United States District Court, D. Vermont
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
SUPPRESS (DOC. 16)
Christina Reiss, District Judge.
Donny Therrien is charged in a one count Indictment alleging
he knowingly transported child pornography in, or affecting,
interstate or foreign commerce by any means, including by
computer in violation of 18 U.S.C. §§ 2252A(a)(1)
and 2252A(b)(1). On December 19, 2018, Defendant filed a
motion to suppress (Doc. 16), contending that his personal
information was improperly subpoenaed from Google in
violation of the Fourth Amendment to the United States
Constitution. He seeks suppression of all evidence obtained
via the subpoena. The government opposed the motion on
January 16, 2019. The court took the motion under advisement
on January 30, 2019.
is represented by Assistant Federal Public Defenders
Elizabeth K. Quinn and Steven L. Barth. The government is
represented by Assistant United States Attorneys Eugenia A.
Cowles, Nathanael T. Burris, and Paul J. Van de Graaf.
Findings of Fact.
following facts are derived from the parties' briefing as
they waived an evidentiary hearing. On March 15, 2018, a
subpoena was issued to obtain subscriber information from
Google which is allegedly associated with Defendant.
February 3, 2018, an order for eighty-five photograph prints
was placed with the online company Photo Affections. Photo
Affections outsources its photo printing to District Photo,
Inc., which is located in Beltsville, Maryland. District
Photo received the order and printed the photographs. Some of
the photos allegedly contained images which constitute child
pornography. The order was canceled after the photographs
were printed but before they were mailed to the person or
persons who placed the order. On February 5, 2018, an
employee of District Photo informed the Federal Bureau of
Investigations that District Photo was concerned that some of
the photographs may contain child pornography. Law
enforcement subsequently discovered that an e-mail address,
firstname.lastname@example.org, was associated with the order.
jury subpoena was issued on March 15, 2018 to obtain
subscriber information from Google pertaining to the
email@example.com account. In response, Google
produced subscriber information, services utilized by the
account, the date the account was created, the date and time
of the last login, and the IP addresses associated with the
account from December 6, 2017 through March 15, 2018.
Defendant seeks suppression of all evidence obtained pursuant
to the grand jury subpoena.
Conclusions of Law and Analysis.
asserts that law enforcement violated the Fourth Amendment in
obtaining records from Google without a warrant, contending
that he had a reasonable expectation of privacy in the
account information provided to the government. The
government responds that no Fourth Amendment violation
occurred because Defendant does not have a reasonable
expectation of privacy in business records maintained by a
third party. Defendant argues that the United States Supreme
Court decision in Carpenter v. United States, 138
S.Ct. 2206 (2018), forecloses the government's ability to
obtain this type of data without a warrant.
Fourth Amendment to the United States Constitution provides
[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Const, amend. IV. "[A] Fourth Amendment search occurs
when the government violates a subjective expectation of
privacy that society recognizes as reasonable."
Kyllo V. United States, 533 U.S. 27, 33
Carpenter v. United States, the Supreme Court held
that cell-site location information ("CSLI") was
not subject to the third-party doctrine. It reasoned that
"the notion that an individual has a reduced expectation
of privacy in information knowingly shared with another"
or that an individual has engaged in "voluntary
exposure" by his or her mere physical movements and use
of a cell phone extends the doctrine too far because
"[w]hether the Government employs its own surveillance
technology ... or leverages the technology of a wireless
carrier, we hold that an individual maintains a legitimate
expectation of privacy in the record of his physical
movements as captured through CSLI." Carpenter,
138 S.Ct. at 2217, 2219-20. In so ruling, the Court focused
on the "special solicitude for location
information" which protects individuals from warrantless
searches of "detailed chronicle[s]" of their
movements. Id. at 2219-20. The Court further
reasoned that because there was no way for individuals
possessing cell phones to avoid generating CSLI and because
cell phones are now effectively a necessity of daily life, it
was unreasonable to conclude that an individual voluntarily
exposed CSLI information to a third party. Id. at
2220. The Court described its decision in Carpenter
as "narrow" noting it "[did] not disturb the
application of Smith [v. Maryland, 442 U.S.
735 (1979)] and [United States v.] Miller[,
425 U.S. 435 (1976), ] or call into question conventional
surveillance techniques and tools, such as security cameras.
Nor [does it] address other business records that might
incidentally reveal location information." Id.
Carpenter, courts have held that IP address
information and similar information still fell
"comfortably within the scope of the third-party
doctrine" because "[t]hey had no bearing on any
person's day-to-day movement" and "[the
defendant] lacked a reasonable expectation of privacy in that
information." United States v. Contreras, 905
F.3d 853, 857 (5th Cir. 2018). "The privacy interest in
this type of identifying data, which presumably any [internet
provider] employee could access during the regular course of
business, simply does not rise to the level of the evidence
in Carpenter such that it would require law
enforcement to obtain a search warrant." United
States v. Tolbert,326 F.Supp.3d 1211, 1225 (D.N.M.
2018); see also United States V. Rosenow, 2018 WL
6064949, at *11 (S.D. Cal. Nov. 20, 2018) ("The Court
concludes that Defendant had no reasonable expectation of
privacy in the subscriber information and the IP log-in
information Defendant voluntarily provided to the online
service providers in order to establish and maintain his
account."); United States v. Felton, 2019 WL
659238, at *5 (W.D. La. Feb. 15, 2019) ("This Court