Monday, November 15, 2010

How much does the Fourth Amendment weigh?

Susan Brenner over at Cyb3rcrim3 tells a Kafka-esque tale in which the police violate a man's Fourth Amendment rights, the court acknowledges the violation and then (essentially) says "no harm, no foul."

Ms. Brenner is an associate dean and professor at the University of Dayton School of Law where she conducts a seminar on cybercrime. In her blog last Wednesday she tells us the story of Efraim Rosa from upstate New York who, shall we say, wasn't the best of people. Mr. Rosa was accused of molesting two young boys and showing them pornographic material on his computer.

Late on September 26, 2007, the Oswego County Sheriff's Office began investigating possible child exploitation by Efrain J. Rosa after Deputy Sheriff Burke was dispatched to a local address upon receipt of a 911 call from two mothers reporting that their minor sons had just disclosed being sexually abused by a neighbor, whom the boys referred to as `J.’. . . . Burke learned ‘J’ had shown the boys files on his computer containing nude pictures of the boys and other children and had engaged in sexual conduct with the[m]. The boys [said] `J’ kept three laptop computers in his apartment, had a USB flash drive on which he kept images of nude children , a pistol in his bedside table and had sexually abused the boys on multiple occasions. . . . [A]t approximately 2:00 a.m., officers sought the assistance of Investigator Blake, who had specialized training in computer forensic exams in child pornography cases. . . . Blake prepared a search warrant application and affidavit, which he presented to Granby Town Justice Bruce Wells in connection with his request for a search warrant of Rosa's apartment. . . .
[A]t 4:10 a.m., Judge Wells issued a search warrant directing the Sheriff's Office to search `[t]he entire residence known as 30 West 11th Street Building E Apartment 1 Chateau West Apartments in the Town of Granby, County of Oswego, State of New York. This is to include any containers or rooms whether locked or otherwise[ ]’ . . .for the following property: `. . . computer equipment, electronic digital storage media included but not limited to floppy diskettes, compact disc, hard drives whether mounted in a computer or otherwise, video or audio tapes, video surveillance systems, video and digital camera systems, printing devices, monitors, firearms and any written and/or printed and/or electronic stored notes or records which would tend to identify criminal conduct and any personal papers or documents which tend to identify the owner, leasee or whomever has custody or control over the premises searched or the items seized.’

Mr. Rosa moved to suppress on the grounds that the search warrant was overbroad. The trial judge said no and Mr. Rosa subsequently plead guilty and reserved his right to appeal. And appeal he did.

The 2nd US Circuit Court of Appeals agreed with Mr. Rosa that the warrant was bad because it did not limit the parameters of the search; by the language of the warrant the officers could seize any item that could be evidence of any crime, rather than evidence regarding the possession of child pornography.

However, the court then attempted to balance the deterrent effect of the exclusionary rule against the cost of suppressing the evidence. In other words, the court set out to determine what was worse - the conduct of the police of the crime for which Mr. Rosa was convicted. I don't have to tell you how that test came out.

The problem is the court looked to the result and not the process. The Fourth Amendment doesn't say that we are free from unreasonable search and seizure, unless we're accused of doing something really bad. Yes, the application of the exclusionary rule in this case would have benefited a man accused of some nasty crimes, but sometimes that's the price we have to pay to preserve our Constitutional rights.

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