255 F.3d 325 (6th Cir. 2001), 99-4115, Guest v Leis, Jr.

Docket Nº:99-4115, 99-4176
Citation:255 F.3d 325
Party Name:Steven Guest; Denise B. Kelley; Nelda Sturgill; Deborah Cummings; Randy Bowling; Richard E. Kramer, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Simon L. Leis, Jr.; Hamilton County Sheriff's Department; Hamilton County Regional Electronic Computer Intelligence Task Force; Dale Menkhaus; James Nerlinger; David
Case Date:July 02, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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255 F.3d 325 (6th Cir. 2001)

Steven Guest; Denise B. Kelley; Nelda Sturgill; Deborah Cummings; Randy Bowling; Richard E. Kramer, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,

v.

Simon L. Leis, Jr.; Hamilton County Sheriff's Department; Hamilton County Regional Electronic Computer Intelligence Task Force; Dale Menkhaus; James Nerlinger; David L. Ausdenmoore, Defendants-Appellees.

Michael O'Brien; Noah O'Brien; Anthony Blackmon; Randall Dodds; Darrell McAvoy; Brian Kaeppner, Plaintiffs-Appellants,

v.

Simon L. Leis, Jr.; Hamilton County Sheriff's Department; Hamilton County Regional Electronic Computer Intelligence Task Force; Dale Menkhaus; James Nerlinger; David L. Ausdenmoore, Defendants-Appellees.

Nos. 99-4115, 99-4176

United States Court of Appeals, Sixth Circuit

July 2, 2001

Argued: March 15, 2001

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati, Nos. 95-00673; 96-00236, Herman J. Weber, District Judge.

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Scott T. Greenwood, GREENWOOD & ASSOCIATES, Cincinnati, Ohio, Peter D. Kennedy, GEORGE & DONALDSON, LLP, Austin, Texas, for Appellants.

John W. Hust, Michael E. Maundrell, Lawrence Edward Barbiere, SCHROEDER, MAUNDRELL, BARBIERE & POWERS, Cincinnati, Ohio, Hugh Owen Frost, II, Cincinnati, Ohio, Donald E. Hardin, HARDIN, LEFTON, LAZARUS & MARKS, LLC, Cincinnati, Ohio, for Appellees.

Before: KEITH, NORRIS, and DAUGHTREY, Circuit Judges.

OPINION

ALAN E. NORRIS, Circuit Judge.

In 1995, the Hamilton County, Ohio, Regional Electronic Computer Intelligence

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Task Force (RECI) was investigating on-line obscenity and seized two computer bulletin board systems. The first system seized was the Cincinnati Computer Connection Bulletin Board System (CCC BBS). Several users of the system filed a class action on behalf of subscribers against RECI, the sheriff, and his department alleging violations of the First and Fourth Amendments, the Electronic Communications Privacy Act (ECPA), and the Privacy Protection Act (PPA), and setting out state law and common law claims. The second system seized in the same general investigation was the Spanish Inquisition Bulletin Board System (SI BBS). The system's users, operator, and computer owner brought suit against the same defendants alleging the same violations as in the CCC BBS suit.

The district court granted summary judgment for defendants in each case, and plaintiffs appeal. 1 We affirm.

I. Background

A. Cincinnati Computer Connection Bulletin Board System

In early 1995, there was a complaint lodged with the Hamilton County Sheriff's Department about on-line obscenity, and RECI, a division of the sheriff's department, began investigating several electronic bulletin board systems, including the CCC BBS. The CCC BBS computers were operated by Robert Emerson in Union Township (Clermont County), Ohio. 2 The system, according to plaintiffs, included "thousands of subscribers from the Greater Cincinnati area, the United States and even overseas." Guest Brief at 5. Users could, with a password, send e-mail to subscribers or to others on the internet. They could also participate in chat room conversations, on-line games, and conferences, where they could post or read messages on many topics, and they could download files such as computer programs and pictures.

RECI officers assumed an undercover identity and obtained access to the adult part of the bulletin board system, where they downloaded sample images. A detective presented more than one hundred of these images to a Hamilton County municipal court judge, who determined that forty-five of them were obscene. RECI officers then prepared a search warrant, which identified the forty-five obscene images. The affidavit attached to the warrant listed the offenses in question as pandering obscenity (Ohio Rev. Code § 2907.32) and possessing criminal tools (Ohio Rev. Code § 2923.24). RECI showed the warrant to attorneys in the Hamilton County prosecutor's office and edited it after this meeting. The revised warrant authorized the search and seizure of computer hardware, software, financial and computer records, and personal communications, limiting the items searched or seized to those that had been used in the offense. RECI officers then presented the warrant to a Clermont County municipal court judge, who signed the warrant, directing it to the police chief of Union Township, located in Clermont County.

On June 16, 1995, members of RECI and the Union Township Police Department went to the home of Robert Emerson to execute the warrant. The officers asked Emerson to locate the obscene images on

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his system so that they could seize only those files; Emerson denied knowledge of obscene images on the computer and placed a call to his lawyer. While everyone waited for the attorney to return the call, the Union Township officers left the house. Emerson eventually stated that he did not know where the images were on the computer. Several hours after the police's arrival, with still no word from the lawyer, the RECI officers began dismantling the computer system to take it away; Emerson then said that the images were on the large file server. The officers, skeptical of his statement, seized the large and small file servers and took them to the police station.

Deputy Sheriff Ausdenmoore explained the way the computer search proceeded at the station. He said that he used a computer program to locate the forty-five obscene files according to the file names listed in the warrant, and he also searched for unlicenced software. He testified that once he had located the image files, he did not review the rest of the seized property. Plaintiffs, on the other hand, allege that defendants read e-mail on the seized system.

On August 7, 1995, plaintiffs filed this suit against the Hamilton County Sheriff's Department, RECI, Hamilton County Sheriff Simon Leis, and Deputy Sheriffs Dale Menkhaus, James Nerlinger, and David Ausdenmoore. The class of CCC BBS users was certified on July 5, 1996. Sometime during the pendency of the suit, defendants returned the computer equipment to Emerson. On March 31, 1998, the magistrate judge issued a report and recommendation to grant the defendants' motions for summary judgment on the ECPA, Fourth Amendment, and corollary Ohio constitutional claims, and to grant qualified immunity to the individual defendants on the Fourth Amendment claim. The district court adopted the recommendation on September 30, 1996, and later granted defendants' renewed motion for qualified immunity and summary judgment on the remaining claims, dismissing the case on August 5, 1999.

B. Spanish Inquisition Bulletin Board System

The SI BBS was a smaller bulletin board system than the CCC BBS, and it was run by a teenager on his father's home computer. Only one user could log on at a time, and the connection to the internet was more rudimentary than the CCC BBS's connection. The SI BBS included a posted disclaimer on privacy:

Pursuant to the Electronic and Communications Privacy Act of 1986, Title 18 U.S. Code 2510 and following, all users are hereby notified that there are NO provisions for private messages on this board. This is TRUE notwithstanding the fact that the system software indicates to the user that he or she may and can make a message "private." All messages may be read by the SysOp [systems operator] and his assigns[.]

O'Brien Joint Appendix (J.A.) at 655 (Nerlinger Dep. at 237).

The SI BBS investigation began after a parent reported to police that his son and a friend were viewing child pornography. RECI officials interviewed several of the juveniles implicated and analyzed their computers, which disclosed child and adult pornography and files indicating unauthorized access to computer systems. RECI traced the latter files, called HPACV (hacker/phreaker/anarchy/cracking/virus) files, to the SI BBS, but the detectives were unable to gain access to the bulletin board system. They obtained a warrant on the basis of their interviews with the juveniles and examination of their computers, which indicated that the SI BBS was

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used to tap phone lines, recover debit card numbers, acquire pirated software, and download child pornography. The warrant borrowed the CCC BBS warrant language authorizing the seizure of all equipment, documentation, and personal communications that were used in the offenses listed. The supporting affidavit listed three offenses: illegal use of a minor in nudity-oriented material (Ohio Rev. Code §2907.323), unauthorized use of property (Ohio Rev. Code §2913.04), and possessing criminal tools (Ohio Rev. Code §2923.24). The warrant for a search of the owner's home in Butler County was issued by the Butler County Court of Common Pleas and directed to the Police Chief of Union Township. 3

On August 31, 1995, RECI executed the search warrant for the SI BBS. After unsuccessful attempts to contact the computer's owner, defendants removed computer equipment and disks. Union Township police accompanied RECI officials and remained present until RECI officials left the premises.

This lawsuit was filed on March 6, 1996, by four individual members of the SI BBS, the operator of the SI BBS, and the owner of the computer that housed the system. Plaintiffs alleged the same violations of law in this suit as in the CCC BBS suit, but the court denied class certification. On November 5, 1998, the district court granted summary judgment on the ECPA, Fourth Amendment, and corresponding Ohio constitutional claims and found the individual defendants...

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