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United States v. Ringland

United States District Court, D. Nebraska

January 2, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK RINGLAND, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp, Senior United States District Judge

         This matter is before the Court on the Findings and Recommendation (F&R), ECF No. 74, issued by Magistrate Judge Michael D. Nelson, recommending that the Motion to Suppress, ECF No. 47, and Motion to Suppress and Application for Franks Hearing, ECF No. 49, filed by the Defendant, Mark Ringland, be denied. Ringland filed an Objection to the Findings and Recommendation and a brief in support, ECF No. 75, as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government did not respond to the Objection. For the reasons set forth below, the F&R will be adopted and the Motion to Suppress will be denied.

         BACKGROUND

         Defendant is charged with receipt of child pornography and possession of child pornography. Indictment, ECF No. 20. Ringland does not object to the Magistrate Judge's findings of fact included in the F&R, but objects to the Magistrate Judge's failure to include each and every fact contained in Ringland's Supplemental Brief, ECF No. 70 at 2-24. The Court has reviewed the record and each of the facts listed in Ringland's briefs, and concludes that the Magistrate Judge did not err in failing to restate every fact listed in Ringland's briefs. Several of Ringland's asserted facts are descriptions of the law, legal argument, or legal conclusions. Each of the facts stated by the Magistrate Judge is supported by the record. To the extent certain facts were omitted, the F&R demonstrates that the Magistrate Judge considered all the evidence and did not omit any material facts.

         The Court adopts the Magistrate Judge's factual findings in their entirety and provides the following by way of summary.

         Investigator C.J. Alberico of the Nebraska State Patrol investigated Ringland's conduct, leading to the charges filed in this case. TR.[1] 55; D.E.[2] 163. According to Alberico, Google, Inc. (Google) first provided information to the National Center for Missing and Exploited Children (NCMEC) that a user of Google's services “had uploaded over seven hundred (700) files suspected of depicting sexually explicit conduct involving a minor.” D.E. 109 at 7. Google identified the user by email address, mringland69@gmail.com, with associated telephone number 402-***-0642. Several IP addresses were associated with the uploaded files, which NCMEC traced to Sprint PCS in Omaha, Nebraska. Based on this information, on April 17, 2017, NCMEC created seven CyberTipline reports: #19083866, #19153972, #19938982, #19986242, #20035870, #20260729, and #20293287. D.E. 163 at 1.

         Deputy Mark Dishaw, of the Douglas County, Nebraska, Sheriff's Office, testified that an electronic service provider (“ESP”), such as Google, has proprietary methods to filter and identify known child pornography images based on hash values. TR. 21-22, 24-25, 51-53. The ESP then views the file images and reports potential violations to NCMEC which generates CyberTipline reports to send to law enforcement. TR. 14-16. Law enforcement then reviews the files identified by the ESP.

         On June 23, 2017, Alberico received CyberTipline Report #20437297, which Google previously submitted to NCMEC. On June 27, 2017, Alberico prepared a Douglas County search warrant affidavit, search warrant, and non-disclosure order for the email account mringland69@gmail.com, associated with telephone number 402-***-0642. D.E. 163 at 1-2; D.E. 109-110. Alberico stated in her affidavit supporting the application that Google “reviewed five hundred and two (502) files from the CyberTips submitted” and that she “only viewed files that were reviewed by Google . . . to confirm they depicted child pornography.” D.E. 109 at 7. Alberico obtained a warrant to search the account.

         Alberico observed that email address mringland69@gmail.com had sent child erotica photographs and images of child pornography to the email address mringland65@gmail.com. D.E. 163 at 2. On July 19, 2017, Alberico received CyberTipline reports #21681475 and #22346425. These reports listed the email address markringland65@gmail.com, with associated telephone 402-***-0902, and a secondary email address, mringland69@gmail.com. NCMEC traced several of the IP addresses associated with the uploaded files to Sprint PCS in the Omaha area, and Google provided the name “Mark Ringland” associated with the two email addresses. D.E. 163 at 2. Pursuant to a subpoena served by Alberico on July 20, 2017, Sprint PCS identified the subscriber of telephone number 402-***-0902 as Mark Ringland, residing at 1904 Pleasantview Ln, Bellevue, Nebraska 68005.

         On August 7, 2017, Alberico received nine more CyberTipline reports: #22968026, #22968382, #22968534, #23001904, #23002061, #2302151, #23002255, #23043174, and #23043630, all of which were associated with the email address markringland65@gmail.com. On the same date, Alberico prepared a Douglas County search warrant affidavit, search warrant, and non-disclosure order for the email accounts mringland65@gmail.com and markringland65@gmail.com, associated with telephone number 402-***-0902. D.E. 122-123.

         On August 14, 2017, Alberico received five additional CyberTipline reports, #23245909, #23274478, #23249764, #23249764 and #23068622, and on August 25, 2017, six more, #23411893, #23488795, #23512952, #23545730, #23588762, and #233890937. All the reports were associated with email addresses markringland65@gmail.com and mringland69@gmail.com, and the telephone number 402-***-0902. D.E. 163 at 4.

         On August 18, 2017, Alberico received information from Google pursuant to the previous search warrant. Alberico reviewed files from Google and concluded that several of the files contained images and/or videos of suspected child pornography and bestiality. D.E. 124 at 10. Based on that information, Alberico applied for a United States District Court search and seizure warrant affidavit, search warrant, and non-disclosure order for a cellular ping order for telephone number 402-***-0902, which was presented to and signed by a United States Magistrate Judge. D.E. 124-125; D.E. 163 at 4.

         Alberico located Mark Ringland in the Nebraska Criminal Justice System (NCJIS), which indicated that a black Ford Windstar SE sport van with Nebraska license plate number UZP192 was registered to Ringland in June 2017, and that as of August 2017, the vehicle's registration address was 16406 Taylor Street, Omaha, NE 68116. Nebraska Department of Labor records indicated that Ringland was employed by Merrick Machine Company, located in Alda, Nebraska, and by the temporary agency Essential Personnel Inc., based out of Grand Island Nebraska, with hub offices in Kearney, Nebraska and Denver, Colorado. D.E.163 at 3.

         On September 1, 2017, Alberico obtained a United States District Court search warrant for Ringland's person and cellular telephone, phone number 402-***-0902, D.E. 126-127, and a criminal complaint and arrest warrant. On the same date, law enforcement executed a search warrant at 16406 Taylor Street in Omaha, and arrested Ringland pursuant to the warrant. Ringland was read his Miranda rights, which he waived, and consented to an interview. D.E. 163 at 4. Alberico indicated in her report that on September 5, 2017, Ringland made spontaneous statements to the United States Marshals transporting him for his initial hearing. D.E. 163 at 4-5.

         Ringland seeks to suppress all evidence seized in connection with the searches of his email accounts, and any incriminatory statements made after his arrest and during transportation to his initial appearance. Ringland argues that Google acted as a government agent when it searched his emails without a warrant and forwarded those contents to NCMEC; that NCMEC expanded upon Google's warrantless searches; and that the warrants obtained by Alberico were supported in substantial part by such warrantless searches. Ringland also seeks a hearing under Franks v. Delaware, 438 U.S. 154 (1978), arguing that the applications supporting the warrants in this case omitted information material to the probable cause determination. The Magistrate Judge recommends that both motions be denied. Ringland objects to the Magistrate Judge's conclusions. Although Ringland asserts twelve different objections, many of them overlap and each is addressed below.

         STANDARD OF REVIEW

         Under 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a), the Court shall make a de novo review of the portions of the Magistrate's Findings and Recommendation to which objections have been made. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings and recommendations. The Court may ...


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