The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Defendant Taleek Brooks moves, pursuant to Federal Rule of Criminal Procedure 12(b)(3), to suppress evidence recovered from files he maintained through the peer-to-peer file sharing network "GigaTribe," and, as "fruits" of that allegedly illegal search, other evidence subsequently recovered pursuant to search warrant from a computer and external hard-drives found at his home, and incriminating statements he made on the date of his arrest. (Doc. No. 23.) The government opposes the motion. (Doc. No. 24.) For the reasons below, this Court denies defendant's motion in its entirety.
The material facts are undisputed. Defendant Brooks used a "closed"
sharing program called GigaTribe under the username Tri-star. (Doc.
No. 23-1.) The GigaTribe software allows a user to create a private
peer-to-peer network through which selected files can be placed in
specific folders on his computer, which files can be accessed by
"friends" that the network creator or owner has specifically invited
to join his private network. Once a "friend" request is accepted, the
network owner grants the "friend" access solely to files that the
network owner has designated for sharing with that friend.*fn1
Additionally, the GigaTribe software also allows users to
communicate with each other via private chat. (See Doc. No. 23-3 ¶¶
In or about December, 2011, Brooks, using the screen name "Tri-star,"*fn2 accepted a "friend" request from an undercover FBI agent (Doc. No. 23-2 ¶ 3.), and designated for sharing with the undercover certain files containing child pornography which Brooks placed in his shared folders. (Doc. No. 23-3 ¶¶ 21--22.) Although there is some indication in the record that Brooks may have accepted two "friend" requests from the same or two separate agents, one on November 21 and the second on December 24, (see Doc. No. 26-2; Doc. No. 23-2 ¶ 3), Brooks concedes that there was no chat or other communication between Brooks and the agent before Brooks accepted the "friend" request(s), and that the undercover agent did not view any of Brooks' files until after Brooks "friended" the agent and specifically designated files to be shared with the agent.
The undercover agent learned through a private chat with Brooks that Brooks was "interested in black boys 10 years old and older" and proceeded to download nine image files and two video files depicting child pornography from Brooks. (Doc. No. 23-3 ¶¶ 23-24; Doc. No. 24-2.) Through the use of Tri-star's IP address, the undercover agent was able to ascertain Brooks' identity and home address. (Doc. No. 23-3 ¶¶ 25-26.) Pursuant to a search warrant, agents searched Brooks' home on January 13, 2012, seized a computer and two external hard-drives, and found additional files containing child pornography that appear to have been produced by Brooks. (Doc. No. 1 ¶¶ 4-7.) Brooks, who was present during the search, made incriminating statements concerning downloading and sharing child pornography.*fn3 (Id.) Brooks was charged with seven counts of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a), one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(b), and four counts of distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2).
Brooks argues that the search of his shared GigaTribe folders violated his Fourth Amendment rights for several reasons. First, Brooks claims that he has a reasonable expectation of privacy in his GigaTribe files requiring a warrant supported by probable cause before the undercover agent could "friend" him and remotely access Brooks' files. Second, Brooks cannot be said to have voluntarily consented to share his files because his consent was secured through deception. Finally, Brooks maintains that the agent trespassed in searching his shared folders, thereby violating the Fourth Amendment. Brooks further seeks to suppress all evidence recovered pursuant to the search warrant executed at his home, as well as the incriminating statements made during his arrest, as fruits of the initial unlawful search of Brooks' GigaTribe files. The Court finds all of defendant's arguments to be without merit.
A.Reasonable Expectation of Privacy
"A defendant seeking to suppress the fruits of a search by reason of a violation of the Fourth Amendment must show that he had a 'legitimate expectation of privacy' in the place searched." United States v. Hamilton, 538 F.3d 162, 167 (2d Cir. 2008) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). "This inquiry involves two distinct questions: first, whether the individual had a subjective expectation of privacy; and second, whether that expectation of privacy is one that society accepts as reasonable." Id. (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).
Brooks contends that he "maintained a reasonable expectation of privacy" in his GigaTribe files because the peer-to-peer network was open only to "friends." (Def. Br. (Doc. No. 23-5) at 12.) Even accepting that proposition as true, the Supreme Court has "consistently [ ] held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Smith v. Maryland, 442 U.S. 735, 743--44 (1979). In applying this principle to emerging internet technologies, courts have uniformly held that a user of a private or "closed" peer-to-peer network such as GigaTribe who makes available files to his "friends" does not have an objectively reasonable expectation of privacy in those files he shared. See United States v. Soderholm, 11-cr-3050, 2011 WL 5444053, at *7 (D. Neb. Nov. 9, 2011) (holding that the "defendant did not have an objectively reasonable expectation of privacy in the files stored on his computer once he designated those files for sharing with the 'friends' on his private network"); United States v. Sawyer, 786 F. Supp. 2d 1352, 1356 (N.D. Ohio 2011) (holding that the "[d]efendant did not have an objectively reasonable expectation of privacy in the information that he shared over GigaTribe"); United States v. Ladeau, 09-cr-40021, 2010 WL 1427523, at *5
(D. Mass. Apr. 7, 2010) (holding that once the defendant "turned over the information about how to access the network to a third party, his expectation of privacy in the network became objectively unreasonable").*fn4 This Court joins in so holding, and finds that once Brooks accepted the undercover agent as a "friend" and designated as shared certain files to which the undercover could gain access, Brooks had no legitimate expectation of privacy in those shared files.
Brooks attempts to distinguish the weight of authority by noting that in Sawyer and Ladeau, the government gained access to the defendant's computer by using the identity of a third-party to whom the defendant had already granted access. (Def. Br. (Doc. No. 23-5) at 12.) In those cases, each defendant had accepted "friend" requests from third parties, and the third parties provided the government with consent to use the "friend's" computer account to view the files that Sawyer and Ladeau shared with the third parties. Those courts held that once a defendant granted his "friend" access to his files, he had "no control over the manner in which his friends used that access," including turning over what they access to law enforcement. U.S. v. Sawyer, 786 F. Supp. 2d at 1356 (citing Ladeau, 2010 WL 1427523, at *1--5). Here, Brooks has even less of an objective expectation of privacy than Sawyer and Ladeau because Brooks directly "friended" the undercover agent and specifically made available to him the files in his shared folders. Indeed, if Sawyer and Ladeau assumed the risk that one of his "friends" would alert law enforcement to the fact that he was trading child pornography, Brooks equally assumes the risk that one of his "friends" is actually a law enforcement agent. See Soderholm, 2011 ...