Opinion
C085982
09-28-2018
THE PEOPLE, Plaintiff and Respondent, v. QUIN LANSON MARTIN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF157209)
A jury found defendant Quin Lanson Martin guilty of possessing child pornography (Pen. Code, § 311.11, subd. (a)) and found true the allegation that defendant possessed more than 600 images of child pornography, including 10 or more images of children under the age of 12 (§ 311.11, subd. (c)(1)). The trial court subsequently sentenced defendant to 16 months in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred in denying his motion to suppress evidence obtained from his laptop after a software program identified his IP address as one sharing child pornography. We conclude there was no error and affirm the judgment.
BACKGROUND
Darryl Holcombe, an investigator for the Contra Costa County District Attorney's Office, is trained to work with software called the "RoundUp BitTorrent program" ("RoundUp" or "the software"). The software is used to identify IP addresses that are participating in a peer-to-peer file sharing program in order to share child pornography. The software runs 24 hours a day, seven days a week. The program is only capable of identifying IP addresses that are using peer-to-peer file sharing programs, i.e., programs that make the information available to anyone using the same program. Once it identifies an IP address as sharing child pornography, RoundUp "initiates contact with that computer, just like the consumer program would, and then begins the process of actually downloading the actual files." Mr. Holcombe then reviews the files and confirms they contain child pornography before obtaining a warrant to identify the person who owns that IP address.
On October 16, 2015, the RoundUp program identified IP address 172.243.247.123 as an IP address that had child pornography files available for sharing. Mr. Holcombe verified that the IP address was sharing files containing child pornography, then obtained a search warrant to identify the owner of the identified IP address. Mr. Holcombe learned a Yolo County resident was the owner. Accordingly, Mr. Holcombe referred the matter to the Yolo County Sheriff's Office.
On December 3, 2015, Yolo County Sheriff's Deputy Dirk Leonard went to the physical address associated with the IP address identified by Mr. Holcombe. He verified that the owner of the IP address, defendant's father, Glen Martin, lived at that physical address. Deputy Leonard then obtained a search warrant for the physical address. He, along with several other members of law enforcement, executed the search warrant on December 10, 2015.
Executing the search warrant, law enforcement found defendant sleeping on a couch in the living room; underneath him on the couch was a computer that was later determined to be his. Near the couch were external hard drives and several cables attached to defendant's computer. A forensic search of defendant's computer and the external hard drives, revealed a total of approximately 29,000 images of child pornography.
Defendant's father, Glen Martin, also was there. A search of his computer revealed only legal pornography. --------
The People subsequently charged defendant with possessing child pornography (§ 311.11, subd. (a)), alleging he possessed more than 600 images, including 10 or more images involving a child under the age of 12 (§ 311.11, subd. (c)(1)). Prior to trial, defendant moved to suppress "[a]ny and all information obtained, and derived therefrom, any search conducted by the Solano County Sheriff's Department by use of a software program called 'RoundUp.' " In support of his motion, defendant argued the RoundUp search violated his Fourth Amendment rights as well as the recently enacted California Electronic Communications Privacy Act, section 1546 et seq. ("ECPA" or "the Act"). The People opposed the motion.
The trial court denied defendant's motion to suppress, finding he had no reasonable expectation of privacy in information he made accessible for sharing. A jury subsequently found defendant guilty as charged and the court sentenced him to the low term of 16 months in state prison.
DISCUSSION
Defendant contends the trial court erred in denying his motion to suppress evidence found as a result of the warrantless search conducted by RoundUp because his IP address was protected by ECPA. We conclude there was no error.
Defendant was using a peer-to-peer file sharing program to share pornographic images of children with other users. By using a peer-to-peer file sharing program, defendant was broadcasting his IP address "far and wide in the course of normal internet use, and he made the child pornography files and related data publicly available by downloading them into a shared folder accessible through a peer-to-peer network. Such behavior eliminates any reasonable expectation of privacy in the information." (U.S. v. Weast (5th Cir. 2016) 811 F.3d 743, 747-748; see also People v. Evensen (2016) 4 Cal.App.5th 1020, 1025-1027 ["computer users have no reasonable expectation of privacy in the contents of a file that has been downloaded to a publicly accessible folder through file-sharing software"]; U.S. v. Ganoe (9th Cir. 2008) 538 F.3d 1117, 1127 [no reasonable expectation of privacy once defendant installed and used file sharing software]; U.S. v. Borowy (9th Cir. 2010) 595 F.3d 1045, 1047-1048 [defendant did not have a reasonable expectation of privacy because he used a peer-to-peer file sharing program].)
With no reasonable expectation of privacy, defendant's IP address is not protected by the Fourth Amendment. (See People v. Ayala (2000) 23 Cal.4th 225, 254-255 [Fourth Amendment protections are limited to places in which there is a reasonable expectation of privacy].) Defendant thus relies on the recently enacted ECPA to protect his IP address. (§ 1546 et seq.) Defendant's reliance is misplaced.
The ECPA provides in relevant part that "[e]xcept as provided in this section, a government entity shall not do any of the following: [¶] . . . [¶] (3) Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity." (§ 1546.1, subd. (a)(3).) The ECPA defines "electronic communication information" to include IP addresses. (§ 1546, subd. (d).)
Regardless of whether the ECPA protects a defendant's IP address when he or she uses peer-to-peer software, the Act did not go into effect until January 1, 2016, two and one-half months after RoundUp identified defendant's IP address as sharing child pornography. Nothing in the language of ECPA indicates it is intended to apply to warrantless searches conducted before its effective date. (§ 1546 et seq.) Accordingly, defendant cannot rely on the ECPA to retroactively protect his IP address from a warrantless, electronic search.
To support his argument that the ECPA should be applied retroactively to protect his IP address from the RoundUp search, defendant relies on Davis v. United States (2011) 564 U.S. 229 (Davis). We are not persuaded.
In Davis, the United States Supreme Court considered the good faith exception to the exclusionary rule under the Fourth Amendment, i.e., "whether to apply the exclusionary rule when the police conduct a search in objectively reasonable reliance on binding judicial precedent." (Davis, supra, 564 U.S. at p. 239.) As we discussed ante, the Fourth Amendment is not applicable here and Davis does not discuss the retroactive application of later-enacted statutes to warrantless searches. Accordingly, the decision is inapposite and does not support defendant's plea for retroactive application of ECPA.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: DUARTE, J. HOCH, J.