United States District Court, N.D. California, San Jose Division
ORDER DENYING MOTION TO SUPPRESS
RONALD M. WHYTE, District Judge.
Defendant Marcus Hagood filed a motion to suppress evidence pursuant to the Fourth Amendment. Dkt. No. 31. Because defendant did not have a reasonable expectation of privacy in his IP address, and the government's search warrant was supported by probable cause, the court DENIES the motion to suppress.
Defendant is charged with possession and distribution of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B). The FBI discovered child pornography on Hagood's computer through the following steps:
1. On January 14, 2011 an undercover FBI agent connected to Gigatribe, a closed peer-to-peer file sharing program. The agent connected to the user "Shouta" and downloaded over 100 files suspected to contain child pornography.
2. The FBI agent used a "packet sniffing" program known as Commview to obtain the IP address of the user "Shouta." The FBI describes this as "a publicly available network analysis tool" that "looks at network traffic between the user and whomever they are communicating with online." Dkt. No. 33-1 (Kelley Decl.) at ¶ 5.
3. The FBI then issued an administrative subpoena to the appropriate Internet service provider (in this case, AT&T) for information about the account holder associated with that IP address.
4. On January 24, 2011 AT&T provided the FBI with records showing that the IP address was assigned to defendant during the time that the FBI downloaded the files, and provided defendant's home address.
5. On June 24, 2011 the FBI applied for a search warrant for defendant's home, based in part on the assertion that child pornography is unlikely to be deleted.
6. On November 18, 2011 the FBI executed the search warrant and found over 50, 000 images and over 400 videos of child pornography on defendant's electronic devices.
Defendant challenges the constitutionality of steps 2 and 5 of this process.
A. No Reasonable Expectation of Privacy in IP Address
A search for Fourth Amendment purposes occurs when the government violates an individual's expectation of privacy that "society recognizes as reasonable." Kyllo v. United States, 533 U.S. 27, 33 (2001) (citing Katz v. United ...