Exigency, Manufactured

Among the tactics used to investigate a crime, one of the easiest and most useful is “knock and talk,” where agents without a warrant go to the home of a suspect, knock on the door and see what comes of it. Since they need no warrant to knock on a door like anyone else, it suffers from neither the need to show probable cause and the effort to prepare papers, nor judicial review. And people being people, it’s remarkably effective because people just can’t  manage to just say “no.”

As part of an investigation named “Operation Dark Room,” federal agents discovered financial ties between Meyer and individuals in the Philippines who were livestreaming sex acts involving children. To gather more information, two agents decided to visit Meyer at his home and knock on his door. During the course of the conversation, which took place in the agents’ car, Meyer revealed a number of facts that aroused suspicion, including that he had personal and financial ties to the individuals involved in the abuse. When he further admitted that he used a computer and cellphone to contact them, the agents asked if he would be willing to turn those devices over for an examination.

When Eighth Circuit Judge David Stras says “to gather more information,” it suggests that the agents didn’t already have all the information they needed to know that Meyer was up to his eyeballs in this horrible crime. Master criminal that he was, Meyer’s “Skype username was ‘prettyvirginfilipino’ and that the profile he used was a variant of the first name of one of the minor victims.” Financial connections are pretty much an open book to law enforcement if they care to look.

When the agents asked for his computer and phone, Meyer told them he would hand them over, but only after he checked his emails and, well, his house wasn’t clean enough for company. That was all they needed to know.

At that point, the agents sprang into action. Worried that Meyer would destroy evidence if they waited any longer, one of the agents called a prosecutor for advice on whether “an exigent circumstance existed.” When he was told that it did, the agents again knocked on Meyer’s door; searched his home for electronic devices; and seized two computers, a cellphone, and a hard drive. One of the agents then successfully applied for a search warrant.

The agents found a huge hoard of kiddie porn and, in a masterful use of understatement, Judge Stras noted “the evidence spelled trouble for Meyer.” After Meyer’s motion to suppress was denied, he took a conditional plea and was sentenced to 30 years. On appeal, he challenges, inter alia, whether exigent circumstances existed and, if so, whether the agents created the exigency they then exploited by the warrantless search and seizure.

By the time the agents decided to enter Meyer’s home, they had probable cause. See Kaley v. United States, 571 U.S. 320, 338 (2014) (explaining that probable cause “is not a high bar”). They knew that he: (1) had ties to the individuals who were livestreaming the abuse; (2) had stayed with them when he visited the Philippines; (3) had paid thousands to them and one of the minor victims; and (4) did not tell his wife about some of the money he sent, despite claiming that the payments were tied to his humanitarian work.

Ironically, the court somehow ignored the inexorable conclusion that if this was so, they possessed probable cause before the “knock and talk” occurred. At the time they  decided not to bother with the warrant requirement, they could have gone to Meyer’s home with a warrant and seized his computers.

But after asking for his computer and other devices, and being turned down, at least for the moment and with “suspicious” excuses, there was exigency.

Knowing that data can be deleted at the touch of a button, the agents decided that they needed to act fast. See Riley, 573 U.S. at 391. Given Meyer’s insistence that he have an opportunity to be alone with his devices first, they reasonably concluded that he was hiding something. And if they were to wait to conduct the search, as he had suggested, the something that he did not want them to see would be gone. So the agents reasonably determined that it was “now or never”: “search . . . immediately,” or forever lose their chance. See Riley, 573 U.S. at 391 (quotation marks omitted).

Of course, once the agents alerted the target to the fact that he was under investigation, all of this would be both true and obvious, such that there was nothing that Meyer could have said, once he failed to assert his rights and decline to speak to them at the outset, other than consent to the search and seizure that would not have given rise to the exigent circumstances, “now or never.”

While the argument on appeal was that the agents created the exigency, it was based on the agents “planting the idea” in Meyer’s head by their suggestions that they couldn’t just let him go back in and destroy the evidence. The court rejected this argument.

The most obvious problem with Meyer’s theory is timing. By that point, Meyer had already made a number of suspicious comments, including offering multiple excuses for his refusal to cooperate. For the agents to have caused the exigency, they must have “manufacture[d]” or “create[d]” it. Ramirez, 676 F.3d at 761 n.3 (quotation marks omitted). They could not have manufactured or created an exigency that already existed.

While this conclusion may not be wrong, it’s entirely circular. The court’s hinging the exigency on Meyer’s “suspicious” excuses for not allowing the agents to search his home and seize his computer and other devices were the sort of ordinary banalities that a person would say in lieu of a clear refusal. Meyer didn’t want to appear uncooperative while not wanting to cooperate, so he made “polite”excuses. Once he knew what the agents were there for, would any excuse or refusal has avoided the exigency argument?

To the extent Judge Stras’ opinion isn’t a dive into circular sophistry, it’s noted in footnote two, where he states what every competent criminal defense lawyer tells every sentient client.

2 Meyer did more than just “stand on [his] constitutional rights.” King, 563 U.S. at 470; cf. Ramirez, 676 F.3d at 762–64 (concluding that there were no exigent circumstances when the suspect merely declined to let the officers enter and then shut the door on them). Rather, he gave suspicious answers that led the agents to reasonably conclude that he wanted time alone with the devices for a reason he could not say out loud: to destroy evidence. See United States v. Leveringston, 397 F.3d 1112, 1116 (8th Cir. 2005) (noting that officers may draw reasonable inferences when evaluating whether exigent circumstances exist).

The only thing Meyer could have done to avoid this inevitable outcome from the agents’ “knock and talk” was to assert his Fifth Amendment rights to counsel and refuse to speak with the agents. Whether this would have been honored is a mystery, but anything else would have given rise to the exigency relied upon by the Eighth Circuit, even though they could have come with a warrant in the first place.

 

17 thoughts on “Exigency, Manufactured

      1. SHG Post author

        Judges are very knowledgeable about technology. They know there’s a delete button somewhere on the keyboard, and their clerks can show them where it is if necessary.

        1. LY

          “DELETE” doesn’t really delete, even “SHIFT” “DELETE”. It takes a bit more work and a certain amount of time. Even then there’s a reasonable chance of recovering at least some data if you’re determined enough, depending on how long it sat on the disk. That’s why DoD specs require physical destruction of storage media at disposal.

            1. LY

              If you care to go deeper, all delete does is remove the pointer to the first block of the file in the directory. There are tools even at the consumer level that will scan a disk to find that first block and then each block points to the next. If you are really serious there are even techniques to shift the read head off the tracks a fraction to read the magnetic leakage from old data, depending on how long it was there. IIRC, there are similar techniques to read residual charge on SSD. But with wear leveling used on SSDs now it’s typically even easier.

              DoD spec deletion requires multiple random writes across the disk and then if it was sensitive data they still destroy the disk at the end.

              If this is more than you cared about just delete the post.

    1. Kurt

      I’m put in ind of a case that ended in a very unexpected way, with complete deletion at the single touch of a button. The subject of the investigation apparently had many cameras around his house and detected police coming to his door.

      He hit the button on his computer that ignited the thermite. What he didn’t realize is that there was *far* too much thermite in the case, and he died in the fire that also destroyed his house.

      So, while no, under normal circumstances data deletion isn’t possible…

      Kurt

  1. B. McLeod

    Pretty weak reasoning, and the result is likely really due to the known evilness of kiddie porn. This guy is looking at 30 years for digital images, which is more than Ghislaine Maxwell is facing if she is convicted of co-managing a giant, child sex trafficking ring for the rich and famous.

    Wouldn’t anyone who regularly communicates by email want to check their email (and perhaps set auto-replies) before giving up all the devices they use to access their email? That isn’t suspicious at all.

    1. SHG Post author

      While few judges are going to cut a kiddie porn deft a break, would this have been much different if it was drugs?

    2. Bryan Burroughs

      It’s always the shitty cases where important case law is decided. I learned that when perusing Bennett’s blog.

      It wouldn’t have killed them to get a damn warrant before they knocked on this guy’s door.

  2. Ian C>

    If the perp wasn’t a techie and was allowed to access his device to delete incriminating data before granting access to the feds, would a warrant have been required for the officers to recover the files using either operating system utilities, or forensic tools they may have had with them?

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