Fifth Circuit: IP Address Accessed by Cell Phone to Upload Child Pornography Covered by Third-Party Doctrine

Recently, the Fifth Circuit held that IP information from an internet provider connected to cell phone use falls within the third-party doctrine post-Carpenter, and that a search warrant of the residence connected with the IP information was supported by probable cause.

In April 2016, an undercover Homeland Security Investigations agent saw that user “alex2smith13” uploaded child pornography to a group chat on a mobile messaging application, Kik.

The Northern District of Florida issued a grand jury subpoena to Kik, and Kik turned over records and a Frontier Communications IP address in which “alex2smith13” accessed Kik. The Northern District of Florida then issued a grand jury subpoena to Frontier. Frontier responded that the IP address belonged to Saul Contreras, father of Sebastian Contreras (Contreras), at a residence in Brownwood, TX.

In March 2017, Agent Sean Dunagan applied for and was issued a search warrant for the Brownwood, TX residence. Dunagan’s affidavit in support of the warrant recounted the facts of the investigation and provided that based in part on his experience, training, and background, a cell phone can be used in tandem with a computer to transfer child pornography files and people who view child pornography typically store materials in the privacy of their homes. On April 4, 2017, Federal agents executed the warrant and seized Contreras’s personal computer and external hard drive.

A two-count indictment charged Contreras with transportation of child pornography, and a seven-count indictment charged him with receipt and transportation of child pornography. Contreras moved to suppress the evidence seized in the search. The district court held an evidentiary hearing and denied the motion. Thereafter, the district court sentenced Contreras to 168 months of imprisonment on each count, to run concurrently, and a ten-year term of supervised release.

Contreras appealed the district court’s decision to the U.S. Court of Appeals for the Fifth Circuit. Contreras argued that the evidence from the April 2017 search should be suppressed because the government violated his reasonable expectation of privacy in the family address when it obtained Frontier’s records without a warrant, and Dunagan’s affidavit failed to establish probable cause for the search warrant.

The court of appeals first addressed whether Contreras had a reasonable expectation of privacy in the family address as contained in Frontier’s records. As recently noted in Carpenter v. United States, 138 S. Ct. 2206 (2018), a person has no legitimate expectation of privacy in information voluntarily turned over to third parties. The third party is limited, and in Carpenter, the Supreme Court declined to extend the rule to cell-site records that convey “a detailed and comprehensive record of [a] person’s movements.” Still, the third-party doctrine applies to business records that incidentally reveal location information. 

Here, the court of appeals determined that the information here falls within the third-party doctrine. Frontier’s records revealed that the IP address was associated with the Brownwood, TX residence. Unlike Carpenter, the records did not have a bearing on Contreras’s day-to-day movement. As such, the court of appeals found that Contreras lacked a reasonable expectation of privacy in that information.

The court of appeals next looked at Contreras’s contention that suppression is appropriate because the search warrant was issued without probable cause. The court of appeals found that the good faith exception applied here. The good faith exception provides that “evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant” typically should not be excluded. However, where the good faith exception alone would be dispositive, the court of appeals reviews the district court’s probable cause determination for a “novel question of law.”

Contreras contended that his appeal raised novel questions of law concerning probable cause in the digital era. Contreras argued that uploading two images of child pornography over the course of a few days from a cell phone connected to a residential WiFi does not establish probable cause because the images could have been uploaded by another person or guest. The court stated that there was “at least a fair probability” that “alex2smith13” actually lived in the Brownwood, TX home, and found this to be enough to justify probable cause.

Contreras also argued that the information in the affidavit was stale because the agent observed the Kik uploads in April 2016, and did not seek a warrant until March 2017. The court noted that probable cause must exist at the time the warrant issues. However, it relied on Dunagan’s affidavit that evidence in child pornography cases may be kept for years.  Thus, the year-long interval between the Kik posts and the government’s application for a search warrant did not render reliance on the search warrant objectively unreasonable.

Lastly, Contreras argued that because Kik is a messaging application for cell phones, there was no probable cause to search for and seize computers. The court of appeals disagreed, finding Contreras’s argument unpersuasive. The court again referred to Dunagan’s affidavit that cell phones can be used in conjunction with computers to transfer child pornography images.

As such, the Fifth Circuit affirmed the district court’s decision.

Read the full case: United States v. Contreras

This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update


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