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United States v. Gregory

United States District Court, D. Nebraska

October 29, 2018




         This matter is before the Court on Defendant's Motion to Suppress (Filing No. 17). Defendant requests that the Court suppress all evidence obtained through the search of his residence on or about August 4, 2016.

         An evidentiary hearing was held regarding the motion on September 25, 2018, at which time evidence was received and oral argument was heard. No witnesses testified at the hearing. A transcript has been filed and this matter is now ripe for disposition. For the reasons set forth below, the undersigned will recommend that the motion be denied.


         On May 10, 2016, the National Center for Missing and Exploited Children (“NCMEC”) received a CyberTip report through their CyberTipline. (Filing No. 19-1; Ex. 101.) The automated tip originated from Google, Inc. (“Google”) and alleged that a user had uploaded an image of child pornography to Google's photo sharing service, Google Photos. (Filing No. 19-1; Ex. 101.) The image had been reviewed by Google's hash filtration system, as well as by manual human review by a Google employee. (Filing No. 24-1; Ex. 1.) The Google Terms of Service advises users that Google may review content to determine whether it is illegal or violates Google's policies. (Filing No. 24-2; Ex. 1.) The email address associated with the upload was and the IP address was reported as (Filing No. 19-1; Ex. 101.)

         On or about June 27, 2016, Investigator Dishaw (“Dishaw”) received the CyberTip report. (Filing No. 19-1; Ex. 101.) Dishaw thereafter submitted a subpoena to Cox Communications (“Cox”), the service provider associated with the IP address. (Filing No. 19-2; Ex. 102.) On July 16, 2016, Cox responded to the subpoena, stating that the IP address belonged to Defendant. Cox also provided Defendant's address. (Filing No. 19-3; Ex 103.)

         On August 3, 2016, Dishaw submitted an affidavit for a search warrant for Defendant's residence based on the information received through the CyberTip. (Filing No. 19-4; Ex. 104.) The warrant was issued, and on August 4, 2016, members of the Douglas County Sheriff's Office and the Federal Bureau of Investigation (“FBI”) Child Exploitation Taskforce (“CEFT”) executed the warrant. (Filing No. 19-5; Ex. 105.) The search resulted in the seizure of two desktop computers, four laptop computers, two tablets, two computer storage components, and a mobile phone. (Filing No. 19-5; Ex. 105.) The search of Defendant's electronic devices revealed 25, 808 graphic files and 174 video files of child pornography. (Filing No. 24.)


         Defendant argues that the search of his residence violated his Fourth and Fourteenth Amendment rights because law enforcement obtained his residential address by way of an administrative subpoena to Cox, rather than through a warrant. The Eighth Circuit has held that individuals do not have a reasonable expectation of privacy in subscriber information, such as addresses, individuals give to their internet service providers. United States v. Wheelock, 772 F.3d 825 (8th Cir. 2014). See also United States v. Perrine, 518 F.3d 1196-1204-05 (10th Cir. 2008) (“Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation”). “It is well-settled that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.” United States v. McIntyre, 646 F.3d 1107, 111 (8th Cir. 2011). Defendant contends, however, that the United States Supreme Court's recent decision in Carpenter v. United States, 138 S.Ct. 2206 (2018) mandates that law enforcement must obtain a warrant before obtaining such information. Defendant argues that a warrant is necessary because the information provided the location of Defendant through his address, and that individuals have an expectation of privacy in their own residences. (TR. 17-18.) Defendant maintains that a permanent residence location is much more private than someone's individual movements on public properties, roads, highways or sidewalks. (TR. 18.)

         In Carpenter, the Supreme Court held that the government's collection of cell-site location information, which allows law enforcement to chronical a person's past movements over an extended period of time, constituted a search under the Fourth Amendment. Id. at 2216. The Court stated that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell service location information]” and, thus, law enforcement must obtain a warrant before getting such information. Id. at 2217.

         The undersigned concludes that Defendant's reliance on Carpenter is misplaced.[1] The Carpenter decision focused on the comprehensive and detailed information provided by wireless carrier cell-site records as to an individual's location history. It did not address whether an internet service provider, such as Cox, could supply a subscriber's address in response to an administrative subpoena or whether an individual maintains an expectation of privacy when using the internet from his or her own residence. In Carpenter, the Supreme Court made clear that its ruling was narrow and did not “address other business records that might incidentally reveal location information.” Id. at 2220. Here, the only information Cox provided in response to the subpoena was Defendant's subscriber information, which included his name, address and telephone numbers. The response also included his payment history and the types of services he has with Cox. A residential address, particularly one that has previously been provided to a third-party, does not reveal information about an individual's habits or movements. Thus, the undersigned finds that Defendant's constitutional rights were not violated by law enforcement's use of an administrative subpoena to obtain his address.

         Defendant further argues that his rights were violated because the information in the CyberTip received from Google was reviewed without a search warrant. (TR. 18-20.) This argument is unpersuasive. It is well-established that “[t]he Constitution does not apply to searches, reasonable or otherwise, by private individuals, so long as the private party is not acting as an agent of the Government or with the participation or knowledge of any government official.” United States v. Miller, 152 F.3d 813, 815 (8th Cir. 1998) (quotation omitted). To constitute a Fourth Amendment search, “a governmental intrusion must infringe on a legitimate expectation of privacy.” Id. “Because a private search frustrates such an expectation, an ensuing police intrusion that stays within the limits of the private search is not a search for Fourth Amendment purposes.” Id. (quotation omitted). Therefore, “in a private search case, the legality of later governmental intrusions must be tested by the degree to which they exceeded the scope of the private search.” Id.

         Defendant seemingly recognizes that when the government conducts a search by repeating an investigation conducted by a private party, that search is excluded from the protections of the Fourth Amendment. (Filing No. 18 at CM/ECF pp. 9-10.) However, Defendant argues that the protections of the “private search” doctrine do not apply because the NCMEC acted as a government entity when it reviewed the information supplied by Google. Although the Tenth Circuit Court of Appeals has ruled that the NCMEC is a government entity, this precedent is not binding upon this Court. See United States v. Ackerman, 831 F.3d 1292, 1306-07 (10th Cir. 2016). Moreover, NCMEC's status (or non-status) as a governmental actor is not dispositive here as the NCMEC did not exceed the scope of the private search previously performed by Google.[2]

         It is undisputed that Google reviewed the file before the CyberTip was submitted to the NCMEC. It did so through its hash filtration system, as well as by manual human review. (Ex. 1) After Google conducted its private search, any later search by NCMEC, NSP, or the Douglas County Sheriff's Office, which did not exceed the scope of the private search, does not implicate the Fourth Amendment. The evidence shows that no subsequent warrantless governmental search exceeded the scope of Google's private search. The file at issue consisted of a single upload without any other content. This uploaded file, which was the basis for the CyberTip, was the only ...

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