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United States v. Morel

United States Court of Appeals, First Circuit

April 19, 2019

UNITED STATES OF AMERICA, Appellee,
v.
DAVID MOREL, JR., Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph Laplante, U.S. District Judge]

          Daniel N. Marx, with whom Fick & Marx LLP was on brief, for appellant.

          Seth R. Aframe, Assistant U.S. Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.

          Before Lynch, Lipez, and Barron, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         After the district court denied his motions to suppress evidence, David Morel, Jr., entered a conditional plea to one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He was sentenced to seventy months' imprisonment. Morel uploaded child pornography images to a digital album on Imgur, an image hosting website. Law enforcement learned of the images on Imgur from the National Center for Missing and Exploited Children (NCMEC), which had received a report about the images from an anonymous tipster.

         On appeal, Morel challenges the district court's determinations that Morel had no reasonable expectation of privacy in the images he uploaded to Imgur or in his internet protocol (IP) address, and that the state warrant to search Morel's computer was supported by probable cause. We affirm.

         I. A. Facts

         We describe the findings of fact made by the district court after evidentiary hearings on the motions to suppress. We supplement those facts, as necessary, with other facts from the record.

         1. CyberTipline Report

         The investigation of Morel began with an anonymous report submitted to NCMEC. NCMEC is a non-profit organization that maintains the "CyberTipline," a website through which members of the public, law enforcement, and others report child exploitation and child pornography. Those using the CyberTipline to make a report are required to include the date, time, and substance of the incident in the report, and may submit reports anonymously. Electronic service providers that "obtain[] actual knowledge of any facts and circumstances . . . from which there is an apparent violation" or a "planned or imminent" violation of statutes concerning child pornography are legally obligated to report such information to NCMEC. 18 U.S.C. § 2258A(a). NCMEC must forward reports it receives to an appropriate law enforcement agency. Id. § 2258A(c).

         On November 23, 2013, an unidentified individual submitted a report, which included a list of Uniform Resource Locators (URLs) said to depict child pornography, to the CyberTipline. The list of URLs spanned two pages. This tipster did not include any personal identifying information in the report.[1] NCMEC staff analysts investigated the contents of the report. One of the URLs listed in the report led to a "gallery" or "album" of images hosted by Imgur. Each image in the album also had its own specific URL; an analyst obtained the URLs of the images in the album that appeared to contain child pornography without clicking on the individual URLs, [2] and copied those URLs into a report.

         On November 26, 2013, NCMEC sent a notice to Imgur summarizing the instances of child pornography reported to have been found on its website, which included URLs of images reported by the tipster. NCMEC's notice asked Imgur to "[p]lease review the reported URL[s] to determine if [they] contain[] content that violates federal and/or state law or your Terms of Service or Member Services Agreement."

         After reviewing the reported URLs, Imgur filed reports with NCMEC concerning three images obtained through the CyberTipline, stating that the corresponding URLs flagged by NCMEC appeared to contain child pornography. Imgur attached copies of the three images to the reports. Imgur provided the IP address from which the images were uploaded to Imgur's servers, which was the same for all three images. Imgur also reported that the images were uploaded in November 2013. Imgur then deleted the images from its server. Using a publicly available website, NCMEC looked up the IP address included in Imgur's report and learned that it was associated with a Comcast subscriber in Derry, New Hampshire.

         On December 6, 2013, Imgur submitted three additional reports of alleged child pornography associated with the same IP address to NCMEC through the CyberTipline. Those images had also been uploaded to Imgur in November 2013. That made a total of six reported images of alleged child pornography from this IP address.

         2. The Investigation

         NCMEC provided the six reports to the New Hampshire Internet Crimes Against Children Task Force on December 12, 2013, which forwarded the reports to the Derry, New Hampshire Police Department on January 10, 2014. Detective Kennedy Richard, experienced in investigating child pornography and child sexual exploitation, reviewed the images in the reports. He entered the IP address from the reports into a publicly-available website and learned that the IP address was associated with a Comcast account. He then obtained a subpoena requesting information from Comcast about the owner of the IP address. On February 14, 2014, Detective Richard learned that the IP address belonged to a David Morel at Pingree Hill Road in Derry, New Hampshire.

         About two weeks earlier, on February 1, 2014, David Morel, Jr., had reported to the Derry Police Department that his laptop computer was stolen during a burglary of the Pingree Hill Road residence. The Derry Police Department recovered the stolen computer and other stolen property the following week. Morel went to the police station on February 7, 2014, and identified the computer he had reported stolen. The police retained the computer as evidence of the burglary.

         In late March 2014, Detective Richard called the Pingree Hill Road residence. Two weeks later, Morel's father called Detective Richard back and stated that his son, David Morel, Jr., had lived at the Pingree Hill Road residence on the date that the images were uploaded in November 2013, but had moved out later, in February 2014. Morel's father stated that he did not use the email address associated with the Comcast account connected to the IP address in question, but that he believed his son used that email address.

         On April 16, 2014, Detective Richard sought and obtained a warrant from a New Hampshire state court to search Morel's computer, which was still in police custody. In the affidavit supporting the warrant application, Detective Richard did not attach the six suspected child pornography images, which depicted different girls. The affidavit stated that Detective Richard had worked as a Derry police officer since 1993, and had been a detective for the Derry Police Department since 1999. As a detective, his primary assignment was in the Juvenile Division as an investigator. He had received specialized training concerning sexual assault investigations, including in child abuse and exploitation cases. He had also been a member of the Internet Crimes Against Children Task Force since 2005, and had assisted in the execution of about fifty search warrants related to possession and distribution of illegal child sexual abuse and exploitation images.

         The affidavit described the NCMEC reports and the IP address information connected to Morel. The affidavit also described the nudity and the sexual or sexually suggestive positioning of the girls depicted in each of the six suspected child pornography images. Some images contained more than one girl. The ages of the different girls were described as follows: (1) "A naked female . . . . She appears to be under the age of 10"; (2) "Two naked females . . . both believed to be under the age of 10"; (3) "A female believed to be under the age of 10"; (4) "Two naked females believed to be under the age of 13"; (5) "A naked female [sic] to be under the age of 13"; and (6) "A naked female believed to be under the age of 13." The affidavit specified that some of the other females in the images were of "unknown age." The affidavit did not describe the girls in such terms as "pubescent" or "prepubescent."

         Pursuant to the warrant, Detective Richard obtained a forensic copy of the hard drive of Morel's computer, which was still in police custody. He reviewed the contents and saw what he estimated to be about 200 videos and images of child pornography.

         On April 28, 2014, Morel was arrested on the charge of attempted possession of child sexual abuse images.[3] Morel was taken into custody and Detective Richard interviewed him at the Derry police station. Morel was given Miranda warnings, waived his Fifth Amendment rights, and admitted to possessing child pornography on his computer.

         3. Imgur Terms of Service and Image Hosting Practices

         The Imgur Terms of Service stated at the time, in relevant part:

You can upload images anonymously and share them online with only the people you choose to share them with. If you make them publicly available, they may be featured in the gallery. This means that if you upload an image to share with your friend, only your friend will be able to access it online. However, if you share an image with Facebook, Twitter, Digg, Reddit, et cetera, then it may end up in the gallery.

         The following witnesses testified at the suppression hearings: Brianna Walker, an Imgur employee who was an online "store manager" and who also handled "user support" and "rules";[4] John Shehan, the vice ...


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