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In re Austin B.

Supreme Court of Rhode Island

June 10, 2019

In re Austin B.

          Providence County Family Court, 99-511-04 Howard I. Lipsey Associate Justice

          Owen Murphy Department of Attorney General For Respondent:

          Lara Montecalvo Office of the Public Defender

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          Gilbert V. Indeglia Associate Justice

         The respondent, Austin B. (respondent), appeals from a Family Court order and judgment finding him delinquent for possession of child pornography, pursuant to G.L. 1956 § 11-9-1.3(a)(4). On appeal, the respondent asserts: (1) that the Family Court magistrate erred in denying the respondent's request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978); that the trial justice erred in (2) determining that the search warrant was supported by probable cause; (3) deciding that the police did not need to obtain a new search warrant after they determined that their original warrant was based on misinformation; and (4) not suppressing the respondent's oral statements to the police at the residence where the search warrant was executed. For the reasons set forth in this opinion, we affirm the decisions below on issues one through three and conclude that the respondent waived argument regarding the fourth issue.

         I

         Technical Background

         Because cases involving the crime of possession of child pornography often involve technical terminology, and because a basic understanding of these principles is crucial to analyze the issues before the Court, we will begin with an overview of the technical background and vocabulary pertinent to this case before delving into the facts.

         An Internet Protocol address (IP address) is a unique string of numbers that all computers or mobile devices that connect to the Internet acquire. Commonwealth v. Martinez, 71 N.E.3d 105, 107 (Mass. 2017) (citing Internet Corporation for Assigned Names and Numbers, Beginners Guide to Internet Protocol (IP) Addresses 2, 4 (2011)). IP addresses are owned by an Internet service provider (ISP), such as Cox Communications, Inc. (Cox). See id. When a person purchases Internet service from an ISP, the ISP selects from a roster of IP addresses under its control and assigns a unique IP address to the subscriber at a particular physical address. Id. A subscriber's IP address may change, but the ISP keeps a log of which IP address is assigned to each subscriber at any given moment in time. Id. In the Internet's early days, the correlation between an IP address and a subscriber to a particular computer was stronger, because a residential Internet subscriber went online using only a home computer connected to a hard-wired Internet connection. Id. Today, though, many subscribers use a wireless Internet router to connect their laptops, cell phones, and other mobile devices to the Internet. See id. These wireless routers allow multiple devices within the router's range to connect to the Internet at the same time. Id. Consequently, "the correlation between an Internet subscriber's assigned IP address and any one particular Internet-enabled device may often be weaker than it once was." Id. at 108. Nevertheless, "the correlation between an IP address and a physical address can still be strong, at least when the ISP has verified its assignment of a particular IP address to a subscriber at a specific physical address at a specific point in time." Id.

         Additionally, the matter before the Court also concerns a "peer-to-peer file-sharing network." When a person uses these types of file-sharing services, it is akin to "leaving one's documents in a box marked 'free' on a busy city street." Clifford Fishman & Anne McKenna, Wiretapping and Eavesdropping § 23:25 at 88 (2016) (internal citations omitted). In order to use a peer-to-peer network, an individual must download software for the program. Peer-to-peer networks use hash values to verify the content of electronic files that are available for copying.[1]Hash values-commonly referred to as "electronic fingerprints"-consist of "a string of numbers that, for all practical purposes, uniquely identifies a digital file" and will change any time a file is altered. Martinez, 71 N.E.3d at 108 n.1. Over time, law enforcement and other entities have identified and confirmed that certain hash values contain child pornography.

         II

         Facts and Travel

         We now turn to the facts of the matter before us. On January 2, 2015, Coventry police detective Kevin Harris, a member of the Rhode Island Internet Crimes Against Children Task Force (ICAC), [2] informed North Smithfield police detective Stephen Riccitelli, also a member of ICAC, that on December 31, 2014, someone was using a peer-to-peer file-sharing network via the IP address 68.9.210.241, and was suspected of possessing and sharing images of child pornography. Detective Harris advised Det. Riccitelli "that a direct connection was made to the aforementioned IP address and several files of suspected child pornography were downloaded." Accordingly, Det. Riccitelli viewed one of the files and confirmed it to be consistent with the definition of child pornography contained in § 11-9-1.3.[3]

         With this information, Det. Riccitelli conducted an inquiry with the American Registry of Internet Numbers (ARIN) and determined that Cox was the ISP that owned the IP address. Thus, Det. Riccitelli "sent legal process to Cox Communications in order to obtain subscriber information for the account associated with the IP address" on the date in question; in response, Cox identified a Mr. Barrows of 246 Sackett Street, Unit 2, Providence, Rhode Island (246 Sackett Street) as the subscriber.[4]

         Detective Riccitelli requested a "State Control package," which did not uncover relevant information, and he also performed a "cross-agency check, "[5] which revealed that Mr. Barrows was associated with 246 Sackett Street and that he was also associated with another address out of state. Moreover, Det. Riccitelli conducted surveillance in the area of 246 Sackett Street and observed what appeared to be a three-story house, "gray in color with matching gray trim[, ]" and the number "246" affixed to the front. In his initial investigation, Det. Riccitelli also performed a search for 246 Sackett Street on Vision Appraisal, which indicated that Whitmarsh Corporation (Whitmarsh) owned the property. The appraisal company also listed 246 Sackett Street as a three-family property.

         Armed with this information, Det. Riccitelli applied for a search warrant for "Computer hardware, computer software, computer-related documentation, records, documents, material, and passwords or other data security devices related to the acquisition, possession and transfer of child pornography." The search warrant permitted the search of "[t]he person of [Mr.] Barrows * * * and the premises located at 246 Sackett Street, Unit 2[.]" Detective Riccitelli also filed a supporting affidavit with his search warrant application, along with Attachments "A" and "B."[6] In the affidavit, Det. Riccitelli explained the details relating to his investigation, as well as the necessary technical background. On February 10, 2015, the District Court judge found that probable cause existed and signed the search warrant.[7]

         The police executed the warrant the next day.[8] When the officers arrived at 246 Sackett Street, the front door was unlocked, and they proceeded inside. Once inside the residence, the officers continued up a staircase to the second-floor landing, where, as Det. Riccitelli later testified, there was only one door.[9] One of the officers knocked on the second-floor door, and they were met by a man who identified himself as Frank Akinmurele. It was around this time that the officers learned that 246 Sackett Street was a Department of Children, Youth, and Families (DCYF) group home owned by Whitmarsh, and that Mr. Akinmurele was a Whitmarsh employee. Moreover, the officers inquired about Mr. Barrows and learned that Mr. Barrows was employed by Whitmarsh, but that he no longer worked at the 246 Sackett Street location. The officers also learned that the Internet service for 246 Sackett Street remained in Mr. Barrows' name for financial reasons, despite his employment at a different location.

         Thereafter, the officers passed through the second-floor door. A few of the officers then gathered the residents and placed them in the common area while other officers executed the search warrant.[10] The second-floor layout consisted of a staff office, two bedrooms, a common area, a kitchenette, and a bathroom. In executing the search, the officers "located the router that was used for the Internet service at that location in the office." Detective Brian Macera of the Rhode Island State Police entered one of the bedrooms and located two LG cell phones next to the bed, one of which had a "cracked" screen. Detective Macera also located a binder with respondent's name on it in that bedroom. When Det. Macera attempted to view the contents of the damaged phone, he determined that the cell phone was password-protected and proceeded to the common room where the residents were sitting. Detective Macera asked the occupants whose bedroom it was that he had been in and who owned the cell phones; respondent identified the bedroom and the cell phones as his own. Upon Det. Macera's request, respondent provided his passcode to the cell phone; Det. Macera performed an "on-site preview" of the contents of the cell phone.[11]

         Detective Macera's "on-site preview" of the cell phone revealed a folder entitled "Pix." In that folder, Det. Macera located approximately fifty to one hundred images that he believed to be child pornography.[12] After the images were discovered on respondent's phone, respondent was arrested, taken into custody, and transported to the Lincoln Woods State Police barracks (the barracks).[13]

         On October 5, 19, and 27, 2015, a waiver hearing was held in Family Court pursuant to the state's request that the case be transferred to Superior Court. On January 28, 2016, a Family Court justice issued a bench decision denying the state's motion. Subsequently, respondent filed a motion requesting a Franks hearing and a motion to suppress evidence-the state objected to both motions.

         A

         Motion for a Franks Hearing

         On March 18, 2016, the parties presented arguments concerning respondent's request for a Franks hearing before a Family Court magistrate.[14] The respondent asserted that he was entitled to a Franks hearing because Det. Riccitelli, "at a minimum[, ]" provided the signing District Court judge with information in the application for the search warrant "with a reckless disregard to the truth." The respondent argued that "Cox specifically stated the information being provided was for limited business purposes only and they could not guarantee that it represented information linking the identified customer to the State Police's investigation." The respondent acknowledged that Det. Riccitelli ran Mr. Barrows' name through the law enforcement databases and conducted physical surveillance of 246 Sackett Street and that Det. Riccitelli based the affidavit supporting the warrant on that information. However, respondent maintained that Det. Riccitelli's investigation and cross-agency check could not confirm that Mr. Barrows resided at 246 Sackett Street and did not reveal any information regarding who lived inside the home.

         In opposing the motion, the state contended that Det. Riccitelli's statement that Mr. Barrows resided at 246 Sackett Street "was neither intentionally made to deceive, nor was it made in reckless disregard of the truth and, in addition, it's immaterial and irrelevant to finding probable cause in this case." The state further argued that, even if Det. Riccitelli's statement was cast aside, "there still exists a substantial basis * * * to find the probable cause to search that residence."

         At the conclusion of the parties' arguments, the Family Court magistrate issued a bench decision denying respondent's motion. First, the Family Court magistrate found that respondent had standing. Next, he noted the significance of Det. Riccitelli seeking and obtaining information from Cox to ascertain subscriber information for the account associated with the IP address. The magistrate acknowledged the discrepancy between Det. Riccitelli's testimony that he could not confirm that Mr. Barrows resided at 246 Sackett Street versus the affidavit language indicating that a review of law enforcement databases confirmed that Mr. Barrows did reside there. He further highlighted Det. Riccitelli's testimony explaining that the link established in performing the cross-agency check did not necessarily mean that Mr. Barrows resided there, but rather that he had a connection to the address. Ultimately, the magistrate stated: "I cannot find, based upon the arguments and the documents that have been presented to me, that the word resides being placed in the affidavit-and I do believe it would be hyper-technical scrutiny for the [c]ourt to do this- was intentionally and recklessly placed in the affidavit for the sole purpose of obtaining a search warrant." The magistrate also emphasized that, while not to respondent's satisfaction, Det. Riccitelli did perform follow-up investigative work when he surveilled 246 Sackett Street and completed a cross-agency check. Lastly, the magistrate found that "even if it was removed from the affidavit * * * there is still sufficient evidence" for a finding of probable cause; he therefore denied respondent's motion for a Franks hearing.

         B

         Motion ...


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