State v. Simmons, 2011 VT 69
Notwithstanding the high tech police procedurals with their fancy DNA gizmos and voice-analyzing do-dads, investigations still tend to rise and fall on three essential elements: tips, the innate stupidity of most criminals, and hard-work by the investigator to take advantage of the first two. Today’s case is no different.
Police, tracking down stolen computers, received the proverbial “anonymous tip” that one of the victim’s neighbors named “Graham” had possession of one of the computers and was using it to access the victim’s internet network. Graham happens to be the given name of Defendant, who also just happened to live on
Hi Lo Biddy Road, same as the victim. Note, the SCOV does not confirm whether this street was named in honor of the Lone Ranger’s favorite prostitute.
Our clever detective takes this information and begins looking for Defendant on social networks. Note to criminals: if a Det. Sgt. Jones asks to “friend” you based on your common interests of hanging out late and working with the
criminal code, use your judgment. On My Space, the detective finds a “Graham Simmons” living in Putney with a picture that resembles Defendant. My Space? Seriously, who still uses My Space? Vermont
With this information, Detective serves an inquest subpoena on My Space and obtains information that shortly after the robbery of the computers, Defendant logged into My Space using a Verizon internet protocol (IP) address. With a second subpoena to Verizon, Detective learns that the only person authorized to the IP address was Defendant’s neighbor, the victim. Victim had never given Defendant permission to use his internet, but Defendant had clearly done so.
From this information of unauthorized network access, Detective finally had enough information for a warrant for Defendant’s computer. Low and behold, the computer seized at Defendant’s house had serial numbers matching victim’s missing computer. During the search, police also found several objects in plain view that resembled other items that victim had reported stolen from his house. Based on these observations, Detective secured Defendant’s residence and obtained a fourth search warrant to seize the other suspected stolen property, and surprise, surprise, police found a small bag of marijuana.
Defendant’s total came up to four counts of burglary, possession of marijuana (still a crime, folks), and unauthorized access to a computer network.
Defendant’s case to the trial court and SCOV centers on a motion to suppress the evidence. His argument is that the IP address was private information, and the subpoenas to My Space and Verizon were without probable cause and the constitutional equivalent of a warrantless search of his unopened mail. Without probable cause, the subsequent information is off-limits and should be excluded as fruit of the poisonous tree.
Looking first to the Fourth Amendment, the trial court and later the SCOV find no violation. The policy for users at My Space makes clear that information given to My Space is not private and that My Space will disclose to subpoenas or requests as it deems appropriate. Federal Courts have also held that internet uses have no reasonable expectation of privacy in their subscriber information. If you log on, the government has the right to find out, and you cannot stop it.
Looking next to Article 11 of the Vermont Constitution, the SCOV is equally dismissive. Defendant failed to preserve this claim, and the Vermont Constitution does not provide any privacy protection to internet users for their subscriber information. The problem here is that Defendant never produced any cases or compelling reasons why Article 11 should afford greater coverage to internet subscription information. Article 11 will only kick in, despite the Fourth Amendment, if there is a compelling reason based on “respect for both private, subjective expectations and public norms.”
The analysis here is that internet subscription information is more like a phone number. It is public because it has to be. It is the information we send out to the internet to secure space at a website. It is our virtual front bumper, and the courts will allow police with the proper level of probable cause to search this information without the higher standard that an expectation of privacy would otherwise require.
Defendant’s conviction is affirmed. On the bright side, his correction institute may offer free internet access at the prison library.