United States v. Wheelock
| Decision Date | 20 November 2014 |
| Docket Number | No. 14–1504.,14–1504. |
| Citation | 772 F.3d 825 |
| Parties | UNITED STATES of America, Plaintiff–Appellee v. Guy Edward WHEELOCK, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Alan D. Margoles, Michelle Speeter Margoles, argued, Saint Paul, MN, for appellant.
Manda M. Sertich, argued, Minneapolis, MN, for appellee.
Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
After law enforcement used an administrative subpoena to match Guy Edward Wheelock to a computer that downloaded child pornography through peer-to-peer software, Wheelock pled guilty to receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). The district court1 sentenced Wheelock as a repeat offender to a mandatory minimum of fifteen years imprisonment. Wheelock challenges both the use of an administrative subpoena to obtain his internet service subscriber information and the constitutionality of his mandatory minimum sentence. We have appellate jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.
Using investigative software, Officer Dale Hanson, of the Minneapolis Police Department, learned child pornography was available for download from a certain Internet Protocol (IP) address with Comcast Communications (Comcast) as the Internet Service Provider (ISP). Pursuant to Minn.Stat. § 388.23, Officer Hanson requested an administrative subpoena from the Hennepin County Attorney ordering Comcast to produce subscriber information associated with the identified IP address. Officer Hanson certified the information sought was “relevant to an ongoing, legitimate law enforcement investigation of Distribution of Child Pornography.”
The Hennepin County Attorney faxed Comcast an administrative subpoena ordering Comcast to produce the requested information. Comcast responded, providing Wheelock's name, address, and other information. Officer Hanson checked this information against the Minnesota sex offender registry, which revealed Wheelock's prior conviction for possessing child pornography.
Using this information, Officer Hanson obtained a search warrant for Wheelock's house, the execution of which disclosed several hard drives, DVDs, and CDs containing child pornography, as well as a computer actively downloading suspected child pornography video files using Shareaza, a peer-to-peer file-sharing program.
After being charged with possessing, receiving, and attempting to distribute child pornography in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B), (b)(1), and (b)(2), Wheelock moved to suppress all evidence obtained as a result of the administrative subpoena. He contends the subpoena violated the Fourth Amendment of the United States Constitution and federal and state statutes. Adopting the magistrate judge's report and recommendation, the district court denied the motions. Wheelock then conditionally pled guilty to receiving child pornography, preserving the suppression issue.
Before sentencing, Wheelock objected to 18 U.S.C. § 2252(b)(1) imposing a statutory mandatory minimum of fifteen years in prison for repeat offenders. Among other assertions, Wheelock argued this mandatory minimum is unconstitutional because it arbitrarily punishes receipt more than possession. The district court disagreed, concluding the statute survives a rational-basis inquiry. Wheelock timely appealed.
Wheelock first challenges the district court's denial of his motions to suppress, contending, as he did in the district court, Officer Hanson's use of an administrative subpoena violated the Fourth Amendment and federal and state statutes. “ ‘When reviewing the denial of a motion to suppress, we review the district court's factual findings for clear error and its legal conclusions de novo.’ ” United States v. Suing, 712 F.3d 1209, 1211–12 (8th Cir.2013) (quoting United States v. Anderson, 688 F.3d 339, 343 (8th Cir.2012) ).
Wheelock argues the use of an administrative subpoena (as opposed to a warrant) violated his Fourth Amendment privacy interest in the subscriber information obtained from Comcast. To prove he had a constitutionally cognizable privacy interest, Wheelock “must show that (1) he ‘has a reasonable expectation of privacy in the areas searched or the items seized,’ and (2) ‘society is prepared to accept the expectation of privacy as objectively reasonable.’ ” United States v. James, 534 F.3d 868, 872–73 (8th Cir.2008) (quoting United States v. Hoey, 983 F.2d 890, 892 (8th Cir.1993) ).
“ ‘[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.’ ” United States v. McIntyre, 646 F.3d 1107, 1111 (8th Cir.2011) (quoting United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) ). This principle is dispositive here. With Comcast in possession of his subscriber data, Wheelock cannot claim a reasonable “ ‘expectation of privacy in [the] government's acquisition of his subscriber information, including his IP address and name from third-party service providers.’ ” Suing, 712 F.3d at 1213 (alteration in original) (quoting United States v. Stults, 575 F.3d 834, 842 (8th Cir.2009) ); accord United States v. Perrine, 518 F.3d 1196, 1204–05 (10th Cir.2008) ().
Wheelock questions the logic and ongoing viability of the third-party disclosure principle in its current form by attempting to construct a Supreme Court majority from the concurrences in United States v. Jones, 565 U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). Wheelock weaves Justice Sotomayor's interest in revisiting the third-party principle, see Jones, 565 U.S. at ––––, 132 S.Ct. at 957 (Sotomayor, J., concurring) ( ), with Justice Alito's (joined by Justices Ginsburg, Breyer, and Kagan) recognition that Fourth Amendment doctrine may need to adapt to the demands of rapid technological advancement, see, e.g., id. at ––––, 132 S.Ct. at 962 (Alito, J., concurring). In Wheelock's view, the concurrences “illustrate the way in which the Court will decide privacy cases in the future.” Time may prove Wheelock right, and the Supreme Court may revise its view on third-party disclosures in the digital context, but until then, we are bound by precedent, and the actual majority opinion in Jones did not address the third-party disclosure doctrine, let alone purport to desert or limit it. Of the separately concurring justices, it was only Justice Sotomayor who voiced any dissatisfaction with the doctrine, and even then, she did not outright advocate its abandonment. See id. at ––––, 132 S.Ct. at 957 (Sotomayor, J., concurring).
Relying heavily on Justice Alito's concurrence, Wheelock also argues Minnesota's internet privacy statutes create a reasonable expectation of privacy in Wheelock's identifying information because Minnesota prohibits ISPs from “knowingly disclos[ing] personally identifiable information concerning a consumer,” Minn.Stat. § 325M.02, including information identifying the “consumer by physical or electronic address,” id. § 325M.01, subd. 5(1). “ ‘[W]hile state statutes and regulations may inform our judgement [sic] regarding the scope of constitutional rights, they fall far short of the kind of proof necessary to establish a reasonable expectation of privacy.’ ” Eagle v. Morgan, 88 F.3d 620, 626 n. 3 (8th Cir.1996) (quoting Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir.1995) ). “Quite to the contrary,” the precept of privacy from unreasonable searches “achieve[s its] scope from ‘deeply rooted notions of fundamental personal interests derived from the Constitution.’ ” Id. at 626 (quoting Nilson, 45 F.3d at 372 ). Plus, to the extent Minnesota statutes are relevant, Wheelock could not have reasonably expected § 325M.02 to protect his subscriber information given that law's provisions requiring the disclosure of information “to an investigative or law enforcement officer ... while acting as authorized by law” and information requested in “an administrative subpoena, issued under authority of a law of this state,” id. § 325M.03(2), (6).
Because Wheelock had no reasonable expectation of privacy in the subscriber information, a warrant was not necessary. See Suing, 712 F.3d at 1213.
Wheelock also contends Officer Hanson failed to follow proper procedure under both federal and Minnesota administrative subpoena statutes. First, the requirements in 18 U.S.C. § 3486 apply only to federal subpoenas and not to the subpoenas in this case—obtained pursuant to state law and issued by a state actor. See 18 U.S.C. § 3486(a)(1)(A) ().
Second, the Minnesota subpoena statute allows a county attorney to issue administrative subpoenas only “for records that are relevant to an ongoing legitimate law enforcement investigation.” Minn.Stat. § 388.23, subd. 1. Wheelock claims Officer Hanson violated this requirement by failing to provide a factual basis in his subpoena request from which the signing attorney could have made a “determination as to the legitimacy of the law enforcement investigation.” First, Officer Hanson requested retrievable information and certified “that the requested records [were] relevant to an ongoing, legitimate law enforcement investigation of Distribution of Child Pornography.” This is all the statute requires....
To continue reading
Request your trial