BACKGROUND
¶ 2 In October 2014, Shawano County Detective Gordon Kowaleski discovered evidence that a computer located in Wisconsin contained ten files of child pornography. Kowaleski located the evidence by using a software program called Child Protection System (CPS) to conduct an automated search of P2P file sharing networks for known files of child pornography.
¶ 4 In addition to having P2P software, a user must have an internet connection in order to connect to a P2P network. This requires the user to make his or her internet protocol (IP) address available, because without doing so, he or she cannot
¶ 5 When a file is shared on a P2P network, it is assigned a unique digital signature, known as a hash value. A hash value assigned to a file remains constant, even if the file name is changed. When a P2P user selects a file to download, the P2P software searches the P2P network for all users that have shared a file with the corresponding hash value. The P2P software then connects to those users to download the file. Law enforcement has compiled a list of hash values assigned to files of known child pornography. By using this list, they are able to search a P2P network and identify users who are sharing files of child pornography.
¶ 7 Accordingly, Kowaleski served a subpoena on Charter Communications, the internet service provider for the captured IP address, and found that the registered subscriber for that particular IP address was John Schultz, located in Hortonville. Kowaleski provided Schultz's address to the Wisconsin Department of Justice, and Special Agent Jed Roffers took over the investigation. Roffers determined that Schultz shared his residence with several individuals, including Baric, and that Baric was well-versed with computers. He also learned that Susan Schultz, John's wife and Baric's sister, ran an in-home daycare at the residence.
¶ 8 In February 2015, Roffers and Special Agent Chad Racine went to Schultz's home to interview its residents. They decided to first focus on Baric because of his familiarity with computers. They approached the house at approximately 8:00 p.m., both dressed in plain clothes. Susan let them into the home, and Roffers and Racine identified themselves as law enforcement officers. Roffers asked if he could speak with Baric, who was downstairs in his bedroom, so Susan asked Baric if he would come upstairs to speak with the agents. Once Baric came upstairs, Roffers and Racine began to question Baric about his computer use. Susan initially remained in the room and participated intermittently in the conversation.
¶ 9 Baric told the agents that he was twenty-seven years old and had a degree in computer science.
¶ 10 Roffers then told Baric he thought there might be concerning files on the laptop, especially given that Susan ran a
¶ 11 Roffers again told Baric that he was especially concerned about his internet activity because there were often children present in the house with Baric. Baric said he only had viewed the child pornography out of curiosity, but he would never "act on it at all." He then said he had viewed "pre-teen" child pornography
¶ 12 After Roffers agreed with Baric that it was in his best interest to be cooperative, Baric told him "I know it's wrong ... I'm just scared I guess." Racine said he understood, but Baric had to take responsibility for his mistakes. Baric again said he knew "it's wrong," and he "want[ed] to do what I can to cooperate." Roffers asked if Baric would take the agents down to see his bedroom, and Baric agreed to do so.
¶ 13 While Baric took Roffers downstairs to his bedroom, Racine retrieved a consent form, which Baric eventually read. The form indicated that Baric had the right to refuse to consent to any search and that if he did consent, anything found could be used against him in criminal proceedings. Baric asked if the agents would take his computer with them if he consented to the search. Roffers said they would not take anything with them unless they found something concerning during an initial, on-site preview. Baric signed the form, and the agents took two computers and three hard drives outside the house. A computer forensic analyst that had been waiting there conducted an on-site preview on the devices, and she discovered several videos and images of child pornography.
¶ 14 The State charged Baric with ten counts of possession of child pornography. Baric filed a motion to suppress, arguing that he did not voluntarily consent to the search of his computer devices. The circuit court held an evidentiary hearing, at which Roffers, Baric
¶ 15 Baric then filed a second motion to suppress. Baric argued in this motion that Kowaleski performed an illegal search when he located and viewed the files that Baric made publicly available on the eDonkey P2P file sharing network. After a hearing, the circuit court denied the motion in an oral decision, concluding there is no reasonable expectation of privacy in files shared on the internet and, therefore, no search occurred within the meaning of the Fourth Amendment.
DISCUSSION
A. P2P file sharing
¶ 17 Baric first contends that his constitutional right to be free from unreasonable searches and seizures was violated when Kowaleski viewed the digital files Baric made available on the eDonkey P2P file sharing network. The Fourth Amendment to the
¶ 18 Here, we focus on the second prong of the test-that is, whether Baric had an objectively reasonable expectation of privacy in files that he shared on a P2P network.
(1) whether the defendant had a property interest in the premises; (2) whether he [or she] was legitimately(lawfully) on the premises; (3) whether he [or she] had complete dominion and control and the right to exclude others; (4) whether he [or she] took precautions customarily taken by those seeking privacy; (5) whether he [or she] put the property to some private use; and (6) whether the claim of privacy is consistent with historical notions of privacy.
State v. Dumstrey ,
¶ 19 We note that by analyzing the reasonableness of Baric's expectation of privacy under the traditional Fourth Amendment framework, we implicitly acknowledge that the expectation of privacy in digital files-a new and particular issue for Wisconsin courts-is governed by the same standards as the expectation of privacy in physical property. For the sake of
¶ 20 We review the circuit court's denial of Baric's motion to suppress under a two-step inquiry. See State v. Lonkoski ,
¶ 21 After considering the factors applicable to this case, we agree with the State that Baric did not have an objectively reasonable expectation of privacy in files he publicly shared on a P2P file sharing network. Baric had no property interest in the eDonkey file sharing network, and once he made the files publicly available for download, he did not have any dominion or control over the files. He could not prevent anyone, including law enforcement, from accessing the P2P network and viewing the files that he offered to share.
¶ 22 We note that courts in other jurisdictions have uniformly reached the conclusion that individuals have no objectively reasonable expectation of privacy in files shared on P2P networks. See, e.g. , United States v. Conner ,
¶ 23 In response, Baric argues that Kowaleski subjected him to an unreasonable search under Kyllo v. United States ,
¶ 24 To expand on this distinction, the CPS software did nothing more than conduct an automated search that any member of the public could have performed manually to find the files on Baric's computer. See United States v. Dodson ,
¶ 25 Baric also argues Kowaleski performed an illegal search by using software to "geolocate" Baric using his IP address. In addition to being undeveloped, this argument fails on the merits. As stated above, to access a P2P network, a user must make his or her IP address publicly available. Once publicly available, "geolocation services ... enable anyone to estimate the location of Internet users based on their IP addresses. Such services cost very little or are even free." AF Holdings, LLC v. Does 1-1058 ,
B. Consent to search
¶ 27 Baric also contends he did not give valid consent to the search of his computer devices because his consent was coerced. "The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures."
¶ 28 The State bears the burden of proving by clear and convincing evidence that Baric voluntarily consented to the search. See
¶ 29 When evaluating the voluntariness of a party's consent to a search, we consider "the totality of all the surrounding circumstances."
(1) whether the police used deception, trickery, or misrepresentation in their dialogue with the defendant to persuade him [or her] to consent; (2) whether the police threatened or physically intimidated the defendant or "punished" him [or her] by the deprivationof something like food or sleep; (3) whether the conditions attending the request to search were congenial, non-threatening, and cooperative, or the opposite; (4) how the defendant responded to the request to search; (5) what characteristics the defendant had as to age, intelligence, education, physical and emotional condition, and prior experience with the police; and (6) whether the police informed the defendant that he [or she] could refuse consent.
¶ 30 Regarding the first factor, the agents did not engage in deception, trickery, or misrepresentation. The agents identified themselves when they arrived at Schultz's house and forthrightly told Baric
¶ 31 Baric argues Roffers made "patent misrepresentations" when he told Baric that he was not in any trouble and that Baric "might even know more about [computers]" than Roffers did. We agree with the State that these statements were, in fact, honest. First, when the agents told Baric he was "not in trouble," Baric was only one among a number of residents in a house where the agents believed someone possessed child pornography. Although Baric was a suspect at the time Roffers made the statement, Roffers had no evidence proving Baric was the person at the house who actually possessed the child pornography. Thus, it was a true statement that Baric was not yet in trouble. And even if there were evidence incriminating Baric, there was no attempt to trick Baric, as the agents explicitly told him they were investigating the downloading of child pornography.
¶ 32 Second, Roffers' statement that Baric might know more about computers than Roffers came after Baric rated his knowledge of computers as an eight on a one-to-ten scale. In light of this, Roffers' statement was not a misrepresentation. It was nothing more than an admission that Baric might have known more about computers than Roffers.
¶ 33 Regarding the second Artic factor, the circuit court found the agents did not threaten or physically intimidate Baric. That finding is not clearly erroneous. Roffers did tell Baric they could have procured
¶ 34 As to the third Artic factor, based on the circuit court's finding that the agents engaged in "gentle questioning," which is not clearly erroneous, the conditions of Baric's interview were congenial and cooperative. The agents told Baric that he was not under arrest and was not in custody, and they questioned him in what the circuit court found to be a "conversational tone." Further, Baric told the agents that he wanted to cooperate and he led the agents to his bedroom, where he told them they would find evidence of child pornography on his computer. Baric's actions support a determination of voluntary consent. See State v. Nehls ,
¶ 35 Under the fourth Artic factor, the record reflects that Baric's response to Roffers' initial request to search his computer was, "[i]f you wanted to, yeah." It was only after Roffers informed Baric that whether a search of his computer would occur at that time was completely up to him that Baric said he would "rather not" allow a search of his computer. The circuit court found that this constituted a refusal.
¶ 36 Roffers did not indicate that Baric had to allow the search after the initial refusal, but he did tell Baric he was especially concerned about the possibility of someone downloading child pornography in a residence with an in-home daycare. Baric said that he understood and that he wanted to cooperate as much as he could. Baric's equivocation, when considered in context of his initial consent and subsequent reaffirmation that he wanted to cooperate as much as he could, does not support a determination that his consent was involuntary.
¶ 37 The fifth Artic factor requires consideration of Baric's personal characteristics. He was twenty-seven years old at the time with a full-time job and a college degree in computer science. He rated his knowledge of computers at an eight on a one-to-ten scale. Those characteristics strongly suggest Baric knew exactly what a search of his computer would entail and what evidence law enforcement could recover. These personal characteristics support a determination that Baric's consent was voluntary.
¶ 38 Turning to the final Artic factor, Baric was told repeatedly that he had the right to refuse to consent to the search. Roffers told Baric that the decision to allow a search of his computers was "completely up to" him, and Racine told him that consenting to a search "isn't something that you have to do." Although there is no dispute that Baric was not read a Miranda
¶ 39 For all these reasons, the totality of the circumstances demonstrates that Baric voluntarily consented to the search of his computer devices. Accordingly, we conclude Baric's suppression motion on this ground was properly denied.
By the Court .-Judgment affirmed.
Notes
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.
For additional information on P2P networks, see P2P definition , TechTerms.com, https://techterms.com/definition/p2p (last visited Sept. 12, 2018).
For additional information on IP addresses, see IP Address Definition , TechTerms.com, https://techterms.com/definition/ip_address (Last visited Sept. 12, 2018).
Baric bases his argument solely on the Fourth Amendment to the United States Constitution. However, in the interest of thoroughness, we note that Article I, Section 11 of the Wisconsin Constitution also protects the right to be secure against unreasonable searches and seizures. State v. Dearborn ,
We do not address the first prong of the test-whether Baric had an actual, subjective expectation of privacy in the files he shared-because the second prong is dispositive. See Sweet v. Berge ,
In his reply brief, Baric argues that because a file shared on a P2P network is stored on a user's computer, not a server, and then shared directly to other P2P users, the file is somehow not held out to the public. This argument is illogical and admits that a P2P user indiscriminately allows all other P2P users direct access to shared files stored on the user's computer.
Baric raises two additional arguments. First, that Kowaleski acted outside of his jurisdiction because he used "engineered software contained on the CPS server down in Florida [to reach] into many servers across the country." And second, that Kowaleski acted outside the scope of his deputization because Kowaleski was not working directly with an FBI agent during his search. However, Baric fails to cite any legal authority or develop any meaningful analysis in support of either argument. We will not consider these undeveloped arguments. See State v. Pettit ,
Baric, although represented by counsel, fails to articulate whether this claim is based on a violation of either the state or federal constitution. However, again, in the interest of thoroughness, we recognize the relevant authority.
Although Baric argues that Roffers and Racine "failed to properly attain freely given consent," and he seeks to suppress the evidence seized from his computer devices, his argument relies almost exclusively on State v. Hoppe ,
The appellate record contains a transcript of Baric's interview with agents Roffers and Racine that the circuit court cited in its written decision denying Baric's motion to suppress. The court did not make explicit findings on all the contents of this transcript, but it is implicit in the court's decision that it accepted the contents of the transcript as accurate. We therefore treat the transcript as historical fact. See Town of Avon v. Oliver ,
Miranda v. Arizona ,
