Wednesday, February 19, 2014

The Alford Plea, Shareaza and Privacy

Marvin T. Rideout III entered Alford pleas to “twenty counts of possession of child pornography in violation of [Virginia] Code § 18.2–374.1:1(A)”, reserving his right to appeal the trial judge’s denial of his motion to suppress certain evidence.  Rideout v. Commonwealth, 2014 WL 392743 (Virginia Court of Appeals 2014).  He entered the plea pursuant to Virginia Code § 19.2-254, which lets a defendant plead guilty and reserve the right to appeal “an adverse determination of any specified pretrial motion.” 

For more on the case, check out this news story.

As Wikipedia explains, an Alford plea

in United States law is a guilty plea in criminal court, whereby a defendant in a criminal case does not admit the criminal act and asserts innocence. In entering an Alford plea, the defendant admits that the evidence the prosecution has would be likely to persuade a judge or jury to find the defendant guilty beyond a reasonable doubt [but continues to maintain innocence].

The Court of Appeals began by outlining how the prosecution arose:

Sergeant Stephen Anders of the Bedford County Sheriff's Office (assigned to the Southern Virginia Internet Crimes Against Children Task Force) conducted an authorized, remote undercover investigation into the online sexual exploitation of children on the internet. On August 29, 2011, a certain internet protocol (IP) address of caught his attention. Anders suspected this IP address was involved in the collection and sharing of child pornography.

On September 1, 2011, through a program called `Shareaza LE,’  Anders was able to connect to, and begin downloading, a known file of child pornography from IP address of On September 2, 2011, and on September 4, 2011, Anders again was able to connect to the IP address of and begin to download child pornography files.

Anders also obtained and submitted an administrative subpoena to Cox Communications, the owner of the IP address at issue. In response to that administrative subpoena, Cox Communications informed Sergeant Anders that the IP address had been issued to Marvin Rideout of New Kent, Virginia.

On December 15, 2011, after verifying that `Marvin Rideout’ was, in fact, the suspect detected by Anders, Detective J. McLaughlin, III, of the New Kent County Sheriff's Office, obtained a search warrant for [Rideout’s] residence. McLaughlin executed the search warrant at [his] residence on the following morning. When McLaughlin explained to [Rideout] why he was there, [he] put his head down and said, `I have been waiting for y'all to come.’ Anders then analyzed various electronic items seized from [Rideout’s] home, finding many images and movies depicting child pornography.

Rideout v. Commonwealth, supra.

That brings us to Rideout’s pretrial motion to suppress evidence.  He moved to suppress

the three files of child pornography giving rise to the search warrant (i.e., the files Anders was able to access on September 1, 2, and 4 of 2011), as well as all of the files found as a result of execution of the search warrant.

At the suppression hearing, [Rideout] testified he had downloaded a software program called `Shareaza’ somewhere between two and three years prior to the suppression hearing. Shareaza is, according to [Rideout’s] expert Eric Myer, designed to facilitate the sharing of files -- 1it wants to share.’ As Anders also explained, with respect to peer-to-peer sharing programs like Shareaza, `the whole purpose is for everybody to share.’

[Rideout] had previously used a peer-to-peer file sharing program called Limewire for several years prior to downloading Shareaza, so he had several years of experience with peer-to-peer software. [He] explained that, when he initially downloaded the Shareaza software, he had applied settings that he thought would prevent others from being able to access files on his computer.

According to the theory advanced by [Rideout] at the suppression hearing, despite selecting settings on Shareaza to prevent sharing, . . . when [he] changed the location of the downloads from the default destination, he inadvertently activated the sharing of that folder without receiving any notification that he was actually sharing files.

Thus, [Rideout] claimed at the suppression hearing that he had been using the Shareaza software under the mistaken impression that he had set up Shareaza in a way that would prevent other users from gaining access to any files on his computer.

Rideout v. Commonwealth, supra.

At the time of the hearing on the motion to suppress, Rideout and the prosecution

stipulated to certain facts, including: (1) that any efforts [Rideout] made to block access to his computer were ineffective when Anders was able to obtain the three child pornography files from [his] computer, and (2) that law enforcement `did not “hack” or otherwise use nefarious means’ to gain access to [Rideout’s] computer, but did so only through a modified version of Shareaza (that was designed to prevent the police from sharing child pornography with others). 

Rideout v. Commonwealth, supra.

Rideout argued that despite his use of Shareaza, he had a 4th Amendment expectation of privacy in “the contents of his personal computer, including the files depicting child pornography, because he contended that he had applied settings to Shareaza that he thought would prevent others from accessing those files on his own computer.”  Rideout v. Commonwealth, supra.  

As Wikipedia explains, and as I have noted in prior posts, the 4th Amendment’s prohibition on “unreasonable” searches applies when law enforcement officers intrude into an area in which someone has a “reasonable expectation of privacy.” Rideout was claiming he had such an expectation of privacy in his computer, which would mean Anders’ accessing his computer and downloading files was a “search” that violated the 4th Amendment because it was not justified either by a search warrant or an exception to the warrant requirement.  For more on that, check out Wikipedia on the 4thAmendment.

The Court of Appeals took up Rideout’s argument, noting, first, that to have a reasonable expectation of privacy in a place or thing, (i) the person must subjectively believe it is private and (ii) society must accept that expectation as objectively reasonable.  Rideout v. Commonwealth, supra.  For more on that, check out this prior post.

The court noted that

[e]ven though [Rideout] testified that he was under the impression that he had disabled the sharing feature on Shareaza, the record establishes that [he] actually said to McLaughlin, `I have been waiting for y'all to come.’ Viewing the evidence in the light most favorable to the Commonwealth, as we must since it prevailed below, this statement in itself strongly suggests that [he] knew or at least suspected that files from his computer were able to be shared.

Indeed, a rational trier of fact assessing the testimony at the suppression hearing could infer from this statement that [Rideout] was aware he was not the only individual with access to those files due to his installation of the Shareaza program. Certainly, the trial court was not obligated to believe [his] self-serving testimony that he believed he had safeguarded his files containing child pornography from being shared on Shareaza --which, of course, is peer-to-peer software actually designed for the sharing of files over the internet. . . .

Rideout v. Commonwealth, supra (emphasis in the original).

The Court of Appeals explained that the trial court judge

expressly found [Rideout] lacked a reasonable expectation of privacy `when he installed a software program on his computer which has the primary purpose to share information among other computer users.’ We, like the trial court, find several federal appellate court decisions to be applicable and instructive on this point.

‘”Although as a general matter an individual has an objectively reasonable expectation of privacy in his personal computer, we fail to see how this expectation can survive [appellant's] decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program.”’ U.S. v. Stults, 575 F.3d 834 (U.S. Court of Appeals for the 8th Circuit 2009) (quoting U.S. v. Ganoe, 538 F.3d 1117 (U.S. Court of Appeals for the 9th Circuit 2008)).

Thus, by simply installing file-sharing software onto his computer, [Rideout] has “’failed to demonstrate an expectation of privacy that society is prepared to accept as reasonable.”’ U.S. v. Stults, supra. [His] installation of Shareaza presents a situation that is analogous to a person who hands over the keys to his house to a number of friends. That person should not be surprised when some of those friends simply come inside his house without knocking on the door. U.S. v. Stults, supra.

Rideout v. Commonwealth, supra.

The court also noted that Rideout

contends . . . that his claimed attempt to apply settings to Shareaza to prevent others from accessing his files depicting child pornography creates an objectively reasonable expectation of privacy in those computer files. However, the decision in U.S. v. Borowy, 595 F.3d 1045 (U.S. Court of Appeals for the 9th Circuit 2010), is highly persuasive on the facts here.

In Borowy, the defendant claimed he had attempted to engage the feature in his version of peer-to-peer file-sharing software that would prevent others from downloading and viewing his files. However, that feature was not actually engaged, and an FBI agent was able to access incriminating files from the defendant's computer.  U.S. v. Borowy, supra.

Concluding that the defendant's `subjective intention not to share his files did not create an objectively reasonable expectation of privacy in the face of such widespread public access,’ the appellate court affirmed the lower court's decision to deny the defendant's motion to suppress. U.S. v. Borowy, supra.

Applying the logic in Borowy to this case, therefore, even assuming without deciding that [Rideout] actually had the subjective intention to prevent others from accessing his files, [he] still did not have an objectively reasonable expectation of privacy in those files, given his decision to install the Shareaza file-sharing program on his computer.

Indeed, [Rideout] installed software on his computer that is specifically designed to share files from one's own computer with other users of that software. By installing the Shareaza peer-to-peer file sharing software on his computer, [he] assumed the risk that other users of Shareaza -- including the police -- could readily access those incriminating files that could be shared through Shareaza.

Rideout v. Commonwealth, supra.

The Court of Appeals therefore held that

[v]iewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party below, the circumstances here do not establish a reasonable expectation of privacy by [Rideout] in the contents of the incriminating files that [he] actually shared via the Shareaza software -- and certainly do not require exclusion of the child pornography seized from [Rideout’s] computer.

The trial court did not err in denying [his] motion to suppress that evidence, and, accordingly, we affirm [his] twenty convictions for possession of child pornography.

Rideout v. Commonwealth, supra.

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