Sexual Assault on a Child, Lime Wire and the Remote Computer Search

This post examines a very recent opinion from the Colorado Court of Appeals – Division VII: People v. Phipps, 2016 WL 7473811 (2016).  The court begins by explaining that

[b]ased on a plea agreement in which many other serious charges were dismissed, defendant, Randy Scott Phipps, pleaded guilty to sexual assault on a child. He was sentenced to an indeterminate prison term of seventeen years to life. Phipps then sought postconviction relief under Criminal Procedure 35(c), claiming ineffective assistance of counsel. The district court denied his motion without holding a hearing.

People v. Phipps, supra.

The Court of Appeals then noted that “Phipps asserts on appeal that the district court (1) was required to hold a hearing on his motion and (2) erred in rejecting his ineffective assistance of counsel claims.” People v. Phipps, supra. We will come back to that issue later.

The opinion goes on to explain how, and why, the prosecution arose and how, and why, Phipps was convicted.  People v. Phipps, supra. As the court explains,

[d]uring an investigation to detect child pornography shared over the Internet, the police remotely searched a computer onto which at least two files depicting child pornography had been downloaded. Using that computer's Internet Protocol (IP) address, the police determined that the computer was located in Phipps' home. The police obtained and executed a search warrant of Phipps' home.

Phipps was not home at the time of the search, but an officer spoke with him on the phone during the search and explained why his home was being searched. During that recorded phone call, Phipps admitted that he stored child pornography on his computer and that once the officer searched his computer, `his life was over.’ The police seized Phipps' computer, on which they found over thirty videos of children engaged in sexual acts.

One of these videos depicted Phipps' stepdaughter when she was approximately eight or nine years old. She was mostly nude, and the video showed Phipps instructing her to use sex toys as well as Phipps using sex toys on her. In her police interview, Phipps' stepdaughter identified herself and Phipps in the video and stated that Phipps had sexually assaulted her numerous times.

People v. Phipps, supra.

The court goes on to explain that

Phipps was charged with sexual assault on a child (position of trust –pattern of abuse) under sections 18-3-405.3(1), (2)(b), C.R.S. 2016; aggravated incest under section 18-6-302(1)(a), C.R.S. 2016; sexual exploitation of a child (inducement) under section 18-6-403(3)(a), C.R.S. 2016; and sexual exploitation of children (possession) under section 18-6-403(3)(b.5). The court found Phipps indigent and appointed counsel to represent him.

A plea agreement was negotiated and Phipps pleaded guilty to the sexual assault charge. In exchange, the district attorney dismissed the remaining charges and promised that the United States Attorney would not prosecute Phipps on child pornography charges.

At the sentencing hearing, Phipps took full responsibility for his crimes. He stated that he did not wish to put his family through a `horrific ordeal with a jury trial,’ and that his `remorse, regrets, shame, despair, sadness, and sorrow cannot be measured.’

People v. Phipps, supra.

On appeal, Phipps argued that his trial attorney was ineffective, among other reasons, because he “failed to challenge the legality of the initial, remote search of Phipps' computer, which violated his Fourth Amendment rights.” People v. Phipps, supra. That is the only argument he made on appeal that is examined in this post.

The Court of Appeals went on to explain that Phipps

argues that if not for the constitutionally deficient conduct of his counsel he would not have pleaded guilty to sexual assault on a child, and he contends that the district court erred in concluding otherwise without holding a hearing.

The United States and Colorado Constitutions guarantee a criminal defendant's right to receive reasonably effective assistance of counsel. U.S. Const. amends. VI, XIV;  Colo. Const. art. II, § 16; [Strickland v.Washington, 466 U.S. 668, 685-86 (1984)]; People v. Norman, 703 P.2d 1261, 1272 (Colo. 1985). To prevail on an ineffective assistance of counsel claim, the defendant must establish that (1) counsel's performance was constitutionally deficient and (2) the deficient performance resulted in prejudice to the defendant. Strickland, 466 U.S. at 687; Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003).

To satisfy the prejudice prong in the context of a guilty plea, the defendant must show that there is a reasonable probability that `but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ People v. Stovall, 2012 COA 7, ¶ 19 (citation omitted).

In determining whether counsel's performance was deficient, we evaluate the representation from counsel's perspective at the time of the representation, and we `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ Ardolino v. People, 69 P.3d 73, 76 (Colorado Supreme Court).

To prove deficient performance, the defendant must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Davis v. People, 871 P.2d 769, 772 (Colo. 1994) (citing Strickland, 466 U.S. at 689); People v. Lopez, 2015 COA 45, ¶ 59. With regard to trial strategy, defense counsel has final authority to make strategic or tactical decisions, including `what strategy should be employed in the defense of the case.’ Arko v. People, 183 P.3d 555, 558 (Colorado Supreme Court 2008) (quoting Steward v. People, 179 Colo. 31, 34, 498 P.2d 933, 934 (1972)).

People v. Phipps, supra.

The court then took up the issue Phipps raised in his that this post examines – the remote computer search. People v. Phipps, supra.  The court began its analysis of the issue by explaining that

We first address Phipps' argument that his counsel provided deficient representation when he failed to challenge the legality of the initial, remote search of his computer. The district court rejected this claim, concluding that there was no arguable basis to make such a challenge and that the challenge inevitably would have failed.

The police initially discovered child pornography on Phipps' computer by using LimeWire, which is a `peer-to-peer file sharing application that connects users who wish to share data files with one another.’ United States v. Stults, 575 F.3d 834, 842 (U.S. Court of Appeals for the 8th Circuit 2009) (quoting United States v. Lewis, 554 F.3d 208, 211 (U.S. Court of Appeals for the 1st Circuit 2009)).

The Eighth Circuit described the operation of LimeWire software as follows:

`When a user wants to download files from other users, he launches LimeWire and inputs a search term or terms. The application then seeks matches for those terms in the file names and descriptions of all files designated for sharing on all computers then running the LimeWire application. . . . LimeWire will then display a list of file names that match the search terms, and the user can select one or more of those to begin downloading the files.

Id. (citations and alteration omitted).’

People v. Phipps, supra.

The Court of Appeals went on to explain that the argument Phipps made with regard to the remote computer search was predicated on the Fourth Amendment to the U.S. Constitution. People v. Phipps, supra. As Wikipedia’s entry on the Fourth Amendment explains, the amendment

prohibits unreasonable searches and seizures. It requires governmental searches and seizures to be conducted only upon issuance of a warrant, judicially sanctioned by probable cause, supported by oath or affirmation, describing the place to be searched and the persons or things to be seized. 

Getting back to the Court of Appeals’ opinion, the court goes on to explain that

[w]hen the police conducted the initial Internet search of computers to uncover child pornography, they did not have a warrant to search any particular computer. Phipps contends that the initial discovery of child pornography files on his computer constituted a warrantless search that violated the Fourth Amendment.

A search violates the Fourth Amendment only when the defendant has a `legitimate expectation of privacy in the areas searched or the items seized.’ People v. Curtis, 959 P.2d 434, 437 (Colorado Supreme Court 1998) (citation omitted). No Colorado appellate court has addressed whether a person has a legitimate expectation of privacy in computer files accessed through peer-to-peer sharing software such as LimeWire. However, federal and other state courts have uniformly held that a person who installs and uses file sharing software does not have a reasonable expectation of privacy in those files. 

People v. Phipps, supra.

As Wikipedia’s entry on the Fourth Amendment explains, to constitute a Fourth Amendment “search,” the law enforcement activity has to violate someone’s “reasonable expectation of privacy” in the place or thing searched.  

The Court of Appeals goes on to explain that the

leading case is United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008). There, the court held that while, generally, an individual has a reasonable expectation of privacy in his or her personal computer, that expectation does not survive the installation and use of file sharing software, such as LimeWire, at least with respect to the files made available through the file sharing software. Id.; see also United States v. Borowy, 595 F.3d 1045 (9th Cir. 2010).

In [United States v. Stults], 575 F.3d 834, 843 (U.S. Court of Appeals for the 8^th Circuit 2009), the Eighth Circuit similarly held that the defendant did not have a `reasonable expectation of privacy in files that the FBI retrieved from his personal computer where [the defendant] admittedly installed and used LimeWire to make his files accessible to others for file sharing.’ The court analogized the defendant's actions to giving his house keys to all of his friends, and concluded that he `should not be surprised should some of them open the door without knocking.’ Id.

People v. Phipps, supra.

The court goes on to explain that

[o]ther federal and state courts have reached the same result. See United States v. Conner, 521 F. App'x 493, 498 (6th Cir. 2013) (computer user had no reasonable expectation of privacy in the contents of files that had been downloaded to a publicly accessible folder through file sharing software); United States v. Perrine, 518 F.3d 1196, 1205 (10th Cir. 2008) (same); State v. Welch, 340 P.3d 387, 391 (Ariz. Ct. App. 2014); State v. Aston, 125 So. 3d 1148, 1154 (La. Ct. App. 2013) (same); State v. Peppin, 347 P.3d 906, 911 (Wash. Ct. App. 2015) (same). Indeed, we have found no reported case that has held that a computer owner has a reasonable expectation of privacy in files that he or she makes available through software such as LimeWire.

People v. Phipps, supra.

The opinion goes on to explain that Phipps

argues that he nevertheless retained a reasonable expectation of privacy in his computer files because he was not aware that the files stored on his computer were publicly accessible through LimeWire, and that, therefore, he did not `knowingly or intelligently allow[ ] private files and information on his PC to be broadcast out to the network and web.’ The Ninth Circuit Court of Appeals rejected a similar argument in Borowy. In that case, the defendant had installed a feature which allowed him to prevent others from downloading or viewing his files, but that feature was not engaged when the police located the files. Borowy, 595 F.3d at 1047. The court concluded that because the files were `still entirely exposed to public view,’ 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.’ Id. at 1048. We agree with this analysis.

Consistent with these cases, we hold that Phipps did not have a reasonable expectation of privacy in the files that he made available for public viewing through LimeWire. Because Phipps did not have a reasonable expectation of privacy in those files, his counsel's failure to challenge the search on Fourth Amendment grounds, even if deficient, could not have constituted Strickland prejudice.

People v. Phipps, supra. This Wikipedia entry explains “Strickland prejudice.”

For these and other reasons, the Court of Appeals affirmed the “district court's order denying Phipps' motion for postconviction relief under Crim. P. 35(c)”.  People v. Phipps, supra.