United States District Court, D. Nebraska
MEMORANDUM & ORDER
F. Rossiter, Jr. United States District Judge.
matter is before the Court on the Findings and Recommendation
(Filing No. 30) of the magistrate judge 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
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.
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 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.
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
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. 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.
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
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).
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
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.
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.
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 ...