Boston College Campus Police v. Calixte [1]

On March 30, 2009, Detective Kevin Christopher of the Boston College Police Department [2] applied for a search warrant to seize computers, computer equipment, and digital storage devices belonging to Riccardo Calixte, a Boston College [3] (BC) computer science major and employee of BC’s IT department.  Christopher asserted [4] that there was probable cause to believe that these items had been used in, or were evidence of, criminal activity, to wit obtaining computer services by fraud or misrepresentation [5] and unauthorized access to a computer system [6].  (Warrant Aff. ¶ 1, 4h.)  Probable cause was based upon allegations of one of Calixte’s ex-roommates, with whom he was having domestic issues at the time, that Calixte:

• Is considered a “master of the [computer science] trade” and has a “reputation as a ‘hacker’”;
• Often appears with “unknown laptops which [Calixte] says are given to him by Boston College for field testing or he is ‘fixing’ for other students”;
• “[U]ses two different operating systems to hide his illegal activities,” one of which was described as “a black screen with white font which he uses prompt commands on”;
• Has “hack[ed] into the B.C. grading system that is used by professors to change grades for students”;
• Has “‘fixed’ computers so that they cannot be scanned by any system for detection of illegal downloads and illegal internet use”;
• “‘Jail breaks’ cell phones”;
• Has “a cache of approximately 200+ illegally downloaded movies as well as music from the internet”; and
• Has “personally implicated himself in illegal activity to [his ex-roommate] on previous occasions.”

(Warrant Aff. ¶ 4b.)  The search warrant application also alleges that Calixte was the author of a mass email to the BC community that stated that his ex-roommate is gay, and included a link to a profile on adam4adam.com [7], a gay-oriented website, created in his ex-roommate’s name.  (Warrant Aff. ¶ 4d–4f.)

The search warrant was granted and Calixte’s iPods, cell phones, computers, external hard drives, and other digital equipment were seized.  In response, Calixte filed a motion [8] to quash the warrant and for the return of his property, claiming that the search was illegal due to lack of probable cause, based on the fact that none of his alleged conduct constituted criminal activity and that the witness was unreliable.  (Calixte Mem. 6–8, 10, 13–14.)  In their opposition memo [9], the police stated that Calixte's use of the BC computer system to send a mass email "outing" his ex-roommate and create a "fraudulent profile" on adam4adam.com constituted access for "unauthorized uses" in violation of Massachusetts law.  (Opp'n Mem. 4–6.)  On April 22, 2009, First Justice Dyanne J. Klein of the Newton District Court [10] denied Calixte’s motion, noting that the alleged unauthorized access to the BC grading system to change students’ grades constituted a crime, although the suspected “outing” of his ex-roommate via email over the BC list server did not.  (Trial Ct. Order [11] 1–2.)

On May 21, 2009, in response to Calixte’s appeal [12], Justice Margot Botsford of the Supreme Judicial Court of Massachusetts [13] overturned the Newton District Court’s decision and ordered that “all ongoing forensic analysis of the items seized from Calixte must cease . . . and all items must be returned forthwith.”  Justice Botsford ruled that the search warrant affidavit failed to establish probable cause, citing the “troublingly weak evidence of . . . [the ex-roommate’s] reliability” and an insufficient nexus between the items seized and evidence relating to the allegation of unauthorized access.  Finally, she noted that sending an email "outing" another student would not constitute a criminal offense, even if it violated a BC internet use policy.  (Sup. Jud. Ct. Order [14] 6, 9–10.)