OFF THE WIRE
Dave Burgess, the Hells Angel who was imprisoned 18 months ago for the interstate transportation of child pornography is still in prison. The Supreme Court declined last month to consider his case. And, his release now depends on the single most important Fourth Amendment case since Terry v Ohio legalized the “Terry Stop” in 1968.
That case is United States versus Comprehensive Drug Testing and this may be the first time your have heard of it. It is too complicated an issue for television because it is impossible to summarize in forty-five seconds of big smiles and perfect hair. The case has also been ignored by all the national newspapers of record. The last judicial decision on this case said that searches of ordinary people’s computers should be conducted with the same restraints now applied to searches of important people’s computers.
In other words the same rules of law should apply to a Hells Angel from Reno that applied to Bernie Madoff. The Obama Administration is fighting that. Many liberals are shocked. Even many conservatives are surprised.
Burgess Dilemma In Brief
Dave Burgess’ current legal problems began when he and another member of the Hells Angels were stopped by a Wyoming Highway Patrol Trooper on the morning of July 24, 2007. The two Angels were going on vacation. They were driving a white motor home to a club national run in Arkansas and they were towing their motorcycles. The putative reason for the traffic stop was that the license plate sticker on the motorcycle trailer was expired.
A mountain of circumstantial evidence proves that the traffic stop was a carefully game-planned pretense to at least harass the two men and probably to also gather “police intelligence” on the Hells Angels Motorcycle Club. The stop also seems to have been connected to a decades-long vendetta by various law enforcement agencies against Burgess and members of his immediate and extended family. Burgess is the nephew of Joseph Conforte who opened a legal brothel called the Mustang Ranch in 1971. At the time of the stop he owned a brothel named the Old Bridge Ranch which had been part of the original Mustang Ranch. His father in law, a man named Jay Rigas, was railroaded into a life sentence for dealing drugs in the 1980s.
At the time of the traffic stop Burgess had a clean criminal record. He had been convicted of selling marijuana in the 1980s but the conviction had been overturned on appeal. Federal and local police in northern Nevada have publically acknowledged that they tried to “get” Burgess for years.
Criminal Law For Dummies
If the police are determined to get you they usually can. American criminal law is now a crooked casino game. “Professional policing” is a term that describes a cop’s skill at exploiting arcane legal technicalities to secure a conviction.
The stop of the motor home for a minor traffic violation created a legal pretense for a multi-hour, roadside search. A legal technicality called “reasonable articulable suspicion” is usually met because cops are “law enforcement experts.” In this case, State Trooper Matthew Arnell expertly smelled the odor of “burned marijuana.” It was a legal technicality needed to justify inspection of the motor home by a drug sniffing dog. But it was only a technicality because the dog had, as a matter of established fact, been dispatched to the scene minutes before the actual stop.
The dog “alerted” on something, somewhere outside the motor home. The dog was said to have “alerted on the motor home” because an “expert” dog handler said the dog alerted on the motor home. The “alert” provided “probable cause” that the motor home contained drugs. Eventually, after fumbling through the men’s underwear twice, small amounts of cocaine and marijuana were actually found in the men’s closeted clothes. Technically, if the motor home had been parked, the search could not have been made. Which is why, technically, the men were stopped after travelling a short distance from a diner where they had eaten breakfast.
A detective named Russell Schmitt then entered the case. Schmitt is one of Wyoming’s leading “experts” on illegal drugs and the author of at least two questionable affidavits. Because personal amounts of recreational drugs were actually found in the vacation home of two Hells Angels Schmitt convinced a country judge that the two men were “probably” drug kingpins. That blatantly ridiculous assertion logically led to the even more absurd, but totally legal, assumptions that produced a warrant authorizing the search of Burgess’ personal computer. That search was intended to seek evidence of Burgess’ drug empire. And, it was executed at the official Wyoming repository of child pornography.
When the computer search finally began two months later, the laptop was not found to contain any evidence of drug dealing and the drug charges were dismissed. The search did, however, reveal the largest collection of child pornography ever discovered.
Also on the hard drive were a half dozen sexually provocative images of an adolescent girl Burgess actually knew. Burgess knew the girl because he had a romantic relationship with the girl’s mother and he has always maintained that he does not know how the images got there. The girl’s mother testified at Burgess’ trial that Burgess never had the opportunity to take the photos. It remains a possibility that the girl made and uploaded the images herself.
If Burgess’ defense attorney, James H. Barrett, had ever hired his own expert to conduct a forensic examination of Burgess’ computer hardware the mystery of how the photos got where they were might have been solved. But it never occurred to Barrett to do so.
So four months after the traffic stop Burgess was charged with the morals offense that eventually landed him in prison. He was found guilty by a jury in Cheyenne in July 2008 and he is now in prison in Texas. Both Burgess and the Hells Angels Motorcycle Club were widely smeared in news accounts.
Appeals
Burgess’ defense attorney was, arguably, ineffective. Barrett did, after all, lose the case.
And, Burgess refused to cop a plea. He was one of the three percent of federal defendants who actually insist on a trial. And, predictably his judge was unsympathetic. His prosecutor, a man named James C. Anderson has never lost a child pornography case. The evidence against Burgess largely comprised proving that the defendant owned a legal brothel in Nevada and that he belonged to the Hells Angels. The dozen Derek Zoolanders who formed the jury concluded that those two predicates proved Burgess was, at least in his heart, a pedophile.
After his conviction Burgess hired a new lawyer and appealed everything about his case that could be legally appealed: That he was actually tried for being a Hells Angel and the owner of a bawdy house; that his sentence was illegally harsh; and most importantly that the search of his computer was illegal.
The legality of the computer search is what transforms the Burgess case from just another injustice into a fight for the soul of America. You already know about this fight because it is one story that television news actually will carry. Because it is a simple fight. One side sincerely believes that cops should sort everyone into good and bad boxes. And, after the cops put you in the bad box they no longer need to play fair. The other side argues that the Constitution means what it says.
What Is Reasonable
The Fourth Amendment to the Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In the simplest terms, the Constitution requires that police must search for “something” and not just search for “whatever we can find.” Dave Burgess was stopped, his motor home was tossed and his computer was searched because the cops were looking for whatever they could find. And the rationalization that justifies that is that the police had already shoved Burgess into a box with a “bad” label on the side. Anyone who will speak candidly about the case candidly admits this.
A legal fairy tale was invented to search for evidence of Burgess’ drug empire. It was only a legal fiction. Burgess was never formally accused of selling drugs. Instead, he was convicted, as the judge put it at his sentencing, of being “addicted to child pornography.” And that federal judge inferred that Burgess’ stubborn insistence that he was not “addicted to child pornography” only proved that Burgess was so depraved that he was in denial.
Through The Looking Glass
It is the endlessly recurring nightmare of federal court: The most damning evidence against any defendant is always his insanely depraved insistence on his innocence.
Similarly, “probable cause, supported by Oath or affirmation” that Burgess was a child porn addict could only be asserted after his laptop computer and his portable drives were searched, in the state child porn bank, for evidence that Burgess was a ghetto drug dealer. That search of everything on the drives, 44 days after they were last in Burgess possession, found child pornography. So the search for something every rational person knew would not be there provided probable cause to search for something that had already been found.
Circumstantial evidence very strongly suggests that Burgess was framed of the crime for which he was convicted. The child porn allegation came completely out of left field. It surprised everyone who was even casually acquainted with him. It even seemed to surprise Burgess. There had never been any hint that collecting child pornography was one of Burgess’ passions. As of the beginning of 2010 the only existing connection between Dave Burgess and child pornography is the child pornography “discovered” on his computer in the official Wyoming repository of child pornography.
Which immediately raises several obvious questions. And, the one a lawyer would want to ask first is whether the evidence against Burgess was legally or illegally found.
Two Dull Metaphors
The cynically drawn line between what is and is not a “reasonable search” is usually illustrated with metaphors. And unfortunately, the metaphors are imagined by lawyers, rather than poets, so they never shine. Half the time they hardly even glow. The two metaphors that apply to computer searches are the metaphor of “plain sight” and the metaphor of the “suitcase.”
The “plain sight” metaphor or doctrine says that cops do not have to be blind. If you like to keep your marijuana plants and your machine guns in plain sight in the middle of your living room, and a cop legally enters your home, either by invitation or with a search warrant, and he happens to notice those illegal things which you have placed in plain sight, then your marijuana and your machine guns may be lawfully used as evidence to convict you of their possession.
The metaphor of the “suitcase” is more recent and specious. Simply put, it is the legal doctrine that a personal computer is not really a personal computer but only a kind of suitcase. A customs agent may open the lid of your suitcase and rummage through your belongings and if he spots drugs, guns or undeclared French perfume that evidence of your smuggling is considered to be in “plain sight” and can be used against you.
In the same way, until four months ago, using the suitcase metaphor, federal courts have always held that a policeman may begin a search of your personal computer looking for evidence of any crime. Then, because you may have hidden or encrypted that evidence, the policeman can go through all the millions of pages and trillions of pieces of information on your computer looking for explicit evidence that you are, say, a member of Al Qaeda. And, then if he just happens to find evidence that you cheat on your income taxes he can prosecute you for income tax evasion instead.
Burgess Appeal Denied
The Tenth Circuit Court of Appeals in Denver denied Burgess appeal of his conviction last August 11th. Using the suitcase metaphor, the Appeals Court wrote:
“In discussion of reasonable expectations of privacy we likened a computer to a suitcase or briefcase because a ‘personal computer is often a repository for private information the computer’s owner does not intend to share with others’ and since ‘intimate information is commonly stored on computers, it seems natural that computers should fall into the same category as suitcases, footlockers, or other personal items that command a high degree of privacy….’
“At first blush,” the learned judges continued, “there appears no reason to treat computers differently than, for instance, a locked briefcase in the locked trunk of an automobile. There is a privacy expectation for a briefcase or suitcase, which may contain very personal and confidential papers – particularly when well secured in the trunk of a car. Yet the automobile exception subjects the briefcase to search. So why not the
computer? What is the difference between a file cabinet, suitcase or briefcase and a computer?”
Burgess argued that a computer isn’t a suitcase at all but a “virtual home” and that allowing the police to search computers without any limits was an “extraordinary expansion” that would “destroy a citizen’s expectation of privacy on his computer.”
Many people who own computers would sympathize with his position but the Tenth Circuit just ran away from the issue of limitless computer searches. “The Supreme Court’s Fourth Amendment jurisprudence has not directly addressed this issue,” the Tenth Circuit explained. And, then they snidely added, “one might speculate whether the Supreme Court would treat laptop computers, hard drives, flash drives or even cell phones as it has a briefcase or give those types of devices preferred status because of their unique ability to hold vast amounts of diverse personal information. Interesting as the issue may be, we need not now resolve it because the search of Burgess’ hard drives was authorized by a warrant.”
The Tenth Circuit judges seemed to sink Burgess’ case when they rejected his appeal to them on August 14th. He appealed his conviction to the Supreme Court of the United States on November 4th, 2009 and that court refused to hear the case on December 14th.
Which usually signals the end of the legal line. But not this time.
The BALCO Case
Because at virtually the same moment that the Tenth Circuit was laughing Burgess off, the identical issue of what is and is not a reasonable computer search was being argued in the Ninth Circuit Court of Appeals in California. That case is United States versus Comprehensive Drug Testing. It is about professional baseball players being accused of using anabolic steroids. The case is popularly known as the BALCO case after a California business named the Bay Area Laboratory Cooperative. BALCO’s most famous client was San Francisco Giants slugger Barry Bonds.
But those players who were not Barry Bonds were accused only after a computer search for other records at a drug lab revealed that those other player’s names were in files on a hard drive. No warrant had ever been issued to search for those players names but according to previous rulings on computer searches, any time a computer is legally searched everything on that computer – everything – whether it is being legally searched for or not, is considered to be in “plain sight.”
The Ninth Circuit opinion was issued two weeks after the Tenth Circuit called Burgess’ argument speculative and “interesting” but not worth the bother to actually consider. The author of the Comprehensive Drug Testing opinion was Chief Judge Alex Kozinski. Kozinski is a Reagan appointee and he made it clear that he understands exactly what is happening with computer searches.
What Kozinski Said
“If the government can’t be sure whether data may be concealed, compressed, erased, or booby-trapped without carefully examining the contents of every file… then everything the government chooses to seize will, under this theory, automatically come into plain view,” Kozinski wrote. “Since the government agents ultimately decide how much to actually take, this will create a powerful incentive for them to seize more rather than less…. Let’s take everything back to the lab, have a good look around, and see what we might stumble upon.”
Kozinski went on the say that “the government (must) waive reliance upon the plain view doctrine” and that computer searches should not even be carried out by police, To keep the police from doing mischief, Kozinski said, legal computer searches must be conducted by “specialized personnel or an independent third party.”
If the rules the Ninth Circuit said should govern computer searches had been written two months earlier, Dave Burgess would probably be free today. The Ninth Circuit opinion, clearly makes the kind of search that was used to frame Burgess illegal. Federal police have been trying to “get” Burgess for something, anything, for more than 30 years and they only succeeded after they were allowed to go through every personal, private detail of his life for a month and a half until they found something they might be able to use. What they found to use turned out to be pictures of an adolescent girl that Burgess says he did not even know were there and that could be innocently explained.
It is the exact opposite of how criminal justice is supposed to work. The police are supposed to observe crimes and prosecute the people who commit them. It should not be the job of the police to form an opinion about who they like and do not like and then use their official powers to get the people they do not like. It is the negative of freedom.
The procedures the Ninth Circuit mandated for computer searches are not even new. For years now, third party, so called “filter teams” have been routinely used in white collar investigations to separate what the search warrant names from everything else on a hard drive.
When a banker is accused of embezzlement cops do not search his computer for evidence of that embezzlement. Third party, professional filter teams search the banker’s computer to intentionally limit the search to whatever the warrant specifies. So, one of the biggest problems Burgess had with his defense was that he was a Hells Angel instead of a crooked banker.
When Cats Are Dogs
Based on conventional wisdom you might think a judge appointed by Reagan would side with the police. And, based on the same conventional wisdom you might think the Obama Administration would side with the victims of police oppression. But just the opposite is true.
“Conservative” legal scholars like law professor Orin Kerr have argued that the Ninth Circuit opinion “handcuffs” police but even Kerr gets it. Four years ago in the Harvard Law Review Kerr conceded that the doctrine of plain sight in computer searches “may need to be narrowed or even eliminated in digital evidence cases to ensure that digital warrants that are narrow in theory do not devolve into general warrants in practice.”
Only the Obama Justice Department is actually trying to get the opinion overturned. And, the Justice Department is trying to accomplish that in a suspiciously unconventional way.
What Next
The Ninth Circuit decision limiting computer searches was heard en banc, which is to say that it was heard by a full appeals court of eleven judges. Those judges agreed by a vote of nine to two that those searches should be limited. In most jurisdictions, like the Tenth Circuit Court in Denver, the matter would be already decided.
However the Ninth Circuit in California is special. The Ninth Circuit hears so many cases that it actually has a pool of 27 judges who convene in groups of eleven. And, that is the technicality the Obama Administration hopes to use to overturn reasonable limits on computer searches.
Last November 25th, the Solicitor General of the United States, Elena Kagan, filed a petition to rehear the case super en banc, which is to say before all 27 members of the judges’ pool in the Ninth Circuit. It is an unprecedented request. In every other case in the history of the United States an appeal would be made to the Supreme Court. That court would either agree to hear the case or not. If the highest court does not hear the case Kozinski’s opinion would become the law of the land.
Solicitor Who
The Solicitor General is the United States Attorney who tries cases before the Supreme Court so she understands how the appeals process works. Kagan was appointed by Obama in March, 2009. She has offices in the Supreme Court Building. And, her brief is mostly an argument that the Bill of Rights just isn’t practical in the computer age.
“…before a search commences, case agents will need to spend days, weeks, or even months teaching both the underlying law and the specifics of the particular case to members of a filter team,” she complains. “These concerns will be particularly acute in cases involving national security, because spies and terrorists often receive specialized training about concealing their tracks…. In some districts, computer searches have ground to a complete halt, and, throughout the circuit, investigations have been delayed or impeded.”
The only conceivable explanation of why Kagan is asking for the super rehearing is that she is obviously trying to keep the case away from the current Supreme Court. Because she thinks she will lose. Because she is afraid that the Supreme Court will say out loud that the Constitution means what it says.
Which raises another issue you will never hear an anchorman say out loud: If the Supreme Court affirms Kozinski’s opinion it is very likely that many more people than Dave Burgess will have to be let out of prison. The continuing ambiguity, on the other hand, prevents appeals based on the Ninth Circuit ruling.
And, there is no telling when the line the limits illegal from legal computer searches will be allowed to shine. The week before Christmas, Judge Kozinski wrote “The court is considering whether it should grant panel or full-court rehearing in this matter and will issue an order granting or denying rehearing in due course.”
Open Secret
In the last ten years, the United States Department of Justice has come to rely on “plain sight” computer searches to “get bad guys.” The dirty possibility under the legal rock is that scores of “bad” men have been framed in exactly the same way Dave Burgess was framed.
It is an openly discussed fact that the sort of computer searches conducted on Dave Burgess’ computer equipment are intended to “accidently discover” child pornography. A couple of weeks ago Steve Kalar, the senior federal public defender in San Francisco, told Shane Harris of the National Journal that federal investigators “routinely search seized computers for evidence of…child pornography” on hard drives. “It’s a technological fallacy to say that an agent is tripping through the computer and finds this,” Kalar said.
And that raises what has always been the real question about the Burgess case: If the police were lying about why Burgess was stopped, and why his motor home was searched, and why his computer was searched and what they were really hoping to find when they searched it, then when did they stop lying? Did they stop lying after they planted the evidence they found or before?
In the meantime, Dave Burgess is still in prison.
