Facts: Police used E-Phex to browse IP addresses in the local area and viewed what files those computers had available in the shared folders (via a P2P program). Defendant’s IP Address was identified, and one image of suspected CP was available for download. Police subpoenaed the Internet Service Provider for the subscriber information. This information lead to a particular address, where Defendant resided (although Defendant was not the actual subscriber). Continued surveillance revealed that IP address had 13 additional suspected CP files available for download. Several were actually downloaded and confirmed as CP. A search warrant was applied for, granted, and executed. At the time of the execution, police seized several devices, including Defendant’s laptop which was actively running a file shredding program (Police immediately took out the battery to stop the program). Defendant admitted twice (at the scene and the station) to downloading CP and then immediately deleting them (usually via file shredder) since age 14 (he was now 20).
Before Trial: Defendant filed a motion to suppress based on faulty search warrant, by arguing that because Police identified the suspected CP images by SHA1 hash values, they were not reliable. He also argued that the affidavit for the search warrant was misleading because the police failed to mention whether the IP address was static or dynamic (dynamic meaning it can change). Defendant lost both issues. The hash value argument failed because the police actually viewed 4 images so it was irrelevant. The IP Address argument failed because Defendant’s P2P software also assigned a GUID. Neither the IP Address nor the GUID ever changed during the investigation. Defendant was found guilty of the charge.
Attack on the Search Warrant: Appellant revives his claim that the affidavit supporting the search warrant was misleading because it did not indicate whether the IP Address was static or dynamic. Because dynamic addresses can change, failure to include this tainted the PC determination.
Standard of Review: Findings of Fact are reviewed for clear error, and conclusions of law are reviewed de novo.
A search warrant may be invalidated if Appellant can prove that the police, intentionally, knowingly, or with reckless disregard for the truth included false or misleading information. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674 (1978). The Franks rationale has been extended to omission of material information. Using the same rationale as the trial court (that neither the GUID nor the IP Address ever changed during the period of surveillance), Appellant failed to meet his burden.
Attack on Sufficiency of the Evidence: Defendant argues that the Government could not meet its burden of proving that he “knowingly possessed” the images, because it couldn’t prove that Defendant had access to the images. (essentially arguing the constructive possession theory). The Police testified that using FTK, 88 images of suspected CP were found. 10 of those images were available for Defendant to access them (although they had attempted to be deleted, and were somehow moved to another folder). The remaining images were deleted and an ordinary user could not retrieve them (they had not yet been overwritten though).
Standard of Review: A conviction at bench trial will be upheld if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support that conviction.
Law and Analysis: “Constructive possession, however, may be proved by mere ownership, dominion, or control over contraband itself, coupled with the intent to exercise control over the same.” Using Black’s Law Dictionary.
Appellant argues that Nebraska law (unlike Federal law) only criminalizes possession of CP not viewing. More, Appellant argues that based on his history he only did the former (search, download, view, delete, shred).
The court reasoned that Appellant downloaded these images using a P2P client and that act saved the files (for some period of time) on Appellant’s hard drive. More, Appellant obviously knew where they were located, because he found them, deleted them, and attempted to shred them. Borrowing from the Michigan Supreme Court, this court held “[a]s the Michigan Supreme Court observed, ‘a defendant cannot intentionally procure and subsequently dispose of a depiction of child sexually abusive material without having either actual or constructive possession.’” Flick, 487 Mich. at 17, 790 N.W.2d at 304.
Practitioner Notes: Search Warrants continue to be attacked on appeal, good practice is to continually review officers’ affidavits and ensure they include all relevant information. While the static v. dynamic IP Address was immaterial in this case because police had the benefit of the GUID; not all P2P clients have a GUID.