United States v. Kidd

394 F.Supp.3d 357

UNITED STATES of America

v.Lloyd KIDD, Defendant.

18-CR-872 (VM)

United States District Court, S.D. New York.

Signed July 3, 2019

Elinor Lynn Tarlow, Jacob Gutwillig, Mary Elizabeth Bracewell, Sagar Kananur Ravi, U.S. Attorney's Office, New York, NY, for United States of America.

Adam Elewa, Zachary Margulis-Ohnuma, The Law Office of Zachary Margulis-Ohnuma, Florian Miedel, Miedel & Mysliwiec, LLP, Jill R. Shellow, Law Offices of Jill R. Shellow, Victoria Nicole Medley, Perlmutter and McGuinness, PC, New York, NY, for Defendant.

DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

On December 11, 2018, a grand jury returned an indictment charging defendant Lloyd Kidd ("Kidd") with two counts of commercial sex act exploitation of minors in violation of 18 U.S.C. Section 1591 (" Section 1591"). (See "Original Indictment," Dkt. No. 1.)

Kidd moved to dismiss the Original Indictment, request a bill of particulars, and suppress certain evidence. (See "First Motion to Suppress," Dkt. No. 25.) The Court denied Kidd's motion to dismiss the indictment (see "First Suppression Order," Dkt. No. 38), and, after holding an evidentiary hearing, also denied Kidd's motion to suppress evidence (see "Second Suppression Order," Dkt. No. 49). The Court granted in part Kidd's request for a bill of particulars. (See First Suppression Order.)

On June 5, 2019, a grand jury returned a four-count superseding indictment, which added two additional counts charging commercial sex act exploitation in violation of Section 1591. (See "Superseding Indictment," Dkt. No. 29.) Since then, the Government has filed a Second Superseding Indictment, including a fifth count for recording images of a minor engaging in sexually explicit conduct. (See "Second Superseding Indictment," Dkt. No. 52.)

Kidd now moves to dismiss the Superseding Indictment on the same bases as presented in the First Motion to Suppress. (See "Second Motion to Suppress," Dkt. No. 30.) Kidd also moves to suppress records from a telecommunications provider, Pinger, Inc. ("Pinger"), regarding a cellphone number ending in -9064 (the "9064 Number"). Specifically, Kidd moves to suppress the IP address information associated with the 9064 Number and gathered over 581 days (from May 5, 2017 to December 7, 2018), which Pinger provided to the Government pursuant to a subpoena. Kidd argues that this Internet Protocol ("IP") address¹ information effectively provides day-to-day location tracking through his cellphone, and thus constituted a warrantless search, in violation of the Fourth Amendment under the Supreme Court's decision in Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018). In Carpenter, the Court held that cellphone users had a reasonable expectation of privacy in the cell-site location information ("CSLI") retained by the cellular service provider. See Carpenter, 138 S. Ct. at 2217.

The Government opposes both requests. (See "Opposition," Dkt. No. 39.) First, the Government reasserts its argument in opposition to the First Motion to Suppress regarding the dismissal of the indictment. Second, the Government opposes Kidd's request to suppress the IP address information obtained from Pinger, largely supporting its argument by citing several post- Carpenter cases that have declined to extend Carpenter's reasoning to IP address information.

I. DISCUSSION

A. DISMISSAL OF SUPERSEDING INDICTMENT

The Court denied Kidd's motion to dismiss the Original Indictment because it "permissibly tracks the language of the statute under which the Government is charging Kidd." (First Suppression Order at 4.) Considering that the Superseding Indictment follows the same structure and format as the Original Indictment, the Court reaffirms and here applies its previous reasoning and analysis and finds that the Superseding Indictment provides sufficient detail of the crimes with which Kidd is charged to inform him of the Government's accusations against him and enable him to mount an appropriate defense.

As for Kidd's request for a bill of particulars regarding the two new counts in the Superseding Indictment, the Court finds that the Government has provided sufficient details as to the relevant acts in its pretrial filings. For example, the Government's motion in limine described at length the expected testimony of the victims pertaining to the new counts in the Superseding Indictment. (See Dkt. No. 35 at 6-8.)

Therefore, the Court denies Kidd's Second Motion to Suppress seeking to dismiss the Superseding Indictment and requesting a bill of particulars.

B. SUPPRESSION OF PINGER RECORDS

In moving to suppress the records the Government obtained from Pinger, Kidd mainly contends "there is no meaningful distinction between CSLI and IP address data, which can similarly be used to track a user's location." (Second Motion to Suppress at 4.) Specifically, Kidd analogizes CSLI to the location information derived from "[r]eadily available internet resources" which can "translate" an IP address to a user's physical location. (Id. at 2.)

The Government responds by citing several decisions which declined to extend the Carpenter holding to IP address information. After summarizing the case law, the Government focuses on two facts: the IP address information "show[s] information associated with the defendant's affirmative access and use of the internet" and, conversely, does not "show the actual physical location of the user." (Opposition at 4.)

It appears that the treatment of IP address information post- Carpenter presents an issue of first impression in both this Court and district. As such, the issue requires an extensive look at the Supreme Court's reasoning and analysis in Carpenter and its implications for the Fourth Amendment.

1. Carpenter v. United States

In Carpenter, the defendant was the leader in a series of retail store robberies. During the investigation of the robberies, police apprehended four suspects, and launched an investigatory chain leading the Government to serve subpoenas on the defendant's wireless service carriers. In response to the subpoenas, the wireless service carriers produced the defendant's CSLI, or more specifically, the location information of the defendant's cellphone for incoming and outgoing calls. This request totaled nearly 13,000 points of location data over only 129 days. After the district court denied the defendant's motion to suppress the CSLI, the Government introduced maps at trial placing him near the robberies. See 138 S. Ct. at 2211-12.

The CSLI enabled the Government to make such a map because of its frequency and granularity. As the Supreme Court explained, "[e]ach time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information." Id. at 2211. And modern cellphones connect to cell sites more and more frequently each year, thus generating numerous CSLI records on a daily basis, as evidenced by the more than one hundred datapoints collected per day in Carpenter. The granularity of the location data depends on the density of the cell sites in an area. While not as precise as, Global Position System ("GPS")² monitoring, for example, in urban environments CSLI can pinpoint users to within several blocks. Telecommunications carriers retain this detailed CSLI for their own business reasons for various lengths of time. See id. at 2211-12, 2218.

The Supreme Court found that the request for CSLI required it to reconcile two intersecting sets of cases. "The first set of cases addresses a person's expectation of privacy in his physical location and movements." Id. at 2215. Under this set, a person has no reasonable expectation of privacy in his or her movements in a car from place to place. See id. (citing United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) ). However, this set of cases circumscribes that holding when faced with more pervasive, augmented, and sophisticated surveillance methods enabled by technology. Thus, in United States v. Jones, 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), the Supreme Court found an unlawful trespass when the FBI, without a warrant, installed a GPS tracking device on the defendant's car for twenty-eight days. Critically, the GPS monitoring revealed "every movement" of the defendant in that vehicle. Jones, 565 U.S. at 430, 132 S.Ct. 945.

The second set of cases involves the third-party doctrine as an exception to the application of the Fourth Amendment's protections. The broad principle of the doctrine provides that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Carpenter, 138 S. Ct. at 2216 (internal quotation marks omitted). The specific examples explaining that principle arise from a pair of Supreme Court decisions in the 1970s.

In the first case, the Supreme Court found that the defendant had no reasonable expectation of privacy in bank records the Government subpoenaed while investigating tax fraud, because the defendant took "risk, in revealing his affairs to another, that the information [would] be conveyed by that person to the Government." See United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976).

In the second case, and perhaps more apt comparison for IP address information, the Supreme Court found that recording the outgoing phone numbers dialed on a landline phone was not a search, because the subscriber "know[s] ... that the numbers are used by the telephone company ‘for a variety of legitimate business purposes,’ including routing calls." Carpenter, 138 S. Ct. at 2216 (quoting Smith v. Maryland, 442 U.S. 735, 743, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) ).

Applying these principles, the Carpenter Court found that CSLI sufficiently implicated the concerns described in the first line of cases regarding privacy of one's movements to justify a narrow exception to the second line regarding the third-party doctrine...