State of Maine v. Christopher W. Roy , 201 A.3d 609 ( 2019 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 16 Docket: And-18-55
Argued: September 13, 2018
Decided: January 29, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
CHRISTOPHER W. ROY
HUMPHREY, J.
[¶1] In this appeal, we address the effect of technology on the
constitutional balance between the particularity and timeliness requirements
of a search warrant and the ever-expanding digital space into which that search
may reach.
[¶2] Christopher W. Roy appeals from a judgment of conviction for three
counts of possession of sexually explicit material of a minor under age twelve
(Class C), 17-A M.R.S. § 284(1)(C) (2017), entered in the trial court
(Androscoggin County, MG Kennedy, J.) after Roy pleaded guilty conditioned on
his opportunity to appeal the denial of his motion to suppress. M.R.U. Crim. P.
11(a)(2). We affirm the judgment.
2
I. BACKGROUND
[¶3] Viewing the evidence in the light most favorable to the court’s order
denying the motion to suppress, the record supports the following facts. See
State v. Sasso, 2016 ME 95, ¶ 2, 143 A.3d 124. On August 18, 2016, a detective
with the Maine State Police Computer Crimes Unit used a file-sharing network
to download a file of interest in child pornography investigations. The detective
determined that this file was made available by a device connected to a certain
IP address.1 The detective later viewed the file, which included a video of a
young girl, approximately three to five years of age, unclothed and being
sexually abused by an adult.
[¶4] The detective consulted with the United States Department of
Homeland Security and learned that the IP address was registered to Time
Warner Cable, a nationwide internet service provider. On August 22, 2016,
Time Warner informed the detective that Roy was the subscriber of the account
associated with that IP address when the video file was downloaded and
1 An IP address is a “unique string of numbers . . . that identifies each computer using the Internet
Protocol to communicate over a network.” IP Address, New Oxford American Dictionary (3d ed.
2010). According to Techopedia.com, the IP address is a logical numeric address that is assigned to
and identifies every computer or other device that connects to any internet-based communications
network and is the “core component on which the networking architecture is built; no network exists
without it.” Internet Protocol Address, Techopedia, https://www.techopedia.com/definition/2435/
internet-protocol-address-ip-address (last visited Jan. 24, 2019). For additional discussion of IP
addresses, see United States v. Vosburgh, 602 F.3d 512, 527 (3d Cir. 2010); United States v. Forrester,
512 F.3d 500, 510 n.5 (9th Cir. 2008).
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provided the detective with the account’s service address in Maine. The
address matched that of Roy on file with the Maine Bureau of Motor Vehicles.
[¶5] Based on this information, the detective prepared an affidavit and
request for a search warrant. On August 31, 2016—thirteen days after learning
that the downloaded file appeared on the file-sharing network by way of Roy’s
IP address—the detective sought and the court issued a warrant authorizing
(a) the search of Roy’s residence and property, outbuildings, vehicles, and
persons on the property at the time the warrant was to be executed, and (b) in
relevant part, the seizure of the following items believed to “constitute
instrumentalities” of the crimes of illegal possession and dissemination of
sexually explicit depictions of minors, 17-A M.R.S. §§ 283, 284 (2017):
1. Images of child pornography, in any form;
2. Records or images in any form pertaining to the
manufacture, possession or receipt of child pornography;
3. Records or images in any form relating to the identity of the
minors depicted in any seized images;
4. Records or images in any form reflecting personal contact
with any of the minors depicted in any seized images;
5. Records or images in any form reflecting access to, or
payment for access to, websites containing or relating to
child pornography;
6. Computers, portable electronic devices and digital storage
media of any kind . . . . [A]ny electronic system or device
capable of storing and/or processing data in digital form,
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including: central processing units; laptops or notebook
computers; personal digital assistants; wireless
communication devices such as telephone paging devices,
beepers, and cellular telephones[;] peripheral input/output
[devices] such as keyboards, printers, scanners, plotters,
monitors, and drives intended for remova[ble] media;
related communications devices such as modem[s], cables,
and connections; storage media such as hard disk drives,
floppy disks, thumb drive[s], magnetic tapes, and memory
chips; and security devices; [and]
7. Evidence in any form suggesting a sexual interest in minors
and their activities. These items are to include collections of
photographs or magazines containing images of children
[and/or] adolescents . . . .
[¶6] The next day, September 1, 2016, the police executed the search
warrant and seized nearly 600 sexually explicit images of children that were
stored on a cellular telephone and a microSD card (a small portable digital
media storage device). The ages of the children depicted in the images seized
ranged from under one year to nine years.
[¶7] In February 2017, a grand jury returned an indictment charging Roy
with eight counts of possession of sexually explicit material of a minor under
the age of twelve. See 17-A M.R.S. § 284(1)(C). Roy moved to suppress the
evidence seized pursuant to the search warrant. After holding a hearing, on
December 7, 2017, the court (Androscoggin County, MG Kennedy, J.) denied his
motion.
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[¶8] In February 2018, Roy pleaded guilty, conditionally, to three counts
of the indictment and the State dismissed the remaining five counts. Roy timely
appealed.
II. DISCUSSION
[¶9] Roy argues that the court erred by not suppressing the seized
evidence because the search warrant was stale, failed to describe items
presumptively protected by the First Amendment with “scrupulous
exactitude,” and otherwise failed to describe the places to be searched and the
items to be seized with sufficient particularity.
A. Staleness
[¶10] Roy contends that the court erred by denying his motion to
suppress because the circumstances described in the affidavit supporting
probable cause to issue a search warrant—information that the downloaded
video file was from an IP address associated with Roy’s computer—were
thirteen days old when the warrant was issued, rendering the foundation for
the warrant stale. As a result, he argues, by the time the warrant was requested
and issued, the affidavit provided no basis to conclude that the downloaded file
was still in the place associated with Roy’s IP address.
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[¶11] When reviewing the denial of a motion to suppress on grounds that
the information relied on for issuing a search warrant was stale, we review
directly the finding of probable cause by the issuing judge, giving great
deference to that determination, and we must draw all reasonable inferences
that support the decision to issue the warrant. State v. Wright, 2006 ME 13, ¶ 8,
890 A.2d 703 (quotation marks omitted).
[¶12] “Probable cause exists when, based on the totality of the
circumstances, there is a fair probability that contraband or evidence of a crime
will be found in a particular place.” State v. Samson, 2007 ME 33, ¶ 12,
916 A.2d 977 (quotation marks omitted). To meet this standard, the affidavit
supporting the warrant must set forth some “nexus” between the information
upon which the warrant relies and the location of the property to be seized.
Id. ¶ 15. Whether probable cause still exists at the time a warrant is requested
is determined not by the mere passage of time between observation of the
evidence and application for the warrant but by the consideration of the unique
facts and circumstances of the case at hand. See State v. Crowley, 1998 ME 187,
¶ 5, 714 A.2d 834 (time between circumstances and request for search
warrant); State v. Willey, 363 A.2d 739, 742 (Me. 1976) (time between
circumstances and issuance of search warrant). That timeframe, Roy
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acknowledges, does not lend itself to a per se maximum period of time within
which a search warrant must be sought. See Wright, 2006 ME 13, ¶ 9 & n.3,
890 A.2d 703.
[¶13] In Wright, we were presented with a similar challenge to the
timeliness of a warrant in a child pornography investigation where at least
eighty days had elapsed between the occurrence establishing probable cause
and the issuance of the warrant. Id. ¶ 7. The affiant cited the opinions of experts
in child pornography investigations to support his assertion that those who
collect child pornography are “likely to retain the images” for long periods,
sometimes “indefinitely,” rather than disposing of them. Id. ¶¶ 7, 11. We held
that in the context of a child pornography investigation, the passage of eighty
days between the observation of a crime and the application for a warrant is
not too long to render the information stale because of the demonstrated
propensity of its consumers to retain the images for long periods of time.
Id. ¶ 11; see also United States v. Seiver, 692 F.3d 774, 778 (7th Cir. 2012)
(noting that a central inquiry into staleness in a child pornography
investigation requires a “realistic understanding of modern computer
technology and the usual behavior of its users”). Other courts have held that,
in the context of a child pornography investigation, much longer periods of
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time—even years—may pass without the information relied on for a warrant
becoming stale.2
[¶14] In this case, the detective’s affidavit describes practices by which
electronic forms of child pornography are commonly received, collected, and
retained for considerable lengths of time, and the affidavit outlines the
detective’s training and investigatory experience in child pornography cases.
As in Wright, this detailed information is sufficient to demonstrate that, given
the short time between the download on August 18 and the request for a
warrant on August 31—only thirteen days—and considering the nature of the
contraband at issue, the court had a substantial basis on which to conclude that
the file of interest identified in the affidavit would still be in Roy’s possession
on his computer or accessible by his electronic devices. The information the
court relied on was not stale and the court did not err in so ruling.
2 See, e.g., United States v. Carroll, 750 F.3d 700, 704 (7th Cir. 2014) (five years); United States v.
Frechette, 583 F.3d 374, 378-79 (6th Cir. 2009) (sixteen months); United States v.
Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (three years); United States v. Irving,
452 F.3d 110, 115, 125 (2d Cir. 2006) (two to five years); United States v. Hay, 231 F.3d 630, 636
(9th Cir. 2000) (six months); United States v. Horn, 187 F.3d 781, 786-87 (8th Cir. 1999) (three
months); United States v. Lacy, 119 F.3d 742, 745-46 (9th Cir. 1997) (ten months); United States v.
Harvey, 2 F.3d 1318, 1322-23 (3d Cir. 1993) (two to fifteen months); United States v. Coffin,
No. 1:17-cr-00025-JAW, 2018 U.S. Dist. LEXIS 17183, at *2-4, 11-12 (D. Me. Feb. 2, 2018) (one year);
United States v. Albert, 195 F. Supp. 2d 267, 271-72 (D. Mass. 2002) (four to five months).
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B. Constitutional Adequacy
[¶15] Roy next argues that the search warrant was constitutionally
deficient in that (1) it did not describe the items to be seized with scrupulous
exactitude, resulting in the seizure of material protected by the First
Amendment for the ideas they contained, and (2) it otherwise failed to describe
the places to be searched and the items to be seized with sufficient particularity.
“[A] decision as to the constitutional adequacy of a search warrant is a matter
of law” that we review de novo. State v. Pelletier, 673 A.2d 1327, 1329
(Me. 1996) (footnote omitted).
1. Scrupulous Exactitude
[¶16] The Fourth Amendment requires “the most scrupulous exactitude”
when the First Amendment protects the things to be seized, such as images,
books, or magazines, “and the basis for their seizure is the ideas which they
contain.” Stanford v. Texas, 379 U.S. 476, 485 (1965). “First Amendment rights
and the scrupulous exactitude standard are not implicated, however, when the
materials to be seized are sought as evidence of a crime and not for the ideas
which they contain.” State v. Lehman, 1999 ME 124, ¶ 13, 736 A.2d 256 (emphasis added)(quotation marks omitted); see also United States v. Stelten,
867 F.2d 446, 450-51 (8th Cir. 1989).
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[¶17] Roy argues that the warrant undermined these constitutional
protections because it did not sufficiently limit the search to illegal items. He
relies on a decision of the Washington Supreme Court invalidating a search
warrant that authorized the seizure of “materials that were legal to possess,
such as adult pornography and photographs that did not depict children
engaged in sexually explicit conduct.” State v. Besola, 359 P.3d 799, 800, 803
(Wash. 2015). The court determined that neither the warrant’s reference to the
child pornography statute nor its alleged application to images “material to the
[child pornography] investigation” was sufficient to constitutionally
circumscribe the scope of its authorization. Id.
[¶18] The warrant here suffers no such deficiency. Based on the affidavit
supporting the application for issuance of a search warrant, the warrant
authorized the seizure of certain items because there was probable cause to
believe they contained evidence of Roy’s illegal possession and dissemination
of sexually explicit depictions of minors, not because of any particular ideas
they might contain. See Lehman, 1999 ME 124, ¶ 14, 736 A.2d 256. The search
warrant’s description of the items to be seized and the purpose for their seizure
did not implicate the heightened “scrupulous exactitude” standard.
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2. Sufficient Particularity
[¶19] Roy also contends that, even if the scrupulous exactitude standard
does not apply, the warrant was overbroad and lacked the particularity
required by the United States and Maine Constitutions because (1) it authorized
an expansive search of all “computers, portable electronic devices and digital
media of any kind” located on any person or at any place on Roy’s property at
the time of the search, and (2) it authorized a search for and seizure of
“collections of photographs or magazines containing images of children and or
adolescents.” “The issue of whether [a] search warrant lacks the required
specificity as to the place and items to be searched is an issue of constitutional
adequacy that we review de novo.” Id. ¶ 7. [¶20] The Fourth Amendment of the United States Constitution requires
that a search warrant must “particularly describ[e]” the places to be searched
and the things to be seized. U.S. Const. amend. IV. Similarly, Maine’s
Constitution requires that the warrant make a “special designation of the place
to be searched, and the . . . thing to be seized.” Me. Const. art. I, § 5.3 A warrant
3 Article 1, section 5, provides that:
The people shall be secure in their persons, houses, papers and possessions from all
unreasonable searches and seizures; and no warrant to search any place, or seize any
person or thing, shall issue without a special designation of the place to be searched,
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must describe the property with “such particularity” that the executing officer
can identify the item to be searched or seized “with certainty” and is left with
no discretion as to what is to be taken. Lehman, 1999 ME 124, ¶ 8, 736 A.2d 256 (quotation marks omitted).
a. Description of Devices
[¶21] We have previously considered the particularity requirements of
warrants to search computer files in child pornography investigations. In
Lehman, we held that a warrant was sufficiently particularized when it
authorized the search of “all computer equipment and computer related
equipment” and software that Lehman would have been able to access when he
was alleged to have taken sexually explicit nude photographs of three underage
girls with a digital camera and downloaded those photographs onto a computer
in his home.4 Id. ¶¶ 2-3, 10. We also rejected the argument that the warrant
should have been limited to one particular computer in Lehman’s residence
that was specifically implicated by one of the three photographed girls because
the other two girls stated that the images were downloaded to a computer in
and the person or thing to be seized, nor without probable cause—supported by oath
or affirmation.
4 The evidence included a “detached hard drive in the basement of Lehman’s house.” State v.
Lehman, 1999 ME 124, ¶ 4, 736 A.2d 256.
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his home, not specifying which computer was used. Id. ¶ 11. We concluded that
the nexus between the evidence sought and the places to be searched—all
computers, computer-related equipment, and software in the home—was “as
specific as the circumstances” of the allegations and “nature of the activity
under investigation permit[ted].” Id. ¶ 10 (quoting Davis v. Gracey,
111 F.3d 1472, 1478 (10th Cir. 1997)).
[¶22] The First Circuit applied similar reasoning when it considered the
particularity of a warrant authorizing the search of “[a]ny and all computer
software and hardware . . . .” United States v. Upham, 168 F.3d 532, 535 (1st Cir.
1999). There, the defendant was alleged to have used a computer in a home to
send and receive files containing child pornography over several months. Id. at
533. The defendant argued that the warrant was too broad in both its
authorization of places to search (computer hardware and software) and in the
scope of the content it was authorized to seize (“any image” of a minor). Id. at
535, 536 n.1. Rejecting both arguments, the court concluded that the scope of
the warrant closely tracked the probable cause determination that a computer
had been used to transmit the images, and thus “the computer and all available
disks” were implicated by that determination. Id. at 535. The court also
concluded that, despite the warrant’s broad authorization, it was sufficiently
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limited to depictions of minors “engaging in sexually explicit conduct [as
defined by the statute].” Id. Given the basis for the probable cause
determination, the search was “about the narrowest definable search and
seizure reasonably likely to obtain the images” and “not inherently more
intrusive than the physical search of an entire house for a weapon or drugs.” Id.
[¶23] Here, Roy argues that the warrant is unconstitutionally broader
than those in Lehman and Upham because it authorized the seizure of any
“[c]omputers, portable electronic devices and digital storage media of any kind”
located on the property associated with the IP address, on any person on the
property, and in any vehicle on the property. We disagree.
[¶24] The digital world is not a static place; advancements in computer
technology continue to make obtaining and accessing illicit digital files
increasingly easy while making detection more difficult. See, e.g., United
States v. Johnson, 221 F.3d 83, 99 (2d Cir. 2000); United States v. Knowles,
207 F. Supp. 3d 585, 591-92, 604 (D.S.C. 2016); United States v. Cunningham,
680 F. Supp. 2d 844, 856 (N.D. Ohio 2010). Thus, when considering the nature
and circumstances of Roy’s alleged illegal activity, and the increased
sophistication and mobility of devices capable of downloading, storing, and
transmitting child pornography in the years since Lehman and Upham were
15
decided, the warrant’s description of electronic devices that the officers were
authorized to search and seize is not overly broad because of its authorization
to search Roy’s residence, property, and any persons and vehicles on his
property at the time of the search, see Lehman, 1999 ME 124, ¶¶ 10-11,
736 A.2d 256 (acknowledging the inherent mobility of computer equipment),
or because of its authorization to seize various electronic devices and digital
media, see Upham, 168 F.3d at 533, 535 (concluding that the transmission of
images depicting child pornography through the Internet from an account
linked to the defendant established probable cause demonstrating a “sufficient
chance of finding some needles in the computer haystack”).
[¶25] The warrant’s authorization was as specific and limited as the
circumstances would allow and satisfied the constitutional requirement for
particularity.
b. Description of Photographs and Magazines
[¶26] The warrant authorized the police to search for and seize specified
items believed to “constitute instrumentalities” of the crimes of illegal
possession and dissemination of sexually explicit depictions of minors,
including
[e]vidence in any form suggesting a sexual interest in minors and
their activities. These items are to include collections of
16
photographs or magazines containing images of children [and/or]
adolescents . . . .
In spite of this limiting language, Roy argues that the warrant is overbroad
because some photographs and magazines that contain images of minors are
not evidence of criminal conduct. We need not reach this argument.
[¶27] In the abstract, it is correct that possession of some types of
photographs or magazines depicting a minor is not criminal behavior and does
not have evidentiary value. That may not be true, however, when the person in
possession of such facially benign materials is also engaging in criminal conduct
involving child pornography. On this appeal, we need not determine the
location of that line because, even if this aspect of the warrant is overbroad, it
is severable from the remaining portions of the warrant, which, for the reasons
explained above, are lawful. See State v. Simmons, 2016 ME 103, ¶¶ 24-25,
143 A.3d 819. Electronic devices are “readily identifiable and distinguishable
from” photographs and magazines with images of minors, and the information
contained in the warrant about devices is the most significant part of the
presentation. These factors allow legal portions of a warrant to be severed
from any illegal parts of it. See id.
[¶28] Further, and significantly, the inventory of items seized pursuant
to the warrant, see M.R.U. Crim. P. 41(g), which is included in the record
17
presented to the trial court, reveals that although the police seized a number of
devices and electronic parts, they did not seize any photographs or magazines.
This factor also weighs in favor of severance. See Simmons, 2016 ME 103, ¶ 26,
143 A.3d 819; see also United States v. Richards, 659 F.3d 527, 537 (6th Cir.
2011) (stating that an “[i]nfirmity due to overbreadth does not doom the entire
warrant; rather, it requires the suppression of evidence seized pursuant to that
part of the warrant, but does not require the suppression of anything described
in the valid portions of the warrant” (alteration omitted) (emphasis added)
(quotation marks omitted)). Therefore, overbreadth, if any, in this portion of
the warrant is severable from the remaining aspects of the warrant and would
not require suppression of the evidence that was seized, because the seizure
was wholly lawful.
[¶29] The court did not err in denying the motion to suppress.
The entry is:
Judgment affirmed.
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Tina Heather Nadeau, Esq. (orally), The Law Office of Tina Heather Nadeau,
PLLC, Portland, for appellant Christopher W. Roy
Andrew S. Robinson, District Attorney, and Patricia A. Mador, Asst. Dist. Atty.
(orally), Lewiston, for appellee State of Maine
Androscoggin County Unified Criminal Docket docket number CR-2016-2917
FOR CLERK REFERENCE ONLY