Com. v. Kaupp

• Decision Date: 16 January 2009
• Docket Number: SJC-10177
• Parties: COMMONWEALTH v. Harold KAUPP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

899 N.E.2d 809

453 Mass. 102

COMMONWEALTH v. Harold KAUPP.

SJC-10177

Supreme Judicial Court of Massachusetts, Middlesex.

Argued November 3, 2008.

Decided January 16, 2009.

Peter M. Onek, Committee for Public Counsel Services, Boston, for the defendant.

Casey E. Silvia, Assistant District Attorney, for the Commonwealth.

Dena T. Sacco, for National Center for Missing and Exploited Children, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

SPINA, J.

The defendant was convicted of possession of child pornography in violation of G.L. c. 272, § 29C. On appeal he asserts error in the denial of his motion to suppress child pornography found on his computer because (1) the warrantless seizure of his computer was unlawful; (2) the affidavit in support of the search warrant did not furnish probable cause to believe that his computer contained child pornography; and (3) the search of his computer over a period of months was unreasonable and in violation of G.L. c. 276, § 3A. We granted the defendant's application for direct appellate review. Because we conclude that the search warrant authorizing the search of the defendant's private files was not supported by probable cause that they contained child pornography, we vacate the order denying his motion to suppress and reverse the judgments of conviction.¹,²

1. Warrantless seizure. We summarize the findings of the motion judge, supplemented by uncontested testimony from the motion hearing.

On May 21, 2002, James Smyth (James), a teacher and the technology director at the Northeast Metropolitan Vocational High School (high school) in Wakefield, was informed that an unauthorized computer named Joester7437 (Joester) was connected to the high school's network. James directed Holly Shepardson (Shepardson), a network specialist at the high school, to investigate Joester's contents and physical location on the high school's premises. From her computer, Shepardson accessed Joester's open share on the high school's network.³ There, Shepardson found hacking tools, games, and pirated movies, and reported the same to James, prompting him to report the breach to a school administrator. Shepardson continued to examine Joester's open share and found a file titled "15 and 9 year old naked girls" that depicted pornographic images of two females, one of whom appeared to be in her late teens and another who appeared to be between nine and twelve years old. While James was apprising vice-principal Theodore Nickole of the breach, Shepardson informed them of the pornography she had found in Joester's open share. James subsequently accessed Joester's open share and observed a pornographic image of a girl around ten years old. Officer Matthew Maglio, an officer assigned to the high school, also was present. After learning that child pornography had been found on Joester's open share, Officer Maglio contacted the Wakefield police department for assistance.

Shepardson then reported Joester's presence on the network to Timothy Smyth (Timothy), James's son and the high school's network manager. While trying to ascertain Joester's physical location within the high school, Timothy detected what appeared to be five unauthorized computers on the school's network.⁴ Within one hour, Timothy told James that he was "fairly certain" that the unauthorized computers were located in the electronics shop where the defendant was an instructor.

On the advice of James and before the police arrived, vice-principals Nickole and Angela Antonelli went to the electronics shop and asked the students and the defendant to go to the library. Sometime thereafter, Officer Maglio and Detective Lawrence James, a member of the Medford police department's computer crime unit, arrived at the electronics shop. Detective James spoke with James and Timothy as to what they had observed in Joester's open share. With the permission of Vice Principal Antonelli and James, Detective James, using his own notebook computer, accessed the school's network and opened Joester's open share. He found, inter alia, several movies, including "Spiderman." Detective James concluded that the copy of "Spiderman" was unauthorized as the movie had been released in theaters only recently. Detective James also found a motion picture file titled, "Beautiful Lolita Sandra Masturbates," showing what appeared to be a young girl masturbating. With Timothy's assistance, Detective James subsequently located the Joester computer in the electronics shop and turned it off. The Joester computer, which was later determined to belong to a student, was seized and transported to the Wakefield police department.

While searching for unauthorized computers in the electronics shop, Timothy came across a school-owned server named Nightcrawler in the defendant's office, which was adjacent to the electronics shop.⁵ Nightcrawler's screen displayed an open share containing the titles of several movies, including "Spiderman," "Top Gun," and "A Knight's Tale." The source of the open share was Sinister, another unauthorized computer logged onto the high school's network. Timothy did not see any pornographic materials in Sinister's open share. Sinister was also found in the defendant's office. However, Timothy could not log onto Sinister as it was password protected.

Detective James, having been apprised of Timothy's observations of pirated movies on Sinister's open share, seized Sinister, which belonged to the defendant, on probable cause to believe that it contained child pornography and copyrighted intellectual property. Detective James did not look at the contents of Sinister's open share prior to securing it.

In reviewing a motion to suppress, we accord substantial deference to the motion judge's subsidiary findings and will not disturb them absent clear error. Commonwealth v. Jones, 375 Mass. 349, 354, 377 N.E.2d 903 (1978). Our review of the application of constitutional principles to those facts, however, is plenary. Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986).

The defendant makes a number of arguments challenging whether Sinister was properly seized pursuant to an exception to the warrant requirement.⁶ They lack merit. Timothy's observation of the then recently released movie "Spiderman" on Sinister's open share furnished probable cause to believe that Sinister contained pirated movies, prompting Detective James to impound Sinister. Detective James refrained from searching Sinister's contents until the search warrant issued. Cf. Commonwealth v. Gentile, 437 Mass 569, 572-577, 773 N.E.2d 428 (2002) (seizure of defendant's clothing and truck prior to seeking search warrant was supported by probable cause and permissible where evidence would have likely dissipated had evidence not been seized). The impoundment of an object pending the issuance of a search warrant violates the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights only if it is unreasonable. See United States v. La France, 879 F.2d 1, 6 (1st Cir.1989); Commonwealth v. Catanzaro, 441 Mass. 46, 55-56, 803 N.E.2d 287 (2004). See generally J.A. Grasso & C.M. McEvoy, Suppression Matters Under Massachusetts Law § 14-1[c][3][iv], at 14-8—14-9 (2008-2009). Reasonableness necessarily turns on the facts of each case, requiring courts to "balanc[e] the need to search or seize against the invasion that the search or seizure entails." Commonwealth v. Catanzaro, supra at 56, 803 N.E.2d 287. Given the ease with which computer files may be accessed and deleted, and the disruption that would have been created by posting an officer in the defendant's office and preventing students from entering pending the issuance of a search warrant, we conclude that the seizure was reasonable. See Commonwealth v. Hinds, 437 Mass. 54, 62, 768 N.E.2d 1067 (2002), cert. denied, 537 U.S. 1205, 123 S.Ct. 1280, 154 L.Ed.2d 1049 (2003) (reasonable to seize computer because files easily could be destroyed and posting officer in home more intrusive than securing hard drive and keyboard).⁷ Moreover, notwithstanding the defendant's contention to the contrary, the nine-day delay in seeking a search warrant did not render the seizure unreasonable. See United States v. Hall, 142 F.3d 988, 994-995 (7th Cir.1998) (one-day delay in seeking search warrant for impounded computer not unreasonable); People v. Shinohara, 375 Ill.App.3d 85, 101, 313 Ill.Dec. 515, 872 N.E.2d 498 (2007) (two and one-half month delay in seeking search warrant for seized computer not unreasonable).

2. Probable cause. The defendant contends that Officer Maglio's affidavit did not establish probable cause to believe that there was child pornography on Sinister.⁸ The defendant does not dispute

that he did not have any reasonable expectation of privacy in the files in Sinister's open share, which were accessible to all network users. See United States v. King, 509 F.3d 1338, 1342 (11th Cir.2007) (no reasonable expectation of privacy in files accessible to anyone on military base's network). Therefore, at issue is whether there was probable cause to search the defendant's private files, which were not available to other network users, for child pornography.

In reviewing a finding of probable cause, we consider only the facts recited in the affidavit and any reasonable inferences therefrom. Commonwealth v. Allen, 406 Mass. 575, 578, 549 N.E.2d 430 (1990). We summarize the facts recited in Officer Maglio's affidavit.⁹

The affidavit recounted how the presence of an unauthorized computer, Joester, on the high school's network was detected by high school personnel. On examination of Joester's open share, Shepardson discovered files containing child pornography, and files containing the movies "Spiderman" and "Star Wars, Episode II, Attack of the Clones," both of which were recently released in theaters.

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