United States District Court, D. Arizona
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION
BERNARDO P. VELASCO, UNITED STATES MAGISTRATE JUDGE
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.
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.
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
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.
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.
24, 2016, the Department of Homeland Security became aware of
an IP address, 188.8.131.52, 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.
subscriber information for the IP address was obtained
pursuant to 19 U.S.C. §1509. The warrant was obtained in
accordance with the 4th Amendment to the U.S.
Constitution, statutes, and Criminal Rules of Procedure
currently in effect.
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
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.
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.
Court is unaware of any constitutional right to privacy of
one's identity. U.S. v. ...