U.S. v. Kennedy

• Decision Date: 03 January 2000
• Docket Number: No. 99-10105-01.,99-10105-01.
• Citation: 81 F.Supp.2d 1103
• Parties: UNITED STATES of America, Plaintiff, v. Michael R. KENNEDY, Defendant.
• Court: U.S. District Court — District of Kansas

81 F.Supp.2d 1103

UNITED STATES of America, Plaintiff, v. Michael R. KENNEDY, Defendant.

No. 99-10105-01.

United States District Court, D. Kansas.

January 3, 2000.

COPYRIGHT MATERIAL OMITTED

Debra L. Barnett, Office of United States Attorney, Wichita, KS, for plaintiff.

Daniel E. Monnat, Monnat & Spurrier, Chartered, Wichita, KS, for defendant.

MEMORANDUM AND ORDER

BELOT, District Judge.

On August 25, 1999, Defendant Michael R. Kennedy was indicted for the intentional receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) (Doc. 1) and forfeiture under 18 U.S.C. § 2253. Before the court for its consideration are:

1. Defendant's motion to suppress evidence (Doc. 13);

2. Defendant's memorandum in support of his motion to suppress (Doc. 14)¹;

3. The government's response (Doc. 20);

4. The government's memorandum in support of its response (Doc. 21); and

5. Defendant's reply (Doc. 22),

An evidentiary hearing was held December 2, 1999. For the following reasons, defendant's motion to suppress is denied.

FACTS

On July 2, 1999, Steven Idelman was working as a customer support specialist for Road Runner, a high speed Internet service provider.² At approximately 9:00 p.m., Idelman received an anonymous phone call from a still-unidentified male ("the caller"). The caller told Idelman that he was at a friend's house, scanning other computers through the Internet and had viewed images of child pornography on a computer the caller believed to be serviced by Road Runner. The caller told Idelman the IP address of the computer from which the images were viewed, 24.94.200.54,³ and the directory and file names in which the images were located.⁴ The caller did not say that he was a law enforcement officer or that he was directed to view the computer's files by any law enforcement officer. The caller did not ask Idelman to call the police.

Shortly after the anonymous call, Idelman went to a computer and accessed the IP address given to him by the caller. His purpose was to determine if what the caller told him was correct. He located the computer with the IP address 24.94.200.54 and the directory tree and files mentioned by the caller. Idelman viewed two images located within those files. One of the images depicted two boys, whom Idelman estimated to be approximately eight or nine years old, posed in a sexual nature.⁵ Idelman then sent an e-mail to his supervisor, Anna Madden, describing the anonymous phone call and the results of his search of the computer with IP address 24.94.200.54.

On July 6, 1999, Kerry Jones, a network engineer for Road Runner, received an e-mail from Anna Madden asking him to research the owner of the Road Runner account connecting to the computer with the IP address 24.94.200.54. Jones was able to determine that the account was assigned to Rosemary D. Kennedy.⁶ Mr. Jones was able to determine that the account was assigned to the same IP address on July 2, 1999. Believing that the customer service agreement between Road Runner and the account holder authorized him to search a computer's files for offensive material, Jones then viewed the files on the computer's hard drive.⁷ The files depicted images of boys, whom Jones estimated to be approximately 10 to 13 years old, engaged in sexual activity. Jones then printed out an image of the computer's directory tree in which the files with offensive material were located.

That same day, after consulting with Road Runner's corporate attorney, Scott Petrie, the manager of Road Runner, made the decision to contact law enforcement authorities. Kerry Jones contacted the Exploited Children's Unit of the Wichita Police Department, but his phone call was not returned. Road Runner then contacted Special Agent Leslie Earl of the FBI. Special Agent Earl was informed by Road Runner that the FBI would need to obtain a court order for it to be able to supply the FBI with any subscriber information.

The United States Attorney's Office then applied to a United States magistrate judge for an order directing Road Runner to disclose subscriber information related to IP address 24.94.200.54. In the application, the Assistant United States Attorney stated that:

the Federal Bureau of Investigation is conducting a criminal investigation in connection with possible violation(s) of Tile 18, United States Code, Sections 2252 and 2252A; it is believed that the subject of the investigation used Road Runner's IP address 24.94.200.54 on July 2, 1999, at 11:48 p.m. in furtherance of the subject offenses; and that the information sought to be obtained is relevant to a legitimate law enforcement inquiry in that it is believed that this information will assist in the investigation relating to the aforementioned offenses.

The magistrate judge issued an order, which was presented to Road Runner personnel, who provided the FBI with the following information:

The subscriber whose computer used I.P. address 24.94.200.54 on July 2, 1999, at 11:49 p.m. was Rosemay (sic) D. Kennedy of 9120 Harvest Court, Wichita, Kansas, telephone 316-722-6593. Two users were listed for that account: RKENNEDY@KSCable.COM and KENNEDYM@KSCable.Com. The account had been active since June 7, 1999.

Special Agent Earl next went to the house located at 9120 Harvest Court in Wichita, Kansas. He observed a Chrysler Sebring parked in the driveway. A records check with the Kansas Department of Motor Vehicles revealed that the car was registered to Michael R. Kennedy. Special Agent Earl then called the phone number given to the government by Road Runner. A person identifying himself as Michael Kennedy answered the phone.

In initiating the phone call, Special Agent Earl asked Kennedy if he was satisfied with his Road Runner cable modem Internet service.

Kennedy confirmed that his address was 9120 Harvest Court, Wichita, Kansas, and he confirmed that he was the primary user of the Road Runner cable modem Internet service. Kennedy said he was satisfied with the service and especially liked the speed and quality of the e-mail service. Kennedy estimated he spent an average of two to three hours per night online. Kennedy noted that he always left his system on and connected to the Internet. Kennedy said he used his Internet access only for pleasure and his computer and modem were located in his home.

Kennedy said his computer system was a Gateway 450 megahertz Pentium II with a 17 gigabyte hard drive. When asked if he had any concerns about the Road Runner service Kennedy said he thought the company should warn customers about the possibility of someone else trying to enter their computers through the Internet. Kennedy said he held Internet accounts through Netcom and AOL in the past. Kennedy left those services because they were too slow and he could not use e-mail and Usenet news groups the way he wanted to. Kennedy noted that it took too long for him to download mail with pictures attached on those other services.

(Affidavit in Support of Search Warrant at 14-15, Doc. 14, Ex. A). The government applied for and obtained a search warrant for property and evidence located at 9120 Harvest Court.

On August 10, 1999, Special Agents John Sullivan and Leslie Earl went to defendant's home to interview him and execute the search warrant. When defendant came to the door, the agents identified themselves. Defendant invited them in and the three men sat down in the kitchen. During the interview, defendant's mother and brother were in the living room, watching television.

Special Agent Sullivan told defendant why they were interviewing him. Defendant was informed that he was not under arrest and that he would not be arrested at the end of the interview. After providing the agents with some identifying information, defendant stated that he was 46 years old, did not have any drug or alcohol addiction problems, that he was not at that time under the influence of drugs or alcohol, and that he was not being treated for any physical or psychological problems. Defendant told the agents that he had spent one year in college.

Defendant stated that he owned three computers and used Multimedia Cablevision as his Internet service provider. Defendant acknowledged that he had downloaded pictures of young boys engaged in sexual acts from the Internet onto his hard drive. Defendant told the agents that he did not pay for any of the pictures, he did not know the identity of the person who posted the pictures on the Internet, he never discussed the pictures with anyone, nor had he ever transferred the pictures to anyone else. Defendant denied ever using an Internet chat room and claimed he never had any sexual contact with anyone under the age of 18. Although defendant admitted hearing that the possession of sexually explicit pictures of children was illegal, he was not really sure about the legality. Defendant stated that he did not think that anyone would ever find out that he had downloaded the pictures.

Defendant then showed the agents four sexually graphic pictures of young boys that he had printed out. These pictures were in defendant's bedroom. Defendant showed the agents his computers in the basement.

The interview lasted twenty to thirty minutes. Defendant never raised the issue of an attorney. Defendant never refused to answer a question. The agents never promised defendant anything in return for his statements. Defendant was not arrested at the conclusion of the interview and was allowed to turn himself in after the return of the indictment.

ANALYSIS

A. SUBSCRIBER INFORMATION RECEIVED FROM ROAD RUNNER

Defendant first argues the subscriber information the FBI received from Road Runner should be suppressed. Defendant argues that the information was received in violation of the Electronic Communications Privacy Act and the Cable Communications Policy Act. Defendant further argues that all evidence obtained as a result of the illegal attainment of defendant's subscriber information should be suppressed as...