Rideout v. Commonwealth

Decision Date04 February 2014
Docket NumberRecord No. 0513–13–2.
Citation753 S.E.2d 595,62 Va.App. 779
CourtVirginia Court of Appeals
PartiesMarvin T. RIDEOUT, III v. COMMONWEALTH of Virginia.

OPINION TEXT STARTS HERE

J. Todd DuVal (McDonald, Sutton & DuVal, PLC, Richmond, on brief), for appellant.

John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: PETTY, BEALES and CHAFIN, JJ.

BEALES, Judge.

Pursuant to a conditional guilty plea agreement, Marvin T. Rideout, III (appellant) entered pleas under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (Alford pleas) to twenty counts of possession of child pornography in violation of Code § 18.2–374.1:1(A). 1 Appellant argues that the trial court erred in denying his motion to suppress evidence supporting these convictions because appellant claims that the police breached his reasonable expectation of privacy in the contents of his personal computer—files from which appellant had displayed to the public through peer-to-peer, file-sharing software. We hold that the trial court did not err when it denied appellant's motion to suppress, and, accordingly, for the following reasons, we affirm appellant's twenty convictions for possession of child pornography.

I. Background

We consider the evidence on appeal ‘in the light most favorable to the Commonwealth as we must since it was the prevailing party in the trial court. Beasley v. Commonwealth, 60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). In this case, Sergeant Stephen Anders of the Bedford County Sheriff's Office (assigned to the Southern Virginia Internet Crimes Against Children Task Force) conducted an authorized, remote undercover investigation into the online sexual exploitation of children on the internet. On August 29, 2011, a certain internet protocol (IP) address of 174.66.3.142 caught his attention. Sergeant Anders suspected that this IP address was involved in the collection and sharing of child pornography. On September 1, 2011, through a program called Shareaza LE,” 2 Sergeant Anders was able to connect to, and begin downloading, a known file of child pornography from IP address of 174.66.3.142. On September 2, 2011, and on September 4, 2011, Sergeant Anders again was able to connect to the IP address of 174.66.3.142 and begin to download child pornography files.

Sergeant Anders also obtained and submitted an administrative subpoena to Cox Communications, the owner of the IP address at issue. In response to that administrative subpoena, Cox Communications informed Sergeant Anders that the IP address had been issued to Marvin Rideout of New Kent, Virginia.

On December 15, 2011, after verifying that Marvin Rideout was, in fact, the suspect detected by Special Agent Anders, Detective J. McLaughlin, III, of the New Kent County Sheriff's Office, obtained a search warrant for appellant's residence.3 Detective McLaughlin executed the search warrant at appellant's residence on the following morning. When Detective McLaughlin explained to appellant why he was there, appellant put his head down and said, “I have been waiting for y'all to come.” Sergeant Anders then analyzed various electronic items seized from appellant's home, finding many images and movies depicting child pornography.

Appellant filed a pre-trial motion to suppress the three files of child pornography giving rise to the search warrant (i.e., the files that Sergeant Anders was able to access on September 1, 2, and 4 of 2011), as well as all of the files found as a result of execution of the search warrant. At the suppression hearing, appellant testified that he had downloaded a software program called “Shareaza” somewhere between two and three years prior to the suppression hearing. Shareaza is, according to appellant's expert Eric Myer, designed to facilitate the sharing of files—“it wants to share.” As Sergeant Anders also explained, with respect to peer-to-peer sharing programs like Shareaza, “the whole purpose is for everybody to share.” Appellant had previously used a peer-to-peer file sharing program called Limewire for several years prior to downloading Shareaza, so he had several years of experience with peer-to-peer software. Appellant explained that, when he initially downloaded the Shareaza software, he had applied settings that he thought would prevent others from being able to access files on his computer. According to the theory advanced by appellant at the suppression hearing, despite selecting settings on Shareaza to prevent sharing, however, when appellant changed the location of the downloads from the default destination, he inadvertently activated the sharing of that folder without receiving any notification that he was actually sharing files.4 Thus, appellant claimed at the suppression hearing that he had been using the Shareaza software under the mistaken impression that he had set up Shareaza in a way that would prevent other users from gaining access to any files on his computer.

At the time of the suppression hearing, appellant's counsel and the Commonwealth stipulated to certain facts, including: (1) that any efforts appellant made to block access to his computer were ineffective when Sergeant Anders was able to obtain the three child pornography files from appellant's computer, and (2) that law enforcement “did not ‘hack’ or otherwise use nefarious means” to gain access to appellant's computer, but did so only through a modified version of Shareaza (that was designed to prevent the police from sharing child pornography with others). Appellant argued that he nonetheless had a reasonable expectation of privacy relating to the contents of his personal computer, including the files depicting child pornography, because he contended that he had applied settings to Shareaza that he thought would prevent others from accessing those files on his own computer. In overruling appellant's motion to suppress, the trial court stated as follows:

The Court makes the following findings: ... The Court finds that the defendant had no reasonable expectation of privacy when he installed a software program on his computer which has the primary purpose to share information among other computer users. Number two, that the police did not act in an improper manner to obtain information from the defendant's computer. And therefore the motion to suppress is denied.

Appellant thereafter entered Alford pleas to twenty charges of possessing child pornography, and reserved the right to appeal the trial court's ruling on appellant's motion to suppress.

II. Analysis

In reviewing a trial court's denial of a motion to suppress, [t]he burden is on the defendant to show that the denial of his suppression motion, when the evidence is considered in the light most favorable to the Commonwealth, was reversible error.” McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001) (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980); Weathers v. Commonwealth, 32 Va.App. 652, 658, 529 S.E.2d 847, 850 (2000)). On appeal, we review de novo the trial court's application of defined legal standards such as whether a defendant had a reasonable expectation of privacy sufficient to permit him to raise a Fourth Amendment challenge to a search.” Sharpe v. Commonwealth, 44 Va.App. 448, 454, 605 S.E.2d 346, 349 (2004) (citing United States v. Gordon, 168 F.3d 1222, 1225 (10th Cir.1999)). Furthermore, we are “bound by the trial court's findings of historical fact unless ‘plainly wrong’ or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.” McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)).

A. Whether Appellant Established An Expectation of Privacy

The Fourth Amendment of the United States Constitution states,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no [w]arrants shall issue, but upon probable cause, supported by oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

“Since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the touchstone of [Fourth] Amendment analysis has been the question whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740–41, 80 L.Ed.2d 214 (1984) (quoting Katz, 389 U.S. at 360, 88 S.Ct. at 516 (Harlan, J., concurring)). Thus,

in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”

Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 472, 142 L.Ed.2d 373 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143–44 n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387 (1978)); see also Smith v. Maryland, 442 U.S. 735, 740–41, 99 S.Ct. 2577, 2580–81, 61 L.Ed.2d 220 (1979) (adopting Justice Harlan's two-prong reasonable expectation of privacy test from his concurrence in Katz, 389 U.S. 347, 88 S.Ct. 507, which first looks at the person's subjective expectation of privacy and then considers whether that view is objectively reasonable).5 Appellant contends that, given his claim that he disabled the sharing features of Shareaza, he then retained a reasonable expectation of privacy in the contents of his computer and in the files located on his computer that...

To continue reading

Request your trial
14 cases
  • Williams v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • January 14, 2020
    ...must show ‘that he personally has an expectation of privacy in the [item] searched.’ " See id. (quoting Rideout v. Commonwealth, 62 Va. App. 779, 786, 753 S.E.2d 595 (2014) ). This subjective determination is a finding of fact given deference on appeal. Johnson v. Commonwealth, 26 Va. App. ......
  • White v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • May 10, 2016
    ...must first show “that he personally ha[d] an expectation of privacy in the place [or thing] searched.” Rideout v. Commonwealth, 62 Va.App. 779, 786, 753 S.E.2d 595, 599 (2014) (quoting Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 472, 142 L.Ed.2d 373 (1998) ). In evaluating this pro......
  • Kersey v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • August 29, 2017
    ...a defendant must show "that [she] personally ha[d] an expectation of privacy in the [thing] searched." Rideout v. Commonwealth, 62 Va. App. 779, 786, 753 S.E.2d 595, 599 (2014) (quoting Carter, 525 U.S. at 88). In evaluating this prong of the test, the Court must determine "whether the indi......
  • Commonwealth v. Shorter
    • United States
    • Circuit Court of Virginia
    • July 27, 2016
    ...of the Fourth Amendment."Sanders v. Commonwealth, 64 Va. App. 734, 744, 722 S.E.2d 15, 19-20 (2015) (quoting Rideout, 62 Va. App. 779, 786, 753 S.E.2d 595, 599 (2014)) (citing United States v. Jones, 132 S. Ct. 945, 951 (2012); Minnesota v. Carter, 525 U.S. 83, 88 (1998)). "A 'protective sw......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT