Tuesday, October 5, 2004
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Child Pornography Evidence Against Ex-Judge Kline Reinstated
Ninth Circuit Rules Hacker Was Not Acting as Government Agent
By KENNETH OFGANG, Staff Writer/Appellate Courts
Evidence obtained by a hacker from former Orange Superior Court Judge Ronald C. Kline’s home computer is admissible in the federal government’s child pornography prosecution of the ex-jurist, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Reversing a suppression order by Chief U.S. District Judge Consuelo B. Marshall of the Central District of California, the panel said in an unpublished memorandum that there was no Fourth Amendment violation because the hacker was not an agent of the government.
The search was “illegal, but private,” the judges concluded.
Kline faces trial next year on the charges, which caused the demise of his career as a judge at the age of 61 two years ago. He was arrested after the filing deadline for the 2002 primary, but 11 write-in candidates filed to oppose him.
Kline finished second in the primary, and later obtained a court ruling permitting him to withdraw from the general election.
His attorney said it would be impossible for Kline to obtain a fair trial if voters were subjected to a continual airing of the charges in the heat of an election campaign.
Allowed to Withdraw
Judge David Yaffe of the Los Angeles Superior Court, sitting as an assigned Orange Superior Court judge, denied Kline’s bid to withdraw on that ground. But he later ruled that state law allowed him to drop out because he filed his request before the primary results had been certified.
Kline was also charged in Orange Superior Court with molesting a former neighbor when the accuser was 14 years old in 1979. The charges were dropped after the U.S. Supreme Court struck down California’s law allowing revival of time-barred child molestation charges under certain circumstances.
In the federal case, Marshall ruled last year that Bradley Willman of Langley, B.C., was acting as a law enforcement agent when he hacked into Kline’s computer, and that the resulting seizure of about 1,500 pictures of nude boys was unconstitutional.
Willman had attached a “Trojan Horse” virus to pornographic images of children on the Internet. The virus, which is downloaded onto an individual’s computer when that individual downloads an image to which the virus is attached, enabled Willman to open, alter, and download files on the infected computer.
Intent Not Enough
The Ninth Circuit panel, made up of Senior Judge David Thompson and Judges Barry Silverman and Kim M. Wardlaw, agreed that Willman acted with the intent to aid law enforcement. But that wasn’t enough to make him an agent of the government himself, the appellate judges said.
“A private person cannot act unilaterally as an agent or instrument of the state; there must be some degree of governmental knowledge and acquiescence. In the absence of such official involvement, a search is not governmental,” the panel said.
The judges distinguished U.S. v. Walther, 652 F.2d 788 (9th Cir. 1981). In Walther, which the panel yesterday said created a “narrow exception,” the court held that a search by a private citizen who had frequently acted as a paid informant for the Drug Enforcement Administration violated the Fourth Amendment.
The Walther court reasoned that even though the DEA had no advance knowledge of the challenged search, it “knew or should have known” that the informant “had made it a practice” to conduct illegal searches, and that the agency had acquiesced in that practice.
Willman, on the other hand, used the computer virus to obtain evidence from Kline’s computer before he contacted the Irvine Police Department, the panel explained yesterday. Marshall, the judges said, erred in considering Willman’s later contacts with police, in Irvine and elsewhere, as evidence that he was acting as an agent in conducting the search.
The case is United States v. Kline, 03-50349.
Copyright 2004, Metropolitan News Company