2010-455 The State of New Hampshire v. James W. Mello

Michael A. Delaney

No. 2010-455

Cheshire

following a bench trial on four counts of delivery of child pornography. See DUGGAN, J. The defendant, James W. Mello, appeals his conviction

crimes related to the sexual exploitation of children, Detective James ___________________________ The record supports the following facts. As an aid to the investigation of

Wilson, Bush, Durkin & Keefe, P.C.

search for information held by an out-of-state corporation. We affirm. from a search warrant issued by the Keene District Court, which authorized a Court (Arnold, J.) erred in denying his motion to suppress evidence derived RSA 649-A:3, I(a), II(a) (2007) (amended 2008). He argues that the Superior

brief and orally), for the defendant.

attorney general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Constitution and cite federal cases for guidance only. State v. Ball Constitution. We first address the defendant’s claim under our State Amendment to the Federal Constitution and Part I, Article 19 of the State subscriber information was issued in violation of his rights under the Fourth On appeal, the defendant argues that the warrant to obtain his

information obtained from Comcast. because the defendant did not have a reasonable expectation of privacy in the evidence held by an out-of-state corporation. The trial court denied the motion district court exceeded the scope of its jurisdiction by issuing a warrant for obtained as a result of the initial search warrant. He contended that the The defendant subsequently filed a motion to suppress all evidence

counts of delivery of child pornography. warrant and seized evidence that led to the indictment of the defendant on four equipment. McLaughlin and the Nashua Police Department executed the additional warrant to search the defendant’s home for certain computer-related Based upon this information, McLaughlin applied for and received an

payment. number, account status, IP assignment, e-mail user IDs, and method of

court in the first instance. State v. Goss, 150 N.H. 46, 47 (2003). suppress de novo, except as to any controlling facts determined by the superior subscriber’s name, address, telephone number, type of service, account 226, 231-33 (1983). We review the superior court’s order on a motion to faxed it to Comcast. Comcast responded by faxed letter and provided the, 124 N.H. information. The Keene District Court issued the warrant and McLaughlin IP address. The warrant stated that Comcast was in possession of that authorizing a search for subscriber information associated with the defendant’s corporation. On October 20, 2008, McLaughlin obtained a search warrant as Nashua and his Internet service provider as Comcast, a New Jersey based McLaughlin’s check of the IP address also identified the subscriber’s location determined the defendant’s corresponding Internet Protocol (IP) address. Using the defendant’s e-mail address, “wildbill0911,” McLaughlin

mail and real-time chat. numerous pornographic images depicting male children to McLaughlin by eof these exchanges were sexually explicit in nature and the defendant sent mail and real-time chat exchanges between October 12 and October 15. Many in nature. McLaughlin and the defendant subsequently engaged in several eseveral photographs of nude male children, some of which were pornographic list on the social networking site. The defendant’s profile on the site included October 2008, the defendant added McLaughlin’s fictitious profile to his friend boy and included a photograph of a boy who was approximately that age. In social networking site. The profile indicated that he was a fourteen-year-old McLaughlin of the Keene Police Department placed a profile on an Internet the constitutional sense. See p. 3 constitutional rights only if the effort to obtain evidence constituted a search in

Nonetheless, the defective warrant infringed upon the defendant’s

witness is found. Id certificate must then be presented to a court in the county in which the the court requesting the presence of that witness. RSA 613:3, I. That commenced or is about to commence by issuing a certificate under the seal of witness in any grand jury investigation or criminal prosecution that has provides that a New Hampshire court may summons a material out-of-state 3 appearance of an out-of-state witness in New Hampshire. This uniform statute been adopted by all fifty states and the District of Columbia, for requesting the Alternatively, RSA chapter 613 provides a uniform method, which has the information to Comcast. not have a reasonable expectation of privacy because he voluntarily conveyed prepared to recognize as reasonable. The State argues that the defendant did subjective expectation of privacy in the subscriber information that society is (1987). The defendant asserts that a search took place because he had a

corporation. may be other permissible means for obtaining evidence from an out-of-state We also note that these two examples do not foreclose the possibility that there Hampshire court to summons Comcast’s keeper of records to New Hampshire. such evidence, neither of which was followed in this case. See. Thus, in this case, the State could have requested a New For example, the legislature has provided two mechanisms for obtaining

and address of the subscriber. RSA 7:6-b, I, III. the carrier must provide certain identifying information, including the name common carrier has been, is being, or may be used for an unlawful purpose,” that the service furnished to a person or to a location by such communications attorney general, or his designee, that he “has reasonable grounds for belief transfer of medium.” RSA 570-A:1, IX (2001). Upon written demand of the transmission, or other means which transfers information without physical cable, radio or electromagnetic transmission, optical or fiber-optic transmission of any form of information between subscribers by means of wire, engaged in providing communications services to the general public through “communications common carrier,” see RSA 7:6-b, defined as “a person (2003); RSA ch. 613 (2001). The first method pertains only to records held by a

Hampshire. proper procedures for obtaining records and evidence located outside of New state corporation. Accordingly, we take this opportunity to outline some of the that the district court did not have jurisdiction to issue a warrant to an out-ofargument, the State conceded that the search warrant was defective. We agree to issue a search warrant to a corporation outside of New Hampshire. At oral The defendant contends that the district court did not have the authority public utility. State v. Gubitosi p. 4 of privacy in business records containing information voluntarily provided to a We have previously held that a defendant has no reasonable expectation

and the procurement of a customer’s basic subscriber information from an numbers recorded in the ordinary course of business by a telephone company Likewise, we see no meaningful distinction between obtaining telephone

We confronted a similar issue more recently in Gubitosi

ordinary course of its business.” Id. at 677-78. “recorded for billing purposes and retained by [the telephone company] in the reasonable expectation of privacy in a record of a defendant’s cell phone calls no protected privacy interest in a record of his outgoing phone calls, there is no Gubitosi, 152 N.H. at 678. There, we determined that just as a defendant has specifically declined the defendant’s invitation to overrule Valenzuela. society would be prepared to recognize as reasonable., where we decide whether the defendant’s subjective expectation of privacy was one that company’s lines, addressed to recipients of completed calls. Id expectation of privacy in his subscriber information. Accordingly, we need only. the company from the contents of communications transmitted over the 130 N.H. at 183. We also specifically distinguished these communications to communications from the defendant to the telephone company.” Valenzuela, telephone company, “the registers did no more than record voluntary making a record of a decoded signal sent from the defendant’s phone to the States v. White, 401 U.S. 745, 752 (1971). We explained in Valenzuela that in 293, 302 (1966); Lewis v. United States, 385 U.S. 206, 210-11 (1966); United informant or agent conceals his true identity. Hoffa v. United States, 385 U.S. defendant to a government informant or agent is admissible even if the “agent-informer” cases have consistently held that information revealed by a within the meaning of Article 19. Valenzuela, 130 N.H. at 188-89. These The State does not dispute that the defendant had a subjective record outgoing telephone numbers dialed by the defendant was not a search informer” cases and determined that the government’s use of a pen register to Valenzuela, we relied upon a series of United States Supreme Court “agent- N.H. at 183; see also Smith v. Maryland, 442 U.S. 735, 743-45 (1979). In

reasonable.” Goss, 150 N.H. at 49 (quotations omitted). second, that the expectation be one that society is prepared to recognize as a person have exhibited an actual (subjective) expectation of privacy and, for determining whether there is a reasonable expectation of privacy: “first, that Robinson, 158 N.H. 792, 796 (2009). In Goss, we adopted a two-part analysis privacy plays a role in the protection afforded under Part I, Article 19. State v. 150 N.H. at 48 (quotation omitted). We have recognized that an expectation of possessions and their homes from unreasonable searches and seizures.” Goss, “Our State Constitution protects all people, their papers, their subscriber information based upon our decision in Goss p. 5 Nonetheless, the defendant asks us to recognize a privacy interest in his

was disclosing the defendant’s information in order to “comply with law.” information. Accordingly, Goss is distinguishable from the facts of this case. unpersuaded by this distinction because Comcast undoubtedly believed that it The defendant reads Goss to Comcast, and in doing so, lost any reasonable expectation of privacy in that inapplicable because Comcast responded to a defective warrant. We are determined, the defendant here voluntarily provided his subscriber information with law.” The defendant contends that this exception to the privacy policy is telephone service.” Gubitosi, 152 N.H. at 679. Likewise, as we have already specifically reserves the right to disclose subscriber information to “comply voluntarily conveyed to [the phone company] in order to make use of its Our conclusion is bolstered by Comcast’s customer privacy policy, which telephone billing records because they “only contain information that he Goss to contend that he had a reasonable expectation of privacy in his 49. Additionally, in Gubitosi, we rejected the defendant’s similar reliance upon public when they leave those bags out for regular collection. Goss, 150 N.H. at people do not voluntarily expose the contents of their sealed trash bags to the protection than the Federal Constitution, we explicitly relied upon the fact that points out that we construed our State Constitution to provide greater

one does not lose an expectation of privacy in that information.” one does not expect it to be revealed to anyone else in the ordinary course, that stands for the proposition “that by exposing information to a third party, when residence for collection. Goss, 150 N.H. at 49-50. He contends that Goss a reasonable expectation of privacy in sealed garbage bags left in front of a

12 (Ky. Ct. App. 2002). Delp, 178 P.3d 259, 2 p. 6 64-65 (Or. Ct. App. 2008); Hause v. Com., 83 S.W.3d 1, United States v. D’Andrea, 497 F. Supp. 2d 117, 120 (D. Mass. 2007); State v. denied, 131 S. Ct. 440 (2010); Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001); See, e.g., United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008), cert. subscriber information voluntarily provided to an Internet service provider. conclude that a defendant has no reasonable expectation of privacy in majority of federal and state courts that have addressed this issue and “a kind of evidentiary copyright”). Accordingly, we join the overwhelming degree of privacy protection against the government because it would result in defendant voluntarily discloses information to another he cannot claim a interest in it. See Valenzuela, 130 N.H. at 188 (explaining that once a in order to use Comcast’s service, the defendant cannot now claim a privacy defendant with Internet service. Having voluntarily provided this information ordinary course of business for billing purposes and used it to provide the voluntarily provided the information to Comcast, which recorded it in the Internet service provider. As in Valenzuela and Gubitosi, the defendant 6

addresses of a person’s e-mails or the IP addresses of websites visited, it does 512 F.3d 500, 510 (9th Cir. 2008) (“When the government obtains the to/from have become to everyday, modern life. See the Internet. See We recognize how intertwined and essential computers and the Internet Valenzuela, 130 N.H. at 183; cf. United States v. Forrester, voluntarily disclosed to an Internet service provider in order to gain access to viewed over the Internet, they have no such privacy interest in information their communications, i.e., the content of e-mails and the specific content individuals may have a reasonable expectation of privacy in the contents of similarly recognized in Valenzuela more than twenty years ago, while parties, the defendant urges us to adopt the reasoning of Reid the Internet because of the anonymity that it offers. Nonetheless, as we reasonable expectation of privacy in information voluntarily exposed to third also cognizant that many users conduct some of their most private affairs over Despite our previous reliance upon “settled federal law” recognizing no gathering information, communicating, shopping, banking, and more. We are routinely access the Internet for a wide range of daily activities, such as

not find Reid persuasive and decline to follow it. privacy in phone numbers dialed to make outgoing calls). Accordingly, we do Valenzuela to determine that an individual has no legitimate expectation of (noting that we relied upon Smith v. Maryland, 442 U.S. 735 (1979), in information voluntarily exposed to third parties); Gubitosi, 152 N.H. at p. 6 677 precedent that individuals have no reasonable expectation of privacy in upon the “well-settled” and “inescapable” United States Supreme Court significantly from New Jersey law, see Valenzuela, 130 N.H. at 182-84 (relying with the protection afforded under the Fourth Amendment and diverges our law regarding information voluntarily exposed to third parties is in line (1995) (refusing to adopt an automobile exception to the warrant requirement), circumstances, see Goss, 150 N.H. at 49; State v. Sterndale, 139 N.H. 445, 449 19 does offer greater protection than the Fourth Amendment in some greater privacy protection than the Federal Constitution. While Part I, Article that our State Constitution, like New Jersey’s State Constitution, provides

in State v. Reid The defendant also points us to the New Jersey Supreme Court’s decision 32. reasonable expectation of privacy in telephone billing and bank records. Id. at reached a different conclusion based upon its own case law, which recognizes a of privacy in Internet subscriber information. Id. at 31. Nonetheless, the court to third parties, like a telephone company or bank,” have found no expectation that a person has no reasonable expectation of privacy in information exposed analysis by recognizing that federal courts, relying upon “settled federal law subscriber information. Reid, 945 A.2d at 33-34. The court in Reid began its jurisdictions, recognized a reasonable expectation of privacy in Internet

, 945 A.2d 2 p. 6 6 (N.J. 2008), which, contrary to the majority of p. 7 7

than the State Constitution under these circumstances, Goss Because the Federal Constitution is no more protective of the defendant

DALIANIS, C.J.