United States District Court, D. Montana, Helena Division
DANA L. CHRISTENSEN, Chief District Judge.
Defendant Derrick Lee Drivdahl is charged with receipt and distribution of child pornography pursuant to 18 U.S.C. § 2252(a)(2). Drivdahl filed a motion to suppress all evidence acquired by the Helena Police Department as a result of the search warrant and supporting affidavit served at Drivdahl's residence on or about July 15, 2013, as well as evidence collected during Drivdahl's arrest on the same day, including statements made by Drivdahl, and the content of a thumb drive and Chromebook Laptop seized during the arrest. Drivdahl argues that his arrest was the result of a warrant to search his residence that was not supported by sufficient probable cause because it contained information collected as a result of previous illegal and unwarranted searches and/or improperly disclosed electronic communications.
I. Factual Background
When Google discovers child pornography on its system, 18 U.S.C. § 2258A requires it to report its findings to the CyberTipline of the National Center for Missing and Exploited Children ("NCMEC"). Google's precise protocol related to CyberTip reports is at the center of the instant motion, and will be discussed below.
The first CyberTip report related to this case was generated by Google and sent to the NCMEC in February of 2013. The NCMEC determined that the report should be sent to Pennsylvania for further investigation based on the IP address that Google provided. Ultimately, the Pennsylvania detective working the case determined through additional information obtained from Google via a warrant that the Gmail account (email@example.com) related to the report actually resolved to an IP address in Montana. The Pennsylvania detective sent his files on this tip to the Helena Police Department, where they ultimately landed on Detective Bryan Fischer's desk on July 19, 2013.
Fischer filed a warrant application and affidavit in support thereof on July 15, 2013, based on this initial CyberTip, as well as subsequent CyberTips that he believed implicated Defendant Drivdahl of trafficking in child pornography in violation of federal law. Several of these subsequent CyberTips were the result of an investigation conducted by Google employee Sean Zadig, who produced a supplemental report pertaining to Drivdahl's use of Google services to upload child pornography. Fischer used this supplement in conducting his own investigation, and referred to it and its contents in the affidavit. Fischer and Zadig were also in contact with each other following the submission of Zadig's supplement.
The resolution of this motion hinges on the nature and chronology of the relationships between Mr. Zadig, Google as the supplier of CyberTips related to Mr. Drivdahl, and Detective Fischer. The crux of Mr. Drivdahl's argument is that Google and/or Mr. Zadig were government actors for purposes of the Fourth Amendment, and that as such, a warrant was required prior to their obtaining and viewing the materials upon which Fischer's affidavit was based.
II. Legal Standard
The Fourth Amendment assures that "the right of the people to be secure in their persons, houses, papers and effect, against unreasonable searches and seizures, shall not be violated." U.S. Const. Amend. IV. Because the Fourth Amendment constrains government searches and seizures, it does not apply "to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any government official." United States v. Jacobsen, 466 U.S. 109, 113 (1984). However, "[w]here a private party acts as an instrument or agent of the state in effecting a search or seizure, Fourth Amendment interests are implicated." Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971). The Ninth Circuit has established that when "determining whether a private party's search implicates the Fourth Amendment, the relevant inquiry is (1) whether the government knew and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further his own ends." United States v. Cleveland, 38 F.3d 1092, 1093 (9th Cir. 1994) (internal quotations and citations omitted). "The government must be involved either directly as a participant or indirectly as an encourager of the private citizen's actions before we deem the citizen to be an instrument of the state. The requisite degree of governmental participation involves some degree of knowledge and acquiescence in the search. United States v. Walther, 652 F.2d 788, 791-92 (9th Cir. 1981) (internal quotations and citations omitted); see also United States v. Sherwin, 539 F.2d 1, 6 (9th Cir. 1976) (holding that "a private person cannot act unilaterally as an agent or instrument of the state; there must be some degree of governmental knowledge and acquiescence. In the absence of such official involvement, a search is not governmental."). Finally, the defendant bears the burden of "establishing government involvement in a private search." Id.
Of course, the results of an illegal search cannot be included in a warrant affidavit to establish probable cause. See, e.g., United States v. Vasey, 834 F.2d 782 (9th Cir. 1987).
The Court notes at the outset that much of Drivdahl's brief supporting his motion to suppress is admittedly based on assumptions of fact regarding Google's internal procedures and the relationship between Google and Detective Fischer. As will be discussed at length below, the government's response brief and the supporting affidavit of Sean Zadig clarify many of the ambiguities and dispel many of the assumptions contained in Drivdahl's initial brief. The Court will first address the arguments raised in this initial brief, and will then turn to the arguments Drivdahl advanced after receiving the government's response and Zadig's affidavit.
Drivdahl essentially advances two "joint endeavor" arguments in which he claims Google was in fact operating as a government agent for the purposes of Fourth Amendment ...