United States v. Hood , 920 F.3d 87 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1407
UNITED STATES OF AMERICA,
Appellee,
v.
RUSTY HOOD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Barron, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
J. Hilary Billings, Assistant Federal Defender, for
appellant.
Benjamin M. Block, Assistant U.S. Attorney, with whom Halsey
B. Frank, United States Attorney, was on brief, for appellee.
April 3, 2019

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
BARRON, Circuit Judge. Rusty Hood ("Hood") entered a
conditional guilty plea in the District of Maine to transporting
child pornography in violation of 18 U.S.C. § 2252A(a)(1). He now
challenges his conviction and a condition of his supervised
release. We affirm.
I.
On January 5, 2017, the Portland, Maine office of
Homeland Security Investigations ("HSI") of the United States
Department of Homeland Security received a call from the Cleveland,
Ohio HSI office regarding an investigation into the transmission
of child pornography via the smartphone messaging application Kik.
According to the information gathered by the Cleveland office, an
individual bearing the Kik username "rustyhood" had communicated
with a Cleveland resident, Brian Keeling, regarding the exchange
of child pornography and the sexual abuse of young children. The
"rustyhood" Kik profile photograph was of a man holding a baby and
wearing a sticker that indicated that he was a visitor at the Maine
Medical Center.
The conversation log between the two men showed that, on
May 16, 2016, "rustyhood" either sent or received what amounted to
thirteen pornographic images of young children and bragged
explicitly about his past sexual abuse of a neighbor's young
daughter. The investigation also revealed that between May 15,
2016 and July 4, 2016, "rustyhood" had posted a total of six
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pornographic images of children to a larger group chat as well as
two links to files containing a total of fifty-eight photographs
and eighteen videos of child pornography.
In response to this information, Portland HSI Agent
David Fife ("Fife") issued an Emergency Disclosure Request ("EDR")
-- a procedure authorized by the Stored Communications Act, 18
U.S.C. § 2702 -- to Kik requesting subscriber information and
recent IP addresses associated with the "rustyhood" account. Kik
responded that same day and provided Fife the date that the account
was registered, the email address used to register the account,
and the make and model of the device most recently used to access
the account. Additionally, Kik provided Fife the most recent IP
logs associated with the account, which indicated that someone had
accessed the account from three separate IP addresses between
December 7 and December 11 of 2016.
Based on the information acquired from Kik, Fife was
able to determine independently that the three IP addresses
belonged to the digital communications providers Metrocast Cable
("Metrocast") and Fairpoint Communications ("Fairpoint").
Utilizing an administrative summons procedure authorized by 18
U.S.C. § 2703, Fife requested from both companies the location
information associated with those IP addresses. Metrocast and
Fairpoint responded with information indicating that one of the IP
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addresses was assigned to the Oakwood Inn in Sanford, Maine, while
the other two addresses were linked to a residence there.
Through additional independent database searches that
Fife undertook, he determined that there was only one individual
in Maine with the name "Rusty Hood." This information led Fife to
Hood's Facebook profile. The profile displayed an image that
matched the image of the photograph attached to the "rustyhood"
Kik account, included a link directing users to "chat with [him]
on Kik" using the "rustyhood" username, and indicated that Hood
lived in Sanford, Maine. Further investigation revealed that the
Sanford Police Department had recently arrested a "Rusty Hood" and
that his booking photograph matched the man depicted in both the
Facebook and Kik profiles. Sanford Police also provided
information indicating that Hood had been a guest in the Oakwood
Inn at the same time the hotel's IP address was used to access
Hood's Kik account.
Based on this information, on January 19, 2017, the
government filed a criminal complaint that charged Hood with
transporting child pornography in violation of 18 U.S.C.
§ 2252A(a)(1) and arrested Hood the next day. Hood was then
indicted on March 1, 2017, for violations of both 18 U.S.C. §
2252A(a)(1) (transporting child pornography) and 18 U.S.C.
§ 2252A(a)(2) (receiving child pornography).
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After his arrest, Hood filed a motion to suppress the
evidence gathered from Kik, Metrocast, and Fairpoint pursuant to
the EDR and the administrative summonses "as well as all evidence
secured directly or indirectly as fruit of the evidence secured
from the named entities." The motion did so on the ground that
the government had violated the Fourth Amendment to the United
States Constitution by acquiring the information at issue from
these companies without a warrant. In response, the government
invoked what is known as the third-party doctrine to argue that it
was not required to obtain a warrant. The government explained
that the third-party doctrine controlled here because the
information that had been acquired from Kik, Metrocast, and
Fairpoint, respectively, had been voluntarily disclosed to those
companies, and thus any "fruit" from the acquisition of that
information was not tainted. The District Court agreed with the
government and rejected Hood's motion to suppress.
On January 29, 2018, Hood entered a conditional plea of
guilty to the charge of transporting child pornography and reserved
his right to appeal the District Court's denial of his motion to
suppress. The judgment reflecting that guilty plea noted that the
government had dismissed the second count of the indictment, which
was for receipt of child pornography in violation of 18 U.S.C. §
2252A(a)(2).
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Prior to sentencing, the United States Probation Office
prepared a presentence report ("PSR") that recommended, in part,
that Hood submit to periodic polygraph tests as a condition of his
supervised release. Hood objected to this condition, arguing that
the testing requirement violated his right against self-
incrimination under the Fifth Amendment to the United States
Constitution. The District Court disagreed, and, on April 26,
2018, sentenced Hood to 60 months' imprisonment followed by 10
years of supervised release, during which Hood would be subject to
periodic polygraph testing.
On May 2, 2018, Hood filed a timely notice of appeal, in
which he challenged the District Court's denial of his motion to
suppress and thus his conviction, as well as the District Court's
decision to impose periodic polygraph testing as a special
condition of his supervised release. We turn now to those
challenges.
II.
Hood moved to suppress "all evidence of any kind secured
without a warrant" from Kik, Metrocast, and Fairpoint, including
"his name, his email address, and the IP addresses," as well as
"additional personal information," that Hood believed the
companies also disclosed. On appeal, however, Hood appears to
limit his challenge only to the District Court's conclusion that
the government did not violate the Fourth Amendment in obtaining
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from the companies and then reviewing the "specific IP addresses"
associated with his Kik account, as well as the "specific dates
and times associated with each instance of internet access
accomplished from those IP addresses." We thus focus solely on
that contention,1 reviewing the District Court's factual findings
for clear error and its legal conclusions de novo in considering
Hood's challenge to the denial of his motion to suppress. See
United States v. Scott, 566 F.3d 242, 245 (1st Cir. 2009).
The Fourth Amendment generally requires that the
government obtain a warrant based on probable cause before
conducting a search. See Katz v. United States, 389 U.S. 347, 362
(1967) (Harlan, J., concurring) ("[U]nder the Fourth Amendment,
warrants are the general rule."). For an "intrusion into [the]
private sphere" to constitute a "search," a defendant must "seek[]
to preserve something as private," and "society [must be] prepared
to recognize [that privacy expectation] as reasonable." Carpenter
v. United States, 138 S. Ct. 2206, 2213 (2018) (quoting Smith v.
Maryland, 442 U.S. 735, 740 (1979)).
1We note that Hood makes no argument that, insofar as the
District Court correctly found that the government did not violate
the Fourth Amendment in acquiring the information from Kik, it
still erred in finding that the government did not violate the
Fourth Amendment in acquiring any of the other information that he
sought to suppress below. We thus treat any such argument as
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
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The government argues that the District Court correctly
ruled that Hood lacked the requisite reasonable expectation of
privacy in the information acquired from Kik under the so-called
third-party doctrine. See Smith, 442 U.S. at 743-44 (noting that
the Supreme Court has "consistently . . . held that a person has
no legitimate expectation of privacy in information he voluntarily
turns over to third parties") Pursuant to that doctrine, the
Supreme Court has separately held that the government need not
obtain a warrant to obtain recordings of voluntary conversations
surreptitiously captured via radio transmitter, see United States
v. White, 401 U.S. 745, 752-53 (1971), records from banks, see
United States v. Miller, 425 U.S. 435, 444 (1976), and certain
phone call data from pen registers, see Smith, 442 U.S. at 745-
46, because the information at issue in each instance had been
voluntarily disclosed by the defendant to a third party, see id.
at 743-44.
Hood does not dispute that he voluntarily disclosed the
information to Kik that he now seeks to suppress. He contends,
however, that the Supreme Court's recent decision in Carpenter
shows that the third-party doctrine does not apply to the
information at issue here and thus that the government needed a
warrant to acquire that information.
In Carpenter, the defendant challenged on Fourth
Amendment grounds the government's warrantless acquisition --
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pursuant to 18 U.S.C. § 2703 -- of his cell-site location
information ("CSLI") from his wireless telecommunications carrier
that had been sent to cell towers by his cell phone and stored by
that carrier. 138 S. Ct. at 2211-12. The CSLI data acquired in
Carpenter depicted the defendant's movements across nearly 13,000
specific location points during a 127-day span. Id. at 2212.
The government, in response, invoked the third-party
doctrine to justify its warrantless acquisition of the CSLI from
the carrier. Id. at 2219. The Supreme Court held, however, that
the government's acquisition of the CSLI from the carrier
constituted a search, for which the government needed a warrant,
because Carpenter retained a reasonable expectation of privacy in
the CSLI at issue even though he had shared it with his wireless
carrier. Id. at 2217-20.
Carpenter explained that, given the location information
that CSLI conveyed and the fact that a cell phone user transmits
it simply by possessing the cell phone, if the government could
access the CSLI that it had acquired without a warrant in that
case, then the result would be that "[o]nly the few without cell
phones could escape" what would amount to "tireless and absolute
surveillance." Id. at 2218. Carpenter thus declined to extend
the third-party doctrine to the CSLI at issue in that case and
instead determined that Carpenter did have a reasonable
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expectation of privacy in the CSLI that he sought to suppress.
Id. at 2219-20.
Hood contends that the IP address data that the
government acquired from Kik without a warrant -- which concerned
Hood's internet activity only on Kik and only over a four-day span
-- is not materially different from the CSLI that was at issue in
Carpenter. He notes in this regard that this information enabled
Fife to determine Hood's precise location when he logged on to
Kik, as well as the date and time of those digital transmissions.
For that reason, he contends, Carpenter establishes that the
government needed a warrant to acquire the information from Kik
that he seeks to suppress, because "[t]he notion that anytime one
accesses the internet from their cell phone, they are effectively
providing the police a specific record of their whereabouts, is in
direct contrast to society’s expectations."
But, an internet user generates the IP address data that
the government acquired from Kik in this case only by making the
affirmative decision to access a website or application. By
contrast, as the Supreme Court noted in Carpenter, every time a
cell phone receives a call, text message, or email, the cell phone
pings CSLI to the nearest cell site tower without the cell phone
user lifting a finger. See id. at 2220. In fact, those pings are
recorded every time a cell phone application updates of its own
accord, possibly to refresh a news feed or generate new weather
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data, id., such that even a cell phone sitting untouched in a
suspect's pocket is continually chronicling that user's movements
throughout the day.
Moreover, the IP address data that the government
acquired from Kik does not itself convey any location information.
The IP address data is merely a string of numbers associated with
a device that had, at one time, accessed a wireless network. By
contrast, CSLI itself reveals -- without any independent
investigation -- the (at least approximate) location of the cell
phone user who generates that data simply by possessing the phone.
Id. at 2211-12.
Thus, the government's warrantless acquisition from Kik
of the IP address data at issue here in no way gives rise to the
unusual concern that the Supreme Court identified in Carpenter
that, if the third-party doctrine were applied to the acquisition
of months of Carpenter's CSLI, "[o]nly the few without cell phones
could escape . . . tireless and absolute surveillance." Id. at
2218. Accordingly, we conclude that Hood did not have a reasonable
expectation of privacy in the information that the government
acquired from Kik without a warrant. This conclusion, moreover,
is in accord not only with the rulings of all the circuits that
had addressed this issue before Carpenter had been decided, see
United States v. Caira, 833 F.3d 803, 806-08 (7th Cir. 2016);
United States v. Wheelock, 772 F.3d 825, 828-29 (8th Cir. 2014);
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United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010); United
States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010); United States
v. Perrine, 518 F.3d 1196, 1205 (10th Cir. 2008); United States v.
Forrester, 512 F.3d 500, 510-11 (9th Cir. 2008), but also with the
ruling of the one circuit that has done so in the wake of Carpenter,
see United States v. Contreras, 905 F.3d 853, 857 (5th Cir. 2018).2
III.
We next address Hood's argument regarding the District
Court's inclusion of periodic polygraph testing as a special
condition of his supervised release. We review the imposition of
special conditions for supervised release under the abuse-of-
discretion standard. United States v. Smith, 436 F.3d 307, 310
(1st Cir. 2006). Under that standard, we review purely legal
questions de novo, factual issues for clear error, and "judgment
calls" through a "classically deferential" lens. Riva v. Ficco,
615 F.3d 35, 40 (1st Cir. 2010).
Hood argues that the polygraph testing condition
facially violates his Fifth Amendment right against self-
incrimination, because it forces him either to answer potentially
2 Given that Carpenter does not provide a basis for making an
exception to the third-party doctrine with respect to the
government's acquisition from Kik of the IP address data that Hood
seeks to suppress, we need not address his separate challenge to
the District Court's denial of his request for an evidentiary
hearing on whether, under Carpenter, he has a reasonable
expectation of privacy in that information.
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incriminating polygraph questions truthfully or to have his
supervised release revoked. He relies for this assertion on
Minnesota v. Murphy, which provides that the Fifth Amendment
"privileges [individuals] not to answer official questions put to
[them] in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate [them] in future
criminal proceedings." 465 U.S. 420, 426 (1984) (quoting Lefkowitz
v. Turley, 414 U.S. 70, 77 (1973)). But, we agree with the
government that our decision in United States v. York, 357 F.3d
14, 25 (1st Cir. 2004), requires us to reject this facial challenge
to the condition of supervised release at issue.
The condition that Hood challenges requires that he
"submit to periodic random polygraph examinations as directed by
the probation officer to assist in treatment and/or case planning
related to behaviors potentially associated with sex offense
conduct." The condition also contains limiting language, however.
That limiting language states, in relevant part: "[n]o violation
proceedings will arise solely on the defendant[’s] failure to pass
a polygraph examination, or on the defendant’s refusal to answer
polygraph questions based on 5th amendment grounds. Such an event
could, however, generate a separate investigation."
Insofar as this limiting language ensures that "[n]o
violation proceedings will arise . . . on the defendant's refusal
to answer polygraph questions," the condition is not materially
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different from the one that we upheld in York against a similar,
Fifth Amendment-based facial challenge. Id. There, the relevant
limiting language in the condition stated that "[w]hen submitting
to a polygraph exam, the defendant does not give up his Fifth
Amendment rights." Id.We concluded in York that, although such limiting
language was not entirely clear in terms of the protection that it
affords a defendant from being penalized for refusing to answer a
polygraph question, it comfortably could be construed to ensure
that a refusal to answer a question cannot supply a basis for a
violation proceeding. Id. That is no less true here. If anything,
the condition at issue in this case is more explicit in its
assurance that "the defendant's refusal to answer polygraph
questions based on 5th amendment grounds" will not be used as the
basis for a violation proceeding.
Moreover, we noted in York that the government had urged
us to adopt this Fifth Amendment-protective construction of the
condition's limiting language. Id. The government similarly
argues here that the condition's "plain language" demonstrates
that no revocation of supervised release would occur due to an
invocation of Hood's Fifth Amendment privilege.
Thus, we follow the government's lead here -- just as we
did in York. Accordingly, we construe this condition to be just
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as protective of the defendant's Fifth Amendment rights as the
condition that we upheld in York.
Hood does point out that the word "solely" appears in
the text of the condition's limiting language, and it is true that
the limiting language that we considered in York did not contain
either that qualifying word or an equivalent one. Nevertheless,
the word "solely" need not be read to modify both the "defendant's
failure to pass a polygraph examination" and the "defendant's
refusal to answer polygraph questions based on 5th amendment
grounds." If the word is read to modify only the former phrase,
then it provides no basis for construing the condition to suggest
that Hood's refusal to answer a polygraph question may be relied
upon in a decision to initiate violation proceedings against him.
We thus do not read the word "solely" to apply to the portion of
the limiting language that is akin to the limiting language that
was present in the condition at issue in York. As a result, the
appearance of the word "solely" in the condition's limiting
language provides no basis for distinguishing York.3
3 We note that Hood makes no argument that the portion of the
condition's limiting language that states that "[s]uch an event
could . . . generate a separate investigation" provides a basis
for reaching a different conclusion from the one that we reached
in York. Nor do we see how that portion could, given that it does
not make clear what set of circumstances would prompt such an
investigation, what that investigation would entail, or what
consequences might arise from such an investigation.
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Hood separately contends that, even if the polygraph
condition is not facially unconstitutional, it is unconstitutional
as applied to him due to his limited mental ability and the absence
of any requirement that he be warned, in compliance with the
Supreme Court's decision in Miranda v. Arizona, of his
constitutional rights before he is subjected to polygraph
questioning. 384 U.S. 436, 467-74 (1966). But, this as-applied,
Fifth Amendment-based challenge necessarily depends on future
factual contingencies. For that reason, it, unlike the facial
challenge to the condition that we have rejected on the merits, is
not ripe for our review. Cf. United States v. Medina, 779 F.3d
55, 67 (1st Cir. 2015); United States v. Sebastian, 612 F.3d 47,
52 (1st Cir. 2010); York, 357 F.3d at 25; see also United States
v. Rojas-Tapia, 446 F.3d 1, 7 (1st Cir. 2006) (holding that low
mental acuity cannot, without evidence of actual coercion, suffice
to prove that a Fifth Amendment violation occurred).
IV.
For the forgoing reasons, we affirm the District Court's
decision as to both Hood's motion to suppress and the condition of
his supervised release.
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