United States v. Bohannon

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WESLEY STEVEN BOHANNON, Defendant-Appellant.

No. 21-10270

United States Court of Appeals, Ninth Circuit

August 30, 2023

NOT FOR PUBLICATION

Argued and Submitted February 13, 2023

Submission vacated February 24, 2023

Resubmitted August 30, 2023 San Francisco, California

Appeal from the United States District Court for the Northern District of California D.C. No. 3:19-cr-00039-CRB-1, Charles R. Breyer, District Judge, Presiding

Before: MILLER, SANCHEZ, and MENDOZA, Circuit Judges.

MEMORANDUM ^[*]

Wesley Bohannon appeals his conviction for possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2). We have jurisdiction under 28 U.S.C § 1291, and we affirm.

"We review the district court's denial of [a] motion to suppress de novo and the district court's underlying factual findings for clear error." United States v. Wilson, 13 F.4th 961, 967 (9th Cir. 2021). "We review for clear error a magistrate's finding of probable cause to issue a search warrant, and give 'great deference' to such findings." United States v. Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011) (quoting United States v. Hill, 459 F.3d 966, 970 (9th Cir. 2006)).

1. The district court did not err in denying Bohannon's motion to suppress the evidence acquired as a result of Microsoft's initial report to the National Center for Missing and Exploited Children (NCMEC). Assuming without deciding that Bohannon had a reasonable expectation of privacy in his OneDrive file, we conclude that the private-search exception to the Fourth Amendment's warrant requirement applies. Under the private-search exception, "an antecedent private search excuses the government from obtaining a warrant to repeat [a] search but only when the government search does not exceed the scope of the private one." Wilson, 13 F.4th at 968.

In ruling on the motion to suppress, the district court did not expressly make a finding on whether a Microsoft employee viewed the contents of Bohannon's file before the file was sent to NCMEC. We therefore remanded this case "for the limited purpose of allowing the district court to make additional findings and to determine whether a Microsoft employee viewed the contents of Bohannon's OneDrive file before the file was forwarded to NCMEC." Dkt. No. 44. On remand, the district court found that a Microsoft employee indeed viewed the file. Thus, even assuming that NCMEC qualifies as a government actor, the private-search exception excused it from obtaining a warrant to inspect the contents of Bohannon's file.

The district court's finding was not clearly erroneous. When Microsoft sent its alert to NCMEC, it wrote "Yes" in response to the form question, "Did Reporting ESP view entire contents of uploaded file?" And the government introduced declarations from Sean Davis, Head of Digital Safety Operations at Microsoft, and Alon Brown, Partner Director of Microsoft's Digital Trust and Safety Team, stating that the response on the form indicates that "someone at Microsoft reviewed the image at issue before it was transmitted to NCMEC." Bohannon presented no evidence contradicting those declarations. Instead, he argues that, because neither Davis nor Brown held their respective positions when the file was sent to NCMEC in 2017, their declarations shed no light on what Microsoft's reporting practice was at the relevant time. But even if the declarations speak only to Microsoft's current practice, it is reasonable to infer, based on the plain language of the report, that Microsoft meant the same thing by answering "Yes" in 2017 that it does today. At a minimum, the district court did not clearly err in drawing that common-sense inference. Finally, as the district court noted in denying Bohannon's motion for reconsideration, the government also provided supplemental evidence that two Microsoft employees manually reviewed Bohannon's file and confirmed it contained child pornography.

Nor did the district court abuse its discretion in denying Bohannon's motion for an evidentiary hearing. As the preceding discussion demonstrates, there was no "genuine issue of material fact requiring an evidentiary hearing." United States v. Henderson, 241 F.3d 638, 649 (9th Cir. 2000), as amended (Mar. 5, 2001).

Bohannon also argues that the private-search exception does not apply because Microsoft did not "freely ma[ke] [the file] available" to NCMEC but instead did so only under legal compulsion....