Boudreau v. LussierBoudreau v. Lussier
The district court granted summary judgment in favor of the defendants on all of Boudreau‘s claims. Boudreau has appealed. We affirm.
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 screenshots 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.
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
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
Boudreau moved for leave to file a second amended complaint that would include a new claim under the Stored Communications Act,
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);
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
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
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
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
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,
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,
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 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.”
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’
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
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,
4.
Boudreau also presses that the district court erred in granting summary judgment of his claim that Detective Petit made
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)).
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.”
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
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.
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
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
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
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
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
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.
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.