Password protected user files created a reasonable expectation of privacy

Defendant lived with his mother, and they shared a computer. There were two user profiles on the computer and both were password protected. Defendant’s child’s mother called her and told her that she found child porn on her computer after the defendant stayed there. His mother tried to get into his user files and could not. She then consented to delivering the computer to the police and to searching it. He had a reasonable expectation of privacy in the password protected files. She consented to a search of the computer because she owned it and could deliver it to the police, but the court requires a hearing on whether the expectation of privacy in the password protected files protects the defendant’s files from her consent. United States v. Robson, 2007 U.S. Dist. LEXIS 53627 (E.D. Mich. July 24, 2007).

Comment: The case law is finally starting to recognize that password protection of a computer or files in a computer is equal to locking a door or a briefcase. This case is one of several this year respecting a password as an expectation of privacy. A hearing is required in this case for the defendant to develop more proof on the issue.

Defendant’s guilty plea to a possession charge foreclosed his civil case under Heck. He could have contested his search in the state proceeding. Richard v. Macomb County Sheriff Dep’t, 2007 U.S. Dist. LEXIS 53648 (E.D. Mich. July 18, 2007).*

An officer with reasonable suspicion who sees a scale with drug residue on it and other evidence of drug trafficking has, under the totality of circumstances, justification for seizure. That led to a search warrant and finding a gun. United States v. Armstrong, 2007 U.S. Dist. LEXIS 53603 (D. Minn. June 11, 2007):

Electronic gram scales of the type seized in the investigation in this matter (Second Hearing Exh. No. 1) are commonly used to weigh drugs and to repackage into smaller quantities for resale, and indeed, Mr. Boulger has previously seen this kind of scales in drug trafficking investigations. While discovery of individual evidentiary items, considered separately and in isolation, would not necessarily support a police officer’s belief that a drug trafficking offense was occurring, the discovery of such items, including an electronic gram scale, a razor blade, and drug residue, located in proximity to one another, and considered in their totality, constitutes evidence to support the belief that the scale was being use to weigh drugs and to facilitate their redistribution.

The “fugitive disentitlement doctrine” within the forfeiture statute at 28 U.S.C. § 2466, the same as the rule that a fugitive forfeits his appeal, applies to a civil forfeiture action involving the home of the potential claimant. The affidavits from the government, however, do not show that the claimant fled knowing that there were warrants and a forfeiture pending. The government’s motion for immediate forfeiture is overruled without prejudice to refile it if they can prove it. United States v. Real Property Known as 3678 Waynesville Road, Spring Valley, Greene County, Ohio, 2006 U.S. Dist. LEXIS 96539 (S.D. Ohio March 7, 2006).*