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United States v. Jenkins

United States District Court, N.D. Georgia, Atlanta Division

February 5, 2019




         On May 23, 2018, a grand jury sitting in the Northern District of Georgia returned an eighteen-count indictment against Defendant Benjamin Jenkins, charging him with thirteen counts of producing child pornography, in violation of 18 U.S.C. § 2251(a), and five counts of distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2). [Doc. 1]. Defendant has filed pre-trial motions seeking to exclude (1) fruit of the poisonous tree evidence based on the Supreme Court's recent decision in Carpenter [Doc. 29] and (2) statements made during the execution of two search warrants at his home-one on February 13, 2017 and the other on May 25, 2018 [Docs. 21, 28]. For the reasons that follow, I recommend that all these motions be denied.

         I. Carpenter Motion [Doc. 29]

         In his Second Amended Motion to Suppress Evidence, Defendant argues that the Court should suppress all evidence obtained during the February 13, 2017 execution of a search warrant at Defendant's house and the subsequent search of certain devices seized during that search. [Doc. 29]. He argues that the factual basis for the probable cause supporting the warrant was illegally obtained via summonses authorized by 19 U.S.C. § 1509 that were issued in March 2016 to Kik, Comcast, and Sprint. [Id. at 3-5; Doc. 29-1 at 2-5 (Kik), 7-9 (Comcast), 11- 13 (Sprint)]. According to Defendant, in response to these summonses, law enforcement obtained an “incredible amount of data, ” including Internet Protocol (“IP”) addresses, user names, dates and times the accounts were used, dates of birth, and information about phone calls placed and received. [Doc. 29-1 at 5, 15]. This information, which was obtained without a warrant, was then included in affidavits in support of two search warrants issued in March and April 2016 for information regarding an Apple iCloud account.[1] [Doc. 29 at 6-7; Doc. 29-1 at 55-92]. Information from the iCloud account was then used to support the search warrant for Defendant's house signed by United States Magistrate Judge Linda T. Walker on February 6, 2017. [Doc. 29 at 8; Doc. 29-1 at 15-53]. According to Defendant, another warrant was thereafter obtained to search the devices seized from the house, and the application in support of that warrant used the same language as the application in support of the warrant to search his house. [Doc. 29 at 2]. Defendant argues that the warrants for his house and his devices were not valid because the probable cause to support them came from tainted information illegally obtained without a warrant and that the resulting evidence-including statements Defendant made when law enforcement was searching his house- should be suppressed. [Id. at 8].

         Defendant's argument is based on the recent decision in Carpenter v. United States, in which the Supreme Court concluded that the acquisition of historical cell site records amounts to a search within the meaning of the Fourth Amendment and that, generally speaking, law enforcement must obtain a warrant supported by probable cause before acquiring such records. See 138 S.Ct. 2206, 2220-21 (2018). Defendant argues that his IP address and the other information obtained from the summonses is akin to historical cell site information, and therefore, law enforcement should be required to obtain a search warrant prior to acquiring it. [Doc. 29 at 15].

         The Government responds that Defendant has no expectation of privacy in his internet subscriber records and the other information obtained via the summonses, and that proceeding via a summons to obtain information from Kik, Comcast, and Sprint was appropriate, even after Carpenter. [Doc. 42 at 8, 10-12].

         The statute at issue, 18 U.S.C. § 2703(c)(2), allows a provider of electronic communication services to disclose basic account information to the government “when the governmental entity uses an administrative subpoena authorized by a Federal . . . statute . . . .” The summonses at issue state that they were authorized by 19 U.S.C. § 1509, which allows the United States Customs Service to issue a summons “in any investigation . . . conducted for the purpose of . . . insuring compliance with the laws of the United States administered by the United States Customs Service.” 19 U.S.C. § 1509.[2] According to the Government, nothing in the Carpenter decision changed the application of these statutes. I agree.

         As a district judge in Rhode Island recently put it, IP addresses and other subscriber data that law enforcement routinely obtains via summonses “do not reveal the kind of minutely detailed, historical portrait of ‘the whole of [a person's] physical movements' that concerned the Supreme Court in Carpenter.” See United States v. Monroe, No. 16-00055-WES, 2018 WL 5717367, at *5 (D.R.I. 2018). The subscriber information at issue in this case is more akin to the records of dialed numbers kept by a telephone company. See id.; United States v. Tolbert, 326 F.Supp.3d 1211, 1225 (D.N.M. 2018) (comparing the identifying data in IP addresses to telephone and bank records and concluding that such data did not fall within the Supreme Court's decision in Carpenter). The Supreme Court has held that individuals have no reasonable expectation of privacy in such records. See Smith v. Maryland, 442 U.S. 735, 745-46 (1979) (finding no protected privacy interest in telephone records of numbers dialed); United States v. Miller, 425 U.S. 435, 440-41 (1976) (finding no protected privacy interest in bank records). In Carpenter, the Supreme Court expressly declined to disturb those rulings and noted that its holding was limited solely to cell site location information. See Carpenter v. United States, 138 S.Ct. 2206, 2220 (2018) (“Our decision today is a narrow one. We do not express a view on matters not before us . . . . We do not disturb the application of Smith (telephone records of numbers dialed) and Miller (bank records).”). I agree with the Government that this Court should not extend the holding in Carpenter to subscriber information that is not invasive, does not track the defendant's whereabouts for extended periods, and does not create a reasonable expectation of privacy.

         Moreover, even if Carpenter were held to apply to the summonses at issue in this case, suppression still would not be appropriate because the Leon good faith exception to the exclusionary rule would apply. Shortly after Carpenter was decided, the Eleventh Circuit ruled that if, before the Carpenter decision was issued, the prosecutors and officers complied with the procedures that the Eleventh Circuit had previously sanctioned for obtaining cell site data without a warrant, then the good faith exception to the exclusionary rule articulated in United States v. Leon, 468 U.S. 897, 922 (1984) may apply. See United States v. Joyner, 899 F.3d 1199, 1204-05 (11th Cir. 2018) (relying on Leon to conclude that the district court's denial of a motion to suppress based on the Government's failure to obtain a search warrant for cell site data did not constitute reversible error).

         Here, the same reasoning applies. It appears that the agents fully complied with the requirements of both 18 U.S.C. § 2703(c)(2) and 19 U.S.C. § 1509 in obtaining the summonses, and thereafter the agents relied in good faith on the information obtained therefrom. There is no evidence of any bad faith, and there is no federal case holding that persons have a reasonable expectation of privacy in the information that was obtained through the summonses. It is evident that all the agents involved acted in good faith in issuing the summonses and thereafter relied in good faith on the information obtained. Thus, the motion to suppress should be denied on this basis as well.

         II. Motion to Suppress Statements [Docs. 21, 28]

         Defendant has also moved to suppress statements made during the two searches of his home-one on February 13, 2017 and the other on May 25, 2018. [Docs. 21, 28]. On October 25, 2018, I held an evidentiary hearing at which only one witness testified, Department of Homeland Security Investigations (“HSI”) Special Agent Eric Greene. [Doc. 34, Transcript (“Tr.”)].

         A. Facts Presented at the Evidentiary Hearing

         Special Agent Greene testified that he is assigned to the Child Exploitation Investigations Group at HSI, and that at some point before February 2017, he received information from law enforcement officers in Oklahoma and Illinois that Defendant had been exchanging pornographic pictures with children through the Internet, text messaging, and social media. [Tr. at 11, 52-53]. Law enforcement had obtained the IP address for the suspect, which was associated with a residence in Mableton, Georgia where Defendant lived with his parents and brother. [Id. at 12-14, 53]. Following a period of surveillance, HSI agents obtained a federal search warrant for the residence that authorized them to search and seize electronic devices that could be used to transmit child pornography. [Id. at 15; Doc. 29-1 at 15-53].

         In the early morning hours of February 13, 2017, HSI agents executed the search warrant at Defendant's address. [Tr. at 15]. Agents had chosen to execute the warrant in the early morning because they had expected, based on their prior surveillance work, that this would be the best time to ensure all residents would be home. [Id. at 16]. At least twelve law enforcement officers-ten HSI ...

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