United States of America v. Rusty Hood

Rusty Hood ("Hood") entered a

conditional guilty plea in the District of Maine to transporting

child pornography in violation of 18 U.S.C. § 2252A(a)(1). He now

challenges his conviction and a condition of his supervised

release. We affirm.

I.

On January 5, 2017, the Portland, Maine office of

Homeland Security Investigations ("HSI") of the United States

Department of Homeland Security received a call from the Cleveland,

Ohio HSI office regarding an investigation into the transmission

of child pornography via the smartphone messaging application Kik.

According to the information gathered by the Cleveland office, an

individual bearing the Kik username "rustyhood" had communicated

with a Cleveland resident, Brian Keeling, regarding the exchange

of child pornography and the sexual abuse of young children. The

"rustyhood" Kik profile photograph was of a man holding a baby and

wearing a sticker that indicated that he was a visitor at the Maine

Medical Center.

The conversation log between the two men showed that, on

May 16, 2016, "rustyhood" either sent or received what amounted to

thirteen pornographic images of young children and bragged

explicitly about his past sexual abuse of a neighbor's young

daughter. The investigation also revealed that between May 15,

2016 and July 4, 2016, "rustyhood" had posted a total of six

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pornographic images of children to a larger group chat as well as

two links to files containing a total of fifty-eight photographs

and eighteen videos of child pornography.

In response to this information, Portland HSI Agent

David Fife ("Fife") issued an Emergency Disclosure Request ("EDR")

-- a procedure authorized by the Stored Communications Act, 18

U.S.C. § 2702 -- to Kik requesting subscriber information and

recent IP addresses associated with the "rustyhood" account. Kik

responded that same day and provided Fife the date that the account

was registered, the email address used to register the account,

and the make and model of the device most recently used to access

the account. Additionally, Kik provided Fife the most recent IP

logs associated with the account, which indicated that someone had

accessed the account from three separate IP addresses between

December 7 and December 11 of 2016.

Based on the information acquired from Kik, Fife was

able to determine independently that the three IP addresses

belonged to the digital communications providers Metrocast Cable

("Metrocast") and Fairpoint Communications ("Fairpoint").

Utilizing an administrative summons procedure authorized by 18

U.S.C. § 2703, Fife requested from both companies the location

information associated with those IP addresses. Metrocast and

Fairpoint responded with information indicating that one of the IP

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addresses was assigned to the Oakwood Inn in Sanford, Maine, while

the other two addresses were linked to a residence there.

Through additional independent database searches that

Fife undertook, he determined that there was only one individual

in Maine with the name "Rusty Hood." This information led Fife to

Hood's Facebook profile. The profile displayed an image that

matched the image of the photograph attached to the "rustyhood"

Kik account, included a link directing users to "chat with [him]

on Kik" using the "rustyhood" username, and indicated that Hood

lived in Sanford, Maine. Further investigation revealed that the

Sanford Police Department had recently arrested a "Rusty Hood" and

that his booking photograph matched the man depicted in both the

Facebook and Kik profiles. Sanford Police also provided

information indicating that Hood had been a guest in the Oakwood

Inn at the same time the hotel's IP address was used to access

Hood's Kik account.

Based on this information, on January 19, 2017, the

government filed a criminal complaint that charged Hood with

transporting child pornography in violation of 18 U.S.C.

§ 2252A(a)(1) and arrested Hood the next day. Hood was then

indicted on March 1, 2017, for violations of both 18 U.S.C. §

2252A(a)(1) (transporting child pornography) and 18 U.S.C.

§ 2252A(a)(2) (receiving child pornography).

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After his arrest, Hood filed a motion to suppress the

evidence gathered from Kik, Metrocast, and Fairpoint pursuant to

the EDR and the administrative summonses "as well as all evidence

secured directly or indirectly as fruit of the evidence secured

from the named entities." The motion did so on the ground that

the government had violated the Fourth Amendment to the United

States Constitution by acquiring the information at issue from

these companies without a warrant. In response, the government

invoked what is known as the third-party doctrine to argue that it

was not required to obtain a warrant. The government explained

that the third-party doctrine controlled here because the

information that had been acquired from Kik, Metrocast, and

Fairpoint, respectively, had been voluntarily disclosed to those

companies, and thus any "fruit" from the acquisition of that

information was not tainted. The District Court agreed with the

government and rejected Hood's motion to suppress.

On January 29, 2018, Hood entered a conditional plea of

guilty to the charge of transporting child pornography and reserved

his right to appeal the District Court's denial of his motion to

suppress. The judgment reflecting that guilty plea noted that the

government had dismissed the second count of the indictment, which

was for receipt of child pornography in violation of 18 U.S.C. §

2252A(a)(2).

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Prior to sentencing, the United States Probation Office

prepared a presentence report ("PSR") that recommended, in part,

that Hood submit to periodic polygraph tests as a condition of his

supervised release. Hood objected to this condition, arguing that

the testing requirement violated his right against selfincrimination

under the Fifth Amendment to the United States

Constitution. The District Court disagreed, and, on April 26,

2018, sentenced Hood to 60 months' imprisonment followed by 10

years of supervised release, during which Hood would be subject to

periodic polygraph testing.

On May 2, 2018, Hood filed a timely notice of appeal, in

which he challenged the District Court's denial of his motion to

suppress and thus his conviction, as well as the District Court's

decision to impose periodic polygraph testing as a special

condition of his supervised release. We turn now to those

challenges.

II.

Hood moved to suppress "all evidence of any kind secured

without a warrant" from Kik, Metrocast, and Fairpoint, including

"his name, his email address, and the IP addresses," as well as

"additional personal information," that Hood believed the

companies also disclosed. On appeal, however, Hood appears to

limit his challenge only to the District Court's conclusion that

the government did not violate the Fourth Amendment in obtaining

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from the companies and then reviewing the "specific IP addresses"

associated with his Kik account, as well as the "specific dates

and times associated with each instance of internet access

accomplished from those IP addresses." We thus focus solely on

that contention,1 reviewing the District Court's factual findings

for clear error and its legal conclusions de novo in considering

Hood's challenge to the denial of his motion to suppress. See

United States v. Scott, 566 F.3d 242, 245 (1st Cir. 2009).

The Fourth Amendment generally requires that the

government obtain a warrant based on probable cause before

conducting a search. See Katz v. United States, 389 U.S. 347, 362

(1967) (Harlan, J., concurring) ("[U]nder the Fourth Amendment,

warrants are the general rule."). For an "intrusion into [the]

private sphere" to constitute a "search," a defendant must "seek[]

to preserve something as private," and "society [must be] prepared

to recognize [that privacy expectation] as reasonable." Carpenter

v. United States, 138 S. Ct. 2206, 2213 (2018) (quoting Smith v.

Maryland, 442 U.S. 735, 740 (1979)).

1 We note that Hood makes no argument that, insofar as the

District Court correctly found that the government did not violate

the Fourth Amendment in acquiring the information from Kik, it

still erred in finding that the government did not violate the

Fourth Amendment in acquiring any of the other information that he

sought to suppress below. We thus treat any such argument as

waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990).

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The government argues that the District Court correctly

ruled that Hood lacked the requisite reasonable expectation of

privacy in the information acquired from Kik under the so-called

third-party doctrine. See Smith, 442 U.S. at 743-44 (noting that

the Supreme Court has "consistently . . . held that a person has

no legitimate expectation of privacy in information he voluntarily

turns over to third parties") Pursuant to that doctrine, the

Supreme Court has separately held that the government need not

obtain a warrant to obtain recordings of voluntary conversations

surreptitiously captured via radio transmitter, see United States

v. White, 401 U.S. 745, 752-53 (1971), records from banks, see

United States v. Miller, 425 U.S. 435, 444 (1976), and certain

phone call data from pen registers, see Smith, 442 U.S. at 745-

46, because the information at issue in each instance had been

voluntarily disclosed by the defendant to a third party, see id.

at 743-44.

Hood does not dispute that he voluntarily disclosed the

information to Kik that he now seeks to suppress. He contends,

however, that the Supreme Court's recent decision in Carpenter

shows that the third-party doctrine does not apply to the

information at issue here and thus that the government needed a

warrant to acquire that information.

In Carpenter, the defendant challenged on Fourth

Amendment grounds the government's warrantless acquisition --

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pursuant to 18 U.S.C. § 2703 -- of his cell-site location

information ("CSLI") from his wireless telecommunications carrier

that had been sent to cell towers by his cell phone and stored by

that carrier. 138 S. Ct. at 2211-12. The CSLI data acquired in

Carpenter depicted the defendant's movements across nearly 13,000

specific location points during a 127-day span. Id. at 2212.

The government, in response, invoked the third-party

doctrine to justify its warrantless acquisition of the CSLI from

the carrier. Id. at 2219. The Supreme Court held, however, that

the government's acquisition of the CSLI from the carrier

constituted a search, for which the government needed a warrant,

because Carpenter retained a reasonable expectation of privacy in

the CSLI at issue even though he had shared it with his wireless

carrier. Id. at 2217-20.

Carpenter explained that, given the location information

that CSLI conveyed and the fact that a cell phone user transmits

it simply by possessing the cell phone, if the government could

access the CSLI that it had acquired without a warrant in that

case, then the result would be that "[o]nly the few without cell

phones could escape" what would amount to "tireless and absolute

surveillance." Id. at 2218. Carpenter thus declined to extend

the third-party doctrine to the CSLI at issue in that case and

instead determined that Carpenter did have a reasonable

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expectation of privacy in the CSLI that he sought to suppress.

Id. at 2219-20.

Hood contends that the IP address data that the

government acquired from Kik without a warrant -- which concerned

Hood's internet activity only on Kik and only over a four-day span

-- is not materially different from the CSLI that was at issue in

Carpenter. He notes in this regard that this information enabled

Fife to determine Hood's precise location when he logged on to

Kik, as well as the date and time of those digital transmissions.

For that reason, he contends, Carpenter establishes that the

government needed a warrant to acquire the information from Kik

that he seeks to suppress, because "[t]he notion that anytime one

accesses the internet from their cell phone, they are effectively

providing the police a specific record of their whereabouts, is in

direct contrast to society’s expectations."

But, an internet user generates the IP address data that

the government acquired from Kik in this case only by making the

affirmative decision to access a website or application. By

contrast, as the Supreme Court noted in Carpenter, every time a

cell phone receives a call, text message, or email, the cell phone

pings CSLI to the nearest cell site tower without the cell phone

user lifting a finger. See id. at 2220. In fact, those pings are

recorded every time a cell phone application updates of its own

accord, possibly to refresh a news feed or generate new weather

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data, id., such that even a cell phone sitting untouched in a

suspect's pocket is continually chronicling that user's movements

throughout the day.

Moreover, the IP address data that the government

acquired from Kik does not itself convey any location information.

The IP address data is merely a string of numbers associated with

a device that had, at one time, accessed a wireless network. By

contrast, CSLI itself reveals -- without any independent

investigation -- the (at least approximate) location of the cell

phone user who generates that data simply by possessing the phone.

Id. at 2211-12.

Thus, the government's warrantless acquisition from Kik

of the IP address data at issue here in no way gives rise to the

unusual concern that the Supreme Court identified in Carpenter

that, if the third-party doctrine were applied to the acquisition

of months of Carpenter's CSLI, "[o]nly the few without cell phones

could escape . . . tireless and absolute surveillance." Id. at

2218. Accordingly, we conclude that Hood did not have a reasonable

expectation of privacy in the information that the government

acquired from Kik without a warrant. This conclusion, moreover,

is in accord not only with the rulings of all the circuits that

had addressed this issue before Carpenter had been decided, see

United States v. Caira, 833 F.3d 803, 806-08 (7th Cir. 2016);

United States v. Wheelock, 772 F.3d 825, 828-29 (8th Cir. 2014);

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United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010); United

States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010); United States

v. Perrine, 518 F.3d 1196, 1205 (10th Cir. 2008); United States v.

Forrester, 512 F.3d 500, 510-11 (9th Cir. 2008), but also with the

ruling of the one circuit that has done so in the wake of Carpenter,

see United States v. Contreras, 905 F.3d 853, 857 (5th Cir. 2018).2

III.

We next address Hood's argument regarding the District

Court's inclusion of periodic polygraph testing as a special

condition of his supervised release. We review the imposition of

special conditions for supervised release under the abuse-ofdiscretion

standard. United States v. Smith, 436 F.3d 307, 310

(1st Cir. 2006). Under that standard, we review purely legal

questions de novo, factual issues for clear error, and "judgment

calls" through a "classically deferential" lens. Riva v. Ficco,

615 F.3d 35, 40 (1st Cir. 2010).

Hood argues that the polygraph testing condition

facially violates his Fifth Amendment right against selfincrimination,

because it forces him either to answer potentially

2 Given that Carpenter does not provide a basis for making an

exception to the third-party doctrine with respect to the

government's acquisition from Kik of the IP address data that Hood

seeks to suppress, we need not address his separate challenge to

the District Court's denial of his request for an evidentiary

hearing on whether, under Carpenter, he has a reasonable

expectation of privacy in that information.

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incriminating polygraph questions truthfully or to have his

supervised release revoked. He relies for this assertion on

Minnesota v. Murphy, which provides that the Fifth Amendment

"privileges [individuals] not to answer official questions put to

[them] in any other proceeding, civil or criminal, formal or

informal, where the answers might incriminate [them] in future

criminal proceedings." 465 U.S. 420, 426 (1984) (quoting Lefkowitz

v. Turley, 414 U.S. 70, 77 (1973)). But, we agree with the

government that our decision in United States v. York, 357 F.3d

14, 25 (1st Cir. 2004), requires us to reject this facial challenge

to the condition of supervised release at issue.

The condition that Hood challenges requires that he

"submit to periodic random polygraph examinations as directed by

the probation officer to assist in treatment and/or case planning

related to behaviors potentially associated with sex offense

conduct." The condition also contains limiting language, however.

That limiting language states, in relevant part: "[n]o violation

proceedings will arise solely on the defendant[’s] failure to pass

a polygraph examination, or on the defendant’s refusal to answer

polygraph questions based on 5th amendment grounds. Such an event

could, however, generate a separate investigation."

Insofar as this limiting language ensures that "[n]o

violation proceedings will arise . . . on the defendant's refusal

to answer polygraph questions," the condition is not materially

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different from the one that we upheld in York against a similar,

Fifth Amendment-based facial challenge. Id. There, the relevant

limiting language in the condition stated that "[w]hen submitting

to a polygraph exam, the defendant does not give up his Fifth

Amendment rights." Id.

We concluded in York that, although such limiting

language was not entirely clear in terms of the protection that it

affords a defendant from being penalized for refusing to answer a

polygraph question, it comfortably could be construed to ensure

that a refusal to answer a question cannot supply a basis for a

violation proceeding. Id. That is no less true here. If anything,

the condition at issue in this case is more explicit in its

assurance that "the defendant's refusal to answer polygraph

questions based on 5th amendment grounds" will not be used as the

basis for a violation proceeding.

Moreover, we noted in York that the government had urged

us to adopt this Fifth Amendment-protective construction of the

condition's limiting language. Id. The government similarly

argues here that the condition's "plain language" demonstrates

that no revocation of supervised release would occur due to an

invocation of Hood's Fifth Amendment privilege.

Thus, we follow the government's lead here -- just as we

did in York. Accordingly, we construe this condition to be just

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as protective of the defendant's Fifth Amendment rights as the

condition that we upheld in York.

Hood does point out that the word "solely" appears in

the text of the condition's limiting language, and it is true that

the limiting language that we considered in York did not contain

either that qualifying word or an equivalent one. Nevertheless,

the word "solely" need not be read to modify both the "defendant's

failure to pass a polygraph examination" and the "defendant's

refusal to answer polygraph questions based on 5th amendment

grounds." If the word is read to modify only the former phrase,

then it provides no basis for construing the condition to suggest

that Hood's refusal to answer a polygraph question may be relied

upon in a decision to initiate violation proceedings against him.

We thus do not read the word "solely" to apply to the portion of

the limiting language that is akin to the limiting language that

was present in the condition at issue in York. As a result, the

appearance of the word "solely" in the condition's limiting

language provides no basis for distinguishing York.3

3 We note that Hood makes no argument that the portion of the

condition's limiting language that states that "[s]uch an event

could . . . generate a separate investigation" provides a basis

for reaching a different conclusion from the one that we reached

in York. Nor do we see how that portion could, given that it does

not make clear what set of circumstances would prompt such an

investigation, what that investigation would entail, or what

consequences might arise from such an investigation.

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Hood separately contends that, even if the polygraph

condition is not facially unconstitutional, it is unconstitutional

as applied to him due to his limited mental ability and the absence

of any requirement that he be warned, in compliance with the

Supreme Court's decision in Miranda v. Arizona, of his

constitutional rights before he is subjected to polygraph

questioning. 384 U.S. 436, 467-74 (1966). But, this as-applied,

Fifth Amendment-based challenge necessarily depends on future

factual contingencies. For that reason, it, unlike the facial

challenge to the condition that we have rejected on the merits, is

not ripe for our review. Cf. United States v. Medina, 779 F.3d

55, 67 (1st Cir. 2015); United States v. Sebastian, 612 F.3d 47,

52 (1st Cir. 2010); York, 357 F.3d at 25; see also United States

v. Rojas-Tapia, 446 F.3d 1, 7 (1st Cir. 2006) (holding that low

mental acuity cannot, without evidence of actual coercion, suffice

to prove that a Fifth Amendment violation occurred).

IV.

For the forgoing reasons, we affirm the District Court's

decision as to both Hood's motion to suppress and the condition of

his supervised release.