Adams v. State

316 So.3d 260

Christopher Allen ADAMS

v.STATE of Alabama

CR-18-1083

Court of Criminal Appeals of Alabama.

February 7, 2020

Rehearing Denied May 15, 2020

Certiorari Denied July 10, 2020

Alabama Supreme Court 1190688

Kyle J. Henderson, Daphne, for appellant.

Steve Marshall, atty. gen., and Holly M. Walterscheld, asst. atty. gen., for appellee.

KELLUM, Judge.

The appellant, Christopher Allen Adams, pleaded guilty to possessing obscene material, a violation of § 13A-12-192(b), Ala. Code 1975, and was sentenced to 120 months in prison. The trial court split the sentence and directed that Adams be given credit for the time he had served in jail and that he serve one additional day and be released on probation for five years. Before pleading guilty, Adams specifically reserved his right to appeal the trial court's ruling denying his motion to suppress. See Green v. State, 200 So. 3d 677, 679 (Ala. Crim. App. 2015) ("The only way to invoke the limited right to appeal a guilty-plea conviction and sentence is to reserve and preserve an issue or to file a motion to withdraw the guilty plea.").

Adams was indicted in November 2018 for four counts of possessing obscene material that contained "visual depictions of a person under the age of 17." (C. 20-23.)¹ Adams moved to suppress the evidence obtained from the search of his electronic devices because, he argued, the information in the warrant affidavit was stale. He further argued that the information was not reliable because law enforcement had no firsthand knowledge regarding the information and did not corroborate that information. The trial court denied the motion to suppress. This appeal followed.

At the suppression hearing, Agent Britney Roberts, an officer with the Alabama Law Enforcement Agency ("ALEA"), testified that ALEA had received a cyber tip on August 23, 2016, from the National Center for Missing and Exploited Children ("NCMEC")² regarding child pornography. The tip, forwarded to NCMEC from the company operating the Internet Web site Chatstep.com,³ stated that one of its users was in possession of child pornography. She testified that NCMEC was required by federal law to report "anything that comes across as a child exploitation." (R. 12.) The tip, she said, contained the name of the company operating Chatstep.com, which had provided the information to NCMEC, the Internet protocol "IP" address "of the individual using that website that [the owner of Chatstep.com] suspected to be involved with child exploitation or child pornography, and also the user name on the website that the suspect used at the time." (R. 13.) The tip, Agent Roberts said, also contained the actual images. She reviewed those images, she said, and determined that they were child pornography. Agent Roberts further testified that when the tip was received it was submitted to an analyst at ALEA and that a subpoena was issued to the Internet service provider that serviced the IP address. ALEA found that the IP address was registered to Dorothy Adams, and it obtained her physical address. ALEA obtained a search warrant for Adams's premises. Agent Roberts testified that she had obtained approximately 50 warrants using the same protocol as she used in this case. (R. 16.) In all 50 cases, she said, the NCMEC tip had never been found to be unreliable.

Agent Roberts stated the following in the affidavit to support the issuance of the search warrant:

"Upon reviewing the information in the CyberTip and verifying that the file did appear to constitute a violation of Alabama Criminal Code 13A-12-192, a subpoena was issued to CenturyLink demanding that they identify their customer that was assigned the IP address of 99.194.148.71. CenturyLink identified their customer as Dorothy Gene Adams and the service address.... The investigation revealed that Dorothy Adams established service with CenturyLink on August 7, 2014 at the [service] address.

"On Wednesday, October 5, 2016, I reviewed the file reported by Chatstep on CyberTip (#13327815) and found that it did appear to contain a visual depiction of children engaged in sex acts. For example, one file depicted a prepubescent female, between 6 and 8 years of age sitting nude on the floor exposing her breast and vagina.

"Based on the information above, your affiant believes that some person using the internet connection at [the service address] did possess and upload a file containing a visual depiction of children engaged in obscene acts. Furthermore, based on the information regarding Internet Protocol (IP) number associated with the Chatstep account, I suspect that someone else at the listed address is responsible for this offense."

(C. 128.)

The search warrant was executed on November 2, 2016, approximately three months after the owner of Chatstep.com discovered child pornography on its site.⁴ When police executed the warrant, two individuals, Christopher Adams and his wife Dorothy Adams, were discovered inside the residence. Agent Roberts said that the officers specifically looked for any electronic devices that could contain child pornography. During the search, Agent Roberts said, images of child pornography were easily found on Christopher Adams's iPhone and similar images were later discovered on his computer. In total, approximately 360 images were retrieved from Adams's devices. After a lengthy discussion, the trial court denied the motion to suppress the images.

"This Court reviews de novo a circuit court's decision on a motion to suppress evidence when the facts are not in dispute." State v. Skaggs, 903 So. 2d 180, 181 (Ala. Crim. App. 2004).

"The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures, and it provides that search warrants shall be issued only upon a finding of probable cause." McIntosh v. State, 64 So. 3d 1142, 1145 (Ala. Crim. App. 2010).

"[P]robable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief’ that certain items may be contraband ... or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required."

Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). In determining whether there is probable cause to support the issuance of a warrant, we must evaluate the "totality of the circumstances" in each case. See Illinois v. Gates, 462 U.S. 213, 231-32, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

I.

Adams first argues that the information in the cyber tip that was used to support the issuance of the warrant was not reliable because, he says, Agent Roberts had no firsthand knowledge of the information and did not corroborate the information.

"Whether the information provided by an informant in a particular case is sufficient to establish reasonable suspicion is to be determined by applying the ‘totality of the circumstances’ test set out in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Alabama v. White, 496 U.S. [325] at 330–31, 110 S.Ct. [2412] at 2416, 110 L.Ed.2d 301 [(1990)]. Under this test, which was formulated in the context of probable cause, the informant's ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are ‘highly relevant’ factors to be considered. Gates, 462 U.S. at 230, 103 S.Ct. at 2328. However, because reasonable suspicion is a lower standard, there need not be as strong a showing with regard to these factors as is required for the establishment of probable cause, Alabama v. White, 496 U.S. at 330–31, 110 S.Ct. at 2415."

Wilsher v. State, 611 So. 2d 1175, 1179 (Ala. Crim. App. 1992).

Alabama has not addressed the reliability of a cyber tip from an Internet company. However, other courts have found that similar tips are reliable and, in fact, are "presumed reliable." A Florida Court stated in State v. Woldridge, 958 So. 2d 455 (Fla. Dist. Ct. App. 2007) :

"The reliability of the tip from AOL can be presumed because federal law compelled AOL's report to NCMEC. Although not mentioned by either party in their briefs, AOL was required to report the attempted transmission of these child pornography images to NCMEC for forwarding to law enforcement. Under 42 U.S.C. § 13032(b)(1) (2004),^[5] any internet service provider that obtains facts from which a violation of federal child pornography laws is apparent must report the facts and circumstances to the Cyber Tip Line at NCMEC. NCMEC then forwards the reported information to both state and federal law enforcement officials. 42 U.S.C. § 13032(b)(1), (b)(3). An internet service provider that fails to report such facts is subject to significant fines. 42 U.S.C. § 13032(b)(4).

"We find that this statutory reporting requirement supports the reliability of AOL's tip. Contrary to Woldridge's position at oral argument, the possibility of the imposition of fines for failing to report the transmission of child pornography does not make AOL's tip less reliable. Nothing about the possible imposition of fines would encourage AOL to make false reports to NCMEC. Further, while it is true that the search warrant affidavit does not reference this statutory mandate, the magistrate and the trial court, like all citizens, are charged with knowing the applicable law.

"In addition, AOL was acting in a manner analogous to that of a citizen informant when it forwarded the information to NCMEC.^[6] ‘A citizen-informant is one who is "motivated not by pecuniary gain, but by the desire to further justice." ’ State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001) (quoting State v. Evans, 692 So. 2d 216, 219 (Fla. 4th DCA 1997) (quoting State v. Talbott, 425 So. 2d 600, 602 n. 1 (Fla. 4th DCA 1982), and Barfield v. State, 396 So. 2d 793, 796 (Fla. 1st DCA 1981) )). A citizen informant is one who ‘by happenstance finds himself in the position of a victim of or a

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