State v. Fuller

• Decision Date: 11 July 2014
• Docket Number: No. 20110512.,20110512.
• Court: Utah Supreme Court
• Parties: STATE of Utah, Plaintiff and Appellee, v. Bradley FULLER, Defendant and Appellant.

332 P.3d 937

764 Utah Adv. Rep. 7

STATE of Utah, Plaintiff and Appellee,

v.Bradley FULLER, Defendant and Appellant.

No. 20110512.

Supreme Court of Utah.

July 11, 2014.

Sean D. Reyes, Att'y Gen., Jeffrey S. Gray, Asst. Att'y Gen., Salt Lake City, for appellee.

Randall K. Spencer, Stephanie L. O'Brien, Provo, for appellant.

Chief Justice DURRANT, opinion of the Court:

Introduction

¶ 1 After police discovered child pornography on Defendant Bradley Fuller's computer, he was charged with ten counts of sexual exploitation of a minor, all second-degree felonies. Pursuant to a plea agreement, Mr. Fuller pled guilty to five counts of voyeurism but reserved the right to appeal the trial court's order denying his Motion to Suppress. On appeal, he challenges the warrant under the Fourth Amendment to the United States Constitution—arguing that it was not sufficiently particular and that it lacked probable cause. He also seeks to suppress statements he made while officers questioned him, claiming that the questioning violated his Fifth Amendment right against self-incrimination. Finally, he argues that he is entitled to greater protection under the Utah Constitution than under the United States Constitution.

¶ 2 We conclude that the warrant was supported by probable cause and was sufficiently particular. As to probable cause, Mr. Fuller properly raised a staleness argument in his Motion to Suppress, but he raises his additional argument—that under Franks v. Delaware the affiant misled the magistrate into issuing the warrant by omitting critical information—for the first time on appeal. We thus reject his Franks claim and also conclude that the information in the warrant was not stale, since a mere two months had passed since the initial search and the warrant application. And the warrant that was issued was not overly broad, given that the warrant application established a wide scope of probable cause, supported by multiple pieces of evidence, including the discovery of an advertisement for a child pornography convention.

¶ 3 We also conclude that Mr. Fuller was not in custody, so the officers' failure to read him his Miranda rights did not violate his Fifth Amendment right against self-incrimination. Finally, we decline to review Mr. Fuller's state constitutional claim because it was not adequately briefed.

Background

¶ 4 On September 29, 2008, Special Officer Amanda Jatkowski conducted a child pornography investigation over the Internet using a peer-to-peer (P2P) file-sharing program known as LimeWire. LimeWire uses a file-sharing protocol known as Gnutella, which allows users to connect directly to each other's computers to download files rather than through a central file server.¹ This connection is established through a user's Internet Protocol (IP) address, which is a set of four numbers separated by decimal points, such as 155.97.137.55. This IP address is assigned by the internet service provider (ISP) to either a router or a particular computer, depending on whether a router or computer is connected to the modem. The IP address can either be static (meaning that it remains the same) or dynamic (meaning that it can change between sessions of internet usage).

¶ 5 Using LimeWire, Officer Jatkowski searched for the string of terms “kids teen women,” which are each known to be associated with child pornography. The search uncovered that someone using the IP address 67.186.233.246 was sharing numerous files with pornographic file descriptions. After reviewing several files shared by this user, Officer Jatkowski confirmed that they contained child pornography, including several videos, pictures, and an advertisement for a child pornography convention.

¶ 6 Using the IP address associated with the child pornography, Officer Jatkowski referenced the American Registry for Internet Numbers website to confirm that the IP address was assigned by Comcast Cable Communications. A week later, she served an administrative subpoena on Comcast, seeking account information associated with the user's IP address. Comcast revealed that the IP address had been dynamically assigned, but that on the date of Officer Jatkowski's search, the address had been assigned to Robert Fuller, the account holder, whose service address was 224 Woodland Drive in Orem, Utah.

¶ 7 In November 2008, Special Agent Sonja Nordstrom learned through an informant that a number of individuals lived at the home. This included Robert Fuller, the Comcast account holder, who is also the Defendant Bradley Fuller's older brother. Erin Branch, a male cousin, also lived in the home. Concerning to Agent Nordstrom was the fact that both Erin Branch and Robert Fuller had child sexual abuse charges brought against them. There were pending charges against Robert Fuller for sodomy on a child and aggravated sexual abuse of a child. Branch was a registered sex offender who had been convicted of sexual abuse of a child in 2000.

¶ 8 Because of the search results and the individuals likely involved, Agent Nordstrom applied for a federal search warrant on December 2, 2008. The application for the warrant requested permission to search the entire premises, which was described in “Attachment A,” and it also asked permission to seize multiple items therein as described in “Attachment B,” including computer hardware, software, documentation, and other electronic devices or records that may be used to store or access child pornography. The accompanying affidavit also discussed the details of the investigation and common habits of users and distributors of child pornography. The magistrate issued the warrant the same day, adopting attachments A and B verbatim into the warrant that was issued.

¶ 9 Three days later, officers from the FBI, the Utah County Sheriff's Office, and the Orem City Police Department executed the warrant. Two related families were living at the home, and the officers secured a total of eight occupants in their sweep of the home, including the Defendant, Mr. Fuller. When the officers entered the basement room where Mr. Fuller and two other men were sleeping in separate beds, Mr. Fuller sat up and tried to manipulate the computer that was at the foot of his bed. An officer instructed Mr. Fuller not to touch the computer, then grabbed Mr. Fuller's arm and escorted him outside.

¶ 10 Robert Fuller, the Defendant's brother, was interviewed at the scene. He disclosed that he uses a router in his home and that he established separate static IP addresses for each of the computers in the home that connect to that router. He admitted to downloading pornography but expressly denied accessing or storing child pornography. He also told officers that he did not use LimeWire but that his brother, the Defendant, did, and that he had counseled his brother months ago not to access child pornography.

¶ 11 Mr. Fuller was also interviewed at the scene. When he learned that the officers were searching for child pornography, he admitted that “inappropriate” material would be found on his computer. An officer asked Mr. Fuller if he was willing to speak with him in his car, and Mr. Fuller agreed. The officer specifically told Mr. Fuller that he was not under arrest, that he could leave at any time, and that he did not have to speak with him or answer his questions. Mr. Fuller agreed to speak with the officer. They spoke in the officer's car, with the doors unlocked. He admitted to using LimeWire and to downloading pornography, including “small kid type stuff.” He also admitted to having “thousands” of images on his computer. Mr. Fuller was not arrested, and he was allowed to leave.

¶ 12 In their search, the officers located a total of eight computers in the home. Based in part on the information that officers learned at the scene, they limited their search to Robert Fuller's two computers and Mr. Fuller's computer and thumb drive. Using ImageScan search software, officers conducted a search of Mr. Fuller's computer and discovered a host of images and videos whose titles were indicative of child pornography. An officer reviewed the files and confirmed the presence of child pornography. Accordingly, they seized Mr. Fuller's computer, along with Robert's two computers, for additional analysis. Agent Nordstrom searched the computers further and discovered fourteen video files containing child pornography on Mr. Fuller's computer.

¶ 13 The United States District Attorney's Office declined to prosecute the case, but the State of Utah filed a criminal information in state district court, charging Mr. Fuller with ten counts of sexual exploitation of a minor, all second-degree felonies. Mr. Fuller thereafter filed a Motion to Suppress the evidence seized and statements he had made during the officers' search of the home. The central argument in his motion was that the warrant lacked particularity because it identified only the offending IP address, rather than the specific LimeWire user or computer. He also claimed that the officers failed to read him his Miranda rights. There was no evidentiary hearing, but instead the parties and the trial court relied on the search warrant application and affidavits in support of their arguments for and against the motion. The warrant itself was never made part of the record.

¶ 14 In support of Mr. Fuller's particularity argument, he included an affidavit from Todd Gabler, a computer forensic examiner. The affidavit describes how unauthorized users can access someone else's router. It also states that LimeWire assigns users a UsernameID, and that a user wanting to download a file can identify the host computer's MAC address, which is an identifier assigned to the host computer's network card. Finally, the affidavit explained that officers could insert a USB stick into the suspected host computer to determine whether the UsernamelD was present on the hard drive. The affidavit failed to explain, however, what a MAC address was or how police could...