51 Misc. 3d 1035
N.Y. Sup. Ct.2016Background
- In 2013 Google detected 14 images of child sexual abuse material in a Picasa account, manually confirmed, and reported them to NCMEC.
- NCMEC forwarded the report to NYPD; subpoenas to Google and carriers tied the account/phone to defendant at 47 McKeever Place.
- In 2014 defendant was separately arrested and indicted for sexual offenses involving the same child victim; detectives later linked the Picasa images to that victim.
- Detective Queiroga obtained a warrant (Sept. 17, 2014) to search the McKeever Place residence and devices; execution recovered devices yielding 47 additional images; defendant was later indicted for possession counts based on those images.
- Defendant moved to controvert the search warrant, arguing: (1) inadequate informant reliability/basis (Aguilar-Spinelli), (2) Google/NCMEC acted as government agents (Fourth Amendment), and (3) information was stale. The court denied the motion in full.
Issues
| Issue | People’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| Informant reliability / probable cause standard | Aguilar-Spinelli inapplicable; probable cause established without relying on Google | Google functioned as a confidential informant; issuing judge needed source reliability and basis of knowledge | Court declined to treat Google as a confidential informant; probable cause sufficient and warrant upheld |
| Private actor vs. government action (Google/NCMEC) | Google and NCMEC acted as private actors enforcing private interests and statutory reporting; no government direction/acquiescence | Google/NCMEC acted for law enforcement (agent); their review/search was government action violating Fourth Amendment | Court found no government action; Google/NCMEC did not act as agents and their conduct did not violate the Fourth Amendment |
| Staleness of the information | Digital images are durable; probable cause may persist despite time lapse | Report from ~1 year earlier was too stale to support a search | Court held evidence likely persisted in electronic form; report not too stale; warrant valid |
| Standing / consent via Terms of Service | Google’s ToS do not waive Fourth Amendment rights; ToS language vague and did not plainly consent to law enforcement searches | People argued ToS waived expectation of privacy | Court found defendant retained a legitimate privacy expectation and thus had standing to challenge the warrant |
Key Cases Cited
- Aguilar v. Texas, 378 U.S. 108 (established Aguilar-Spinelli test issues for informant reliability)
- Spinelli v. United States, 393 U.S. 410 (paired with Aguilar on informant reliability/basis of knowledge)
- Illinois v. Gates, 462 U.S. 213 (adoption of totality-of-the-circumstances approach to probable cause)
- People v. Burton, 6 N.Y.3d 584 (standing—expectation of privacy analysis)
- United States v. DiTomasso, 56 F. Supp. 3d 584 (federal treatment of service-provider-originated reports in child-pornography investigations)