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United States v. Patrakis

United States District Court, D. Hawaii

December 21, 2017




         The evolution of technology gives rise, in this particular case, to the question of whether a third-party's access to a defendant's personal home surveillance system stored in the cloud (that is, where managed remotely and made available to users over the internet)[1] requires law enforcement first to obtain a search warrant before accessing, downloading and copying the digital video content. Under the facts of this case, an authorized user accessed the account containing the video content and showed it to the police. Therefore a warrant was not required.

         Defendant Michael Patrakis (“Defendant”) filed his Motion to Suppress Evidence (“Motion”) on April 20, 2017, [dkt. no. 53, ] and the evidentiary hearing, pursuant to Franks v. Delaware, 438 U.S. 154 (1978), was held on November 15, 2017. He seeks to suppress video and physical evidence obtained by law enforcement. Two police officers and Defendant testified at the hearing.

         For the reasons set forth more fully below, the Motion is denied because an authorized third party consented to provide access to law enforcement to Defendant's home surveillance video account. The surveillance video content constituted probable cause for the subsequent entry into Defendant's home without a warrant to remove any minors and assume their protective custody. During the entry, certain physical items were observed in “plain view” and permissibly supported probable cause for a search warrant for Defendant's residence as well as the other search warrants issued for Defendant's computers, cellular telephones, cameras and websites that may have been accessed by him. Even if these observations are excised from the affidavit, ample probable cause still existed for the warrants to issue.


         The facts pertinent to the background of this case are: A five-count criminal indictment was filed against Defendant on February 23, 2017. [Dkt. no. 41.] These charges are based upon evidence obtained by law enforcement: (1) video seized from Defendant's video surveillance system without a search warrant; (2) police observations made during a warrantless entry into Defendant's residence; and (3) physical evidence recovered pursuant to search warrants issued based on the video content seized, and observations made during the warrantless entry.

         At approximately 3:00 a.m. on September 17, 2015, a witness met with local police to report child abuse. [Gov't Hrg. Exh. 1 (Search Warrant No. 2015-132K filed September 21, 2015), Aff. of Officer dated September 18, 2015 (“9/18/15 Aff.”) at 000154.[2] During the initial and subsequent meetings with police that day, the witness accessed Defendant's DropCam account for his video home surveillance through the internet and showed the video content to police officers.[3] [Id. at 000160-61.]

         Additionally, she told the police officers that: (1) the surveillance video depicted recent events which took place in Defendant's home and master bedroom; (2) Defendant gave her Defendant's username and password for his DropCam account; and (3) Defendant gave her permission to view the online video content in his DropCam account. [Id. at 000154-55, 000160.] Defendant denies giving the third-party witness permission to access his DropCam account.

         Copies of the online videos in Defendant's DropCam account were transferred by the witness onto two CDs and a thumb drive, then given to the police. [Gov't Hrg. Exh. 3 (CD containing videos recovered on 9/17/15 at the Kealakehe Police Station); Gov't Hrg. Exh. 4 (thumb drive containing videos provided to Detective Bird on 9/18/15); Gov't Hrg. Exh. 5 (CD containing videos recovered on 9/19/15 at the Captain Cook Police Station).]

         On September 17, 2015, after reviewing the DropCam account's video content and without first obtaining a warrant, the police entered Defendant's residence with Child Welfare Services to remove any children in the home, pursuant to Haw. Rev. Stat. § 587A-8(a)(1)[4]. During this entry, the police observed drug paraphernalia and a digital video recording camera in Defendant's bedroom, removed two minors from the home, and arrested Defendant on a state criminal charge. [9/18/15 Aff. at 000156-59.]

         On September 18, 2015, a search warrant for Defendant's residence was issued based upon the DropCam account's video content shown to police by the witness, and observations made by police during the entry without a warrant. [Gov't Hrg. Exh. 1 at 000148-49 (SW 2015-132K); 9/18/15 Aff. at 000154-55, 000158-59.] Items recovered from this search included a digital scale, syringes, smoking pipes, cellular telephones, a computer, computer tablets, and digital cameras. [Gov't Hrg. Exh. 2 (Return of Search Warrant No. 2015-132K, filed on September 23, 205) at 000177, 000179, 000181-86, 000188.] Law enforcement subsequently recovered additional evidence from websites, computers, cellular telephones and cameras as a result of search warrants based on the DropCam account's video content and the fruits of the first search warrant. [Motion, Decl. of Counsel at ¶¶ j-t.]


         Defendant contends that the third-party witness did not have permission to access his DropCam account, and therefore all evidence obtained as a result of law enforcement's viewing of the DropCam account's video content must be suppressed. He further argues that the witness accessed his account as law enforcement's agent and thereby triggering Fourth Amendment interests.

         Specifically, he seeks suppression of: copies of the DropCam account's video content; items recovered from his residence on September 18, 2015 pursuant to search warrant SW 2015-132K; items recovered as a result of searching the computer systems of Adult Friend Finder, Adultism and DropCam by Nest Labs pursuant to search warrants SW 2015-145W, SW 2015-146K and SW 2015-147K obtained on October 1, 2015; items recovered from Defendant's computers, cellular telephones and cameras pursuant to search warrant SW 2015-148K, obtained on October 5, 2015; and items recovered from Defendant's cellular telephone pursuant to search warrant SW 2015-177K filed, obtained on December 8, 2015. [Id.] If, as Defendant argues, the third-party witness had no authority to ...

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