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State v. Rodriguez

Superior Court of Rhode Island

May 30, 2017


         Providence County Superior Court

          For Plaintiff: Owen Murphy, Esq.

          For Defendant: John E. MacDonald, Esq. Michael J. Zarrella, Esq.


          K. Rodgers, J. JUSTICE

         The State of Rhode Island (State) has charged Enrique Rodriguez (Defendant) with one count of possession of child pornography in violation of G.L. 1956 § 11-9-1.3(a)(4) and one count of transfer of child pornography in violation of § 11-9-1.3(a)(2). The issues before this Court center on the issuance of and compliance with an administrative subpoena directed to Verizon Internet Services (Verizon), an internet service provider (ISP), seeking the name and address of the subscriber assigned a particular internet protocol (IP) address which had been involved in the transfer of child pornography. Armed with that subscriber information, law enforcement personnel requested a search warrant for the computer hardware and software maintained at the home that Defendant shared with his wife and children. Defendant now moves this Court to suppress all statements and evidence obtained pursuant to the execution of that search warrant.

         Jurisdiction is pursuant to G.L. 1956 § 8-2-15. For the reasons that follow, Defendant's motion to suppress is denied.


         Facts and Travel


         The Investigation

         In February 2014, Detective Kevin Harris (Det. Harris), a detective with the Coventry Police Department and a member of the Rhode Island Internet Crimes Against Children (ICAC) Task Force, [1] was undercover monitoring a peer-to-peer file-sharing network.[2] On February 28, 2014, Det. Harris identified and observed an IP address[3]- numerous files of suspected child pornography. Det. Harris made a direct connection to the IP address and downloaded several child pornography files. Subsequently, Det. Harris used the American

         Registry of Internet Numbers to determine that Verizon[4] was the owner of that specific IP address.


         The Administrative Subpoena

         At Det. Harris' request, Colonel Steven G. O'Donnell (Col. O'Donnell), Superintendent of the Rhode Island State Police, issued an administrative subpoena to Verizon Legal Compliance, dated March 3, 2014, requesting basic information associated with that IP address. Ex. 2 to Def.'s Mem., Admin. Subpoena. Specifically, the administrative subpoena requested "non-content subscriber information" including the "name, address, IP address log, and telephone number" associated with the IP address. Id. The administrative subpoena directed Verizon to provide subscriber information that was linked to IP address between 12:00 AM and 11:59 PM on March 1, 2014. Id. The administrative subpoena informed Verizon that the Rhode Island State Police were "conducting an investigation in our state with reference to possible illegal activity[.]" Id. It was issued by Col. O'Donnell to Verizon pursuant to G.L. 1956 § 39-2-20.1[5] and requested that Verizon forward the information to Det. Harris. The administrative subpoena also directed Verizon to refrain from notifying the subscriber about the subpoena "since it would interfere with an ongoing criminal investigation." Id.

         While Det. Harris awaited a response from Verizon, Detective Lieutenant Chris Brooks (Det. Lt. Brooks), a member of the Woonsocket Police Department and the ICAC Task Force, viewed the files that Det. Harris downloaded and determined that the images shared by the IP address constitute child pornography.

         On March 13, 2014, Verizon responded to the administrative subpoena and provided the requested information, including the subscriber's name and address: Yudis Rodriguez, 282 Asylum Street, Woonsocket, Rhode Island 02895. Det. Lt. Brooks and another member of the ICAC Task Force, Detective Damien Longo (Det. Longo) of the Rhode Island State Police, confirmed that Yudis Rodriguez was the owner of 282 Asylum Street, a single-family home.


         The Search Warrant

         On March 31, 2014, Det. Lt. Brooks applied for and obtained a search warrant. The search warrant permitted the search and seizure of Yudis Rodriguez, her residence, any and all computer hardware, computer software, computer-related documentation, records, documents, and material related to child pornography, as well as passwords or other data security devices. The search warrant allowed for an on-site forensic preview and off-site forensic analysis of the seized evidence.

          On April 1, 2014, Det. Lt. Brooks and Det. Longo executed the search warrant along with several other members of the ICAC Task Force and two uniformed State Troopers. Upon entering the residence at 282 Asylum Street, Det. Longo informed Yudis Rodriguez that they had a search warrant for child pornography in the home. Yudis Rodriguez's husband, Enrique Rodriguez (Defendant), her son David Rodriguez, and her two daughters, ages fourteen and nine, were also in the home at the time.

         Det. Longo first spoke to David Rodriguez individually, who denied any use of file-sharing software. Next, Det. Longo spoke with Defendant individually about any use of the file-sharing software called Ares.[6] Defendant responded that he was familiar with Ares and had used the software to download music. At that point, Det. Longo read Defendant his Miranda warnings and advised him that he was a suspect in a child pornography investigation. See Miranda v. Arizona, 384 U.S. 436, 456, 467, (1966). In response, Defendant stated that he understood his rights and acknowledged the same by signing the rights form.

         After signing the rights form, Defendant again told Det. Longo that he installed the Ares software to download music on the Gateway computer located in the kitchen. Defendant later stated to Det. Longo that he accidentally downloaded and viewed child pornography. Defendant added that he told his wife he accidentally downloaded child pornography when he was trying to download music. Separately, Yudis Rodriguez informed Det. Longo that she found child pornography on the computer and confronted Defendant.

         While Det. Longo spoke with Defendant, his wife, and son, other members of law enforcement searched the house. Special Agent Fred Mitchell, a forensic analyst with the United States Secret Service, uncovered numerous videos of child pornography saved to a folder on the Gateway desktop computer. After this discovery, Det. Longo again spoke with Defendant about the ongoing investigation, and Defendant admitted to intentionally downloading and viewing child pornography. Defendant was placed under arrest and transported to State Police Headquarters. Officers seized several pieces of digital media from the home, including a cell phone, Gateway desktop computer, and two thumb drives.

         On July 16, 2014, a forensic examination of the seized evidence uncovered fourteen videos and over 6000 images considered by law enforcement to be child pornography. In addition, the examination confirmed that the Ares peer-to-peer file-sharing software was used to download those images and videos.


         Subscription and Verizon's Privacy Policy

         In an affidavit dated March 8, 2017 and signed and sworn under penalties of perjury, Yudis Rodriguez stated that Defendant is her husband. Y. Rodriguez Aff., ¶ 1. She also stated that while the Verizon subscriber information was in her name alone, Defendant "assisted in all payments and enjoyed mutual access to the internet on our household computer."[7] Id. at ¶ 5.

         The contractual relationship between a subscriber of Internet services and Verizon is governed in part by Verizon's privacy policy. Verizon's privacy policy informs subscribers about the information Verizon collects and stores, how they use it, and options regarding its uses of that collected information. See Ex. 1 to Def.'s Mem., Verizon Privacy Policy, at (unnumbered) page 2[8]. Specifically, Verizon collects from its subscribers the subscriber's name, contact information, driver's license number, Social Security Number, and payment information. Id. The policy also states that Verizon collects:

"[s]ervice usage information [such as] call records, websites visited, wireless location, application and feature usage, network traffic data, product and device-specific information and identifiers, service options [chosen by a subscriber], mobile and device numbers, video streaming and video packages and usage, movie rental and purchase data, TV and other video viewership . . ." Id.

Verizon uses this information "to establish, monitor and maintain [a subscriber's] account and billing records; measure credit and payment risk; provide account-related services; deliver and maintain [a subscriber's] products and services; help . . . with service-related issues or questions; manage and protect [Verizon's] networks, services and users from fraudulent, abusive, or unlawful uses[.]" Id.

         The policy also includes a section dedicated to "Working together to keep children safe." Id. at (unnumbered) page 13. Verizon explains that it "must be vigilant in protecting the safety and privacy of children online." Id. Within this section, Verizon further states:

"[r]egrettably, there are those who use the Internet to view, store and distribute child pornography (or who engage in other types of illegal activity involving children). Child pornography is subject to severe criminal penalties and using the Verizon network to view, store or distribute it violates our service contracts. The Verizon network may not be used by customers in any manner for the storage, transmission or dissemination of images containing child pornography and we will report any instances of such activity of which we become aware to the appropriate . . . authorities." Id. (emphasis added).

         The Verizon privacy policy further notes that Verizon "may be required by law to disclose personally identifiable information to a governmental entity to comply with valid legal process, such as warrants, court orders or subpoenas[.]" Id. at (unnumbered) page 5. The policy explains that this disclosure is "to protect against fraudulent, malicious, abusive, unauthorized or unlawful use of [the] subscription to [Verizon's] products and services and to ...

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