United States v. Barnes, CASE NO. CR18-5141 BHS
| Decision Date | 18 June 2019 |
| Docket Number | CASE NO. CR18-5141 BHS |
| Court | U.S. District Court — Western District of Washington |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DONNIE BARNES SR., Defendant. |
This matter comes before the Court on Defendant Donnie Barnes, Sr.'s ("Barnes") motion to suppress. Dkt. 32. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby denies the motion for the reasons stated herein.
Barnes is charged with one count each of production, distribution, and possession of child pornography. Dkt. 13. Trial is set to commence on October 29, 2019.
On April 22, 2019, Barnes filed a motion to suppress and a motion for leave to file an overlength motion. Dkts. 31, 32. On May 6, 2019, the Government responded and filed a motion for leave to file an overlength response. Dkt. 36. On May 16, 2019, Barnes replied and filed a motion for leave to file an overlength reply. Dkts. 39, 40. On May 17, 2019, the Government surreplied and filed a motion for leave to surreply. Dkts. 41, 42.
In February 2018, Special Agent Reese Berg ("Agent Berg"), working for Homeland Security Investigations ("HSI"), a component of the Bureau of Immigration and Customs Enforcement ("ICE," collectively "ICE-HSI") began investigating Barnes. Agent Berg's investigation started after ICE-HSI received a lead from Australian police that an individual using the name "TICK10T012TOCK" had uploaded sexually explicit images of a female minor to a foreign photo-sharing website. Dkt. 1 at 3-4. After viewing the images, an Australian officer obtained a list of internet protocol ("IP") addresses that "TICK10T012TOCK" used to log onto the photo-sharing website.1 Id. at 6. One of these IP addresses, 73.140.63.12, belonged to internet service provider ("ISP") Comcast Communications ("Comcast"). Id. ¶ 13. A HSI officer issued a summons to Comcast requesting subscriber information for that IP address on February 20, 2018. Id. HSI issued the summons under the authority of 19 U.S.C. § 1509(a)(1). Dkt. 36-1 at 6-7.
Comcast complied with the summons by providing the subscriber records associated with its IP address. Id., ¶ 14; Dkt. 36-1 at 3 (summons return). Specifically,Comcast responded that IP address 73.140.63.12 was assigned to customer K.T., associated with a physical service address in Spanaway, Washington, and that the email user identification for the account was dobsr@comcast.net. Dkt. 36-1 at 3. The extent of the subscriber information provided by Comcast to ICE-HSI is shown in the below image.
Id. Barnes and K.T. live together at the Spanaway address, along with K.T.'s two children. Dkt. 32 at 3.
After receiving the above internet subscriber information from Comcast, Agent Berg sought a warrant authorizing the search of Barnes's person and home from Magistrate Judge Teresa L. Fricke. Dkt. 32-2. Before applying for the warrant, Agent Berg conducted surveillance on Barnes's home on two dates, February 28 and March 1, 2018. Dkt. 32-2, ¶¶ 22, 25. On February 28, Agent Berg saw K.T. leave the home at 6:30 a.m., accompanied by her two children. Id. ¶ 22. On March 1, Agent Berg saw Barnes leave the home at 6:02 a.m. Id. ¶ 25 Based on Agent Berg's observations, Judge Fricke found good cause to grant permission to execute the search warrant at night. Dkt. 36-2 at 2 (); Fed. R. Crim. P. 41 ().
Law enforcement executed the warrant shortly after 5:00 a.m. on March 6, 2018.2 Dkt. 1 ¶ 17. Barnes was home and agreed to speak with Agent Berg. Id. During the interrogation Barnes admitted possessing incriminating depictions of K.T.'s minor daughter, which was later corroborated through forensic examination of digital devices seized from the Spanaway residence pursuant to the warrant. Id. ¶¶ 17-18; Dkt. 36 at 4.
In surreply, the Government asserts that in reply Barnes "raises two matters not previously presented in his opening brief and mischaracterizes the Government's position on a third." Dkt. 42. Under local rule, the filing of surreplies in this District is limited to:
Local Rule W.D. Wash. LCR 7(g). The Government requests that the Court not consider the two arguments Barnes allegedly raised for this first time in reply. Dkt. 42 at 1-2. Therefore, the Court will construe that part of the Government's surreply as a motion to strike those arguments from the record, consistent with Local Rule W.D. Wash. LCR 7(g).
However, the Government also argues that Barnes's reply "mischaracterize[d] the Government's position" regarding the applicability of the good faith exception to the exclusionary rule in this case. Dkt. 42 at 2 (citing Dkt. 40 at 1). The Government presents legal argument in surreply as to why it believes the exception is applicable. Dkt. 42 at 2-3. This is "[e]xtraneous argument" not made in furtherance of a motion to strike and therefore the Court will not consider it. Local Rule W.D. Wash. LCR 7(g). To the extent the Government seeks leave to surreply to respond to Barnes's mischaracterization of its position, the motion is denied.
Turning to the other two arguments, the Court must determine whether Barnes raised for the first time in reply a request for dismissal of count one as an alternative remedy to suppression and a factual argument that he and K.T. jointly possessed the Comcast account. See Dkt. 40 at 2-3. Regarding dismissal of count one under the Court's supervisory powers, the Court finds that Barnes made this request for the first time in reply, cutting off the Government's ability to respond to the legality of the application of an alternative remedy. Because Barnes failed to request the alternative remedy in his opening brief, he has waived the argument and the court will not consider it. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (). The Court therefore grants the motion to strike Barnes's request for an alternative remedy from the reply.
Regarding Barnes's argument that he and K.T. shared the Comcast account, Dkt. 40 at 2, the Court finds that Barnes presented sufficient detail in his opening brief to negate the Government's assertion that this argument was raised for the first time in reply. The question is close because Barnes neither discussed his alleged interest in the account nor presented facts about his control over the account in his opening brief. Compare Dkt. 32 at 2-3 with Dkt. 40 at 2-3. The Court ultimately concludes that this argument should not be stricken because although Barnes did not file the summons return from Comcast as an exhibit, in his opening brief he stated that information provided in the return listed the email user associated with the account as "dobsr@comcast.net." Dkt. 32 at 3. Moreover, it was clear from Barnes's opening brief that Barnes lived at the residence and, while not directly stated, used the internet there. Id. at 2-3. Because Barnes presented these details in his opening brief, it was appropriate for Barnes to argue in reply that he "shared" the account with K.T., based on their "joint access" to the internet service, their joint payment of the bill, and their "intermingled" account information. Dkt. 40 at 2. Therefore, the Court will consider this argument alongside the Government's challenge to the sufficiency of Barnes's evidentiary support for the argument when analyzing Barnes's standing to assert a Fourth Amendment claim.
Barnes moves to suppress all fruits of summonses issued by ICE-HSI and all fruits of the search of his home, including his statements to law enforcement. Dkt. 32 at 1. Theproponent of a motion to suppress has the burden of establishing that his Fourth Amendment rights were violated by a challenged search or seizure. United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005) (citation omitted).
Barnes contends that Agent Berg's use of § 1509 summonses was unlawful and violated his Fourth Amendment privacy interest in the internet subscriber information obtained from Comcast. Dkt. 32 at 4-12. The Government responds that (1) Barnes does not have standing to assert a Fourth Amendment claim over an account that is not his; (2) subscriber information associated with a particular IP address is not protected by the Fourth Amendment because customers voluntarily provide this information to their internet service providers; and (3) § 1509 authorized Agent Berg to issue the summons because Comcast's records were relevant to ICE-HSI's investigation of child exploitation offenses. Dkt. 36 at 5-9. The Court concludes that the Government's arguments are dispositive.
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