United States v. Thompson

Decision Date26 January 2023
Docket Number1:21-cr-190
PartiesUnited States of America, Plaintiff, v. James Lee Thompson, and Janine May Edwards, Defendants.
CourtU.S. District Court — District of North Dakota

ORDER DENYING MOTIONS TO SUPPRESS

Daniel L. Hovland, District Judge

Before the Court is Defendant James Thompson's motion to suppress filed on September 12, 2022. See Doc. No 51. The Government filed response in opposition to the motion on September 26, 2022. See Doc. No. 57. On October 18, 2022, Defendant Janine Edwards joined in the motion. See Doc. No. 60. The Government filed a response in opposition to Edward's motion on November 1, 2022. See Doc. No. 65. A hearing on the motions was held on November 15, 2022. The Government filed a post-hearing brief on December 20, 2022. See Doc. No. 77. Thompson filed a post-hearing brief on January 12, 2023. See Doc. No. 79. For the reasons set forth below the motions are denied.

I. BACKGROUND

The Court held a suppression hearing on November 15, 2022. Five law enforcement officers testified at the hearing: Special Agent James Shaw from the North Dakota Bureau of Criminal Investigation, North Dakota Parol and Probation Officer Ashley Gawryluk, Detective Travis Leintz from the Dickinson, North Dakota Police Department, Detective Samantha Okke from the Dickinson, North Dakota Police Department, and Special Agent Matt Hiatt from the North Dakota Bureau of Criminal Investigation. The factual background is derived from their testimony, as well as the law enforcement reports, affidavits, and other documentation in the record. See Doc. Nos. 55, 57-1 through 57-7, 62, and 73.

Sometime prior to May 2, 2021, Snapchat[1] flagged a single image uploaded to a Snapchat account through a specific internet protocol (IP) address. The image was identified as apparent child pornography using hash value matching technology.[2] The image was not viewed by Snapchat employees. The image had been uploaded to a publicly viewable space. On May 2, 2021, Snapchat submitted cybertip number 89705555 to the National Center for Missing and Exploited Children (NCMEC) and forwarded the suspected image to the NCMEC as required by 18 U.S.C. § 2258A. See Doc. No. 70. The cybertip included the account holder's IP address, email address, and username.

On May 27, 2021, the NCMEC forwarded the cybertip and the image to the North Dakota Bureau of Criminal Investigation (“BCI”). NCMEC staff did not view the image. BCI Special Agent Jesse Smith received the cybertip and viewed the publically viewable image without obtaining a search warrant. He determined the image was that of a nude female age 12-15 and appeared to be child pornography. The IP address associated with the Snapchat upload was registered to to Consolidated Telecom in Dickinson, North Dakota. Special Agent Smith subpoenaed the internet service provider (Consolidated Telecom) and learned that the IP address belonged to James Lee Thompson, who had a Dickinson, North Dakota, address and was a registered sex offender. The email (onemorerep1981@gmail.com) associated with the Snapchat account that uploaded the image was the same as that associated with the Consolidated Telecom account.

On June 4, 2021, the BCI forwarded cybertip number 89705555 to Detective Samantha Okke of the Dickinson Police Department for further investigation. Detective Okke, without a search warrant, reviewed the publically viewable image and determined it was child pornography. Detective Okke then ran a records check on Thompson and determined he was a registered sex offender currently on probation with North Dakota Parole and Probation for offenses against children. Thompson was classified as a lifetime registrant with moderate risk. Thompson's probation officer was Ashley Gawryluk. The email address listed on his sex offender registration matched the email address associated with the suspect Snapchat account and the Consolidated Telecom account. The terms and conditions of Thompson's probation included a search clause.

Detective Okke consulted with state Probation Officer Gawryluk and learned that Thompson was prohibited from accessing social media or setting up internet service without authorization from his probation officer and that he did not have such permission. On July 20, 2021, Probation Officer Gawryluk requested Detective Okke assist her in searching Thompson's cell phone based upon her suspicion that Thompson had violated the terms and conditions of his state probation related to the Snapchat upload.[3]

On July 21, 2021, Detective Okke and Detective Leintz conducted a sex offender compliance check on Thompson at the Dickinson Public Safety Center as part of a regularly scheduled check of all sex offenders in the Dickinson area. Thompson was placed in an interview room where he was read his Miranda rights and agreed to be interviewed. During the interview, Thompson made a number of incriminating statements and admissions, including communicating with an adult female named “Janine.” While the interview was occurring, Detective Lietz searched Thompson's cell phone. A text message string between Thompson and co-defendant Janine Edwards revealed multiple nude images of a prepubescent male child sent by Edwards to Thompson. The detectives determined the images were child pornography and Thompson admitted the images were used for sexual fantasy purposes. At this point the interview and search of the cell phone were terminated. The cell phone (Samsung Galaxy 21) was seized and a state search warrant for the phone was requested. Thompson was arrested.

On July 22, 2021, Detective Okke received a search warrant for Thompson's cell phone. The subsequent search of the phone produced an incriminating text message thread between Thompson and Edwards, along with nude images of a male child sent by Edwards to Thompson.

On July 22, 2021, BCI Special Agent Matthew Hiatt obtained and executed a search warrant for Edwards's home, person, and digital devices. Edwards was home at the time of the search. Her cell phone was seized during the search of her home. Edwards was Mirandized and agreed to be interviewed. Edwards made a number of incriminating statements during the interview.

On July 23, 2021, Special Agent Hiatt conducted a follow-up interview with Edwards. Prior to the follow-up interview, Edwards was read her Miranda rights and agreed to be interviewed. During the follow-up interview, Edwards made additional incriminating statements.

On October 6, 2021, Thompson and Edwards were indicted in federal court. The indictment charges Thompson with one count of sexual exploitation of a child in violation of 18 U.S.C. §§ 2251(a), 2251(e), and 3559(e); one count of receipt of images depicting the sexual exploitation of children in violation 18 U.S.C. §§ 2252(a)(2), 2252(b)(1), and 3559(e); and one count of commission of a felony offense involving a minor when required to register as a sex offender in violation of 18 U.S.C. § 2260A. Edwards was charged with one count of sexual exploitation of a child in violation of 18 U.S.C. §§ 2251(b) and 2251(e) and one count of distribution of images depicting the sexual exploitation of children in violation 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1).

II. LEGAL DISCUSSION

Thompson contends that the warrantless viewing of the image flagged by Snapchat and forwarded to the NCMEC, which became the subject of a cybertip provided to North Dakota law enforcement officers, violated the Fourth Amendment and requires suppression of that image and all evidence derived from the warrantless viewing. The Government contends Thompson cannot demonstrate a subjective expectation of privacy in his Snapchat upload that society is willing to recognize as reasonable. Specifically, the Government contends the upload was made to a public space, the Snapchat terms of service prohibit child pornography, and also state all such instances will be turned over to law enforcement.

The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The purpose of the Fourth Amendment is to safeguard the privacy and security of the people against arbitrary invasions by governmental officials. Carpenter v. United States, 138 S.Ct. 2206, 2213 (2018). “Searches conducted without a warrant are per se unreasonable, subject to a few well-established exceptions.” United States v. Hill, 386 F.3d 855, 858 (8th Cir. 2004).

As a general rule, the burden of proof is on the defendant who claims a Fourth Amendment violation has occurred and seeks to suppress evidence. Carter v. United States, 729 F.2d 935, 940 (8th Cir. 1984); United States v. Shipton, 5 F.4th 933, 936 (8th Cir. 2021). In the case of a warrantless search, the government bears the burden of establishing an exception to the warrant requirement. Id.; United States v. Kennedy, 427 F.3d 1136, 1140 (8th Cir. 2005); Hill, 386 F.3d at 858; United States v. Bruton, 647 F.2d 818 (8th Cir. 1981).

A. REASONABLE EXPECTATION OF PRIVACY

“The defendant moving to suppress bears the burden of proving he had a legitimate expectation of privacy that was violated by the challenged search.” United States v Muhammad, 58 F.3d 353, 355 (8th Cir. 1995); United States v. Pierson, 219 F.3d 803, 806 (8th Cir. 2000); United States v. Gomez, 16 F.3d 254, 256 (8th Cir.1994). This test is often referred to as the Katz inquiry and involves two discrete questions. Smith v. Maryland, 442 U.S. 735, 740 (1979); Katz v. United States, 389 U.S. 347, 351-52 (1967). The defendant must demonstrate: (1) a subjective expectation of privacy in the place or objects searched, that is whether the person has demonstrated through his conduct that he seeks to preserve something as...

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