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Ensley v. State

Court of Appeals of Georgia

October 29, 2014

ENSLEY
v.
THE STATE

Reconsideration denied December 8, 2014 -- Cert. applied for.

Sexual exploitation of children. Cherokee Superior Court. Before Judge Harris.

Anthony J. Morgese, for appellant.

Shannon G. Wallace, District Attorney, Cliff Head, Assistant District Attorney, for appellee.

McFADDEN, Judge. Andrews, P. J., and Ray, J., concur.

OPINION

Page 375

McFadden, Judge.

Richard Michael Ensley appeals from his convictions on multiple counts of sexual exploitation of children (OCGA § 16-12-100 (b)) in connection with child pornography found on his home computer. He argues that the trial court erred in denying his motion to suppress information about his name and address obtained from his Internet service provider, Comcast Cable Communications Holdings, Inc. Because Ensley lacked standing to challenge the acquisition of this subscriber information from Comcast, we affirm.

" On reviewing a trial court's ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court's findings on disputed facts and credibility must be accepted unless clearly erroneous." Wright v. State, 294 Ga. 798, 801 (2) (756 S.E.2d 513) (2014) (citation and punctuation omitted). So viewed, the evidence shows that a detective in the Cherokee County Sheriff's Department obtained from the magistrate court of that county a search warrant directing Comcast to provide subscriber information for a particular IP address. The detective sent a facsimile of the warrant to Comcast's legal department in New Jersey, and several days later Comcast provided information that linked the IP address to Ensley. The detective then obtained a warrant to search Ensley's residence. In the ensuing search of the residence, law enforcement officers seized computers, storage devices, and other electronic devices containing child pornography.

Ensley moved to suppress all evidence obtained as a result of the search warrant sent to Comcast, arguing that the magistrate court lacked jurisdiction to issue that warrant because Comcast's records were located in New Jersey. The trial court denied the motion. Revisiting the issue immediately before trial, the trial court again denied the motion, ruling that Ensley lacked standing to make his challenge.

We find no error. " In order to claim the protection of the Fourth Amendment against unreasonable search and seizure, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable." Smith v. State, 284 Ga. 17, 21 (3) (663 S.E.2d 142) (2008) (citations and punctuation omitted).

Our decision in Hatcher v. State, 314 Ga.App. 836, 837-839 (1) (726 S.E.2d 117) (2012) (physical precedent), is instructive on the issue of whether Ensley had a reasonable expectation of privacy in the Internet subscriber account information produced by Comcast. In Hatcher, a household resident (who used Internet service in the [330 Ga.App. 259] residence but was not himself the Internet service subscriber) sought to suppress subscriber information obtained from Comcast's New Jersey legal department following the issuance of a search warrant issued by a Georgia court. We held that the resident had not shown he had a reasonable expectation of privacy in information about an account for which he was not the subscriber. Id. at 839 (1). But we also expressed " doubt that an Internet service subscriber can have a reasonable expectation of privacy in the subscriber information that he voluntarily conveys to an Internet service provider in order to obtain [I]nternet service." Id. We noted that the United States Supreme Court and Georgia appellate courts have held that a person has no reasonable expectation of privacy in information voluntarily conveyed to another. Id. at 838 (1) & n. 6 (citing Smith v. Maryland, 442 U.S. 735, 743-744 (II) (B) (99 S.Ct. 2577, 61 L.Ed.2d 220) (1979); United States v. Miller, 425 U.S. 435, 442 (II) (96 S.Ct. 1619, 48 L.Ed.2d 71) (1976); Kesler v. State, 249 Ga. 462, 469 (5) (291 S.E.2d 497) (1982); Culpepper v. State, 156 Ga.App. 331 (1) (274 S.E.2d 616) (1980)). And we acknowledged cases from other jurisdictions that applied this principle to conclude that Internet service customers had no reasonable expectation of privacy in subscriber information voluntarily given to their Internet service providers. Hatcher, 314 Ga.App. at 838 (1) (citing United States v. Beckett, 369 F.App'x 52, 56 (II) (A) (1) (11th Cir. 2010); United States v. Christie, 624 F.3d 558, 573-574 (II) (C) (3d Cir. 2010); United States v. Bynum, 604 F.3d 161, 164 (II) (A) (4th Cir. 2010);

Page 376

United States v. Perrine, 518 F.3d 1196, 1204 (I) (10th Cir. 2008); Guest v. Leis, 255 F.3d 325, 336 (II) (C) (3) (6th Cir. 2001)).

Although our decision in Hatcher is not binding precedent, see Court of Appeals Rule 33 (a), we find its analysis and cited authorities persuasive in this case. Ensley voluntarily conveyed to Comcast the subscriber information that Comcast supplied to law enforcement (his identity and address). For the reasons set forth in Hatcher, he cannot show that he had a reasonable expectation of privacy in that information, and consequently he lacks standing to pursue his Fourth Amendment challenge to the search of Comcast for that information.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


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