Are employees of the Best Buy Geek Squad acting as FBI informants? That issue is at the center of United States v. Mark Albert Rittenmaier, (PACER account required), a child pornography prosecution out of the Central District of California.
In 2011 Dr. Mark Rettenmaier could not get his computer to boot up. He took it to the Geek Squad at a Mission Viejo Best Buy store. The Geek Squad informed Dr. Rettenmaier that his hard drive was faulty, and they would need to send it to their data recovery center in Brooks, Kentucky, if he wanted to keep the data on the hard drive. This is rather unremarkable occurrence that probably happens hundreds of times a day.
While a Geek Squad technician was working on the hard drive, he “found” a picture he suspected was child pornography. He then informed his supervisor, who contacted the FBI. Eventually, law enforcement in California obtained a search warrant for Dr. Rettenmaier’s residence, where child pornography was found. He was subsequently indicted in the Central District of California.
Federal law requires Best Buy to alert law enforcement when they find child pornography, so on its face these events don’t appear newsworthy. Through his counsel James Riddet, Dr. Rettenmaier claims the Best Buy technician and his supervisor were working as paid informants for the FBI:
Riddet claims records show "FBI and Best Buy made sure that during the period from 2007 to the present, there was always at least one supervisor who was an active informant." He also said, "The FBI appears to be able to access data at [Best Buy's main repair facility in Brooks, Kentucky] whenever they want." Calling the relationship between the agency and the Geek Squad relevant to pretrial motions, [District Court Judge Cormac] Carney approved Riddet’s request to question agents under oath.
R. Scott Moxley, Best Buy Geek Squad Informant Use Has FBI on Defense in Child-Porn Case, Orange County Register, January 4, 2016. Judge Carney found that eight Geek Squad employees have worked as FBI informants at the Brooks facility.
If true, this could mean the warrantless Geek Squad search was conducted by a government agent, not a private party. As followers of our blog know, absent an exception, a warrant is required when an otherwise private party acts as a government agent when conducting a search.
Rettenmaier also claimed that the FBI had Best Buy conduct subsequent warrantless searches on the hard drive at the Brooks facility before it sought a search warrant, and the government committed a Franks violation by failing to include in the warrant affidavit the initial image was found in unallocated space. In the Ninth Circuit, this is insufficient to support a federal prosecution. See United States v. Flyer, 633 F.3d 911 (9th Cir. 2011). The Tenth Circuit has not yet ruled this issue.
This case was first publicized in the Orange County Register, and later picked up by legal and tech blogs, as well as national publications. Additional coverage from the OC Weekly is available here and here. Search and seizure aficionados should keep their eye on this case.
Thanks to David Freund.