acknowledged familiarity with "away messages." She had previously left "away messages" for her friends on occasion but did not recall leaving one in the second week of February 2004, when she moved from defendant's home to her father's home, nor did she recall leaving a message relating to the "content" of her testimony.

Contrary to defendant's claim, he was not deprived of his Sixth Amendment right to present a defense when the trial court applied the rule of evidence requiring him to supply an adequate foundation (Evid.Code, Sec. 403). Here, there was no abuse of discretion. As the People aptly note, defendant offered a hearsay statement that was allegedly posted on the Internet by A.G. There were no external or internal indicators of its authenticity or authorship. A.G. testified that she did not post such message. Although the evidence was relevant, i.e., it would have impeached A.G.'s testimony, defendant was unable to show that A.G. was the person who had posted it on the Internet.

The People agree that if there were proof A.G. recanted her claim that defendant molested her, such evidence would have been relevant to her credibility. Nonetheless, A.G.'s credibility is a collateral issue. The real issues involved the credibility of Jane Doe and her claim that defendant molested her. Given defendant's failure to lay a proper foundation for the evidence, the trial court was within its power of avoiding a mini-trial on A.G.'s credibility, which would have involved the need for expert testimony on why children who have been molested recant their claims, as well as A.G.'s testimony from defendant's previous trial concerning his molestation of A.G.

For the above reasons, we conclude the trial court did not abuse its discretion in excluding the testimony of J.C.

Police Blotter is a regular CNET News report on the intersection of technology and the law.

What: Defendants in Florida and Virginia, each arrested after being stopped for speeding, claim warrantless searches of their handheld devices violates the Fourth Amendment.

Outcome: One federal judge rejects the warrantless search as illegal, while a federal appeals court upholds it as perfectly OK.

What happened, according to court documents and other sources:
Anyone who relies on a handheld device for e-mail, Web browsing, note, and scheduling knows how well it knows them. Modern gadgets contain enough data about us to raise alarms about identity theft if lost--or worries of another sort if police peruse them in hopes of finding incriminating files.

To snatch these capacious little devices from our homes, police need warrants. But if we happen to be arrested with gadgets in our pocket or purse, police claim they can search through the contents, including personal photo albums, without limitation. (CNET readers who attend the Burning Man festival and like to document their pharmaceutical experimentation, take note.)

This has become an more important--and unresolved--modern privacy question. As Police Blotter reported last month, courts have split over whether (or exactly how) to support police powers or defend Americans' privacy rights.

In just the last few weeks, two more cases have appeared, both arising from speed traps.

On June 6, 2008, Florida Highway Patrol Trooper John Wilcox was running a speed trap in Collier County in an area known as "Alligator Alley." His radar gun said a car was traveling over 90 mph, and Wilcox pulled the driver over.

Wilcox said he smelled raw marijuana from inside the car, asked the driver to step outside, and called for backup. The driver, Ariel Quintana, was arrested for driving with a suspended license. (He had failed to pay a traffic fine.) A search of the car yielded possible traces of marijuana in the sole of a shoe but nothing else.

When Quintana was in custody, his cell phone rang, and Trooper Yoenis Garcia removed the phone from the suspect's pocket without permission and dialed the most recent number. Quintana's wife Amy answered the phone.

Garcia then began to peruse the contents of the phone, including a digital photo album, hoping to find marijuana-related evidence. He found a photo of marijuana plants in what appeared to be a "grow house," plus what court documents delicately describe as "intimate" photos of Quintana's wife.

Those police officers telephoned their colleagues in Hillsborough County, over 100 miles away, who then promptly visited the address on Quintana's license, jumped over a fence, unlocked a driveway gate, and snooped around until they allegedly smelled the odor of marijuana plants. A raid netted over $850,000 in marijuana plants, according to an article in the Tampa Tribune.

Quintana's lawyers argued that searching the cell phone during an arrest was unlawful under the Fourth Amendment. U.S. Magistrate Judge Elizabeth Jenkins agreed, saying the results of the search of the digital photo album could not be used against the defendant.

A similar situation arose two years earlier, when Virginia State Trooper Danny Pruett was manning a speed trap on I-81 and spotted a vehicle traveling at 95 mph. Pruett stopped the vehicle, which was driven by a woman who said her name was Debbie Arlene Sanchez but claimed that she had left her driver's license at home.

One of the two passengers said he had left his driver's license at home as well, and a man in the back seat produced an Alabama license. Pruett checked the names against the National Crime Information Center's database, which told him that there were no records of any driver's licenses or state ID cards issued in those names. The Alabama license had a legitimate number but it was issued to a woman.

You can guess what happened next: Pruett called for backup, arrested the driver (whose name turned out to be Marsha Massengill) for reckless driving, arrested the front seat passenger for obstruction of justice, and arrested the rear seat passenger for providing a fictitious license. About $14,790 in cash was found in a laptop bag, and 26 uncut sheets of what were allegedly counterfeit $100 bills.

The front seat passenger claimed his name was Corey Antonio Murphy, but was later identified as Damian Murphy, on parole for drug violations.

Murphy's cell phone was shipped to a Drug Enforcement Administration office and examined by DEA Special Agent Brian Snedecker on June 26. Snedeker identified several text messages exchanged with someone named Brian Sheppard. After police called him that same day, Sheppard claimed that Murphy was his drug supplier.

After Murphy was charged with conspiracy to distribute cocaine and the pain killer hydromorphone and with possession of counterfeit currency, his lawyer objected to the cell phone search, saying a warrant should have been required. The U.S. 4th Circuit Court of Appeals rejected that argument, saying the evidence could be used against him.

These two cases capture the different ways to look at digital devices: are they like physical containers, which can be opened at will during arrests, or does their uniquely personal nature mean that a search warrant should be required? Should photographs on a mobile device receive more legal protection than an electronic address book? Few of us would travel with decades' worth of intimate personal diaries, but that's what modern gadgetry lets us do.

One of the better-known cases is the 5th Circuit's opinion (PDF) in January 2007, which sided with police. Police Blotter has covered other cases that took the pro-police view and the pro-privacy view.

Excerpts from U.S. Magistrate Judge Elizabeth Jenkins's January 20, 2009 report, not allowing the cell phone search:
The Fifth Circuit has allowed the search of a cell phone incident to a lawful arrest, reasoning that if law enforcement has probable cause to arrest, it may "look for evidence of the arrestee's crime on his person in order to preserve it for use at trial." Other courts have adopted similar reasoning. Notably, the defendants in these cases were arrested for drug-related activity when their electronic devices were searched. The courts recognized that the devices may have been used to communicate with others participating in, e.g., drug-trafficking. Consequently, there was a reasonable probability that information stored on the device was "evidence of the arrestee's crime."

Excerpts from the 4th Circuit's January 15, 2009 opinion, allowing the cell phone search:
Murphy argues that whether a cell phone may be searched without a warrant can be determined only upon the officers ascertaining the cell phone's storage capacity. In so arguing, he concedes that a device with a small storage capacity may be searched without a warrant due to the volatile nature of the information stored, but that a search of a cell phone with a larger storage capacity would implicate a heightened expectation of privacy and thus would require a warrant to be issued before a search could be conducted.

Police Blotter is a regular CNET News report on the intersection of technology and the law.

What: A Minnesota man accused of drunk driving says he should be able to review the source code of the Intoxilyzer 5000EN breathalyzer used by police.

When: Minnesota Court of Appeals rules on January 13.

Outcome: Request for source code rejected.

What happened, according to court documents and other sources:
If police think you're driving while intoxicated, they'll probably demand that you blow into a tube connected to a simple portable computer. Your breath flows into a chamber with an infrared light and a sensor that's designed to detect alcohol vapor through a process called infrared spectrometry.

The problem is that the calculations depend on what assumptions the programmer made, including the relationship between your blood alcohol content and alcohol in your breath, which can vary with the individual. In addition, the programmer could have made coding errors along the way.

Which brings us to a question that has bedeviled dozens of judges for the last few years: Should a defendant have the right to review the source code--the step-by-step programming instructions--to a breathalyzer that police and prosecutors are using against him?

To computer scientists, there's little reason not to disclose the source code to a defense expert who can review the logic that the device employs; otherwise, it's a little like being convicted based on the word of an inscrutable black box. Defense attorneys have been zealously pressing that point in court. But prosecutors say it would be too disruptive and burdensome.

Nicholas Swendra is one of those DUI defendants asking prosecutors to hand over the source code to the Minnesota version of the Intoxilyzer 5000EN, made by a private company called CMI of Owensboro, Ky. The Intoxilyzer relies on technology that would have been state of the art in the early 1980s: a dot matrix fluorescent display, an RS-232 port, a Z80 microprocessor programmed in assembly language, and less than 100KB of RAM. CMI insists the source code is a trade secret.

The Minnesota government submitted an affidavit from a forensic scientist saying the source code was accurate, while Swendra's attorney countered by pointing out congressional testimony and a flurry of other court opinions authorizing a peek at the Intoxilyzer's instructions. (Defense counsel's goal is to get the Intoxilyzer evidence tossed out of court, or to persuade prosecutors to drop charges.)

A district judge denied Swendra's request for additional information about the Intoxilyzer, saying that turning over the source code would be unreasonably burdensome and that the defendant could offer only speculation to support his argument that the source code is relevant. On January 13, a Minnesota appeals court agreed.

This will not be the end of the overall issue. Swendra could appeal, and other cases have reached different conclusions. For example, a July 2007 ruling from the Minnesota Supreme Court in a case involving accused drunk driver Dale Underdahl--reported by Police Blotter at the time--allowed the defendant to review the source code. A Florida court said in 2005 that state police can't use electronic breathalyzers as courtroom evidence against drivers. And another Florida judge ruled last month that the results of breathalyzer tests in more than 100 drunk driving cases will not be allowed to be introduced as evidence during trials.

Excerpts from Minnesota Court of Appeals' ruling:
The results of the Intoxilyzer breath test are presumed reliable under Minnesota statute. Because appellant stipulated to the Intoxilyzer's reliable administration, he bore the burden of presenting the court with "some evidence beyond mere speculation that questions the trustworthiness of the Intoxilyzer report." See Kramer v. Comm'r of Pub. Safety, 706 N.W.2d 231, 236 (Minn.App.2005).

In (the 2008 case called) Underdahl II, this court held that a finding of relevancy respecting the source code "must be premised on a showing that an examination of the instrument's software would show defects in its operation or at least would be necessary to determine whether a defect exists." We found that the party seeking discovery in Underdahl II failed to show relevancy because he furnished no evidence that the code would reveal testing deficiencies or that any deficiencies would affect test results and no evidence that the driver, who is permitted by law to test the machine, was deprived of access to any information that might be revealed by the source code.

As in Underdahl II, appellant made inadequate showings in the district court on the relevancy of the source code. Appellant theorized that, "[w]ithout the source code, the Intoxilyzer 5000 is just a machine that does nothing. The source code itself is absolutely relevant and material to the question of whether the test record in this case is accurate and valid." The district court found appellant's evidence (testimony on voting machine source codes, a New Jersey source-code report, and trial court opinions) unhelpful and concluded that "[p]etitioner has provided only speculation that the information provided by the Intoxilyzer 5000EN is even at issue in this case.... In this case and on this record, [p]etitioner is not entitled to additional discovery."

The district court acted within the scope of its wide discretion in its relevancy decision. It follows that we have no occasion to reach appellant's remaining argument that the court erred in addressing respondent's alleged possession of the source code.

Police Blotter is a regular CNET News report on the intersection of technology and the law.

What: Florida man appeals a first-degree murder conviction based on circumstantial evidence, including Google searches related to gunshot wounds.

When: State appeals court rules on January 23, 2009.

Outcome: Appeal denied and conviction upheld.

What happened, according to court documents and other sources:
On the evening of August 17, 2002, Justin Barber was shot four times while walking on a deserted beach in Florida. Bullets hit his left hand, his left shoulder, the base of his neck, and his chest. His wife April was shot in the face and died in the surf.

From his hospital bed, Justin offered detectives a description of the man he says robbed and shot them. Witnesses told police they saw a second car parked on the beach around the same time as the shooting. And April's car and house (the couple was temporarily living three hours apart for job reasons) had been recently broken into.

Still, April's family believed Justin was the man who murdered her--then shot himself to cover up the crime--and tried to focus detectives' attention on him.

An article posted on our sister site, CBS News, offers some explanations for their suspicions. A $2 million life insurance policy had been taken out on both Justin and April. Justin was more than $50,000 in debt. He was having affairs, including one with a woman who worked at a car rental agency.

April's aunt Patty, a judge in Oklahoma, was convinced that Justin was the culprit. "He planned every moment of it," she told CBS News. "This was premeditated, cold, calculated." Detectives eventually agreed, and Justin was charged with first-degree murder.

What makes this case relevant to Police Blotter is that prosecutors introduced something of a bombshell during the trial: Records of Justin's Google searches.

A physical search of Justin's computer revealed that a few months before the murder, he had searched for terms including "trauma, cases, gunshot, right chest" and "Florida & divorce." Prosecutors had also discovered that the defendant downloaded a suggestive Guns N' Roses song called "Used to Love Her" and then deleted it a few weeks later, after his wife's death.

The lyrics: "I used to love her, but I had to kill her / I had to put her / Six feet under / And I can still hear her complain."

The jury convicted Justin and he was sentenced to life in prison. He appealed on grounds that the evidence was wholly circumstantial and insufficient for conviction. A Florida state appeals court upheld his conviction and sentence.

As computer forensics becomes more commonplace, evidence of Google and other searches is beginning to appear in more criminal prosecutions. Earlier this month, Police Blotter noted how they were invoked in the case of a San Francisco-area investment banker who claimed he believed he killed a deer instead of a person.

Police Blotter has chronicled a 2006 case involving a wireless hacker ("how to broadcast interference over Wi-Fi 2.4 GHz") and a 2008 case involving a woman convicted of murdering her husband ("decomposition of a body in water"). Searches in a 2005 murder case included "neck," "snap," and "break."

So far these cases appear to have involved police physically seizing a suspect's computer and poring over its Web browser history. The other way for prosecutors or defense attorneys to find search terms is to send subpoenas to Google, Microsoft, Yahoo, or AOL (something that the major search companies say they can provide if legally obligated). If you know of any cases involving subpoenas, please let us know.

Excerpts from the opinion of the District Court of Appeal of Florida, Fifth District:
In the penalty phase of the trial, the State presented argument in support of the three statutory aggravators; Barber refused to offer mitigating evidence or submit argument. The jury, by a vote of eight to four, recommended that the death penalty be imposed.

The trial court considered the evidence and the State's arguments and found: (1) the murder was at least partially motivated by pecuniary gain (medium weight); and (2) the murder was committed in a cold, calculated, and premeditated manner (great weight). However, as to whether the crime was heinous, atrocious, and cruel (H.A.C.), the court found that the State did not prove this aggravator beyond a reasonable doubt because the State did not sufficiently prove that Barber attempted to drown his wife before he shot her. Specifically, the trial court found that Barber may have shot her at the water's edge, causing her to fall into the water, and then dragged her to where her body was found by the police. Despite the jury's recommendation, the trial court imposed a life sentence. Barber appeals, claiming that the trial court erred in denying his motion for judgment of acquittal...

As to our de novo review of the record before us, we conclude that when viewed in the light most favorable to the State, the evidence the State introduced at trial is inconsistent with Barber's theory of events. Because such an inconsistency was established, the trial court correctly let the jury decide whether the evidence excluded all reasonable hypotheses of innocence. The jury heard all of the testimony and considered all of the evidence presented in the guilt phase of the trial and determined that all reasonable hypotheses of innocence were excluded. Concluding that substantial, competent evidence exists in the record to support the jury's verdict, we affirm Barber's conviction and his sentence.

Police Blotter is a regular CNET News report on the intersection of technology and the law.

What: A self-described girl lover with no criminal record is ordered to cease posting images of young girls on a Web site, even if the photographs were taken in public places.

When: California appeals court rules on January 15, 2009.

Outcome: Restraining order stays intact.

What happened, according to court documents and other sources:
Jack McClellan enjoys the dubious distinction of being the Internet's most famous pedophile. The self-described connoisseur of prepubescent girls promoted his Web site as the "premier site of the girl-love revolution" and claimed it was both therapy for himself and an encouragement for other girl-lovers to exit the closet. It has been featured in The New York Times and on NPR, CNN, and CBS News.

His now-defunct Stegl.info rated public events and locations, including swimming pools and fast-food restaurants, based on how likely they are to feature girls between 3 and 11 years old. An October 2007 version of McClellan's site captured by Archive.org awards the Oregon State Fair five hearts and concludes it "provided many hours of GL fun and merits my highest rating." GL stands for girl-lover.

McClelland, who is approximately 46 years old, has never been charged with or convicted of a sex-related crime, and denies ever having sex with a minor. He once told Fox News that "if it was legal and if it was a completely consensual thing, I could see myself taking it all the way to a sexual" level. But generally people can't be jailed for what they might do if given the right opportunity and if the law were different.

What makes this case relevant to Police Blotter is that McClellan would regularly photograph fully clothed girls at public events and post the images on his Web site. His locations of choice included areas such as parks, roller skating rinks, bowling alleys, ice rinks, dance recitals, and shopping centers.

UCLA campus police expelled him after they noticed a camera-toting McClellan near a child development center, according to a 2007 article in The New York Times. A CBS News story from around the same time said McClellan was living out of his Ford Escort near Los Angeles while updating his Web site. The story also noted him stating that he opposes sexual aggression: "I don't think any child should be touched sexually or nonsexually against their will."

Eventually, some parents in the southern California town of Santa Clarita claimed that their daughters started to stay away from public events for fear of being photographed. The parents sued, asking for a preliminary and permanent injunction preventing McClellan from posting not just the images of their daughters on his Web site--but any photographs of minors at all.

A trial judge granted a permanent injunction without hearing testimony from witnesses. The injunction said McClellan must stay more than 10 yards away from any place where children congregate. It also prevented him from, in the words of one court, "recording or publishing any image of any minor child without the parent or guardian's written consent." The order applies anywhere in California.

That language is quite broad, and McClellan argued that it violated his free speech rights under the First Amendment and the California Constitution. He would be barred, for instance, from publishing an archived public domain image of a teenage girl who might now be elderly or deceased. More to the point, perhaps, there is no widely recognized icky-pedophile exception to the First Amendment.

McClellan seems to have represented himself during some portions of the proceedings, arguing that the injunction unreasonably targeted his political speech, but he neglected to pursue some of the arguments a media attorney would probably have raised.

Eugene Volokh, who teaches First Amendment law at UCLA, wrote about the restraining order when it was issued. His conclusion: "You can't restrict people's movement, and their ability to take photographs in public places (even of children, something that is routinely done by the media and others and that is presumptively protected by the First Amendment), simply because of their ideology and expressed sexual desire, even when one understandably worries that at some point this ideology plus desire will turn into actual molestation. The premise of our legal system is that restraints...can only be instituted after some showing of concrete evidence that someone has committed or is planning to commit a crime."

A three-judge panel California's Court of Appeal, Second District, Division 3, disagreed. The judges unanimously affirmed the restraining order and permanent injunction, saying they "protected the rights of children." The panel also ordered McClellan to pay the parents' legal fees.

As for McClellan, it's unclear where he is now; an October 2007 post on another Web site apparently devoted to so-called girl love said he had moved to Portland and liked the "overall vibe here better than L.A. and Seattle." Meanwhile, his legacy in California includes not only this month's appellate ruling but also a law that he can claim credit for inspiring. Bill AB 534, which became law in September, says it is a crime to publish a photograph of a child "with the intent that another person imminently use the information to commit a crime against a child."

Excerpts from the opinion of California's California's Court of Appeal, Second District:
Publications, even if true, may constitute an invasion of privacy if they are presented in a lurid or indecent manner. Even if photographs are accurate and taken in public places, there can be a cause of action for invasion of privacy when they are exploitative...

For example, in Gill v. Curtis Publishing Co., a happily married couple was photographed in an affectionate pose when they were at their place of business. A magazine used the photograph in an article on different types of love as an example of mere sexual attraction. The California Supreme Court examined the context in which the article was used. The Court held that even though the couple had been in a public place when the photograph was taken, the plaintiffs had stated a cause of action because the use of the photograph could be actionable as an invasion of privacy...

McClellan states that his activities are not illegal. For example, he states that attending public events is not illegal, publishing photographs is permissible, and engaging in public advocacy for those attracted to prepubescent girls is legal. McClellan misses the point.

McClellan is not prohibited from espousing his controversial views. Rather, he is prohibited from his continuing course of conduct to harass, attack, assault, stalk, and keep under surveillance minor children, as to do so places the children in danger and is threatening to them. McClellan is not prohibited from attending public events, but rather only prohibited from being within 10 yards of any place where children congregate. He is prohibited from tracking young girls by obtaining their addresses or locations so he can post their photographs on his website and he is precluded from recording or publishing any image of any minor child without the parent or guardian's written consent. The prohibited activities are offensive to persons of ordinary sensibilities and threatening. The photographs he posts are not part of a discussion of newsworthy events...

He also presents the children in a false light because the photographs portray the children as being available to pedophiles. The voyeur and stalking nature of McClellan's activities, and his attendance at functions where children congregate, in conjunction with his use of photographs of small children is offensive, frightening, menancing, and not protected by McClellan's free speech or assembly rights. Although McClellan states that he is being punished for his thoughts and the hostile reaction to them, he ignores the response to the victims of his actions who fear for their safety.

Further, the protective order did not preclude McClellan from associating with other persons who share his beliefs or with other pedophiles. He is not prevented from discussing his beliefs with others or expressing those beliefs...The restraining order and judgment of permanent injunction are affirmed.

Police Blotter is a regular CNET News report on the intersection of technology and the law.

What: Google searches for phrases including "hit-and-run" nab California investment banker who claimed he believed he killed a deer instead of a person.

When: California appeals court rules on January 14, 2009.

Outcome: Conviction upheld.

What happened, according to court documents and other sources:
At about 9:00 p.m. on January 11, 2005, 55-year-old Gurdeep Kaur was dropped off on Moraga Boulevard, across the street from her home near Lafayette, Calif. She was on her way back from Terzetto Cuisine, an Italian restaurant that her family owned where she worked as a cook. Kaur began to cross the street--although not in a crosswalk, which was 1,000 feet away--and was wearing a white sweater and black pants.

She was struck by a car and killed. The driver left the scene, and police found no skid marks. Kaur was taken to a hospital and died of what a coroner would later rule to be "multiple blunt force injuries" caused by the impact.

Moraga police announced that the vehicle was a red or burgundy Jaguar XJ6 or XJ8 built between 1995 and 2003, based in part on debris at the scene including a hood ornament that snapped off as a result of the impact. They asked the public for leads.

Eventually their investigation led them to secure a warrant to search the home of Lee Harbert, a San Francisco Bay-area investment banker who had been convicted three times for driving while intoxicated. (Apparently at least some convictions had been expunged.) Inside his garage was a black 2000 Jaguar Vanden Plas that had been recently cleaned. It had body damage and police found one of the dead woman's earrings in the windshield well.

It's undisputed that Harbert was the driver who hit and killed Kaur that evening; the question is whether or not he violated the vehicle code requiring a driver involved in such an accident to stop and provide assistance to an injured person.

Harbert claimed he believed he hit a deer. He had consumed three drinks in Marin County during a long meeting earlier in the day and was driving home. He described the incident thusly: "And I looked...down the road, I looked immediately northbound, because I knew whatever had struck the car was large. I had no idea at the time what it was. God forbid that it was a person. Whether it was a large animal or... not... I didn't know." Also, because the police were looking for a red and burgundy Jaguar, he claimed to believe his accident was unrelated to the hit-and-run.

This could have remained a he said/she said situation except for a detail that makes this case relevant to Police Blotter: Harbert's Internet searches.

When police searched Harbert's house, they examined his computer. They found evidence of Google searches a few days after the accident for search terms including "auto glass reporting requirements to law enforcement," "auto glass, Las Vegas," auto parts, auto theft, and the Moraga Police Department. He allegedly also searched for "hit-and-run," which led him to a Web page dealing with the death of Kaur that said police had a lead on the vehicle.

During the trial, the prosecutor told the jury: "And I think what he did afterwards is extremely telling, also, the computer searches and Web pages. Auto parts, auto dealers out-of-state; auto glass, Las Vegas; auto glass reporting requirements to law enforcement, auto theft... The defendant didn't offer you any explanation for the auto theft, one, and he had a series of excuses for the other ones. But when you put them all together, the only reasonable conclusion was he was going to try to get the car fixed somewhere else far away so he wouldn't be found out, he was going to try and avoid having anything reported to law enforcement."

Harbert was convicted and sentenced to three years in prison, with the trial judge lecturing him for a "display of arrogance and self-absorption... while you were on the stand." He appealed, saying that the prosecutors' arguments amounted to misconduct and that there was no evidence he had actual knowledge a person was hit. A California appeals court rejected his arguments this week.

This isn't the first time that police have used Google searches to nab suspects. Police Blotter has chronicled a 2006 case involving a wireless hacker ("how to broadcast interference over wifi 2.4 GHZ") and a 2008 case involving a woman convicted of murdering her husband ("decomposition of a body in water"). Searches in a 2005 murder case included "neck," "snap," and "break."

Excerpts from the opinion of the Court of Appeal, First District, California:
Defendant conceded that, notwithstanding his misgivings, he never contacted Moraga police. Defendant had no recollection of making many of the Internet searches recorded on his computer. He did recall the search for a glass shop to replace his windshield, but this was because the Jaguar agency he used did not do body work, and because he wanted to make sure he did not become involved in anything "covert" that would reflect adversely on "my level of responsibility" in retrospect...

As for defendant's conduct once he reached his home, i.e. the Internet searches, it is conclusive that his suspicion lingered and would not go away.

As already noted, the jury was entitled to reject defendant's testimony as to his state of mind. In light of the entirety of the circumstances, we conclude there was abundant evidence from which the jury could conclude that defendant did indeed have knowledge-actual or constructive-that he had collided with a human being on the evening of January 11, 2005, on Moraga Boulevard.

With the failure of this, the foundation of defendant's contention, the edifice he constructs on that foundation quickly collapses... Because defendant's Internet searches after January 11 are inextricably linked to his state of knowledge on January 11, they were an appropriate subject for argument by the prosecutor-and not misconduct...

The judgment of conviction is affirmed.

Police Blotter is a regular CNET News report on the intersection of technology and the law.

What: Police claim they can legally copy data from the handheld devices of anyone who's arrested.

When: Two judges wrestle with concepts including privacy, the Fourth Amendment, and searches, and reach two different conclusions.

What happened, according to court records and other documents:
Handheld gadgets and laptops seem to know us better than our spouses do. They know whom we talk to, which Web sites we visit, whose e-mail we ignore, and with a little extra smarts, they could probably offer an educated guess about what we want for dinner.

To snatch these useful little devices from our homes, police need warrants. But if we happen to be arrested with gadgets in our pocket or purse, police say they have the right to peruse what could be gigabytes of data for potentially incriminating files or photographs.

The frightening scale of electronic searches has made this an important--and unresolved--privacy question. Two recent federal cases illustrate how judges remain deeply divided about whether to support police powers or defend Americans' privacy rights.

In May 2008, Chester Balmer, an officer with Georgia's Savannah-Chatham Metropolitan Police Department, responded to a complaint of sexual activity in a silver pickup truck parked near an apartment complex. Balmer found a Dodge pickup truck with two people inside, obtained the driver's permission to look inside the truck, and allegedly spotted crack cocaine in the ashtray.

Balmer arrested the driver, Bernard McCray, and scrolled through the photos on McCray's mobile phone. He found images of what he believed to be a 14-year-old teenage girl in lewd poses, which led to McCray being charged with possession of child pornography. His lawyer objected to using the images as evidence, saying the warrantless search violated the Fourth Amendment.

U.S. District Judge B. Avant Edenfield disagreed. Because papers, diaries, and traditional photographs can be examined during an arrest, Edenfield reasoned, a mobile phone can too.

The second case yielded a different result. It began with a Florida drug bust involving a man named Aaron Wall. A Drug Enforcement Administration informant offered to sell several kilograms of cocaine to Wall, who was arrested when he allegedly showed up at an exchange point with a bag full of cash.

Wall had two cell phones, which DEA agent Dave Mitchell examined during the booking process (but not during or immediately after the arrest). Mitchell found and took photographs of several text messages on the defendant's phones.

Mitchell would later offer justifications for his warrantless search: 1) he regularly performs mobile-phone searches because it's common to find evidence of crimes in text messages; 2) it's a standard DEA practice authorized by the DEA Legal Department, as long as the search is performed during the booking process; 3) he was concerned that the text messages might expire after a certain amount of time; and 4) the cell phone battery may die.

When the defense attorney objected to the search, U.S. District Judge William Zloch agreed. He said, essentially, that the DEA agent lied: "The court finds Agent Mitchell's statement that he searched the phone because of his concern that text messages might immanently expire is not credible...the true, and only, purpose of the search by Agent Mitchell was to find incriminating evidence."

Zloch ordered that the incriminating text messages be suppressed, which means that prosecutors can't use them in court proceedings.

These two cases capture the different ways to look at digital devices: are they like physical containers, which can be opened at will during arrests, or does their uniquely personal nature mean that a search warrant should be required? Few of us would have traveled with decades' worth of intimate personal diaries, but that's what modern gadgetry lets us do.

One of the better-known cases is the 5th Circuit's opinion (PDF) in January 2007, which sided with police. Police Blotter has covered other cases that took the pro-police view and the pro-privacy view.

It's worth pointing out that the second proceedings may have turned out differently, if the cops had searched Wall's mobile phone at the time of the arrest, rather than waiting until booking. Then again, this is no tremendous obstacle: if judges insist on that distinction, police can respond by doing a complete copy at the time of arrest. (Note that the state of Florida says "agents should continue to obtain search warrants for securing information from cell phones seized from arrested subject." That shows that a search warrant is no insurmountable hurdle.)

Excerpt from opinion of U.S. District Judge B. Avant Edenfield on January 5, 2009, allowing the mobile-device search:
It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. Such searches are reasonable not only because of the need to disarm the arrestee of any weapons that might be used to resist arrest or effect his escape, but also because of the need "to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction." (Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime.)

As the Fifth Circuit held in Finley, "the permissible scope of a search incident to a lawful arrest extends to containers found on an arrestee's person." A cell phone, like a beeper, is an electronic "container," in that it stores information that may have great evidentiary value (and that might easily be destroyed or corrupted).

While such electronic storage devices are of more recent vintage than papers, diaries, or traditional photographs, the basic principle still applies: incident to a person's arrest, a mobile phone or beeper may be briefly inspected to see if it contains evidence relevant to the charge for which the defendant has been arrested.

Excerpt from opinion of U.S. District Judge William Zloch on December 22, not allowing the mobile-device search:
The search of the cell phone cannot be justified as a search incident to lawful arrest. First, Agent Mitchell accessed the text messages when Wall was being booked at the station house. Thus, it was not contemporaneous with the arrest. Also, the justification for this exception to the warrant requirement is the need for officer safety and to preserve evidence...The content of a text message on a cell phone presents no danger of physical harm to the arresting officers or others. Further, searching through information stored on a cell phone is analogous to a search of a sealed letter, which requires a warrant.

The Court further finds that the search of text messages does not constitute an inventory search. The purpose of an inventory search is to document all property in an arrested person's possession to protect property from theft and the police from lawsuits based on lost or stolen property.

This, of course, includes cell phones. However, there is no need to document the phone numbers, photos, text messages, or other data stored in the memory of a cell phone to properly inventory the person's possessions because the threat of theft concerns the cell phone itself, not the electronic information stored on it.

Surely the government cannot claim that a search of text messages on Wall's cell phones was necessary to inventory the property in his possession. Therefore, the search exceeded the scope of an inventory search and entered the territory of general rummaging.

Police Blotter is a regular CNET News report on the intersection of technology and the law.

What: Feds want to eavesdrop on touch tones pressed during phone calls without obtaining a court-authorized wiretap order first.

When: U.S. Magistrate Judge James Orenstein in the Eastern District of New York rules on December 16, 2008.

Outcome: Surveillance request rejected.

What happened, according to court records and other documents:
Just about everyone knows that the FBI must obtain a formal wiretap order from a judge to listen in on your phone calls legally. But the U.S. Department of Justice believes that police don't need one if they want to eavesdrop on what touch tones you press during the call.

Those touch tones can be innocuous ("press 0 for an operator"). Or they can include personal information including bank account numbers, passwords, prescription identification numbers, Social Security numbers, credit card numbers, and so on--all of which most of us would reasonably view as private and confidential.

That brings us to New York state, where federal prosecutors have been arguing that no wiretap order is necessary. They insist that touch tones cannot be "content," a term of art that triggers legal protections under the Fourth Amendment.

On June 11, 2008, U.S. Magistrate Judge James Orenstein denied prosecutors' request to obtain in-call touch tones, a denial that the Justice Department appealed to a district judge. After being asked for more information, prosecutors said that they would configure their wiretap gear not to record in-call touch tones received from the wireless provider, presumably using tone-detection equipment. (In industry lingo, in-call touch tones are called "post-cut-through dialed digits," or PCTDD, and the government's request is called a pen register.)

That was enough for U.S. District Judge Nicholas Garaufis to approve the idea on November 26.

Probably thinking that ruling would be the last word on the topic, the Justice Department came back on December 16 for what was supposed to be a routine pen register request. It would let federal agents receive all phone numbers dialed by a suspect. A pen register is easy to get; all the Feds have to do is claim it's possibly "relevant" to an ongoing investigation.

The case happened to be referred to Orenstein, who was working with a different district judge this time, and concluded he didn't have to follow Garaufis' opinion because it was not binding precedent. Orenstein rejected the government's request.

This isn't the first time that the Justice Department has expressed a keen interest in post-call touch tones, and claimed it didn't need a wiretap order to obtain them. In 2007, Police Blotter covered yet another judge--also in the Eastern District of New York--rejecting the warrantless surveillance request. Two years earlier, Police Blotter revealed that the Justice Department believed that pen register orders could also be used to track mobile phones.

The FBI and other police agencies have always liked access to lists of numbers dialed; knowing who's talking to whom at a particular time can be almost as good as knowing what they're saying.

The debate is really over the in-call touch tones, and it dates back to at least 1994, when FBI director Louis Freeh was lobbying Congress to expand wiretap laws. Here's an excerpt from a hearing:

Sen. Patrick Leahy (D-VT): You say this would not expand law enforcement's authority to collect data on people, and yet if you're going to the new technologies, where you can dial up everything from a video movie to do your banking on it, you are going to have access to a lot more data, just because that's what's being used for doing it.

FBI Director Louis Freeh: I don't want that access, and I'm willing to concede that. What I want with respect to pen registers is the dialing information, telephone numbers which are being called, which I have now under pen register authority. As to the banking accounts and what movie somebody is ordering in Blockbuster, I don't want it, don't need it, and I'm willing to have technological blocks with respect to that information, which I can get with subpoenas or other process. I don't want that in terms of my access, and that's not the transactional data that I need.

That was then. Now the Justice Department claims it does want it, does need it, and is unwilling to go through the trouble of obtaining a wiretap order--but without publicly saying why. The court documents aren't helpful; Judge Orenstein's order last month was actually redacted and the requests are filed under seal.

Which invites speculation: Are police most interested in voicemail passwords? Online banking logins? Regulatory proceedings from almost a decade ago suggest that police were especially interested in the digits pressed after using an 800 number to reach a long distance carrier.

Excerpt from U.S. Magistrate Judge James Orenstein's opinion:
I find that proposal insufficient for the following reason. The pen register statute does not merely forbid the government as such from decoding content such as PCTDD; if it did, I would agree that the government's proposal is workable. Rather, the statute also makes it unlawful for a pen register itself to record the contents of a communication.

The government explicitly seeks authorization to have its agents install and use, or cause to be installed and used, a device or process that will record all dialing, routing, addressing, and signaling information but that will only exclude the decoding of any PCTDD within such information. Thus, as a result of the orders the government would have me issue, agents of the government (or employees of a service provider, acting at their behest) would install and use a device or process to record the contents of communications. In doing so, they would be using a device or process that cannot be considered a "pen register," and would thereby violate the law. That the same agents, or others acting on their behalf, would somehow later delete the portion of the recording that constituted the contents of the communication would not serve to undo the already completed unlawful act, nor would it retroactively transform something that was not a pen register into something that was.

I emphasize that my basis for denying the requested relief in part is a narrow matter of statutory interpretation. I see no constitutional difficulty with allowing the government to obtain the information it seeks to use for investigative purposes by means of a device or process that would qualify as a pen register but for the fact that, during the collection process, PCTDD information is initially recorded and then quickly deleted. Nor do I mean to convey a belief that Congress would or should, if presented with the issue, do anything other than endorse the methodology the government proposes. However, Congress has taken great care to establish a finely calibrated statutory regime to regulate various forms of electronic surveillance; to the extent that I cannot reconcile an otherwise seemingly appropriate surveillance technique with the relevant statutory provisions, I conclude that I must leave it to Congress to change the law rather than accept the government's implicit invitation to do so.

For the reasons set forth above, I grant the government's application only to the extent that the relevant service provider would in any event record the relevant post-cut-through dialed digits for its own purposes and only to the extent that the provider is able to delete such information before disclosing any other dialing, routing, addressing, or signaling information to the government. To the extent that the provider would not in any event record post-cut-through dialed digits without the requested orders, or is unable to delete all such information from the dialing, routing, addressing, and signaling information it would disclose to the government, I deny the government's application.