Com. v. Kenney

• Decision Date: 19 October 2007
• Citation: 874 N.E.2d 1089,449 Mass. 840
• Parties: COMMONWEALTH v. Steven E. KENNEY, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

874 N.E.2d 1089

449 Mass. 840

COMMONWEALTH v. Steven E. KENNEY, Jr.

Supreme Judicial Court of Massachusetts, Worcester.

Argued September 4, 2007.

Decided October 19, 2007.

Robert F. Shaw, Jr., Boston, for the defendant.

Michelle R. King, Assistant District Attorney, for the Commonwealth.

Claudia Leis Bolgen, Committee for Public Counsel Services, Woburn, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

GREANEY, J.

A jury in the Superior Court convicted the defendant, Steven E. Kenney, Jr., on an indictment charging possession of child pornography, in violation of G.L. c. 272, § 29C.¹ Prior to trial, the defendant moved to suppress approximately 323 computer images depicting children in a state of nudity, or depicting children engaged in sexual conduct, which were contained in files stored on the hard drive of his computer, and on electronic storage disks, seized by police during a search of his apartment. Following an evidentiary hearing, a judge in the Superior Court denied the motion to suppress. In this appeal (here on our granting the defendant's application for direct appellate review) the defendant claims that probable cause did not exist to support the issuance of a warrant to search his apartment. Alternatively, the defendant challenges his conviction on the ground that G.L. c. 272, § 29C, is overbroad, vague, and ambiguous, and hence unconstitutional on its face. We conclude that the motion to suppress was properly denied and affirm the judgment of conviction.

The defendant in his appellate brief concedes that images seized from his home meet the core definition of child pornography under G.L. c. 272, § 29C. We need not, therefore, recite the facts of this case as the jury might have found them based on the Commonwealth's evidence. With respect to the defendant's motion to suppress, the judge found the facts as summarized below. All of the findings are supported by the evidence that the judge found credible, and we accept them.² See Commonwealth v. Sparks, 433 Mass. 654, 656, 746 N.E.2d 133 (2001), and cases cited.³ In early January of 2002, Alexandria Tardif contacted the Massachusetts State police with concerns related to the defendant's possession of child pornography. On January 14, 2002, during an interview with Trooper Thomas R. Ryan, Tardif identified herself and related that she had a past relationship with a person she had met "on-line who goes by the name Steven Kenney." Tardif informed Trooper Ryan that she had once visited the defendant's home at 230 Westminster Hill Road, apartment 2, in Fitchburg, and had seen a computer there. Tardif also stated that, on December 27 and December 28, 2001, using the electronic mail (e-mail) address ("bocult@hotmail.com")and password ("Excalibur") the defendant had given her, Tardif gained access to the defendant's e-mail account. She told Trooper Ryan that she opened several of the defendant's e-mails, including one with an attached "video clip" showing a male performing oral sex on a six to eight year old girl. Tardif further provided Trooper Ryan with three e-mails (which she had printed) that were sent to the "bocult@hotmail.com" address in January, 2002.⁴ Tardif also reported that the defendant maintained a second e-mail address named "bocmastr@gis.net." She told Trooper Ryan that the registration plate on the defendant's automobile read "BOCULT." Tardif also described to Trooper Ryan the defendant's apartment and physical appearance.

Based on the information given by Tardif, Trooper Ryan and other State troopers commenced an investigation of the defendant. Pursuant to a grand jury subpoena issued on January 28, 2002, the Internet mail service known as "Hotmail" provided Trooper Ryan with information that the user profile of the screen name "bocult@hotmail.com" included the first name "Steve," a state of residence as "Massachusetts," and a zip code of "01453."⁵ Hotmail also informed Trooper Ryan that the e-mail address had been accessed on December 27 and 28, 2001, from Oxford Instruments and Galaxy Internet Service (GIS), which are, respectively, the defendant's place of employment and Internet service provider. Pursuant to another subpoena, this one served on June 25, 2002, GIS confirmed that "bocmastr@gis.net" was an active e-mail account owned by Steven E. Kenney, Jr., of 230 Westminster Hill Road, apartment 2, in Fitchburg. GIS also informed Trooper Ryan that the password to that account was "excalibu." State police observed a motor vehicle bearing the registration plate "BOCULT" parked in the driveway of 230 Westminster Hill Road, and confirmed that photographs provided by Tardif were consistent with the photograph on the defendant's driver's license.

In June, 2002, State police obtained a warrant to search the defendant's apartment and to seize sexually explicit visual images, whether on paper or its equivalent or stored on electronic or magnetic media, any computer file text, any computer data file containing sexually explicit visual images the dissemination, purchase, or possession of which is specifically prohibited by G.L. c. 272, §§ 29B and 29C, and seize and transport all computer systems to a secure location to search for any sexually explicit images, prohibited by §§ 29B and 29C, which may be stored, or referred to, in directories, subdirectories, files, or logs, therein. The warrant application was supplemented by a ten-page affidavit sworn to by Trooper Ryan. The search took place on June 25, 2002, and among other things, police seized the defendant's computer and eighty-six three and one-half inch electronic storage disks. When examined by a lieutenant in the State police forensic unit, the computer's hard drive was found to contain over forty images consistent with child pornography deleted file sections of the hard drive were found to contain twenty-five images consistent with child pornography; nine additional images consistent with child pornography were located in the unallocated space section of the hard drive; and each of fifteen three and one-half inch disks seized from the defendant's home contained multiple images consistent with child pornography. All of the images were submitted as exhibits for the jury to view.

1. We reject the defendant's claim that the affidavit supporting the issuance of the warrant to search his apartment failed to establish probable cause to believe that child pornography would be found there. "To establish probable cause to search, the facts contained in an affidavit, and reasonable inferences that may be drawn from them, must be sufficient for the magistrate to conclude `that the items sought are related to the criminal activity under investigation and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues.'" Commonwealth v. Walker, 438 Mass. 246, 249, 780 N.E.2d 26 (2002), quoting Commonwealth v. Donahue, 430 Mass. 710, 712, 723 N.E.2d 25 (2000). See Commonwealth v. Robles, 423 Mass. 62, 65-66, 666 N.E.2d 497 (1996), and cases cited. We give considerable deference to the magistrate's determination of probable cause. See Commonwealth v. Walker, supra.

We are satisfied that the material presented in the ten-page affidavit, when read as a whole and examined under settled standards, see Commonwealth v. James, 424 Mass. 770, 777-778, 678 N.E.2d 1170 (1997); Commonwealth v. Jean-Charles, 398 Mass. 752, 757, 500 N.E.2d 1332 (1986), establishes probable cause. The facts contained in the affidavit included (1) all of the information about the defendant (aforementioned in this opinion), as related by Tardif to Trooper Ryan six months earlier; (2) Tardif's description of the video clip that was attached to an e-mail sent to the defendant's Internet address; (3) Trooper Ryan's description of the printed e-mails sent to the defendant's Internet address; (4) all of the information received from Hotmail and GIS; (5) that the driver's license photograph of the defendant obtained from the registry of motor vehicles matched the photographs of the defendant provided by Tardif; (6) that a motor vehicle bearing the registration plate "BOCULT," was observed in the driveway of 230 Westminster Hill Road in Fitchburg and, according to records of the registry of motor vehicles, that plate was registered to the defendant, at the address given police by Tardif.

The affidavit also presented at length Trooper Ryan's extensive knowledge, learned from his six years of personal experience and training in the investigation of sexually related crimes and computer related crimes, and gleaned from other law enforcement officers, as to terminology, paraphernalia, and computer activities common to those involved with the sexual exploitation of others. According to the affidavit, those who are interested in sexual activity with children, or in sexually explicit visual images depicting children, are likely to keep such images secreted, but close at hand, as a means of attracting interest of new child victims, or as a means of arousing the possessor. The affidavit states: "These depictions tend to be extremely important to such individuals and are likely to remain in the possession of or under the control of such an individual for extensive time periods, perhaps a lifetime." Further, such depictions typically may be stored as data in a computer file, and even so-called "deleted" files or data may, in fact, often still be present on the computer's storage medium, and thus recoverable by law enforcement, for months, years, even decades. Specifically, Trooper Ryan attested to his belief, based on the facts known to him, as set forth in the affidavit, that the defendant had access to an e-mail account from his computer at 230 Westminster Hill Road, apartment 2, in Fitchburg, which had been used, and continued to be used, by the defendant to engage in the trading...