U.S. v. Steiger

• Decision Date: 14 January 2003
• Docket Number: No. 01-16100.,No. 01-15788.,No. 01-16269.,01-15788.,01-16100.,01-16269.
• Citation: 318 F.3d 1039
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bradley Joseph STEIGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

318 F.3d 1039

UNITED STATES of America, Plaintiff-Appellee, v. Bradley Joseph STEIGER, Defendant-Appellant.

No. 01-15788.

No. 01-16100.

No. 01-16269.

United States Court of Appeals, Eleventh Circuit.

January 14, 2003.

COPYRIGHT MATERIAL OMITTED

Jennifer Anne Hart, Christine A. Freeman, Fed. Pub. Def., Montgomery, AL, for Defendant-Appellant.

William H. McAbee, II, Montgomery, AL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Middle District of Alabama.

Before DUBINA, MARCUS and GOODWIN^*, Circuit Judges.

GOODWIN, Circuit Judge:

Bradley Steiger appeals his convictions for sexual exploitation of children (18 U.S.C. § 2251(a)), possession of a computer containing child pornography (18 U.S.C. § 2252A(a)(5)(B)), and receipt of child pornography through interstate and foreign commerce (18 U.S.C. § 2252(a)(2)(A)). He challenges the district court's conclusion that neither the Fourth Amendment nor Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 1848 (1986) ("ECPA"), codified at 18 U.S.C. §§ 2510-2522 ("The Wiretap Act"), warranted suppression of the evidence used to convict him. We affirm.

I.

The Montgomery, Alabama Police Department ("MPD") initiated an investigation of Steiger when an unidentified person ("anonymous source" or "source") sent the following e-mail on July 16, 2000:

I found a child molester on the net. I'm not sure if he is abusing his own child or a child he kidnaped. He is from Montgomery, Alabama. As you see he is torturing the kid. She is 5-6 y.o. His face is seen clearly on some of the pictures. I know his name, internet account, home address and I can see when he is online. What should I do? Can I send all the pics and info I have to these emails?

Regards

P.S. He is a doctor or a paramedic.

The anonymous source attached to this e-mail an electronic image file containing a picture of a white male sexually abusing a young white female who appeared to be approximately four to six years of age.

On July 17, 2000, Captain Kevin Murphy of the MPD replied, asking the anonymous source to call him at his office. The source responded that he was from Turkey and could not afford an overseas phone call, but could send everything by e-mail. Captain Murphy then sent an e-mail stating: "Please feel free to send the information that you have." The source next sent an e-mail with eight attached images showing an adult white male nude from the waist down fondling and pressing the young girl against his body in various positions and exposing her genitalia. One picture depicted clamps connected to a chain attached to the child's labia. The girl was nude in several photographs and partially dressed in others. The anonymous e-mail again identified the molester as "Brad Steiger," and provided Steiger's Internet service account information with AT&T WorldNet, possible home address, telephone number used to connect to the Internet, and a fax number.

The anonymous source also informed Captain Murphy that he had Steiger's "i.p. number with local (Turkish) time." An IP number, also known as an Internet Protocol ("IP") address, "is the unique address assigned to a particular computer connected to the Internet. All computers connected to the Internet have an IP address." Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L.Rev. 1083, 1145 (2002). "IP addresses are either static — associated with one computer — or dynamically assigned. The latter is usually the case for patrons of dial-up Internet Service Providers (ISP).... Static addresses are undoubtedly easier to trace, but ISPs generally log the assignments of their dynamic addresses." Elbert Lin, Prioritizing Privacy: A Constitutional Response to the Internet, 17 Berkeley Tech. L.J. 1085, 1104 n. 101 (2002).

Captain Murphy viewed the eight images, and, on July 19, asked the source to send Steiger's IP address. The source sent three IP addresses used by Steiger on July 14 and 15; thus, it appears that Steiger's Internet Service Provider assigned dynamic IP addresses for each login. Apparently without being asked to do so, the source sent an e-mail to the MPD on July 19 providing Steiger's checking account records. On July 21, the source sent another e-mail that identified specific folders where pornographic pictures were stored on Steiger's computer.

Captain Murphy collected the information the source provided and referred it to Special Agent Margaret Faulkner of the FBI, who viewed the images and verified the details the anonymous source provided in his first two e-mails. She issued a subpoena to Security at AT&T Worldnet Service, who advised Agent Faulkner that the Internet account the anonymous source referred to was registered to a Brad Steiger at the home address the source provided. Agent Faulkner then performed an Alabama Driver's License check and obtained a "photo ID" copy of the license issued to a "Bradley Joseph Steiger." She concluded that the photo "appeared identical to the white male subject depicted in the photographs with the young girl." She also checked with the Alabama Medical Board and determined that a "Brad Steiger" had a license to dispense medicine as a practitioner in Alabama and had worked as an emergency room physician in Montgomery. Agent Faulkner went to the hospital where the Medical Board indicated Steiger had been working and showed one of the pictures of Steiger with the young girl. A security officer identified the man as Brad Steiger, a doctor who had been seen around the hospital on occasion. Agent Faulkner then learned that Steiger had become employed by a hospital in Selma, Alabama. She also discovered that Steiger then resided at an address different from the one the source supplied.

Agent Faulkner next prepared an affidavit in support of a search warrant in which she stated that "an anonymous source ... had located a child molester on the Internet." The affidavit described the pictures the anonymous source sent on July 17 without mentioning that the source had obtained the evidence by "hacking" into Steiger's computer. Agent Faulkner also described in the affidavit the steps she took to corroborate the information the anonymous source provided. After obtaining a warrant, law enforcement officers searched Steiger's home and seized his computer and related equipment, as well as leg restraints, clamps connected to a chain, and what appeared to be a blindfold.

A federal grand jury returned an indictment against Steiger on November 9, 2000, charging violation of various federal statutes involving sexual exploitation of minors. Count I alleged violation of 18 U.S.C. § 2251(a) (inducing a minor to engage in sexually explicit conduct to produce visual depictions such as exhibition of the genitals and pubic area of a minor); Count II alleged a second violation of § 2251(a); Count III alleged violation of 18 U.S.C. § 2252(a)(5)(B) (knowing possession of a computer containing three or more images of child pornography); Count IV alleged violation of 18 U.S.C. § 2252(a)(2)(A) (knowing receipt of child pornography); Count V alleged violation of 18 U.S.C. § 2423(a) (knowing transportation of minor in interstate commerce with intent that the person engage in sexual activity); and Count VI alleged a second violation of § 2423(a).

An FBI agent stationed in Turkey attempted to interview the source at the end of November 2000 to determine how he had acquired the information regarding Steiger that he sent to the MPD. The source was adamant about not revealing his identity, but explained in an e-mail on November 30, 2000 how he obtained that information:

I will not tell you my name or meet you.... If I tell you my name and make an official interview with you, that guy and his lawyer will know all about me so I will have an overseas enemy.

I'm not a computer freak. I'm a 33 years [sic] old professional. I have a family. I don't want to risk my peace because of a hobby. I'll answer some of your possible questions.

Do [sic] I know him before?

No. I catched [sic] at least 2000 child pornography collectors with my trap. 3 of them including this guy was [sic] producing their own. The other two realized whats [sic] going on and cut the connection.

How did I know his home address, his fax number, etc?

I couldn't find him on white pages so I searched all the ms word documents in his pc and found this document....

How did I get access to his pc?

I used the well known trojan horse named subseven.... I made it undetectable so av softwares [sic] couldnt [sic] see it and bind it with a fake program. After this I posed it to the news group "alt.binaries.pictures.erotica.preteen" where one can find 1000s of sick people.

If you have any more questions, just mail me. I tell you again "I WILL NEVER TELL YOU MY NAME AND NEVER MEET YOU."

After Steiger downloaded the fake picture the source posted to the news group, the Trojan Horse program permitted the source to enter into Steiger's computer via the Internet and find the images and identifying information he sent to the MPD.

Steiger filed several motions to suppress, claiming, inter alia, that: (1) the evidence asserted in support of the search warrant was obtained in violation of the Fourth Amendment; (2) Agent Faulkner failed sufficiently to corroborate the information the source supplied; (3) Agent Faulkner intentionally omitted material evidence from her affidavit by failing to inform the magistrate that the source had obtained the information by hacking into Steiger's computer; and (4) the information the source obtained was inadmissible under the Wiretap Act. A magistrate judge recommended denial of Steiger's first motion to suppress. The district court adopted the magistrate's findings and denied the motion.

Steiger then filed a motion for reconsideration, as well as a motion for leave to...