United States v. McCutchin

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS

          BERNARDO P. VELASCO, UNITED STATES MAGISTRATE JUDGE

         On September 27, 2017, Defendant Michael James McCutchin was indicted for distribution of, possession of, and knowing access of child pornography [Doc. 1]. On August 20, 2018, Defendant filed a Motion to Suppress [Doc. 35]. The Government filed its Response [Doc. 54] on September 24, 2018, and a Notice of Supplemental Authority [Doc. 59] on October 25, 2018. The Defendant filed a Reply [Doc. 60] on October 26, 2018.

         The matter came on for Evidentiary Hearing before the Court on October 30, 2018. The Defendant called as witnesses Brian Chase and John McCutchin. At the request of defense counsel, the parties were allowed to submit post-hearing memoranda after the preparation of the hearing transcript. On December 12, 2018, Defendant filed a Memorandum in Support of Motion to Suppress [Doc. 66]. The Government filed its Response to Defendant's Memorandum [Doc. 68] and its Amended Response [Doc. 69] on December 26, 2018.

         The Court, having considered the briefing, arguments, and evidence presented, recommends that the District Judge, after his independent review and consideration, enter an order DENYING Defendant's Motion to Suppress [Doc. 35].

         Facts

         John McCutchin is the owner of a residence with an address of 12205 Wild Rabbit Run Road, Vail, Arizona. Mr. McCutchin also has internet service through Cox Communications at this address. In the internet, the McCutchin address has a different designation, known as an IP address.

         John McCutchin does not live alone. He has a son-in-law who lives there on an as-needed basis, depending on his work schedule assignments. The Defendant, Michael James McCutchin, also lives in the residence of his father, John McCutchin. All residents of the Wild Rabbit Run Road house own their own individual internet devices. All of the residents appear to have access and use the IP address of John McCutchin.

         On July 24, 2016, the Department of Homeland Security became aware of an IP address, 68.99.95.100, that was being used to access child pornography. On August 26, 2016, the Department, through Special Agent Robert McCarthy, served a Security Summons (Subpoena) on Cox Communications to produce customer/subscriber information. Thereafter, as a result of the customer information and the independently acquired child pornography evidence, a search warrant was applied for and obtained on November 21, 2016. The warrant was served and executed on November 22, 2016. The Indictment herein resulted from the evidence seized on the various devices obtained through the warrant's authorization.

         DISCUSSION

         The subscriber information for the IP address was obtained pursuant to 19 U.S.C. §1509. The warrant was obtained in accordance with the 4^th Amendment to the U.S. Constitution, statutes, and Criminal Rules of Procedure currently in effect.

         The claim herein is that the Defendant, a live-in guest of his father, has a privacy interest in his father's financial decision to obtain internet service because it is “indispensable to participation in modern society”.

         In a primitive society, one could be located with some difficulty by giving vague directions, such as “go towards that mountain until you get to a tall tree on the right, turn left ...”. Later, an individual could be located with a specific street address. Later, pursuant to statutory enactments, certain individuals' physical addresses could be concealed from the public. In the present electronic age, a person's IP address is not statutorily inaccessible. An IP address in effect is created for its user by the internet provider. The user thereafter shares that address with every other address the user accesses.

         In this case, the Defendant was identified because he accessed a site of interest to the Government. The Defendant does not claim a right of privacy as to that site. By visiting a site containing content that violates the U.S. Code, the Government is statutorily authorized to identify the visitor's physical location, which amounts to one's possible identification. The search warrant process results in the specific identification of the internet user.

         The Court is unaware of any constitutional right to privacy of one's identity. U.S. v. ...