U.S. v. Hood

• Decision Date: 03 April 2019
• Docket Number: No. 18-1407,18-1407
• Citation: 920 F.3d 87
• Parties: UNITED STATES of America, Appellee, v. Rusty HOOD, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

920 F.3d 87

UNITED STATES of America, Appellee,

v.Rusty HOOD, Defendant, Appellant.

No. 18-1407

United States Court of Appeals, First Circuit.

April 3, 2019

J. Hilary Billings, Portland, ME, Assistant Federal Defender, for appellant.

Benjamin M. Block, Baltimore, MD, Assistant U.S. Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

Before Barron, Circuit Judge, Souter,^* Associate Justice, and Selya, Circuit Judge.

BARRON, Circuit Judge.

Rusty Hood ("Hood") entered a conditional guilty plea in the District of Maine to transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1). He now challenges his conviction and a condition of his supervised release. We affirm.

I.

On January 5, 2017, the Portland, Maine office of Homeland Security Investigations ("HSI") of the United States Department of Homeland Security received a call from the Cleveland, Ohio HSI office regarding an investigation into the transmission of child pornography via the smartphone messaging application Kik. According to the information gathered by the Cleveland office, an individual bearing the Kik username "rustyhood" had communicated with a Cleveland resident, Brian Keeling, regarding the exchange of child pornography and the sexual abuse of young children. The "rustyhood" Kik profile photograph was of a man holding a baby and wearing a sticker that indicated that he was a visitor at the Maine Medical Center.

The conversation log between the two men showed that, on May 16, 2016, "rustyhood" either sent or received what amounted to thirteen pornographic images of young children and bragged explicitly about his past sexual abuse of a neighbor's young daughter. The investigation also revealed that between May 15, 2016 and July 4, 2016, "rustyhood" had posted a total of six pornographic images of children to a larger group chat as well as two links to files containing a total of fifty-eight photographs and eighteen videos of child pornography.

In response to this information, Portland HSI Agent David Fife ("Fife") issued an Emergency Disclosure Request ("EDR") -- a procedure authorized by the Stored Communications Act, 18 U.S.C. § 2702 -- to Kik requesting subscriber information and recent IP addresses associated with the "rustyhood" account. Kik responded that same day and provided Fife the date that the account was registered, the email address used to register the account, and the make and model of the device most recently used to access the account. Additionally, Kik provided Fife the most recent IP logs associated with the account, which indicated that someone had accessed the account from three separate IP addresses between December 7 and December 11 of 2016.

Based on the information acquired from Kik, Fife was able to determine independently that the three IP addresses belonged to the digital communications providers Metrocast Cable ("Metrocast") and Fairpoint Communications ("Fairpoint"). Utilizing an administrative summons procedure authorized by 18 U.S.C. § 2703, Fife requested from both companies the location information associated with those IP addresses. Metrocast and Fairpoint responded with information indicating that one of the IP addresses was assigned to the Oakwood Inn in Sanford, Maine, while the other two addresses were linked to a residence there.

Through additional independent database searches that Fife undertook, he determined that there was only one individual in Maine with the name "Rusty Hood." This information led Fife to Hood's Facebook profile. The profile displayed an image that matched the image of the photograph attached to the "rustyhood" Kik account, included a link directing users to "chat with [him] on Kik" using the "rustyhood" username, and indicated that Hood lived in Sanford, Maine. Further investigation revealed that the Sanford Police Department had recently arrested a "Rusty Hood" and that his booking photograph matched the man depicted in both the Facebook and Kik profiles. Sanford Police also provided information indicating that Hood had been a guest in the Oakwood Inn at the same time the hotel's IP address was used to access Hood's Kik account.

Based on this information, on January 19, 2017, the government filed a criminal complaint that charged Hood with transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1) and arrested Hood the next day. Hood was then indicted on March 1, 2017, for violations of both 18 U.S.C. § 2252A(a)(1) (transporting child pornography) and 18 U.S.C. § 2252A(a)(2) (receiving child pornography).

After his arrest, Hood filed a motion to suppress the evidence gathered from Kik, Metrocast, and Fairpoint pursuant to the EDR and the administrative summonses "as well as all evidence secured directly or indirectly as fruit of the evidence secured from the named entities." The motion did so on the ground that the government had violated the Fourth Amendment to the United States Constitution by acquiring the information at issue from these companies without a warrant. In response, the government invoked what is known as the third-party doctrine to argue that it was not required to obtain a warrant. The government explained that the third-party doctrine controlled here because the information that had been acquired from Kik, Metrocast, and Fairpoint, respectively, had been voluntarily disclosed to those companies, and thus any "fruit" from the acquisition of that information was not tainted. The District Court agreed with the government and rejected Hood's motion to suppress.

On January 29, 2018, Hood entered a conditional plea of guilty to the charge of transporting child pornography and reserved his right to appeal the District Court's denial of his motion to suppress. The judgment reflecting that guilty plea noted that the government had dismissed the second count of the indictment, which was for receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2).

Prior to sentencing, the United States Probation Office prepared a presentence report ("PSR") that recommended, in part, that Hood submit to periodic polygraph tests as a condition of his supervised release. Hood objected to this condition, arguing that the testing requirement violated his right against self-incrimination under the Fifth Amendment to the United States Constitution. The District Court disagreed, and, on April 26, 2018, sentenced Hood to 60 months' imprisonment followed by 10 years of supervised release, during which Hood would be subject to periodic polygraph testing.

On May 2, 2018, Hood filed a timely notice of appeal, in which he challenged the District Court's denial of his motion to suppress and thus his conviction, as well as the District Court's decision to impose periodic polygraph testing as a special condition of his supervised release. We turn now to those challenges.

II.

Hood moved to suppress "all evidence of any kind secured without a warrant" from Kik, Metrocast, and Fairpoint, including "his name, his email address, and the IP addresses," as well as "additional personal information," that Hood believed the companies also disclosed. On appeal, however, Hood appears to limit his challenge only to the District Court's conclusion that the government did not violate the Fourth Amendment in obtaining from the companies and then reviewing the "specific IP addresses" associated with his Kik account, as well as the "specific dates and times associated with each instance of internet access accomplished from those IP addresses." We thus focus solely on that contention,¹ reviewing the District Court's factual findings for clear error and its legal conclusions de novo in considering Hood's challenge to the denial of his motion to suppress. See United States v. Scott, 566 F.3d 242, 245 (1st Cir. 2009).

The Fourth Amendment generally requires that the government obtain a warrant based on probable cause before conducting a search. See Katz v. United States, 389 U.S. 347, 362, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring) ("[U]nder the Fourth Amendment, warrants are the general rule."). For an "intrusion into [the] private sphere" to constitute a "search," a defendant must "seek[ ] to preserve something as private," and "society [must be] prepared to recognize [that privacy expectation] as reasonable."

Carpenter v. United States, ––– U.S. ––––, 138 S.Ct. 2206, 2213, 201 L.Ed.2d 507 (2018) (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) ).

The government argues that the District Court correctly ruled that Hood lacked the requisite reasonable expectation of privacy in the information acquired from Kik under the so-called third-party doctrine. See Smith, 442 U.S. at 743-44, 99 S.Ct. 2577 (noting that the Supreme Court has "consistently ... held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties") Pursuant to that doctrine, the Supreme Court has separately held that the government need not obtain a warrant to obtain recordings of voluntary conversations surreptitiously captured via radio transmitter, see United States v. White, 401 U.S. 745, 752-53, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), records from banks, see United States v. Miller, 425 U.S. 435, 444, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), and certain phone call data from pen registers, see Smith, 442 U.S. at 745-46, 99 S.Ct. 2577, because the information at issue in each instance had been voluntarily disclosed by the defendant to a third party, see id. at 743-44, 99 S.Ct. 2577.

Hood does not dispute that he voluntarily disclosed the information to Kik that he now seeks to suppress. He contends, however, that the Supreme Court's recent decision in Carpenter shows that the third-party doctrine does not apply to the information at issue here and thus that the government needed a warrant to acquire that information.

In Carpenter, the defendant challenged on Fourth Amendment grounds the government's...