In re B.H., Appellant, State of Minnesota, intervenor, Appellant, vs. Cengiz Gino Yildirim, Respondent.
A20-0127
STATE OF MINNESOTA IN SUPREME COURT
July 29, 2020
Chutich, J.
Amy S. Conners, Katherine S. Barrett Wiik, Helen V. Sullivan-Looney, Best & Flanagan LLP, Minneapolis, Minnesota, for appellant B.H.
Keith Ellison, Attorney General, Saint Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Adam E. Petras, Assistant Hennepin County Attorney, Minneapolis, Minnesota, for appellant State of Minnesota.
William J. Mauzy, Mauzy Law, PA, Minneapolis, Minnesota, for respondent.
Erica A Holzer, Melissa Muro LaMere, Jeremy Krahn, Maslon LLP, Minneapolis, Minnesota; and
Tracy Shoberg, Minneapolis, Minnesota, for amicus curiae Battered Women‘s Justice Project.
Lindsay J. Brice, Saint Paul, Minnesota, for amicus curiae Minnesota Coalition Against Sexual Assault.
Rana S. Alexander, Saint Paul, Minnesota, for amicus curiae Standpoint.
S Y L L A B U S
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When an alleged victim files a motion to quash or modify a subpoena under Minnesota Rule of Criminal Procedure 22.01 , subdivision 5, the district court must consider whether compliance with the subpoena would be unreasonable under the totality of the circumstances. - In denying a motion to quash a subpoena, the district court‘s order requiring the alleged victim to turn over her cell phone to a defense-hired expert to extract data for in camera review was unauthorized by law. The district court also committed an error of law for which no adequate remedy exists and which would cause irremediable harm to the alleged victim when it failed to analyze whether compliance with the subpoena at issue was
unreasonable under the totality of the circumstances.
Reversed; writ of prohibition issued.
O P I N I O N
CHUTICH, Justice.
This case considers when compliance with a subpoena seeking privileged or confidential material from a victim of an alleged crime is unreasonable and should be quashed or modified under
B.H. filed a motion to quash the subpoena under
We conclude that in requiring B.H. to turn over her cell phone to a defense-hired expert to extract data for in camera review, the district court‘s order denying B.H.‘s motion to quash was unauthorized by law. We also conclude that the district court committed an error of law for which no other adequate remedy exists and which would result in irremediable harm to B.H. when it failed to analyze whether compliance with the subpoena was reasonable under the totality of the circumstances. We therefore reverse the court of appeals and grant the petition for a writ of prohibition.
FACTS
On March 27, 2019, the State charged Yildirim with criminal sexual conduct in the third degree under
B.H. reported the alleged assault to friends and went to the hospital for a sexual assault examination. Two days later, she reported the alleged assault to the police. B.H. told the police that she recalled sending a text message around 2:30 a.m. on December 9, before falling asleep. She later awoke to find Yildirim in bed with her. B.H. also told the police that she used her cell phone the next morning to take pictures of the blood on the bedsheets and the watch on the nightstand. She further reported that she had communicated with Yildirim about the alleged assault on Instagram.2
On December 17, 2018, B.H. took her cell phone to the Minneapolis Police Department to provide documentary proof of her allegations. The police extracted a portion of the contents of B.H.‘s phone and returned the phone to her that same day. On March 27, 2019, the State charged Yildirim.
Although the criminal case has yet to be tried, the procedural history is involved. Two months after charging, Yildirim moved for general disclosure of “books, papers, documents, photographs, law enforcement officer reports, [and] tangible objects which relate to the case” from the State under
On November 14, 2019, Yildirim moved to compel production of B.H.‘s cell phone for forensic analysis. After a chambers conference, the district court issued a Stipulation and Order Regarding Forensic Cell Phone Analysis, incorporating an agreement between the State and Yildirim.4 The Stipulation and Order provided that cell phone data from November 9, 2018 through March 27, 2019,5 should be provided to Yildirim.
Yildirim again moved to compel the State to produce B.H.‘s cell phone and to comply with the Stipulation and Order. At a hearing on December 12, 2019, the district court granted Yildirim‘s motion and ordered the State to ask B.H. to provide her phone to the court. B.H. declined to do so.
Several weeks later, Yildirim moved for a court order to subpoena B.H.‘s cell phone under
B.H. promptly retained counsel and moved to quash the subpoena under
At the motion hearing, Yildirim argued that, based on the “limited records” in his possession already produced by the State, he knew that “B.H. continue[d] to discuss the case with the police officers, with friends, and others,” and that the records contained “significant Brady material.”6 Yildirim also argued that B.H. gave “differing versions of what happened that evening.” In denying B.H.‘s motion to quash from the bench, the district court stated that it was “significant” that “there are texts and things related to this [incident] going back and forth including some . . . that would present different versions of this, of what she experienced, or her version of the story.”
That same day, the court issued a one-page written order that stated, in part, that B.H.‘s motion to quash was denied and that “B.H. shall provide her cell phone to [the defense-hired expert] or to defense counsel.” The data was to remain subject to the non-disclosure terms of the previously signed Stipulation and Order. And the defense expert was to “provide the applicable cell phone data” to the district court for in camera review.
After the district court denied B.H.‘s motion to quash, B.H. filed a notice of intent to appeal, stating that she was preparing a petition for a writ of prohibition to the court of appeals. Yildirim again asked the district court to require that B.H. turn over the phone, asserting that the intent to appeal did not result in an automatic stay. B.H. therefore moved to stay the district court order, which Yildirim opposed. At the hearing on the stay, Yildirim augmented his reasons for subpoenaing the cell phone data, citing “at least three instances” of B.H. making false allegations of sexual assault, possible
B.H. then filed a petition for a writ of prohibition with the court of appeals, asking that the district court be prohibited from enforcing its written order stating that she was required to provide her phone to defense counsel or to the defense-hired expert. The State successfully moved to intervene, and the court of appeals later denied the petition for a writ of prohibition. The court of appeals concluded that the district court did not abuse its discretion by finding that Yildirim‘s “right to review potentially exculpatory evidence outweighed B.H.‘s privacy concerns, and that in camera review will ensure that her privacy regarding information that is not relevant to the case is not disclosed.” In re B.H., No. A20-0127, Order at 4–5 (Minn. App. filed Feb. 18, 2020).
Three days after the court of appeals’ decision, Yildirim moved to hold B.H. in contempt because she had not yet turned over her phone. We granted the State‘s emergency motion to stay the district court order and later granted the joint petition for expedited review filed by B.H. and the State.
ANALYSIS
“Prohibition is an extraordinary remedy and should be used only in extraordinary cases.” Thermorama, Inc. v. Shiller, 135 N.W.2d 43, 46 (Minn. 1965). For a writ of prohibition to issue, three elements must be met: “(1) an inferior court or tribunal must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) the exercise of such power must result in injury for which there is no adequate remedy.” Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 208 (Minn. 1986).
The parties do not dispute that the first and third elements are met here, and we agree. The dispositive issue is whether the district court‘s exercise of power in denying B.H.‘s motion to quash was unauthorized by law. We have previously concluded that a writ is the “proper means by which to challenge” a trial court order quashing a subpoena. State v. Turner, 550 N.W.2d 622, 626 (Minn. 1996). A writ of prohibition may issue “to correct an error of law in the [district] court where no other adequate remedy is available to the petitioner and enforcement of the trial court‘s order would result in irremediable harm.” Id. We conclude that the writ is proper here.
We first consider the meaning of “unreasonable” under
The parties raise arguments regarding what the rules of criminal procedure require before a party may secure permission to subpoena records of a victim. Most relevant here, however, are those arguments addressing when compliance with a subpoena is unreasonable under Rule 22.01, subdivision 5. For her part, B.H. urges us to look to the parallel federal rule,
Yildirim counters that he need only make the “plausible showing” required by our decisions in State v. Paradee, 403 N.W.2d 640 (Minn. 1987), and State v. Hummel, 483 N.W.2d 68 (Minn. 1992), to extract the cell phone data and provide it to the court for in camera review, and that by doing so, compliance with a subpoena cannot be unreasonable. He maintains that we have long approved of the use of in camera review to examine a victim‘s confidential records and any discussion of the federal rule is unnecessary and unpersuasive.
Paradee established the process by which a district court could first review, in camera, confidential or privileged documents concerning a victim or witness to determine which records, if any, are relevant to the defense. In Paradee, a defendant charged with criminal sexual conduct sought access to confidential county welfare records dealing with an earlier incident involving the victim and another man; the defendant believed that the records might be of use to his defense. 403 N.W.2d at 640. The court of appeals held that defense counsel must be given access to the records. Id. at 641. We reversed, and instead concluded that in camera review of the documents by the district court was the appropriate means of balancing the interests of the defendant and the victim. Id. at 641–42 (discussing Pennsylvania v. Ritchie, 480 U.S. 39, 60–61 (1987)). We concluded that “[t]he in camera approach strikes a fairer balance between the interest of the privilege holder in having his confidences kept and the interest of the criminal defendant in obtaining all relevant evidence that might help in his defense.” Id. at 642.
We affirmed this approach in Hummel, provided that a defendant make a preliminary showing justifying in camera review. There, a defendant appealed his murder conviction, arguing that his due process rights were violated when the district court “declined his request to [subpoena and] conduct an in camera inspection of the victim‘s psychiatric [and] psychological records.” 483 N.W.2d at 70. To review a confidential file, a defendant must ” ‘establish[] a basis for his claim that it contains material evidence.’ ” Id. at 72 (quoting Ritchie, 480 U.S. at 58 n.15). Specifically, the defendant “must make some ‘plausible showing’ that the information sought would be ‘both material and favorable to his defense.’ ” Id. (quoting Ritchie, 480 U.S. at 58 n.15). We ultimately held that the defendant had failed to meet his burden because he provided “no theories” connecting the records to his defense or explaining how the records were “reasonably likely to contain information related to the case.” Id.
The procedure set forth by these cases was later codified, in part, in subdivision
The parties have spent much time arguing about this subdivision,8 Paradee, and Hummel. This appeal, however, involves B.H.‘s motion to quash under subdivision 5, which a victim may file in response to a subpoena request under subdivision 2(c). Subdivision 5 requires that the court determine whether compliance with the subpoena at issue is unreasonable. Paradee and Hummel make no mention of a motion to quash or to modify a subpoena under subdivision 5. Neither case addressed what a party seeking a subpoena must show when faced with a motion to quash or to modify. Although those cases remain good law, they do not resolve the issue before us today.
As a result, we consider the district court‘s denial of B.H.‘s motion to quash under Rule 22.01, subdivision 5. “The court on motion promptly made may quash or modify a subpoena if compliance would be unreasonable.”
We conclude that a factual analysis of the totality of the circumstances is appropriate here. District courts faced with a victim‘s motion to quash or to modify a subpoena that was sought under subdivision 2(c) must make a determination whether compliance is unreasonable given the totality of the circumstances.9 The circumstances to be considered will depend on the case at hand and may include, but are not limited to: the relevance and materiality
This case demonstrates why considering the privacy interests of the victim is critical.11 Here, Yildirim demands over 4 months of cell phone data, including data generated a month before the alleged assault occurred. “Cell phones differ in both a quantitative and a qualitative sense from other objects” that a person might possess. Riley v. California, 573 U.S. 373, 393 (2014). For example, “[t]he sum of an individual‘s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions.” Id. at 394. “A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.” Id. at 396–97.
Cell phones can also track a person‘s location, which when tracked can “achieve[] near perfect surveillance, as if it had attached an ankle monitor to the phone‘s user.” Carpenter v. United States, 585 U.S. ___, ___ 138 S. Ct. 2206, 2218 (2018). Data that tracks a person‘s location can reveal “not only his particular movements, but through them his familial, political, professional, religious, and sexual associations.” Id. at ___, 138 S. Ct. at 2217 (citation omitted) (internal quotation marks omitted). These types of records ” ‘hold for many Americans the privacies of life.’ ” Id. (quoting Riley, 573 U.S. at 403). As part of the determination of reasonableness under subdivision 5, and given the privacy concerns associated with cell phone data, we expect district courts to carefully examine subpoenas for such data, particularly those seeking data of an alleged sexual assault victim.
The parties raise other arguments, especially about the provisions of
Nor is State v. Lee helpful here. There, we held that, under Rule 9.01, “the State cannot be required to allow the defense to inspect a location that is under the control of a third party.” 929 N.W.2d at 440. Lee did not discuss or apply Rule 22.01, and provides little guidance in this matter.
Finally, Yildirim‘s argument that B.H. somehow waived her privacy interest in all of her cell phone data by voluntarily bringing her phone to the police
II.
Having established the totality of the circumstances standard under subdivision 5, we determine whether we should grant the writ of prohibition and restrain the district court from enforcing its order denying B.H.‘s motion to quash. Specifically, we must determine whether the district court acted in a way that is unauthorized by law. Minneapolis Star & Tribune Co., 392 N.W.2d at 208. A writ of prohibition may issue “to correct an error of law in the [district] court where no other adequate remedy is available to the petitioner and enforcement of the trial court‘s order would result in irremediable harm.” Turner, 550 N.W.2d at 626. The writ is “reserved for preventative rather than corrective needs.” Id.
The State and B.H. assert that Yildirim failed to make the necessary showing that would require B.H. to turn over the entire contents of her cell phone to a defense expert and that compliance with the subpoena is therefore unreasonable. In particular, B.H. states that Yildirim‘s blanket request was based on a “shaky speculation that there ‘might’ be exculpatory data in ‘phone applications’ or communications,” and he failed to show how the additional 3½ months of data with no limitation would be relevant or material to his defense. B.H. asserts that the district court erred because it failed to apply the reasonableness standard of subdivision 5 and because it required her to turn over her phone to a private, defense-hired expert.
Yildirim maintains that his offer of proof was sufficient, claiming that it contained “useful information for cross-examination” and exculpatory and impeachment material. According to him, the data to which he has access includes evidence of prior false allegations, inconsistencies in B.H.‘s recall of the alleged incident, communications with police, and communications with Yildirim himself. He argues that, based on this information, B.H. surely continued to discuss the alleged assault in the months leading up to charging. Yildirim asserts that the district court did not err because it properly followed the procedure set forth in Paradee and Hummel.
We agree with B.H. and the State that the district court acted in a way that was unauthorized by law when it denied B.H.‘s motion to quash, for two reasons. First, the district court ordered B.H. to give her cell phone to a defense-hired expert or defense counsel to review all information on the phone from the relevant time period and extract possibly relevant data and then give that data to the district court for in camera review. No law authorizes a defense-hired expert to have access to a victim‘s confidential information before a district court conducts in camera review. See Paradee, 403 N.W.2d at 642 (requiring in camera review by the trial court). Requiring the alleged victim to disclose her cell phone data directly to a defense-hired expert12 would undercut her
Second, the district court committed an error of law that would result in irremediable harm to B.H and for which no adequate remedy exists. As we have now stated, district courts must determine whether compliance with a subpoena would be unreasonable based on the totality of the circumstances. Here, the district court made no mention of the reasonableness of compliance in its order denying B.H.‘s motion to quash. At the hearing on the motion to quash, the court briefly considered the victim‘s privacy interests, but did not consider whether the breadth of the request, in terms of timeframe or the type and quantity of material sought, was unreasonable or could be modified.13 Yildirim sought all contents of the cellphone from a 4½ month period that includes one month before the alleged assault even occurred, extending up until the time that he was charged. Although Yildirim asserts that the selected date range was a result of negotiations before the Stipulation and Order was issued, those negotiations did not include B.H. and the dates selected appear arbitrary. Nor did Yildirim narrow his request to any specific text threads or applications, for example.
In sum, all three elements for a writ of prohibition are met, and issuance of the writ is necessary to prevent irremediable harm to B.H. We therefore reverse the court of appeals and grant B.H.‘s petition for a writ of prohibition. We do so without prejudice to Yildirim‘s right to request a new subpoena that conforms to the principles that are set forth today.
CONCLUSION
For the foregoing reasons, we reverse the decision of the court of appeals and grant B.H.‘s petition for a writ of prohibition.
Reversed; writ of prohibition issued.