Commonwealth v. Dunn

232 N.E.3d 688

COMMONWEALTH

v.Warren W. DUNN.

SJC-13454

Supreme Judicial Court of Massachusetts, Plymouth.

Argued January 5, 2024.

Decided May 9, 2024.

Obscenity, Child pornography. Probable Cause. Search and Seizure, Probable cause, Warrant, Affidavit. Practice, Criminal, Motion to suppress, Affidavit. Words, "Lewd exhibition."

Indictments found and returned in the Superior Court Department on March 12, 2021.

Pretrial motions to suppress evidence and for a hearing on the affidavit supporting a search warrant were heard by Elaine M. Buckley, J., and conditional pleas of guilty were accepted by Brian A. Davis, J.

The Supreme Judicial Court granted an application for direct appellate review.

Christopher DeMayo (Sabrina Bonanno, Quincy, also present) for the defendant.

Elizabeth A. Mello Marvel, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.

GAZIANO, J.

The defendant, Warren W. Dunn, pleaded guilty to two counts of possession of child pornography in violation of G. L. c. 272, § 29C (vii), and two counts of possession of child pornography as a subsequent offense in violation of G. L. c. 272, § 29C (vii), after incriminating evidence was discovered in his apartment pursuant to a search warrant. On appeal, the defendant asserts that the search lacked probable cause because the trooper who submitted the search warrant application provided a deficient description of two allegedly lewd images in his affidavit and did not attach the images themselves to the affidavit. The defendant urges us to create a new rule, requiring magistrates to personally view allegedly lewd images before issuing search warrants. We decline to do so. Although attaching the photographs or providing a more thorough description would have been preferable in this case, the affidavit read in its entirety was sufficient to establish probable cause. The defendant also appeals from the denial of his motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), arguing that the trooper made an intentionally or recklessly false statement in his affidavit when describing the images at issue. We hold that the motion judge did not abuse her discretion in concluding that the defendant failed to demonstrate that the trooper’s descriptions are false. Accordingly, we affirm the denial of the defendant’s motion to suppress and the denial of his motion for a Franks hearing.

Background. 1. The CyberTipline report. We summarize the relevant facts from the affidavit submitted by State police Trooper Gerald F. Donovan in support of his application for a warrant to search the defendant’s apartment. See Commonwealth v. Mora, 477 Mass. 399, 400, 77 N.E.3d 298 (2017) ("our inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four corners of the affidavit’ " [citation omitted]).

Donovan has worked as a member of the State police Internet crimes against children (ICAC) task force since 2013. In 2018, he also became a member of the State police cyber crime unit. The primary duty of the ICAC task force is to investigate potential sexual exploitation of children on the Internet. Donovan has continued to receive training related to this work, attending the ICAC investigative techniques training program, which includes training on crimes associated with child exploitation, and the Attorney General’s annual cyber crime conference since 2014.

Based on his training and experience related to the sexual exploitation of children, Donovan described in his affidavit how persons who have previously possessed child pornography are likely to keep sexually explicit visual images depicting children "secreted[ ] but readily at hand." He also explained that these persons are "not likely to destroy [their] collection" of such material.

On April 27, 2020, Donovan received a "CyberTipline" report concerning potential child pornography. The report was sent to the ICAC task force by the National Center for Missing and Exploited Children (NCMEC). NCMEC is a private, nonprofit organization that "provides services nationwide for families and professionals in the prevention of abducted, endangered, and sexually exploited children." In 1998, NCMEC created the CyberTipline, a national clearinghouse for tips and leads regarding child sexual exploitation. The CyberTipline permits the public and electronic service providers (providers)¹ to submit online reports of potential child exploitation media. After receiving a report, NCMEC works to identify potential geographic information in the reported file. NCMEC then shares its CyberTipline reports with law enforcement agencies.²

The CyberTipline report received by Donovan was first submitted to NCMEC by a provider, Microsoft, on March 18, 2020. Attached to the report were two images flagged as potential child pornography. A Microsoft employee viewed the two images and then reported both as child pornography. According to NCMEC’s categorization system, Microsoft identified both images as "B2." NCMEC defines B2 as "a pubescent minor in any image of lascivious exhibition depicting nudity and one or more of: restraint, sexually suggestive poses, focus on genitals, inappropriate touching, adult arousal, spreading of limbs or genitals, and such depiction lacks serious literary, artistic, political, or scientific value."

The two images attached to the CyberTipline report were then submitted to NCMEC’s law enforcement services portal. Through this portal, law enforcement can utilize a tool that "compare[s] … hash values calculated from suspected child pornography images and videos with hash values stored in the [child victim identification program]."³ NCMEC reported that both images contained "recognized hash values." A "recognized hash value" is associated with an image or video that was previously submitted to NCMEC’s child recognition and identification system and "may or may not contain apparent child pornography or depict identified children."⁴

After reviewing the CyberTipline report, Donovan personally viewed the two images in question. He provided identical "brief description[s]" for both images in his affidavit: "This image depicts a pubescent male standing completely naked with the focus of the image on the young boy’s penis. The young boy is approximately [thirteen] to [fifteen] years of age." Donovan did not attach the images to his application for a search warrant.

As part of his investigation, Donovan also reviewed a report from the Hull police department. This report recounted the defendant’s 2007 arrest after police seized "various media forms containing child pornography of boys as young as [ten] years old" from the defendant’s apartment -- the same residence Donovan sought to search in his application for a search warrant. The report also described how "[a]n interview was conducted post-Miranda where [the defendant] made several admissions consistent with [the] Hull [police department’s] investigation."

Additionally, the Attorney General issued an administrative subpoena to Comcast, an Internet service provider, for the subscriber information linked to the Internet protocol (IP) address in the CyberTipline report.⁵ Comcast’s records identified the defendant as the subscriber for the designated IP address and his place of residence as the service address. When cross-referenced with the CyberTipline report, the IP address from the subpoena is the same IP address listed for the two images reported by Microsoft.

Last, Donovan submitted a query to the registry of motor vehicles and checked the Hull town assessor’s online database as part of his investigation. Through these efforts, Donovan confirmed that the defendant was a level two sex offender and owned an apartment associated with the IP address that was the subject of the Attorney General’s subpoena.

2. The search. On June 3, 2020, Donovan applied for a search warrant to search any computers, cell phones, or digital devices at the defendant’s residence for evidence related to the crimes of possession and dissemination of child pornography. The application also included a request for a qualified computer forensic and hardware expert to search the defendant’s computer system and to copy digital evidence stored on any servers that the defendant may have remotely accessed from his digital devices.

A magistrate granted the application for the search warrant that same day, on June 3, 2020. On execution of the warrant later that afternoon, a laptop, "thumb drive," cell phone, and empty tablet box were seized. Officers later found over 2,800 images of child pornography on the thumb drive and one such image on the cell phone.

3. Prior proceedings. In March 2021, a grand jury indicted the defendant on two counts of possessing child pornography in violation of G. L. c. 272, § 29C (vii), and two counts of possessing child pornography as a subsequent offense in violation of G. L. c. 272, § 29C (vii).

In September 2021, the defendant filed two motions in the Superior Court: a motion to suppress the evidence seized from his devices and a motion for a Franks hearing. After an evidentiary hearing in November 2021, a Superior Court judge denied both of the defendant’s motions in a written decision entered on January 4, 2022.

On August 26, 2022, the defendant filed an agreement to plead guilty, expressly preserving his right to appeal from the judge’s denials of his motion to suppress and his motion for a Franks hearing. The defendant pleaded guilty to all charges later that day. As part of his plea, the defendant stipulated to certain facts regarding the two images that were attached to the CyberTipline report.⁶

Because the two allegedly lewd photographs were impounded, in February 2023, the defendant filed a motion to compel the Commonwealth to produce the photographs. The motion was allowed the following month, with instruction from the motion judge that...