UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Civil No. 14-cr-148-JL
Opinion No. 2017 DNH 072
David Morel
OPINION AND ORDER
In advance of a trial on one count of possession of child
pornography, see 18 U.S.C. § 2252(a)(4)(B), defendant David
Morel Jr. filed a series of motions to suppress evidence. These
motions turn on whether he had a reasonable expectation of
privacy in images uploaded to the Internet and whether probable
cause supported a warrant to search a computer for child
pornography when the affiant police detective failed to attach
known images of apparent child pornography to the warrant
application.
By his first motion, Morel asked the court to suppress
images of child pornography obtained from his computer and
statements he made during a custodial interrogation, arguing
that this evidence was obtained as the result of a warrantless
search conducted by Imgur, a corporation, acting at the
instigation of the National Center for Missing and Exploited
Children (NCMEC).1 By his second motion, Morel sought to
suppress the images obtained from his computer because, he
argues, it was searched pursuant to a constitutionally-deficient
warrant.2 Morel also filed a third motion, seeking to suppress
evidence obtained from what he contended was an unconstitutional
warrantless arrest.3
After two evidentiary hearings, one on Morel’s first motion
to suppress and the other on Morel’s second and third motions,
the court denied all three motions.4 Morel subsequently
conditionally pleaded guilty to one count of possessing child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B), reserving
the right to appeal the court’s orders denying his first and
second motions.5 See Fed. R. Crim. P. 11(a)(2). This order
serves to set forth the bases for the court’s denial of those
two motions in greater detail. See, e.g., United States v.
1 Morel filed a series of motions and supplemental motions in
support of his arguments to this effect. See document nos. 24,
31, 33, 35, 40. The court considers this set of documents to
constitute a single motion.
2 Document no. 51.
3 Document no. 49.
4 See Orders of April 4, 2016, September 22, 2016, and September
30, 2016.
5 Because Morel thus waived his right to appeal the court’s
denial of his third motion to suppress, the court does not
elaborate on its reasoning in this order.
2
Joubert, 980 F. Supp. 2d 53, 55 n.1 (D.N.H. 2014), aff'd,
778
F.3d 247 (1st Cir. 2015) (citing In re Mosley,
494 F.3d 1320,
1328 (11th Cir. 2007) (noting a district court’s authority to
later reduce its prior oral findings and rulings to writing).
As explained below, Morel vigorously argues that Imgur
reviewed his uploaded images at the behest of NECMEC and, thus,
that Imgur’s review amounted to a warrantless governmental
search. Because Morel fails to establish that he possessed a
reasonable expectation of privacy in the uploaded images, the
court need not reach that question. The images, uploaded to the
Internet, were not only accessible to but actually accessed by
an anonymous tipster and NCMEC, strongly suggesting that Morel
lacked any such expectation. As to his second motion, though
the affiant failed to follow the “best practice” of attaching
the known images of alleged child pornography to his affidavit
in support of a warrant, his affidavit did not run afoul of the
requirement that a judicial officer, not the investigating
officer, make the probable cause determination because he
sufficiently described the manner in which the images met the
statutory requirements for child pornography. Accordingly, the
court denied both motions.
3
Background
The court makes the following findings of fact based on the
testimony and other evidence received at the suppression
hearings.
A. NCMEC CyberTipline report
The National Center for Missing and Exploited Children
(NCMEC) is a non-profit organization that works to reunite
missing children with their families, reduce child sexual
exploitation, and prevent child victimization. See 42 U.S.C.
§ 5771. To further that mission, NCMEC hosts a CyberTipline --
a website through which members of the public, law enforcement
officials, and others can report child exploitation and child
pornography by filling out a form on that website.
Id.
§ 5773(b)(1). The law obligates electronic service providers
(ESPs) that “obtain[] actual knowledge of” child pornography to
report that fact to NCMEC through the CyberTipline. 18 U.S.C.
§ 2258A(a). Knowing and willful failure to do so is may be
punished by a fine. Id. § 2258A(e). Upon receiving such a
report, NCMEC must forward it to an appropriate federal law
enforcement agency, and may forward it to an appropriate state
or foreign law enforcement agency. Id. § 2258A(c).
The CyberTipline’s online form contains several fields.
While an individual or ESP reporting an instance of child
pornography may fill out many or all of the fields available,
4
including contact information, only two fields are required:
the date and time of the incident, and the substance of the
report. An individual making a report can provide the web
address of any files containing child pornography; he or she
cannot, however, upload the image files. ESPs, on the other
hand, can upload and attach images to those reports.
Irrespective of how many or which fields someone making a report
fills out, NCMEC automatically captures the date and time that a
report is submitted, as well as the IP address of the computer
from which it was submitted.
On November 23, 2013, an unidentified individual reported
instances of child pornography through the CyberTipline (report
number 2195842), including a list of URLs of websites or images
appearing to depict child pornography.6 This person provided no
identifying information, but the CyberTipline captured his or
her IP address and, via an automated process, populated the
location associated with that IP address into the report.
NCMEC’s staff analysts then visited several of the reported URLs
and annotated the report, indicating whether the visited URLs
appeared to contain child pornography. In this report, one of
the URLs led to a gallery of images hosted by an image-hosting
6 Hearing Ex. 2.
5
service called Imgur.7 The analyst obtained the URLs of specific
images in the gallery that appeared to contain child pornography
without clicking on the links thereto, and copied those URLs
into the report.8
Once a day, NCMEC sends automated notices to ESPs
summarizing instances of apparent child pornography reported
from or found on their websites that day. On November 26, 2013,
NCMEC sent such a notice to Imgur, indicating that images found
at Imgur URLs appeared to contain child pornography, including
images identified in report number 2195842.9 In this notice,
NCMEC asked Imgur to “[p]lease review the reported URL to
7 Images hosted by Imgur are accessible either through links from
the public gallery or by direct image link (URL). An image
published to the public gallery is visible to anyone who visits
Imgur’s website. An image published to a private gallery is
still visible to everyone who possesses the direct image link.
It is impossible to make an image uploaded to Imgur private such
that it cannot be seen by any person, or can be seen only by the
one who uploaded it.
Imgur does not actively search or use software to identify
apparent child pornography uploaded by its users. According to
testimony by its representative, Brianna Walker, however, when
it receives reports of such images, it reviews the images and,
if they appear to contain child pornography, reports them to
NCMEC. It then deletes the images. This practice is reflected
in Imgur’s terms of service, to which users must agree before
uploading images. These terms of service indicate that, if
Imgur finds illegal images, or images involving illegal
activity, Imgur will report the user and delete the image. See
Hearing Ex. J.
8 Hearing Ex. 2 at MOR01140.
9 Hearing Ex. 3.
6
determine if it contains content that violates federal and/or
state law or your Terms of Service or Member Services
Agreement.”10
NCMEC neither require ESPs to notify NCMEC whether they
take action after receiving such a notice nor follows up with
ESPs to see if they have done so. Nor does NCMEC instruct ESPs
to report apparent child pornography found on such URLs. In
this case, however, consistent with federal law, see 18 U.S.C.
§ 2258A(a), and with its own terms of service,11 after receiving
this notice, on November 26, 2013, Imgur filed three reports
through the CyberTipline. These reports indicated that some of
the URLs noted by NCMEC contained apparent child pornography
(report nos. 2202631, 2202632, and 2202634).12 As an ESP, Imgur
was able to -- and did -- attach copies of the images to the
reports. Imgur also provided the IP address of the computer
from which the images were uploaded to Imgur’s servers,13 which
was the same for all three images, as well as the date and time
each image was uploaded. Using a publicly-available website,
10 Id.
11 See Hearing Exs. J and M.
12 Hearing Exs. B, C, and D.
13NCMEC does not have the ability to obtain the uploading
IP address by itself. It relies on ESPs to provide it. Not all
ESPs do so.
7
NCMEC associated that IP address with a Comcast Cable subscriber
in Derry, New Hampshire.14 Imgur then deleted the images from
its server. On December 6, 2013, Imgur submitted three
additional reports of apparent child pornography associated with
the same IP address to NCMEC through the CyberTipline (report
nos. 2217212, 2217316, and 2217317).15
Relying on Imgur’s reports that the images contained
apparent child pornography NCMEC notified and made Imgur’s
reports available to the New Hampshire Internet Crimes Against
Children (ICAC) task force, which forwarded the reports to the
Derry, Hew Hampshire police department.
B. Investigation
After receiving the six reports, Detective Kennedy Richard
of the Derry Police Department reviewed the images attached
thereto and characterized them as appearing to contain child
pornography. He obtained a subpoena for Comcast’s information
concerning the owner of the identified IP address. On
February 14, 2014, Comcast notified Det. Richard that the IP
address in question belonged to a David Morel at an address on
Pingree Hill Road in Derry, New Hampshire.
14 Hearing Ex. 4 at 2.
15 Hearing Exs. E, F, and G.
8
In the meantime, on February 1, 2014, defendant Morel
reported that his laptop computer was stolen during a burglary
from the loft above the garage at his parents’ house at that
address. The Derry Police Department recovered that computer
and other stolen property a week later. During a visit to the
police department, Morel identified the recovered computer as
the one he had reported stolen. The computer remained in the
police department’s custody as evidence of the burglary.
Det. Richard subsequently spoke with the defendant’s
father, David Morel Sr.,16 who confirmed that defendant Morel
lived at the Pingree Hill Road address in November, 2013, at the
time the images were uploaded. David Morel Sr. also disavowed
using the email address associated with the Comcast account
connected to the identified IP address, and said he believed it
was used by his son.
On April 16, 2014, Det. Richard obtained a warrant to
search Morel’s laptop computer that was in the police
department’s custody. In the affidavit supporting his
application for the warrant, he described the six images
attached to the NCMEC reports.17 He described three of the
16To avoid any confusion, the court will refer to David Morel
Sr. by his full name.
17Det. Richard, in his affidavit, also stated that Imgur
informed NCMEC that the images in question had been downloaded
to a computer at the reported IP address. See First Mot. to
9
images as depicting females “believed to be” or who “appear[] to
be under the age of 10.”18 The other three images depicted
females “believed to be under the age of 13.”19 Though he
described the apparently sexual nature of the photographs, he
did not, in this application, physically describe the girls
other than to state his belief that they were under the ages of
10 and 13.
Pursuant to the warrant issued on April 16, Det. Richard
had a forensic copy made of Morel’s computer’s hard drive. He
reviewed the contents of the hard drive a few days later and saw
what he estimated to be approximately 200 videos and images
depicting child pornography.
Supp. Ex. A (doc. no. 24-1) at MOR00106. The weight of the
evidence adduced at the hearing, including the NCMEC reports and
testimony of Imgur’s representative, made clear that Imgur
reported the images as being uploaded from that IP address, not
downloaded to it. Morel did not seriously contest that fact.
See Third Supplemental Mot. to Supp. (doc. no. 35). Whether the
images were uploaded from or downloaded to a given computer, the
images must necessarily have existed on that computer at some
point in time. Accordingly, to the extent that Morel briefly
argues that this error in Det. Richard’s affidavit invalidates
the resulting warrant, see Supplemental Mot. to Supp. (doc.
no. 31) at 6-7, the court concludes that this error did not
render the affidavit “so lacking in indicia of probable cause as
to render official belief in its existence entirely
unreasonable,” thus rendering the evidence obtained pursuant to
the warrant admissible under the good faith exception. United
States v. Capozzi, 347 F.3d 327, 332 (1st Cir. 2003).
18 First Mot. to Supp. Ex. A (doc. no. 24-1) at MOR00106-07.
19
Id.
10
On April 28, 2014, Morel was arrested on the charge of
Attempted Possession of Child Sexual Abuse Images.20
Det. Richard interviewed Morel at the Derry Police Department
where, after receiving customary Miranda warnings and waiving
his Fifth Amendment rights, Morel admitted to possessing child
pornography on his computer.21 After the court denied his
motions to suppress both the contents of his hard drive and his
statement, Morel pled guilty to one count of possession of child
pornography.
Analysis
Morel moves to suppress evidence of child pornography
images obtained during a search of his computer’s hard drive.
In his first motion, he argues that the government would not
have obtained this evidence -- as well as his confession, which
he also seeks to suppress -- but for a warrantless search by
Imgur of the images uploaded to Imgur from his IP address. In
his second motion, Morel argues that probable cause did not
20Morel’s third motion to suppress addressed the circumstances
of that arrest. See Third Mot. to Supp. (doc. no. 50). Because
the court’s order denying that motion is not subject to appeal,
the court does not delve into those circumstances here.
21Morel challenges the admissibility of his statement as fruit
of the allegedly unconstitutional search of his uploaded images
by Imgur. See Third Supplemental Mot. to Supp. (doc. no. 35) at
1. He does not challenge the validity of his waiver of his
rights under the Fifth Amendment.
11
support the April 16, 2014 warrant pursuant to which
Det. Richard searched his computer’s hard drive because
Det. Richard’s affidavit did not describe the images in such a
way as to allow the issuing magistrate to conclude that the
images met the statutory definition of child pornography. The
court addresses each motion in turn.
A. First motion to suppress
The Fourth Amendment protects from violation the “right of
the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. “A search within the meaning of the Fourth
Amendment ‘occurs when the government violates a subjective
expectation of privacy that society recognizes as reasonable.’”
United States v. D'Andrea, 648 F.3d 1, 5-6 (1st Cir. 2011)
(quoting Kyllo v. United States,
533 U.S. 27, 33 (2001)). To
determine whether an individual has a reasonable expectation of
privacy in the place searched, the court asks, first, “whether
the individual, by his conduct, has exhibited an actual
(subjective) expectation of privacy,” and second, “whether the
individual’s subjective expectation of privacy is one that
society is prepared to recognize as reasonable.” Smith v.
Maryland,
442 U.S. 735, 740 (1979) (internal quotations and
citations omitted). Just as the defendant “has the burden of
12
establishing that his own Fourth Amendment rights were violated
by the challenged search or seizure,” he also bears the
“threshold burden . . . to prove that he had a legitimate
expectation of privacy in ‘the place searched or the thing
seized.’” United States v. Rheault, 561 F.3d 55, 58-59 (1st
Cir. 2009) (internal quotations and citations omitted). Only
after the defendant demonstrates a reasonable expectation of
privacy does the court determine whether a governmental search
violated that expectation.
Morel’s arguments in support of his first motion to
suppress have evolved over the course of several rounds of
briefing, presenting a moving target for the prosecution and the
court.22 At the end of the day, that argument can be reduced to
three points: (1) Morel had a reasonable expectation of privacy
in images uploaded to Imgur’s server and in the IP address from
which those images were uploaded; (2) Imgur’s review of those
images and reporting of them and his IP address to NCMEC
constituted a search that violated that expectation of privacy;
and (3) that search amounted to a governmental search because
Imgur, though not a governmental entity itself, conducted it at
22The court does not intend this observation as any form of
censure to defendant’s counsel. Morel’s evolving arguments
reflected an evolving factual record, the result of a staggered
dissemination of evidence by the prosecution.
13
the request of NCMEC. Because the court concludes that Morel
lacked a reasonable expectation of privacy in the images that he
uploaded to Imgur’s servers and the IP address from which he
uploaded them, the court need not reach the latter two
questions.23
1. Images uploaded to Imgur
An individual may have an expectation of privacy in certain
information conveyed over the Internet, even though that
information is stored on a third party’s server, as the images
were here. For example, acknowledging that individuals have a
certain privacy interest in the content of emails, Congress,
through the Electronic Communications Privacy Act (“ECPA”),
barred ESPs from disclosing information about a customer’s
electronic communications to the government without a court
order, warrant, or the customer’s consent.24 See 18 U.S.C.
23Even were the court to reach the latter questions, the Court
of Appeals has rejected Morel’s argument that private image-hosting services act as government agents when they review
users’ accounts for child pornography and report any apparent
child pornography to NCMEC pursuant to 18 U.S.C. § 2258A. See
United States v. Cameron, 699 F.3d 621, 638 (1st Cir. 2012); see
also United States v. Keith,
980 F. Supp. 2d 33, 40-43 (D. Mass.
2013) (AOL search of email attachment and subsequent report to
NCMEC did not violate Fourth Amendment).
24There are also exceptions for providing, for example, a
customer’s name, address, and other information about the
customer’s subscription (but not the content of electronic
communications) to a governmental entity in response to an
administrative or grand jury subpoena.
18 U.S.C. § 2703(c)(2).
14
§§ 2702, 2703. Courts have similarly acknowledged such privacy
interests, analogizing emails in the hands of a service provider
to unopened packages in the hands of a common carrier like
Federal Express or UPS. E.g., United States v. Warshak, 631
F.3d 266, 288 (6th Cir. 2010) (holding in the Fourth Amendment
context that “a subscriber enjoys a reasonable expectation of
privacy in the contents of emails that are stored with, or sent
or received through, a commercial ISP”); see also Keith,
980 F.
Supp. 2d at 39-40 (analogizing the content of emails to the
contents of a conversation held over a telephone line or a
sealed envelope).
Morel’s emails are not implicated here.25 He argues,
rather, that the same principles protecting emails apply to
images uploaded to Imgur’s servers and the IP address from which
he uploaded them.26 But that analogy does not hold. Here, the
evidence suggests that any images uploaded to Imgur’s servers
were publicly available. As Imgur’s representative testified,
there is no way to render an image entirely private on Imgur.
At best, a user can decline to share the image’s URL, thus not
25In his original motion, Morel argued that the government had
searched his emails. See Mot. to Supp. (doc. no. 24). He later
conceded that his emails were never subject to a search. See
Third Supplemental Mot. to Supp. (doc. no. 35) at 1.
26 See id. at 1.
15
affirmatively inviting others to view the image. Such images
are still able to be found by the public at large through search
engines, reverse image searches, or even by a lucky guess at the
URL.
An individual who places a file on the Internet, without
taking affirmative steps to protect the information it contains,
cannot reasonably expect it to remain private. See D’Andrea,
648 F. 3d at 8 (“It is well settled that when an individual
reveals private information to another, he assumes the risk that
his confidant will reveal that information to the authorities,
and if that occurs the Fourth Amendment does not prohibit
governmental use of that information.” (quoting United States v.
Jacobsen, 466 U.S. 109, 117 (1984))); see also United States v.
Gines-Perez,
214 F. Supp. 2d 205, 225 (D.P.R. 2002), rev'd on
other grounds,
90 Fed. Appx. 3 (1st Cir. 2004) (“[I]t strikes
the Court as obvious that a claim to privacy is unavailable to
someone who places information on an indisputably public medium,
such as the Internet, without taking any measures to protect the
information.”); cf. Ehling v. Monmouth-Ocean Hosp. Serv. Corp.,
872 F. Supp. 2d 369, 373 (D.N.J. 2012) (expectation of privacy
in Facebook comments only where plaintiff restricted access
thereto). No evidence suggests that Morel took affirmative
steps to protect the images. To the contrary, the evidence
indicates that the uploaded images were generally available to
16
-- and findable and viewable by -- the public at large.
Specifically, the anonymous tipster who submitted the initial
report to the NCMEC CyberTipline appears able to have accessed
the images, so as to determine their content and suggest to
NCMEC that they contained child pornography.27 Similarly, a
NCMEC employee was able to open the gallery page and view the
image thumbnails presented simply by entering the provided URL.
In this sense, the uploaded images are more akin to information
shared on a peer-to-peer network than to emails. Such
information, once made available to others, no longer enjoys a
reasonable expectation of privacy. See, e.g., United States v.
Ladeau, No. CRIM 09-40021-FDS, 2010 WL 1427523, at *1–5 (D.
Mass. Apr. 7, 2010) (an individual using peer-to-peer networking
software has no reasonable expectation of privacy in the
information shared on that network); United States v. Norman,
448 F. App'x 895, 897 (11th Cir. 2011) (same); United States v.
27Morel has not argued any law enforcement misconduct in this
action, such as law enforcement posting as an anonymous tipster,
or that the tipster’s access to the images violated the Fourth
Amendment.
17
Sawyer, 786 F. Supp. 2d 1352, 1355-56 (N.D. Ohio 2011) (same,
collecting cases).
Nor do Imgur’s terms of service in and of themselves, as
Morel argues, create an expectation of privacy in uploaded
images.28 Those terms state:
You can upload images anonymously and share them
online with only the people you choose to share them
with. If you make them publicly available, they may
be featured in the gallery. This means that if you
upload an image to share with your friend, only your
friend will be able to access it online. However, if
you share an image with Facebook, Twitter, Digg,
Reddit, etc., then it may end up in the gallery.29
As such, they appear to grant the user a measure of control over
when, how, and with whom to share the URLs of images hosted on
Imgur’s servers. Any expectation of privacy they may purport to
create is undermined on two fronts. First, they speak entirely
of sharing: a user can share the images publicly, via social
media, or with his or her friends alone. They do not, on their
face, appear to contemplate purely private storage. And even if
a user exercises some of that measure of control by choosing
with whom to share the URLs, once those URLS have been shared
with any third party, any potential expectation of privacy
evaporates because the user lacks control over what the third
party will do with them. See United States v. Lifshitz, 369
28 See Supplemental Mot. to Supp. (doc. no. 31) at 4-5.
29 Ex M at 2.
18
F.3d 173, 190 (2d Cir. 2004) (no “expectation of privacy in
transmissions over the Internet or e-mail that have already
arrived at the recipient”); In re United States,
665 F. Supp. 2d
1210, 1223 (D. Or. 2009) (analogizing received emails to private
documents left at one’s mother’s house). Second, Imgur’s terms
of service go on to explain:
[I]f you do anything illegal, in addition to any other
legal rights we may have, we will ban you[,] . . .
delete all of your images, report you to the
authorities if necessary, and prevent you from viewing
any images hosted on Imgur.com. We mean it.30
Such a warning intimates that Imgur, at least, contemplates its
own access to images placed on its servers, regardless of a
user’s consent to that access, in the event of, among other
things, illegal activity.
Absent any indication that Morel took any affirmative steps
to protect or prevent others from accessing images uploaded to
Imgur’s servers, and in light of evidence demonstrating that an
anonymous individual and NCMEC accessed the images that Morel
made available through Imgur, the court concludes that Morel has
failed to demonstrate a reasonable expectation of privacy in the
uploaded images, subjective or objective.
30 Hearing Ex. M.
19
2. IP address
Morel also suggests, and at the suppression hearing his
counsel argued, that Imgur also acted improperly in providing
NCMEC with the IP address from which he uploaded the images.31
Though he does not further develop this argument, the court
notes that myriad authorities affirm that “subscriber
information provided to an internet provider is not protected by
the Fourth Amendment’s privacy expectation.” United States v.
Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008) (collecting
cases). Such subscriber information includes, among other
things, a subscriber’s name, address, and IP address.
Id. at
1203-04. Similarly, though the ECPA bars ESPs from disclosing
information about a customer’s electronic communications to the
government without a court order, warrant, or the customer’s
consent, see
18 U.S.C. §§ 2702, 2703, Congress explicitly carved
out an exception to those privacy rules that permits ESPs to
divulge a customer’s records (such as his IP address) “to the
National Center for Missing and Exploited Children, in
connection with a report submitted thereto under section 2258A.”
18 U.S.C. § 2702(b)(6), (c)(5). As such, the court declines to
31See Second Supp. Mot. (doc. no. 33) at 5 (“Imgur then reported
the results of the search, most notably the IP address, to
NCMEC.”).
20
conclude that Morel had a privacy interest in the IP address
that Imgur submitted to NCMEC.
Having concluded that Morel has not carried his burden of
demonstrating that he had a reasonable expectation of privacy in
images uploaded to Imgur’s servers and his IP address, the court
need not reach the question of whether Imgur acted as a
“government agent” in reviewing Morel’s images and reporting
them to NCMEC. See Cameron, 699 F.3d at 637-38 (applying the
three-part test for “determining whether a private party has
acted as a government agent” such that the private party’s
search implicates the Fourth Amendment). Because even
“[o]fficial conduct that does not ‘compromise any legitimate
interest in privacy’ is not a search subject to the Fourth
Amendment,” Illinois v. Caballes,
543 U.S. 405, 409 (2005)
(quoting Jacobsen,
466 U.S. at 123), the court denies Morel’s
first motion to suppress.
B. Second motion to suppress
Morel next moves to suppress evidence of apparent child
pornography found on the computer recovered by the Derry Police
Department following his burglary complaint on the grounds that
(1) the April 16, 2014 warrant pursuant to which that computer
was searched was not supported by probable cause, and (2) the
Derry Police Department unduly delayed obtaining the warrant.
21
Finding neither of these arguments persuasive, the court denies
Morel’s second motion to dismiss.
1. Probable cause
The Fourth Amendment provides that “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.” U.S. Const.
amend. IV. “Probable cause for a warrant based on an affidavit
exists where information in the affidavit reveals a fair
probability that contraband or evidence of a crime will be found
in a particular place. Probability is the touchstone of this
inquiry.” United States v. Syphers, 426 F.3d 461, 464 (1st Cir.
2005) (internal quotations and citations omitted). “The
standard applied in determining the sufficiency of an affidavit
is a ‘totality of the circumstances' test.”
Id.,426 F.3d at
465 (quoting United States v. Garcia,
983 F.2d 1160, 1167 (1st
Cir. 1993)). “[P]robable cause to issue a warrant must be
assessed by a judicial officer, not an investigating agent.
This judicial determination is particularly important in child
pornography cases, where the existence of criminal conduct often
depends solely on the nature of the pictures.” United States v.
Brunette,
256 F.3d 14, 18 (1st Cir. 2001).
22
Morel argues that Det. Richard’s affidavit runs afoul of
the requirement that a judicial officer, not the investigating
agent, make the probable cause determination.32 In his affidavit
in support of the April 16 warrant, Det. Richard indicated that
he had reviewed the six images attached to the NCMEC
CyberTipline reports forwarded to him. He described those
images as depicting females who were naked, or naked from the
waist down, one of whom “appears to be under the age of 10,”
three of whom he “believed to be under the age of 10,” and four
of whom he “believed to be under the age of 13.”33 He also
described the apparently lascivious positions in which those
individuals were posed. He did not, however, attach the images
themselves to his affidavit.
Morel argues that this affidavit failed to provide probable
cause that the images satisfied the first element of the offense
of possessing child pornography -- that the images depict
minors, which are defined as “any person under the age of
eighteen years.”34 See 18 U.S.C. §§ 2252(a)(4)(B)(i), 2256(1).
“The best practice is for an applicant seeking a warrant based
32See Mem. in Support of Second Mot. to Supp. (doc. no. 51-1) at
3-4.
33 Second Mot. to Supp. Ex. 1 (doc. no. 51-2) at MOR00106-07.
34Morel does not challenge the sufficiency of Det. Richard’s
description of the sexual activity depicted in the images.
23
on images of alleged child pornography to append the images or
provide a sufficiently specific description of the images to
enable the magistrate judge to determine independently whether
they probably depict real children.” Syphers, 426 F.3d at 467;
United States v. LaFortune,
520 F.3d 50, 58 (1st Cir. 2008)
(confirming “the best practice dicta in Syphers . . . as a
holding essential to our decision here” and affirming probable
cause where officers attached images to affidavit). Det.
Richard did not attach the images to his affidavit. The
question, therefore, is whether his description of the
individuals depicted is “sufficiently specific” for the
reviewing magistrate to determine that the images depicted
minors.
The court in Syphers was presented with a similar question.
There, the affiant indicated that videos and/or photographs
depicted “female minors that appeared to be younger than 16
years old,” or “appear[ed] to be under the age of 18 years of
age.” Syphers, 426 F.3d at 464. The Court of Appeals noted
that “the application did not include the images seized
previously or provide any detailed description of the
physiological features of the persons depicted in those images
(i.e., by describing body proportion, growth and development),”
rendering the case “a tough call.”
Id. at 466. It did not
“decide under the totality of the circumstances whether probable
24
cause supported the . . . warrant” despite that omission,
however, finding that the good faith exception to the
exclusionary rule saved the warrant, which issued five months
before the Supreme Court, in Ashcroft v. Free Speech Coalition,
535 U.S. 234, 256 (2002), “held that the prohibition on child
pornography that only ‘appears to be[] of a minor’ engaging in
sexually explicit conduct was overbroad and violated the First
Amendment.” Syphers,
426 F.3d at 465, 467-68.
To be sure, Det. Richard’s failure to either (a) present
the images to the magistrate or (b) describe the physiological
characteristics that led him to conclude that the young girls
depicted were under ages ten and thirteen, respectively, make
this court’s evaluation of the warrant more difficult than it
would have been had he used the best practices as outlined by
Syphers and LaFortune. But this case does not present the same
“tough call” as Syphers. In his affidavit, the agent in Syphers
stated only that he believed that the individuals depicted were
under 18 or 16 years of age -- a recitation equivalent, or
almost equivalent, to the bare assertion, rejected in Free
Speech Coalition, that the individual “appears to be a minor.”
That affidavit, the Court of Appeals observed, lacked any
justification for that assertion. Syphers, 426 F.3d at 466.
The situation here is somewhat different because Det.
Richard described the individuals in the images as appearing to
25
be under 13 or 10 years of age -- ages that, unlike “under 18
years of age,” are not synonymous with the statutory definition
of a minor. At the hearing, Det. Richard confirmed what his
words themselves conveyed: that he described the individuals as
he did because they appeared, to him, to be prepubescent. His
experience, which he described in his affidavit and which
includes his training and participation in the Internet Crimes
Against Children Task Force and his 23 years with the Derry
Police Department, primarily in the juvenile division handling
sexual assault and molestation cases, supports the reliability
of his conclusion. See United States v. Getzel, 2002 DNH 170,
10-12 (citing, among other things, agent’s experience in finding
that affidavit describing images as depicting “minor” children
and “prepubescent” children supported by probable cause).
Describing children as “prepubescent” or “early pubescent”
can establish probable cause that the images in question depict
child pornography. Cf. United States v. Edwards, No. 12-CR-43-
JD, 2012 WL 4076169, at *1-2 (D.N.H. Sept. 12, 2012) (probable
cause existed where affidavit described images as depicting
“girls who appeared to [sic] underage, in that they appeared to
be prepubescent” and “young girls who had underdeveloped or no
breasts and no pubic hair, in explicit poses”); United States v.
Barker, No. 5:11-CR-73,
2012 WL 12543, at *6 (D. Vt. Jan. 3,
2012) (probable cause existed where affidavit described
26
purported minors as “prepubescent,” “early pubescent,” and
“early adolescent”). Such terms clearly need no elaboration
because they connote physical attributes (such as under- or non-
developed sex organs or breasts, lack of pubic hair, and
juvenile muscle development) consistent with an age well under
the age of majority. In the same way that describing those
depicted as “prepubescent” would not implicate the concerns
expressed in Syphers and LaFortune, neither would describing
them as “under 10” or “under 13.” Accordingly, while following
the “best practice” prescribed by the Court of Appeals would
have been preferable, the search warrant was supported by
sufficient evidence that the individuals depicted were minors.
2. Delay
“[A] seizure lawful at its inception can nevertheless
violate the Fourth Amendment because its manner of execution
unreasonably infringes possessory interests protected by the
Fourth Amendment's prohibition on ‘unreasonable seizures.’”
Jacobsen, 466 U.S. at 124. Thus, “even a seizure based on
probable cause is unconstitutional if police act with
unreasonable delay in securing a warrant.” United States v.
Martin,
157 F.3d 46, 54 (2d Cir. 1998).
Morel argues that “the length of the delay between the time
the police obtained the computer and the information in their
27
supporting affidavit until the time they actually applied for a
search warrant” requires exclusion of the evidence obtained
through that warrant, including the contents of the computer’s
hard drive.35 Det. Richard received the subpoena response from
Comcast associating the IP address in the NCMEC reports with
David Morel of Pingree Hill Road in Derry, New Hampshire, on
February 14, 2014. He did not seek a warrant to search Morel’s
computer until some two months later, on April 16. Morel argues
that this two-month delay “is presumptively too long and should
result in suppression of any evidence obtained with the
warrant.”36
Observing that an individual’s computer likely contains
items of a personal nature, such as photographs, emails,
financial information, etc., the Eleventh Circuit Court of
Appeals concluded “the detention of the [defendant’s] hard drive
for over three weeks before a warrant was sought constitute[d] a
significant interference with [his] possessory interest” in that
hard drive. United States v. Mitchell, 565 F.3d 1347, 1351
(11th Cir. 2009). That unjustified delay was unreasonable, the
court concluded, because the agent made no effort to obtain a
35See Mem. in Support of Second Mot. to Supp. (doc. no. 51-1)
at 4.
36
Id.
28
warrant during that period; and the unreasonable delay warranted
granting the defendant’s motion to suppress. Id. at 1353.
While Det. Richard could have been more diligent in
following up on the investigation,37 Morel’s reliance on Mitchell
is misplaced here because there is no evidence that the delay in
obtaining the April 16 warrant interfered with Morel’s
possessory interest in his computer. The computer was already
in the custody of the Derry Police as evidence of the burglary
reported by Morel when Det. Richard received the subpoena
response from Comcast on February 14.38 Morel visited the police
37He offered no explanation, for example, as to why he did not
contact David Morel Sr. to determine which David Morel may have
been associated with the Comcast account until March 18 and,
having obtained that information, waited yet another month
before obtaining the warrant. When pressed, he cited only
vacations and his case load as the probable reasons for the
delay -- reasons akin to those that the court in Mitchell found
unpersuasive. See id. at 1352 (finding that agent’s attendance
at a two-week training program provided no excuse for delay in
applying for warrant).
38Morel characterizes the computer as having been “seized
without a warrant during the burglary investigation . . . .”
Mem. in Support of Second Mot. to Suppress (doc. no. 51-1) at 4.
If this assertion is serious, it is insufficiently developed to
warrant analysis. See United States v. Zannino,
895 F.2d 1, 17
(1st Cir. 1990) (insufficiently developed arguments are waived).
Morel does not explain whether he had a legitimate expectation
of privacy in the location from which the stolen laptop was
recovered so as to have standing to challenge the lack of a
warrant to recover it. See United States v. Aguirre,
839 F.2d
854, 856 (1st Cir. 1988) (defendant without privacy expectation
in area searched lacks standing to challenge warrantless
search).
29
department to identify it as his after it was recovered, but
there is no evidence -- or even argument -- that he asked to
have it returned to him during that time, or even how long the
police planned to keep custody of it. To the contrary, he was
informed that the police department would hold it pending the
conclusion of its burglary investigation. Accordingly, the
court declines to find that unreasonable delay in securing the
warrant rendered the seizure and search of Morel’s laptop
unconstitutional.
Conclusion
Because Morel lacked a reasonable expectation of privacy in
images stored on Imgur’s servers and the application for the
warrant to search his computer, resulting from the discovery of
those images, established probable cause to believe that
evidence of a crime would be found on it, the court DENIED
Morel’s first and second motions to suppress the evidence found
there or Morel’s custodial statements.39
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: April 14, 2017
39 Document nos. 24, 31, 33, 35, and 51.
30
cc: Helen W. Fitzgibbon, AUSA
Shane Kelbley, AUSA
Philip H. Utter, Esq.
31
