Boudreau v. Lussier

United States Court of Appeals
For the First Circuit

No. 16-1049

JASON BOUDREAU,

Plaintiff, Appellant,

v.

STEVE LUSSIER; JOHN LUSSIER; STEVE SOREL; KEVIN PETIT;
OFFICER KIM CARROLL; OFFICER NATHAN BAGSHAW; SERGEANT WELLER;
CITY OF CRANSTON; CITY OF WARWICK; DONALD LUSSIER,

Defendants, Appellees,

OFFICER JAMES NEEDHAM,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Lincoln D. Almond, U.S. Magistrate Judge]

Before
Torruella, Lynch, and Barron,
Circuit Judges.

Patrick T. Roath, for appellant.
Douglas A. Giron, with whom Shechtman Halperin Savage, LLP
was on brief, for appellees Steve Lussier, John Lussier, Donald
Lussier and Steve Sorel.
Christopher E. Hultquist, with whom DeLuca & Weizenbaum Ltd.
on brief, for appellees Officer Kim Carroll, Officer Nathan
Bagshaw, Sergeant Weller, and City of Cranston.
Marc DeSisto, with whom Kathleen M. Daniels, and DeSisto Law
LLC on brief, for appellees Kevin Petit, and City of Warwick.
August 21, 2018
 TORRUELLA, Circuit Judge. Jason Boudreau worked for

Automated Temperature Controls, Inc. (ATC), in Cranston, Rhode

Island. His employers came to suspect that he was viewing child

pornography at work. As a result, they covertly installed

screenshot-capturing software on Boudreau's work computer, which

confirmed these suspicions. This led them to contact law

enforcement. To make a long story short -- a story we will explain

in much greater detail below -- this culminated in Boudreau's

arrest and plea of nolo contendere in state court to one count of

possession of child pornography. Boudreau then brought a host of

claims under 42 U.S.C. § 1983 and the Electronic Communications

Privacy Act (ECPA), 18 U.S.C. § 2511, against the various

individuals who participated in the events leading up to and

following his arrest. The named defendants, now the appellees,

included: ATC corporate president Steven Lussier, ATC co-owner

John Lussier, and ATC information technology manager Steven Sorel

(collectively, the "ATC Defendants); the City of Cranston and

Cranston Police Department Officer Kim Carrol, Officer Nathan

Bagshaw, and Sergeant Greg Weller (collectively, the "Cranston

Defendants"); and the City of Warwick and Warwick Police Department

detective Kevin Petit (collectively, the "Warwick Defendants").

The district court granted summary judgment in favor of

the defendants on all of Boudreau's claims. Boudreau has

appealed. We affirm.

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 I.

We view the facts in the summary judgment record in the

light most favorable to Boudreau, and draw all reasonable

inferences in his favor. See Mu v. Omni Hotels Mgmt. Corp., 882

F.3d 1, 3 (1st Cir. 2018).

A.

Boudreau worked for ATC from September 2009 to June 2011.

At some point during the second week of June 2011, Boudreau asked

Sorel to help recover email records that had been deleted from

Boudreau's work computer. The file recovery software that Sorel

employed compiled a list of "recoverable" files that had been

deleted from that computer. This list included a number of

pornographic movies and photos. Sorel brought this to Steven

Lussier's attention. In response, Steven Lussier directed Sorel

to install the screen-capture software System Surveillance Pro

(SSP) on Boudreau's work computer. Sorel did so -- unbeknownst

to Boudreau -- on June 16, 2011. SSP captures and saves screen-

shots of whatever is being displayed on the monitor of the computer

on which it is installed. Sorel configured SSP to take screenshots

whenever the user of Boudreau's computer typed certain keywords,

including, for example, "yahoo." Sorel also arranged for SSP to

send these screenshots to an email account that he had set up

specifically for that purpose.

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 On June 20, 2011, SSP captured screenshots of what Sorel

-- who reviewed those screenshots two days later -- believed to be

images of child pornography. The ATC Defendants conferred, and

decided to contact law enforcement. On June 23, Steven Lussier

delivered a USB drive containing the offending screenshots to

Detective Kevin Petit of the Warwick Police Department. Detective

Petit also requested to analyze Boudreau's work computer. So, the

following morning, John Lussier and Sorel brought him that

computer, and John Lussier signed a consent form for Detective

Petit to search the computer. Detective Petit's ensuing search

revealed numerous files containing child pornography.

John Lussier also mentioned to Detective Petit that ATC

had provided a company laptop to Boudreau, and Detective Petit

responded that he wanted to examine that laptop as well. That

afternoon, Detective Petit spoke to John Lussier about Boudreau's

company laptop again. John Lussier told Detective Petit that

Boudreau was out golfing with Steven Lussier, but that he would be

returning to ATC later on. During this conversation, Detective

Petit also told John Lussier that he had become aware that

Boudreau's driver's license had been suspended. Detective Petit

then contacted Cranston Police Officer Nathan Bagshaw, relaying

information about his investigation of Boudreau and that Boudreau

would be driving back to ATC on a suspended license. Officer

Bagshaw, Officer Kim Carrol, and Sergeant Gregg Weller then

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dispatched to ATC headquarters. They arrested Boudreau for

driving on a suspended license upon his arrival to ATC.

After arresting Boudreau, the Cranston Police impounded

the blue Toyota Corolla in which he had returned to ATC

headquarters. John Lussier also requested that the Cranston

Police impound Boudreau's green Ford Explorer, which he had left

parked at ATC headquarters. John Lussier explained that ATC had

terminated Boudreau's employment, and that, fearing retaliation,

he did not want Boudreau to have any reason to return to ATC's

premises. The officers acquiesced, impounding that vehicle as

well. They then conducted inventory searches of both of Boudreau's

impounded vehicles, seizing various electronic devices from them.

Detective Petit then applied for and received warrants

to search Boudreau's electronic devices, Yahoo! accounts, and

residence. The searches that these warrants authorized yielded

additional child pornography. On January 2, 2014 -- after this

litigation had commenced -- Boudreau entered a plea of nolo

contendere in state court to one count of possession of child

pornography, and was sentenced to five years' imprisonment.

B.

Boudreau filed a pro se complaint in the District of

Rhode Island on May 28, 2013, and amended it exactly three months

later. His amended complaint contained five counts. Count One

alleged Steven Lussier, John Lussier, and Steven Sorrel, along

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with Detective Petit, illegally searched his office and office

computer, and that the ATC Defendants and Cranston Defendants

illegally seized and searched his two vehicles. Count Two alleged

that the ATC Defendants conspired with Detective Petit to deprive

Boudreau of his Fourth Amendment rights, and with Officer Carrol,

Officer Bagshaw, and Sergeant Weller to entrap him into driving on

a suspended license. Count Three alleged that Detective Petit

made false statements in and omitted material facts from his

affidavit in support of a warrant to search Boudreau's property.

Count Four alleged that the ATC Defendants unlawfully intercepted

his electronic communications, in violation of ECPA. Count Five

alleged municipal liability against the Cities of Cranston and

Warwick. Boudreau appears to have brought all of his claims against

state actors (that is, everyone except for the ATC Defendants)

under 42 U.S.C. § 1983.

Boudreau moved for leave to file a second amended

complaint that would include a new claim under the Stored

Communications Act, 18 U.S.C. § 2701, but the district court denied

that motion. The parties then filed cross-motions for summary

judgment on all claims. A United States Magistrate Judge issued

a Report and Recommendation that the district court grant summary

judgment in favor of the Cranston Defendants and Warwick Defendants

on all of Boudreau's claims against them. As for the ATC

Defendants, the Magistrate Judge recommended granting summary

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judgment on all of Boudreau's claims against them except for his

ECPA claim, for which it found summary judgment unwarranted in

either party's favor. The district court, however, only adopted

the Report and Recommendation in part, electing to grant summary

judgment in favor of all defendants on all of Boudreau's claims.

Boudreau, now represented by counsel, has appealed.

II.

We review a district court's summary judgment ruling de

novo, affirming only if -- after construing the facts in the light

most favorable to the non-movant and drawing all possible

reasonable inferences from those facts -- no genuine material

dispute of fact exists. Cooper v. D'Amore, 881 F.3d 247, 249–50

(1st Cir. 2018); Fed. R. Civ. P. 56(a). "An issue is 'genuine'

when a rational factfinder could resolve it [in] either direction."

Mu, 882 F.3d at 5. "A fact is 'material' when its (non)existence

could change a case's outcome." Id.

On appeal, Boudreau argues that the district court erred

in holding that: (1) the Cranston Defendants did not violate

Boudreau's Fourth Amendment rights when they impounded and

searched his two automobiles; (2) The Warwick and Cranston

Defendants did not conspire to entrap Boudreau into driving on a

suspended license; (3) Detective Petit did not violate Boudreau's

Fourth Amendment rights upon searching his work computer; (4)

Detective Petit did not violate Boudreau's Fourth Amendment rights

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by making allegedly false statements in his search warrant

affidavits; and (5) the ATC Defendants did not violate ECPA. We

consider these arguments in turn.

A.

1.

We begin with Boudreau's arguments concerning the

Cranston Defendants' impoundment and search of his two vehicles.

The district court held that the "community caretaking function"

justified the decision to impound those vehicles.

The "community caretaking function" is one of the

various exceptions to the Fourth Amendment's requirement that law

enforcement officers have probable cause and obtain a warrant

before effecting a search or seizing property. United States v.

Coccia, 446 F.3d 233, 237-38 (1st Cir. 2006) (citing Cady v.

Dombrowski, 413 U.S. 433, 446-47 (1973)). This particular

exception stems from the recognition that police officers "perform

a multitude of community functions apart from investigating

crime," id. at 238, including, frequently, "[d]ealing with

vehicle-related problems," United States v. Rodríguez-Morales, 929

F.2d 780, 785 (1st Cir. 1991).1 The Supreme Court has indicated

1 The Supreme Court of Oregon has explained the justification for
the exception in this way: "Our society . . . is an impersonal
one. Many of us do not know the names of our next-door neighbors.
Because of this, tasks that neighbors, friends or relatives may
have performed in the past now fall to the police." State v.

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that it is officers' non-investigatory purpose and motives when

acting as "community caretakers" that justifies this exception to

the warrant requirement. See Colorado v. Bertine, 479 U.S. 367,

381 (1987) ("Inventory searches are not subject to the warrant

requirement because they are conducted by the government as part

of a 'community caretaking' function, 'totally divorced from the

detection, investigation, or acquisition of evidence relating to

the violation of a criminal statute.'" (quoting Cady, 413 U.S. at

441)). And as a practical matter, imposing a warrant requirement

would also likely substantially hinder officers' ability to act as

community caretakers "[i]n the interests of public safety." South

Dakota v. Opperman, 428 U.S. 364, 368 (1976); see also Rodríguez-

Morales, 929 F.2d at 785. Therefore, when their role as "community

caretakers" calls for officers to, for example, "remove vehicles

that impede traffic or threaten public safety and convenience,"

they need not obtain a warrant before doing so. Coccia, 446 F.3d

at 238.

In Coccia, the defendant argued that the community

caretaking exception did not justify the officers' decision to

impound his car "because the government failed to establish that

the car was towed . . . pursuant to standard operating procedures."

Id. We rejected that argument, explaining instead that

Bridewell, 759 P.2d 1054, 1068 (Or. 1988).

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"impoundments of vehicles for community caretaking purposes are

consonant with the Fourth Amendment so long as the impoundment

decision was reasonable under the circumstances." Id. at 239; see

also Rodríguez-Morales, 929 F.2d at 787 (reasoning that officers

"must be free to follow 'sound police procedure,' that is, to

choose freely among the available options, so long as the option

chosen is within the universe of reasonable choices" (quoting Cady,

413 U.S. at 447)). It follows that, so long as the decision is

reasonable, officers may impound a vehicle despite "the existence

of alternative means of dealing with the automobile, even less

intrusive means[.]" Rodríguez-Morales, 929 F.2d at 786. Moreover,

an otherwise reasonable seizure is not rendered illegitimate

"merely because it may also have been motivated by a desire to

investigate crime." Coccia, 446 F.3d at 240-41.

As is usually the case, "[t]his reasonableness analysis

does not hinge solely on any particular factor," but rather takes

into account "all the facts and circumstances[.]" Coccia, 446

F.3d at 239 (citing United States v. Miller, 589 F.2d 1117, 1125–

26 (1st Cir. 1978)). In Coccia we considered whether it was

reasonable for local police officers to have towed a vehicle that

was left behind after FBI agents arrested the defendant at his

psychiatrist's office -- the defendant's threats during previous

appointments having led his psychiatrist to contact the FBI. Id.

at 236. We found that decision to have been reasonable in light

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of these considerations: (1) "Coccia would be indisposed for an

indeterminate, and potentially lengthy, period," and his vehicle

"was filled with many of his belongings," making it "a possible

target for theft or vandalism"; (2) "towing the vehicle reduced

the risk of a future confrontation between Coccia and

Dr. McGovern"; (3) "Coccia's comments to Dr. McGovern led to a

concern that Coccia's car might contain items constituting a threat

to public safety, such as explosive material, chemicals or

biological agents"; (4) "there was no obvious alternative means

for removing the car other than impoundment." Id. at 240; see

also Rodríguez-Morales, 929 F.2d at 785-86 (holding that "under

the circumstances, it was completely appropriate for the police to

impound the [defendant's] car and bring it to the barracks for

safekeeping" rather than leaving it abandoned on the shoulder of

the highway).

Here, the Cranston Defendants' impoundment of Boudreau's

vehicles was reasonable under the circumstances. First, Coccia

forecloses Boudreau's argument that the Cranston Defendants'

investigatory motive tainted their decision. See 446 F.3d at 240-

41. Further, John Lussier's request that the Cranston Defendants

remove Boudreau's cars from ATC's premises, so not to give Boudreau

any reason to return, also provides strong indicia of

reasonableness. Moreover, like in Coccia, Boudreau had personal

possessions (including electronic devices) in his vehicles,

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meaning that they otherwise could have become "a possible target

for theft and vandalism." Id. at 240. Stepping back, we cannot

say it was unreasonable for the Cranston Defendants to have agreed

to John Lussier's request that they remove from ATC property the

automobile of a recently terminated employee who had been arrested

for allegedly committing crimes at work. Their impoundment of

those vehicles therefore fell within the community caretaking

exception and did not violate the Fourth Amendment.

The district court also held that the Cranston

Defendants' subsequent inventory searches of Boudreau's impounded

vehicles comported with the Fourth Amendment. It grounded that

holding in our recognition in United States v. Richardson that

"[t]he Fourth Amendment permits a warrantless inventory search if

the search is carried out pursuant to a standardized policy." 515

F.3d 74, 85 (1st Cir. 2008) (citing Florida v. Wells, 495 U.S. 1,

3-4 (1990)). And, according to the district court, the Cranston

Police Department's inventory search policy comported with

Bertine's dictate that such policies may permit "the exercise of

police discretion so long as that discretion is exercised according

to standard criteria and on the basis of something other than

suspicion of evidence of criminal activity." 479 U.S. at 375.

The Cranston Police Department's inventory search policy explains

that all unlocked impounded vehicles "must be inventoried . . . to

protect the Department from disputes over lost or stolen property,

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negligence, theft, and vandalism." Assuming favorably to Boudreau

that his vehicles were in fact locked, the district court then

reasoned that the same justification would nonetheless apply

because the Cranston Police were also in possession of Boudreau's

keys. Thus, the district court held that they exercised

legitimately their discretion to inventory search his locked

vehicles "on the basis of something other than suspicion of

evidence of criminal activity." Id.

On appeal, Boudreau does not directly challenge the

district court's determination that the Cranston Defendants

properly carried out their search in conformity with the

Department's inventory search policy. Rather, he tells us that

this is irrelevant here, because the Cranston Defendants'

investigatory motives are what actually animated their decision to

conduct inventory searches. This argument, however, does not

succeed. For, we have previously held that "[t]he subjective

intent of the officers is not relevant so long as they conduct a

search according to a standardized inventory policy." United

States v. Hawkins, 279 F.3d 83, 86 (1st Cir. 2002); see also

Brigham City v. Stuart, 547 U.S. 398, 404 (2006) ("An action is

'reasonable' under the Fourth Amendment, regardless of the

individual officer's state of mind, 'as long as the circumstances,

viewed objectively, justify [the] action.'" (quoting Scott v.

United States, 436 U.S. 128, 138 (1978)); Bertine, 479 U.S. at

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372, 375-76 (upholding an inventory search conducted pursuant to

a standardized policy that afforded officers discretion as to

whether to impound a vehicle in the absence of any showing that

the police had "acted in bad faith or for the sole purpose of

investigation"). And Boudreau has not argued that the officers'

alleged investigatory motive was the sole motivation behind the

inventory search. Accordingly, that argument is waived.

2.

We turn now to Boudreau's contention that the Cranston

and Warwick Defendants -- pursuant to a conspiracy that they formed

-- entrapped him into driving on a suspended driver's license. At

the outset, we note that the Cranston Defendants have not taken

the position that Boudreau's claim of entrapment does not allege

a constitutional violation for purposes of § 1983 liability. Cf.

Stokes v. Gann, 498 F.3d 483, 485 (5th Cir. 2007) (rejecting an

entrapment-based § 1983 claim on the grounds that entrapment does

not constitute a constitutional violation). Rather, they contend

that Boudreau's claim simply fails because the facts in the summary

judgment record don't add up to entrapment. Boudreau, meanwhile,

anchors his entrapment claim in Detective Petit's statement to the

Cranston Defendants that the ATC Defendants were "going to lure

[Boudreau] back to the business and he's got a laptop in his car

that I need to grab."

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 In the criminal context, the defense of entrapment

comprises two elements: "(1) government inducement of the criminal

conduct; and (2) an absence of predisposition on the part of the

defendant to engage in the criminal conduct." United States v.

González-Pérez, 778 F.3d 3, 11 (1st Cir. 2015). "Inducement

requires not only giving the defendant the opportunity to commit

the crime but also a 'plus' factor of government overreaching,"

such as "excessive pressure." Id. (quoting United States v.

Guevara, 706 F.3d 38, 46 (1st Cir. 2013)). Moreover, "operations

[that] merely give a defendant an opportunity to commit a crime,

including sting operations, ordinarily do not constitute

entrapment." Id. (quoting United States v. Dávila-Nieves, 670

F.3d 1, 9 (1st Cir. 2012)). Here, Boudreau, of his own volition,

had been driving on a suspended license. And so we conclude that

the district court did not err in granting summary judgment in

favor of the Cranston Defendants on Boudreau's entrapment-related

claim. As for Boudreau's allegation of a conspiracy to entrap

him, that claim finds no support in the record.

3.

Next, we address Boudreau's claim that -- pursuant to a

conspiracy with the ATC Defendants -- Detective Petit

impermissibly searched Boudreau's office at ATC and the desktop

computer located there. In rejecting this claim, the district

court and Magistrate Judge both noted the Warwick Defendants'

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argument that "there is no evidence that Det[ective] Petit searched

Plaintiff's office." But, neither the district court nor the

Magistrate Judge explicitly addressed Detective Petit's alleged

search of Boudreau's office in rejecting Boudreau's Fourth

Amendment claim against Detective Petit. On appeal, however,

Boudreau does not direct us to any evidence in the summary judgment

record that would engender a dispute of fact as to whether

Detective Petit searched his office. This, therefore, does not

provide grounds for overturning the district court's holding.

As for Detective Petit's search of Boudreau's computer,

the district court likewise found no Fourth Amendment violation.

It reasoned that "Plaintiff is correct that Det[ective] Petit could

not have conducted a warrantless search of Plaintiff's office

computer without his employer's permission; but here, there is

uncontroverted evidence that the owner of Plaintiff's work

computer gave Det[ective] Petit permission to search it." The

district court cited the Ninth Circuit's decision in United States

v. Ziegler as supporting the proposition that -- while Boudreau

may have had a reasonable expectation of privacy in his work

computer -- his employer could nonetheless provide valid consent

to search the computer. 474 F.3d 1184, 1192 (9th Cir. 2007); see

also United States v. Matlock, 415 U.S. 164, 171 (1974) (holding

that "to justify a warrantless search by proof of voluntary

consent," the government "may show that permission to search was

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obtained from a third party who possessed common authority over or

other sufficient relationship to the premises or effects sought to

be inspected"); see also Illinois v. Rodríguez, 497 U.S. 177, 186-

87 (1990) (holding that a search is not rendered unreasonable

because an officer reasonably, but erroneously, believed that he

had received consent from someone capable of providing it).

Boudreau argues that Ziegler's logic does not control

here, because in that case the employer enjoyed "complete

administrative access" to the defendant's computer, conducted

"routine" monitoring of employees' computers, and provided notice

to employees that their work computers "were company-owned and not

to be used for activities of a personal nature." 474 F.3d at 1191-

92. Boudreau presses that the summary judgment record established

none of these things, and that John Lussier therefore did not have

the authority to provide consent.

This fails to convince us, though, that the district

court committed reversible error. We first recall that,

consistent with Rodríguez, our inquiry is whether John Lussier

had, to Detective Petit's mind, apparent authority to consent to

the search of Boudreau's computer. See 497 U.S. at 186-87. To

the extent that considerations such as those that the Ziegler court

highlighted bear on whether an employer has apparent authority to

consent to a search of an employee's computer, we cannot say that

the law was clearly established in this respect. As a result,

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even if we assume favorably to Boudreau that Detective Petit could

not have reasonably believed John Lussier to be capable of

consenting to the search at issue, Detective Petit would

nonetheless be entitled to qualified immunity from liability on

this claim. See Maldonado v. Fontánes, 568 F.3d 263, 269 (1st

Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 230 (2009))

(setting out that in assessing whether a defendant is entitled to

qualified immunity, courts "must decide: (1) whether the facts

alleged or shown by the plaintiff make out a violation of a

constitutional right; and (2) if so, whether the right was 'clearly

established' at the time of the defendant's alleged violation");

see also Pearson, 555 U.S. at 236 (explaining that courts of appeal

"should be permitted to exercise their sound discretion in deciding

which of the two prongs of the qualified immunity analysis should

be addressed first in light of the circumstances in the particular

case at hand"). And so, we conclude that the district court did

not err in granting summary judgment in favor of the Warwick

Defendants on this claim. Finally, Boudreau makes no argument

that, insofar as the Fourth Amendment claim against Detective Petit

is resolved on qualified immunity grounds, the conspiracy claim on

that issue can survive.

4.

Boudreau also presses that the district court erred in

granting summary judgment of his claim that Detective Petit made

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false statements in the affidavits he submitted with his

application for warrants to search Boudreau's electronic devices

and residence. The crux of Boudreau's argument is that Detective

Petit did not mention the SSP-captured screenshots that the ATC

Defendants provided him, in addition to falsely claiming that

Yahoo! had not responded to a subpoena.2

A § 1983 plaintiff may make out a Fourth Amendment

violation by showing that officers acted with at least "reckless

disregard" of the "probable falsity" of their statements in support

of a warrant application. Burke v. Town of Walpole, 405 F.3d 66,

81 (1st Cir. 2005) (quoting Forest v. Pawtucket Police Dep't, 377

F.3d 52, 58 (1st Cir. 2004)). So too may a Fourth Amendment

violation result from officers' "intentional or reckless omission

of material exculpatory facts from information presented to a

magistrate." Id. However, misrepresentations or omissions of

that sort only violate the Fourth Amendment when they are material

to the neutral magistrate's probable cause determination. Id. at

82 (citing Franks v. Delaware, 438 U.S. 154 (1978)).

2 Boudreau also asserts that the resulting warrants were
impermissibly broad in scope. Boudreau, however, does not argue
that any misdoing by Detective Petit led to the magistrate issuing
an overbroad warrant. As a result, his protest that the warrant
was overbroad has no bearing on his claims against Detective Petit
or any of the other Defendants here.

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 That final requirement proves an insurmountable obstacle

for Boudreau. Even if we assume that Boudreau is correct that

Detective Petit intentionally or recklessly misrepresented that

Yahoo! had not responded to the subpoena, and omitted that the ATC

Defendants had shown him the SSP-captured screenshots, his warrant

application would nonetheless have conferred probable cause.

Among other things, that warrant application explained that the

ATC Defendants contacted Detective Petit after discovering that

Boudreau was viewing child pornography on his work computer, and

that Detective Petit's "forensic preview" of that computer

revealed "numerous images" of child pornography. This information

is sufficient to give rise to probable cause. Therefore, even

assuming favorably to Boudreau that Detective Petit's warrant

affidavit included material misrepresentations and omissions, a

Fourth Amendment violation cannot have resulted, because these

things would not have been material to the magistrate's probable

cause determination.3

3 Boudreau's claim of municipal liability against the City of
Cranston necessarily fails for want of a predicate constitutional
violation. As for the City of Warwick -- while resolving that
claim on qualified immunity grounds means that we need not reach
the question of whether Detective Petit's search of Boudreau's
computer violated the Fourth Amendment -- Boudreau's municipal
liability claim fails because he has not met his burden of showing
that the alleged constitutional violation was the result of Warwick
policy or custom. See Monell v. Dept. of Soc. Servs. of City of
N.Y., 436 U.S. 658, 694 (1978).

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 B.

We now take up Boudreau's claim that the ATC Defendants

violated ECPA when, using SSP, they captured screenshots of his

activity on his work computer. The district court granted summary

judgment in favor of the ATC defendants on this claim, holding

(1) that to make out a violation of ECPA, Boudreau needed to show

a material dispute of fact that the ATC Defendants intercepted his

electronic communications "contemporaneously [to their]

transmission," and (2) Boudreau could not, relying only on non-

expert evidence, make that showing. Boudreau asserts that the

district court erred at both steps.

1.

EPCA prohibits the "intercept" of "any wire, oral, or

electronic communication." 18 U.S.C. § 2511(1)(A). Interception,

for purposes of the statute, is "the aural or other acquisition of

the contents of any wire, electronic, or oral communication through

the use of any electronic, mechanical, or other device." Id.

§ 2510(4). An "electronic communication," in turn, is "any

transfer of signs, signals, writing, images, sounds, data, or

intelligence of any nature transmitted in whole or in part by a

wire, radio, electromagnetic, photoelectronic or photooptical

system that affects interstate or foreign commerce." Id.

§ 2510(12).

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 "All of the circuit courts that have considered the

issue" have concluded that, to constitute an "intercept" within

the meaning of ECPA, "the acquisition of a communication must be

contemporaneous with its transmission." Luis v. Zang, 833 F.3d

619, 628 (6th Cir. 2016) (collecting cases). Notably, however,

Boudreau does not argue against the position that our sister

circuits have taken. Rather, he urges us to adopt a "functional

approach" to contemporaneity. Consistent with such an approach,

he says, the contemporaneity requirement would be satisfied "where

the defendant used technology linked to the fleeting moment in

which the victim sent the electronic communication . . . even when

the transmission and acquisition might have occurred moments or

even hours apart." But, under this proposed approach, the

contemporaneity requirement would not be satisfied when the

defendant had retrieved communications from "a hard drive, server,

or other permanent storage device."

In arguing for such a functional approach Boudreau

relies heavily on a pair of cases from the Seventh Circuit. But,

he misapprehends those cases, neither of which provide support for

an approach of that sort. Boudreau tells us that in Epstein v.

Epstein, the Seventh Circuit found the interception of an email to

have been contemporaneous despite "a three-hour delay between when

the message was sent and intercepted." See 843 F.3d 1147 (7th

Cir. 2016). But that is incorrect. In Epstein, the defendant had

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"surreptitiously plac[ed] an auto-forwarding 'rule' on [her

husband's] email accounts that automatically forwarded the

messages on his email client to her." Id. at 1148. The timestamps

on the husband-plaintiff's sent emails did not match the time

stamps indicating when his wife received the emails forwarded as

the result of this "rule." Yet, the Seventh Circuit concluded

that, at the summary judgment stage, this did not "conclusively

establish" that these emails had not been intercepted

contemporaneously. Id. at 1150-51. For, it held, "the interception

of an email need not occur at the time the wrongdoer receives the

email," but may also take place when the email is "cop[ied] at the

server." Id. (emphases in original). Epstein, therefore, provides

little support for the functional approach to contemporaneity that

Boudreau asks us to adopt.

Boudreau also cites United States v. Szymuszkiewicz,

622 F.3d 701 (7th Cir. 2010). Similar to the facts in Epstein,

the defendant in Szymuszkiewicz set up a rule in his boss's email

account to forward him a copy of any email his boss received. Id.

at 703. The defendant argued that he had not intercepted the

emails in question because the rule merely forwarded him a copy

"after the message arrive[d]." Id. (alteration in original). But

the Seventh Circuit rejected that argument. It reasoned that, if

the copying and forwarding occurred when the emails reached an

intermediate server, then that would constitute interception. Id.

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at 706. And, according to the court, it would be no different if

the defendant's boss's computer "was doing the duplication and

forwarding." Id. For, in that case, his boss's computer would

be "effectively acting as just another router, sending packets

along to their destination, and Councilman's conclusion that

[ECPA] applies to messages that reside briefly in the memory of

packet-switch routers" would compel the conclusion that an

intercept had taken place. Id. Thus -- while suggesting that a

communication may be intercepted upon its "arrival" at its intended

destination -- Szymuszkiewicz does not support the functional

approach that Boudreau urges us to adopt, under which we would

look to whether the defendant employed "technology linked to the

fleeting moment in which the victim sent the electronic

communication."

Boudreau's reliance on the Sixth Circuit's decision in

Luis in advocating for that "functional approach" is similarly

unavailing. There, the Sixth Circuit that the plaintiff had

adequately stated a claim that the defendant's use of the

communications-monitoring software known as "WebWatcher" had

violated ECPA. Luis, 833 F.3d at 624. In so holding, the court

underscored the plaintiff's allegation that WebWatcher permits the

review of the communications of another "in near real-time." Id.

at 631. Any "deviation from real-time monitoring," according to

the plaintiff, was not the result of "delays regarding when the

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communications are acquired," but was rather attributable to "the

Internet connection speed of the computer being monitored." Id.

Thus, given the plaintiff's allegation that WebWatcher "records

the communications as they are being sent, without regard for

whether a copy is ever placed in the storage of the affected

computer," the court found the plaintiff to have alleged that

WebWatcher intercepted communications while they remained "in

flight," and consequently, to have stated a claim that the

defendant violated ECPA. Id. (quoting Szymuszkiewicz, 662 F.3d

at 704). Luis, therefore, also does not support the functional

approach to contemporaneity that Boudreau proposes.

In the end, that proposed approach is untenable, as it

is in tension with ECPA's definition of "intercept," which includes

the "acquisition of any . . . electronic . . . communication," but

does not mention "electronic storage," despite the statute

defining that term alongside "electronic communications." See 18

U.S.C. §§ 2510(4), (17), (12). Moreover, Congress sought to address

the acquisition of no-longer-in-transit, stored communications in

the Stored Communications Act. See Konop v. Hawaiian Airlines,

Inc., 302 F.3d 868, 877 (9th Cir. 2002). In addition to these

reasons for declining to accept what Boudreau terms the "functional

approach" to contemporaneity, we also note that none of our sister

circuits have adopted it. See Luis, 833 F.3d at 628; United States

v. Steiger, 318 F.3d 1039, 1048-49 (11th Cir. 2003); Fraser v.

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Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir. 2003); Konop,

302 F.3d at 878; Steve Jackson Games, Inc. v. U.S. Secret Serv.,

36 F.3d 457, 461-62 (5th Cir. 1994).

2.

Having determined that ECPA does require that

communications be intercepted contemporaneously, and rejected his

functional approach to contemporaneity, we now consider whether,

as Boudreau asserts, he nonetheless brought forth sufficient

evidence of contemporaneity for his complaint to survive summary

judgment. Boudreau leans primarily on SSP-captured screenshots

depicting, among other thing, the contents of his Yahoo! Mail

inbox, opened emails from others, and emails that Boudreau was in

the process of drafting. It is of no consequence, says Boudreau,

that he may never have sent these incomplete emails, because

"[e]ven unsent Yahoo! Mail email drafts are auto-saved over the

internet." Furthermore, in some of these screenshots, the web

browser's "progress bar" indicates that the page displayed on

Boudreau's screen was in the process of loading at the time of the

screenshot. Additionally, the screenshots' timestamps match the

times that Boudreau's desktop clock displays -- though the

screenshot timestamps include seconds (e.g., 9:51:28), and the

desktop clock shows only hours and minutes (e.g., 9:51 AM).

The district court correctly ruled that the screenshots

"[do] not, on [their] face, prove contemporaneity." And it

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granted summary judgment of Boudreau's ECPA claim on the grounds

that expert evidence was necessary to determine whether these

screenshots showed that SSP had intercepted Boudreau's

communications, and that Boudreau had failed to provide evidence

of that sort. On appeal, Boudreau asserts that the district court

was incorrect, because lay jurors, without the aid of expert

testimony, "would have been well equipped to review the key

evidence in this case [and] infer that SSP intercepted electronic

communication." He argues that "[s]creen-capture and webmail

technology are commonplace." Thus, he says, they "fall[] within

the realm of knowledge of the average lay person." See United

States v. Caldwell, 586 F.3d 338, 348 (5th Cir. 2009). Thus, he

says, a jury would not have needed the assistance of expert

testimony to grasp these technologies' relationship to his ECPA

claim.

We disagree. It may be so that a majority of individuals

in the United States use and are familiar with email. And so too

may a great number of people understand the concept of capturing

a screenshot on an electronic device. But that isn't the inquiry

here. Instead, we ask whether Boudreau could have shown that SSP

contemporaneously intercepted his electronic communications

relying entirely on evidence "not based on scientific, technical,

or other specialized knowledge." See Fed. R. Evid. 701(c). We

answer this question in the negative because apprehending whether

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SSP contemporaneously intercepted his communications requires more

than a lay understanding of email and the concept of capturing a

screenshot. Indeed, while Boudreau insists that the screenshots

in the record -- some of which depict a partially loaded "status

bar" and all of which feature a timestamp showing the same number

of minutes Boudreau's desktop clock -- necessarily evince

contemporaneous interception, this is not so. Rather, making this

determination would require an understanding of, for example,

among other things, what SSP actually does (and on what sort of

time-scale it does it) when it captures a screenshot, what a web

browser's progress bar actually indicates, and how exactly Yahoo!

Mail auto-saves emails as a user drafts them. That level of

knowledge, we feel comfortable holding, is beyond that of lay

jurors.4

This conclusion finds ample support in the body of case

law that, in analyzing claims similar to Boudreau's, engages in

substantial detail with the nature and workings of the technology

at issue. In re Pharmatrack, Inc. Privacy Litig. -- an ECPA case

in which we concluded that software designed to collect information

about visitors to pharmaceutical companies' websites had

4 Because we find the SSP-captured screenshots to have been,
standing alone, categorically insufficient to show contemporaneous
interception, we need not take up Boudreau's assertion that the
ATC Defendants spoliated evidence by failing to preserve all of
the screenshots that SSP captured.

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contemporaneously intercepted the communications of those visitors

-- is one such example.5 See 329 F.3d 9, 12, 22 (1st Cir. 2003).

We reached that conclusion only after considering the precise

mechanism, as established though expert evidence, by which this

software intercepted the communications of internet users. Id.

Similarly, in Councilman, our holding that messages in "transient

electronic storage" continued to constitute communications

followed an extensive discussion of how exactly email client

programs "us[e] packets of data to transmit information from one

place to another." 418 F.3d at 69. Our sister circuits'

consideration of the technology that ECPA claims implicate further

reinforces the notion that more information is necessary to

properly analyze Boudreau's claim here. See, e.g., Luis, 833 F.3d

at 631-32; Szymuszkiewicz, 622 F.3d at 703-04; Konop, 302 F.3d at

874-75.

We, therefore, agree with the district court that for

Boudreau's ECPA claim to survive summary judgment, he needed to

adduce expert evidence concerning SSP's purported interception of

his communications.

5 In Pharmatrack, we found it unnecessary to determine whether
ECPA requires contemporaneous interception because the evidence
showed that, in any event, the communications at issue had been
intercepted contemporaneously. 329 F.3d at 22.

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 III.

We detect no error in the district court's decision to

grant summary judgment in favor of the defendants on all of

Boudreau's claims. The judgment of the district court is therefore

affirmed.

Affirmed.

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