United States v. Ryan Vandyck ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10524
Plaintiff-Appellee, D.C. No.
4:15-cr-00742-CKJ-BPV-1
v.
RYAN GALAL VANDYCK, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted July 15, 2019
San Francisco, California
Before: PAEZ and RAWLINSON, Circuit Judges, and HUCK,** District Judge.
Ryan VanDyck was convicted of conspiracy to produce child pornography
and possession of child pornography. He now appeals the district court’s denial of
his motions to suppress evidence obtained from the execution of a search warrant
at his home office address.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
VanDyck makes three overarching arguments. First, he argues that the
evidence should have been suppressed as the fruit of an illegal warrantless search
of the file attached to the email intercepted by American Online (“AOL”) as
suspected child pornography. Second, he argues that the evidence should have
been suppressed because police detectives obtained his subscriber information
linked to an Internet Protocol (“IP”) address without a warrant. Finally, he argues
that even if a warrant was not required to view the image attached to the email or
to obtain the subscriber information, the evidence should be suppressed because
the search warrant was not supported by probable cause. We have jurisdiction
under 28 U.S.C. § 1291 and we affirm.1
1. Fruit of an Illegal Warrantless Search
VanDyck argues that law enforcement illegally searched the file attached to
the email intercepted by AOL without a warrant. VanDyck concedes that he did
not raise this argument in front of the district court because of an “oversight.” We
will not consider this argument as VanDyck has not shown good cause for failing
to raise this issue. See United States v. Guerrero, 921 F.3d 895, 898 (9th Cir.
2019).
1
We review de novo the district court’s denial of a motion to suppress evidence
and the validity of a search warrant. United States v. Cervantes, 703 F.3d 1135,
1138 (9th Cir. 2012); United States v. Crews, 502 F.3d 1130, 1135 (9th Cir. 2007).
2
2. Subscriber Information
VanDyck argues that the evidence should be suppressed because the Fourth
Amendment required a warrant to obtain the subscriber information associated
with the IP address, and law enforcement obtained the subscriber information with
only an allegedly illegal and deceptive grand jury subpoena. In United States v.
Forrester, we concluded that internet users have no expectation of privacy in the
IP addresses of the websites they visit because “they should know that this
information is provided to and used by Internet service providers for the specific
purpose of directing the routing of information.” 512 F.3d 500, 510 (9th Cir.
2008). VanDyck argues that Forrester must be reconsidered in light of the
Supreme Court’s decision in Carpenter v. United States, 138 S. Ct. 2206 (2018).2
In Carpenter, the Court made it clear that its decision was a “narrow one”
that did not express views on matters not before the Court. Id. at 2220. Given this
narrow holding, we decline to extend Carpenter to encompass the argument
advanced by VanDyck. Moreover, we are bound by our decision in Forrester as it
is not clearly irreconcilable with Carpenter. Cf. United States v. Pepe, 895 F.3d
679, 686 (9th Cir. 2018) (“We have a rule that ‘where the reasoning or theory of
2
In Carpenter, the Court declined to extend the third-party doctrine to cell site
records. Id. at 2217. Instead, the Court held that an individual maintained a
“legitimate expectation of privacy in the record of his physical movements as
captured” through cell site records. Id.
3
our prior circuit authority is clearly irreconcilable with the reasoning or theory of
intervening higher authority, a three-judge panel should consider itself bound by
the later and controlling authority, and should reject the prior circuit opinion as
having been effectively overruled.’”) (quoting Miller v. Gammie, 335 F.3d 889,
893 (9th Cir. 2003) (en banc)).
3. Probable Cause
VanDyck argues that even with the image description and the subscriber
information, the state judge lacked probable cause to issue the search warrant. We
give “great deference to an issuing judge’s finding that probable cause supports the
warrant and review for clear error.” United States v. Flores, 802 F.3d 1028, 1043
(9th Cir. 2015) (internal quotation marks and citation omitted). We “will not find a
search warrant invalid so long as the issuing judge had a substantial basis for
concluding that the supporting affidavit established probable cause.” Id. (citation
omitted).
Here, the affidavit in support of the search warrant included a description of
a file containing child pornography sent by a specific email address, the IP address
associated with that email address, and the internet provider’s indication that the
subscriber information for that IP address was located at a specific home office
address. Moreover, the affidavit described how further investigation indicated that
one of the homeowners at the address, VanDyck, had previously been investigated
4
for having an inappropriate relationship with a 13-year-old girl and that in a
separate previous investigation into VanDyck’s arrest for falsely impersonating a
police officer, the police had found legal erotic photos of prepubescent children
under VanDyck’s bed. Thus, we conclude that the affidavit supporting the search
warrant stated sufficient facts to establish probable cause.3 See Flores, 802 F.3d at
1043.
AFFIRMED.
3
VanDyck’s motions to take judicial notice are denied as moot. Dkt Nos. 43, 70.
5