State v. Reisner

Citation253 A.3d 1273
Decision Date30 June 2021
Docket NumberNo. 2018-27-C.A., K2/15-791A,2018-27-C.A.
CourtUnited States State Supreme Court of Rhode Island
Parties STATE v. Ralph REISNER.

Mariana E. Ormonde, Department of the Attorney General, for State.

Kara J. Maguire, Office of the Public Defender, for Defendant.

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

Justice Lynch Prata, for the Court.

On May 24, 2017, a Kent County Superior Court jury found the defendant, Ralph Reisner, guilty of possession of child pornography in violation of G.L. 1956 § 11-9-1.3.1 He was thereafter sentenced to a suspended term of five years at the Adult Correctional Institutions, with probation. The defendant was also ordered to meet special conditions of probation and to register as a sex offender.

The defendant raises two issues on appeal before this Court. First, he challenges the order denying his motion to suppress evidence that was seized from his home, arguing that there was no probable cause to support the issuance of a search warrant. Second, he argues that the trial justice erred in denying his motion for a mistrial, maintaining that the prosecutor's reference during opening statements to a portion of defendant's statement that had been previously excluded from evidence warranted a mistrial. For the reasons outlined in this opinion, we vacate the judgment of the Superior Court.

Technical Background

Because cases involving the crime of possession of child pornography often involve technical terminology, and because a basic understanding of the technology in play is critical to an analysis of the issues before the Court in the present case, we begin with an overview of the technical background and terminology that is pertinent to this case.

"An Internet Protocol address (IP address) is a unique string of numbers that all computers or mobile devices that connect to the Internet acquire."

In re Austin B. , 208 A.3d 1178, 1181 (R.I. 2019) (citing Commonwealth v. Martinez , 476 Mass. 410, 71 N.E.3d 105, 107 (2017) ). "IP addresses are owned by an Internet service provider (ISP)," such as Verizon Internet Service (Verizon). Id. When someone purchases Internet service from an ISP, the ISP "assigns a unique IP address to the subscriber at a particular physical address." Id. (citing Martinez , 71 N.E.3d at 107 ). The subscriber's "IP address may change, but the ISP keeps a log of which IP address is assigned to each subscriber at any given moment in time." Id. (citing Martinez , 71 N.E.3d at 107 ). "[T]he correlation between an IP address and a physical address" is strong, "at least when the ISP has verified its assignment of a particular IP address to a subscriber at a specific physical address at a specific point in time." Id. (quoting Martinez , 71 N.E.3d at 107 ).

In addition, this case also concerns "peer-to-peer file-sharing network[s]." In re Austin B. , 208 A.3d at 1181. "When a person uses [those] types of file-sharing services, it is akin to ‘leaving one's documents in a box marked free on a busy city street.’ " Id. (emphasis added) (quoting Clifford Fishman & Anne McKenna, Wiretapping and Eavesdropping § 23:25 at 88 (2016)). "[T]o use a peer-to-peer network, an individual must download software for the program." Id. People use peer-to-peer networks for a variety of reasons, including downloading music and videos, and to share computing resources. "Peer-to-peer networks use hash values to verify the content of electronic files that are available for copying." Id. Hash values, which are often referred to as " ‘electronic fingerprints[,] * * * consist of a ‘string of numbers that, for all practical purposes, uniquely identifies a digital file’ and will change any time a file is altered." Id. (quoting Martinez , 71 N.E.3d at 108 n.1 ). Law enforcement and other entities have over time "identified and confirmed that certain hash values contain child pornography." Id.

Facts and Travel

Turning to the facts of this case, in June 2015, Detective Lieutenant Stephen Riccitelli of the North Smithfield Police Department, who is also a member of the Rhode Island State Police (RISP) Internet Crimes Against Children Task Force (ICAC), was monitoring peer-to-peer file-sharing networks for child pornography when files suspected to be child pornography were downloaded from IP address 100.10.41.6. Detective Brian Macera, a ten-year veteran of the RISP, viewed the downloaded files and concluded that the files contained child pornography, as defined in § 11-9-1.3.

According to the affidavit attached to the search warrant application, Det. Macera then conducted a search of the American Registry of Internet Numbers and determined that IP address 100.10.41.6 was owned by Verizon. Verizon was served with a subpoena, directing the company to provide the name, address, and telephone number of the subscriber of IP address 100.10.41.6 to the RISP. Verizon identified the subscriber of IP address 100.10.41.6 as Heather Reisner, defendant's wife, and the location of the computer connected with that IP address as 15 Harding Street, West Warwick, Rhode Island.

Detective Macera, armed with that information, applied for a search warrant for 15 Harding Street, West Warwick, and requested that a member of the RISP Computer Crimes Unit conduct a forensic review of seized evidence related to the possession and transfer of child pornography.

The affidavit that Det. Macera used to support his application for the search warrant generally described peer-to-peer networks, explained what hash values are, and stated that "over time numerous files have been identified through a specific hash value as confirmed child pornography." In detailing what had occurred during the investigation to that time, the affidavit linked files suspected to contain child pornography to the IP address associated with defendant's home address and stated that "files containing suspected child pornography were downloaded."

Detective Macera explained that he viewed the downloaded files and described one of the files as follows:

"File Name: Jamtien.mpeg
"Date/Time: June 15, 2015 at 11:42 PM (UTC)
"HASH Value:
2aad88e182cc9c66ccd7ba15aa186ecfac39f370
"Description: This video file depicts a prepubescent female on the beach removing her bathing suit exposing her genitals."

Significantly, despite having explained that specific hash values have been used to identify numerous files containing child pornography, Det. Macera did not specify that the "HASH Value: 2aad88e182cc9c66ccd7ba15aa186ecfac39f370" matched a hash value for confirmed child pornography or otherwise explain that the hash value at issue had been used to identify Jamtien.mpeg as a file containing child pornography. Detective Macera did not describe or provide any further information for any of the other files that he viewed, and he also did not attach a still image from the video.

A District Court judge approved the search warrant, and soon thereafter, on August 3, 2015, a Monday morning at 6:15 a.m., the RISP executed the search warrant. During the course of the search, RISP seized defendant's computer—a Mac Pro desktop. A police forensic examination of defendant's computer revealed seven videos of child pornography. The defendant waived his Miranda rights and was interviewed by the police.

During the interview, defendant was questioned about using BitTorrent2 software, child pornography, access to Wi-Fi in his apartment, and downloading files. After he was informed about the computer forensics analysis that was to be performed on his computer, defendant said, "Well I need to talk to a lawyer." Nevertheless, RISP did not terminate the interview.3

Based on the evidence discovered by the forensic investigation of defendant's computer, an arrest warrant was issued for defendant. The defendant was subsequently charged by information with one count of possession of a computer hard drive that contained videos of child pornography on or about August 5, 2015, in violation of § 11-9-1.3(b)(2), and one count of knowingly mailing, transporting, delivering, or transferring videos of child pornography, in violation of § 11-9-1.3(b)(1). Before the trial commenced in the Superior Court, defendant moved to suppress the evidence that had been seized during the search, alleging that Det. Macera's affidavit was insufficient to establish probable cause under the Fourth Amendment and state grounds.

After hearing arguments from the state and from defendant, the trial justice issued a written decision denying defendant's motion to suppress. The trial justice ruled that the search warrant's accompanying affidavit contained an adequate description of child pornography, albeit "barely[,]" to support a probable cause determination under the standard set out in United States v. Brunette , 256 F.3d 14 (1st Cir. 2001). Specifically, the trial justice reasoned that Det. Macera described the setting (a beach), the female's pose (undressing), the female's attire (bathing suit), and the focal point of the video (a prepubescent female and her genitals). The trial justice distinguished this case from Brunette , in that the affidavit here did not "merely ‘parrot’ the statutory definition of child pornography." See Brunette , 256 F.3d at 17.

The trial justice also concluded that the affidavit established probable cause, determining that the image described in the Jamtien.mpeg video file was "likely ‘graphic’ "—applying the statutory definition of graphic4 —and "likely lascivious"—before applying the factors set forth in United States v. Dost , 636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987).5 Applying the Dost factors, the trial justice concluded that (1) because a prepubescent female removing her bathing suit in a public place was an unnatural pose for someone the child's age, an inference could be made that the female in the video was nude or partially nude; (2) the action of undressing in front of a camera suggested a degree of sexual coyness or willingness to engage in sexual...

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