The computer forensics techniques that convicted former Nevada brothel owner Dave Burgess 14 months ago have been ruled unconstitutional in the Ninth Federal Judicial Circuit.
Those forensics remain technically legal in the Tenth Federal Judicial Circuit where Burgess’ appeal was denied. But since federal law – theoretically, ideally, as it is described to little children – is supposed to be the same throughout the Federal Union, the legality of the forensics that convicted Burgess will have to be decided by the Supreme Court of the United States.
The Tenth Judicial Circuit includes Wyoming, Utah, Colorado, New Mexico, Kansas and Oklahoma. The Ninth Circuit rules on federal appeals originating in Washington, Oregon, Idaho, Montana, California, Nevada, Arizona, Alaska, Hawaii, Guam and the Marianas. Burgess lived in Nevada and is imprisoned in California but he was convicted in Wyoming and his appeal of that conviction was denied in Colorado.
Burgess is a former president of a charter of the Hells Angels Motorcycle Club. He owned a legal brothel in Nevada named the Old Bridge Ranch. He is the nephew of a man named Joseph Conforte who opened a very famous legal brothel called the Mustang Ranch in 1971. Federal officials carried out a long, foul, moral war against everything and everyone connected to the Mustang Ranch starting in the Nixon Administration. Consequently, Burgess has suffered intermittent police harassment throughout most of his adult life.
The Burgess Case
Burgess was the target of a traffic stop in Wyoming in July 2007. The stop, as well as most of what followed, seems to have been cynically and meticulously game planned. After an extensive search of his motor home, that included multiple searches of the clothes in his closet, his wastebasket and his sock drawer, Burgess was charged with possession of small amounts of cocaine and marijuana and a pipe police described as “drug paraphernalia.” Those drug charges were later dropped.
The traffic stop and the drug charges were merely the means by which federal and Wyoming officials, including the Attorney General of Wyoming and the Federal Bureau of Investigation, contrived a search of Burgess’ laptop computer and two portable hard drives. A reasonable disagreement can be drawn as to whether the police knew what they were going to find before they looked or whether they were merely, innocently poking through Burgess’ life to find whatever turned up.
The computer search revealed “images of child exploitation.” Burgess was tried and convicted of knowingly transporting child pornography across state lines. He was sentenced to 15 years in prison, ten years of supervision upon release, lifetime registration as a sex offender and a fine of $20,000.
This page concluded some months ago that Dave Burgess was framed. It is now impossible for Burgess to prove his actual innocence. The issue upon which Burgess’ freedom now rests is whether the search of his electronic equipment did or did not violate the Constitution of the United States.
Why We Fight
Everyone who serves the United States, whether as a lowly private or as the President, vows to “preserve, protect and defend the Constitution of the United States.” Fighting to preserve, protect and defend the fundamental law that ensures our freedom is how all those names got on that black wall.
The most fundamental of American laws states in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Over the last two centuries, the Constitution has been tortured by scholarly interpretation, politics and the police and several “exceptions” have been devised to what is usually called the “particularity requirement” in the passage quoted above.
Above all, a search must be “reasonable.” One of elements of a reasonable search is that an impartial magistrate must first issue a warrant authorizing that search. And another element of a reasonable search is that the search warrant must particularly describe the place to be searched and the items to be seized.
An exception to the need for a warrant occurs when the place to be searched is highly mobile like an automobile. And, an exception to the “particularity requirement” occurs when a policeman sees evidence or contraband “in plain sight.”
The problem with computer searches is that once you look into a hard drive, everything is in plain sight. And, as a general rule, this obvious fact never registered with any judge until two weeks ago. So, in a breathtakingly short span of years, computer searches have become the preferred method used by career police and professional prosecutors to subvert the Constitution of the United States.
Today, at least 50 percent of all criminal cases in the United States rely on what law enforcement officials call “e-forensics” or electronic forensics. E-forensics includes the scientific examination of computers and portable computer media; the collecting and snooping-into of email; the monitoring and tracking of web browsing activity using IP addresses; the official and clandestine use of mal-ware; the cloning of and forensic examination of cell phones, cell phone SIMM cards, iPods and PDAs; the forensic examination of DVRs and GPS locators; the identification through code or so-called “fingerprinting” of both laser and ink jet computer printers and scanners; and the forensic examination of home computer routers and automobile black boxes.
Some of these techniques are bullet-proof. Some of them, like the techniques being investigated at Purdue University into the fingerprinting of inkjet printers, are very questionable. Police use all of these techniques every day. And, the manner in which all of these techniques are used to prosecute citizens hides in a Constitutional penumbra.
Twenty years ago if you had said “e-forensics” nobody would have known what you were talking about. Exactly as if you had said “iPod” 20 years ago people would have thought you were either a foreigner or just odd. Today, even stupid police are sophisticated about e-forensics. Today, even very bright defendants remain touchingly naïve about the trail of electronic bread crumbs they leave behind them everywhere they go. And, the naïveté of judges and defendants about e-forensics has given unscrupulous prosecutors an enormous advantage in the boardwalk game called criminal justice.
Intrinsic to the electronic creation and storage of data with all commercially available operating systems is the data’s indiscretion. Computer cops commonly refer to this data as “ESI,” or “electronically stored information.”
The first step in entering ESI into evidence is to preserve it. What we are really talking about saving are electrons. And the reliability of this preservation is entirely dependent on a police officer who has a cynical interest in the case. His disinterest in the case is guaranteed by his “oath” as an officer of the court. And, whether he is good at his job or not he is always reckoned to be an “expert.”
Current practice dictates that an e-forensics technician must preserve and examine all the contents of every device he examines. On a hard drive, the evidence the technician seeks might be scattered among several physical locations anywhere on the card, chip or drive. In the Burgess case, a hard drive was searched simultaneous to the preservation of its the contents. And, right there, in “plain sight” the technician would later testify, was a giant collection of child pornography.
The plain sight exception to computer searches makes every computer search a dragnet search. Everybody has known this for at least a couple of years except federal judges who, just like privates and presidents, must take an oath to preserve, protect and defend the Constitution. Just as John McCain famously did not understand how to send an email, federal judges are generally as ignorant about e-forensics as the “criminals” who stand trembling before them every day.
Burgess Arrest And Conviction
Dave Burgess got hit with a double whammy of Fourth Amendment exceptions. Because his motor home was moving police used the “automobile exception” to search his vehicle’s contents, find the drugs he was taking with him on vacation and seize his computers and hard drives. Because he was holding recreational amounts of marijuana and cocaine and because he was a member of the Hells Angels Motorcycle Club he was “reasonably” assumed to be a drug kingpin.
Consequently, a local magistrate who could not tell the Constitution from a slice of Swiss cheese warranted the search of Burgess’ laptop and drives under the pretense that they might “reasonably” be expected to hold “trophy photos” of him with great piles of narcotics, or “ledger sheets” of his imaginary drug business or “lists” of his imagined drug co-conspirators. What the police found, after 45 days of storing these electronics in a room filled with child pornography, was a huge collection of child pornography including indecent pictures of an adolescent girl Burgess actually knew.
Last May, Burgess appealed that conviction, in part, on the grounds that, “in this age of the laptop computer…” allowing overly broad searches “…would destroy a citizen’s expectation of privacy in his or her computer.”
“The modern development of the personal computer,” the appeal continued, “and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs.”
But the Tenth Circuit Court of Appeals agreed with Boris Pasternak’s Bolshevik fanatic Pasha in Doctor Zhivago. “Personal life,” Pasha decreed, in case you have forgotten the book, “is dead.”
The Tenth Circuit said it understood a laptop computer to be a kind of a “briefcase.” If the Tenth Circuit’s comparison was right, it would seem reasonable to then ask whether a searcher is entitled to read a suspect’s diary just because it happens to be in that briefcase when what the searcher is supposed to be looking for is a gun. But the court snidely tossed that issue away. “One might speculate whether the Supreme Court would treat laptop computers, hard drives, flash drives or even cell phones as it has a briefcase or give those types of devices preferred status because of their unique ability to hold vast amounts of diverse personal information,” the court wondered. Then added, “Interesting as the issue may be, we need not now resolve it….”
But just fifteen days later in a different case in California, the Ninth Circuit Court of Appeals did decide resolve that very same issue.
The official name of that case is United States vs. Comprehensive Drug Testing but it has been popularly reported for years as the BALCO case after an alleged steroid dispensary named the Bay Area Laboratory Cooperative. BALCO has been widely alleged to have dispensed anabolic steroids to Barry Bonds and other professional baseball sluggers.
The United States has been vigorously pursuing a law enforcement crusade against anabolic steroids for years. And, after the story broke that the national pastime might have been pharmacologically subverted federal agents joined the witch hunt for steroid using baseball players.
In the course of that witch hunt, the government issued search warrants for the computer records of two independent testing labs, including a firm called Comprehensive Drug Testing. The point of the computer search was to gather evidence against ten big leaguers who were under investigation. But those computer records contained drug tests for ball players and other athletes who were not under investigation. And the records of all those other steroid using athletes were in “plain sight.” So the government started investigating all of them.
After Alex Rodríguez of the Yankees and David Ortiz of the Red Sox had their names leaked to the press, the Major League Baseball Players Association entered the fight. The player’s union objected that the government had conducted an unreasonable search. And on August 31st, the Ninth Circuit agreed with the baseball players.
Burgess And BALCO
The Dave Burgess case and the BALCO case could not be less alike except that in both cases the government conducted dragnet searches of computer hard drives in violation of the Fourth Amendment.
The decision in the Comprehensive Drug Testing case has already been widely compared to the Miranda versus Arizona decision in 1966. Miranda broke ground when it mandated that police must advise suspects of their constitutional rights. In some quarters, Miranda was and still is considered to be a technicality that forces police to coddle criminals. As a matter of fact, Miranda ended forced confessions.
Comprehensive Drug Testing, pending Supreme Court review, has just ended dragnet searches of hard drives. The Ninth Circuit has written a set of rules that describe exactly what the police may and may not do when they search your computer or another other device that holds electronically stored information. Today, if you live in any state or territory in the jurisdiction of the Ninth Circuit the following rules apply to computer searches:
1. The Plain View exception no longer applies to computer and other e-forensic searches.
2. Evidence covered in a computer search warrant must be segregated from evidence not specifically described in the warrant. Evidence of new crimes must not be discovered during a computer search. If it is, the e-forensic examiner must keep quiet about it.
3. The method of the government’s search protocol must be designed to uncover only the information for which it has probable cause and only that information may be examined by the case agents.
Had Dave Burgess’ appeal been heard in San Francisco instead of Denver, he would probably be a free man today.