BRIAN D. HAUSE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 19, 2001; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-002006-MR
BRIAN D. HAUSE
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
INDICTMENT NO. 99-CR-01291
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON and HUDDLESTON, Judges.
HUDDLESTON, Judge:
Brian D. Hause entered a conditional plea of
guilty pursuant to Kentucky Rule of Criminal Procedure (RCr) 8.09
to charges of possession of matter portraying a minor in a sexual
performance1 and distribution of matter portraying a minor in a
sexual performance2 and was sentenced to three years’ imprisonment.
He appeals the denial of his motion to suppress materials that
formed the basis of the charges lodged against him.
In the spring of 1999, Detective Michael DiMatteo of the
San
Bernadino,
investigating
California,
the
distribution
Sheriff’s
of
1
Ky. Rev. Stat. (KRS) 531.335.
2
KRS 531.340.
child
Department,
pornography
began
on
the
Internet. DiMatteo accessed the Internet by way of America On Line
(AOL), an Internet service provider, and used a private “chatroom”3 to find individuals who were distributing child pornography.
DiMatteo accessed the chat-room and started a computer
program that generated a list of screen names being used by
individuals in the chat-room.
DiMatteo then left the chat-room
without having conversed with anyone. Shortly thereafter, DiMatteo
began receiving e-mail messages from individuals who had been in
the chat-room.
DiMatteo received two e-mail messages from one of
the chat-room users identified as Bh0810.
These messages from
Bh0810 each contained information concerning the originator of the
messages and when they had been sent.
And, each message had a
photograph attached.4
After
affidavit
and
receiving
presented
these
it
to
images,
a
DiMatteo
California
prepared
magistrate.
an
The
magistrate found probable cause to obtain the AOL subscriber
information for Bh0810 and several other screen names.
DiMatteo served this warrant on AOL at its headquarters
in Dulles, Virginia, where the subscriber records were maintained.
AOL complied with the warrant and provided DiMatteo with the
requested subscriber records.
3
The “chat-room” was used by individuals with a special
interest in children between the ages of four and eight.
4
The first image was of a nude, young, female child posing
with an adult woman touching the vaginal area of the child. This
image was captioned “OHMOM.”
The second image was of a nude,
young, female child with a nude adult male positioned to penetrate
the child’s vaginal area with his penis. This image was captioned
“10SLT.”
-2-
The subscriber records revealed that Bh0810 was Brian
Hause
of
Lexington,
Kentucky.
Armed
with
this
information,
DiMatteo contacted the local field office of the Federal Bureau of
Investigation.
A member of a special task force of the F.B.I.
contacted Detective Jesse Harris of the Lexington, Kentucky, Police
Department.
Subsequently, Harris received a copy of the affidavit
prepared by DiMatteo, the search warrant issued in California, the
subscriber records of Hause, the photographic images sent by
Bh0810, and other documents relating to the investigation.
After
verifying
Hause’s
address,
Harris
prepared
an
affidavit in support of a search warrant and, subsequently, a
district court judge issued the warrant.
The warrant was served
and Hause’s computer, notes, papers, pictures and other items were
seized by the police.
The search of Hause’s computer revealed
several files containing depictions of child pornography.
On December 8, 1999, Hause was indicted on the charges to
which he subsequently entered a conditional guilty plea.
Before
entering his conditional guilty plea, Hause filed several motions
to suppress the evidence seized and a motion to have Kentucky
Revised
Statutes
unconstitutional.
(KRS)
531.330
and
531.340
declared
All these motions were denied.
On appeal, Hause asserts that: (1) the circuit court
erred
in
failing
to
declare
KRS
531.330
and
KRS
531.340
unconstitutionally overbroad; (2) the court erred in failing to
declare KRS 531.330 unconstitutionally vague; (3) the court erred
in failing to suppress all evidence seized in Virginia; (4) the
court erred in failing to suppress all evidence seized in Kentucky
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because it was obtained as fruit of the poisonous tree; (5) the
court erred in failing to suppress all evidence seized in Kentucky
because the information that served as the basis for the warrant
was stale and no-good faith exception applies; and (6) the court
erred in failing to suppress all evidence seized in Kentucky
because the search warrant was overbroad.
Are KRS 531.330 and KRS 531.340 Unconstitutionally Overbroad?
Hause
argues
that
KRS
531.340
is
unconstitutionally
overbroad because it allows for the prosecution of individuals
possessing material portraying a sexual performance by a person
over the age of eighteen.
Hause also argues that KRS 531.330 is
unconstitutionally overbroad because it regulates protected speech
in that a person could be prosecuted for distribution of matter
portraying a sexual performance of a virtual or computer-generated
person that appears to be a minor.
A challenge to the constitutionality of an act of the
General
Assembly
must
“necessarily
begin
with
the
strong
presumption in favor of constitutionality and [the Court] should so
hold if possible.”5
“A challenge to a statute on the basis that it
is overbroad is essentially an argument that in an effort to
control impermissible conduct, the statute also prohibits conduct
which is constitutionally permissible.”6
“[A] statute may be
perfectly clear and unambiguous but nevertheless unconstitutional
5
Brooks v. Island Creek Coal Co., Ky. App., 678 S.W.2d 791,
792 (1984)(citations omitted).
6
Commonwealth v. Ashcraft, Ky. App., 691 S.W.2d 229, 232
(1985), citing Hoffman Estates v. Flipside, Hoffman Estates, 455
U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982).
-4-
if it prohibits constitutionally protected activities or may be
enforced in an arbitrary manner.”7
The statute under attack, KRS 531.330, provides that:
(1)
For purposes of KRS 529.030, 530.070, 531.080 and
531.300 to 531.370, any person who appears to be under
the age of eighteen (18), or under the age of sixteen
(16), shall be presumed to be under the age of eighteen
(18), or under the age of sixteen (16), as the case may
be.
(2)
In any prosecution under KRS 529.030, 530.070,
531.080 and 531.300 to 531.370 the defendant may prove in
exculpation that he in good faith reasonably believed
that the person involved in the performance was not a
minor.
(3)
The presumption raised in subsection (1) of this
section may be rebutted by any competent evidence.
Arguably,
a
person
could
portray
a
constitutionally
permissible sexual performance involving an individual who is not
a minor, but appears to be under the age of eighteen; however, KRS
531.330 does not prohibit that conduct.
All that KRS 531.330
establishes is an evidentiary presumption and the burden shifting
analysis that courts are to employ when an individual is prosecuted
under
KRS
529.030,
530.070,
531.080
or
531.300
to
531.370.
Therefore, KRS 531.330 is not unconstitutionally overbroad.
KRS 531.340 provides that:
7
Commonwealth v. Foley, Ky., 798 S.W.2d 947, 952 (1990).
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(1)
A
person
is
guilty
of
distribution
of
matter
portraying a sexual performance by a minor when, having
knowledge of its content and character, he:
(a) Sends or causes to be sent into this state for sale
or distribution; or
(b) Brings or causes to be brought into this state for
sale or distribution; or
(c) In this state, he:
1. Exhibits for profit or gain; or
2. Distributes; or
3. Offers to distribute; or
4. Has in his possession with intent to distribute,
exhibit for profit or gain or offer to distribute, any
matter portraying a sexual performance by a minor.
(2)
Any person who has in his possession more than one
(1) unit of material coming within the provision of KRS
531.300 (2) shall be rebuttably presumed to have such
material in his possession with the intent to distribute
it.
(3)
Distribution
of
matter
portraying
performance by a minor is a Class D felony.
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a
sexual
Hause does not argue that he committed no crime;8 the
argument preserved and presented on appeal is whether KRS 531.340
is unconstitutionally overbroad.
While we recognize the principle
that “[t]here can be no penalty if there is no crime[,]”9 we also
acknowledge that “the overbreadth doctrine allows challenges from
one whose own conduct may be clearly unprotected[.]”10
Hause
argues
that
KRS
531.340
is
unconstitutionally
overbroad because virtual child pornography is protected speech and
cannot be regulated by the government. Hause directs our attention
to Free Speech Coalition v. Reno11 in which it was held that
“Congress
has
no
compelling
interest
in
regulating
sexually
explicit materials that do not contain visual images of actual
children[,]”12 and, therefore, making criminal “the generation of
images of fictitious children engaged in imaginary but explicit
8
Hause contended in a motion filed on May 16, 2000, that the
alleged depictions of minors in a sexual performance “may well not
be pictures of real people.” Additionally, it was stipulated by
all parties on June 29, 2000, that the Commonwealth could not
produce the names and addresses of the children alleged to be
depicted in the images in question.
However, in the judgment
entered on Hause’s guilty plea, the circuit court found that Hause
understood the nature of the charges against him and the elements
of the charges against him. Additionally, the court found that
there was an actual basis for Hause’s plea. In the petition to
enter a plea of guilty signed by Hause, Hause acknowledged that the
court would accept his guilty plea in reliance on the fact that
Hause was guilty of the crime of distribution of matter portraying
a sexual performance by a minor.
9
Estes v. Commonwealth, Ky., 952 S.W.2d 701, 704 (1997)
(Cooper, J., concurring).
10
Ashcraft, supra, n. 6, at 232.
11
198 F.3d 1083 (9th Cir. 1999), cert. granted sub nom.
Holder v. Free Speech Coalition, __ U.S. __, 121 S. Ct. 876, 148 L.
Ed. 2d 788 (2001).
12
Id. at 1092.
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sexual conduct [is prohibited by the First Amendment to the United
States Constitution].”13
While this Court is not bound by the decision in Free
Speech Coalition v. Reno, its persuasive value can be considered.14
However, upon review of Free Speech Coalition, we find that the
terms15 of the federal statute16 at issue in that case, which were
held to be unconstitutionally vague and overbroad,17 are not found
in
KRS
531.340.
Coalition
is
Therefore,
misplaced.
Hause’s
Unlike
the
reliance
on
Free
Speech
statute
in
Free
Speech
Coalition, KRS 531.340 requires proof that a person distributed
“matter portraying a sexual performance by a minor[.]”
According
to KRS 531.330, minors are persons.
[L]aws which create crime should be sufficiently explicit
that men subject to [its] penalties may know what acts
are forbidden, and before a man can be punished, his case
must be plainly within the statute.
Crime is not to
arise upon doubtful construction of a statute where a
person of ordinary intelligence, reading the statute,
13
Id. at 1086.
14
See Roman Catholic Diocese of Covington v. Secter, Ky.
App., 966 S.W.2d 286, 289 (1998).
15
The terms that were held to be unconstitutionally vague and
overbroad were “appears to be a minor” and “conveys the
impression.”
16
18 U.S.C. § 2256.
17
Three federal circuits have held that the statute at issue
in Free Speech Coalition is not unconstitutionally void for
vagueness nor overbroad. See United States v. Fox, 248 F.3d 394
(5th Cir. 2001); United States v. Acheson, 195 F.3d 645 (11th Cir.
1999); United States v. Hilton, 167 F.3d 61 (1st Cir. 1999).
-8-
would not understand from it that the act was forbidden.
Criminal statutes are not cunningly and darkly framed to
catch the unwary, and they are not extended for this
purpose beyond the fair and natural meaning of the words
used.18
“[T]he law never favors penalties and will not exact them unless
the statute is clear and convincing.”19
Therefore, “if [a] statute
[is] so ambiguous as to leave reasonable minds in doubt, [a]
penalty [will] not be exacted beyond the letter of the statute.”20
It is an elementary principle that where the validity of
a
statute
is
assailed,
and
there
are
two
possible
interpretations, by one of which the statute would be
constitutional, and by the other it would not, it is the
duty of the court to adopt that construction which would
uphold it.21
In construing a statute, “words and phrases employed by
the lawmaking body must be given their plain and ordinary meaning
according to popular usage, unless they have acquired a technical
sense, in which event, they will be given such accepted technical
18
Commonwealth v. Adams Express Co., 123 Ky. 720, 97 S.W.
386, 387 (1906)(citation omitted).
19
Commonwealth ex rel. Martin v. Tom Moore Distillery Co.,
287 Ky. 125, 152 S.W.2d 962, 964 (1939).
20
21
Id. at 965.
Gibson v. Commonwealth, 209 Ky. 101, 272 S.W. 43, 44
(1925).
-9-
meaning.”22
“In the construction of [] statutes[,] simple words
must be given their ordinary meaning and cannot be given a strained
interpretation
for
the
purpose
of
effecting
a
result
not
contemplated by the members of the assembly which framed the
provisions under consideration.”23
The Encarta World English Dictionary defines “person” as
an individual human being.24
The word “person” is also defined in
several Kentucky statutes.25
The general nature of the definition
of “person” is represented in KRS 139.080 in which “person” is
defined as:
“any individual, firm, copartnership, joint venture,
association, social club, fraternal organization, corporation,
estate,
trust,
business
trust,
receiver,
trustee,
syndicate,
cooperative, assignee, governmental unit or agency, or any other
group or combination acting as a unit.”
We have held that basic reparations benefits were not
available to the estate of a decedent killed in an automobile
accident because “[t]he language of the law as it relates to the
word ‘person’ refers only to living human beings and not to the
estate of a deceased individual.
The word ‘person’ as used in the
22
Baker v. White, 251 Ky. 691, 65 S.W.2d 1022, 1024
(1933)(citations omitted). See also Revenue Cabinet v. JRS Data
Sys., Ky. App., 738 S.W.2d 828, 829 (1987)(“Ordinarily, we are
bound to construe all statutory words and phrases according to the
common and approved usage of the language. However, words which
have acquired a peculiar and appropriate meaning in the law must be
construed according to such other meaning.”); KRS 446.080(4).
23
Inter-County Rural Elec. Coop. Corp. v. Reeves, 294 Ky.
458, 171 S.W.2d 978, 981 (1943)(citations omitted).
24
See ENCARTA WORLD ENGLISH DICTIONARY 1346 (1st ed. 1999).
25
See, e.g., KRS 131.600(2), KRS 287.030(1), KRS 318.010(9),
KRS 418.085 and KRS 500.080.
-10-
definition of work loss in KRS 304.39-020(5)(b) also refers only to
living human beings.”26
We have found no Kentucky statutory or
decisional definition stating that the term “person” includes
computer-generated or virtual persons. Thus, the argument that KRS
531.340 is overbroad because it could be applied to prosecute an
individual who has distributed virtual or computer-generated child
pornography is without merit.
The reach of KRS 531.340 is simply
not as broad as Hause says it is.
The word “person” has not
gained, as an accepted, ordinary or technical meaning, a definition
that includes virtual or computer-generated persons.
“[T]he burden is upon the prosecution to prove the
accused guilty beyond a reasonable doubt of every essential element
of the crime charged, [and] an accused has the right to rely upon
failure of the prosecution to establish such proof.”27
In a
prosecution brought against an individual accused of violating KRS
531.340, it is incumbent upon the Commonwealth to prove beyond a
reasonable
doubt
that
the
“person”
depicted
in
the
matter
portraying a minor in a sexual performance is a real person.
Therefore, we hold that KRS 531.340 is not unconstitutionally
overbroad because the distribution of virtual or computer-generated
child pornography is not within the reach of the criminal activity
prohibited by KRS 531.340.
Is KRS 531.330 Unconstitutionally Vague?
26
Gregory v. Allstate Ins. Co., Ky. App., 618 S.W.2d 582,
582-83 (1981)(emphasis supplied).
27
Whorton v. Commonwealth, Ky., 570 S.W.2d 627, 629 (1978).
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Hause asserts that the language in the statute, “appears
to be under the age of eighteen,” does not give the average person
a clear standard by which an individual can determine whether his
or
her
conduct
is
unlawful
and,
therefore,
KRS
531.330
is
unconstitutionally vague.
“The void-for-vagueness doctrine emanates from the due
process provisions of the United States and Kentucky Constitutions.
To survive vagueness analysis a statute must provide ‘fair notice’
of
prohibited
conduct
and
contain
‘reason-ably
[sic]
clear’
guidelines to thwart ‘arbitrary and discriminatory’ enforcement.”28
Unlike an overbreadth challenge, “a vagueness challenge focuses
squarely on the conduct of the party before the court[.]”29
Again, Hause considers only some language in the statute
without giving consideration to the full meaning and intended
application of the statute.
As previously mentioned, KRS 531.330
establishes an evidentiary presumption and the burden shifting
analysis that courts are to employ when an individual is prosecuted
under KRS 529.030, 530.070, 531.080 or 531.300 to 531.370.
Any
person prosecuted under these statutes is permitted to rebut the
presumption by competent evidence,30 and that person “may prove in
exculpation that he in good faith reasonably believed that the
person involved in the performance was not a minor.”31
28
Commonwealth v. Kash,
(1997)(citations omitted).
29
Id.
30
KRS 531.330(3).
31
KRS 531.330(2).
-12-
Ky.
App.,
967
S.W.2d
37,
42
KRS 531.330 does not fail for vagueness. KRS 531.330, in
conjunction with the statutes that it governs, provides fair notice
of prohibited conduct and contains reasonably clear guidelines to
thwart arbitrary and discriminatory enforcement.
We are not
troubled by the language of KRS 531.330 because the language does
not establish an irrebuttable presumption.
Further, Hause asserts that the language of KRS 531.330
allows and encourages arbitrary and discriminatory enforcement of
the law as evidenced by the inherent, subjective perspective of law
enforcement personnel.
“Vague statutes are [] prohibited on the
basis that they fail to provide explicit standards for those who
enforce
them,
thus
permitting
discriminatory
and
arbitrary
enforcement.”32 But, “[t]he possibility of unreasonable enforcement
of any statutory prohibition always exists no matter how precise
the statute and judicial interpretations of it.”33
We recognize that the specter of unreasonable enforcement
is
always
present.
However,
we
disagree
with
Hause’s
bald
assertion that the language of KRS 531.330 allows and encourages
arbitrary and discriminatory enforcement of the law as evidenced by
the inherent, subjective perspective of law enforcement personnel.
We find no evidence in the record, nor are we aware of any
objective evidence, that judges, jurors, prosecuting attorneys or
32
Raines v. Commonwealth, Ky. App., 731 S.W.2d 3, 4 (1987),
citing Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.
Ct. 839, 31 L. Ed. 2d 110 (1972).
33
Payne v. Commonwealth, Ky., 623 S.W.2d 867, 871 (1981).
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law enforcement officers34 hold inherent subjective enforcement
perspectives.
The Kentucky Supreme Court has recognized that “[a]
conviction must be obtained through the proper and lawful admission
of evidence in order to maintain the integrity and fairness that is
the bedrock of our jurisprudence.”35
Hause’s allegation that an
inherent, subjective perspective exists in law enforcement is an
unsubstantiated assault on the bedrock principles of integrity and
fairness that exist in law enforcement.
We must take a “man on the street” approach to analyzing
the language of KRS 531.330.36
The analysis of this case and the
resultant answers are exactly that same as announced in Hardin v.
Commonwealth:37
Has the statute defined what can or cannot be done with
such clarity that persons upon whom it is designed to
operate can understand it?
We think that it does.
the statute provide fair warning[?]
Does
We think it does.
So as to avoid arbitrary treatment, does it provide
explicit standards for those persons who apply it -- the
judge,
the
jury,
the
arresting officers?
prosecuting
attorney,
We think that it does.
and
the
Does it
34
See Hardin v. Commonwealth, Ky., 573 S.W.2d 657
(1978)(recognizing that “law enforcement” is not limited to police
officers).
35
Newkirk v. Commonwealth, Ky., 937 S.W.2d 690, 695-96
(1996), quoting Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830,
838 (1992).
36
Hardin, supra, n. 34, at 660.
37
Supra, n. 34.
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prohibit the exercise of any constitutional freedom?
We
think it does not.38
In short, we find no merit to Hause’s argument that KRS 531.330 is
unconstitutionally void for vagueness.
Was the Evidence Found in Virginia Obtained Unlawfully?
Hause argues that the warrant issued in California and
served on AOL, at its home office in Dulles, Virginia, did not
conform to Virginia law concerning compelled production of evidence
and that the warrant was not properly served under the requirements
of California law.
Hause
begins
by
stating
that
a
court
must
have
jurisdiction over a party to compel that party to perform some act
or to submit to a search.39
While we find no fault with this
statement, Hause, as a threshold requirement, must show that he had
a reasonable expectation of privacy in the evidence obtained from
AOL.40
Without a showing that Hause had a reasonable expectation
of privacy in the evidence obtained from AOL, Hause “lack[s]
standing to complain of the search’s alleged illegality.”41
This
burden of showing that standing exists must be met before launching
an attack on the evidence seized in an effort to have that evidence
38
Id. at 660.
39
See Burnham v. Superior Court, 495 U.S. 604, 110 S. Ct.
2105, 109 L. Ed. 2d 631 (1990).
40
See Cormney v. Commonwealth, Ky. App., 943 S.W.2d 629
(1997).
41
Id. at 631.
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suppressed.42
“To establish standing to attack a search, one must
establish a legitimate expectation of privacy in the searched
property.”43
Standing must have been raised before the circuit court,
and the Commonwealth should secure a ruling from the court, before
this Court will entertain a standing challenge.44 While the circuit
court did not specifically refer to the issue of standing, a ruling
was made on Hause’s motion to suppress the evidence, and the
question of whether Hause had a reasonable expectation of privacy
in the evidence obtained from AOL was raised, considered and ruled
upon, by the court.
While we disagree with the circuit court’s analysis on
this issue, we agree with its ruling that denied Hause’s motion to
suppress the evidence obtained from AOL.
The circuit court held
that Hause could have no reasonable expectation of privacy in the
evidence recovered from AOL because Hause was involved in illegal
activity.
This holding was premised on AOL’s privacy agreement,
with which Hause had agreed to abide, that said AOL would release
specific information about a subscriber’s account in compliance
with valid legal process.
This is putting the cart before the horse.
Even if the
search conducted at the AOL offices in Virginia had been conducted
without a warrant, Hause “had the burden of proving that he had
42
Id.
43
Foley v. Commonwealth,
(1997)(citations omitted).
44
Ky.,
953
S.W.2d
924,
934
See Clark v. Commonwealth, Ky. App., 868 S.W.2d 101, 102
(1993).
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retained a reasonable expectation of privacy in [the evidence
obtained].”45
AOL’s privacy agreement does not weigh in Hause’s
favor in this analysis; however, we note, without deciding, that,
standing alone, these “boilerplate” agreements may not be enough to
overcome a reasonable expectation of privacy held by subscribers.
“There is no constitutional right to suppression [of evidence].”46
A determination of whether the judicial remedy of suppression
should be exercised to safeguard Fourth Amendment rights depends on
whether
a
reasonable
expectation
of
privacy
exists.47
“[A]n
expectation of privacy is only reasonable where (1) the individual
manifests a subjective expectation of privacy in the object of the
challenged search; and (2) society is willing to recognize that
subjective expectation as reasonable.”48
“The second element turns
on ‘whether the government's intrusion infringes upon the personal
and societal values protected by the Fourth Amendment.’"49 Section
10 of the Kentucky Constitution provides no greater protection than
does the federal Fourth Amendment.50 “The party seeking suppression
must not only exhibit an expectation of privacy in the area, but
the expectation must be one society is willing to acknowledge as
45
See Cormney, supra, n. 40, at 631.
46
Crayton, v. Commonwealth, Ky., 846 S.W.2d 684, 689 (1993).
47
See id.
48
See LaFollette v. Commonwealth, Ky., 915 S.W.2d 747, 749
(1996)(citation omitted).
49
Id., quoting Oliver v. United States, 466 U.S. 170, 182-83,
104 S. Ct. 1735, 1743, 80 L. Ed. 2d 214 (1984).
50
See Estep v. Commonwealth, Ky., 663 S.W.2d 213 (1983).
-17-
reasonable.”51
The societal expectation “is one that society
accepts as ‘objectively reasonable.’”52
Hause asserts that he possessed a subjective expectation
of privacy in his personally identifiable information.
However,
“resolution of [whether Hause has a constitutionally protected
expectation of privacy] hinges on whether [Hause’s] expectation is
one that society accepts as ‘objectively reasonable.’”53
The objective reasonableness prong of the privacy test is
ultimately a value judgment and a determination of how
much privacy we should have as a society. In making this
constitutional determination, [we] must employ a sort of
risk analysis, asking whether the individual affected
should have expected the material at issue to remain
private.54
“To have a reasonable expectation of privacy under the
[United States] Supreme Court’s risk-analysis approach to the
Fourth Amendment, two conditions must be met: (1) the data must not
be knowingly exposed to others, and (2) the Internet service
provider’s
ability
to
access
the
data
must
not
constitute
51
LaFollette, supra, n. 48, at 749, citing Katz v. United
States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576,
588 (1967) (Harlan, J., concurring).
52
United States v. Hambrick, 55 F.Supp. 2d 504, 506 (1999),
quoting California v. Greenwood, 486 U.S. 35, 39, 108 S. Ct. 1625,
100 L. Ed. 2d 30, 36 (1988).
53
Id. at 506.
54
Id. (Citation omitted).
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disclosure.”55
Material that a person knowingly exposes to the
public, even in his home or office, is not subject to Fourth
Amendment protection.56
privacy
in
“A person has no legitimate expectation of
information
he
voluntarily
turns
over
to
third
parties.”57
Here, Hause knowingly revealed his name and address to
AOL and its employees. Hause also selected the screen name Bh0810.
This screen name tied Hause to his true identity at AOL.
AOL
employees had ready access to these records in the normal course of
business in keeping records for billing purposes.
This ready
access was further evidenced by AOL’s ability to provide the
subscriber records when the search warrant was served.
As the
United States Court of Appeals for the Sixth Circuit has recently
held, an individual, such as Hause, lacks a Fourth Amendment
privacy
interest
in
his
subscriber
information
because
he
communicated it to the system’s operators.58
In summary, we hold
that
of
Hause
had
no
legitimate
expectation
privacy
in
the
materials and information provided by AOL. Thus, the circuit court
properly denied Hause’s motion to suppress that evidence.
55
Id. at 507.
56
See Katz, supra, n. 51.
57
Hambrick, supra, n. 52, at 508 (citations omitted).
58
Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001). See also
United States v. Maxwell, 45 M.J. 406, 415 (U.S. Ct. App. for Armed
Services 1996) (“[T]he relationship of a computer network
subscriber to the network is similar to that of a bank customer to
a bank. So far as the company’s records are concerned, there is no
reasonable expectation that the records are private, and the
customer has no control whatsoever over which employee may see the
records.”); and United States v. Kennedy, 81 F. Supp.2d 1103, 1110
(D.C. Kan. 2000).
-19-
Was the Evidence Seized in Kentucky Fruit of the Poisonous Tree?
Hause’s
attack
on
the
Kentucky
warrant
is
premised
entirely on the assertion that the information obtained from AOL,
and subsequently used as the basis for the Kentucky warrant served
at Hause’s home, was unlawfully seized.
Since we have determined
that the materials and information obtained from AOL were not
constitutionally protected, Hause’s motion to suppress the evidence
seized in Kentucky as fruit of the poisonous tree need not be
addressed.
Was the Kentucky Warrant Based on Stale Information?
Hause asserts that the test for determining whether
information that forms the basis for a search warrant is so stale
that the information cannot be used to establish probable cause to
support the warrant is the test adopted in United States v.
Spikes:59
Instead of measuring staleness solely by counting the
days on a calendar, courts must also concern themselves
with the following variables: “the character of the crime
(chance
encounter
in
the
night
or
regenerating
conspiracy?), the criminal (nomadic or entrenched?), the
thing to be seized (perishable and easily transferable or
of enduring utility to its holder?), the place to be
searched (mere criminal forum of convenience or secure
operational base?)[.]”60
59
158 F.3d 913 (6th Cir. 1998)(adopting the test from
Andresen v. State, 24 Md. App. 128, 331 A.2d 78, 106 (1975)).
60
Id. at 923.
-20-
This list of variables is based in sound reasoning, and we find
that reasoning persuasive.
We are also guided by other principles of law concerning
search warrants and probable cause.
First, in analyzing the
validity of a search warrant, we look to the “totality of the
circumstances.”61
[A]fter the fact scrutiny by courts of the sufficiency of
an affidavit should not take the form of de novo review.
A magistrate’s ‘determination of probable cause should be
paid great deference by reviewing courts.’
or
negative
attitude
by
reviewing
‘A grudging
courts
toward
warrants,’ is inconsistent with the Fourth Amendment’s
strong preference for searches conducted pursuant to a
warrant ‘courts should not invalidate . . . warrant[s] by
interpreting affidavit[s] in a hypertechnical, rather
than a commonsense, manner.’62
Therefore, we will review the circuit court’s application of the
Spikes test.
Hause contends that the information that served as a
basis for the search warrant issued in Kentucky was stale because
the information was 178 days old.
The circuit court found that the
Lexington police waited only six days after receiving information
from the FBI before applying for a search warrant.
The court
61
See Crayton, supra, n. 46; see also Beemer v. Commonwealth,
Ky., 665 S.W.2d 912, 913 (1984).
62
Beemer, supra, n. 61, at 914 (citations omitted).
-21-
recognized
that
a
multi-state
investigation
had
preceded
the
Kentucky warrant, and that this investigation had taken time.
The
court then undertook an analysis of the Spike variables rule.
Accepting
Hause’s
recommendation
that
we
follow
the
Spikes rule for determining staleness, the age of the material and
information is not the sole consideration.63
the character of the crime.
We must also consider
Distribution and possession of child
pornography are not typically crimes that occur by chance.
The
circuit court found that individuals who look at child pornography
collect that type of material. And, we must consider the criminal,
generally.
The court found that child pornography can be stored
and that Hause conducted activities in his home.
The fact that
child pornography may be easier to obtain with the advent of the
Internet
does
not
destroy
this
hoarding
characteristic.
addition, we must consider the thing to be seized.
In
The court found
that the information obtained from Hause was not perishable; it
could be stored and accessed indefinitely.
consider the place to be searched.
Finally, we must
Here, the court found that
Hause used his home as a secure operational base.
The court also
noted that Hause informed a police officer that he was the only
person who had access to his computer.
While
evidence
was
introduced
that
could
have
been
considered adverse to the findings made by the circuit court, under
the totality of the circumstances we find no error in the analysis
and conclusions reached by the court on the question of staleness.
63
Id.
-22-
Having found no error on this issue, we need not consider whether
the good faith exception should apply.
Was the Kentucky Search Warrant Overbroad?
Suppression of evidence remains as a remedy “where the
warrant is facially deficient by failing to describe the place to
be searched or the thing to be seized.”64
[I]f it should appear that the affidavit failed to
describe with particularity the place to be searched and
the thing to be seized, or was untrue, misleading, or
that the judicial officer merely acted as a rubber stamp
for
the
police,
then
public
policy
would
require
suppression as the essential purpose of the warrant would
have been defeated.65
Here, the warrant described with particularity the place
to be searched and the things to be seized.
Hause’s primary
complaint is that the warrant was overbroad because it allowed the
police to seize the hard drive on his computer.
analogized, by Hause, to a container.
This hard drive is
However, “a warrant to
search a home also provides authority to open closets, drawers and
containers in which the object of the search might be concealed.”66
This warrant was not a General Warrant as was issued by the
64
Crayton, supra, n. 46, at 688, citing United States v.
Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).
65
Id. at 688.
66
Estep, supra, n. 50, at 215.
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infamous Star Chamber of England.67
Under the totality of the
circumstances, probable cause existed to search the hard drive of
Hause’s computer.68
The judgment is affirmed.
EMBERTON, Judge, CONCURS.
DYCHE, Judge, CONCURS IN RESULT.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Raymond S. Bogucki
Jesse P. Melcher
Matthew T. Sanning
BOGUCKI, KNOEBEL & VICE, P.S.C.
Maysville, Kentucky
Albert B. Chandler III
Attorney General
J. Hamilton Thompson
Assistant Attorney General
Frankfort, Kentucky
67
See Helm v. Commonwealth,
(1991)(Combs, J., dissenting).
68
Ky.,
813
Guest v. Leis, supra, n. 58, at 335.
-24-
S.W.2d
816,
821
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