United States v. Douglas Suing
2013 U.S. App. LEXIS 7215
| 8th Cir. | 2013Background
- FBI identified a computer sharing child pornography via a peer-to-peer network by its IP address and obtained an ISP subpoena tying the IP to Suing at 11507 Decatur Plaza, Apt 4117.
- CCTF conducted surveillance at the Decatur Plaza address and learned Suing had moved; subsequent May 2010 subpoena identified a new address at 10923 Western Plaza, Apt 20, Omaha.
- From May 2010 to January 2011, surveillance at Western Plaza occurred with no observed activity; in January 2011, an Arizona traffic stop yielded Suing, who consented to a vehicle search after warnings by a deputy.
- A drug dog alerted to the vehicle; officers found an external hard drive in a bag and began a drug-related search, uncovering child pornography; a prosecutor advised and a second warrant was obtained to search for child pornography.
- In Omaha, a search warrant for Suing’s Western Plaza apartment produced additional child-pornography material; a second warrant targeted a Canon Digital Camera used to produce some material.
- Suing moved to suppress the Arizona and Omaha searches; district court denied; he pled guilty to one count of producing and manufacturing child pornography while preserving appeal rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of consent to search the vehicle | Suing limited consent to drugs; search exceeded scope by seeking child porn. | Consent to search ‘to include luggage, containers, and contents of all’ allowed anything illegal, including a search for child porn. | No Fourth Amendment violation; search was within scope or cured by prompt seek for a new warrant. |
| Arizona search tainting Omaha searches | Arizona search tainted the Omaha warrants via information obtained illegally. | Arizona search did not violate the Fourth Amendment; taint argument fails. | Arizona search did not violate the Fourth Amendment, so Omaha searches were not tainted. |
| Existence of a Fourth Amendment violation based on privacy in peer-to-peer sharing | Suing had a reasonable expectation of privacy in subscriber data and IP information. | No reasonable expectation of privacy in third-party subscriber data shared via P2P network. | Suing lacked a cognizable Fourth Amendment privacy expectation in the subscriber information. |
| Validity of state subpoenas under Nebraska law | Subpoenas signed by a Chief Deputy County Attorney were invalid. | Statute allows subpoenas by county attorneys; deputy designation is permissible; law was satisfied. | Subpoenas valid; no Fourth Amendment defect arising from their use. |
| Probable cause for the Omaha warrants | If Arizona search was unlawful, Omaha warrants lacked probable cause. | Probable cause supported by investigation and discoveries; independent of Arizona issue. | Omaha searches were based on probable cause; not tainted by Arizona findings. |
Key Cases Cited
- United States v. Hudspeth, 459 F.3d 922 (8th Cir. 2006) (consent scope and prompt warrant remedy when searching computer)
- United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc nuance on scope clarified)
- United States v. Carey, 172 F.3d 1268 (10th Cir. 1999) (continued search after finding child porn violated warrant scope)
- United States v. Stults, 575 F.3d 834 (8th Cir. 2009) (no reasonable expectation of privacy in subscriber information from third-party provider)
- United States v. Perrine, 518 F.3d 1196 (10th Cir. 2008) (privacy expectations in third-party data; related to P2P context)
- United States v. James, 534 F.3d 868 (8th Cir. 2008) (two-part test for legitimate expectation of privacy)
- United States v. Bell, 54 F.3d 502 (8th Cir. 1995) (probable cause standard for searches; focus on Fourth Amendment analysis)