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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