IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA STATE OF OKLAHOMA, ex rel., ) R
IN THE DISTRICT COURT OF OKLAHOMA COUNTY
STATE OF OKLAHOMA
STATE OF OKLAHOMA, ex rel., )
ROBERT H. MACY, DISTRICT )
ATTORNEY OF THE SEVENTH )
PROSECUTORIAL DISTRICT, )
)
Plaintiff, )
vs. ) Case No. CJ-93-6651
)
ONE (1) PIONEER CD-ROM CHANGER, )
MDL. #DRM-600-A, SER# ML 8515021; )
ONE (1) PIONEER CD-ROM CHANGER, )
MDL. #DRM-600-A, SER# ML 8515077; )
FOUR (4) SONY CD ROM DRIVES, MDL. )
#CDU 6201-20, SER#'S 810593, 808759)
808986, & 806083; TWO (2) COMPUTER )
POWER CONTROLS, NO MODEL OR SER. )
NUMBER; ONE (1) KEYBOARD NMB TEC. )
MDL. RTL01, SER# 19257111; ONE (1) )
KEYBOARD MAXI SWITCH, MDL#2186002XX)
SER #19257111; ONE (1) WOODS POWER )
STRIP MDL# 417 NO SER.#; ONE (1) )
LONALITE POWER STRIP, JDL# 417 NO )
SER.#; ONE (1) BROOKS POWER STRIP )
MD#T6-6 NO SER#; ONE (1) US )
ROBOTICS MODEM, SER # )
0002670001732718, MDL#14400; ONE )
(1) US ROBOTICS, SER # )
0081000000002753; ONE (1) HAYES )
MODEM MDL #5100, SER#A00351003317; )
ONE (1) ROBOTICTS 2400 MDL#UNKNOWN,)
SER #0033-03068608; ONE (1) HAYES )
MODEM MDL. #5100, SER#A00351003311;)
ONE (1) DGI BOARD; ONE (1) MODEM )
ROBOTICS SER# 0066-16045021020891; )
ONE(1) HAYES MODEM SER#A00151003142)
ONE(1) MONITOR HELM ENG. MDL # )
CM-414E, SER #038213073; ONE )
MIMMICOR MONITOR, MDL# MM1453M1, )
SER#90405186; ONE (1) COMPUTER CUP,)
W/DRIVES, NO SER# OR MDL#; ONE (1) )
COMPUTER CPU W/DRIVES, NO SER# OR )
MDOL#; )
Defendants. )
BRIEF IN SUPPORT OF MOTION TO DISMISS
COMES NOW, ANTHONY A. DAVIS, the owner of the above described
property, and respectfully requests this Court dismiss the above
entitled forfeiture action.
PROPOSITION I
THE PROPERTY WAS SEIZED PURSUANT TO AN
UNAUTHORIZED AND WARRANTLESS SEARCH.
On July 20, 1993, the Oklahoma City Police Department entered
the business office of Anthony Davis at 1501 Southeast 66th Street,
Oklahoma City, Oklahoma, pursuant to a search warrant (See Exhibit
"A"). By the time their search ended, they had dismantled and
seized a network computer system, the pieces of which are the
property listed herein. However, an examination of this search
warrant and the affidavit requesting the warrant indicates that
there was no mention of a computer network or computer bulletin
board system. There were no exigent circumstances and no legal
justification for the police officers' unilateral decision to
expand the scope of the search warrant beyond that which was
granted by the Judge.
The Fourth Amendment of the United States Constitution tells
us that warrants must particularly describe the place to be
searched and the person or things to be seized. The United States
Supreme Court has consistently articulated the position that a
search warrant prevents the seizure of one thing under a warrant
describing another. "As to what is to be taken, nothing is left to
the discretion of the officer". Marron v. U.S., 48 S.Ct. 74
(1927). To allow searching and seizing items beyond which is
described in the warrant would allow warrants to become
impermissibly general and thus violate the Fourth Amendment. See,
Warden v. Hayden, 87 S.Ct. 1642 (1967), and Andresen v. Maryland,
96 S.Ct. 2737 (1976).
Oklahoma case law mirrors the U.S. Supreme Court's concern for
particularity in description of items to be seized. See, Tosh v.
State, 736 P.2d 527 (1987), Coffey v. State, 661 P.2d 897 (1983),
and Jones v. State, 632 P.2d 1249 (1981). Case law indicates that
warrantless searches are per se unreasonable, subject only to a few
specifically established and well delineated exceptions. Coolidge
v. New Hampshire, 91 S.Ct. 2022 (1971). If the State is to rely on
one of the specific well delineated exceptions allowing warrantless
search and seizure, it is the State's burden to show the Court that
such reliance is lawful.
Under certain fact situations, such well delineated exceptions
will not justify a warrantless search. This exception to a search
outside of a warrant is disallowed in situations like the case at
bar, as described in Coolidge:
But where the discovery is anticipated, where the police
know in advance the location of the evidence and intend
to seize it, the situation is altogether different. The
requirement of a warrant to seize imposes no
inconvenience whatever, or at least none which is
constitutionally cognizable in a legal system that
regards warrantless searches as 'per se unreasonable' in
the absence of 'exigent circumstances'. At page 2040.
But to extend the scope of such an intrusion to the
seizure of objects -- not contraband or stolen or
dangerous in themselves -- which the police know in
advance they will find in plain view and intend to seize,
will fly in the face of the basic rule that no amount of
probable cause can justify a warrantless seizure. At
page 2041.
Testimony at the preliminary hearing from the affiant,
Sergeant Anthony Gracey, revealed that Gracey was specifically told
by Anthony Davis several months before the search in question that
Davis owned and operated a computer network where people could dial
in and access the same type of discs Davis was selling to Sergeant
Gracey. At the preliminary hearing, Gracey testified that after he
bought an adult CD from Davis in June 1993, that the following
conversation occurred:
After I purchased the CD, we were setting there talking.
After I had given him the money, I remained around for a while
and he (Tony Davis) said 'you know I have the same type of CDs
available -- or same type of programs available on the network
that I have on that disc.' He said, 'come on over here and
I'll show you the computer -- you know, my computer system, or
I'll show you the CD.' (Preliminary Hearing Transcript at
P.29).
After revealing this information, Gracey was asked the
following question:
Q. Now of course networks mean a lot of different things
to different people. Let me make sure I understand...You
said that you took that to mean that he had a network
where people could access or view these matters other
than just himself. Was that the way you took it?
A. (Gracey) Yes, sir. (Preliminary Hearing Transcript at
P.29).
Gracey later testified that Davis bragged to Gracey that he
had the largest network in the state. When Gracey was asked what
this meant, the following exchange occurred:
Q. When he said he had the largest network in the state
did you take that to mean that a lot of people could call
in and look at whatever CDs he had?
A. (Gracey) Yeah. (Preliminary Hearing Transcript at
P.31).
Despite the specific knowledge that Mr. Davis had a computer
network which allowed persons to view allegedly pornographic disks
like Sgt. Gracey purchased, Gracey made no mention of this fact to
the Judge in his affidavit for search warrant.
Sergeant Mark Wenthold of the Oklahoma City Police Department
Vice Division was also on the scene and actively involved in the
search of Anthony Davis' business. Sergeant Wenthold explained at
the preliminary hearing that he too had knowledge of Sergeant
Gracey's conversation with Anthony Davis concerning this computer
network that was on the premises. In describing the search
Wenthold stated:
(We) went in one room and there was a large computer
system set up, which we had discussed that he had a
network system that he had talked about with Tony
(Gracey) when he was making the buys. Tony (Gracey) had
never seen the system. He had talked about it, so it
really didn't surprise us when we found it, but of
course, we couldn't describe this system in a warrant
when we hadn't seen it yet. [Emphasis added.]
(Preliminary Hearing Transcript at pp.65-66).
The judge who issued the search warrant in question was not
told of a computer network on the premises which might be used to
transmit electronically those disks which the police had claimed
were pornographic. A reading of the affidavit and the search
warrant itself makes it clear that the police were only authorized
to search for evidence relating to the crime of selling allegedly
pornographic CD disks. The computer equipment seized and listed
herein in no way related to the crimes of possession or sale of
pornographic CD disks upon which the warrant was issued.
PROPOSITION II
ITEMS TAKEN PURSUANT TO AN ILLEGAL SEARCH AND
SEIZURE CANNOT BE USED IN A CIVIL FORFEITURE
PROCEEDING.
Oklahoma law recognizes the principal that items which would
be inadmissible in a criminal court pursuant to the exclusionary
rule are likewise inadmissible in civil proceedings. The Oklahoma
Supreme Court in the case of Turner v. City of Lawton, 733 P.2d,
375 (Okla. 1986), held as follows:
Article II, Section 30 (of the Oklahoma Constitution),
must be strictly construed, and unless it can clearly be
shown that the officers making the search complied with
the legal prerequisites necessary to constitute a lawful
search, the evidence seized by an unreasonable search
must be suppressed. The absolute security granted by the
Oklahoma Constitution Article II, Section 30, against
unlawful search and seizure exists without reference to
the guilt or innocence of the person whose property is
searched and without consideration of whether the
proceeding is civil or criminal in nature.
Article II, Section 30 of the Oklahoma Constitution is modeled
after and precisely parallels the language in the Fourth Amendment
of the United States Constitution. It states:
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches
or seizures shall not be violated; and no warrant shall
issue but upon probable cause supported by oath or
affirmation, describing as particularly as may be the
place to be searched and the person or thing to be
seized.
Although the Turner case did not involve a civil forfeiture
proceeding, the holding in Turner indicates that illegally seized
items are inadmissible in all civil proceedings.
Case law throughout the United States supports the holding
reached by Oklahoma's courts in the Turner case. Research by this
attorney found seventeen states which reached the same conclusion
as the reasoning in the Turner case. (See Pitts v. State of
Georgia, 428 S.E.2d 650 (1993), Richardson v. $4,543.00 United
States Currency, 814 P.2d 952 (Id. 1991), Eads v. Hill, 563 N.E.2d,
625 (In., 1990), Illinois v. 1968 Cadillac Automobile, 281 N.E.2d,
776 (1972), Parish of Jefferson v. Bayou Landing Limited, Inc., 350
So.2d 158 (La., 1977), State of Maine vs. One Uzi Semi-automatic
9mm Gun, 589 A.2d 31 (1991), State of Missouri v. Goth, 682 S.W.2d
68 (1984), State of Nebraska v. One 1987 Toyota Pickup, 447 N.W.2d
243 (1989), State of New Jersey v. Jones, 438 A.2d 581 (1981),
State of New Hampshire v. Young, 536 A.2d 1270, 581 N.E.2d 1104
(Ohio), City of Portland v. $4,345.00 in U.S. Currency, 845 P.2d
1301 (1993), Leogrande v. State Liquor Authority, 268 N.Y.S.2d 433
(N.Y. 1966), $2,067.00 in U.S. Currency v. State of Texas, 745
S.W.2d 109 (1988), Davis v. State of Utah, 813 P.2d 1178 (1991),
Franklin v. Klundt, 746 P.2d 1228 (Wa., 1987), and State of Wyoming
vs. $11,346.00 in United States Currency, 777 P.2d 65 (1989)).
Iowa and Tennessee were the only two states whose case law seemed
to differ in any way from the Turner case.
The United States Supreme Court dealt with the issue of items
seized in violation of the Fourth Amendment and whether such items
were admissible in civil forfeiture proceedings in the case of One
1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246 14
L.Ed. 2d 170 (1965). The Court held that the Fourth Amendment
exclusionary rule applies not only to criminal proceedings, but
also to those forfeiture proceedings which are quasi criminal in
character. The Court found that a forfeiture proceeding is quasi
criminal in nature if it intends to impose a penalty on the
individual for violation of the criminal law.
The forfeiture statute used by the State, 21 O.S. 1040.54
appears almost immediately after 21 O.S. 1040.51, the criminal
trafficking statute with which Anthony Davis is charged. The
wording of the forfeiture statute indicates that it is predicated
on a criminal charge of trafficking. The state of Washington
considered whether one of their forfeiture statutes was quasi
criminal in the case of Deeter v. Smith, 721 P.2d 519 (1986). In
Deeter, it was pointed out that the Washington statute concerning
forfeiture is in the same title and section as the punishment
statutes for drug violations. Due to the location and nature of
the forfeiture statute, the court concluded that the forfeiture
proceeding had as its primary purpose to penalize individuals who
participated in the illegal transportation of controlled
substances. The Oklahoma Forfeiture Statute in question is clearly
quasi criminal in nature.
PROPOSITION III
BECAUSE PRIVATE ELECTRONIC MAIL AND PUBLISHING
INFORMATION WERE CONTAINED WITHIN THE
COMPUTERS SEIZED, A REGULAR SEARCH WARRANT
WOULD NOT HAVE BEEN SUFFICIENT TO ALLOW SEARCH
AND SEIZURE OF THE PROPERTY IN QUESTION.
Assuming arguendo that the Court finds there was sufficient
language in the warrant, or the Court considers the search
justified based on an exception to the warrant requirement, neither
justification is sufficient in the case at bar. Electronic
information inside the computers seized contained constitutionally
protected private communications and protected publishing
information, and such information cannot be searched or seized
without meeting heightened requirements formulated to protect the
constitutional rights of the possessor.
A. The Search and Seizure Was Conducted Contrary to the
Electronic Communication Privacy Act Specialized Warrant
Requirements and Thus Violated the Fourth Amendment
Protection Against Unreasonable Search and Seizure.
The Electronic Communications Privacy Act, 18 USC 2510 et
seq., was originally passed by Congress to regulate wire tapping
only. The law was expanded in the late 1970s to include electronic
communications such as private electronic mail. Approximately
150,000 pieces of the electronic mail from throughout the world was
housed within the computer equipment seized. Some of these
electronic messages were private mail, viewable only by the
recipient (See Exhibit "B").
Section 2518 of the Act spells out the procedure to allow a
seizure of items containing electronic communications. After
application for a warrant is made to a judge, specific findings
must be made by the judge to approve the warrant. Subsection 3 of
Section 2518 spells out some of the requirements to be included in
the affidavit for this type of warrant.
(3)(a) There is probable cause for belief that an
individual is committing, has committed, or is about to
commit a particular offense enumerated in 2516 of this
Act.
(3)(b) There is probable cause for belief that
particular communications concerning that events will be
obtained through such interception.
(3)(c) Normal investigative procedures have tried and
have failed or reasonably appear to be unlikely to
succeed if tried or if to be too dangerous.
Police officers on the scene were advised by their "computer
expert" Oklahoma City Police Officer, Gregory Taylor, that a
bulletin board system was functioning at the search location
(Preliminary Hearing Transcript at P.118). A bulletin board
system, by its very nature, is a place for the sending and
receiving of messages. Additionally, the police department was put
on notice shortly after the seizure that private electronic mail
was present within the materials seized (Exhibit "B").
The police may advance the argument that they did not read the
electronic mail. This argument is irrelevant since the ECPA makes
it a violation to merely "intercept" such communication. Section
2510(4) of the Act defines intercept "the aural or other
acquisition of the content of any wire, electronic, or oral
communication through the use of any electronic, mechanical, or
other device." The police "accessed" the electronic mail in the
most fundamental sense by picking it up and taking it. The seizure
prevented any user including Tony Davis from authorized access to
their communications stored within the system. Because the seizure
was not authorized by a properly drafted warrant (or by any mention
on a general warrant), the search and seizure was without
authorization and in violation of the Act.
B. The Search and Seizure Was Conducted Contrary to the
Privacy Protection Act Requirement that the Materials Be
Obtained By Subpoena and, thus, Violated Tony Davis'
First Amendment Rights.
Tony Davis, through his company, Mid-America Digital,
published compact disks containing computer software. Records
seized by the Oklahoma City Police showed that a large number of
sales of "Magnum" CDs, the brand name used by Mid-America Digital.
At the search location, there were approximately 2,000 compact
disks with the name Mid-America Digital, and address 1501 Southeast
66th, stamped on each disk. (See Exhibit "B"). Although the
police seized fifty-seven (57) compact disks that they alleged
showed pornographic pictures, none of the Mid-America Digital disks
were taken (Preliminary Hearing Transcript at P.75, line 23 and
Exhibit "B"). This is because Tony Davis informed the police that
Mid-America Digital published computer software of a non-adult
nature (Preliminary Hearing Transcript at P.76, line 21-25 and
Affidavit of Tony Davis). Neither Tony Davis nor Mid-America
Digital were ever accused or suspected of publishing illegal or
pornographic materials. Nonetheless, the Oklahoma City Police
seized a hard drive within one of the computers which contained
approximately 500 megabytes of software that was to be pressed into
a compact disk for the next disk to be published by Mid-America
Digital.
In 1980, Congress enacted the Privacy Protection Act (PPA), 42
U.S.C. 2000aa, in order to require law enforcement officials to
obtain evidence by subpoena or voluntary compliance, rather than by
search and seizure, from innocent third persons engaged in First
Amendment activities. Congress feared that "use of the warrant
process in such cases will allow the government to invade the
personal privacy of non-suspects in instances where a less
intrusive means of obtaining the material -- either voluntary
compliance or a subpoena will achieve the same goal." Senate
Report No. 874 at 4, 1980 U.S. Code Cong. and Admin. News at 3950-
51. The Act reads:
Notwithstanding any other law, it shall be unlawful for
a government officer or employee, in connection with the
investigation or prosecution of a criminal offense to
search for or seize any work product materials possessed
by a person reasonably believed to have a purpose to
disseminate to the public a newspaper, book, broadcast,
or other similar form of public communication, in or
affecting interstate or foreign commerce...
(42 U.S.C. 2000aa(a).
The computer equipment seized was plainly used "to disseminate
to the public a newspaper, book, broadcast or other similar form of
public communication." First, Mid-America Digital published
collections of software on compact disks and sold it to other
computer users. The definition of documentary materials found in
2000aa-7 indicates that the materials include electronic
information recorded on disks. Secondly, the actual bulletin board
system, before it was dismantled, could be read from anywhere in
the world and offered articles and information to persons dialing
into the system. A list of the "databases" contained within the
bulletin board system for viewing by subscribers is set forth in
Exhibit "B" Page 3.
Subsection (b) of 2000aa indicates that there are four
requirements necessary in order for the government to search and
seize such publishing materials.
(b)(1) There is probable cause to believe that the
person possessing such material has committed or is
committing the criminal offense to which the materials
relate.
(b)(2) There is reason to believe that the immediate
seizure of such materials necessary to prevent the death
of, or serious bodily injury to, a human being;
(b)(3) There is reason to believe that the giving of
notice pursuant to a subpoena duces tecum would result in
the destruction, alteration, or concealment of such
materials; or
(b)(4) Such materials have not been produced in response
to a court order directing compliance with a subpoena
duces tecum and
(a) all appellant remedies have been
exhausted; or
(b) there is reason to believe that the delay
in an investigation or trial occasioned by
further proceedings related to the subpoena
would threaten the interest of justice.
(c) in the event a search warrant is sought
pursuant to paragraph 4b of Section b, the
person possessing the material shall be
afforded adequate opportunity to submit an
affidavit setting forth the basis for any
connection of the materials sought are not
subject to seizure.
There was never any evidence to indicate that the publishing
efforts of Mid-America Digital were in any way related to the
alleged pornography on the "adult" disks seized. In fact, the
police were apparently convinced of this since they left some 2,000
compact disks behind, giving as their only reason that they were
told by Tony Davis that they did not contain pornographic material
(Preliminary Hearing Transcript at P.80). Additionally, the only
aspect of the bulletin board system which was the subject of
investigation, were four (4) allegedly pornographic compact disks
which were voluntarily removed by Tony Davis prior to the
dismantling of the computer network system (Preliminary hearing
transcript at p.54). The police's search and seizure swept so
broadly that a number of First Amendment protected items were
seized in violation of the United States Constitution.
WHEREFORE, premises considered, the respondent owner of the
described property, Anthony A. Davis, respectfully asks this Court
to dismiss the State's forfeiture action and order the return of
the property seized.
Respectfully submitted,
_________________________________
WILLIAM R. HOLMES, ATTORNEY, P.C.
OBA #11867
118 East Main Street
Norman, OK 73069
(405) 329-6600
Attorney for Defendant.
CERTIFICATE OF DELIVERY
This is to certify that on the 17th day of December, 1993, a
copy of the above and foregoing instrument was hand-delivered to:
Civil Division
District Attorneys Office
505 County Office Bldg.
320 Robert S. Kerr Ave.
Oklahoma City, OK 73102
_________________________________
WILLIAM R. HOLMES
E-Mail Fredric L. Rice / The Skeptic Tank