Davis v. Gracey
| Citation | 111 F.3d 1472 |
| Decision Date | 21 April 1997 |
| Docket Number | No. 95-6245,95-6245 |
| Parties | , 65 USLW 2727, 97 CJ C.A.R. 588 Anthony A. DAVIS, individually and doing business as Mid-America Digital Publishing Company, doing business as Oklahoma Information Exchange; Gayla Davis, and John Burton, individuals; TSI Telecommunication Specialists, Inc., an Oklahoma corporation, Plaintiffs-Appellants, v. Anthony GRACEY, Mark Wenthold, and Gregory Taylor, Officers in their official capacities as Oklahoma City Police Officers and as individuals, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Micheal Salem, Salem Law Offices, Norman, OK (William R. Holmes, Norman, OK, with him on the brief), for Plaintiffs-Appellants.
Stacey L. Haws Felkner, Oklahoma City, OK (Robert E. Manchester and Susan A. Knight, with her on the brief), of Manchester & Pignato, Oklahoma City, OK, for Defendants-Appellees.
Before SEYMOUR, Chief Judge, BARRETT and LIVELY, * Senior Circuit Judges.
Anthony Davis operated a large computer bulletin board system in Oklahoma City. After Mr. Davis sold obscene CD-ROMs to an undercover officer, a warrant was obtained to search his business premises. During the execution of the warrant, police officers determined pornographic CD-ROM files could be accessed through the bulletin board and seized the computer equipment used to operate it. Following his criminal conviction and civil forfeiture of the computer equipment in state court proceedings, Mr. Davis, his related businesses, and several users of electronic mail (e-mail) on his bulletin board brought this action in federal court against the officers who executed the search, alleging that the seizure of the computer equipment, and e-mail and software stored on the system, violated several constitutional and statutory provisions. The district court granted summary judgment for the officers. We affirm.
Mr. Davis operated the Oklahoma Information Exchange, a computer bulletin board system. Computer users could subscribe to the bulletin board, dial in using a modem, then use the system to send and receive messages via e-mail, access the Internet, utilize on-line databases, and download or upload software. According to Mr. Davis, approximately 2000 subscribers used his bulletin board.
In April 1993, the Oklahoma City Police Department received an anonymous tip that Mr. Davis was selling obscene CD-ROMs from his business premises. On three different occasions, an undercover officer purchased "adult" CD-ROMs directly from Mr. Davis. During one of these visits, Mr. Davis mentioned to the officer that he operated a bulletin board, and that similar pornographic images could be accessed by dialing in to the bulletin board. The officer never actually saw the computer equipment used to operate the bulletin board. In his affidavit for a search warrant, the officer did not mention the possibility that a bulletin board was being operated on the premises, or the possibility that this bulletin board could be used to distribute or display pornographic images. A judge determined that two CD-ROMs acquired from Mr. Davis were obscene, and issued a warrant to search his business premises for pornographic CD-ROMs and "equipment, order materials, papers, membership lists and other paraphernalia pertaining to the distribution or display of pornographic material in violation of state obscenity laws set forth in O.S. Title 21-1024.1." Aplee. supp. app., vol. I at 45.
Several officers, including defendants Anthony Gracey and Mark Wenthold, conducted the search at Mr. Davis' business. During the search, the officers discovered the bulletin board. Attached to it were CD-ROM drives housing sixteen CD-ROM discs, including four discs identified by Mr. Davis to the officers as containing pornographic material. The officers believed from the configuration of the bulletin board computers that the files accessible via the bulletin board included files from the four pornographic CD-ROMs. The officers called for assistance from officer Gregory Taylor, who was reputed to be more knowledgeable about computers than they were. He confirmed that the pornographic CD-ROMs could be accessed via the bulletin board. The officers seized the computer equipment used to operate the bulletin board, including two computers, as well as monitors, keyboards, modems, and CD-ROM drives and changers. The seizure of this computer equipment is the subject of the federal proceedings in this case.
At the time of the seizure, the computer system contained approximately 150,000 e-mail messages in electronic storage, some of which had not yet been retrieved by the intended recipients. The hard drive of the computer system also contained approximately 500 megabytes of software which had been uploaded onto the bulletin board by individual subscribers. Mr. Davis intended to republish this "shareware" on a CD-ROM for sale to the public. Mr. Davis had previously published three such compilations of shareware on CD-ROM.
Mr. Davis was convicted of several counts of possessing and distributing obscenity, and of using a computer to violate Oklahoma statutes. His conviction was upheld on appeal. Davis v. State, 916 P.2d 251, 254 (Okla.Crim.App.1996). The State also obtained civil forfeiture of the computer equipment used to operate the bulletin board. State ex rel. Macy v. One (1) Pioneer CD-ROM Changer, 891 P.2d 600, 607 (Okla.Ct.App.1994). Law enforcement officials have apparently disclaimed any interest in the materials in electronic storage, either for purposes of evidence or forfeiture.
Mr. Davis, Gayla Davis, John Burton, and TSI Telecommunications Specialists, Inc., 1 filed the instant suit in federal court alleging claims under 42 U.S.C. § 1983 for violation of First and Fourth Amendment rights, and under the Privacy Protection Act (PPA), 42 U.S.C. §§ 2000aa--2000aa-12, and the Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2510-2711. The crux of the complaint is that the seizure of the equipment was illegal because the warrant was not sufficiently particular and because the seized computer system contained e-mail intended for private subscribers to the bulletin board, and software intended for future publication by Mr. Davis. Plaintiffs contend these stored electronic materials were outside the scope of the warrant, and are protected by several congressional enactments.
Original defendants in this suit included the City of Oklahoma City, the Oklahoma City Police Department, and several officers of the Oklahoma City Police Department who executed the search and seizure of the computer equipment. The municipal entities were dismissed from the case. Plaintiffs do not dispute that their only remaining claims are against the officers in their individual capacities. The district court entered summary judgment for the officers, holding that their reliance on a valid warrant entitled them to qualified immunity on the constitutional claims, and entitled them to the statutory good faith defenses contained in the PPA and ECPA.
At the outset, we must note the narrow scope of our consideration of the issues before us. 2 We address here plaintiffs' arguments only to the extent they concern the legality of the initial seizure of the computer equipment and the electronic material stored therein. Plaintiffs make repeated references in their briefs to the retention by law enforcement authorities of the stored electronic material, and the failure of such authorities to copy or return the material when requested to do so. 3 A failure timely to return seized material which is without evidentiary value and which is not subject to forfeiture may state a constitutional or statutory claim. Cf. FED.R.CRIM.P. 41 advisory committee's note to 1989 Amendment ( that even when property is lawfully seized, "if the United States' legitimate interests can be satisfied even if the property is returned, continued retention would become unreasonable"); In re Search of Kitty's East, 905 F.2d 1367, 1375 (10th Cir.1990) (same). However, plaintiffs have made no allegation that defendant officers are persons with authority to return materials once seized. The City and the Police Department have been dismissed from this action. We therefore do not consider any potential violations of plaintiffs' constitutional or statutory rights that derive from failure or delay in returning or copying materials once seized. We address only those claims arising out of the initial seizure of the computer equipment in question.
The officers assert that plaintiffs' claims are barred by collateral estoppel and res judicata arising out of the state court criminal and forfeiture proceedings. We "must give the same preclusive effect to state court judgments that those judgments would be given in the courts of the state in which the judgments were rendered." Comanche Indian Tribe of Oklahoma v. Hovis, 53 F.3d 298, 302 (10th Cir.1995). Collateral estoppel only applies to issues actually and necessarily determined in the prior proceeding. Laws v. Fisher, 513 P.2d 876, 877 (Okla.1973). The officers concede the earlier proceedings in state court did not resolve the statutory claims raised by plaintiffs. The Oklahoma Court of Criminal Appeals did not address the issues. The Oklahoma Court of Appeals addressing the civil forfeiture declined to determine if a claim was stated under the ECPA or PPA, holding only that if such claims existed they would not affect the legality of the computer equipment forfeiture. One (1) Pioneer CD-ROM Changer, 891 P.2d at 605-07. Moreover, collateral estoppel applies only to persons who were parties or in privity with parties to the prior proceeding. Laws, 513 P.2d at 877. Without deciding if other plaintiffs are estopped from asserting their various claims, at a minimum we are not persuaded the officers have established that Mr. Burton is in privity with Mr. Davis....
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