What Happens When an FBI Agent Investigates a Friend?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:02 Jenessa: If this were a law school exam, I think if you assessed it either way, the point would be what argument you make. It's a tough one.

0:00:17 Matt: This is actually an interesting pushback to people who say that cases like Miranda and Katz are going to destroy the justice system. There's still enough to convict. Justice was still done.

0:00:34 Matt: Welcome to Opening Arguments. I'm Matt Cameron, and with me is Jenessa Seymour, and I do not know the first thing about what we're talking about today. This is a first. I've never gone in this cold to anything.

0:00:42 Jenessa: I've kept you in the dark.

0:00:46 Matt: So what are we talking about tonight, Jenessa?

0:00:47 Jenessa: We are talking about a case that has no precedential importance and will not affect anything in the future, I bet, and is from the middle of nowhere.

0:00:53 Matt: Perfect. Specifically where?

0:01:01 Jenessa: This is from The Northern Mariana Islands.

0:01:05 Matt: Not a jurisdiction I've had any contact with or any reason to cite ever before. Sounds nice.

0:01:08 Jenessa: Yeah, Yeah, this is a territory of the United States, a Pacific island, a group of Pacific islands. It falls within the Ninth Circuit, to whatever extent that will matter for our precedent here.

0:01:13 Matt: Would love to visit. Sure.

0:01:21 Jenessa: And the reason I bring this one up is this case reads like a law school exam.

0:01:29 Matt: Awesome.

0:01:30 Jenessa: Every possible fact that you could imagine comes up for, if you were studying for either either criminal procedure, an evidence class. It feels like a test. We covered in a couple of episodes leading up to this in episode 1190 and 1192, we did quite a bit on Miranda and when those rights kick in. In 1192 we talked about Katz and the Fourth Amendment right. In 1206 we talked under color of law and when you are a state actor. So yeah, if you've been to law school or you have ever seen a law school exam, you might be familiar with, sometimes you get this really long fact pattern. And I remember one from one of my torts class. It was like a fight broke out on a bus and it was like, oh, there's a battery. There's an assault. There is intentional intentional infliction of emotional distress. There's a false imprisonment. And like you have to try to find all of the things. And I came across this case one day when I was looking for precedent on under color of law. And. I read it and I was like, oh, this this is a law school exam. This is all of The things the past

0:02:54 Jenessa: Couple of weeks I've been building us up to this. So I suppose, audience, if you want to get out a little pen and paper when you spot an issue. Yeah.

0:02:53 Matt: Play Play along at home and I'll be right here with you because I don't know anything about this case.

0:03:07 Jenessa: Yeah, I purposely told Matt to not read this one because, oh boy, is it a wild ride. We got some characters in here.

0:03:15 Matt: Great. So I will come back and get myself into exam mode and I will find out about U .S. v. Weindel. So we will be right back with that.

0:03:26 Ad: [Ad break 1 — ad music]

0:03:26 Matt: All right, Professor, kick us off. What's happening in this case? What is the story in this 2012 case from the District Court for the Northern Mariana Islands, which again is a part of the United States. Just for all Americans who aren't really sure about the reach of our empire, we do actually have this territory.

0:03:36 Jenessa: Yes, it is. We do, in fact. What we have is a criminal case and a motion to suppress some evidence. Evidence the accusation is that this person accessed websites with child sex abuse material we will not be getting into a single detail about that that's the first and last time I'm going to mention it luckily it's not at all important for the legal questions we're going to address so um this should not at All end up being remotely sensitive uh the issue is going to be all about about the behavior of an FBI agent who comes across this and tries to figure out what to do about it. Our FBI agent, Joseph Author, special agent by day, dad by night. His son goes to the local middle school. His son is assigned a laptop. So lots of schools have these programs. They're often federally funded. Really important that kids have access to laptops and the internet. Not everybody can afford it. So they just give everybody a laptop and like any good dad who is an FBI agent, he immediately installs spyware on it.

0:04:49 Jenessa: The program is called eBlaster, and he's monitoring everything about his son's internet use. We're talking the websites, keystrokes, chat rooms, apps you open, everything. And nothing on the computer would indicate this. His son does not know about it. He's just watching what his son is up to. He heard about this program from from another FBI agent who said he put it on his kid's computer, but he's never used this before in an FBI investigation. It's just something he heard about in his personal life. Purchases it with his personal credit card, bought it by browsing around on his home computer, so no work equipment involved. Several times a day, this program emails him to his personal email, and he he can get this report. Subject line just says report, the date, the time. And he opens it and he can see what his son was up to. October of 2011, troubleshooting, something's wrong with it. He calls the company and he has walked through how to uninstall and reinstall it. So he does know how to do this. Maybe. In April 2012, he finds out you're going to be relocated to Denver. So So it's not terribly uncommon for FBI agents that you're assigned a certain location. So, all right, everybody, we're moving. June 6th, he tells the principal, Thomas Wendell, I'm moving. My son is moving with me. I'm going to get the laptop serviced. There's a cracked screen. I'll wipe all the files and I'll get it back to you. Doesn't disclose that he had installed some spyware on this thing. First, he takes the laptop to the FBI office and says, I want to wipe everything off of this. And they are unsuccessful. I don't know why the tech skills are not available at the FBI Office, of all places.

0:04:49 Matt: See where this is going sure at the fbi that's concerning this is

0:06:54 Jenessa: We're in June of 2012 right now. I don't quite know why the FBI agents are unable to wipe a laptop. UNCLEAR TO ME.

0:06:56 Matt: 2011 or something okay to wipe his son's school laptop which isn't their purview anyway I'm starting to see some problems here

0:07:10 Jenessa: Yes. So it's June 8th. He goes to the computer store and hands it over to some teenager and says, please fix the screen and wipe all the files off the laptop. And his presumption, he doesn't mention that there's this spyware installed, but his presumptive is that'll take care of that, right? It'll all be done. He gives the laptop to Wendell that evening. He says to him it's wiped clean. Again, does not mention there was spyware on it at one point. June 8th through June 14th he does not get any emails from this spyware program. June 15th he's all prepped to move. His cases have all been transferred to other agents. He does not have any ongoing cases. He's not looking to open any new cases. He's getting ready to move to Denver and be reassigned. And a new email comes in from this Blaster program and it looks like always report date time span nothing in the subject line would tell you what it is and he opens it and it says that that horrible type of website has been accessed oh my god panic

0:08:19 Matt: So this is like an automatic trigger that's been set to let you know the person installed the spyware that something inappropriate has been accessed and you can set the parameters for what you want to be notified about is that the idea

0:08:29 Jenessa: He had been getting notified about everything so my son went on Facebook and then he did his homework and then He went here and then went there so far it had had just been a report of literally everything as kid, yeah.

0:08:37 Matt: Oh regular stuff so just creepy not inappropriate all right

0:08:45 Jenessa: Parents may have varying opinions on the spying of their children, I suppose. Yes,

0:08:58 Matt: Not something I have to think about but I can see the struggle all right but I said that there's nothing that would have triggered this other than just using the computer and it shouldn't have because he thinks it's

0:09:00 Jenessa: Right, right. So previously he installed it, his son used it, and he would get reports pretty regularly. And it just, it's all automated. And it says, okay, here's what your son did today on that laptop. He gets this report and it just says report date time. And there's no real reason to believe if you open that you're going to see something inappropriate. It could be anything. But he opens it and it's obviously something extremely inappropriate. So, oh god, is it his son? So far, every email he's ever gotten from this program was his son. Oh my god, did my son do this?

0:09:10 Matt: Gone sure but he knows that the computer is out of his possession

0:09:42 Jenessa: Right, and there was a lot of effort put into getting this computer out of his possession. Should he have known better? Is this in a moment of panic? Unclear. This is the judge's characterization of his testimony. So at least this is what the judge thought was a credible characterization. And then he thinks, OK, is there a virus going on on my home computer? Like, I'm getting this email that this happened. Is it me? Is it my? Like, obviously, he knows he didn't access it. But do I have a virus? Then it's, oh, my God, did it go to another kid at the school? And then it's I gave this computer to the principal, Wendell.

0:10:21 Jenessa: He's the person I physically handed it to. Too. So I gave it to him a week ago and I didn't get any of these alerts for a week. He knows this guy really well. He's known him for five years. He was at his wedding. His wife did a reading at the guy's wedding. Like they're buddies. What do I do? Oh, my God. Oh, my God, oh, my god.

0:10:42 Matt: Well it's a school computer so you don't you don'T necessarily assume it's the principal right it could have been passed on to another student by testity, you know, certainly can't prove it's him, but you're going to ask him questions. You're goingto want to know, and you might be concerned that it's your buddy.

0:10:53 Jenessa: You're very curious. It could be your buddy. This is also Also, very shortly after Penn State University, that like really horrible case where that guy was outed for child sex abuse and had just been arrested. And his testimony is like, I'm in a panic of like, oh, my God, is that happening here? Does some terrible person work here? He has access to kids. Oh, my god, who could it be? So his testimony ist like ,I'm in an absolute panic and I want to know what happened. Happened that is happening like in the morning on June 15th he gets this email right the agent calls his wife and says can you get me his phone number his cell phone number because they know each other and calls him up and says hi I'm really interested in purchasing that laptop do you know who who has it right now and no

0:11:46 Matt: And this is a personal inquiry, obviously. It was not a professional FBI inquiry. Curious.

0:11:55 Jenessa: Just just me just wondering who's got that right now And he says, oh, I gave it back to the school's tech department, you know, the district tech office. Doesn't mention any of his concerns. He's just, oh OK. And he said, I don't know. And he goes, you're not going to be able to buy it. These are federally funded. So it's a very weird request you're making right now, but no. OK. And his testimony at the moment is that he found it credible. Yeah, I give the principal the laptop a week ago. Go, it would make sense he would go give it to the tech office and then a week later I'm getting, okay, it's not my friend. It's not My Friend. It doesn't mention it to any other FBI agent or any other government, anything. June 18th. So that was a Friday. Apparently we're taking the weekend off from worrying about pedophiles. On Monday the 18th, we're going to pick it back up. He talks to the Tech Coordinator at the district. So the place where supposedly this laptop was was turned in. Shows his badge.

0:12:54 Jenessa: Because presumably you wouldn't just tell any old parent about this. Just gonna wave that around and hopefully you'll tell me more. There is a rule that you are not supposed to use your badge outside of your job duties as an FBI agent. Like, of course, right? So he just says to this person, I am concerned about inappropriate activity on this laptop. And what this guy says to him is, no, those laptops stay within the school. They don't come back to like district headquarters. That was not returned to me. What would make sense is that it just went straight to some other student in that school. I would never have gotten it. So on the one hand, you could think it's with some other student. On the other hand, that sounds like the principal lied about turning it in.

0:13:44 Matt: Must be lying. Sure so that gets suspicious. Suspicious.

0:13:47 Jenessa: I'm even more suspicious. So he goes to his internet service provider where he doesn't remember if he showed his badge, but they know he's an FBI agent because we are on a tiny little island and everybody knows everybody. And he says, hey, here's this IP address. He doesn't say what it's about. Can you just tell me like what's going on here? Where was that? Who was that. And they won't tell him because what you can't just walk into like Comcast and be like, hi, I have an IP address, tell me all about it. Like, that's a weird thing to do. What they will tell him, because you can kind of ask about your own home and your own account and activity, the activity he's asking about did not come from his house. So we have eliminated the, there is a virus routing terrible things through my own home explanation. I'm not worried it's my own son explanation. Hallelujah. At least that relief. Relief. He concedes on the stand. If he had been at the internet service provider purposely asking for information about someone else's IP address, yes, that would have crossed into an official investigation. But luckily, he thought he was just looking into an IP address that was on some unknown computer and probably his own. And all he asked about was whether it was his and and it wasn't. So that's fine, right?

0:15:22 Jenessa: Allegedly.

0:15:20 Matt: Oh, no.

0:15:23 Jenessa: It's still all the same day. We have gone to the school. Wehavegone to the internet service provider. He talks to his wife, and she says another email has come in, and it's unclear who opened it, but oh no, there's more. What has happened? Someone is still using this laptop.

0:15:44 Matt: Wait, his wife is checking his email? Which email is this?

0:15:47 Jenessa: It's unclear in the fact pattern. The judge says this it's not clear did he open it did she open it was he on the phone with her or in person like this this gets all fuzzy at this point there is another report date time and the contents are bad oh no what shall we do so he drives by the school and he sees the principal his car is parked outside the school. And he calls him and he says, I am concerned about inappropriate content on that laptop. The principal says, I agree. He did some checking of his own and there's hanky -panky going on at this school. I'm looking into it. The laptop has been recirculated. He spoke to some school officials and we're going to get to the bottom of this. The agent does not mention that he went to that district office and he

0:15:57 Matt: All right. But there is an email. There's a notification. Sure.

0:16:48 Jenessa: Knows there was a lie about turning this laptop in. We're calling, we're talking, but I'm not telling you that I suspect you and that I know you lied about something.

0:16:58 Matt: He's acting a whole lot like an FBI agent. That's exactly what an FBI Agent would do, of

0:17:03 Jenessa: And yeah, a little bit, huh? After that, still the same day, he goes to the FBI office and he talks to Special Agent Ewing, buddy, and says, I got these emails with this internet net activity. I suspect it could be this person. Oh, my God, what do we do? Like, just it all comes out. A couple days later, June 22nd, he forwards those emails to Special Agent Ewing. Now we're opening a formal investigation. So he contacts his supervisor, a federal prosecutor. Like, obviously, somebody's committing a crime. We're not 100 % sure yet, but I mean, this is terrible, right june 28th special agent author our original guy and special agent ewing our person who's now assigned to the case officially they go to the school and they're in an unmarked vehicle it's not like a cop car they're wearing plain old civilian clothes they have a search warrant for the office but they describe it as we were just hoping to talk to them first and they come up and And there's a parent who's in the office talking to the principal already. And they're like, oh, sorry, we'll wait. And the parent comes out and all four of them are chatting because Ewing knows that parent.

0:18:20 Matt: Course.

0:18:21 Jenessa: Everybody knows each other. Nice, casual, just friendly conversation. The parent leaves and the two agents say to the principle, hey, we got to talk about something. We got to talking about this missing laptop. And then a bunch of maintenance noise starts up. There's construction in the hallway. Way. And it's not clear who said, let's go into your office. It was either the principal invited them or perhaps one of the agents suggested it, but a sort of mutual agreement. They go into the office and they shut the door.

0:18:54 Jenessa: There's two doors. One of them leads outside. Oneof them leads to a classroom. And it's a really small office .It's six by twelve. They can't even sit next to each other. So Ewing is sitting towards the desk, the principal's behind his desk, and Agent Arthur is seated in such a way that you would have to go past him to get to either of the doors in order to leave.

0:18:55 Matt: Definitely seeing the issue here. Yeah, and we'll get there. Okay, sure.

0:19:23 Jenessa: Yeah, it seems a little bit of an issue, right? Ewing testifies at this point Wendell was their sole suspect, but they did not yet have probable cause to arrest him. They didn't have an appointment. There was no invitation, but they showed up with their warrant that they haven't disclosed yet. They start to question him. At first, he says, we're just investigating this missing laptop because it was bought with federal money. And if you believe that, the FBI is sending two agents for a missing probably $200 laptop. You got to be out of your mind.

0:19:59 Matt: And if you are the guilty party who knows you're doing inappropriate things with that laptop, you must be sweating at this point because why else would your buddies or FBI agents be asking about this cheap laptop?

0:20:09 Jenessa: I would think you have to be, right? Like, you have to think the real reason they're here, you know? Especially the other guy's been calling you about

0:20:16 Matt: And you've lied to them and you know it.

0:20:19 Jenessa: It for, like, weeks. Yeah. So he says, if you cooperate with us, that would help so much. If you don't, with specifics and accurate information, we're going to have to open a larger investigation. We're goingto have to question school staff and parents and try to find this thing. So it'd really help us out if you could just tell us what's going on. The principal says, oh my God, I'm so sorry I lied. I was just so embarrassed. It went missing out of my office and I didn't want to admit that I'm the one who, you know, it's my fault this went missing.

0:20:50 Matt: Solid cover.

0:20:51 Jenessa: And Agent Ewing says, when? And he cannot give a time or a date that it went missing and then he says, so there's, we know there was inappropriate activity on this laptop. If you happen to know that, that would really help. If you don't tell us about this, we have to open an investigation. We'll have to interview community members. But if you can tell us what happened, it's just going to stay with us and the FBI and the prosecutor, and it's not going to go out to the whole community. The principal looks really embarrassed, and so Agent Author, who is his friend, says, like, I can leave if you want to just talk to him. And the principal says, no, no. You don't have to leave, and he admits to it. And he admits to accessing those websites and destroying the laptop top and throwing it in the jungle which is not a quote I thought I would read in a court case

0:21:44 Matt: But it is an option in the United States. There are jungles in the United States, it turns out. So there you go.

0:21:53 Jenessa: 45 to 60 minutes is how long this interview went on it's not recorded and they never read him as Miranda rights they never said you're free to leave he never asked to leave if he never asked for a break he never asks for an attorney he never ask for them to stop questioning him but it went on and on and on. The testimony of the agent says oh this was very calm, conversational no yelling, no threats no promises. We did exploit his fear of a public investigation I will admit that.

0:22:28 Matt: As the FBI will.

0:22:30 Jenessa: He testifies the environment was quite threatening and frightening he felt trapped, he had no choice but to respond or he was going to be arrested he felt that he could not refuse to answer or end the interview they all leave the office confess, Ewing calls the prosecutor and they say, yeah, arrest him. Obviously, he just confessed to the crime. They leave the office. They're outside. They didn't go through the door into the classroom. They went through the doors outdoors. And now there's FBI agents mulling around and they're in public. And Ewing says, I don't want to embarrass him. Again, we all know each other and we're all friends.

0:23:06 Jenessa: So I just hand him the Miranda form that says all his rights. And I say, they just like read it and sign it. And he never says out loud, read him his rights. He reads it and signs it. He testifies. He did not read it carefully because he was very upset. Understandably, he was being arrested for a very serious crime. Before he signed this, he said, you can go ahead and search my home and my computers in my home. After he signs it, he says, yes, I will go with you to try to retrieve this laptop. He gets in the back of the car, not handcuffed, with another officer, and they look around. They try to find the laptop. They never find it. He is taken to the marshal's office, and he is booked. And that is what happened over the course of a week and a half of this FBI agent's week in hell, basically, trying to figure out what happened to his son's laptop.

0:24:02 Matt: And this is as he's on his way out of the Northern Mariana Islands. Where is he relocating to at this time?

0:24:10 Jenessa: Denver, Colorado. Yeah.

0:24:12 Matt: So, okay. So he's going somewhere much colder with no jungle, just trying to wrap up his affairs. And he ends up having a conversation with a good buddy of his who just happens to have done something terrible. Okay. I'm getting the picture. I can certainly see how this ends up as a motion to suppress in multiple directions.

0:24:28 Matt: I won't have to come back and talk about how the contours of this all worked out, but we have established now the facts of USP Wendell. We've got it. This is what we need to know, right?

0:24:36 Jenessa: Yeah.

0:24:36 Matt: Okay, fantastic. Well, I assume that the ad you're about to hear will be from a VPN provider. We'll be right back.

0:24:47 Ad: [Ad break 2 — ad music]

0:24:47 Matt: Okay, let me try to recap. So I understand this before we dive into the legal aspects. What we have here is one FBI agent who's just trying to clear out his desk and move to Colorado, but turns out that his attempt to spy on his son accidentally implicates a good friend of his, whose wedding he's attended, and he goes to try tried to confront his friend after he lies to him about using this laptop that was technically federal property or paid for by federal dollars. So there's an FBI contingent here. His good friend confesses in front of another agent and himself that he did in fact access this website and he'd been lying about the use of the computer. Otherwise, the computer is eaten by the jungle and we never actually find the computer, so we only have his testimony and the records of the laptop itself accessing the website.

0:25:31 Matt: So this is the part where we start talking about the issues, And there are some issues here. As a defense attorney, I would certainly be writing a very long motion to suppress. So if I can take a crack, again, not having read this case before, just hearing the facts. Let's start with the fact that, of course, at the point at which he's calling, I guess the investigation begins at the moment which he calls because he's passively receiving this email after having installed a spyware that has nothing to do with Mr.

0:26:00 Matt: Wendell. He's only trying to spy on his son. So he's calling his good buddy to ask him about, under false pretenses, to ask him about a computer that he knows has access to a website that is a criminal website. So that to me is the person on the other end of the line, knowing of course that his good body is an agent at the Federal Bureau of Investigation, could assume that he's operating under color of law. That seems to be my first issue that I'm spotting here, that you have an FBI agent who's doing FBI type stuff on his own time involving a friend. So how does that play out?

0:26:26 Jenessa: That's exactly the issue we need to address first. Off -duty cop, it's the classic classic case for under color of law. When does he become a state actor? He's not a state actor all day, every day. But at some point, this is an investigation. So the question will be, when did he become a state actor? When was he acting under color of law? He wasn't officially acting under color of law. He was not an official state actor for the majority of this.

0:27:06 Jenessa: But I mean, obviously Obviously, he was way earlier than when he opened the official investigation, right? Once you're calling somebody under false pretenses to try to figure out what they were up to, if you and I did that, like, I mean, whatever. But he's an FBI agent. He has a higher responsibility than other people.

0:27:28 Matt: Yeah, the point at which he knows a federal crime has been committed, he's going to report it and he's going to investigate it.

0:27:32 Jenessa: Exactly. He has an obligation to report these things. So he knows if he comes into possession of this information, he knows he's going to give it to an FBI agent and this is going to get prosecuted. So he know better.

0:27:47 Matt: So, so far, the takeaway is do not be friends with FBI agents if you can help it. I think that's, you know, because we're all doing federal crimes all day, not this one, obviously, but there are a lot of federal crimes that, you can just do without even thinking about it. 50 before breakfast if you're trying too hard. All right. So what happens?

0:28:01 Jenessa: In order to question whether the Fourth Amendment applies, the Fourth amendment does not apply to like random crap I'm doing. I'm not a government actor. Actor but at some point what he's up to would invoke the fourth amendment either warrants or exceptions to warrant requirements would have to apply so when is he a state actor what the judge is going to say is exactly what you said initially he installs this spyware as a dad and he was snooping on his son, which is not illegal, and he wasn't trying to investigate anything. So there's no official investigation opened. Installing the software was completely unrelated to his duties as an FBI agent. He was acting as a devoted father, not a law enforcement officer, the judge tells us. He speculates, you know, if he had left it on intentionally to track the next user, he knows he would have to report criminal conduct. That might have crossed the line.

0:29:11 Jenessa: But it appears like, was it an accident that he left it? Probably. Was he intentionally trying to track someone else? Almost certainly not. He was leaving. He wasn't setting up a sting in the Northern Mariana Islands. He was going to Denver.

0:29:29 Jenessa: Like, yeah. Was any of that official installing it? No. When he opened the email, still no. Nothing about the subject line told him he was about to come into possession of criminal information. The search was this automated thing that the software did. The research was the installing.

0:29:29 Matt: It's good other things to

0:29:51 Jenessa: So if he was officially investigating, the act of installing spyware would certainly violate the Fourth Amendment without a warrant. But he installed it before that. He left it on inadvertently. The search was when it generated the automatic report, not when you opened the email like you've been doing.

0:30:13 Matt: Is passive this is completely passive activity

0:30:16 Jenessa: Yeah, exactly. Exactly. You just tripped and fell and found it. Oh, my God. But the second email, it's what you've identified. He has already suspected the guy, called him while concealing his purpose, gone to the tech department. He had called his wife and found out there's a second email. This is when you were investigating. So when you saw a second e -mail popped up, the Fourth Amendment comes into to play now. You are a state actor. Opening that and checking the contents was something you did as an agent, not something you Did as a dude checking his own private email. That does not automatically mean it is or isn't admissible. It just means we have to keep asking more questions, right? So basically, from that moment on, we're going to ask all the Fourth Amendment and Fifth amendment type of questions they tried to argue it was plain view and uh the judge was like no what you installed spyware no what

0:31:23 Matt: Sure anybody could have walked in and found that yeah

0:31:32 Jenessa: Are you talking about you definitely didn't and also you had to click to open it like the subject line might have been plain view but even then you could could have uninstalled or disabled this software because, oh my god, now I know. Like, if you accidentally threw a camera into my house, it's not plain view now that you're looking at me.

0:31:55 Matt: Just to so everybody is on the same page about that plain view is either that you can see it as you're walking by from the street or you're in a place where you've been given consent explicitly to be in uh and obviously no one consented to the spyware and he wasn't trying to use it for that purpose so that's that's creative but that's not gonna going to happen. Right.

0:32:11 Jenessa: Yeah. Yeah, absolutely not, the judge says. The wiretap act they try. You might remember from our cats episode, pre -cats, when the Fourth Amendment was treated as like only trespassing could violate it. Wiretapping didn't violate the Fourth Amendment because, oh, I just touched the telephone pole. I didn't touch you. I Didn't touch your house. So we got this wiretapping act that said, oh actually tapping your phone line counts. That was a statute rather than a constitutional invocation. And it said, Oh, public or private. So forget, even if it doesn't, it doesn' matter whether he was under color of law or not. Except in criminal cases, it only applies to oral, A -U -R -A -L transmission, auditory. This is your internet activity. It's not your spoken word. So they say, yeah, yeah. For criminal purposes, as of this 2012 case, I don't know if the law has been amended.

0:33:03 Matt: It's not wiretapping. Interesting. I actually would have thought that Spyware, I don't know enough about this. Okay. That's interesting. Right, right. Okay, sure.

0:33:15 Jenessa: Under civil purposes, you could have gotten private damages, but that's not what this is. Next, we're going to need standing. So do you have a reasonable expectation of privacy at this point?

0:33:21 Matt: In It's a computer that your friend returned after his son had used it to the school, which is school property, do you have a reasonable expectation when you know that you're accessing something you're not supposed to be looking at? That's Interesting. Because it's a computer that is yours, that you have exclusive use and access to, that as far as you know, no one else is looking at. But you also know, I would think, as a technological adult, that there's a good chance an internet service provider might report you or might be looking for you to use that kind of thing. I mean, that's an interesting question. I've never thought about that.

0:33:58 Jenessa: So there is a lot of case law about like when you use your employer's computer, how does that expectation of privacy work? And it gets kind of complicated. In general, like your employer definitely owns that stuff so they they could consent. Typically, if you have a reasonable expectation of privacy, a search warrant is required. Your employer has a reasonable expectations of privacy as to their property, which would include their own stuff, but you can consent to a search without a warrant. So in theory, the school, for example, could have consented. Obviously, there's no consent here. This was spyware. Essentially, what the judge is going to say here is, to whatever extent the school had a privacy right does not go to you, the principal.

0:34:51 Jenessa: Like, they had a right to consent or not, to fight this or not. That's not your privacy right as an individual. This was for students. It was given to you to go give to another student, not for you to, yeah. Yeah.

0:35:05 Matt: For safekeeping, right? You're holding onto it in your custody. And also, remind me, was he on the school network or at a home network when he did this?

0:35:13 Jenessa: Oh, you know, I don't know if that was actually made clear. The network would matter. If you're using public Wi -Fi, you have no.

0:35:19 Matt: You should know. I mean, it's like having a conversation in a library, which you shouldn't be doing anyway. But if you're overheard in a public space, as we know from cats, then no expectation of privacy in a place if you just out in the open talking. And I think that that principle should apply if you are on the library's Wi -Fi that anybody can access without a password. And you should know that hackers can immediately get to what you're doing.

0:35:38 Matt: Interesting. I've just never thought about the legal, because I've never come up in my practice, about the consequences of public versus private Wi -fi. But that's not an element of the case. So just speculating now.

0:35:46 Jenessa: Yeah, and it's a similar issue here that essentially what they say is you obtained this laptop by theft or fraud. You know, we're not going to get into the exact specifics of does this count as stealing or is it just fraudulent that you were supposed to give it back? You haven't given it back yet or whatever. You weren't supposed to have it. Certainly not for personal use. So of course you don't have an expectation of privacy. If I stole your stuff and I did things in your, I stole Your Car and I Did Something in Your Car, I didn't have a reasonable expectation of privacy that nobody would know what I did in Your Car because you're going to get your car back. Like that's not how things work.

0:36:27 Matt: That's interesting. I might push back. Just to make the counterpoint, I mean, there's plenty plenty of case law about the fact that like a hotel room, you have a reasonable expectation of privacy during the time that you're renting a hotelroom that you don't, you know, they have to get a warrant for that. And if this computer is for all intents and purposes yours for the week and you're using it, you might believe you can completely wipe it. Or you might be stupid enough to believe that somehow your internet activity isn't being tracked.

0:36:50 Matt: You might have an unreasonable expectation of privacy as a regular person who doesn't know that much about tech, but the judge didn't find that obviously.

0:36:55 Jenessa: I think you could make that argument if it was a student who had been handed at it and told, your laptop, here you go. And like, you know, when I sign like an employment contract, here's your laptop. It's like, they say like, this is for these uses, you know, whatever. You know, I bet you students probably says you're supposed to only use it for schoolwork. I don't know. But he, I think the key finding here is he wasn't supposed to have it, period.

0:37:22 Jenessa: He was supposed to give it to somebody who was going to give it to a student. Like it wasn't ever supposed to be his in the first place. So they're They're like, you had to know at some point somebody was going to find it and give it to a student. How could you have ever expected this was private? Like, that doesn't make sense. That's what the judge found. I think you can absolutely find a fine line here that's tricky. As to the first email, he wasn't a government actor, so you can just throw all of this out the window. That email's admissible. As to the second one, he was a government actor, but you didn't have a reasonable expectation of privacy. So he was in his state actor capacity still allowed to access this. It doesn't invoke the Fourth Amendment.

0:37:41 Matt: That's interesting. Interesting.

0:38:16 Jenessa: So now we get to those statements he made.

0:38:17 Ad: [Ad break 3 — ad music]

0:38:19 Jenessa: When they get into the office, the

0:38:22 Matt: So let me just set that data, because again, just listening along here and playing along at home, I think that everybody understands that this is at this point a custodial interrogation at the point at which the door is closed and you're in the room with two FBI agents and you feel like you can't leave. You are in the classic scenario of, am I free to leave? Maybe not. Although he didn't ask, he could have asked, and maybe they would have said yes, but he certainly had every reason to believe he was under investigation for something at the part of which they start asking these questions about something he knows he's lied about. That would invoke a whole set of rights, and starting with Miranda, of course, as well as his right to counsel. None of these he invoked, but that's interesting. So how did the Miranda issue come down?

0:38:59 Jenessa: Judge said it was not custodial. I think this is at least borderline like I would lean towards it was custodian. He gives us a five -factor test here. So the hallmarks of a custodial interview would be the language used to summon the individual is number one, two, the extent to which the defendant is confronted with evidence of guilt, three, the physical surroundings of the interrogation, four, the duration of the detention, and five, the degree of pressure applied to detain the individual.

0:39:42 Matt: I can see the point here. It's his office. They said they were stepping out of the hallway because it was noisy. Let's see, it's dark in a quieter place. They start asking about just a general thing that might touch on the school that really, because he's the principal of the school, it would make sense that they'd be asking him about the custody of this laptop. And it's his Office, and I can feel like you said there there was another exit.

0:40:00 Matt: Even if it's a small place, he feels like he could still go out the back door. He testified, of course, it's in his interest to do that, but he testified that he felt like he was being coerced and pressured by his buddies who'd come in to start asking about the thing he knew he was guilty of. So that's interesting. I can see, so the judge came down finding this was not a custodial interrogation because of those factors.

0:40:18 Jenessa: And it's hitting on exactly what you're saying. You know, they were making social small talk beforehand. It's, you know, they didn't say we need to step into your office. It seems to have been a mutual agreement to go into the office. He wasn't handcuffed, that there were multiple doors. Doors, I think you really need to think more carefully about the fact, though, you, the judge, that agent was seated in such a way that he was, you would have had to go past him to get to the doors. I think that matters. That is physically intimidating to me. The judge says he had freedom of movement, that, yeah, the one agent did offer to leave the room when he saw that you were uncomfortable. So, like, yeah if he left then it would be very easy for you to leavethe room. So So was he really blocking the door? I think this one is an edge case for sure.

0:40:25 Matt: What about the social pressure? Does the judge talk about the fact that this is somebody who knows the suspect very, very well, that they're well acquainted? And wouldn't you feel like an extra level of pressure sure to stick around when it's your buddy asking questions. And maybe you want to come clean to your friend who was at your wedding versus Johnny Law, who just shows up to ask you questions with a badge. I feel like that has to be a factor. And it's inevitable in small towns.

0:41:32 Jenessa: Yeah. See, I would have gone that way. And I think the judge kind of took it the other way that like this was just a calm, casual chat. Isn't that a sign of the pressure? To me, it is. There was something inherently coercive about your friend showing up to do that interview. I don't love that.

0:41:52 Matt: We've known each other a long time. You can be honest with me, right? I mean, I'm sure there was some implication if you didn't say that directly.

0:41:58 Jenessa: And to say that like, oh, there wasn't any threats or promises. You said we're going to have to tell the whole freaking town. But if you tell me, we'll only tell the FBI. How is that not?

0:42:09 Matt: There's also the implication that I can help you out because I'm your buddy and you might have to talk to somebody you don't know, right?

0:42:14 Jenessa: Mm hmm.

0:42:14 Matt: Then maybe you won't get such a good deal. So why don't you get in the car with me and let's go looking for the laptop, right?" I mean, I can see how this plays out. Not in his favor at all.

0:42:23 Jenessa: Yeah. So I really think if this were a law school exam, I think if you assessed it either way, the point would be what argument you make that you put down the correct rule and that you assess it.

0:42:34 Matt: It's fascinating.

0:42:35 Jenessa: Yeah, it's a tough one. I do think it's a tough one in the sense that like, yeah, of course he wasn't formally arrested, but that's not the only thing that matters. That's the really important point with this custodial atmosphere kind of idea. A police dominated atmosphere is one of the terms that comes up a lot. And I'm like, Yeah, so you could say they're playing clothes and they're buddies. But like there is that moment where the flip happens and they are not your buddy anymore and they Are the police. Ultimately, the judge is going to say this was non-custodial. He could have left. He could have said, I'm out. Don't ask me any more questions. And he didn't. And they weren't making him feel like he had to. They weren't Making him feel like he was under arrest, essentially. So no, they didn't have to read him his Miranda rights at that point, which they hadn't. So what he said was admissible.

0:43:31 Jenessa: Right now we're at we have two emails that were linking the laptop to the activity. And if we only had that and we couldn't prove he was in possession of the laptop, that would have been harder. But now we're admitting his confession that he used the laptop. And so we're going to have to see if we can access that material.

0:43:51 Matt: Classic Miranda situation because the only evidence of actual guilt to that person is his own confession. Made to his buddy.

0:43:58 Jenessa: We got one final question. When they just gave him a piece of paper. And they said, I don't want to embarrass you. Read this and sign it. I'm not going to read you your rights in front of the whole freaking city. Which like, oh my God. Just do it. Just always do it, find a way to do it my God, anything, just do it! Does that count? You gave it to him written. Is that good enough?

0:44:22 Matt: Whisper in his ear. He's a school principal. I mean I guess you can't really look at the individual circumstances. It is not good enough because the Supreme Court has required that we actually tell people these things. But he is operating at a presumably higher level of literacy and cultural and legal understanding, but that's not a reason. We've already discussed that in the Miranda episode. It doesn't matter how acquainted you are to the system or what your level of anything is, but I can see how people might think that.

0:44:53 Matt: But the judge, I assume, found that he did not receive his rights.

0:44:49 Jenessa: Mmh. Precisely. Yeah, correct. Yeah. So they said at the point when you made a decision, you were going to arrest him. And it was also clear to him that he was going to be arrested. He's confessed to a crime. You had to read him his rights. And you had to like for real read him his rights. The burden is very high on the government. Does that mean you had to say everything out loud in exactly the order that you see on the cop show? No, we've talked about that before. But is it enough to pass him a piece of paper and just say, do you understand it? Yeah. When the guy is in the middle of getting arrested for an extremely serious federal crime? No, like you have to actually check that he understands the signature is signatures aren't magic. They mention exactly like you say, the defendant's prior awareness of his rights because of education or intelligence does not shift the burden away from the government. That would be circumstantial evidence for the cop to say, I thought he understood it. That doesn't count.

0:45:45 Matt: Seems like a smart guy.

0:46:01 Jenessa: Yes, you have to have a good reason to believe they were informed in clear and unequivocal terms of their constitutional rights. And he just wasn't. Anything he said after that point, it became custodial when he confessed and you were walking out the door to obviously arrest him. No, that is going to get suppressed. Now, what he said that was relevant after that Point, I guess we don't know because it's purposely not in here, right? So what did he say in the back of the car? I don't Know. They never found the laptop. So did he Say anything useful while they were looking for it? I don' t Know. But if he had said anything useful at that point it is suppressed on On the other hand we've got everything we need between the two emails and the confession I think you're good

0:46:43 Matt: That's how, sure. Right. It's a pretty simple crime.

0:46:51 Jenessa: Yeah, spoiler alert, he does end up convicted when this finally goes to a jury, but we got the whole kitchen sink in this one, and, um, I thought you might find that interesting. And I really appreciate the um you really nailed it on spotting exactly what the problems were gonna be

0:47:10 Matt: Well, thank you. I can't wait to take the bar. It seems like I might just be a lawyer yet. No, this is an interesting one. I do love a good fact pattern, even with the dark crime at the center of this.

0:47:11 Jenessa: Here yeah you never know yeah

0:47:23 Matt: It's really, this was a fun way to break down a lot of the stuff we've been talking about over the last few months, and especially the great victories of the Warren court. And it actually, I think it goes to show that he got every opportunity to use these rights and also to argue the ones he didn't receive. This is actually an interesting pushback to people who say that cases like Miranda and Katz are going to destroy the justice system, as was said at the time in the 60s, that you're going to keep law enforcement from ever prosecuting anybody, right? He got to present those. I assume that some of this was granted in part, at least, and some of the evidence obviously was thrown out.

0:47:23 Jenessa: Yeah Yep

0:47:54 Matt: But like you said, there's still enough to convict. Justice was still done. And I think this really goes to show that these golden age Warren court victories, these great cases that we look back on, are not excusing culpability. They don't actually keep people from being convicted when there's good evidence and yeah this is interesting stuff

0:48:12 Jenessa: It really holds these agents to a higher standard too of like at the end of the day this guy really should have known better to earlier in this process request warrants and turn it over to somebody else I know that we can look at this and go oh my god you're scared it's your friend and that makes you engage in some really poor poor judgment or not want to start an investigation into your friend. But at the same time, the correct judgment to make at that point is to say, I'm not making good decisions.

0:48:44 Jenessa: Exactly. You're too close to it. As opposed to, I want to see if I can skirt the line on not technically investigating you to try to exonerate my friend in my own mind so I can feel better. Like, no, you have to just make this some other agent's problem is the right answer. So they end up in this situation when they didn't have to. So it does hold the government to a high burden.

0:48:42 Matt: Yeah, I'm too close

0:49:11 Jenessa: But like you said, at the end of the day, the evidence gets in. You didn't Have a reasonable expectation of privacy to this extremely stupid mistake to use the school laptop. Stop it.

0:49:11 Matt: Sure

0:49:25 Jenessa: I mean, also don't do this.

0:49:23 Matt: Sure like he's your own computer well right yeah

0:49:26 Jenessa: But you know, don't commit crimes on employee computers oh

0:49:30 Matt: If the guy wasn't an FBI agent if he was a plumber or whatever a dentist and he just believes after all this you know that his friend is doing this let's say it's a one-party consent state in which it's okay for him to just record him on the phone and he calls him up and he's like look, I've been getting these emails I know you're looking at these sites what's going on and he confesses to it over the phone and then he turns that that recording into the police. I don't think that would have been suppressed because that's just a couple of guys talking.

0:49:52 Jenessa: Yep, hundred percent. What this all comes down to is that under color of law issue because he's an FBI agent like he's flashing his badge sometimes which is helping him get information that is why it's so important to say the government cannot get away with, 'Oh, so if we officially investigate we have to respect your rights so what we're gonna do is just not officially investigate people No, that's not how this works, but I think you're entirely right. If it was just two civilians, yeah, I

0:50:23 Matt: I'm with it. He would have been cooked.

0:50:28 Jenessa: Mean obviously you could investigate your

0:50:31 Matt: Sure. Perfectly legal. But of course, nowhere near as bad as the ultimate offense, which is running a parking garage in Wilmington, Delaware, obviously. So as we know, under color of law from the parking authority case. Great stuff. Really appreciate this. This is a lot of fun. I actually didn't know what to expect from this episode, but I hope everybody else enjoyed this as much as I did.

0:50:40 Jenessa: Friend yes yeah

0:50:50 Matt: I think that's good. Any other thoughts lots about Northern Marianas. I think we covered it.

0:50:50 Jenessa: I think so I doubt we'll revisit the Northern Mariana Islands again but you never know oh

0:51:00 Matt: It was a fun trip, and it's freezing out there, so nice to think about the jungle. All right. Well, stay warm, everybody. We'll see you next time.

0:51:04 Jenessa: Yes, that's See ya. The cat barfed. We set off a specific alarm to feed him to try to train him to beg less. He definitely learned that noise means he's getting fed. The opposite corollary of not that noise means you're not getting fed, that has been harder to deduce as a cat. He's staring me down like I am the food right now I'm gonna throw like four treats on the floor so he'll leave me alone I'll be right back that's exactly the issue we need to address first that's the cat alarm

0:52:18 Matt: Common issue when we're recording, right after you feed the cat.