After Levi Dunham “was charged by bill of information with
seventeen counts of pornography involving juveniles” in violation of Louisiana Revised Statutes § 14:81.1(a)(3), he entered a plea of not guilty and then filed
a motion to suppress evidence. State v. Dunham, __ So.3d __, 2012 WL
6643838 (Louisiana Court of Appeals – 1st Circuit 2013).
At the time Dunham was charged, § 14:81.1(a)(3) criminalized
the “The intentional possession, sale, distribution, or possession with intent
to sell or distribute of any photographs, films, videotapes, or other visual
reproductions of any sexual performance involving a child under the age of
seventeen.” The statute was revised by
legislation adopted in 2010. State v. Dunham, supra.
The judge denied the motion to suppress and the case went to
trial. State v. Dunham, supra. The
jury convicted Dunham of “eight counts of pornography involving juveniles” and the judge sentenced him to
“thirty months at hard labor without the benefit of probation, parole, or
suspension of sentence for each count, to be served concurrently.” State v. Dunham, supra. (I don't know what
constitutes “hard labor” in Louisiana; I did some research, but could not find
anything specific.)
Dunham appealed, arguing that “the use of technology
unavailable to the public to search his computer constituted an illegal,
warrantless search” which produced evidence that was used against him at trial. State
v. Dunham, supra. As Wikipedia explains, and as I have noted in
earlier posts, the 4th Amendment to the U.S. Constitution creates a
right to be free from “unreasonable” searches and seizures, and to be “reasonable” a “search” or “seizure” must either be conducted pursuant
to a valid search (and/or seizure) warrant or pursuant to an applicable
exception to the warrant requirement that the officers can rely upon.
We will come back to Dunham’s argument. To understand his argument, it is necessary
to understand how the charges against him came about:
Trooper Jared Sandifer with the
Louisiana State Police became involved in an investigation of [Dunham] on July
19, 2009, while using peer-to-peer file sharing software called `GNU Watch.’ .
. . [At the hearing on the motion to suppress,] Sandifer testified that GNU
Watch searches for internet protocol (`IP’) addresses that are sharing files
with a known secure hash algorithm (`SHA’) value, which he described as being
`like a thumbprint’ for a video or image.
He used GNU Watch to search LimeWire, a
peer-to-peer file sharing software system, for files with SHA values indicative
of child pornography. According to Sandifer, if such files were not in LimeWire
or another peer-to-peer file sharing software system, GNU Watch would not
detect them. He also opined that if the files were not in the LimeWire user's
`shared’ folder, GNU Watch would not detect them.
Through the information obtained by
GNU Watch, Sandifer saw that IP address 68.11.192.222 had files with SHA values
that were consistent with child pornography. Based on this information,
Sandifer had a court ordered subpoena issued to Cox Communications, Inc., and
determined that the IP address belonged to [Dunham’s] wife.
He obtained a search warrant, and he and a group
of other officers . . . executed the warrant at [Dunham’s] residence. Sandifer
found a laptop computer in the residence and seized it after [Dunham] stated
that it belonged to him. Sandifer conducted an examination of the files on the
computer and discovered that it contained images of child pornography.
State v. Dunham, supra.
After Sandifer found child pornography on the laptop, it was
taken to the
Louisiana State Police headquarters and
a forensic examination was conducted by Trooper Dwight Herson, an expert in the
field of forensic computer examination. Herson testified [at the hearing on the
motion to suppress] that he was provided with a list of files that Sandifer saw
on [Dunham’s] computer and was able to locate all of those files.
When asked whether a LimeWire user
would have access to the SHA value of a file on the program without the use of
special police software, he responded that programs are available to obtain the
SHA value of a file once the file has been transferred from LimeWire. According
to Herson, although it is not normal practice, a user could access the SHA
value of a file once the user has the file.
State v. Dunham,
supra.
On appeal, Dunham argued that “the Louisiana State Police's
use of the `Wyoming Tool Kit’ or GNU Watch software to search his personal
computer was an illegal, warrantless search because the software is not readily
available for public use.” State v. Dunham, supra. More precisely, he argued that
SHA values are not available to the
general public and special software was required to obtain the value and
compare it to other known files. He also argues that LimeWire shares parts of
files, rather than whole files, and that SHA values cannot be obtained from the
fragments available on LimeWire through publicly available software.
State v. Dunham,
supra. (The opinion does not say this, but it appears that in making this argument, Dunham was relying on the Supreme Court's decision in Kyllo v. U.S., 533 U.S. 27 (2001). As I explained in an earlier post, the Kyllo Court held that it is a 4th Amendment "search" for law enforcement officers to use "technology not in public usage" to obtain information from inside a home. It seems, then, that the Wyoming Tool Kit was technology "not in general public usage.")
The Court of Appeals began its analysis of Dunham’s argument
(and, by implication, the prosecution’s argument to the contrary) by noting
that when a
district court denies a motion
to suppress, factual and credibility determinations should not be reversed in
the absence of a clear abuse of the district court's discretion, i.e., unless
such ruling is not supported by the evidence. . . . However, a
district court's legal findings are subject to a de novo standard
of review. . . .
State v. Dunham,
supra.
The court also explained that when someone files a motion to
suppress, the burden of proof
is on the defendant to prove the ground of his motion. Louisiana Code of Criminal Procedure article 703. The defendant has the obligation of
designating the transcript of the hearing of the motion to suppress for the
record on appeal. See Louisiana Code of Criminal Procedure article 914.1. The transcript of that hearing is not in the record before us. However,
in determining whether the ruling on defendant's motion to suppress was
correct, we are not limited to the evidence adduced at the hearing on the
motion. We may consider all pertinent evidence given at the trial of the
case. . . .
State v. Dunham,
supra.
The court then explained that, as noted above, the 4th
Amendment protects U.S. citizens from “unreasonable” searches and
seizures. State v. Dunham, supra. It also noted that “[o]nly individuals who
actually enjoy the reasonable expectation of privacy have standing to challenge
the validity of a government search.” State v. Dunham, supra.
As Wikipedia explains, and as I have noted in earlier posts,
to constitute a “search” under the 4th Amendment, the conduct of law
enforcement officers must violate a person’s “reasonable expectation of
privacy” in a place or thing. As
Wikipedia also explains, and as I have noted in earlier posts, to have a “reasonable
expectation of privacy” under Katz v.
U.S., 389 U.S. 347 (1967), I must subjectively believe the place or
thing is “private” and society must accept my belief as objectively
reasonable. So it would not, for
example, be a “search” for a law enforcement officer to listen to my part of a
conversation I am conducting via my cell phone in a public place. A court would say that I may have thought it
was private, but society would reject my belief as unreasonable . . . since
anyone in the vicinity could have done what the officer did.
The Court of Appeals noted that the issues Dunham raised in
this case were recently addressed by another panel of Louisiana Court of
Appeals judges in State v. Daigle, 93
So.3d 657 (Louisiana Court of Appeals – 3d Circuit 2012). State
v. Dunham, supra.
In Daigle, Louisiana State
Police detectives conducted an investigation using the Wyoming Tool Kit and
discovered [Daigle’s] IP address was seen with SHA values consistent with child
pornography. At trial, the detectives explained that the Wyoming Tool Kit was
designed by the Wyoming Department of Justice and ran on the Gnutella network.
According to the detectives, software
such as LimeWire and BearShare also ran on the Gnutella network. The Wyoming
Tool Kit identified IP addresses that had SHA values matching images previously
identified as child pornography. . . . The detectives used GNU Watch in
addition to the Wyoming Tool Kit, and testified that both programs only ran on
the Gnutella network. . . .
Citing several recent federal court
decisions, the court found that in applying for a search warrant, the detective
did not violate any reasonable expectation of privacy on [Daigle’s] part by
using software available only to law enforcement to identify [his] IP address
as having SHA values that might be associated with images of child
pornography.
State v. Dunham,
supra.
This 1st Circuit panel of the Court of Appeals agreed
with the Daigle court and found Sandifer
did not violate [Dunham’s] right
to privacy by using GNU Watch to examine the SHA values for files [he] had
already elected to freely share with other LimeWire users. Moreover, [Dunham]
offered no evidence at trial in support of his assertion that publicly
available programs are unable to obtain the SHA values of files on LimeWire,
and the record does not support that argument. Therefore, [his] arguments
related to the alleged violation of his right of privacy are without merit.
State v. Dunham,
supra.
It also declined to address Dunham’s claim there were “misrepresentations
in the search warrant regarding the technology used in obtaining evidence in
support of the warrant and whether that technology was publicly available, such
that the evidence used against him should have been suppressed.” State v. Dunham, supra. Since Dunham had
the burden to prove that the warrant was invalid but did not include the search warrant application and transcript of the trial court’s hearing on the motion
to suppress included in the record submitted to the Court of Appeals, the court
found that he failed to prove there were any defects in the warrant application
that caused the warrant to issue without probable cause. State
v. Dunham, supra.
(It also noted that in Sandifer’s testimony at trial, which
was included in the record before the Court of Appeals, he “asserts that there
are programs available to the public that can be downloaded to view the
information that he was able to view using the special software.” State
v. Dunham, supra.)
The court therefore affirmed Dunham’s conviction and
sentence. State v. Dunham, supra. If you are interested, you can read a
little more about the case and find a photo of Dunham in the news story you can
find here.
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