Commonwealth v. Molina, 476 Mass. 388

Background

In March–April 2012, state troopers using a law-enforcement version of the Ares peer‑to‑peer program identified an IP address allegedly sharing child‑pornography files; an investigator downloaded two videos that he concluded depicted child pornography.
A prosecutor issued an administrative subpoena under G. L. c. 271, § 17B to Verizon, which identified the subscriber and address associated with the IP address; police surveillance corroborated the address.
A search warrant for the apartment was obtained and executed; officers found Ares running on a laptop in a bedroom later identified as Molina’s, photographed active uploads/downloads, and seized multiple electronic devices (laptop, desktop, external drive, etc.).
Molina admitted using Ares, downloading and sharing child‑pornography files, and owned an external drive; forensic analysis of seized devices recovered over 100 suspected child‑pornography files, including files matching those previously downloaded by investigators.
Molina was indicted on counts under G. L. c. 272, §§ 29B (dissemination; possession with intent to disseminate) and 29C (possession). He moved to suppress; the motion was denied. He was convicted after a bench trial; Commonwealth appealed the denial of restitution.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity / overbreadth of search warrant (place)	Warrant properly tied to IP address and physical location; surveillance corroborated ISP data.	Warrant was overbroad because apartment was multi‑occupant and police lacked particularized nexus to search entire unit.	Warrant was sufficiently particularized; nexus between IP/subscriber and apartment supported search of the whole unit.
Validity of § 17B administrative subpoena	§ 17B ("relevant and material" standard) is constitutional for limited subscriber records and consistent with SCA.	Subpoena required probable cause; § 17B standard is constitutionally insufficient.	Rejected defendant's probable‑cause requirement; § 17B’s reasonable‑grounds/relevance standard satisfied art. 14 for the limited records here.
Statutory element: whether lascivious intent is required for § 29B(b) possession with intent to disseminate	Commonwealth: lascivious intent is required for dissemination but not for possession with intent to disseminate under § 29B(b).	Molina: lascivious intent is an element of all § 29B offenses, including possession with intent to disseminate.	Court holds lascivious intent is required for all § 29B offenses, including possession with intent to disseminate under § 29B(b).
Sufficiency of evidence for lascivious intent / dissemination	Commonwealth: evidence (Ares showing simultaneous uploads/downloads, shared folder, Molina’s admissions) established dissemination, possession with intent, and lascivious intent.	Molina: lack of affirmative transmission and mere failure to change default folder insufficient to prove dissemination or lascivious intent.	Evidence sufficed: Ares screen showing active sharing plus admissions supported findings of dissemination, possession with intent to disseminate, and lascivious intent beyond a reasonable doubt.

Key Cases Cited

Commonwealth v. Kaupp, 453 Mass. 102 (discussing probable cause and commonsense reading of affidavits)
Commonwealth v. McDermott, 448 Mass. 750 (nexus between place and digital evidence; scope of digital searches)
Coolidge v. New Hampshire, 403 U.S. 443 (particularity requirement; prohibition on exploratory rummaging)
United States v. Chiaradio, 684 F.3d 265 (file‑sharing: making files available and their download by others constitutes distribution)
Commonwealth v. Denehy, 466 Mass. 723 (restitution: Commonwealth’s burden to prove causal connection and amount)
United States v. McLellan, 792 F.3d 200 (use of law‑enforcement P2P tools and IP address investigation)
Commonwealth v. Dingle, 73 Mass. App. Ct. 274 (statutory interpretation: §29B subsections as alternative means of same offense)
Commonwealth v. Oakes, 401 Mass. 602 (First Amendment overbreadth concerns prompting legislative amendment to child‑pornography statutes)