State v. Riley
| Decision Date | 04 March 1993 |
| Docket Number | No. 59245-4,59245-4 |
| Citation | 846 P.2d 1365,121 Wn.2d 22 |
| Parties | STATE of Washington, Respondent, v. Joseph N. RILEY, Appellant. |
| Court | Washington Supreme Court |
C. Danny Clem, Pros. Atty., and Warren K. Sharpe, Deputy Pros. Atty., Port Orchard, for respondent.
Joseph Riley was convicted of three counts of computer trespass and four counts of possession of a stolen access device after he used his home computer to obtain long distance telephone access codes from telephone company computers. We hold that the search warrant used to obtain the physical evidence underlying most of Riley's convictions was invalid, and we therefore reverse those convictions. We affirm the remaining convictions, which are based on evidence independent from the invalid search warrant.
Northwest Telco Corporation ("Telco") is a company that provides long distance telephone service. Telco's customers dial a publicly available general access number, then enter an individualized 6-digit access code and the long distance number they wish to call. A computer at Telco's central location then places the call and charges it to the account corresponding to the entered 6-digit code.
On January 9, 1990, Cal Edwards, Director of Engineering at Telco, observed that Telco's general access number was being dialed at regular intervals of approximately 40 seconds. After each dialing, a different 6-digit number was entered, followed by a certain long distance number. Edwards observed similar activity on January 10, between 10 p.m. and 6 a.m. From his past experience, Edwards recognized this activity as characteristic of that of a "computer hacker" attempting to obtain the individualized 6-digit access codes of Telco's customers. Edwards surmised that the hacker was using a computer and modem to dial Telco's general access number, a randomly selected 6-digit number, and a long distance number. Then, by recording which 6-digit numbers enabled the On January 11, Edwards contacted Toni Ames, a U.S. West security investigator, and requested her assistance in exposing the hacker. In response, Ames established a line trap, which is a device that traces telephone calls to their source. By 3 p.m., Ames had traced the repeated dialing to the home of Joseph Riley in Silverdale, Washington. The dialing continued until 6 a.m. on January 12.
long [846 P.2d 1368] distance call to be put through successfully, the hacker was able to obtain the valid individual access codes of Telco's customers. Thehacker could then use those codes fraudulently to make long distance calls that would be charged improperly to Telco's paying customers
Ames contacted the Kitsap County Prosecutor's Office on January 12, 1990, and was directed to Investigator Richard Kitchen. Kitchen filed an affidavit for a search warrant after interviewing both Ames and Edwards. The affidavit stated that hackers program computers to conduct the repeated dialing of random numbers and, after discovering valid codes, often transfer them to notebooks, ledgers, or lists. Because the telephone company's system that processes long distance calls is a computer "switch", the crime listed in the affidavit was computer trespass. That day, Kitchen obtained a search warrant authorizing the seizure of
any fruits, instrumentalities and/or evidence of a crime, to-wit:
notes, records, lists, ledgers, information stored on hard or floppy discs, personal computers, modems, monitors, speed dialers, touchtone telephones, electronic calculator, electronic notebooks or any electronic recording device.
The warrant did not state the crime of computer trespass, or any other crime.
On January 16, Kitchen arrived at Riley's house with the search warrant. Prior to executing the search, Kitchen informed Riley of his rights, although Riley was not arrested. Kitchen then questioned Riley about the occupancy of the house to ascertain which occupant was responsible for the hacking. According to Kitchen, "[Riley] stated that his children did not have access to the modem and that he was Evidence discovered during the subsequent search included four stolen access codes, a computer program that conducted the rapid repeated dialing and entry of random 6-digit numbers, handwritten notes detailing Riley's hacking activity, and a how-to-hack manual.
the one that used the computer and modem." Verbatim Report of Proceedings, at 88. Riley then admitted having attempted to obtain Telco customer access codes. Riley told Kitchen that he had tried to obtain the access codes for 3 days in the past week, but that he was not certain of the specific dates. This was consistent with the telephone company's observation of hacking activity on January 9, 10 and 11. Riley is also reported to have said that had he been successful in discovering valid access codes, he might have used the codes to make personal long distance telephone calls
Riley was later charged with and convicted of two counts of computer trespass against Telco, one count of computer trespass against another long distance telephone company, ITT Metromedia, and four counts of possession of a stolen access device. The conditions of Riley's sentence included that he not associate with hackers, communicate with computer bulletin board services, or possess a computer.
Riley appealed, and we accepted certification from the Court of Appeals.
We first consider whether the search warrant used to search Riley's home was invalid. The trial court ruled that it was valid, despite the fact that it neither specified what crimes were being investigated nor otherwise limited the scope of the search by reference to particular items to be seized. We disagree. A search warrant that fails to specify the crime under investigation without otherwise limiting the items that may be seized violates the particularity requirement of the Fourth Amendment.
The Fourth Amendment mandates that warrants describe with particularity the things to be seized. 1 State v. Perrone, 119 Wash.2d 538, 545, 834 P.2d 611 (1992). When the nature of the underlying offense precludes a descriptive itemization, generic classifications such as lists are acceptable. Perrone, at 547, 834 P.2d 611; United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986). In such cases, the search must be circumscribed by reference to the crime under investigation; otherwise, the warrant will fail for lack of particularity. Spilotro, at 964. For example, in United States v. Cardwell, 680 F.2d 75, 77-78 (9th Cir.1982), the court declared overbroad and invalid a warrant allowing seizure of any items that were the "fruits, instrumentalities and evidence" of violations of the general tax evasion statute. In Center Art Galleries--Hawaii, Inc. v. United States, 875 F.2d 747, 750 (9th Cir.1989), a warrant authorizing the seizure of evidence of violations of federal criminal law that did not describe the specific crimes being investigated was declared illegal. In Spilotro, the court struck down as overbroad a warrant that permitted the seizure of evidence of a violation of any one of 13 federal statutes.
In the present case, the warrant used to search Riley's home permitted the seizure of broad categories of material and was not limited by reference to any specific criminal activity. We therefore hold that the warrant was overbroad and invalid.
The State contends that the warrant is valid because the executing officer, Investigator Kitchen, had personal knowledge of the crime being investigated. It is true that the executing officer's personal knowledge of the place to be searched may "cure" minor, technical defects in the warrant's place description. 2 W. LaFave, Search and Seizure § 4.5(a), at 209-10 (2d ed. 1987). For example, the officer's knowledge of the place to be searched will excuse the transposition of address numbers. State v. Smith, 39 Wash.App.
642, 648-49, 694 P.2d 660 (1984), review denied, 103 Wash.2d 1034 (1985). However, where the inadequacy arises not in the warrant's description of the place to be searched but rather in the things to be seized, the officer's personal knowledge of the crime may not cure the defect. See generally W. LaFave, §§ 4.5-4.6 (discussing the particularity requirement in relation to a warrant's description of the places to be searched and the things to be seized). This is so because the purpose of a warrant is not only to limit the executing officer's discretion, but to inform the person subject to the search what items the officer may seize. United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir.1986)
For the same reason, the State's assertion that the search was not executed overbroadly is irrelevant. Because the person whose home is searched has the right to know what items may be seized, an overbroad warrant is invalid whether or not the executing officer abused his discretion. See In re Lafayette Academy, Inc., 610 F.2d 1, 5 (1st Cir.1979).
The State also contends that the warrant's overbreadth is cured because the affidavit limited the search to evidence of the particular crime of computer trespass. However, an affidavit may only cure an overbroad warrant where the affidavit and the search warrant are physically attached, and the warrant expressly refers to the affidavit and incorporates it with "suitable words of reference". Bloom v. State, 283 So.2d 134, 136 (Fla.Dist.Ct.App.1973). See generally W. LaFave, § 4.6(a), at 241 (). If the affidavit is not attached to the warrant and expressly incorporated therein, it may not cure generalities in the warrant even if some of the executing officers have copies of the affidavit. Center Art Galleries, at 750; Spilotro, at 967; State v. Kelley, 52 Wash.App. 581, 762 P.2d 20 (1988) (...
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