United States District Court, D. Vermont
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
SUPPRESS (DOC. 41)
CHRISTINA REISS, DISTRICT JUDGE, UNITED STATES DISTRICT COURT
Defendant
Colin Germain is charged in a two-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), and "forcibly assaulted, opposed,
impeded, and interfered with" a Special Agent of the
United States while the Special Agent was engaged in the
performance of official duties in violation of 18 U.S.C.
§ 111(a)(1). (Doc. 20.) On September 4, 2018, Defendant
filed a motion to suppress (Doc. 41), contending that his
personal information was improperly subpoenaed from
Waitsfield Telecom and Google in violation of the Fourth
Amendment to the United States Constitution. He seeks
suppression of all evidence obtained via the subpoenas and
related search warrants.[1] On October 2, 2018, the government
opposed the motion. The parties waived a hearing on April 11,
2019, at which time the court took the pending motion under
advisement.
Defendant
is represented by Assistant Federal Public Defender Elizabeth
K. Quinn. The government is represented by Assistant United
States Attorney Nicole P. Cate.
I.
Findings of Fact.
Because
the parties waived an evidentiary hearing, the following
facts are derived from the parties' briefing. In August
2017, agents from Homeland Security Investigations
("HSI") arrested an individual in Tennessee for
child pornography offenses. This individual consented to
searches of multiple online accounts including an email
account in which law enforcement found an email dated August
2, 2017, which the offender received from
"daddylittlekittyl2@gmail.com" with no text in the
body of the email but with a video attachment containing
child pornography.
On
September 8, 2017, Tennessee HSI obtained a federal search
warrant for the
"daddylittlekittyl2@gmail.com" account. In
response to that search warrant, Google produced account
records including IP addresses associated with the email
account. Tennessee HSI determined that an IP address
associated with the
"daddylittlekittyl2@gmail.com" account was
provided by Waitsfield Telecom, an internet service company
in Vermont.
After
communicating with Vermont HSI, Tennessee HSI sent a summons
to Waitsfield Telecom requesting all records regarding the
identity of the customer associated with the IP address,
including registrant name, address, associated email
addresses, all MAC addresses, telephone number, status of
account, available IP history, length of service, and the
date account was opened. In response, on October 5, 2017,
Waitsfield Telecom identified the subscribers as Wade and
Maureen Stevens, Defendant's stepfather and mother, at
724 Twitchell Road, New Haven, VT 05472, provided their
telephone number, and indicated that their IP address had
been continuously held from June 22, 2017 to September 20,
2017.
Google's
response to the search warrant included not only a copy of
the August 2, 2017 email from
"daddylittlekittyl2@gmail.com" but also an
email dated August 3, 2017 with an attached photo of a
male's genitals and text which indicated that the photo
was of the account owner. HSI investigators in Vermont
determined that the GPS coordinates associated with the photo
attachment corresponded with the residence at 724 Twitchell
Road in New Haven, Vermont. Law enforcement thereafter
conducted surveillance of the property and were able to
confirm that the vehicles parked in the residence's
driveway were registered to Wade Stevens.
HSI
investigators in Vermont subsequently obtained a search
warrant for the 724 Twitchell Road property. On November 7,
2017, law enforcement agents executed the search warrant,
conducted the search, and took Defendant into custody. After
his arrest, Defendant waived his Miranda rights and
made certain incriminating statements.
In the
course of their investigation, law enforcement identified
four additional Google email addresses associated with
Defendant. Three of the addresses,
"mommylovesyounggirls@gmail.com,"
"spankmedaddylO@gmail.com," and
"stormmodzl997@gmail.com," were identified
based on records from the
"daddylittlekittyl2@gmail.com" account.
The fourth Google email address was identified from an iPod
touch seized during the November 7, 2017 search, which had
the owner name "Kitty Playtime" and the associated
Apple ID "pitbulletmods@gmail.com." On
February 16, 2018, grand jury subpoenas were served on Google
for account information related to the four email accounts.
In
response to the grand jury subpoenas, Google produced
subscriber information including subscriber name, recovery
email address, [2] account creation date, and IP addresses
associated with login dates and times. The recovery email
address for the "pitbulletmods@gmail.com"
account identified a fifth Google email address,
"stevenscolinbenny 1 l@gmail.com,"
associated with Defendant.[3]
On
April 20, 2018, HSI obtained a federal search warrant for the
five Google accounts law enforcement believed were associated
with Defendant. Examination of the data Google provided from
several of those accounts revealed additional files allegedly
containing child pornography.
II.
Conclusions of Law and Analysis.
Defendant
asserts the government obtained records from Waitsfield
Telecom and Google without a search warrant and thereby
violated his reasonable expectation of privacy in account
information in violation of the Fourth Amendment. He relies
on Carpenter v. United States,138 S.Ct. 2206
(2018), for his argument and contends that the third-party
disclosure doctrine is not "a hard and fast rule and is
instead simply one factor in the
overall-reasonable-expectation-of-privacy analysis."
(Doc. 41 at 12.) The government responds that no Fourth
...