U.S. v. Meek

Decision Date19 April 2004
Docket NumberNo. 03-10042.,03-10042.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jeffrey MEEK, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Paul B. Meltzer, Santa Cruz, CA, Tim Brosnan, Oakland, CA, for the appellant.

Kevin V. Ryan, United States Attorney, Hannah Horsley, Assistant United States Attorney, and Kimberly M. Briggs, Assistant United States Attorney, Oakland, CA, for the appellee.

Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding. D.C. No. CR-00-40240-SBA.

Before: WALLACE, NOONAN, and McKEOWN, Circuit Judges.

McKEOWN, Circuit Judge:

Jeffery Meek entered a conditional guilty plea to one count of using the Internet to attempt to induce a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). At issue on appeal is whether the district court erred in denying Meek's motions to suppress evidence and to dismiss the indictment. Meek challenges the legality of the search of his records at America Online ("AOL"), whose Internet services Meek used, as well as the search of his home, computer, and vehicle. We also consider whether § 2422(b) applies where the person believed to be a minor is actually an adult police detective posing as the minor and, if so, whether the statute is unconstitutional. We reject these challenges and affirm the conviction. Both search warrants were valid, an attempt conviction under § 2422(b) does not require an actual minor victim, and the statute is constitutional as applied to Meek.

FACTUAL BACKGROUND

In early 1999, Detective Lewis Doty of the Walnut Creek Police Department and Detective Steve McEwan of the San Jose Police Department began a joint investigation into child exploitation following the discovery of photographs of a local 14-year-old boy engaged in sexual acts. Through cooperative efforts, the officers were able to locate and interview the boy and his father. The boy told the detectives that the photographs were taken during a sexual encounter with a man who contacted him in an Internet chat room.

Upon learning of the situation, the victim's father allowed the detectives to transport the family computer to the police department for further investigation. During this initial meeting, the father provided oral permission to access his son's AOL account, and the boy provided the detectives with the password. Two weeks later, the father gave the detectives written permission to use his son's AOL account and to assume the son's identity in instant messenger1 conversations.

Upon accessing the family computer, McEwan discovered that the boy had a profile on the AOL service listing personal information, such as location, gender, and interests. The boy listed his birthdate as "198?hmmm whats the last number?",2 indicating that he was between 10 and 19 years of age. This profile was available to other AOL users.

Shortly thereafter, using the boy's Internet account, McEwan received an e-mail from someone with the screen name3 "Capnjeffry," who was listed in the boy's AOL instant messenger "Buddy List."4 In this e-mail, Capnjeffry indicated that he had communicated with the boy in the past, stated that he would "still be interested in hooking up some time," and provided his phone number. McEwan did not respond. Two weeks later, after McEwan received written permission to pose as the boy in AOL chats, Capnjeffry again contacted the boy by initiating an instant messenger conversation. At the outset of the conversation, McEwan — posing as the boy — cautioned that he was not free to chat because his parents were "kinda watching." Capnjeffry nevertheless proceeded to engage in a sexually graphic conversation with McEwan, discussing the possibility of a future sexual encounter. When asked if he looked forward to an encounter, Capnjeffry answered affirmatively, stating he wanted to see the boy's "smooth chest," describing sexual acts, and explicitly referring to the minor as "a young b."

Following this conversation, Doty obtained a warrant to search AOL's records for information regarding several instant messenger users, including Capnjeffry, who had contacted the boy for sex. AOL informed the detectives that the screen name "Capnjeffry" belongs to defendant Jeffery Meek. Further investigation revealed that, as a juvenile, Meek was convicted of violating California Penal Code § 288(a), committing a lewd or lascivious act on a child under 14 years of age. McEwan then interviewed the victim again, who said that Meek first contacted him a few months earlier for the purpose of having a sexual encounter and that Meek knew his age.

Over the course of the next month, McEwan and Meek had several additional conversations in which Meek continued to seek a sexual encounter with the boy. Their conversations revolved almost exclusively around the topic of sex, discussing in graphic detail sexual acts that Meek hoped to perform on the boy. At one point, Meek sent an e-mail to the boy's AOL account stating, "Want a pic of how I want to see you?"; attached was a picture of a naked male on a bed, the subject's anus the focal point of the photograph. The two also discussed the boy's lack of prior sexual experience, and Meek promised that their sexual encounter "will not hurt."

The instant messenger conversations also included references to the boy's age and circumstances. For example, McEwan told Meek that his parents would be out of town during the second week of April and that he would be alone. Meek responded by again asking the boy to meet, stating the he was "Looking to meet young handsome guys and see where things go. Sex, friends, talk." Additionally, McEwan mentioned keeping Meek's contact information in his locker at school, and Meek asked if the two could meet "Like after school on your way home." Meek also added, "I'm just getting nervous. I don't want to get set up for the police or anything."

After obtaining a search and arrest warrant, McEwan agreed to meet Meek at a local school for a sexual encounter. Meek was arrested when he arrived.

ANALYSIS
I. CHALLENGE TO VALIDITY OF THE SEARCH WARRANTS

As part of their investigation, the California detectives obtained two search warrants, one for AOL and the other for Meek's house and vehicle.5 Both warrants listed the suspected offense to be a violation of California Penal Code § 311.3, but the attached affidavits described a violation of California Penal Code § 288.2.6 We now address the validity of those warrants.

A. THE AOL SEARCH W ARRANT

Meek challenges the validity of the search of AOL's records, arguing that the affidavit in support of the warrant included illegally-obtained information and failed to establish probable cause, that the warrant was defective because it did not list the appropriate statute, and that the statute for which the magistrate issued the warrant is unconstitutional. We review de novo the district court's denial of defendant's motion to suppress. United States v. Gorman, 314 F.3d 1105, 1110 (9th Cir.2002).

1. CONSENT TO INTERCEPT INSTANT MESSAGES

Like private telephone conversations, either party to a chat room exchange has the power to surrender each other's privacy interest to a third party. See United States v. Karo, 468 U.S. 705, 726, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (While "[e]ach has standing to challenge the use as evidence of the fruits of an unauthorized search of that [exchange], ... either may also give effective consent to the search."). The nature of consent illustrates a reality of the Internet, namely, that a person initiating an Internet-based conversation does not control the recipient. Cf. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (holding that either party to a private telephone conversation may consent to electronic surveillance).

Meek's argument that the detectives' interception of the Internet conversations was illegal because it was conducted without any judicial monitoring misapprehends both the nature of an investigation and the significance of consent to monitor the exchanges. Because the minor and his father consented to the warrantless interception of Meek's messages to the minor, the affidavit in support of the warrant did not include illegally-obtained information. Before McEwan received or responded to Meek's messages, the minor provided his Internet password to the detectives for the purpose of investigating cases of sexual abuse, and the father provided oral and written consent allowing the detectives to use the minor's screen name to conduct the sting investigation. The unilateral consent provided by the boy and his father was sufficient to overcome the objection to a warrantless search.7

2. PROBABLE CAUSE

The warrant clause of the Fourth Amendment requires "probable cause, supported by Oath or affirmation" to justify the issuance of a search warrant. U.S. CONST. amend. IV. We review for clear error a finding of probable cause for a search warrant. United States v. Hay, 231 F.3d 630, 634 n. 4 (9th Cir.2000). Our review is conducted with "great deference," id., and the relevant inquiry is whether the magistrate had a "sufficient basis" for finding probable cause. United States v. Weber, 923 F.2d 1338, 1343 (9th Cir.1990). A "fair probability" is sufficient to establish probable cause. United States v. Rabe, 848 F.2d 994, 997 (9th Cir.1988).

Meek makes a series of arguments about the validity of the warrant; in essence they boil down to a claim that Meek did not know his correspondent was a minor.8 The affidavit included excerpts of a sexually graphic instant message in which Capnjeffry discussed the various sex acts he hoped to perform on the boy. Although the excerpted conversation did not include explicit mention of the boy's age, there were sufficient...

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