United States v Contreras 5th CIR (1OCT2018)

United States v Contreras 5th CIR (1OCT2018)

Contreras, the defendant in this criminal case, was indicted, convicted and sentenced to 168 months imprisonment for violating federal child pornography law under 18USC2252(a)(2).  The evidence used to convict Contreras was obtained as a result of a search warrant executed on his family residence.  The warrant affidavit contained information obtained specifically from two grand jury subpoenas. One subpoena was issued to Kik mobile messaging application to obtain IP address information.  The second one was issued to Frontier Communications to find the physical address associated with the IP.

Contreras sought to suppress the evidence based on two arguments.  First, that he had a reasonable expectation of privacy in his family residence address record provided to Frontier Communication.  Second, he argued the warrant application lacked probable cause on its face.

The Fifth Circuit affirmed the District Court’s decision denying the motion to suppress.  First, the court ruled that, notwithstanding the recent Supreme Court decision in Carpenter v. United States, the Third-Party Doctrine applied to the physical address associated with their Frontier Communications account.  The court held that the limitation in Carpenter did not apply to this type of information and therefore no warrant is required to get to this information.  Second, the court further held that the Good Faith Exception espoused in United States v. Leon, 468 U.S. 897 (1984) applied and was dispositive and therefore the court was not required to reach a determination as to probable cause.

Bruce’s Note: The ink is barely dry on the Carpenter opinion and we are already seeing the fallout. Fortunately, the “basic subscriber” information sought here would not have even required a 2703(d) Order so the Third-Party Doctrine still applied … at least for now.

To review or download the full opinion CLICK HERE