¶ 1. Defendant Graham Simmons appeals from the Windham District Court’s denial of his motion to suppress evidence of a purloined computer and other stolen items discovered *143 in the execution of a search warrant at his residence. Probable cause supporting the warrant was obtained through inquest subpoenas requiring production of internet addresses and identifying data from internet service providers. Defendant challenges the subpoena of internet records as a warrantless search in violation of Chapter I, Article 11 of the Vermont Constitution, and also complains that the warrant was invalidly based on information from an unknown tipster whose reliability was not reasonably established. We note that defendant failed to properly preserve the first point and hold that the trial court’s refusal to suppress was not plain error. We also determine that the informant’s input and credibility was ultimately irrelevant to issuing the warrant. Accordingly, the judgment is affirmed.
¶ 2. In 2008, two of defendant’s neighbors on Hi Lo Biddy Road in Putney reported break-ins and stolen property, including two laptop computers. A State Police detective received a tip from an anonymous informant that a man named “Graham,” who lived on the same street as the victims, had one of the computers and was using it to access his neighbor’s wireless internet network. The detective looked through public records and learned that one Graham Simmons with previous larceny and fraud convictions lived on Hi Lo Biddy Road. The detective also learned from defendant’s next door neighbor — one of the break-in victims — that she subscribed to Verizon internet services and had a wireless network in her home for her personal use.
¶ 3. The detective looked for defendant on the social networking website MySpace.com and located a MySpace profile for a “Graham Simmons” living in Putney, accompanied by a picture resembling the photograph of defendant on record with the Department of Motor Vehicles. The detective then served an inquest subpoena 1 on MySpace to obtain defendant’s internet protocol (IP) address — a code identifying the computer network from which defendant accessed his MySpace account. The records from MySpace indicated that shortly after defendant’s neighbor’s computer was stolen, defendant logged onto his MySpace account more than 100 *144 times over the course of a week. Each log on originated from the same IP address, identified as a Verizon internet service address.
¶ 4. The detective secured another inquest subpoena, this time for Verizon’s records concerning the same IP address. Verizon disclosed records indicating that the only person authorized to use the internet connection identified by that IP address was defendant’s neighbor, mentioned above. Though the neighbor had not given defendant permission to use her Verizon wireless connection, defendant had clearly done so.
¶ 5. Based on this evidence of unauthorized network access in apparent violation of 13 V.S.A. § 4102 (criminalizing knowing and intentional unauthorized access to computer networks and systems), the detective applied for and was issued a warrant to search for computers at defendant’s Hi Lo Biddy Road address. The resulting search turned up a laptop computer with a serial number matching the laptop stolen from the neighbor’s residence. The police also noted that several other objects in plain view resembled other items reported as stolen from defendant’s neighbors. Based on these observations, the police secured defendant’s residence while the detective obtained another search warrant to seize the other suspected stolen property. During the second search, the police found a small bag of marijuana. After his arrest, defendant admitted that he burglarized two of his neighbors’ residences and accessed the internet using his neighbor’s wireless signal without permission. Defendant was charged with four counts of burglary under 13 V.S.A. § 1201(a), possession of marijuana under 18 V.S.A. § 4230(a)(1), and unauthorized access to a network under 13 V.S.A. § 4102.
¶ 6. Defendant moved to suppress the evidence. Contending that the IP address was private information, defendant argued that issuing subpoenas to MySpace and Verizon without probable cause was an invalid search in violation of the Fourth Amendment of the Federal Constitution and of Chapter I, Article 11 of the Vermont Constitution. Defendant claimed the subpoenas allowed essentially a warrantless search of his home in violation of his reasonable expectation of privacy, which he analogized to a warrantless search of his unopened mail. As we understand his point below, defendant maintained that probable cause for the warrants to physically search his house was derived from information obtained unconstitutionally from MySpace and Verizon. Thus the evidence gathered from those searches must be excluded as fruit of the poisonous tree under
Wong Sun v. United States,
*145 ¶ 7. The trial court denied the motion, concluding that defendant enjoyed no reasonable expectation of privacy in the subpoenaed information. The court found that the MySpace privacy policy, posted online, plainly declared that its account information could be disclosed as it deemed necessary “to respond to a subpoena . . . whether or not a response is required by applicable law.” The court also noted that the MySpace records were limited to the IP address and time-of-use data.
¶ 8. Applying settled Fourth Amendment precedent, the court agreed with the ruling in
United States v. D'Andrea,
¶ 9. Defendant’s remaining argument on appeal is that suppression should have been granted because the State’s subpoena to MySpace violated the state constitutional guarantees against warrantless searches in Article 11. 3 This argument is unavailing. First, defendant failed to properly preserve his state constitutional claim below. Second, the trial court did not commit plain error in denying the motion — it properly concluded that Vermont’s Constitution affords no privacy protection in an internet service provider’s subscriber address or use information disclosing noncontent data. 4 Concerning the claimed inadequacy of the *146 informant’s reliability, probable cause for the warrants did not depend on the tip. Accordingly, we affirm.
¶ 10. This Court has consistently held that “it is the duty of the advocate to raise state constitutional issues, where appropriate, at the trial level.”
State v. Jewett,
¶ 11. Aside from a bald assertion that the evidence should be suppressed “pursuant to . . . the Vermont Constitution, Chapter I, Article 11,” defendant proffered no particular argument or analysis to the trial court as to why this should be so. Defendant correctly points out in his brief to this Court that Article 11 has been found to surpass protections afforded under the Fourth Amendment to the United States Constituation; however, he advanced no reason for expanded protection at the trial court. Nor does defendant demonstrate any extraordinary circumstances to prompt divergence from the customary consequence of nonpreservation of matters not raised below. See
State v. Hunt,
¶ 12. Despite defendant’s failure to preserve his constitutional claim, we examine the claim for “plain error” in the court’s ruling. See
State v. Yoh,
2006 VT 49A, ¶ 36,
¶ 13. As conceded by defendant, federal courts consistently refuse to extend Fourth Amendment protection to noncontent internet identification and account data. See
United States v. Perrine,
¶ 14. Nothing in our Article 11 rulings suggest that an internet subscriber address and frequency of use data, unembellished by any personal information, should be treated as private. Article 11 declares that “the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure.” Vt. Const. ch. I, art. 11. Absent exigent circumstances not at issue here, Article 11 prohibits a warrantless search of “only those areas or activities that a reasonable person would conclude are intended to be private.”
State v. Geraw,
¶ 15. “Under Article 11, the question of whether an individual has a legitimate expectation of privacy hinges on the essence of underlying constitutional values — including respect for
both
private, subjective expectations and public norms.”
State v. Bryant,
¶ 16. Though Article 11 can afford greater protection against warrantless searches than is sometimes accorded by the Fourth Amendment, defendant presents no compelling reason to depart from federal case law as applied by the trial court in this instance. No “intimate details” of defendant’s personal “activities, behavior, habits, and lifestyles” were shown to be at stake as in
State v. Morris,
where Article 11 protection was extended to closed trash bags that would have been subject to warrantless search under the Fourth Amendment.
*149 ¶ 17. Lastly, we need not tarry long on the issue of the anonymous informant. Defendant’s claim that the State needed to substantiate the tipster’s reliability for purposes of probable cause is unfounded. It is evident that the tip only initiated the detective’s inquiry into defendant’s identity from public records and his published MySpace profile, which led, in turn, to the MySpace inquest subpoena seeking an IP address. None of these investigative steps required warrants or probable cause. See, e.g., 13 V.S.A. § 5131. As found by the trial court, the warrant application was supported by probable cause supplied from the records obtained from MySpace and Verizon, the neighbor’s evidence and the detective’s background information on illicit wireless access. Given the rest of this evidence and information, the informant’s reliability and the provenance of his tip was irrelevant to probable cause for the warrant.
Affirmed.
Notes
13 V.S.A. § 5131 provides that “[u]pon the written application of the state’s attorney, a judge of the superior court may institute and conduct an inquest upon any criminal matter under investigation by the state’s attorney.” In furtherance of the inquest, the “judge may issue necessary process to bring witnesses before [the court] to give evidence in any matter there under investigation.” 13 V.S.A. § 5132.
After the trial court’s ruling, this decision was vacated by
United States v. D'Andrea,
Defendant argues no Fourth Amendment violation now, and does not challenge the legality, under the state or federal Constitution, of the subpoenaed production of Verizon records disclosing the ownership of the IP address as an independent violation of his privacy, except as a “tainted fruit” of the Myspaee search.
State n Pitts,
“Noncontent data” in this context is defined as data that do not include information concerning the substance of internet communications. Cf. 18 U.S.C. § 2510(8) (Under federal law criminalizing unauthorized interceptions of communication, “ ‘contents’, when used with respect to any wire, oral, or electronic *146 communication, includes any information concerning the substance, purport, or meaning of that communication.”).
The Oregon Court of Appeals reached a similar conclusion under similar circumstances, ruling that, where a third party lawfully possesses “noncontent information . . . regarding [an individual’s] Internet usage,” the state’s constitution did not protect such information against warrantless police examination.
State v. Delp,
Conversely, the New Jersey Supreme Court has ruled that a subscriber’s name associated with an IP address is confidential, but for reasons undeveloped, or simply inapplicable, here. See
State v. Reid,