UNITED STATES of America, Plaintiff-Appellee v. Douglas I. SUING, Defendant-Appellant.
No. 12-2885.
United States Court of Appeals, Eighth Circuit.
Submitted: Dec. 11, 2012. Filed: April 10, 2013.
712 F.3d 1209
See also 2011 WL 6026695.
Michael P. Norris, AUSA, argued, Omaha, NE, for Appellee.
Before WOLLMAN, BYE, and BENTON, Circuit Judges.
BYE, Circuit Judge.
Law enforcement searched computer hard drives found in Douglas Suing‘s vehicle and residence and discovered child pornography. After being charged with three violations of federal child pornography laws, Suing entered a conditional guilty
I
In October 2009, a member of the Federal Bureau of Investigation Cyber Crimes Task Force (CCTF) identified a computer that was sharing images and videos of known child pornograрhy via a peer-to-peer network. The computer was identified by its unique Internet Protocol (IP) address. The CCTF applied for and obtained an administrative subpoena to serve on the Internet Service Provider (ISP) associated with the computer‘s IP address. Basеd on the ISP‘s response to the subpoena, the CCTF determined the IP address was assigned to Suing at a residence in Omaha, Nebraska, specifically 11507 Decatur Plaza, Apartment 4117. The CCTF then conducted surveillance at the Decatur Plaza address and a records check in anticipation of obtaining a search warrant, but discovered Suing had moved out of the apartment.
In May 2010, the CCTF issued another subpoena to the ISP in order to determine Suing‘s new address. The May 2010 subpoena was issued by the Douglas County (Nebraska) Attorney‘s office, аnd signed by the Chief Deputy County Attorney. The ISP provided the CCTF with Suing‘s new address, specifically 10923 Western Plaza, Apartment 20, in Omaha. Between May 2010 and January 2011, the CCTF conducted surveillance at the Western Plaza address, but was unable to observe Suing (or a vehicle registered to Suing) at thе address.
In January 2011, in an event unrelated to the Omaha investigation, a Navajo County (Arizona) Deputy Sheriff observed a vehicle with Nebraska license plates traveling on Interstate 40 in northern Arizona and following too closely behind a semi tractor trailer. The deрuty stopped the vehicle to issue a warning ticket to the driver for following too closely, a violation of
The deputy asked Suing if there was anything inside the vehicle about which he should be conсerned. Suing asked, “Like what?” The deputy responded, “Anything illegal. Paraphernalia, weed, meth, guns, bongs.” The deputy then asked Suing if he would consent to a search of the vehicle. Suing agreed and signed a consent form. The consent form allowed law enforcement to “search the vehicle listed ... to include luggage, containers, and contents of all.” After waiting for a back-up officer to arrive, the deputy began his search. During the search, he noticed the back seat was broken and the area where the spare tire wоuld normally be located was inaccessible. From his past experience, the deputy suspected the vehicle‘s condition signaled a possible hidden compartment used to transport drugs. The
After the drug dog alert, the deputy brought the vehicle to the Sheriff‘s office for a more thorough search. During this search, officers found an external computer hard drive in a bag on the front passenger seat. Based on past experience of hard drives containing evidence of narcotics activities such as drug ledgers, photos, and other incriminating information, the supervisor of the narcotics and canine officers plugged the hard drive into a computer to search its contents. Almost immediately after beginning the contents search, the supervisor found a number of thumbnail images of child pornography. He shut the computer down, contacted a local prosecutor for advice, and then sought a search warrant to switch the focus of the search from evidence of drug activity to evidence of child pornography. After a judge authorized a new search for child pornography, over 124,000 images and 1,400 videos of child pornography were found on the hаrd drive. Suing was placed under arrest.
Turning back to the Omaha investigation, the CCTF obtained a search warrant for Suing‘s Western Plaza apartment in Omaha shortly after learning of his arrest in Arizona. A second Douglas County Attorney subpoena (the January 2011 subpoena), again signed by thе Chief Deputy County Attorney and issued to the ISP provider, reconfirmed that Suing‘s address was still at Western Plaza. The search warrant application included historical information from the CCTF‘s lengthy investigation of Suing in Omaha, as well as information regarding the Arizona arrest. A federal magistrate judge authorized a search of Suing‘s apartment. During the search, an additional 200 videos and 5,000 images of child pornography were found on computer hard drives in the apartment. The metadata from some of the videos and images indicated they were рroduced with a Canon Digital Camera. A CCTF investigator then applied for and obtained a second federal warrant to search for the camera and other equipment related to the manufacture and production of child pornography. During the second search of Suing‘s apartment, the CCTF found and seized a Canon Digital Camera.
In February 2011, a federal grand jury returned a three count indictment against Suing charging him with one count of producing and manufacturing child pornography in violation of
II
“When reviewing the denial of a motion to suppress, we review the district
Suing first claims his Fourth Amendment rights were violated by the use of the evidence discovered in Arizona. He concedes he signed a consent form after the traffic stop allowing law enforcement to “search the vehicle listed ... to include luggage, containers, and contents of all,” but contends the search of the computer hard drive for child pornography exceeded the scope of his consent to search the vehicle for drugs. In response, the government argues the search of the hаrd drive fell within Suing‘s unlimited consent to allow a search of all containers and their contents for “[a]nything illegal.” In the alternative, the government contends the search for child pornography was authorized by the second search warrant, obtained after law enforcement immediately stopped the search for evidence of illegal drug activity when they discovered child pornography on the computer hard drive.
The procedure followed by law enforcement in this case was addressed in United States v. Hudspeth, 459 F.3d 922 (8th Cir.2006), rev‘d in part on other grounds, 518 F.3d 954 (8th Cir.2008) (en banc). In Hudspeth, as part of an investigation into the sale of large quantities of pseudoephedrine cold tablets, police executed a search warrant at the defendant‘s business. While examining his computer, authorities found images of child pornography. As they did here, when officials found thе images, they immediately stopped searching for evidence of illegal drug activity, contacted a prosecutor for advice, and obtained a second warrant authorizing a search for child pornography. 459 F.3d at 925. We concluded “the officers did not еxceed the scope of Hudspeth‘s consent to search the computer” because they did not interrupt the drug search and act without judicial authority by continuing a child pornography search without first obtaining a new search warrant. Id. at 928. We contrasted the procedure followed in Hudspeth with the Fourth Amendment violation found in United States v. Carey, 172 F.3d 1268 (10th Cir.1999). Id. In Carey, the Tenth Circuit concludеd a detective exceeded the scope of a warrant authorizing a search for evidence of drug trafficking when he abandoned his “drug” search after finding child pornography on a computer, but continued a five-hour search for child pornograрhy without first obtaining a new search warrant. 172 F.3d at 1273.
The law enforcement conduct involved here is governed by Hudspeth and unlike the Fourth Amendment violation found in Carey. Here, the officer did not abandon his drug search and continue a new, extended search for child pornography without judicial authority. Instead, he immediately stopped the search, called a prosecutor for аdvice, and obtained a new warrant authorizing the search for child pornography. We therefore conclude the officer did not exceed the scope of Suing‘s consent, even assuming the consent was limited to a search of the vehicle for evidеnce of drug activity.
Suing next argues his Fourth Amendment rights were violated by the use of the evidence discovered in the searches of his Omaha apartment. Most of his arguments hinge on his claim that the Arizona search was illegal. He argues the illegality of the Arizona search tainted the Omaha search warrant affidavit because the affidavit included information from the Arizona search. Having concluded the Arizona child pornography search did not violate
Suing also contends the Omaha searches violated his Fourth Amendment rights because the two subpoenas issued by the Douglas County Attorney in May 2010 and January 2011 were invalid. He argues the subpoenas were not issued in accordance with Nebraska law because they were signed by the Chief Deputy County Attorney instead of the County Attorney. See
Suing‘s argument fails for several reasons. First and foremost, Suing chose to share pornographic files via a peer-to-peer network. As a result, he “had no expectation of privacy in [the] govеrnment‘s acquisition of his subscriber information, including his IP address and name from third-party service providers.” United States v. Stults, 575 F.3d 834, 842 (8th Cir.2009) (citing United States v. Perrine, 518 F.3d 1196, 1205 (10th Cir.2008)). Suing therefore cannot meet his burden of proving a Fourth Amendment violation because he has failed to demonstrate an expectation of privacy that soсiety is prepared to accept as reasonable. Id. at 843; see also United States v. James, 534 F.3d 868, 872 (8th Cir.2008) (setting forth the two-part test a defendant must satisfy to show a legitimate expectation of privacy in an area searched by the government in order to invoke the protections of the Fourth Amendment).
In addition, even if we accepted Suing‘s unsupported interpretation of
III
Accordingly, we affirm the judgment of the district court.