Sixth Circuit Rules on Probable Cause to Search Home Computers

Today in Peffer v. Stephens, 2018 U.S. App. LEXIS 1049 (6th Cir.), the United States Court of Appeals for the Sixth Circuit affirmed a decision of a district court holding that a warrant to search the home of a person suspected of committing a crime using his computer was supported by probable cause. The lower court granted a Michigan police sergeant summary judgment in a 42 U.S.C. 1983 claim based on the failure of the warrant to show probable cause for the search because it did not show a connection between the crime and the home.

Peffer had been suspected of the crime of officer impersonation and witness intimidation by sending letters to a local school and child services department The warrant to search his home permitted the search and seizure of, ""records or documents which were created,modified . . . or interpreted by a computer" and more specifically identified to include certain computer hardware, computer-related equipment, peripheral and storage devices, software and other items used for computer operation, communication, encryption, and access, as well as electronic mail ("e-mail") and other electronically stored communications." [id. at 7]. Criminal charges were not filed against Peffer after the seizure of a laptop, two computer towers and other items.

There was evidence that the letters were computer generated. Judge Bush noted it was a question of first impression in the Sixth Circuit whether or not the nature of a computer meant that its use in a crime led to an inference that evidence of a crime was likely to found in a suspect's residence. An assumption can be made that a computer is in the home of its owner if an affidavit does not indicate otherwise. "If an affidavit presents probable cause to believe that a crime has been committed by means of an object,however, a magistrate may presume that there is a nexus between that object and the suspect's current residence, unless the affidavit contains facts that may rebut that presumption." [Id. at 30].

The affidavit's failure to provide evidence that the suspect owned a computer was immaterial because, "the averment that he used one in the commission of a crime is sufficient to create the presumption that it would be found at his residence." [Id. at 36].

eDiscovery Assistant

The Tip of the Night for June 14, 2015, profiled the electronic discovery case law database of K&L Gates. There's another alternative called eDiscovery Assistant, which has a database of more than 3500 case summaries pertaining to electronic discovery issues, and compiles federal and state rules addressing electronic discovery.

This seems like a very well designed site, but the cost is high - about $200 per month. With the K&L Gates available online for free, and most firms having access to Lexis and/or Westlaw case law databases, it may be an expense that's hard to justify.

App Data and the Hearsay Business Records Exception

A decision by the Court of Appeals of Michigan on January 9, 2018, People v. Vancallis, 2018 Mich. App. LEXIS 35, gives insight into the forensics capabilities of the FBI, and also establishes a precedent by an intermediate appelate court on the use of app data as evidence. The defendant, James Vancallis, was charged with the murder of a young girl who was killed while walking her dog. A man on a motorcycle was seen in the area of a trail where the victim was found murdered. A FBI special agent was able to determine that the victim's phone was moving at around 4 miles per hour, and then suddenly accelerated to 22 miles per hour. Vancallis owned a motorcycle. A jury found Vancalls guilty of murder and kidnapping.

The special agent was a member of CART - the bureau's computer analysis response team. He found a screenshot on the phone of global position satellite that was generated by a fitness app. While the data from the app was in a proprietary format, the agent was able to get the developer to provide, "3,000 data points for latitude, longitude,date, time and speed". This data allowed the agent to create a Google Earth animation tracking the phone's location around the time of the murder. The data provided by the developer was loaded into a test iPhone with the fitness app installed in order to confirm that the data files were accurate.

The appeal argued that the defendant had ineffective assistance of counsel because there was no objection to the Google Earth animation was hearsay. The Court of Appeals rejected this argument because defense counsel had its own expert review the data, and because it determined the data was not inadmissible hearsay, but instead demonstrative evidence. It also found that even if the animation could not be considered demonstrative evidence it would be covered by the records exception to hearsay . The data compiled by the developer of the app constituted 'records of regularly conducted business activity' . "The data that was provided was made by a person with knowledge of the matter, made at or near the time of the occurrence. Sports Tracking Technologies, Inc. made, kept and maintained the data in the ordinary course of regularly conducted business activity. We reject defendant's claim that the animation was testimonial in nature when Zentz, who created the animation from the underlying data, testified at trial." [Id. at 15].