Former Whispering Palms School principal Thomas Weindl has asserted that a search using an Internet surveillance software secretly installed on his computer by an FBI agent was without a warrant and therefore all evidence obtained from this warrantless search must be barred at trial.
Weindl, through counsel David G. Banes, said the absence of a search warrant renders the U.S. government's actions in this case unreasonable.
The laptop was actually a school-issued unit to the son of an FBI agent. The FBI agent installed a computer surveillance program called “E-Blaster” on the laptop to monitor his son's Internet activity. At that time, the son was a junior student at Whispering Palms School where Weindl was principal.
On June 8, 2012, the FBI agent returned the laptop to Weindl as he and his family were then relocating to the U.S. mainland. The E-Blaster program, however, remained on the laptop. When the agent later received E-Blaster activity reports showing a number of websites and searches pertaining to child pornography, he investigated and allegedly learned that it was Weindl who made the searches.
Weindl was arrested on June 28, 2012, after almost three hours of questioning by two FBI special agents.
Weindl's lawyer, Banes, cited that the Fourth Amendment protects a person's right to be secure from an unreasonable search and seizure at the hands of the government.
He said Weindl had a legitimate expectation of privacy in the laptop at his office.
He said the computer was used exclusively by the defendant and securely stored in a desk drawer at the end of each day.
Banes added that neither Whispering Palms nor the Public School System had any policies regulating the computer used by Weindl.
“There were no rules restricting the use of the computer to school-related work or any warnings indicating the computer would be monitored in any way,” Banes said.
Therefore, he said, Weindl's expectation of privacy cannot be determined by any notion that he should have expected the U.S. government to monitor his personal use of the laptop inside his office.
Banes said the FBI's surreptitious monitoring of Weindl's Internet activity constitutes an unreasonable search as it intruded upon a legitimate expectation of privacy.
Banes said the issue of probable cause is moot in this case because a search warrant for the defendant's office computer was never sought by the FBI, let alone issued.
Banes said the E-Blaster reports and the defendant's statements to the FBI are products of an illegal search and must be excluded.
Banes said the special agent's decision to review the E-Blaster reports without bothering to apply for a search warrant violates the fundamental purpose of having a warrant requirement at all.
Banes said Weindl's statements to the FBI prior to his arrest should also be excluded based on the “fruit of the poisonous tree” doctrine to the extent any such statements are actually incriminating.
The lawyer said the FBI agents strongly suspected Weindl of downloading the pornographic images referenced in the E-Blaster report, yet did not advise him of his Miranda rights prior to questioning him.
In his declaration in support of the motion, the 57-year-old Weindl stated he did not feel he could refuse to answer the FBI's questions.
“I was never asked if I wanted to speak to an attorney. I was never told that I did not have to answer any questions. I was never told I could leave the office at any time and I did not feel I could do so under the circumstances,” Weindl said.
Weindl was indicted on two counts of receipt of child pornography and two counts of access with intent to view child pornography. He pleaded not guilty. His jury trial will be on Nov. 27, 2012.
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