Opinion
ID# 0108001842
Submitted: April 19, 2002
Decided: July 18, 2002
Upon Defendant's Motion to Suppress — DENIED.
John S. Malik, Esquire, Wilmington, DE.
Sean Lugg, Esquire, Deputy Attorney General, Wilmington, DE.
Dear Counsel:
Keith Appleby has been indicted for crimes involving illegal interception of electronic communications, 11 Del. C. § 2402, and unauthorized access to a computer system, 11 Del. C. § 932. For now, the specific allegations against Appleby are unimportant. Basically, the State claims that Appleby hacked into the University of Delaware's computer system, where Appleby worked, in order to access and manipulate a co-worker's and a supervisor's computers.
This is the decision on Appleby's motion to suppress. It follows an evidentiary hearing on March 18, 2002 and post-hearing submissions. Appleby is trying to prevent the State from using the contents of a personal computer's hard disk drive that was inoperative, but from which the police recovered incriminating evidence, and several diskettes. The police obtained the hard drive and diskettes from Appleby's then-estranged, now ex-, wife.
Appleby claims not only that his estranged wife did not have legal authority to turn in the hard drive, she had no authority to consent even to the slightest inspection of its contents. Appleby insists that he had a reasonable expectation of privacy to all the information in the hard drive.
I.
The evidentiary presentation at the suppression hearing was relatively detailed. In summary, Appleby and his wife married in 1999. They each brought a computer into their marital home. While they were together, they both had access to the machines and they even swapped parts, particularly hard drives. During the marriage's good times, the Applebys owned four hard drives. One hard drive failed and was discarded. A second hard drive, which was a Maxtor brand product, also failed. It was replaced, but not discarded. As the court understands the facts, the Maxtor originally was in "his" computer. Then it was moved to "her" computer. After it failed, the broken Maxtor was left lying around. The broken Maxtor is at this case's center.
As mentioned, during their marriage the Applebys had complete access to both computers and the Maxtor. The estranged wife told the police that before the Maxtor and their marriage broke, she actually made a point of rooting through Appleby's personal files. Both Applebys had user profiles on the Maxtor and, significantly, the police eventually found "several hundred" e-mails and other files of hers stored on it.
When the Applebys' marriage dramatically disintegrated in December 2000, Appleby abruptly left the marital home, leaving the Maxtor behind. It is unclear whether Appleby had an opportunity to take the Maxtor with him. But right after Appleby left, he was locked out and prevented by Family Court order from reentering. It was impossible for Appleby to recover any computer equipment, including the broken Maxtor. Important to his claim here, though unavailing, is the fact that between the time he swore-out divorce papers in December 2000, filed them in January 2001 and when he received the final decree on June 7, 2001, Appleby repeatedly tried to use lawful means to obtain possession of the computer equipment. As presented below, Appleby did not know that his wife turned the equipment over to their employer, the University of Delaware, only days after the couple separated.
Appleby's estranged wife gave the equipment, including the Maxtor, to the University's sociology department. Appleby implies in his argument that turning the hard drive over to the University violated a Family Court order prohibiting her from transferring marital property. The record is unclear whether she made her move before Appleby made his first demand for the equipment. It is clear, however, that she transferred the Maxtor in December. That was weeks before the divorce papers, including the standstill order, were served on her in January.
When the Applebys' domestic war broke out, Appleby resigned from the University. The resignation came after Appleby's supervisor accused him of hacking her computer. After he left, someone in the sociology department examined the computer in Appleby's former office and found highly suspicious material. Appleby allegedly had files and software supporting the belief that Appleby had been hacking into his co-workers' and supervisor's computers. In mid-February, the department's information technology person turned over to the police the equipment obtained from Appleby's estranged wife two months earlier. The police could not repair the Maxtor on the spot. Spare parts were ordered. Finally, on June 12, 2001, five days after the Applebys were divorced, a police specialist fixed the Maxtor and gained access to its electronic contents.
Meanwhile, on June 4, 2001, as part of an exchange of e-mail, Appleby told the police, "I only really wish to have my hard drive back." As far as the court can determine, Appleby's e-mail was the first notice to the police that Appleby was claiming the hard drive and, by implication, that he meant to deny his estranged wife's authority to consent to the hard drive's examination. For the reasons presented below, the court views Appleby's e-mail as too little and too late to undermine what the police eventually did with the hard drive on June 12.
Considering how important the point is and how much time was spent developing the record, it is unfortunate that the record is not crystal clear as to how the hard drive was organized and precisely how the incriminating data was stored. It appears, however, from the Affidavit of Probable Cause used to obtain the arrest warrant for Appleby and the search warrant for the Maxtor, that when the police got the Maxtor working, in its second partition, also known as the "D drive" or the "D: partition," which the court takes as all the same, the police found "several hundred" e-mails and other files with names linking them to Appleby's ex-wife by her nickname. A second directory, which the police did not look into, was in Appleby's name. The police found yet another directory labeled in the abbreviated name of Appleby's former employer. Inside that directory was a file labeled with an abbreviation for one of Appleby's co-worker's names. By then, the police already had reason to believe the co-worker had been victimized by a hacker, probably Appleby.
By their names alone, the police could not tell whether the directories with the abbreviated names were Appleby's, his ex-wife's or someone else's. But the police knew that possession of the hard drive had come from the ex-wife, that she had used the hard drive, that her personal files were on it, that both she and Appleby had worked for the agency named on the directory, and that she had given consent to search. So the police specialist correctly assumed that the police had valid consent and the expert opened the file. He then discovered what appeared to be an intercepted e-mail.
Based on the estranged wife's detailed accusations, other information from the University, including what was found on Appleby's office computer, and the directories and the intercepted e-mail in the Maxtor, the police computer specialist prepared an extensive affidavit. He then obtained a search warrant authorizing the police to examine the hard drive's entire contents and the diskettes.
II.
The State argues initially that Appleby only tried to retrieve the working equipment, not the broken Maxtor. Thus, Appleby abandoned the Maxtor. The State points to evidence supporting its position. There is stronger evidence, however, that Appleby wanted his computer and the broken hard drive. The thrust of Appleby's formal attempts to acquire the computer equipment was that he wanted possession of everything that was his. From his viewpoint that would have included the broken Maxtor. Under the circumstances, it is unproven that Appleby abandoned the Maxtor.
Having rejected the State's abandonment argument, the court now turns to consider the estranged wife's authority to give the broken hard drive to the University and to consent to the limited search of the hard drive. There is a distinction between the broken Maxtor as a piece of hardware and its contents. There is a further distinction between the hard drive's directory of folders and the folders' contents. A hard disk drive simply as an electronic file cabinet. It has an electronic lock opened by a password acting like a key. It is organized by partitions, which are akin to drawers. Inside each partition are directories, which are somewhat analogous to folders stored inside an office filing cabinet. Each folder is identified by a name. Inside the folders there may be files containing documents.
By now, the computer age may have advanced to the point where describing a hard drive is unnecessary. Someday, however, the description here might serve as a reminder of what a filing cabinet was. Meanwhile, thinking of a hard drive as an old-fashioned filing cabinet is a way to put this case into a familiar perspective for Fourth Amendment purposes. The court accepts Appleby's analogizing a hard drive to a closed container, but a file cabinet is closer.
The Applebys had passwords for the Maxtor, but they did not use them. So the Maxtor was an unlocked file cabinet. The Maxtor was inoperative, but its contents remained intact. In that sense, the Maxtor was a filing cabinet, jammed shut. Inside the second partition, one of the filing cabinet's drawers, were several folders. As presented above, one folder appeared to be Appleby's, another appeared to be Appleby's ex-wife's and a third folder's name suggested that it was connected somehow with their employer. Inside that folder was a file bearing a suspicious name and an incriminating e-mail.
III. A.
The court concludes, as a mixed question of law and fact, that after the husband and wife co-mingled their computer hardware, using it freely as each saw fit, its ownership and possession were joint. Each spouse was entitled to the equipment as much as the other. Under the circumstances here, where the hard drive was left broken, uninstalled and in the estranged wife's possession and where the hard drive once was installed in the estranged wife's computer, she had complete access to it while it was working and hundreds of her personal documents remained on it, the hard drive was "theirs" in every sense.
Assuming it was "his" before the marriage, the Maxtor would not become "his" again until the Family Court declared it so. Appleby did not have unilateral authority to limit, much less deny, the Maxtor to his estranged wife. This is true, even though the Applebys' relationship had fallen apart and Appleby was trying to obtain sole possession of the equipment. Appleby's change of heart is understandable, but it did not negate his wife's claim to the hard drive. At the moment she turned it over to the authorities, the estranged wife had as much say over the broken Maxtor as Appleby. She controlled it no less than Appleby. In fact, she had more control over it than he because she possessed it.
B.
Having received possession of the broken Maxtor lawfully from Appleby's estranged wife, by way of the University's sociology department, the police were entitled to inspect it and gain access to its contents as much as Appleby's ex-wife could. The authority of the police to examine the Maxtor was coextensive with the authority of the person consenting to its search.
The court concludes that when they separated, and especially after Appleby asked for the hard drive, Appleby's estranged wife no longer could poke through his personal files, much less give permission for someone else to do that. Thanks to the separation, Appleby regained his right to privacy over his personal files stored on the Maxtor. And the police needed a warrant to search them. The court assumes that but for the fact that Appleby's estranged wife also kept her personal files in the second partition, without a search warrant the police would have had no way to see what folders were stored in it.
But the Applebys' separation did not divest Appleby's estranged wife of her authority to look at her own files that were resident in the Maxtor, and to show them to others. Thus, she retained sufficient authority over the Maxtor not only to give it to the police as she did, but also to allow them basic access to the partition where her personal files were stored. It was while the police were looking in the partition containing her files, with her permission, that the potentially incriminating directories and the intercepted e-mail came to light. The police, therefore, were entitled to use that information as part of their application for a warrant to search and seize the hard drive's other contents as evidence.
In summary, even taking the Applebys' open hostility and Appleby's expressed desire to cut his ex-wife off from the Maxtor into account, she still had as much right as Appleby to possess the hard drive when she gave it to the police. And when the police, figuratively speaking, "opened" the hard drive and its "drawers," they did not look at anything that the ex-wife was not entitled to see for herself and let them see. That includes the suspiciously named directories, and the intercepted e-mail.
C.
The court also observes that taking into account the probable cause the police amassed apart from the hard drive, even if the police had not opened the suspicious folder in which the e-mail was stored, the police still had enough probable cause to obtain a warrant to examine the hard drive's contents. The pre-search investigation was extensive and it uncovered substantial incriminating evidence beyond what was seen in the second partition.
The police had ample reason to believe that someone was accessing and manipulating computers at the University without permission. Based on the sophisticated hacking programs and other incriminating evidence found on Appleby's office computer, the police had reason to believe that he was the culprit. When that information is coupled with details about motive and other things provided by the University's employees and Appleby's estranged wife, the police probably had enough information to obtain a warrant for any hard drive Appleby was known to use. And after the police saw the folder with a name harkening back to Appleby's employer on the Maxtor, they had more than enough for a warrant. In other words, the court could trim the warrant's elaborate affidavit drastically and still find enough probable cause to search the Maxtor.
IV.
It is sad to see what can happen when a marriage fails. Here, an estranged wife incriminated her husband. Based on the event's timing, it is difficult to see her act as anything but spiteful and vindictive, as Appleby claims. But the Fourth Amendment and the exclusionary rule protect citizens from the government, not from their estranged spouses. If anyone behaved unreasonably it was not the police. Here, the police did not overreach. The police just capitalized on what human nature, albeit base human nature, provided.
The court is satisfied that the police acted reasonably when the computer specialist repaired the Applebys' hard drive and looked over its second partition. Under the circumstances presented, it was not necessary for the police to obtain a search warrant for that. And the eventual search of Defendant's personal files was pursuant to a search warrant supported by probable cause, which the police came by properly. Accordingly, Defendant's Motion to Suppress is DENIED.
IT IS SO ORDERED.