Before we get to the meat of this story, let’s quickly state the obvious: if you plan to commit a violent crime, you probably should not post details about it on Facebook or Craigslist. If you simply must tell the Interwebs of your devious agenda, it’s probably best to close the incriminating window ASAP, so visitors to your home do not see it on your the PC in your living room.
Glad we got that out of the way. Today, we have another fun dumb criminal story for you. It even comes complete with a thought-provoking judicial ruling. Did you know that if a police officer simply moves a computer mouse or presses a key to wake a computer up from sleep mode, that it constitutes a Fourth Amendment search? Well, neither did a Wisconsin police officer who was investigating a man who allegedly threatened to shoot up a shopping mall (gavel bang: Legal Blog Watch).
More on the case, US v. Michael Musgrove, plus Musgrove’s, original thug life Craigslist posting after the jump….
[P]olice received a few citizen calls about a threat posted on Craigslist regarding possible planned violence at a local shopping mall. The police contacted Craiglist and obtained contact information for the person who posted the threat. They visited the man at his home, and the man invited the officers inside. While the officers were present in the home, an officer saw a laptop computer that was either off or in screensaver mode.
The officer touched a key or moved the mousepad, and the computer came out of screensaver mode. The officer could then see the contents of the screen, and those contents revealed the suspect’s Facebook wall.
Musgrove’s Facebook wall contained a status update about the mall and his ominous opinions about it. The police confiscated the computer. In court, Musgrove argued that waking the computer up was a Fourth Amendment search that required some sort of justification, such as a warrant. Magistrate Judge Nancy Joseph agreed, even though the police were seizing the computer anyway.
Whether there is a search here is a close call because the officer did not actively open any files. A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes. …
However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a search, however minimal, which required further authority, a warrant or consent.
My immediate thought when I read this was: What if the officer tripped on the carpet, bumped into the keyboard, and woke it up accidentally? Would his clumsiness trigger that rule? There’s got to be a parallel in non-electronic case law (I don’t know, knocking into a bookcase and revealing a hidden passageway, à la Harry Potter or something).
In any case, it didn’t make much difference in the long run. Although Judge Joseph agreed that moving the mouse constituted a search, Musgrove was still very much on the hook. He later confessed to police, and there was the matter of the original Craigslist posting, which was easily traced back to him. In a ruling earlier this month, Judge Charles Nelson Clevert confirmed that there was plenty of other incriminating evidence to uphold the indictment. Clevert also quoted extensively from Musgrove’s original Craigslist post. It’s… interesting, to say the least. And quite spicy for a federal court ruling (stop here if you don’t like cursing):
Title: Mayfair mall gonna make da news dis weekend again (da hood)
Date: 2011-01-14, 7:15 PM CST
Posting ID: XXXXXXXXXX
Text: thats right snitches, . . . ya all herd me . . . ya all thought I was done . . . . . . but I was layin lo . . . . . listenin to ya all crakas talk you s**t about how ya all punks gonna take it back all ya all was talkin about was waaaa waaaa what happenin to ya alls mall and how ya all p***y azz bitches gonna do sumthin specifically that big ufc wanna be p***y talkin about how he own the mall an how tough that punk azz is thuth is big p***y. . . . .
you aint tougher then my 9 which ill be bringing dis sat glock glock motherf***er. . . . when I put that glock upside yo head you aint gonna do s**t . . . . cept beg of you life bithc ya all though few weeks ago was bad. . . . watch dis s**t sat. . . . l gots mi shit together an organized crakas an no non of ya all gonna do s**t cause me an my boys OWN dat mall
But back to the Fourth Amendment part. What do you think? Did the court make the right call? Let us know in the comments.
US v. Musgrove [United States District Court, Eastern District of Wisconsin]
Taking A Computer Out of Screensaver Mode to See Suspect’s Facebook Wall Is a Fourth Amendment Search [The Volokh Conspiracy]
Court Suppresses Information Revealed When Police Take Computer Out of ‘Screensaver Mode’ [Legal Blog Watch]
Christopher Danzig is a writer in Oakland, California. He previously covered legal technology for InsideCounsel magazine. Follow Chris on Twitter @chrisdanzig or email him at [email protected]. You can read more of his work at chrisdanzig.com..