Friday, September 29, 2017

The University Computer Lab, the Pro Se Complaint and False Arrest

This post examines a recent decision from a federal District Court Judge who sits in the U.S. District Court for the Middle District of Tennessee: Molthan, v. Vanderbilt University, 2017 WL 1489099. The judge begins the opinion by explaining that “Plaintiff Jason Steven Molthan has filed this pro se action under 42 U.S. Code § 1983, alleging a violation of his constitutional rights. 
The opinion goes on to explain that
[h]aving granted Plaintiff leave to pursue this suit without paying the filing fee, the Court must conduct an initial review of the complaint under 28 U.S. Code § 1915(e)(2) and dismiss it or any portion of it that is frivolous or malicious, fails to state a claim for which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. If an action is filed IFP, `the court shall dismiss the case at any time if the court determines that ... the action . . .fails to state a claim on which relief may be granted.’ 28 U.S. Code § 1915(e)(2)(B)(ii). In assessing whether a complaint states a claim on which relief may be granted, the Court applies the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as construed by Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–57 (2007)Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). `Accepting all well-pleaded allegations in the complaint as true, the Court ‘consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.’ Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original). `[P]leadings that . . .are no more than conclusions[ ] are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.’ Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (`Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds' on which the claim rests.’).
Molthan, v. Vanderbilt University, supra.
The court’s opinion goes on to explain that
`Pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed.' Williams, 631 F.3d at 383 (internal quotation marks and citation omitted). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). It is the plaintiff, not the court, who must set forth a coherent cause of action. See Brown v. Matauszak, 415 Fed.Appx. 608, 613 (6th Cir. 2011) (`[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading’) (internal quotation marks and citation omitted); Payne v. Sec'y of Treas., 73 Fed.Appx. 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating, `[n]either this court nor the district court is required to create Payne's claim for her’); cf. Plyler v. Ford, 542 U.S. 225, 231 (2004) (`District judges have no obligation to act as counsel or paralegal to pro se litigants.’); Young Bok Song v. Gipson, 423 Fed.Appx. 506, 510 (6th Cir. 2011) (`[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.’).
Molthan, v. Vanderbilt University, supra.
The District Court Judge then summarized the “factual allegations” that the plaintiff alleged supported his cause of action:
Plaintiff alleges that at 10:30 p.m. on April 5, 2016, he was conducting research in the computer lab in the Sarratt Student Center on Vanderbilt University's campus, which is open to the general public until 11 p.m. (Doc. No. 1, at 6, 8.) Plaintiff was approached at 10:30 by three Vanderbilt University police officers who said that a Vanderbilt employee had recognized him from local news media reports. The officers asked to see Plaintiff's identification, then asked him to gather his belongings and step outside, where they searched his belongings and questioned him about the news coverage. (Id. at 6.) Despite Plaintiff's explanation that the media coverage was `defamatory’ and that he had not been `convicted of the felony,’ at 10:55 p.m. the officers told Plaintiff to leave the Vanderbilt campus and never return. Plaintiff began to leave, but before he could, the officers ordered him to stop and arrested him for criminal trespassing. (Id. at 6–7.) On April 11, 2016, Plaintiff pleaded not guilty in General Sessions Court; the charge was dismissed, and Plaintiff was released from jail at approximately 8 p.m. (Id. at 7–8.) Since that incident, Plaintiff alleges that Vanderbilt police officers have intimidated him in areas near the Vanderbilt campus and have threatened him with arrest `if he does not find another area of town to frequent.’ (Id. at 8.)
Molthan, v. Vanderbilt University, supra.
The District Court Judge then begins her analysis of the facts and legal issues in the case, explaining, which she divides into two parts: “Claims Related to Plainitff’s Arrest” and “Claims Related to Post-Release Events.” Molthan, v. Vanderbilt University, supra.
She begins her analysis of the claims related to Molthan’s arrest by explaining that
Plaintiff alleges that Defendants are liable for false arrest/imprisonment in violation of his federal constitutional rights under the Fourth Amendment, pursuant to 42 U.S.C. § 1983. Section 1983 confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Wurzelbacher v. Jones–Kelley, 675 F.3d 580, 583 (6th Circuit 2012). Thus, to state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that `the deprivation was caused by a person acting under color of state law.’ Tahfs v. Proctor, 316 F. 3d 584, 590 (6th Cir. 2003) (citations omitted); 42 U.S.C. § 1983. For the purposes of initial review, the Court accepts Plaintiff's allegation that the Vanderbilt University police officers were acting under color of state law and finds that Plaintiff has stated a nonfrivolous claim for false arrest/imprisonment. See Mettetal v. Vanderbilt Univ., Legal Dep't, 147 Fed. Appx. 577, 581 (6th Cir. 2005) (reversing dismissal of § 1983 claim against Vanderbilt police department on statute of limitation grounds). The Court also finds, again solely for the purpose of initial review, that Plaintiff's allegation that he was not arraigned until April 11, 2016, makes his April 10, 2017 Complaint for false arrest/imprisonment under the Fourth Amendment timely. See Wallace v. Kato, 549 U.S. 384, 391 (2007) (holding that plaintiff's federal false arrest/imprisonment claim accrued, and statute of limitations began to run, on the date that his false imprisonment ended when the plaintiff appeared in court and was bound over for trial); Tenn. Code Ann. § 28–3–104(a)(1) (setting one-year statute of limitations for actions for false imprisonment and for actions brought under the federal civil rights statutes).
Molthan, v. Vanderbilt University, supra.
The Judge goes on to explain that in Wallace, supra,
the petitioner claimed that his confession to murder was the product of his unlawful arrest, which occurred on January 19, 1994. 549 U.S. at 386. The state court agreed on direct appeal following his conviction, finding the petitioner's arrest violated the Fourth Amendment. Id. The state appellate court ultimately remanded the case for a new trial, but rather than retrying the petitioner, the prosecution dropped the charges against him on April 10, 2002. Id. On April 2, 2003, the petitioner filed a § 1983 claim seeking damages for the unlawful arrest. Id. The petitioner argued that his claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994), until the charges against him were dropped, and that his lawsuit filed within one year of that event was therefore timely. Id. at 392. The Supreme Court held, however, that Heck only bars cases that would invalidate an `extant conviction,’ and that while it would warrant staying a § 1983 claim through the course of a plaintiff's prosecution, it did not delay the accrual of a Fourth Amendment claim or commencement of the limitations period. Id. at 392–97.

Instead, the Court held that the limitations period on a Fourth Amendment claim for false arrest begins to run on the day that the false arrest/imprisonment ends, e.g. when continued confinement becomes lawful pursuant to legal process, when the defendant appears in court and is bound over for trial. Id. at 389–91. Accordingly, from the face of the complaint, it appears that the limitations period for Plaintiff's Fourth Amendment claim began to run, not on April 5 when he was arrested, but on April 11, 2016, when the charge against him was dismissed and he was released after his initial court appearance.
Molthan, v. Vanderbilt University, supra.
The Judge, though, goes on to explain that
[h]owever, the rule of delayed limitations-period commencement announced in Wallace for federal false arrest claims is a `distinctive rule’ that arises from `the common law's distinctive treatment of the torts of false arrest and false imprisonment,’ and does not apply to other state or federal claims arising out of the arrest. Wallace, 549 U.S. at 388–89; Fox v. DeSoto, 489 F.3d 227, 233, 235 (6th Cir. 2007) (holding that despite delayed accrual under Wallace for false arrest claim, `claim for excessive force in effectuating an arrest accrues at the time of arrest,’ and affirming dismissal of state law claim for assault and battery as untimely). Accordingly, with the exception of his Fourth Amendment claim for false arrest, all of Plaintiff's state and federal claims arising from Defendants' actions on the date of his arrest—including his claims for conspiracy, official oppression, fraud, entrapment, extortion, assault and battery, and intentional infliction of emotional distress—are untimely.
Molthan, v. Vanderbilt University, supra.
The judge then took up the “claimes related to Post-Release Events”, noting that
Plaintiff's claim for harassment appears to relate to events occurring since his release. That claim, and any other claims that could be liberally construed to relate to the alleged harassment he has experienced since his release, are timely but fail to state any claim for which relief can be granted. Plaintiff bases his claims for conspiracy, official oppression, fraud, entrapment, extortion, assault and battery, and harassment on state criminal statutes that define crimes and their defenses; they do not create private causes of action. (See Doc. No. 1, at 10–12 (citing Tenn. Code Ann. §§ 39–12–103, 39–16–403, 39–11–106, 39–11–505, 39–14–112, 39–13–101 and 102, 39–17–308, 39–17–315)); Dirks v. Tudors, No. E200801384COAR3CV, 2009 WL 1372180, at *2 (Tenn. Ct. App. May 18, 2009) (`[W]ith respect to the plaintiff's claim based upon official oppression, the applicable statute, Tenn. Code Ann. § 39–16–403 (2006) does not indicate, in any way, that a private cause of action for official oppression was contemplated by the legislature when the statute was enacted.’).
Plaintiff also cites 42 U.S.C. §1985 among his grounds for filing suit. (Doc. No. 1, at 1.) However, any claim for conspiracy to interfere with Plaintiff's civil rights pursuant to 42 U.S.C § 1985(3) fails because he has not alleged that such conspiracy was based on his race or other `inherent personal characteristics.’ Webb v. United States, 789 F.3d 647, 672 (6th Cir. 2015) (`The Supreme Court requires that § 1985 claims contain allegations of `class-based, invidiously discriminatory animus.’ Griffin v.Breckenridge, 403 U.S. 88, 102 (1971). The class must be based upon race or other `inherent personal characteristics.’ Browder v. Tipton, 630 F.2d 1149, 1150 (6th Cir. 1980).”).
Molthan, v. Vanderbilt University, supra.
The Judge goes on to explain that, to
 the extent that the claims for which Plaintiff has relied upon criminal statutes actually exist as civil claims under state law, Plaintiff's allegations do not satisfy the elements of those claims. For example, the mere fact that Vanderbilt has banned Plaintiff from campus despite maintaining open hours for the general public does not state a claim for fraud. See Grant v. Tucker, 57 F. Supp. 3d 852, 858 (M.D. Tenn. 2014) (`Under Tennessee law, a plaintiff must establish four elements to prove fraud: (1) an intentional misrepresentation with regard to a material fact; (2) knowledge of the representation's falsity (i.e., it was made ‘knowingly’ or ‘without belief in its truth,’ or ‘recklessly’ without regard to its truth or falsity); (3) the plaintiff reasonably relied on the misrepresentation and suffered damage; and (4) the misrepresentation relates to an existing or past fact, or, if the claim is based on promissory fraud, the misrepresentation ‘must embody a promise of future action without the present intention to carry out the promise.’). And the verbal harassment Plaintiff has allegedly experienced in the Vanderbilt vicinity since his release is clearly not shocking enough to state a claim for intentional infliction of emotional distress. See Davis v. Covenant Presbyterian Church, No. M2013–02273–COA–R3CV, 2014 WL 2895898, at *6–7 (Tenn. Ct. App. June 23, 2014) (`A claim for intentional infliction of emotional distress requires a showing that “the defendant's conduct was (1) intentional or reckless, (2) so outrageous that it is not tolerated by civilized society, and (3) resulted in serious mental injury to the plaintiff”’...The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.' ”); see also Johnson v. Unknown Dellatifa, 357 F.3d 539, 545–46 (6th Cir. 2004) (holding that harassment and verbal abuse, no matter how `shameful and utterly unprofessional,’ do not violate the Constitution).
Molthan, v. Vanderbilt University, supra.
The Judge went on to explain that
[a]nd finally, Plaintiff's reliance on `personal injury’ merely invokes a legal connection between certain torts, such as negligence or assault, and a right to relief. `Personal injury' itself is not an independent cause of action upon which Plaintiff can proceed. Rather, it is a ‘blanket assertion of entitlement to relief,’ which fails to state a claim. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007).
Molthan, v. Vanderbilt University, supra.
The judge went on to conclude the opinion with these comments:
For the reasons set forth above, the Court finds that Plaintiff has stated a nonfrivolous claim for false arrest pursuant to the Fourth Amendment and § 1983, and process shall issue on those claims. The remainder of Plaintiff's claims will be dismissed for failure to state a claim.

An appropriate Order will enter.

Molthan, v. Vanderbilt University, supra.

Wednesday, September 27, 2017

Child Sex Trafficking and Bypassing Security on a Tablet Computer

This post examines a recent opinion from the U.S. Court of Appeals for the 11th Circuit:  U.S. v. Blake, 868 F.3d 960 (2017). The court begins the opinion by explaining that
[a]fter a nine-day trial, a jury found Dontavious Blake and Tara Jo Moore guilty of child sex trafficking for managing a prostitution ring involving at least two girls under the age of eighteen. Blake and Moore challenge numerous rulings the district court made before and during trial, and at sentencing.
U.S. v. Blake, supra.
The court goes on to explain why, and how, the prosecution arose:
Blake and Moore had a system for running their prostitution ring. One of them would post ads for prostitution services on the classifieds website Backpage. Moore would then take phone calls from potential customers who were responding to the ads. And Blake would give the prostitutes rides to their appointments and provide muscle. The money was split 50/50 between the working prostitute on the one hand and Blake and Moore on the other.

Through a variety of leads, the FBI discovered Blake and Moore's prostitution ring. It learned that the Backpage ads had been posted using an email address (hereafter the “S.B. email address”), which the FBI determined belonged to Moore. And it found out that at least two girls, known as T.H. and E.P., had been under the age of eighteen when they engaged in prostitution for Blake and Moore.

In the wake of those discoveries, the FBI arrested Blake and Moore. It continued the investigation, executing four post-arrest search warrants relevant to this appeal. First, it executed a warrant to seize and search electronics in Blake and Moore's townhouse, including an `Apple iPad tablet [ ].’ Once in possession of that iPad tablet, however, the FBI found itself unable to access any of the device's data due to its security features. So the FBI requested and received a district court order, issued under the All Writs Act, 28 U.S.C. § 1651(a), requiring the iPad's manufacturer, Apple Inc., to assist the FBI in bypassing the iPad's passcode lock and other security measures. With Apple's help, the FBI was able to successfully unlock the device and download its data.
U.S. v. Blake, supra.
The opinion goes on to explain that the
second relevant search warrant the FBI executed directed Microsoft, which owns Hotmail, to turn over emails from two of Blake and Moore's email accounts, including the S.B. email account. The Microsoft warrant did not seek all emails in those two email accounts; instead, it was limited to certain categories of emails in them that were linked to the sex trafficking charges against Blake and Moore. For example, the warrant required Microsoft to turn over all `[e]mails, correspondence, and contact information for’ and all `[e]mails and correspondence from online adult services websites’ that were contained within the two email accounts.

Finally, the FBI also applied for and received two almost identical search warrants for Moore's Facebook account. Because that account was associated with the S.B. email address and Moore's phone number, the FBI knew it belonged to her. At the time it executed the Facebook warrants, the FBI had extensive evidence linking Moore to the prostitution ring, including statements by T.H. inculpating her. And Moore's Facebook account was suggestive of criminal conduct: the publicly viewable version of the account listed Moore's occupation as `Boss Lady’ at `Tricks R [U]s.’

The two warrants required Facebook to `disclose’ to the government virtually every type of data that could be located in a Facebook account, including every private instant message Moore had ever sent or received, every IP address she had ever logged in from, every photograph she had ever uploaded or been `tagged’ in, every private or public group she had ever been a member of, every search on the website she had ever conducted, and every purchase she had ever made through `Facebook Marketplace,’ as well as her entire contact list. The disclosures were not limited to data from the period of time during which Moore managed the prostitution ring; one warrant asked for all data `from the period of the creation of the account’ and the other did not specify what period of time was requested. The warrants did state that the only information that would be `seized,’ after all that data had been `disclosed’ to the FBI, was data that “constitute[d] fruits, evidence and instrumentalities” of a specified crime.
U.S. v. Blake, supra.
The court ended its prefatory comments on the case by explaining that
[a]fter the execution of those four warrants, a third superseding indictment charged Blake and Moore with six violations of 18 U.S.C. § 1591: substantive child sex trafficking of T.H. (Count 1); substantive child sex trafficking of E.P. (Count 2); conspiracy to sex traffic children—T.H. and E.P. (Count 3); two substantive counts of sex trafficking adults by coercion (Counts 4 and 5); and one count of conspiracy to sex traffic by coercion (Count 6).

Blake and Moore filed several pre-trial motions relevant to this appeal. Moore moved to sever Counts 1 through 3, which involved sex trafficking of children, from Counts 4 through 6, which involved sex trafficking of adults by coercion. Blake and Moore moved to suppress evidence obtained from the iPad. And they moved to suppress all the evidence gathered as a result of the search warrants served on Microsoft and Facebook. The district court denied all of those motions.
U.S. v. Blake, supra.
Next, the court outlines what occurred during the trial and the later sentencing.  It began by explaining that
[a]t trial T.H. testified about her time prostituting for Blake and Moore, starting when she was sixteen years old. To explain why she turned to prostitution, T.H. described her difficult upbringing. She explained that her great uncle had sexually abused her when she was between the ages of five and eight. During that same period, her parents separated, her father left her life, and her mother fell into a deep depression, leaving T.H.'s older sister to raise her. That older sister was a drug addict who physically abused her.

E.P. testified as well. She stated that she called Blake after she found his business card and started prostituting for him soon thereafter. She was sixteen when she started—young enough that Blake had to buy her cigarettes. On cross examination she admitted that she saw Moore only six times `at most.’ One of those times was when Moore spent about twenty minutes taking pictures of her for a Backpage ad.

The government also called Khrystyna Trejo, an adult prostitute who had spent time working alongside T.H. and E.P. She testified that, although E.P. had told her that she was eighteen, E.P.'s way of `approach[ing] certain things’ and her interest in children's television shows made her seem `younger than what . . .she said she was.’

In addition to testimony related solely to the child sex trafficking charges, the government called several witnesses in an attempt to prove its theory that Blake and Moore `coerced’ adult prostitutes by controlling their drug supply, evidence that went to Counts 4 through 6. Several adult prostitutes testified both to the general structure of the prostitution ring and the fact that almost all the money the prostitutes made was immediately spent buying drugs from Blake. The government also called an addiction expert who testified about the physical and neurological characteristics of drug dependency and withdrawal.
U.S. v. Blake, supra.
The opinion went on to explain that
Blake and Moore did not present any evidence of their own. The jury found them guilty of the remaining charges—two substantive counts of child sex trafficking and one count of conspiracy to sex traffic children, and the district court entered judgment of conviction on those counts.

After applying a number of enhancements, the district court sentenced Blake to 324 months imprisonment, followed by supervised release for a term of life. And it sentenced Moore to 180 months imprisonment followed by 240 months supervised release.
U.S. v. Blake, supra.
The opinion goes on to take the arguments the defendants made in their appeal, starting with the “bypass order.” U.S. v. Blake, supra.  The court explains that
Blake and Moore next contend that the order requiring Apple to assist in bypassing the iPad's security features—what we will call the `bypass order’—exceeded the authority granted by the All Writs Act. As a threshold matter, we must address whether Blake and Moore have standing to make this challenge. They satisfy the three requirements of constitutional standing because they `(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct ... and (3) that is likely to be redressed by a favorable judicial decision.’ Spokeo, Inc. v. Robins, 578 U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). Specifically, they were injured because the evidence gathered as a result of the bypass order was used to convict them. That injury is fairly traceable to the government's request for and the district court's issuance of the bypass order. And if a court ruled in their favor on the All Writs Act issue, and if a court further ruled that suppression was the proper remedy for the violation of the All Writs Act, Blake and Moore's injury would be redressed.

In addition to the three constitutional standing requirements, `the Supreme Court has held that prudential requirements pose additional limitations on standing.’ Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353 (11th Cir. 2003). One of those prudential limitations is the rule that a litigant `generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’ Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); see also Craig v. Boren, 429 U.S. 190, 193, 97 S.Ct. 451, 455, 50 L.Ed.2d 397 (1976) (explaining that the limitation on asserting third parties' rights is not `constitutionally mandated’ but instead `stem[s] from a salutary rule of self-restraint’) (quotation marks omitted). Here, Blake and Moore are attempting to invoke All Writs Act protections, such as its restriction that any burden imposed on a third party not be `unreasonable,’ that shield third parties like Apple, not criminal defendants. See United States v. N.Y. Tel. Co., 434 U.S. 159, 171, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977). In other words, they are attempting to assert Apple's legal rights, not their own.
U.S. v. Blake, supra.
The Court of Appeals then took up Blake’s and Moore’s argument that “the district court did not have the authority to issue the bypass order, and, as a result, it should have suppressed any evidence resulting from Apple's compliance with that order.” U.S. v. Blake, supra.  The court began its analysis of whether the trial court ‘s order “exceeded the court's authority under the All Writs Act.”  U.S. v. Blake, supra.
It began by explaining that the All Writs Act provides as follows:
`The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.’
28 U.S.C. § 1651(a). The Supreme Court has recognized five requirements that must be met before a court can compel under the All Writs Act the assistance of a third party in a criminal investigation: (1) the order must be necessary or appropriate to effectuate a previously issued order, (2) it must not be covered by another statute, (3) it must not be inconsistent with the intent of Congress, (4) the third party must not be too far removed from the underlying case, and (5) the burden imposed on the third party must not be unreasonable. See United States v. N.Y. Tel. Co., 434 U.S. 159, 172–78 (1977).
U.S. v. Blake, supra.
The Court of Appeals then began its analysis of all five requirements, in the order given above:
1. Necessary or Appropriate

The first requirement for use of the All Writs Act is that the use be necessary or appropriate to carry out an issued order. See id. at 172, 98 S.Ct. at 372. (`This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued....’). The bypass order in this case was necessary or appropriate because there was no other way for the FBI to execute the district court's order to search the contents of the iPad. See In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1346–49 (11th Cir. 2012) (holding that compelling a defendant to produce data protected by his password without providing constitutionally sufficient immunity violates the Fifth Amendment).

2. Not Otherwise Covered by Statute

The authority granted by the All Writs Act is broad but not boundless. The Act `is a residual source of authority’ that permits issuing writs only if they `are not otherwise covered by statute.’ Penn. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S.Ct. 355, 361, 88 L.Ed.2d 189 (1985). It is a gap filler. `Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.’ Id. And where Congress has proscribed a certain type of judicial action, the Act cannot overcome that proscription. See id.  The bypass order meets this requirement because no statute expressly permits or prohibits it.

3. Not Inconsistent with Intent of Congress

Even where, as here, no statute expressly permits or prohibits a particular judicial action, the court cannot always use the Act to fill the gap. Any order issued under the All Writs Act must still be `consistent with the intent of Congress.’ See United States v. New York Telephone Co., 434 U.S. 159 (1977). To determine if a judicial action is consistent with congressional intent, it is not enough to ask whether there is an on-point statute. We must also look at laws that are not directly on point but that speak to similar issues in order to determine whether the proposed judicial action is in line with congressional intent. See id. at 172, 176–78, 98 S.Ct. at 372, 374–75. If the legislative context bearing on the proposed action suggests that Congress did not intend for the court to have a given power, taking the action under the All Writs Act is inconsistent with congressional intent and cannot be the basis for the action. See id.

The Supreme Court's decision in New York Telephone illustrates this principle. In that case the district court had issued an order under the All Writs Act requiring a phone company to assist the FBI in installing pen registers on certain phone lines. Id. at 161–62, 98 S.Ct. at 367. The Supreme Court held the order was consistent with congressional intent for two reasons. Id. at 176–78, 98 S.Ct. at 374–75. First, the legislative history of Title III of the Omnibus Crime Control and Safe Streets Act, which governs the issuance of wiretaps, makes clear that Congress intended for courts to be able to order the installation of pen registers. See id. at 176–77, 98 S.Ct. at 374. Second, amendments to Title III had authorized courts to compel assistance in installing wiretaps, though they did not specifically mention pen registers. Id. at 176–77, 98 S.Ct. at 374–75. The Court reasoned that Congress likewise intended for courts to be able to compel assistance in installing pen registers when assistance was necessary. Id. at 177–78, 98 S.Ct. at 374–75. As a result, the Court held that the district court's order was within the authority granted by the All Writs Act. Id. at 177–78, 98 S.Ct. at 375.

Blake and Moore argue that the New York Telephone case is distinguishable because, unlike the pen register order involved in that case, the issuance of the bypass order in this case is contrary to congressional intent. They rely on the Communications Assistance for Law Enforcement Act (CALEA), 47 U.S.C. §§ 1001-1010, for that proposition. Section 1002, which is part of CALEA, requires `telecommunications carrier[s]” to provide certain forms of assistance to law enforcement, while exempting “information services’ companies—a category that includes Apple—from those same requirements. See id. §§ 1001(6), 1001(6), 1002(a), (b)(2). Blake and Moore assert that the `information services’ exemption in § 1002 shows that Congress intends for companies like Apple to be insulated from court-ordered law enforcement cooperation through bypass orders.

The problem is that the § 1002 requirements are all about design choices and ensuring that telephone networks “are capable of” delivering evidence to law enforcement. See id. § 1002(a). If this case were about a court order forcing Apple to initially design its devices so that law enforcement would be capable of accessing them in the future, § 1002's exemption of information services companies would be relevant. But that is not what this case is about. It is, instead, about a device that has already been designed, manufactured, sold, and used, and about how to access the information on that device. In light of the distinction between initial design and later access, § 1002 does not show that bypass orders are inconsistent with congressional intent.

4. Third Party Not Too Far Removed from Underlying Case

The fourth requirement for use of the All Writs Act, at least for compelling a non-party in a criminal case, is that the non-party not be `so far removed from the underlying controversy that its assistance could not be permissibly compelled.’ N.Y. Tel., 434 U.S. at 174, 98 S.Ct. at 373. Blake and Moore argue that `Apple's connection to the case [is] merely that it ... originally manufactured the iPad,’ so it is too far removed for its assistance to be compelled. That argument misstates the technology. Apple continued being connected to Blake and Moore's use of the iPad even after they bought it: the iPad ran on an operating system owned by Apple (Blake and Moore were only licensing it); Apple servers conveyed messages sent from the iPad; and Apple servers backed up the iPad's data. See Apple, Inc., Apple iOS Software License Agreement 1 (2016),; Greg Kumparak, Apple Explains Exactly How Secure iMessage Really Is, TechCrunch (Feb. 27, 2014), Apple's continued connection to the case means that it was not so far removed from the underlying controversy that its assistance could not be compelled.

5. Not Unreasonable Burden on Third Party
The final New York Telephone requirement is that any burden imposed on the compelled party must not be `unreasonable.’ N.Y. Tel., 434 U.S. at 172, 98 S.Ct. at 372. To comply with the bypass order, Apple simply had to have an employee plug the iPad into a special computer and then transfer the iPad's data to a thumb drive. That is not an unreasonable burden, especially in light of the fact that Apple did not object to the bypass order's requirements.
U.S. v. Blake, supra.
The Court of Appeals sums up the analysis above by explaining that the
bypass order was necessary or appropriate to carry out the search warrant the district court had issued, the assistance sought was not specifically addressed by another statute, the bypass order was not inconsistent with Congress' intent, Apple was not too far removed from the underlying controversy, and the burden the order imposed on it was not unreasonable. See id. at 172–74, 98 S.Ct. at 372–73. It follows that the bypass order did not exceed the district court's authority and the evidence gathered as a result of that order did not have to be suppressed.
U.S. v. Blake, supra.
The opinion goes on to examine some additional issues not related to the analyses aboe and ended the opinion by affirming Blake’s conviction and sentence. U.S. v. Blake, supra.