922 F.3d 1
1st Cir.2019Background
- Morel uploaded images to Imgur that were reported to NCMEC via an anonymous CyberTipline report; Imgur reviewed, reported the images to NCMEC, provided the uploader's IP address, and deleted the images.
- NCMEC forwarded the reports to local investigators; police subpoenaed Comcast subscriber records and associated the IP with David Morel at a Derry, NH address.
- Police had custody of Morel’s laptop (reported stolen and later recovered); a state magistrate issued a warrant based on Detective Richard’s affidavit describing six images and his training/experience; a forensic copy revealed ~200 child pornography files.
- Morel moved to suppress (1) images and statements as fruit of an alleged warrantless governmental search via Imgur/NCMEC and (2) evidence obtained under the state warrant for lack of probable cause; the district court denied suppression and Morel conditionally pleaded guilty, reserving appeal rights.
- The First Circuit affirmed: (a) no reasonable expectation of privacy in the IP address or the Imgur-hosted images under the third-party doctrine (post-Carpenter caselaw applied), and (b) the state warrant supplied probable cause that the images depicted minors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Expectation of privacy in IP address obtained from Imgur/Comcast | Carpenter changes third-party doctrine; Morel had a privacy interest in his IP data | IP addresses do not implicate Carpenter; user must affirmatively access sites and IPs lack continuous location surveillance | No reasonable expectation of privacy in IP address; third-party doctrine applies; affirmed |
| Expectation of privacy in images uploaded to Imgur (public vs private) | Images were private; Morel took steps to keep them private so Fourth Amendment protects them | Imgur’s service makes images effectively public (even “private” albums accessible by URL); users cannot ensure complete privacy | No reasonable expectation of privacy in Imgur images; third-party doctrine applies; affirmed |
| Probable cause that images depicted persons under 18 | Warrant affidavit lacked attached images and detailed description (best-practice not followed) | Affidavit described sexualized nudity and stated some girls appeared under 10 or under 13; officer’s training/experience supports his age assessments | Warrant affidavit provided probable cause as to age (under-10 determinations especially reliable); affirmed |
| Probable cause that images depicted real (not virtual) children | (Raised first on appeal) Images might depict virtual/created children, so no probable cause | Issue waived because not raised below; affidavit nonetheless supported belief images were of real children | Issue waived on appeal; Court did not reach the merits |
Key Cases Cited
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (narrow holding protecting historical cell-site location information from warrantless seizure)
- Smith v. Maryland, 442 U.S. 735 (1979) (third-party doctrine: no expectation of privacy in information voluntarily conveyed to third parties)
- Miller v. United States, 425 U.S. 435 (1976) (no Fourth Amendment protection for information voluntarily shared with banks)
- Katz v. United States, 389 U.S. 347 (1967) (Fourth Amendment protects people, not places; two-part expectation-of-privacy test)
- United States v. LaFortune, 520 F.3d 50 (1st Cir. 2008) (best practice: attach images or describe them sufficiently to permit independent magistrate review)
- United States v. Syphers, 426 F.3d 461 (1st Cir. 2005) (same best-practice guidance regarding images in warrant affidavits)
- United States v. Khounsavanh, 113 F.3d 279 (1st Cir. 1997) (totality-of-circumstances probable cause standard for warrants)
- United States v. Mancini, 8 F.3d 104 (1st Cir. 1993) (shared access to a document does not automatically negate a Fourth Amendment interest where access is limited and trusted)
- United States v. D'Andrea, 648 F.3d 1 (1st Cir. 2011) (standards of review for suppression rulings)