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United States v. Gregory

United States District Court, D. Nebraska

December 7, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
PHILIP J. GREGORY, Defendant.

          MEMORANDUM & ORDER

          Robert F. Rossiter, Jr. United States District Judge.

         This matter is before the Court on the Findings and Recommendation (Filing No. 30) of the magistrate judge[1] recommending the Court deny defendant Philip J. Gregory's (“Gregory”) Motion to Suppress (Filing No. 17). Gregory objects (Filing No. 31) to the findings and recommendation. For the reasons stated below, Gregory's objections are overruled and the Motion to Suppress is denied.

         I. BACKGROUND

         The relevant facts of this case are not in dispute. On August 4, 2016, members of the Douglas County Sheriff's Office and Federal Bureau of Investigation Child Exploitation Taskforce executed a search warrant on Gregory's residence and seized numerous electronic devices. The search of Gregory's devices yielded 25, 808 graphic files and 174 video files of child pornography. On May 22, 2018, a federal grand jury indicted Gregory for allegedly transporting, receiving, and possessing child pornography, in violation of 18 U.S.C. § 2252.

         The trail of digital breadcrumbs leading to Gregory's residence began when the National Center for Missing and Exploited Children (“NCMEC”) received a CyberTip report (“tip”) from Google, Inc. (“Google”) on May 10, 2016 on its CyberTipline. Google sent the tip after a user uploaded an image of child pornography to its photo sharing service, Google™. The tip contained the image file and the email address and internet protocol (“IP”) address associated with the upload. Google reviewed and identified the image as child pornography through its hash filtration system[2] and manual human review. Google's Terms of Service advises users that Google may review content to determine whether it is illegal or violative of Google's polices.

         NCMEC sent the tip to law enforcement. Upon receiving the tip, Investigator Mark Dishaw (“Investigator Dishaw”), a Deputy Sheriff with the Douglas County Sheriff's Office, subpoenaed Cox Communications (“Cox”), the service provider associated with the IP address, to obtain the relevant subscriber information (Filing No. 19, Ex. 2). Cox responded that the IP address belonged to Gregory and provided Gregory's address. Based on the information from Cox and the tip, Investigator Dishaw applied for a search warrant of Gregory's residence, which was issued. Law enforcement conducted the search and found the child pornography files.

         Gregory moved to suppress the evidence derived from the search arguing his rights under the Fourth and Fourteenth Amendments to the United States Constitution were violated when law enforcement obtained his subscriber information and NCMEC reviewed the tip both without warrants.[3] After holding an evidentiary hearing, the magistrate judge concluded the search was proper and recommended this Court deny Gregory's motion. In light of Gregory's timely objection to the recommendation, this Court has conducted a thorough de novo review of his motion to suppress, the parties' briefs, the findings and recommendation, and the underlying evidence in this case. See 28 U.S.C. § 636(b)(1).

         II. DISCUSSION

         Gregory argues his rights under the Fourth and Fourteenth Amendments to the United States Constitution were violated. Gregory asserts two primary claims: (1) the search of his residence was unlawful under Carpenter v. United States, 585 U.S., 138 S.Ct. 2206 (2018), because law enforcement obtained his subscriber information, including his address, by subpoenaing Cox rather than by obtaining a warrant, and (2) NCMEC conducted an unlawful search when it opened Gregory's file contained in the tip. Neither argument is tenable.

         The Fourth Amendment prohibits unreasonable searches and seizures by the government. U.S. Const. amend. IV. “The touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy.” California v. Ciraolo, 476 U.S. 207, 211 (1986). Gregory bears the burden of showing his expectation is reasonable. United States v. Stults, 575 F.3d 834, 842 (8th Cir. 2009).

         A person does not have a “legitimate expectation of privacy in the information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44 (1979). “As a result, the Government is typically free to obtain such information from the [third party] without triggering Fourth Amendment protections.” Carpenter, 585 U.S., 138 S.Ct. at 2216. Consistent with this third-party doctrine, the Eighth Circuit has held the Fourth Amendment does not prohibit the government from acquiring subscriber information, such as names and IP addresses, from third-party service providers. United States v. Wheelock, 772 F.3d 825, 828-29 (8th Cir. 2014); accord 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.”).

         Gregory nonetheless alleges his Fourth Amendment rights were violated when Investigator Dishaw acquired his subscriber information from Cox. In short, Gregory asserts the Supreme Court's recent decision in Carpenter precludes the application of the third-party doctrine to IP address records. Not so.

         In Carpenter, the Supreme Court considered the government's acquisition of cell-site location information (“CSLI”) records which document a cell-phone's location whenever it makes or receives a call. 585 U.S. ___, 138 S.Ct. at 2214. Opining cell phones “are almost . . . ‘feature[s] of human anatomy, '” id. at ___, 138 S.Ct. at 2218 (quoting Riley v. California, 573 U.S. ___, 134 S.Ct. 2473, 2484 (2014)), the Supreme Court determined CSLI records allow comparable surveillance to that of “attaching[ing] . . . ankle monitor[s]” to cell-phone users. Id., 585 U.S. ___, 138 S.Ct. at 2218. Due to the “detailed, encyclopedic, and effortlessly compiled” nature of CSLI records' documentation of individuals' movements, the Court declined to extend the third-party doctrine to the collection of CSLI. Id. at ___, 138 S.Ct. at 2220.

         In Carpenter, the Supreme Court expressly stated its narrow holding did not reach “other business records that might incidentally reveal location information.” Id. at ___, 138 S.Ct. at 2220. This Court is not persuaded that Carpenter controls this case or allows this Court to ignore binding Eighth Circuit precedent. The subscriber information Cox provided included only Gregory's name and address, not the “whole of his physical movements” like what concerned the Supreme Court in Carpenter. Id. at ___, 138 S.Ct. at 2219. Accordingly, the Court declines Gregory's invitation to extend Carpenter to subscriber information which only “incidentally reveal[ed] [Gregory's] location information”-a leap the Supreme Court itself was not prepared ...


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