Monday, August 22, 2016

Theft of Services, the 4th Amendment and Name, DOB and Phone Number

This post examines a recent opinion from the Court of Appeals of Georgia:  State v. Hill, 2016 WL 3751806 (2016). The Court of Appeals begins the opinion by explaining that
[t]his case involves allegations that James Brandon Hill committed misdemeanor theft of services in violation of Georgia Code § 16-8-5 when he fled without paying a fare owed to a taxi cab driver. The investigating officer found a cellular phone in the back of the taxi cab and, by placing an emergency call from the phone, determined that it belonged to Hill.

In a motion to suppress, Hill argued that this constituted an illegal search of his phone in violation of the Fourth Amendment of the United States Constitution. The trial court granted Hill's motion, and the state appeals. Because Hill had no reasonable expectation of privacy in the information at issue—his own name, date of birth, and phone number—we agree with the state there was no search under the Fourth Amendment, and accordingly we reverse. In light of this conclusion, we do not address the issue of whether Hill abandoned the phone.
State v. Hill, supra.
The opinion went on to explain that the evidence in
this case is not in dispute, and we review de novo the trial court's application of law to the undisputed facts. See Hughes v. State, 296 Ga. 744, 750, 770 S.E.2d 636 (2015).  A law enforcement officer, who was the only witness at the hearing on Hill's motion to suppress, testified that on June 1, 2014, he investigated a taxi cab driver's claim that a man had fled without paying his cab fare. The man who fled had left a cellular phone in the backseat of the cab. The officer turned on the phone but a passcode prevented him from accessing any data contained therein. The officer, however, was able to place an emergency call from the phone, and from that call a 911 dispatcher provided him with the number assigned to the phone and with Hill's name and date of birth.

Hill did not challenge the officer's seizure of the phone found in the cab. See generally  Fair v. State, 284 Ga. 165, 174-175 (3) (d), 664 S.E.2d 227 (Georgia Supreme Court 2008) (no Fourth Amendment violation where officers seized items in plain view during processing of crime scene); Peek v. State, 239 Ga. 422, 426, 238 S.E.2d 12 (Georgia Supreme Court 1977) (`It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence’) (citation and punctuation omitted).

Instead, Hill argued in his motion to suppress that the officer's act of calling 911 with the phone constituted an `illegal search of [his] cellular phone for the purposes of ascertaining [his] identity.’ In response, the state argued alternatively that the officer's act did not constitute a `search' within the meaning of the Fourth Amendment, and that Hill had abandoned the phone by leaving it in the cab. The trial court rejected both of the state's arguments and granted the motion to suppress. As detailed below, the trial court erred in concluding that the officer's actions were a Fourth Amendment search.
State v. Hill, supra.
The Court of Appeals went on to explain that the
Fourth Amendment to the United States Constitution provides the right of individuals to be free from unreasonable searches and seizures. U.S. Const. Amend. IV. A Fourth Amendment search occurs when a government official physically intrudes or trespasses on a person's property. U.S. v. Jones, __ U.S. __,132 S.Ct. 945 (2012). This case does not involve such a physical intrusion or trespass.

A Fourth Amendment search also occurs `when the government violates a subjective expectation of privacy that society recognizes as reasonable.’ Kyllo v. U.S., 533 U.S. 27, 33 (2001) (citation omitted). See Katz v. U.S., 389 U.S. 347, 361, 88 S.Ct. 507 (1967) (Harlan,J., concurring). Conversely, `a Fourth Amendment search does not occur . . . unless the individual manifested a subjective expectation of privacy in the object of the challenged search, and society is willing to recognize that expectation as reasonable.’  Kyllo v. U.S., supra (citation and punctuation omitted).
State v. Hill, supra.
The court also pointed out that, in applying
the subjective expectation of privacy analysis to determine whether a Fourth Amendment search occurred, `it is important to begin by specifying precisely the nature of the state activity that is challenged.’ Smith v. Maryland,442 U.S. 735, 741, 99 S.Ct. 2577 (1979). The challenged activity in this case is the law enforcement officer's act of calling 911 from a cellular phone that was lawfully in the officer's possession. This activity enabled a dispatcher to determine the number assigned to the phone and the name and birthdate of Hill, who was associated with that number. Thus, Hill's Fourth Amendment argument `necessarily rests upon a claim that he had a “legitimate expectation of privacy” regarding [his phone number, name, and birthdate].’ Smith v. Maryland, supra. We find that he had no legitimate expectation of privacy in this information.
State v. Hill, supra.
The opinion went on to explain that,
[w]hile the application of Fourth Amendment law to this precise set of facts appears to be an issue of first impression in Georgia, there are many cases in Georgia and in other jurisdictions supporting the conclusion that a person lacks a legitimate expectation of privacy in identifying information such as name, address, or telephone number that is used to facilitate the routing of communications by methods such as physical mail, e-mail, landline telephone, or cellular telephone.

`[T]he majority of courts to consider the question have agreed that a person's name and address is not information about which a person can have a reasonable expectation of privacy.’ Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455, 466 (Pennsylvania Supreme Court 2003). Examples of cases in which courts have found no legitimate expectation of privacy and thus no Fourth Amendment protection include:  Smith v. Maryland, supra (government used `pen register’ to record telephone numbers of calls made from defendant's landline phone); U.S. v. Forrester, 512 F.3d 500, 509-511 (U.S. Court of Appeals for the 9th Circuit 2008); (U.S. Court of Appeals for the 9th Circuit 2008) (government used `mirror port’ technology to learn, among other things, the “to/from” addresses of defendant's e-mail messages); U.S. v. Choate, 576 F.3d 165, 174-177 (U.S. Court of Appeals for the 9th Circuit 1978) (government arranged for `mail cover,’ under which postal service provided government agency with information appearing on the face of envelopes or packages addressed to defendant); People v. Elder, 63 Cal.App.3d 731, 134 Cal. Rptr. 212, 215 (California Court of Appeals 1976) (government obtained name and address of subscriber to particular telephone number); Ensley v. State, 330 Ga. App. 258, 259, 765 S.E.2d 374 (Georgia Court of Appeals 2014) (government obtained subscriber information associated with defendant's Internet service account); Stephenson v. State, 171 Ga. App. 938, 321 S.E.2d 433 (Georgia Court of Appeals 1984) (government obtained defendant's address and telephone number by arranging for telephone company to trace and `trap’ a harassing call made by defendant to victim); State v. Neeley, 2012 WL 175340 *4, 2012 Ohio App. LEXIS 165 (Ohio Court of Appeals 2012) (cellular phone subscriber has no reasonable expectation of privacy in his own phone number and `the police can trace from a phone number dialed to the identity of the subscriber of the phone from which that number was dialed’); Commonwealth v. Duncan, supra (government first obtained from shopkeeper the account number associated with defendant's bank card, and then obtained from defendant's bank his name and address). Cf. State v. DeFranco, 426 N.J. Super. 240, 43 A.3d 1253, 1259 (App. Division 2012) (finding that New Jersey Constitution, which defendant argued afforded more privacy protections than Fourth Amendment, was not violated when government obtained his cellular phone number from his employer, because defendant's `professed subjective expectation of privacy’ in his phone number was not one “that society would be willing to recognize as reasonable”) (citations omitted).
State v. Hill, supra.
The Court of Appeals then explained that
[t]wo principles of Fourth Amendment law lead to this result. First, as to communications, there is a `core distinction: although the content of personal communications is private, the information necessary to get those communications from point A to point B is not.’ U.S. v. Carpenter, 819 F.3d 880, 886 (U.S. Court of Appeals for the 6th Circuit 2016).  Consistent with this distinction, we have held in a case involving a landline phone that the Fourth Amendment `protects only the content of a telephone conversation and not the fact that a call was placed or that a particular number was dialed.’ Stephenson v. State, supra. See generally Orin S. Kerr, Applying the FourthAmendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1019 (2010) (originating telephone number is non-content information analogous to return address on envelope).

Second, `a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’ Smith v. Maryland, supra. This rule applies even where the person revealing information intended its use by the third party to be limited. United States v. Graham, 2016 U.S. App. LEXIS 9797, *5 (U.S. Court of Appeals for the 4th Circuit 2016) (en banc). By using a phone, a person exposes identifying information to third parties, such as telephone companies, and assumes the risk that the telephone company may reveal that information to the government. Smith v. Maryland, supra. See also Ensley v. State, supra.

Applying this principle to the act of law enforcement officers in obtaining from a cellular phone the number associated with that phone, the United States District Court for the Eastern District of Michigan held that `a cell[ular] phone number fits into the category of information that is not considered private and does not implicate the Fourth Amendment.’ U.S. v. Sanford, 2013 U.S. Dist. LEXIS 73624, *3 (E.D. Mich. 2013).
State v. Hill, supra.
The Court of Appeals then began the process of applying the above principles to the issue in this case, explaining that the
fact that it was a law enforcement officer, rather than Hill, who placed a call from the phone does not change our conclusion that the information obtained was not subject to Fourth Amendment protection. Cases from other jurisdictions illustrate this point. In U.S. v. Skinner, 690 F.3d 772, 777-778 (U.S. Court of Appeals for the 6th Circuit 2012), for example, the United States Court of Appeals for the Sixth Circuit held that law enforcement agents could take action to cause a cellular phone to emit information from which they could track it without running afoul of the Fourth Amendment, because the defendant did not have a reasonable expectation of privacy in the location data emitted from the phone.

Courts have held that law enforcement officers could swipe a credit card that was lawfully in their possession to obtain information from the card's magnetic strip, because that information would be revealed to a third party in the normal use of the card and, consequently, was not subject to a legitimate expectation of privacy. See U.S. v. L’Isle, 2016 WL 3184475 *5 2016 U.S. App. LEXIS 10345 **9-13 (U.S. Court of Appeals for the 8th Circuit 2105); United States v. Bah, 794 F.3d 617, 629-633 (U.S. Court of Appeals for the 6th Circuit).  
State v. Hill, supra.
The court went on to explain that
[a]lthough a law enforcement officer cannot access data stored within a cellular phone without a warrant or an exception to the warrant requirement, see Riley v. California, 134 S.CT. 2473 (2014), courts have held that the officer can take other action with a cellular phone lawfully in his or her possession to determine the phone's owner. For example, the officer can remove the battery from a phone to acquire an identifying subscriber number, analogous to a serial number, without implicating the Fourth Amendment, because the subscriber has no `reasonable expectation of privacy in the serial number of his cell[ular] phone or other identifying information.’ State v. Green, 164 So.3d 331, 344 (Louisiana Court of Appeals 2015). See also United States v. Lowe, 2014 U.S. Dist. LEXIS 145457 (U.S.District Court for the District of Nevada 2014). And in the context of a civil rights action, the United States District Court for the Eastern District of Virginia held that an allegation that an officer improperly placed a call from a person's cellular phone did not state a Fourth Amendment violation. Deavers v. Spotsylvania County Sheriff’s Department, 2014 WL 2993445 (U.S. District Court for the Eastern District of Virginia 2014).  

Hill cites Riley v. California, supra, in support of his argument that the officer violated the Fourth Amendment by placing the call from his phone. Unlike this case, however, Riley did not concern whether an officer's acts constituted a search under the Fourth Amendment. It was undisputed in Riley that the officers searched the defendants' cellular phones when they accessed files within the phones that included videos, photographs, text messages, and a call log. Riley v. California, supra. Instead, Riley concerned whether such a search required a warrant even if the phone was seized incident to arrest, and the Court concluded that it did, in part because the search of a cellular phone more greatly intruded on privacy than a search of other types of items that could be seized incident to arrest. See Riley v. California, supra.
State v. Hill, supra.
The Court of Appeals then articulated its ruling in this case, explaining that
[h]ere, in contrast to Riley, the officer did not access any files on Hill's phone, which was protected by a passcode. He `did not attempt to retrieve any information from within the phone,’ U.S. v. Lawing, 703 F.3d 229, 238 (U.S. Court of Appeals for the 4th Circuit 2012), but instead used the phone in a manner that caused it to send Hill's telephone number to a third party, the 911 dispatcher. We do not construe Riley to prohibit an officer in lawful possession of a cellular phone from placing a call on that phone in an attempt to obtain identifying information about its owner. Moreover, we do not construe Riley to recognize a legitimate expectation of privacy in identifying, non-content information such as the person's own phone number, address, or birthdate, simply because that information was associated with a cellular phone account rather than a landline phone account or a piece of physical mail.

Because we conclude that no Fourth Amendment search occurred in this case, we reverse the trial court's grant of Hill's motion to suppress. Consequently, we do not address the state's alternative argument regarding whether Hill abandoned the cellular phone.
 State v. Hill, supra.


Friday, August 19, 2016

Second-degree Burglary, Mutilated Bras and Emails

This post examines a recent opinion from the Court of Appeals of Minnesota:  State v. Deitering, 2016 WL 4262976 (2016).  The court begins the opinion by explaining that
Douglas Deitering faced a second-degree burglary charge for entering his former paramour's house and stealing or mutilating her bras, blouses, and panties. Deitering claimed during his bench trial that the damaged clothes found in his house were part of a planned erotic photoshoot that he and the victim had contemplated and that he never entered her home without permission. The district court deemed Deitering's assertions incredible and found him guilty.

Deitering argues on appeal that the district court erred by excluding evidence of a sex tape featuring him and the victim, an email exchange between the two, and photographs of the victim in her underwear. He also argues that his trial counsel was ineffective for not requesting a separate hearing on the state's motions in limine regarding that evidence.
State v. Deitering, supra.
Minnesota Statutes § 609.582(2) defines second-degree burglary as follows:
(a) Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if:
(1) the building is a dwelling;
(2) the portion of the building entered contains a banking business or other business of receiving securities or other valuable papers for deposit or safekeeping and the entry is with force or threat of force;
(3) the portion of the building entered contains a pharmacy or other lawful business or practice in which controlled substances are routinely held or stored, and the entry is forcible; or
(4) when entering or while in the building, the burglar possesses a tool to gain access to money or property.
(b) Whoever enters a government building, religious establishment, historic property, or school building without consent and with intent to commit a crime under section 609.52 or 609.595, or enters a government building, religious establishment, historic property, or school building without consent and commits a crime under section 609.52 or 609.595 while in the building, either directly or as an accomplice, commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.
The Court of Appeals’ opinion went on to explain that the
state charged Douglas Deitering with second-degree burglary after H.H. reported that he entered her Minnetonka house without permission, stole clothing from inside, and cut holes in clothing that he stole and in other clothing that he left behind.
State v. Deitering, supra.
The court went on to explain that,
[a]ccording to the state's trial evidence, Deitering and H.H. were separately married, next-door neighbors who began a lengthy sexual affair around 2006. H.H. decided to end the sexual nature of the relationship sometime before July 2013, but the two continued to maintain a friendship, communicating socially in person and by email. Deitering repeatedly attempted to rekindle the sexual relationship, but H.H. began seeing another man, J.Y. Deitering learned about J.Y. when he saw J.Y.'s phone number on H.H.'s telephone, and he confronted H.H., who told him that J.Y. was just a business caller.

The state also presented evidence that on July 31, 2013, H.H. severed her relationship with Deitering entirely. Deitering had moved to Eden Prairie, and H.H. met Deitering at his new home and told him that she wanted him out of her life. Three days later, in the early morning of August 3, H.H. was in bed at J.Y.'s home when she and J.Y. were awakened by noises outside. It was Deitering. He pounded on the door and yelled at J.Y. to send H.H. outside. J.Y. dialed 9–1–1 and asked for help. Police arrived to discover that Deitering had slashed the tires on H.H.'s car and scraped a message into the driver's side, `I cheat on my husband.’ Police found Deitering nearby and arrested him. Police also searched his car, finding utility knives, a black ski mask, binoculars, and two cut pieces of tan, nylon fabric.

H.H. returned to her own home later that day and discovered that someone had been inside. She found that most of her bras and panties were missing, and so were several of her dresses. A few remaining bras and blouses had been cut, leaving holes in the breast area. H.H. called police and reported the intrusion and vandalism, suspecting Deitering. There were no signs of forced entry, and Deitering knew the access code to H.H.'s garage. Police executed a search warrant at Deitering's house and discovered many articles of H.H.'s clothing inside his gun safe—dresses, bras, and panties. Some of the clothing had been haphazardly cut to leave exposing holes in the breast and crotch areas. Police found pieces of fabric corresponding to the excised garments that police had recovered from H.H.'s home.
State v. Deitering, supra.
The court also noted that Deitering
testified to counter the state's incriminating account. He told the court that his sexual relationship with H.H. had lasted until August 2, 2013. He claimed that several times during their affair H.H. had posed for him wearing lingerie. He said that on July 31 she met him at his home so he could photograph her. According to Deitering, H.H. brought bags of lingerie with her and spent the morning cutting sexually revealing holes in the clothing and modeling them while he took pictures. Deitering asserted that they had sex and that H.H. left at about noon for a meeting. In her haste, he said, H.H. mistakenly took a bag of her cut-up clothing with her. Deitering then put the remaining clothes in his gun safe so that his children would not find them. Deitering admitted to vandalizing H.H.'s car, but he denied entering her home and stealing or mutilating her clothes.

The district court considered the competing stories and rejected Deitering's. It found him guilty of second-degree burglary and denied his motion for a new trial.
State v. Deitering, supra.  Deitering appealed.  State v. Deitering, supra.
The Court of Appeals began the substantive part of its opinion by explaining that Deitering
argues that the district court erred by excluding evidence supporting his version of the events, depriving him of his rights to present a complete defense, to confront witnesses against him, and to a fair trial. Evidentiary rulings fall within the discretion of the district court. State v. Amos, 658 N.W.2d 201, 203 (Minnesota Supreme Court 2003). An appellant challenging an evidentiary ruling bears the burden of showing that the district court abused its discretion and that its ruling unfairly prejudiced his defense. Id. 

When a district court incorrectly excludes evidence in violation of the defendant's constitutional rights, the verdict must be reversed if `there is a reasonable possibility that the verdict might have been different if the evidence had been admitted.’ State v. Graham, 764 N.W.2d 340, 358 (Minnesota Supreme Court 2009) (quotation omitted). We apply this standard to the evidence that Deitering tried unsuccessfully to admit, which was a video recording of him and H.H. having sex, photographs of H.H. wearing lingerie, and email correspondence between them.
State v. Deitering, supra.
The opinion goes on to explain that
Deitering tried to enter into evidence a video recording that he says was filmed in April 2013 and features him and H.H. having sex. The district court declared the video irrelevant and unduly prejudicial, suspecting that it was being offered only to shame H.H.

We reject as meritless Deitering's argument that the video was relevant to show that his sexual relationship with H.H. lasted until the time of the burglary. Evidence must be relevant to be admissible. Minnesota Rules of Evidence 402. Evidence is relevant if it has `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ Deitering tried to enter into evidence a video recording that he says was filmed in April 2013 and features him and H.H. having sex. The district court declared the video irrelevant and unduly prejudicial, suspecting that it was being offered only to shame H.H.

We reject as meritless Deitering's argument that the video was relevant to show that his sexual relationship with H.H. lasted until the time of the burglary. Evidence must be relevant to be admissible. Minnesota Rules of Evidence 402. Evidence is relevant if it has `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’  Minnesota Rules of Evidence 401.  Even relevant evidence may be excluded if it is merely cumulative. Minnesota Rules of Evidence 403. Both parties agreed that Deitering and H.H. were previously engaged in a sexual relationship, so the video is either irrelevant or unnecessarily cumulative on that fact. And it is similarly irrelevant or unnecessarily cumulative as to when the sexual relationship ended, because the district court found that the relationship ended at least by July 2013, which is three months after Deitering claims the video was recorded. The recording adds nothing to the fact that the district court already found—that Deitering and H.H. had a sexual relationship that ended before the burglary.
State v. Deitering, supra.
The Court of Appeals then took up the issue of emails between H.H. and Deitering, explaining that the
district court ruled that certain emails were hearsay and irrelevant. Deitering and H.H. exchanged the emails between January and March 2013, discussing marital issues, health problems, and their relationship. Deitering argues that admitting the emails would have allowed him to impeach H.H.'s testimony as to when their relationship ended. H.H. testified that her affair with Deitering ended about a year and a half before the August 2013 burglary, but then she conceded that they might have had sex after that.

A prior inconsistent statement that was not delivered under oath may be admitted for the purpose of impeachment. State v. Thames, 599 N.W.2d 122, 125 (Minnesota Supreme Court 1999); Minnesota Rule of Evidence 613.  We have reviewed the emails and do not find anything in them clearly inconsistent with H.H.'s trial testimony or with the district court's findings. The email exchange, like the sex tape, occurred during a time that the district court found the relationship to be still ongoing. The emails were therefore irrelevant or needlessly cumulative.
State v. Deitering, supra.
The Court of Appeals then took up another argument Deitering made in his appeal, which focused on the fact that the
district court refused to admit a series of undated photographs showing H.H. wearing bras and panties, rejecting Deitering's contention that the photographs supported the allegedly planned clothing-cut-out photoshoot. See Minnesota Rule of Evidence 404(b). The district court found the photographs irrelevant and unduly prejudicial. We are not persuaded to reverse by Deitering's argument that the photographs depict the `exact situation’ of his proffered defense that he and H.H. were planning a `sexy’ photoshoot involving garments with the breast and crotch areas excised. The proffered photographs do not include underwear with cutouts. They do not make his argument any stronger, and they certainly do not depict the `exact situation’ as the supposedly planned photoshoot that he described. The district court did not abuse its discretion by excluding the photos.
State v. Deitering, supra.
Finally, the Court of Appeals took up Deitering’s final argument, i.e., that
his trial counsel gave him ineffective assistance by failing to request a hearing on the state's motions in limine to exclude the same evidence that we have just held to be either irrelevant or needlessly cumulative. To succeed on this argument, Deitering must show both that his trial counsel provided objectively deficient representation and that but for the deficiency the evidentiary decision and the trial would have come out differently. See Gates v. State, 398 N.W.2d 558, 561 (Minnesota Court of Appeals 1987).

 Deitering does not explain how a full hearing would have resulted in a different evidentiary decision or how admitting the evidence would have prompted a different verdict. Because the underlying evidence is at best cumulative and would, at most, merely corroborate the fact-findings the district court already made, the second element of the constitutional argument fails. So even assuming Deitering could establish that any minimally competent attorney would have sought and secured a hearing on the motions, he cannot prevail on his ineffective-assistance-of-counsel claim.
State v. Deitering, supra.
The Court of Appeals therefore affirmed Dietering’s conviction.  State v. Deitering, supra.


Wednesday, August 17, 2016

The Subpoena, the Former Governor and the Emails

This post examines an opinion from the U.S. Court of Appeals for the 9th Circuit:  In re Grand Jury Subpoena, JK-15-029, 2016 WL 3745541 (9th Circuit 2016). The opinion begins by explaining that this
case arises in the midst of an investigation by the federal government into activities of the former Governor of Oregon, John Kitzhaber. A grand jury's subpoena seeks a broad range of information from the State of Oregon, much of which would be available to the general public under Oregon's public records laws. But a wide net is susceptible to snags.

For several years before Kitzhaber left office, copies of his personal emails were archived on Oregon's computer servers. According to Kitzhaber, he was unaware of the archiving of these emails, which include many private details unrelated to his official duties regarding him and his family, as well as private communications with his personal attorneys and with attorneys for the State of Oregon. Because this cache would be turned over to the government under the subpoena, Kitzhaber argues the subpoena is unreasonably broad, as it violates his Fourth Amendment privacy rights and invades his attorney-client privilege. Kitzhaber asserts in particular that the attorney-client privilege protects his communication with attorneys for the State of Oregon regarding issues concerning possible conflicts of interest and ethics violations. The government disclaims any interest in Kitzhaber's communications with his personal attorneys but argues it is otherwise entitled to everything it has requested.
In re Grand Jury Subpoena, supra.
The Court of Appeals went on to explain that John Kitzhaber
served as Governor of Oregon from 1995 until 2003, and again from 2011 until 2015. During this second period in office, Kitzhaber declined to use an official email address provided by the State of Oregon. Instead, he established an account with the commercial email service Gmail, which he used for official business. He requested that the Oregon Department of Administrative Services (DAS) archive on the state's servers emails sent to or from this `official’ Gmail address, and DAS complied.

In addition to his official Gmail account, Kitzhaber had a personal Gmail account and another personal account hosted at att.net. He checked all of these accounts from the same computer. According to a member of the Governor's senior staff, Kitzhaber commonly used his personal addresses `to communicate with senior staff for both personal and state business.’

In February of 2015, Kitzhaber resigned from office, surrounded by controversy over whether he had used his position to benefit his fiancĂ©e, Cylvia Hayes. See Lee van der Voo and Kirk Johnson, Governor Leaves Office in Oregon, Besieged in Crisis, N.Y. Times, Feb. 14, 2015, at A1, http://www.nytimes.com/2015/02/14/us/kitzhaber-resigns-as-governor-of-oregon.html. Shortly before Kitzhaber's resignation, a federal grand jury issued a subpoena to DAS as part of an investigation into the Governor's actions. The subpoena asked DAS to provide `all information, records, and documents’ going back to January 1, 2009, `relating to Kitzhaber, Hayes, and several businesses and other entities. The subpoena also sought `any and all email communications from or to, or regarding’ seventeen individuals, including Kitzhaber and Hayes.
In re Grand Jury Subpoena, supra.
The court went on to explain that,
[a]fter he left office, Kitzhaber intervened in the grand jury proceedings, filing a motion to quash the subpoena in the United States District Court for the District of Oregon. According to Kitzhaber, shortly before resigning he discovered that DAS had been archiving emails to and from his personal email accounts on state servers. Kitzhaber asserted that DAS was not authorized to archive his emails from his personal addresses, which he says contain a great deal of private communication, including privileged communication with his personal attorneys. He challenged the subpoena on the grounds that it was unreasonably broad; a violation of his Fourth Amendment rights; and a violation of attorney-client privilege.

The district court ruled that Kitzhaber's communication with his private attorneys over his personal email addresses was protected by the attorney-client privilege and should not be disclosed to the grand jury. The court directed the government to create a “taint/filter team” to segregate the protected emails from the remaining content generated in response to the subpoena and prevent the protected content from reaching the jury. It ruled against Kitzhaber on every other issue. The court held that third parties to a subpoena, like Kitzhaber here, may not challenge the burden of production required to comply with the subpoena. It also held that any potential Fourth Amendment violation could be raised only in a suppression motion filed if Kitzhaber ends up being indicted and brought to trial. And it held that the attorney-client privilege did not apply to Kitzhaber's communication with government attorneys. The court therefore declined to quash the subpoena. Kitzhaber timely appealed.

In re Grand Jury Subpoena, supra. A Wikipedia entry explains what a motion to quash is designed to accomplish. And Rule 17(c)(2) of the Federal Rules of Criminal Procedure states that “[o]n motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.”
The Court of Appeals began its analysis of the arguments Kitzhaber made on appeal by explaining that Kitzhaber
argues that the district court should have quashed the subpoena in its entirety. We agree.

The subpoena includes emails on his personal accounts that Kitzhaber reasonably expects to remain private, as they do not concern public business. (Like the district court, we proceed on the assumption that Kitzhaber did not authorize DAS to archive the emails from his personal accounts). The subpoena does not exclude these communications or otherwise limit the documents demanded to those within the scope of the government's legitimate concern in conducting a thorough investigation of Kitzhaber's conduct of official business. As a result, the subpoena is unreasonably overbroad—analogous, that is, to a general warrant, which constitutes an unreasonable search under the Fourth Amendment. See U.S. v. Bridges, 344 F.3d 1010, 1916 (U.S. Court of Appeals for the 9th Circuit 2003).  As such, the subpoena, as drafted, may not be enforced.
In re Grand Jury Subpoena, supra.
The Court of Appeals went on to explain that the
`grand jury is, to a degree, an entity independent of the courts, and both the authority and the obligation of the courts to control its processes are limited.’ In re Grand Jury Investigation of Hugle, 754 F.2d 863, 864 (U.S. Court of Appeals for the 9th Circuit). But the normal rule of noninterference is `not absolute.’ In re Grand Jury Investigation of Hugle, supra.  A subpoena is not automatically valid `merely because the Constitution does not prohibit it and the material [it seeks] is not privileged.’ U.S. v. Bergeson, 425 F.3d 1221, 1226 (U.S. Court of Appeals for the 9th Circuit 2005). Rather, courts may `exercise supervisory power over the grand jury where there is a clear potential for a violation of the rights either of a witness or of a nonwitness, if the violation cannot be corrected at a later stage.’ In re Grand Jury Investigation of Hugle, supra.

Here, there is a clear potential for the violation of Kitzhaber's rights. `[A]n order for the production of books and papers may constitute an unreasonable search and seizure within the 4th Amendment.’ Hale v. Hennkel, 201 U.S.43, 76 (1906), abrogated in part on other grounds by Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 68 (1964). This can be true `whether under a search warrant or a subpoena duces tecum.’ Hale v. Henkel, supra. When the government crafts subpoenas, it must `make a reasonable effort to request only those documents that are relevant and non-privileged, consistent with the extent of its knowledge about the matter under investigation.’ In re Horn, 976 F.2d 1314, 1318 (U.S. Court of Appeals for the 9th Circuit 1992).   A subpoena without such tailoring is `equally indefensible as a search warrant would be if couched in similar terms.’ Hale v. Henk, supra. Thus, where a grand jury's subpoena, given its overbreadth, would itself violate the privacy interests protected by the Fourth Amendment, `[j]udicial supervision is properly exercised in such cases to prevent the wrong before it occurs.’ U.S. v. Calandra, 414 U.S. 338, 346 (1974).  

The district court concluded otherwise. It was of the view that it was obliged to enforce the subpoena as long as there was a `reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation,’ citing U.S. v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991).
In re Grand Jury Subpoena, supra.
The opinion then goes on to explain that
R. Enterprises held that where `a subpoena is challenged on relevancy grounds, the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation. U.S. v. R. Enterprises, Inc., supra.  But R. Enterprises does not suggest that by self-defining the `category of materials’ sought as broadly as possible, the government insulates its subpoenas from review. Otherwise, when the government seeks all material of a broad generic type that a party possesses—every piece of paper in a corporation's files, for example, or, as in this case, all of an individual's emails over a several year period—a reasonable possibility that some of that material would be relevant would suffice to validate the subpoena, no matter how vast its sweep, and no matter the degree to which the subpoena would reach private material of no pertinence to the grand jury's inquiry.

The reference to `category of materials’ in U.S. v. R. Enterprises, Inc., supra, confirms that subpoenas typically designate for production a discrete `category’ of materials. Where one does not, and there is a broad, identifiable `category of materials the Government seeks [that] will [not] produce information relevant to the general subject of the grand jury's investigation,’ U.S. v. R. Enterprises, Inc., supra,—here, for example, material about Governor Kitzhaber's children or medical care—the subpoena is unreasonably broad.

Our decisions in In re Horn, supra  and United States v. Bergeson, supra, confirm this understanding of R. Enterprises. They make clear that a subpoena may be quashed when no effort is made to tailor the request to the investigation, even if some fraction of the material the subpoena seeks is relevant. See United States v. Bergeson, supra; In re Horn, supra.  
In re Grand Jury Subpoena, supra.
The Court of Appeals went on to explain that the
government's subpoena in this case is much broader than the subpoena we rejected in In re Horn, supra.  In Horn, the subpoena at issue sought all information regarding the financial transactions of a lawyer's clients. In re Horn, supra.  Here, there is no subject matter limitation whatsoever on the documents sought. The subpoena seeks, among other things, all of Kitzhaber's e-mail communication over several years, with no limitation on the content, senders, or recipients of the e-mails. As Kitzhaber points out, the subpoena would net, for instance, `emails between [himself] and his son's physicians or teachers.’

Notably, the government attached to the subpoena a non-exhaustive list of the kinds of documents that might be included in the data it sought. But the subpoena explicitly did not limit itself to that material, so that list did not narrow the scope of the subpoena itself. At the same time, by indicating the government's particular investigatory goals, the list confirms that a narrowing of the subpoena in accord with that list would not compromise the investigation.

Because the government did not in any manner tailor its request to relevant material, the subpoena was unreasonably broad and within the district court's supervisory power, and responsibility, to quash.
In re Grand Jury Subpoena, supra.
The Court of Appeals went on to explain that
[w]e have previously held that email should be treated like physical mail for purposes of determining whether an individual has a reasonable expectation of privacy in its content. U.S. v. Forrester, 512 F.3e 500, 511 (U.S. Court of Appeals for the 9th Circuit 2008). While an email's addressing information is visible to third parties and therefore not protected, emails also contain `content that the sender presumes will be read only by the intended recipient.’ U.S. v. Forrester, supra.

We have also noted that electronic storage devices such as laptops `contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails,’ and held that `[t]hese records are expected to be kept private and this expectation is one that society is prepared to recognize as reasonable.’ U.S. v. Cotterman, 709 F.3d 952, 964 (U.S. Court of Appeals for the 9th Circuit). The Supreme Court, too, has emphasized recently the ability of digital troves to contain `[t]he sum of an individual's private life,’ and the corresponding need for our jurisprudence to reflect the changing technological landscape. Riley v. California, 134 S.Ct. 2473 (2014). Personal email can, and often does, contain all the information once found in the `papers and effects”’ mentioned explicitly in the Fourth Amendment. Kitzhaber thus has a strong claim to a legitimate expectation of privacy in his personal email, given the private information it likely contains.
In re Grand Jury Subpoena, supra.
The Court of Appeals went on to explain that the Oregon Department of Administrative Services' (DAS)
current possession of the emails does not vitiate that claim. `[T]he Fourth Amendment protects people, not places.’ U.S. v. Davis, 332 F.3d 1163, 1167 (U.S. Court of Appeals for the 9th Circuit 2003) (citation omitted).  Kitzhaber's interests therefore attach to “the thing[s] seized,” not merely to the place where they are located. U.S. v. Davis, supra. As we held in Forrester, emails are to be treated as closed, addressed packages for expectation-of-privacy purposes. U.S. v. Forrester, supra. And a person `does not forfeit [his] expectation of privacy merely because [a private] container is located in a place that is not controlled exclusively by the container's owner.’ U.S. v. Monghur, 588 F.3d 975, 978 (U.S. Court of Appeals for the 9th Circuit 2009).  

The Fourth Amendment bars searches of closed containers even if they are not in their owners' possession. U.S. v. Davis, supra; U.S. v. Fultz, 146 F.3d 1102, 1105 (U.S. Court of Appeals for the 9th Circuit 1998). Where a third party comes into possession of a closed container accidentally, the Fourth Amendment bars the government from examining the contents of the container beyond `the extent that [it] had already been examined by third parties.’ Walter v. U.S. 447 U.S.649, 656 (1980) (plurality opinion). Kitzhaber asserts, and the government does not dispute, that he and DAS came to an agreement that his personal email accounts would be segregated on Oregon's servers and not distributed `without a court order or other legal process.’ There is no evidence in the record, and no assertion made by the government, that DAS or anyone else has opened or examined the contents of the email on Kitzhaber's personal accounts. Kitzhaber's claim to a reasonable expectation of privacy in the contents of the emails is therefore not undermined by Oregon's possession of the emails.
In re Grand Jury Subpoena, supra.
The Court of Appeals, though, also found that
Kitzhaber's privacy claim lacks force, however, with respect to any emails transmitted through his personal email accounts but concerning official business. Oregon's public records law, OregonRevised Statutes § 192.410 et seq., which applies to `every state officer,” grants a general right to the public to inspect “any writing that contains information relating to the conduct of the public's business.’ §§ 192.410, 192.420. Kitzhaber has acknowledged that he instructed DAS to archive emails in his `official’ Gmail account to comply with public records laws. The government has also offered evidence that the State of Oregon's training for employees informs them that emails on personal accounts regarding state business are not exempt from public records laws.
In re Grand Jury Subpoena, supra.
The opinion went on to explain that
[c]onsequently, whether or not Kitzhaber had a subjective expectation of privacy as to emails on his private accounts relating to official business, any such expectation is not a reasonable one. `[C]ompliance with state open records laws . . . bear[s] on the legitimacy of a[ ] [public] employee's privacy expectation.’ City of Ontario, Cal. v. Quon, 560 U.S.746 (2010).  While the existence of an open records law may not be conclusive in all cases, it is conclusive here. The public interest in open and transparent governance is at its zenith when it comes to the state's top elected official and his communication with senior advisers regarding official business. Even if state officials expect to evade those laws through the use of personal email addresses, that expectation is not a protected privacy interest.

Kitzhaber therefore had a reasonable expectation of privacy regarding emails on his personal accounts unrelated to official business. Because the subpoena was in no way tailored to the investigations being conducted, it included those purely private emails. Again, the district court had the supervisory power, and responsibility, to quash the vastly overbroad subpoena, and thereby prevent the trampling of Kitzhaber's reasonable expectation of privacy.
In re Grand Jury Subpoena, supra.
For these and other reasons, the Court of Appeals reversed the lower court’s ruling and remanded the case “for further proceedings consistent with this opinion.” In re Grand Jury Subpoena, supra.
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