Friday, December 02, 2016

Driving with a Suspended License, the Pill Bottle and the Facebook Profile

This post examines an opinion from the U.S. District Court for the District of Kansas: U.S. v. Cooks, 2016 WL 6948065 (2016). The District Court Judge begins by explaining that
Defendant Gary Cooks was pulled over for driving with a suspended license. The traffic stop gave rise to a protective sweep that uncovered a pill bottle. And that pill bottle led to a search of the entire vehicle that uncovered a firearm in the trunk. As a result, Cooks is now charged with possessing a firearm as a convicted felon in violation of 18 U.S.  Code § 922(g)(1). Cooks moves to suppress all evidence obtained from the search of his car.
U.S. v. Cooks, supra.
The opinion, as opinions usually do, goes on to explain how and why the case arose:
On or about April 1, 2016, Officer Jared Henry of the Wichita Police Department responded to a reported aggravated assault. The victim claimed an individual had leaned out of a tan Chevy Impala and pointed a gun at her. The victim provided the Impala's tag number, and Officer Henry learned that the tag was registered to a tan Chevy Impala belonging to Gary Cooks. The victim's description matched Cooks, although she failed to pick him out from a photo lineup. Officer Henry checked Cooks' Facebook profile, and found that on March 25, Cooks had posted a video of what appeared to be him brandishing a firearm. Officer Henry also learned that Cooks was a convicted felon with a suspended driver's license.

On April 7, Officer Henry observed Cooks leaving his residence in the tan Impala. Shortly thereafter, Officer Henry pulled Cooks over for driving with a suspended license. Upon initial contact, Officer Henry confirmed Cooks' identity and asked him to step out of the vehicle. Officer Henry then patted Cooks down for weapons. Finding none, Officer Henry directed Cooks to sit on the curb under supervision of another officer that had arrived on scene. Officer Henry then proceeded to conduct a protective sweep of the immediate vicinity of the area Cooks was occupying in the car. Although Officer Henry knew that Cooks' license was suspended, he testified that he did not intend on placing Cooks under arrest at the time he conducted the protective sweep.

While conducting the protective sweep, Officer Henry opened the middle console—located in the armrest between the driver and passenger seat—and found a prescription pill bottle with approximately 20 pills inside of it. The label had been ripped off of the bottle. At this point, Officer Henry asked Cooks about the pills. Cooks stated that they were Lortabs that had been prescribed to him following a dental procedure. Cooks claimed that he had the procedure 60 days earlier, and had refilled the prescription for Lortabs 30 days ago. Officer Henry asked if Cooks had a label, or some document to verify that he had the Lortabs pursuant to a valid prescription. Cooks stated that he did not have anything on him or in the car to immediately verify the prescription, but he offered to show Officer Henry his dental work and medical insurance information in an attempt to assuage any suspicions. Cooks claimed that whenever he got a new prescription, he would put the pills in the same old pill bottle that had the label ripped off. Officer Henry did not follow up on any of Cooks' explanations.
U.S. v. Cooks, supra.
The opinion then explains that
Officer Henry found Cooks' answers suspicious. He believed that Cooks did not have a valid prescription for the Lortabs, and at that moment, felt he had probable cause to arrest Cooks for possession of narcotics. Officer Henry also believed he had probable cause to search the rest of the car for additional narcotics. He conducted a search of the entire vehicle and discovered a handgun and a jar of marijuana inside of a bag in the trunk. At that point, Cooks was placed under arrest.
U.S. v. Cooks, supra.
The court goes on to note that “Cooks now moves to suppress the evidence from the car, arguing that the protective sweep was improper and the search of the trunk was not supported by probable cause.” U.S. v. Cooks, supra.
The District Court Judge began his analysis of the issues in the case by explaining that
[t]he Fourth Amendment protects the `right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ `The Fourth Amendment generally requires police to secure a warrant before conducting a search.’ But there are exceptions to the warrant requirement. Officer Henry did not acquire a warrant to search Cooks' vehicle, and thus, the Court must consider whether any exceptions to the warrant requirement apply.

There are two searches at issue: (1) Officer Henry's protective sweep of the vehicle immediately upon pulling Cooks over; and (2) Officer Henry's more thorough search of the vehicle, including the trunk. The Court will consider each search in turn.
U.S. v. Cooks, supra.
The judge addressed the issues in this order, so he began with the propriety of the protective sweep of the vehicle.  U.S. v. Cooks, supra. The opinion begins that analysis as follows:
Cooks argues that under Arizona v. Gant, Officer Henry's protective sweep of the vehicle exceeded the scope of a search incident to arrest. But this argument conflates two distinct concepts: the search incident to arrest and the protective sweep.

`A search incident to arrest allows a search not only of the arrestee, but also of the area within his “immediate control,” meaning “the area from within which he might gain possession of a weapon or destructible evidence.”’ The search incident to arrest doctrine was applied in the context of vehicles in New York v. Belton. In Belton, the Supreme Court held that when an officer arrests an occupant of a vehicle, he may search the passenger compartment of that vehicle as a search incident to arrest.  Lower courts applied the Belton rule inconsistently, but most courts read Belton to allow an officer to search the vehicle even after he had arrested the occupants and secured them in a patrol car.  In 2009, the Supreme Court decided Arizona v. Gant, noting that Belton was being interpreted too broadly to allow officers to conduct searches that were divorced from the underlying rationale of the search incident to arrest doctrine. The Court went on to hold that the search of a vehicle and its passenger compartments incident to arrest is only allowed (1) when the arrestee is unsecured and within reaching distance of the area to be searched or (2) when the officer reasonably believes that evidence of the crime of arrest might be found.
U.S. v. Cooks, supra.
The opinion goes on to explain that
[d]istinct from the search incident to arrest is the protective sweep. In Terry v. Ohio, the Supreme Court held that an officer may search a suspect for weapons if he reasonably believes he is dealing with an armed and dangerous individual. Such a search is commonly referred to as a `protective search’ or `protective sweep.’ In Michigan v. Long, the Court applied Terry to situations in which an officer has conducted a traffic stop. Thus, an officer may conduct a protective sweep of a vehicle if he reasonably believes that the suspect poses a danger. The purpose of the protective sweep is officer safety, and it is `limited to those areas in which a weapon may be placed or hidden.’ The protective sweep may encompass the glove compartment and any other area that could contain a weapon and to which the suspect could later gain access.

Notably, the protective sweep is not subject to the limits placed on a search incident to arrest. A protective sweep usually occurs before a suspect is placed under arrest, and in some cases when a protective sweep is performed, the suspect might not be arrested at all. “In the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is complete. And therefore, unlike a search incident to arrest, a protective sweep of a vehicle may be conducted even when the suspect is not in reaching distance of the area at the time of the search.
U.S. v. Cooks, supra.
The judge then began his analysis of the propriety of the protective sweep, explaining that
[w]hen Officer Henry conducted his protective sweep of Cooks' vehicle, Cooks was not under arrest. At that point, Cooks was only stopped for driving on a suspended license—and Officer Henry testified that he did intend to arrest Cooks for that offense. Had Officer Henry not found Cooks' Lortabs, the encounter might have ended with Cooks returning to his vehicle. Therefore, the facts in this case are much more akin to Michigan v. Long than Arizona v. Gant, and the limitations on searches incident to arrest do not apply.

In other words, Officer Henry's initial search was a protective sweep and not a search incident to arrest. Officer Henry was authorized to conduct a protective sweep if there was reasonable, articulable suspicion that Cooks could be armed. It had been reported to Officer Henry that an individual matching Cooks' appearance had brandished a handgun from a tan Chevy Impala just a week earlier. And Officer Henry had viewed a recently uploaded Facebook video of Cooks brandishing what appeared to be a handgun. Given these facts, Officer Henry was justified in conducting a protective sweep of Cooks' vehicle. Additionally, the search did not exceed the scope allowed for under the law. Officer Henry limited the search to areas within reaching distance that could have contained a weapon. The prescription pill bottle was located in such an area. And so, Officer Henry uncovered the prescription pill bottle and Lortabs while conducting a legal search.

Because the pills were discovered through a lawful protective sweep, the Court will not suppress them as evidence. The Court now turns to Officer Henry's search of the trunk of Cooks' vehicle.
U.S. v. Cooks, supra.
The judge began the analysis of the search of the trunk by explaining that a police officer
may conduct a warrantless search of a vehicle if he has probable cause to believe contraband will be found inside. In such circumstances, `the officer may search the entire vehicle, including the trunk and all containers therein that might contain contraband.’ After questioning Cooks about the pill bottle, Officer Henry believed that Cooks possessed the pills illegally.

Officer Henry said he was struck by several things in his conversation with Cooks. First, that Cooks was unusually talkative and tried to change the subject when asked about the pills. Officer Henry testified that, in his experience, such behavior suggested dishonesty. Second, Officer Henry found it suspicious that there were approximately 20 pills in the bottle for a 60 day-old prescription that had only been refilled once. Third, when asked to verify the prescription, Cooks presented his health insurance card, but not an actual label or something to verify that the Lortabs were lawfully prescribed him. Fourth, Officer Henry found it unbelievable that Cooks would place legally prescribed pills in an unmarked prescription pill bottle. Cooks' explanation, Officer Henry testified, was simply incredible. Accordingly, Officer Henry felt that he had probable cause to arrest Cooks for possessing the Lortabs illegally and to search the rest of the vehicle.
U.S. v. Cooks, supra.
The opinion goes on to address the issue of probable cause, explaining that
Cooks argues that the pill bottle and his explanations was not enough evidence to provide Officer Henry with probable cause to search his trunk. At the hearing on his motion to suppress, Cooks' counsel argued that instead of searching the vehicle at the scene, Officer Henry `could have had the car impounded. [He] could have gotten a warrant to try to search it.’ While the Court agrees that Officer Henry certainly could have tried to get a search warrant, he would have been unsuccessful because probable cause was lacking.

Probable cause to search is established where known facts and circumstances would lead a reasonable person to believe evidence of a crime will be found. There must be a nexus between the suspected criminal activity and the place to be searched. Probable cause is measured against an objective standard of reasonableness and cannot be established `simply by piling hunch upon hunch.’ Rather, the Court must look at the facts and consider not only those supporting probable cause, but also `those that militate against it.’
U.S. v. Cooks, supra.
The judge goes on to explain that
[i]n this case, there was insufficient evidence to establish probable cause for a search of the trunk. In his testimony, Officer Henry was able to articulate why he was suspicious of Cooks' answers. And indeed, if the test were reasonable suspicion, the Court would certainly find that Officer Henry had a reasonable, articulable suspicion of criminal activity. But `[r]easonable suspicion is a less demanding standard than probable cause.’ Cooks gave plausible answers to Officer Henry's questions about the pills. And while Officer Henry's suspicions may have been justified, the evidence did not rise to the level of probable cause to search the vehicle.

Most conversations between a law enforcement officer and one suspected of criminal activity in situations such as this, that give rise to probable cause supporting a more thorough search, arise because the suspect gives responses that in light of the known facts are illogical or make no sense. Cooks' responses that he had recently had undergone a dental procedure, had been prescribed pain pills for that procedure, and had the pain medication refilled, is not illogical or nonsensical. While it was unusual that the medication was contained in a bottle with the label removed, Cooks' story was otherwise coherent and consistent with the known facts at the time. Moreover, though Cooks could not immediately provide a pill bottle label showing a prescription for Lortabs issued to him, he did offer to display the dental work to the officer to prove that he had received recent treatment, and he did offer to show his health insurance card. Both offers were implicitly declined.
U.S. v. Cooks, supra.
The opinion concludes by explaining that
[i]n light of all the facts then known to the officer, it is not illogical, unreasonable or necessarily unbelievable that Cooks actually had a dental procedure, that he had received a prescription for pain medication because of that procedure, that perhaps after refilling the prescription his pain subsided somewhat so that much of his refilled medication would still remain. Though perhaps unusual, these representations viewed in total are not so implausible or unbelievable to rise from the level of reasonable suspicion to that of probable cause. The Court does not believe that, on this showing alone, a neutral magistrate would have found a sufficient showing of probable cause to have issued a search warrant. Nor does this Court find a sufficient showing of probable cause. Thus Officer Henry's warrantless search was unlawful.

Viewed objectively, the evidence did not establish a fair probability that contraband would found in the trunk. Thus, Officer Henry did not have probable cause to search Cooks' trunk, and the evidence retrieved from that search is suppressed.
U.S. v. Cooks, supra.
The judge therefore held that “[b]ecause Officer Henry searched the trunk of Cooks' vehicle without probable cause to do so, Cooks' motion is granted and all evidence recovered from the trunk is suppressed.”  U.S. v. Cooks, supra.


Wednesday, November 30, 2016

Armed Robbery, the Text Message and the Cell Phone

This post examines an opinion from the Court of Appeals of Ohio – Fifth District:  State v. Hidey, 2016 WL 5885507 (2016). The court begins by explaining that “[a]ppellant the State of Ohio appeals a judgment of the Tuscarawas County Common Pleas Court suppressing a cell phone seized from appellee Kody S. Hidey.”  State v. Hidey, supra.
It goes on to explain that
[o]n October 28, 2014, an armed robbery took place at Marty’s Coaches Corner in New Philadelphia, Ohio. Detective Shawn Nelson of the New Philadelphia Police Department commenced an investigation. Det. Nelson received a tip from Charla Hamilton on October 29, 2014, that a man by the name of Devonte Sherman might be responsible for the robbery.

Ms. Hamilton informed Det. Nelson that she received a text message on the day of the robbery from Devonte Sherman asking if she knew of anywhere to `make some moves.’ She understood `make some moves’ to be a slang term for committing a robbery or stealing. She told Det. Nelson that Devonte Sherman did not have a phone, but had been staying with appellee and shared appellee's phone. The text messages from Sherman came to her from a number she recognized as appellee's cell phone number. She further indicated that Sherman used appellee's phone after the robbery, saying he was `hot’ in New Philadelphia and needed to let things cool down before coming back.
State v. Hidey, supra.
The opinion continues with its account of the facts that led to the charges against Hidey and this appeal:
After police met with Hamilton, they prepared a photo lineup that was shown to the employees who worked in Marty's Coaches Corner on the night of the robbery. Both employees identified Devonte Sherman as the perpetrator of the armed robbery.

Det. Nelson conducted an interview with appellee at the police department on November 3, 2014. Det. Nelson asked appellee if he had his phone with him. He asked appellee to see the phone, saying, `I'm not taking it. I just want to see it while you're sitting here with me. Make sure it's off.’ Tr. 13. After confirming that Sherman used appellee's phone, Det. Nelson told appellee that he was taking the phone. On November 13, 2014, police obtained a search warrant to retrieve the contents of appellee's phone.
State v. Hidey, supra.
The Court of Appeals goes on to explain that
[a]ppellee was indicted by the Tuscarawas County Grand Jury with one count of aggravated robbery (Ohio Revised Code 2911.01(A)(1)) with a firearm specification. Appellee filed a motion to suppress all evidence obtained from the warrantless seizure of his cell phone.

Following a hearing, the court found that although there may have been probable cause to seize the phone, there were no exigent circumstances to justify the seizure because Det. Nelson knew about the phone's potential link to criminal activity prior to his interview with appellee, and could have obtained a warrant to seize the phone. The court found that even if the seizure was proper, the seizure subsequently became unreasonable because the detective waited ten days after the seizure to obtain a warrant for the information contained in the phone. The court accordingly granted appellee's motion to suppress.
State v. Hidey, supra.
In the paragraph above, the court is explaining that even if one assumes the officers had probable cause – the standard used in determining if a Fourth Amendment search or seizure is “reasonable” – the seizure violated the Fourth Amendment because it was not justified under the exigent circumstances exception’s to the default requirement that officers obtain a search and seizure warrant to take possession of evidence.
In its appeal, the State of Ohio, e.g., the prosecution, argued that “that the [trial] court erred in finding that the seizure of appellee's cellphone violated the Fourth Amendment.”  State v. Hidey, supra. It went on to argue that
[a] seizure of personal property is ordinarily per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized. United States v. Place, 462 U.S. 696, 701(1983). However, where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Fourth Amendment permits seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present. Id. Different interests are implicated by a seizure than by a search, as a seizure implicates only the person's possessory interests, while a search affects the person's privacy interests. Segura v. United States, 468 U.S. 796, 806 (1984). Because the nature of a seizure is generally less intrusive than a search, the United States Supreme Court has frequently approved a warrantless seizure of property on the basis of probable cause, for the time necessary to secure a warrant. Id.
State v. Hidey, supra.
The Court of Appeals also noted that
[a]lthough the Ohio Supreme Court has declined to define a cell phone as a closed container, once the cell phone is in police custody, the State has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the information found on the phone is neither lost nor erased. State v. Smith, 124 Ohio St.3d 163, 169, 920 N.E.2d 949, 955, ¶ 23 (Ohio Supreme Court 2009). But because a person has a high expectation of privacy in a cell phone's contents, police must obtain a warrant before intruding into the phone's contents. Id.
State v. Hidey, supra.
The court went on to outline its analysis of the legality of the seizure of the cell phone:
The evidence presented at the hearing demonstrated that the detective had probable cause to believe appellee's cell phone contained evidence of the armed robbery of Marty's Coaches Corner on October 28, 2014. Charla Hamilton told Det. Nelson of a photo of the front page of the local newspaper talking about the robbery which was sent or received from that phone. Messages from Devonte Sherman asking her about `moves’ had come from appellee's phone, as well as Sherman's message that he needed to stay clear of New Philadelphia until things cooled down. Further, Hamilton had some, but not all, of the messages on her phone to corroborate her statements to police. Sherman had been identified by both employees from a photo lineup as the person who robbed the store. While talking to appellee, Det. Nelson confirmed that Sherman had used appellee's phone.

However, the trial court erred in finding that the exigencies which supported the seizure of the phone were created by Det. Nelson by his failure to secure a warrant to seize the phone, and could not be relied on to support the warrantless seizure of the phone. The officer testified that prior to locating appellee, he did not have information he needed to get a warrant to seize the phone. He testified that needed information such as the phone number, the pin number, and the description of the device being sought. All he knew was that appellee had a phone which may or may not be in his possession, and police would not know where to execute a warrant for the phone.

Further, the court erred in finding that the warrantless seizure was not demanded by the exigencies of the situation. Appellee knew from the interview that police suspected his phone had been used by Sherman to relay information concerning a crime. Det. Nelson testified that he therefore had reason to believe that the minute appellee walked out the door, the phone would be destroyed or thrown in the river, or all the information on it would be deleted. The seizure of the cell phone from appellee at the police interview did not violate the Fourth Amendment.
State v. Hidey, supra.


Monday, November 28, 2016

The “Romantic Relationship,” the AOL Email Account and the Facebook Account

This post examines an opinion the U.S. Court of Appeals for the Second Circuit issued last summer in a civil suit:  Sewell v. Bernardin, 795 F.3d 337 (2015).  The court begins by explaining that
[i]n order to resolve this appeal, we address a matter of first impression in this Circuit: the operation of the statutes of limitations applicable under the civil enforcement provisions of the Computer Fraud and Abuse Act (CFAA.), 18 U.S. Code § 1030, and the Stored Communications Act (SCA.), 18 U.S. Code § 2701, et seq. A plaintiff bringing an action under the CFAA's civil enforcement provision must do so `within 2 years of the date of the act complained of or the date of the discovery of the damage.’ 18 U.S. Code § 1030(g). The SCA provides that `[a] civil action under this section may not be commenced later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.’ 18 U.S. Code § 2707(f).
Sewell v. Bernardin, supra.
The court goes on to explain that
[t]he plaintiff, Chantay Sewell, filed suit under both statutes alleging that her former boyfriend, defendant Phil Bernardin, had gained access to her e-mail and Facebook accounts without her permission and therefore in violation of the CFAA and the SCA. She asserts that she discovered that she could not log into her www.aol.com (AOL.) e-mail account on or about August 1, 2011 `because her password was altered.’ Complaint ¶ 11(J.A. 5). More than six months later, on or about February 24, 2012, she contends, she discovered that she could not log into her www.facebook.com (`Facebook’) account `because her password was altered.’ Complaint ¶ 12 (J.A. 5). The district court granted Bernardin's motion to dismiss Sewell's claims as untimely, and Sewell appealed.
Sewell v. Bernardin, supra.
The Court of Appeals then outlined the facts that led to this litigation:
We accept as true at this stage of the proceedings all facts alleged in Sewell's complaint. See Town of Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir.2012). According to those allegations, Sewell and Bernardin were involved in a `romantic relationship’ from in or about 2002 until 2011. Sewell maintained a private e-mail account with AOL and a private social media account with Facebook, including in 2011 and 2012. She did not knowingly share her account passwords with Bernardin or any other person and was the only authorized user of each account.

On or about August 1, 2011, Sewell discovered that her AOL password had been altered, and she was therefore unable to log into her AOL e-mail account. That same month, malicious statements about her sexual activities2 were e-mailed to various family members and friends `via Sewell's own contacts list maintained privately within her email account.’ Compl. ¶ 19 (J.A. 6).

On February 24, 2012, Sewell found herself unable to log into her Facebook account. Then, on March 1, 2012, someone other than she posted a public message from her Facebook account containing malicious statements, again concerning Sewell's sex life.
Sewell v. Bernardin, supra.
The opinion continues, explaining that
Sewell alleges that Bernardin obtained her AOL and Facebook passwords without her permission while he was a guest in her home. Verizon Internet records confirmed that Bernardin's computer was used to gain access to the servers on which Sewell's accounts were stored. He then changed her AOL and Facebook passwords. Bernardin allegedly thereby obtained access to Sewell's electronic communications and other personal information and sent messages purporting to be from her.

On May 15, 2013, Sewell filed a separate suit against Bernardin's wife, Tara Bernardin, and `John Does # 1–5,’ apparently believing that Tara Bernardin and others unknown to her had gained access to her Internet accounts. The complaint raised claims strikingly similar to those that she is pursuing in the instant action. Tara Bernardin settled her suit with Sewell on September 27, 2013, and the court accordingly entered judgment in Sewell's favor shortly thereafter. Several months later, on January 2, 2014, Sewell filed the instant action against Phil Bernardin, alleging violations of the SCA and CFAA. On August 2, 2014, the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge) granted Bernardin's motion to dismiss, holding that Sewell's claims were time-barred under the CFAA's and SCA's applicable two-year statutes of limitations. This appeal followed.
Sewell v. Bernardin, supra.
The Court of Appeals then outlined the standard it applies when a case involves the
grant of a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) de novo, `accepting as true factual allegations made in the complaint, and drawing all reasonable inferences in favor of the plaintiff[ ].’ Town of Babylon, 699 F.3d at 227. `Dismissal under Federal Rules of Civil Procedure 12(b)(6) is appropriate when a defendant raises a statutory bar,’ such as lack of timeliness, `as an affirmative defense and it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a matter of law.’ Staehr v. Hartford Fin. Servs. Grp., 547 F.3d 406, 425 (2d Cir. 2008) (internal quotation marks, alterations, and emphasis omitted).
Sewell v. Bernardin, supra.
The court then summarized the applicable law under the Computer Fraud and Abuse Act and the Stored Communications Act:
The CFAA criminalizes, inter alia, `intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing] . . . information from any protected computer,’ 18 U.S. Code § 1030(a)(2)(C), and `intentionally access[ing] a protected computer without authorization, and as a result of such conduct, caus[ing] damage and loss,’ id. § 1030(a)(5)(C).

The statute also provides a civil cause of action to `[a]ny person who suffers damage or loss by reason of a violation of this section.’ Id. § 1030(g). To be timely, such a civil suit must be filed `within 2 years of the date of the act complained of or the date of the discovery of the damage.’ Id .`“Damage,’ in turn, is defined as `any impairment to the integrity or availability of data, a program, a system, or information.’ Id. § 1030(e)(8). The statute of limitations under the CFAA accordingly ran from the date that Sewell discovered that someone had impaired the integrity of each of her relevant Internet accounts.

Under the SCA, it is a crime to:
(1) intentionally access[ ] without authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceed[ ] an authorization to access that facility; and thereby obtain[ ], alter[ ], or prevent[ ] authorized access to a wire or electronic communication while it is in electronic storage in such system. . . .

18 U.S. Code § 2701(a).

As with the CFAA, the SCA establishes a civil cause of action. `[A]ny . . . person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind’ may file suit. Id. § 2707(a). A civil action under this section must be commenced no `later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.’ Id. § 2707(f). In other words, the limitations period begins to run when the plaintiff discovers that, or has information that would motivate a reasonable person to investigate whether, someone has intentionally accessed the `facility through which an electronic communication service is provided/ and thereby obtained unauthorized access to a stored electronic communication. Id. § 2701(a).
Sewell v. Bernardin, supra.
The Court of Appeals then began its analysis of the issue in this case, explaining that
[t]he district court granted Bernardin's motion to dismiss Sewell's claims as untimely based on the court's conclusion that Sewell was `aware that the integrity of her computer had been compromised’ as of August 1, 2011. Sewell v. Bernardin, 50 F.Supp.3d 204, 212 (E.D.N.Y. 2014). The court reasoned that Sewell's August 1, 2011, discovery—which related to the unauthorized use of her AOL account—provided her with a reasonable opportunity to discover the full scope of Bernardin's alleged illegal activity more than two years before she brought this suit on January 2, 2014. We agree with the district court as its decision related to Sewell's AOL account, but disagree with it as it related to her Facebook account.
Sewell v. Bernardin, supra.
The court then began its analysis of the issues outlined above, beginning with this:
Sewell discovered the `damage’ to her AOL account for CFAA purposes on August 1, 2011, when she learned that she could not log into her AOL e-mail account. That she may not have known exactly what happened or why she could not log in is of no moment. The CFAA's statute of limitations began to run when Sewell learned that the integrity of her account had been impaired.

The SCA's statute of limitations began to run when Sewell `first . . .  had a reasonable opportunity to discover,’ 18 U.S. Code § 2707(f), that someone had `intentionally access[ed] [her AOL account] without authorization,’ id. § 2701(a). She had such an opportunity as soon as she discovered that she could not obtain access to that account because her password had been `altered’ inasmuch as, accepting her other allegations as true, further investigation would have led her to Bernardin.

Sewell's CFAA and SCA claims with regard to her AOL account were first made on January 2, 2014, and were premised on damage and unauthorized access to her AOL account which she had or should have discovered some two years and five months earlier. The two-year statutes of limitations had therefore run.
Sewell v. Bernardin, supra.
The court then explains that, with regard to
Sewell's Facebook-related claims, by contrast, appear to have accrued on or about February 24, 2012. Her complaint alleges that she “was the sole authorized user of” her Facebook account. Compl. ¶ 10 (J.A. 4). On or about `February 24, 2012, [she] discovered that she could no longer log into or access her account with www.facebook.com because her password [had been] altered.’ Compl. ¶ 12 (J.A. 5). There is nothing in the facts as alleged in the complaint from which to infer that anyone gained unauthorized access to her Facebook account before then. Thus, taking these allegations as true, there would have been no damage, for CFAA purposes, or violation, for SCA purposes, for Sewell to discover with respect to her Facebook account before that date, which was less than two years before the suit was brought.

The fact that Sewell had discovered `damage’ to her AOL account based on her inability to access AOL's computer servers at an earlier date does not lead to a different result. Contrary to the district court's remark, Sewell did not allegedly discover `that the integrity of her computer had been compromised’ as of August 1, 2011. Sewell, 50 F.Supp.3d at 212 (emphasis added). She discovered only that the integrity of her AOL account had been compromised as of that time. Her CFAA claim accordingly is premised on impairment to the integrity of a computer owned and operated by AOL, not of her own physical computer. As a result, Sewell has two separate CFAA claims, one that accrued on August 1, 2011, when she found out that she could not access her AOL account, and one that accrued on February 24, 2012, when she found out that she could not access her Facebook account.

Sewell v. Bernardin, supra (emphasis in the original).

The opinion goes on to point out that,

[l]ike her Facebook-related CFAA claim, Sewell's Facebook-related SCA claim is also timely. Under the SCA, a civil plaintiff must file her claim within two years of discovery or a reasonable opportunity to discover intentional and unauthorized access to an electronic communication facility. The district court concluded that Sewell `had a reasonable opportunity to discover the Defendant's illegal activity’ vis-à-vis her Facebook account as of August 1, 2011. Sewell, 50 F.Supp.3d at 213 (internal quotation marks and brackets omitted). But as we have noted, there is no allegation in the complaint that Sewell's Facebook account and the computer servers on which her information was stored were tampered with before February 24, 2012, when she alleges that she was unable to log into her Facebook account. She could not reasonably be expected to have discovered a violation that, under the facts as alleged in the complaint, had not yet occurred.

The district court's conclusion may rest on the assumption that a plaintiff is on notice of the possibility that all of her passwords for all of the Internet accounts she holds have been compromised because one password for one Internet account was compromised. We do not think that that is a reasonable inference from the facts alleged in the complaint. We take judicial notice of the fact that it is not uncommon for one person to hold several or many Internet accounts, possibly with several or many different usernames and passwords, less than all of which may be compromised at any one time. At least on the facts as alleged by the plaintiff, it does not follow from the fact that the plaintiff discovered that one such account—AOL e-mail—had been compromised that she thereby had a reasonable opportunity to discover, or should be expected to have discovered, that another of her accounts—Facebook—might similarly have become compromised.
Sewell v. Bernardin, supra.
The court went on to note that
[w]e pause to acknowledge that the statutes of limitations governing claims under the CFAA and SCA, as we understand them, may have troubling consequences in some situations. Even after a prospective plaintiff discovers that an account has been hacked, the investigation necessary to uncover the hacker's identity may be substantial. In many cases, we suspect that it might take more than two years. But it would appear that if a plaintiff cannot discover the hacker's identity within two years of the date she discovers the damage or violation, her claims under the CFAA and SCA will be untimely.

The plaintiff does have the option of initiating a lawsuit against a Jane or John Doe defendant, but she must still discover the hacker's identity within two years of discovery or a reasonable opportunity to discover the violation to avoid dismissal. This is because we have concluded `that Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities.’ Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 470 (2d Cir.1995).
Sewell v. Bernardin, supra.

The Court of Appeals therefore held that “[f]or the foregoing reasons, the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part for further proceedings.” Sewell v. Bernardin, supra.