U.S. v. Perrine

• Citation: 518 F.3d 1196
• Decision Date: 11 March 2008
• Docket Number: No. 06-3336.,06-3336.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven C. PERRINE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

518 F.3d 1196

UNITED STATES of America, Plaintiff-Appellee, v. Steven C. PERRINE, Defendant-Appellant.

No. 06-3336.

United States Court of Appeals, Tenth Circuit.

March 11, 2008.

Kristen B. Patty, Wichita, Kansas (Philip R. White, Ariagno, Kerns, Mank & White, LLC, Wichita, Kansas, with her on the brief) for Defendant-Appellant.

Brent I. Anderson, Assistant United States Attorney, Wichita, Kansas (Eric F. Melgren, United States Attorney, Wichita, Kansas, with him on the brief) for Plaintiff-Appellee.

Before TACHA, ANDERSON, and GORSUCH, Circuit Judges.

ANDERSON, Circuit Judge.

Defendant and appellant Steven C. Perrine appeals the denial of his motion to suppress evidence following his conviction by a jury on three counts relating to the distribution, receipt and/or possession of child pornography, one count of possession of a firearm by a convicted felon, and two counts of criminal forfeiture. He also appeals the denial of his motion to dismiss the case against him, on the ground that governmental authorities engaged in outrageous conduct. We affirm.

BACKGROUND

On September 2, 2005, James Vanlandingham reported to local police that, while in a Yahoo! chat room and while using the screen name "dana_hotlips05," he began chatting with a person with the screen name "stevedragonslayer." "stevedragonslayer" invited Vanlandingham/"dana_hotlips05" to watch a web cam video depicting two nude six-to-nine-year-old girls. While waiting for the police to arrive, Vanlandingham stayed on the line with "stevedragonslayer" and continued to chat. Vanlandingham asked if "stevedragonslayer" had any more videos, to which "stevedragonslayer" replied he did not know what might offend "dana_hotlips05." After Vanlandingham informed "stevedragonslayer" that he liked "the young hard stuff," "stevedragonslayer" played several videos depicting young girls in various explicit sexual acts.

"stevedragonslayer" stopped sending video clips to "dana_hotlips05" prior to the arrival of police officers at Vanlandingham's house, but Vanlandingham was able to preserve a copy of the chat room conversation. One of the Pennsylvania law enforcement authorities interviewed Vanlandingham and viewed the saved chat room conversation.

Based upon Vanlandingham's account of these events, Pennsylvania law enforcement personnel obtained a disclosure order dated October 14, 2005, pursuant to 18 U.S.C. § 2703(d) and 18 Pa.C.S.A. § 5743(d),¹ directing Yahoo! to provide the subscriber information for the screen name "stevedragonslayer." Yahoo!'s records indicated that "stevedragonslayer" logged on to the Yahoo! website from the IP address 68.103.177.146 on October 9, 2005, October 22, 2005, October 29, 2005, October 30, 2005, November 1, 2005, and November 6, 2005.²

Further investigation revealed that this IP address was maintained by Cox Communications, Inc. Pennsylvania authorities obtained another disclosure order requiring Cox to provide the subscriber information for that IP address. Cox reported that the Yahoo! logins from this particular IP address at the times reported by Yahoo were associated with an account belonging to Steve Perrine, 11944 Rolling Hills Court, Wichita, Kansas.

Pennsylvania authorities then contacted Kansas authorities, who discovered that Steve Perrine had a prior state conviction for sexual exploitation of a child, for which he was still on probation. Wichita police obtained a search warrant for Perrine's house, which was executed on December 22, 2005. In addition to seizing Perrine's computer, the police also found firearms and drug paraphernalia. They accordingly amended the search warrant to authorize seizure of those items as well. A forensic examination of Perrine's computer revealed thousands of images of child pornography.

On February 7, 2006, Perrine was charged in a superceding indictment with one count of distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2); one count of receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2); one count of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B); one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and two counts of forfeiture. Among other motions, Perrine filed a motion to suppress and a motion to dismiss based upon outrageous government conduct.

The district court held a motions hearing, at which Perrine testified that he was "stevedragonslayer." Perrine further testified that he had enabled peer-to-peer file sharing on his computer, thereby giving anyone with internet access and certain software the ability to gain entrance to certain files on his computer. After subsequent briefing, the district court denied Perrine's motions.

The case proceeded to a jury trial. A Wichita Police Department Computer Forensics detective, Detective Stone, testified that he found in excess of 16,000 images of child pornography on Perrine's computer. Detective Stone also found Kazaa, a peer-to-peer file sharing program, installed on Perrine's computer. Stone further testified that Kazaa is a program which allows individual users like Perrine to identify folders that are available to share with others, search other computers with Kazaa for specific topics, and download files from other computers, while allowing other computers to download files from Perrine's computer.³

Additionally, Annie Cheung, the senior compliance paralegal at Yahoo!, testified that Yahoo! tracks dates, times, and IP addresses for log-in attempts on a Yahoo! account and maintains that information for approximately thirty days. She further testified that Yahoo! records showed that the IP addresses 68.103.177.226 and 68.103.177.146 belonged to "stevedragonslayer."

Perla Rodriguez, the Cox Communications Customer Escalations Coordinator, testified that residential account IP addresses can change because they are leased for twenty-four hours at a time. Cox Communications residential account IP addresses release and renew every twenty-four hours; when an IP address releases, if the same IP address is available, it reattaches within a few seconds. Rodriguez further testified that only one IP address is assigned to a user at a time and that it is the customer's address on the internet when he or she is online. She stated that the IP address 68.103.177.146 was used by Perrine. Perrine was convicted on all counts.

Perrine thereafter filed a motion for a new trial, a motion for a judgment of acquittal, and a motion for arrest of judgment. After denying the motions, the district court sentenced Perrine to 235 months' imprisonment, to be followed by supervised release for life. Perrine appeals, arguing (1) the district court erred in failing to suppress evidence obtained against him in violation of the Fourth Amendment and/or 18 U.S.C. § 2703(d) and 18 Pa.C.S.A. § 5743(d); and (2) the district court erred in failing to dismiss the case against Perrine due to outrageous government conduct.

DISCUSSION

Perrine appeals the denial of his motion to suppress. "When reviewing a district court's denial of a motion to suppress, we review the district court's factual findings for clear error and consider the evidence in the light most favorable to the Government." United States v. Zamudio-Carrillo, 499 F.3d 1206, 1209 (10th Cir. 2007). Further, "[d]eterminations relating to the sufficiency of a search warrant and the applicability of the good-faith exception are conclusions of law, . . . which this court reviews de novo." United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir.2000). Finally, while we review the district court's ruling on the sufficiency of a search warrant de novo, we do not review de novo the determination of probable cause by the issuing judge or magistrate. Rather, a state judge's "decision to issue a warrant is entitled to great deference," and we "need only ask whether, under the totality of the circumstances presented in the affidavit, the [state] judge had a `substantial basis' for determining that probable cause existed." United States v. Artez, 389 F.3d 1106, 1111 (10th Cir.2004) (further quotations and citations omitted).

We first consider Perrine's argument that evidence was seized in violation of the ECPA and its state law equivalent, as well as the Fourth Amendment.

I. ECPA/State Law and Fourth Amendment

Perrine argues that compliance with 18 U.S.C. § 2703(d) and 18 Pa.C.S.A. § 5743(d) is "akin to a Terry stop within the scope of the Fourth Amendment and suppression is available to remedy violations." Appellant's Br. at 7. Section 2703 is the core provision of the ECPA, and it authorizes the government to require disclosure of stored communications and transaction records by third-party service providers. Under 18 U.S.C. § 2703(c)(2), "[a] provider of electronic communication service or remote computing service shall disclose to a governmental entity the . . . name; . . . address; . . . telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address . . . of a subscriber to or customer of such service. . . ." 18 U.S.C. § 2703(c)(2). Section 2703(d) specifies that "[a] court order for disclosure under subsection . . . (c) . . . shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the . . . records or other information sought[ ] are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(d).⁴

Perrine argues that suppression, an appropriate remedy for an impermissible Terry stop,⁵ is an available remedy for a violation of the ECPA. However, section 2708 of the ECPA specifically states that "[t]he remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter." 18 U.S.C. § 2708. Section 2707, in turn, describes remedies for violations of the Act as...