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United States v. Baalerud

United States District Court, W.D. North Carolina, Charlotte Division

March 25, 2015



MAX O. COGBURN, Jr., District Judge.

THIS MATTER is before the court on Defendant's Motions to Suppress (##14, 15). The court held a hearing on the motions on March 17, 2015. Having considered the motions, the pleadings, and the credible testimony offered at the hearing, the court enters the following findings, conclusion, and Order.



In considering the facts underlying the claims for both of Defendants' motions, the court notes at the outset that it heard sequestered testimony from four witnesses at the hearing: 1) Detective Aleta Dunbar, Charlotte-Mecklenburg Police Department ("CMPD"); 2) Detective Brian Chilton, CMPD; 3) Special Agent John Wydra, Federal Bureau of Investigation; and 4) Special Agent Kevin Kimbrough, North Carolina State Bureau of Investigation. The court finds all of their testimony to be credible. The relevant facts that gave rise to Defendant's motions are as follows.

As noted in the government's brief (#17), many investigators around the world are conducting child pornography investigations on "peer-to-peer" networks in order to locate people who are receiving and distributing child pornography. Dets. Dunbar and Chilton routinely conduct these types of investigations on computers that are seen sharing suspected child pornography on peer-to-peer networks in the Mecklenburg County area. A "peer-to-peer" network is essentially a collection of computers that are connected via file sharing software, which is accessed through the internet. As the Ninth Circuit has explained, peer-to-peer programs

connect network participants directly and allow them to download files from one another. To download a file, a [peer-to-peer program] user opens the application and inputs a search term. [The peer-to-peer program] then displays a list of files that match the search terms and that are available for download from other [peer-to-peer program] users. When a user downloads a file using the [peer-to-peer program] network, he or she causes a digital copy of a file on another user's computer to be transferred to his or her own computer.

United States v. Flyer, 633 F.3d 911, 913 (9th Cir. 2011) (citation omitted). Testimony at the hearing indicated that investigators with CMPD use software called "Shareza" that connects to these peer-to-peer networks when conducting investigations. Their software transmits common search terms related to child pornography and can limit its searches to target a single Internet Protocol ("IP") address.[1] Law enforcement officials all over the country use a database called the "Child Protection System" (referred to at the hearing as the "CPS website") to compile IP addresses and/or Globally Unique Identifiers ("GUID"s) (another form of identifying a particular computer) that are suspected of being associated with transmission of child pornography. See Search Warrant (#17-1) at 9. This database is compiled from the results of various automated and manual search tools, which uncover information such as GUIDs, IP addresses, file names, and the date and time that CPS identifies the suspect computer.

As noted above, Det. Dunbar conducts investigations of computers that are seen sharing suspected child pornography in the Mecklenburg County area. Using the GUID information of a computer that CPS had previously identified as likely being in this area, Det. Dunbar identified a suspect computer that appeared to have over 300 files of interest. Using the CPS system, she identified two IP addresses associated with the GUID and attempted to download files from them. Between December 5, 2013, and January 7, 2014, Det. Dunbar successfully downloaded fifteen files, including videos of child pornography, from a computer associated with one of these IP addresses. Using an administrative subpoena, Det. Dunbar determined from AT&T Internet services that Defendant was the internet subscriber associated with the IP address at the date and time of the download. AT&T also provided Defendant's address in Charlotte. Further investigation of DMV records indicated that Defendant lived in an apartment at that address.

Det. Chilton also conducts online undercover investigations to locate individuals who are distributing and receiving child pornography via peer-to-peer networks. On November 18, 2013, Det. Chilton's computer connected to the same IP address that Det. Dunbar was investigating, and downloaded six files that contained videos of child pornography.[2] Det. Chilton testified at the hearing that he found the IP address that was later associated with Defendant's computer on the CPS website.

Based on her information, Det. Dunbar sought a state search warrant for Defendant's apartment, (#17-1), on January 9, 2014. In the search warrant application, Det. Dunbar explained how peer-to-peer software works, described the CPS system, articulated how she downloaded the files containing child pornography from Defendant's computer, and detailed how she was able to identify the computer that the files came from. See (#17-1). Det. Dunbar then executed the search warrant in the morning of January 10, 2014, along with several other law enforcement officials, including several police officers with CPMD and SA Wydra with the FBI. Defendant was the sole resident of the apartment. Det. Dunbar testified that she went to Defendant's apartment to execute the warrant, read him the warrant, gave him a copy, and told him why she was there and that he was not under arrest. Defendant asked her if he needed an attorney; Det. Dunbar told him that the decision was up to him. He then allowed Det. Dunbar to enter his residence. Defendant was never handcuffed or otherwise physically restrained.

Among the items seized during the execution of the search warrant were a computer and an external hard drive. Forensic examinations were performed on these items and child pornography was located. Additionally, evidence of the peer-to-peer program "FrostWire" was also located, with the file sharing feature enabled.

While officers executed the search warrant, Defendant agreed to speak to Det. Dunbar and SA John Wydra. The three sat in the living room of Defendant's apartment during this conversation. Defendant was informed that he was not under arrest and that he was free to leave, but that the officers wanted to question him about activity related to child pornography. SA Wydra testified that by that time, approximately ten visibly armed officers were present in the apartment, but that all except Det. Dunbar and SA Wydra were in the back bedroom gathering evidence while Defendant spoke with Det. Dunbar and SA Wydra in the living room. During the conversation, SA Wydra was armed but his weapon was not displayed; Det. Dunbar's weapon was visible but not drawn. The front door of the apartment, which opened into the living room and was visible to Defendant, remained open the entire time. Defendant never asked the agents to leave nor did he attempt to leave the interview.

Defendant proceeded with the interview and responded to the officers' questions openly and cooperatively. At some point during questioning, Defendant again asked if he needed an attorney. SA Wydra told Defendant that he could not advise him on that issue. Defendant continued to speak with the agents. After a series of questions which ultimately led Defendant to confess that he had downloaded child pornography on his computer, Defendant agreed to make a recorded (audio) statement. In that statement, after some hesitation, Defendant acknowledged that he knew that the software he used to download child porn was also used to share such files with other users through the peer-to-peer program installed on his computer. Despite this admission, SA Wydra testified at the hearing that he was not confident that Defendant knew that he had been sharing child pornography files with other users. Toward the end of the interview, SA Wydra asked Defendant ...

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