Commonwealth v. GuastucciCommonwealth v. Guastucci
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
Obscenity, Child pornography. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Search and Seizure, Computer, Probable cause, Affidavit. Evidence, Information stored on computer. Practice, Criminal, Motion to suppress.
Indictments found and returned in the Superior Court Department on February 15, 2018.
A pretrial motion to suppress evidence was heard by John T. Lu, J., and a conditional plea of guilty was accepted by him.
The Supreme Judicial Court granted an application for direct appellate review.
Benjamin L. Falkner for the defendant.
Gabriel Pell, Assistant District Attorney, for the Commonwealth.
GAZIANO, J. On March 15, 2017, an unknown computer user uploaded an image of child pornography to an Internet-based communication service that is designed to share files and “chat” with others. After receiving a tip from the National Center for Missing and Exploited Children (NCMEC), police tracked the
At issue in this appeal is whether the information in the search warrant affidavit was too stale to establish probable cause to believe that evidence of child pornography would be found on computers or digital storage devices at the time of the search, seven months after the Internet activity with one specific image. A Superior Court judge denied the motion to suppress after finding that the seven-month period was “less than ideal, but . . . a tolerable amount of delay.” The defendant subsequently entered a conditional guilty plea to both charges, see Commonwealth v. Gomez, 480 Mass. 240, 252 (2018), and we allowed his petition for direct appellate review. Because we conclude that there was sufficient evidence for a magistrate to have found probable cause, we affirm.
1. Background. a. Investigation and warrant application.
On October 18, 2017, State police Trooper Christopher MacDonald applied for a warrant to search computers and digital storage devices located within a single-family house in Tyngsboro. In support of the warrant application, McDonald submitted a ten-page affidavit and an attached exhibit. The exhibit described, in general terms, the investigation of child pornography that has been distributed over the Internet and stored in a suspect‘s computer. The affidavit and exhibit then stated the following.
On March 16, 2017, electronic service provider Skype.com (Skype) filed a report with NCMEC of a suspected incident of possession or distribution of child pornography.2 Skype is a Web-based application that provides its customers with video
On May 5, 2017, pursuant to an administrative subpoena issued by the Massachusetts Attorney General‘s Office, the internet service provider (ISP) provided records for its subscriber at that IP address. The ISP identified the subscriber, as of March 15, 2017, as the defendant‘s spouse, with a service address in Tyngsboro. The Internet account, which had been created in August of 2007, listed three user names; none of these matched the Skype screen name “live: boullett_1” that had been used to upload the image.
On September 27, 2017, McDonald viewed the digital image uploaded to Skype and confirmed that it depicted child pornography. That day, he queried the registry of motor vehicles for vehicles and driver‘s licenses registered at the street address in Tyngsboro. He found three listed drivers: the defendant, his spouse, and their child. On October 11, 2017, MacDonald conducted surveillance of the single-family home and “was unable to locate any open unprotected wireless networks within the vicinity of the residence.”
In addition to the facts involving this investigation, MacDonald‘s affidavit included generalized information about possession of child pornography. He averred that “[t]hose who have possessed and/or disseminated child pornography have an interest or preference in the sexual activity of children” and are “likely to keep secreted, but readily at hand, sexually explicit visual images depicting children. . . . These depictions tend to be extremely important to such individuals and are likely to remain in the possession of or under control of such an individual for extensive time periods.”
He further averred that, in the event an individual with an interest in child pornography were to delete a file, it could be
The search warrant was issued, and police executed the warrant on October 19, 2017. The search yielded a laptop computer and a flash drive, both owned by the defendant, which contained images of child pornography.
b. Prior proceedings.
A grand jury returned indictments charging the defendant with two counts of possession of child pornography, in violation of
On November 13, 2018, with the Commonwealth‘s assent (and with the judge‘s acceptance), the defendant tendered a conditional guilty plea to both counts of possession of child pornography. He then filed a notice of appeal, and we allowed his motion for direct appellate review.
2. Discussion.
Under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, a search warrant may issue upon a showing of probable cause. Commonwealth v. Anthony, 451 Mass. 59, 68 (2008). “For probable cause to arise, the facts contained in an affidavit, plus the reasonable inferences that may be drawn from them, must allow the magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues” (quotations and citation omitted). Commonwealth v. Martinez, 476 Mass. 410, 415 (2017). See Commonwealth v. Long, 482 Mass. 804, 809 (2019) (probable cause means substantial basis to believe evidence of criminal
“Whether a search warrant is supported by probable cause is a question of law that we review de novo” (quotations and citation omitted). Commonwealth v. Vasquez, 482 Mass. 850, 866 (2019). Review of a probable cause determination is limited to the four corners of the warrant affidavit and any attachments thereto. Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). In determining whether probable cause exists, “we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men [and women], not legal technicians, act.” Commonwealth v. Hason, 387 Mass. 169, 174 (1982), quoting Brinegar v. United States, 338 U.S. 160, 175 (1949). Thus, we view consider the statements in the warrant affidavit in a “commonsense manner,” Commonwealth v. O‘Day, 440 Mass. 296, 299 n.4 (2003), and consider the warrant affidavit “as a whole, without overly parsing or severing it, or subjecting it to hypercritical analysis” (quotations and citation omitted). Perkins, supra.
In addition, we are mindful that the probable cause inquiry is “not a high bar” (citation omitted), District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018), and that probable cause “does not require definitive proof of criminal activity,” Anthony, 451 Mass. at 69. “And officers need not ‘rule out a suspect‘s innocent explanation for suspicious facts’ to obtain a warrant” (citation omitted). United States v. Chavez, 423 F. Supp. 3d 194, 205 (W.D.N.C. 2019).
The defendant does not dispute that the image viewed by police constituted child pornography or that it was uploaded from a computer at his house on the date alleged. Moreover, the defendant does not contest that the statements in the warrant affidavit would be sufficient to establish probable cause that the image was uploaded from his computer to the Skype service. Nor does he claim that someone else accessed his computer and uploaded the image. Thus, the primary issue we must address is whether the passage of seven months between the alleged upload and the application for a search warrant rendered the warrant so stale that it lacked probable cause.
Because of the highly fact-intensive nature of the inquiry, it is not possible to formulate a bright-line test for staleness. See Commonwealth v. Atchue, 393 Mass. 343, 349 (1984), quoting Sgro v. United States, 287 U.S. 206, 211 (1932) (timeliness of facts is “determined by the circumstances of each case“). See also Connolly, 454 Mass. at 814, citing Commonwealth v. Cruz, 430 Mass. 838, 843 (2000). We typically measure the timeliness of information supporting a search warrant by considering two factors: (1) the nature of the criminal activity under investigation; and (2) the nature of the item to be seized. Commonwealth v. Matias, 440 Mass. 787, 792-793 (2004); Cruz, supra.
As to the nature of the criminal activity under investigation, with crimes such as possession of narcotics, which are “readily consumed or distributed, . . . probable cause to search for them rapidly dwindles with the passage of time,” and an affidavit concerning a tip about a single drug transaction that took place several months earlier would not serve to establish probable cause (quotations and citation omitted). See Matias, 440 Mass. at 792-793. See also Commonwealth v. Reddington, 395 Mass. 315, 322-323 (1985). Where an affidavit contains information indicating ongoing or protracted criminal activity, however, the question is different, and “time is of less significance” (citation omitted). Commonwealth v. Vynorius, 369 Mass. 17, 25 (1975). See, e.g., Commonwealth v. Alvarez, 422 Mass. 198, 205 (1996) (affiant
With respect to the second factor, the nature of the item to be seized, the inquiry is related and also proceeds along two distinct lines. Information concerning an item that is perishable, readily disposable, or transferrable might not establish probable cause even a few days later. See, e.g., Commonwealth v. Wade, 64 Mass. App. Ct. 648, 651-652 (2005) (information from confidential informant that he had been purchasing cocaine from suspect who was sitting in his vehicle, and last had done so five days previously, did not establish probable cause that drugs would still be in vehicle five days later); Commonwealth v. Rodriguez, 49 Mass. App. Ct. 664, 669 (2000) (information about single instance of possession three days before issuance of warrant, without more, might not have established probable cause).
On the other hand, an item that is durable, of enduring use to its holder, and not inherently incriminating might reasonably be found in the same location several weeks later. See Commonwealth v. Gray, 465 Mass. 330, 346-347 (2013); Matias, 440 Mass. at 792-793; Commonwealth v. Burt, 393 Mass. 703, 716 (1985). See e.g., Commonwealth v. Beliard, 443 Mass. 79, 84-85 (2004) (six week old information concerning firearm was not stale where “there was no evidence that the weapons sought by the warrant had been used in any other crime, or that the defendant . . . knew that the weapons had been identified to the police thereby stripping them of their continued utility“); Commonwealth v. Blye, 5 Mass. App. Ct. 817, 818 (1977) (seemingly innocuous stolen household goods were likely to be retained for longer periods of time).3
To our knowledge, no reported Massachusetts appellate decisions have addressed the issue of staleness in the context of a search for evidence of child pornography. Courts in other jurisdictions, however, have observed that “the determination of staleness in investigations involving child pornography is unique” (citation omitted). United States v. Raymonda, 780 F.3d 105, 114 (2nd Cir. 2015). This observation is based on the belief that individuals who are interested in child pornography are likely to collect and retain such images in the privacy of their own homes. See United States v. Irving, 452 F.3d 110, 125 (2d Cir. 2006) (because “images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes,” evidence that such persons possessed child pornography in past supports reasonable inference that they retain those images -- or have obtained new ones -- in present [citation omitted]). See also United States v. Vosburgh, 602 F.3d 512, 528 (3d Cir. 2010) (collectors of child pornography are unlikely quickly to discard images of child pornography because of difficulty and risk involved in obtaining them); United States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009) (possession of child pornography is not typically “a fleeting crime“); United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (customers of child pornography sites do not quickly dispose of their cache). Accordingly,
This does not mean that a person accused of possessing or disseminating child pornography is, in effect, precluded from challenging a search warrant on the grounds of staleness because of a de facto presumption. Nor does it suggest that the government is not bound by the requirements of the Fourth Amendment and art. 14 when seeking evidence related to allegations of possession of child pornography. Every investigation, including the possession and distribution of child pornography, has a shelf life. See Vosburgh, 602 F.3d at 529 (“We do not hold, of course, that information concerning child pornography crimes can never grow stale“). The United States Court of Appeals for the Second Circuit is one of the few appellate courts to have examined the question of the collector inference in search warrants seeking evidence of child pornography, and to have developed a more nuanced analysis. The court has explained, “Crucially, however, the value of that inference [that an individual who is interested in child pornography will retain images of child pornography for lengthy periods of time] in any given case depends on the preliminary finding that the suspect is a person ‘interested in’ images of child pornography.” Raymonda, 780 F.3d at 114. See United States v. Falso, 544 F.3d 110, 124 (2d Cir. 2008) (generalized allegations about propensity of collectors of child pornography to hoard images is relevant to probable cause determination only if there is indication in affidavit that suspect was inclined to do so); United States v. Coreas, 419 F.3d 151, 156 (2d Cir. 2005) (alleged child pornographer‘s proclivities are relevant only if there is probable cause to believe that suspect is collector of child pornography). We are persuaded that this distinction is critical and adopt this important qualification on the inferences that can be drawn in cases involving child pornography with respect to the length of time that an image containing child pornography is likely to be retained in an individual‘s computer or other electronic device.
We therefore must consider what constitutes evidence of an “interest in” child pornography sufficient to trigger an inference that the target of a search warrant is a collector and likely to retain such images, adequate to establish that a search warrant affidavit is not stale. As the United States Court of Appeals for the Second Circuit discussed, there are several factors that could support a
Thus, an inference that an individual is a collector of child pornography “proceed[s] from circumstances suggesting that [the suspect] accessed those images willfully and deliberately, actively seeking them out to satisfy a preexisting predilection.” Id. Importantly, it excludes circumstances, even involving multiple images, where “the suspect‘s brush with child pornography was a purely negligent or inadvertent encounter, the residue of which was long ago expunged.” Id. In Raymonda, for example, the search warrant affidavit alleged that, nine months earlier, a computer user at a specified IP address associated with the defendant‘s home accessed seventy-six thumbnail images of child pornography over a period of seventeen seconds. Id. at 117 & n.4, 120. The user did not download the images, or even click on the thumbnails to open them and view full-sized images. Id. at 117. The court concluded that there was not probable cause the images would still be on the computer because “[i]t was necessary to show that [the suspect] accessed [child pornography] in circumstances sufficiently deliberate or willful to suggest that he was an intentional ‘collector’ of child pornography, likely to hoard those images -- or acquire new ones -- long after any automatic traces of that initial incident had cleared.” Id. See Falso, 544 F.3d at 121 (no probable cause where affidavit was inconclusive as to whether suspect actually gained access to child pornography website and there was no indication that he viewed or downloaded images).
Here, the defendant contends that the affidavit did not establish any “propensity-raising circumstances” so as to trigger an inference that he would have stored images of child pornography in his computer for seven months. As the defendant asserts, the affidavit does not allege that the defendant is an admitted or
Given the facts as asserted in the warrant affidavit, which would have required multiple, intentional steps to place the image in a file-sharing service, it would have been unlikely that the
5 The key to the distinction lies in the degree of intentionality demonstrated by the user, which may depend on the software used. For certain software, as here, the inference that an upload implies intentional possession may be warranted. See United States v. Bynum, 604 F.3d 161, 166 (4th Cir. 2010). The advent of cloud computing, however, cautions against applying this inference blindly. See Riley v. California, 573 U.S. 373, 397 (2014) (“Cell phone users often may not know whether particular information is stored on the device or in the cloud“). A computer user who, intentionally or inadvertently, places a file in a cloud storage service may have intentionally acquired that file and stored it on his or her computer, or may have inadvertently saved it to cloud storage through browsing an innocuous webpage. See United States v. Bosyk, 933 F.3d 319, 346 (4th Cir. 2019) (Wynn, J., dissenting). “Cloud” services often automatically back up data with no intentional action by the user. See Comment, Child Pornography Statutes and the Cloud: Updating Judicial Interpretations for New Technologies, 57 Hous. L. Rev. 727, 748 (2020) (“If a device uploads or backs up visual depictions by default, it is not clear that the user ‘knowingly’ transported the visual depictions“). See also Williams vs. Apple, Inc., U.S. Dist. Ct., No. 19-CV-04700, slip op. at 2 (N.D. Cal. Mar. 27, 2020) (quoting Apple terms of service: “When iCloud is enabled, your content will be automatically sent to and stored by Apple“). See, generally, Svenson, Backup in the Modern Law Firm, 94 Mich. B.J. 54 (2015).
6 The defendant based his argument in this court on Fourth Amendment and art. 14 grounds. As the defendant points out, in general, art. 14 provides “more substantive protection to criminal defendants than does the Fourth Amendment in the determination of probable cause.” Commonwealth. v. Upton, 394 Mass. 363, 373 (1985). See Commonwealth v. Alexis, 481 Mass. 91, 98-99 (2018), and cases cited. We have not, however, been called upon to extend additional protections under art. 14, beyond those provided by the Fourth Amendment, to the staleness inquiry in a case involving child pornography, and we discern no reason to address the issue in this case, where the defendant raises it for the first time on appeal.
The defendant‘s primary argument before the motion judge was that suppression was required based on the reasoning of the United States Court of Appeals in Raymonda, 780 F.3d at 114-117. Because the defendant did not raise the propensity issue before the motion judge, the argument is waived. See Commonwealth v. Dew, 478 Mass. 304, 309 (2017). “We nonetheless review to determine whether there was a substantial risk of a miscarriage of justice.” Id. at 309-310. For the reasons discussed, there was no abuse of discretion in the judge‘s conclusion that the information supporting the search warrant was not stale, and established probable cause to search the defendant‘s laptop and electronic storages devices for evidence of child pornography on
Order denying motion to suppress affirmed.