United States v. Bret Dunning
857 F.3d 342
| 6th Cir. | 2017Background
- Bret Dunning was investigated after a Kentucky detective used Child Protection System (CPS)/Nordic Mule software to identify an IP address allegedly sharing child pornography on public peer‑to‑peer networks; a warrant was obtained and his home searched.
- Police seized multiple electronic devices that contained over 22,000 images/videos of child sexual exploitation.
- Dunning moved to compel discovery (including CPS source code) and to suppress evidence, arguing the warrant lacked probable cause because it relied on software of uncertain reliability; the district court denied the motions and refused an evidentiary hearing.
- Dunning entered a conditional plea to knowingly receiving child pornography (18 U.S.C. § 2252(a)(2)), preserving appellate rights; he was sentenced to 165 months (within the Guidelines range).
- On appeal he challenged: (1) denial of suppression/evidentiary hearing re: software reliability, (2) statutory vagueness/arbitrary enforcement between “receipt” and “possession,” and (3) procedural and substantive reasonableness of sentence (including a distribution enhancement and alleged overreliance on the Butner study).
Issues
| Issue | Plaintiff's Argument (Dunning) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Probable cause / suppression based on CPS software | Warrant affidavit relied on automated software of uncertain reliability; without source code affidavit statements were conclusory and required an evidentiary hearing | Detective had training and prior use of CPS; software merely recorded public P2P activity; omissions about source code were immaterial; no showing of deliberate falsehood | Affirmed: totality of circumstances supported probable cause; no preliminary showing of deliberate falsehood or material omission; no evidentiary hearing required |
| Ability to challenge software reliability akin to challenge to drug‑dog reliability (Florida v. Harris) | Should be allowed to test reliability of CPS like a drug‑dog to contest officer testimony | CPS only records public P2P data and automates queries law enforcement could perform manually; analogy to dog sniff is inapt | Affirmed: CPS differs from dog sniff; software logs public activity and is reasonably reliable for probable cause purposes |
| Vagueness / arbitrary enforcement: difference between "receipt" and "possession" under § 2252 | "Receipt" and "possession" are essentially synonymous for non‑producers; treating receipt more harshly is arbitrary and vague, violating due process | Statute gives fair notice and minimal guidelines; receipt and possession are distinct (producer may possess without receiving); prosecutorial discretion and separate conduct can support both charges | Affirmed: statute not unconstitutionally vague as applied; distinction permissible and prosecutorial charging decisions are within broad discretion |
| Sentencing: distribution enhancement and substantive reasonableness | Two‑level distribution enhancement improper because no evidence Dunning knew P2P software shared files; court overrelied on Butner study denying individualized sentencing | Use of file‑sharing software permits inference of distribution; Dunning presented no concrete evidence of ignorance; court considered Butner study among many factors; sentence within Guideline range | Affirmed: enhancement properly applied (inference of knowledge permitted absent evidence of ignorance); within‑range sentence presumed reasonable and individualized enough |
Key Cases Cited
- Dalia v. United States, 441 U.S. 238 (1979) (Fourth Amendment warrant/probable‑cause principles)
- Illinois v. Gates, 462 U.S. 213 (1983) (totality‑of‑circumstances test for probable cause)
- Florida v. Harris, 568 U.S. 237 (2013) (standards for testing reliability of drug‑sniffing dogs)
- Kolender v. Lawson, 461 U.S. 352 (1983) (void‑for‑vagueness doctrine and need for minimal guidelines to govern enforcement)
- Posters ’N’ Things, Ltd. v. United States, 511 U.S. 513 (1994) (vagueness requires definite notice and limits on arbitrary enforcement)
- Wayte v. United States, 470 U.S. 598 (1985) (prosecutorial discretion is broad but subject to constitutional limits)
- Gall v. United States, 552 U.S. 38 (2007) (abuse‑of‑discretion review of sentencing; presumption of reasonableness for within‑Guidelines sentences)
- United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (presumption of substantive reasonableness for within‑range sentences)