United States v. Powell
Opinion of the Court
Brian Powell appeals his conviction based on his guilty plea for production of child pornography in violation of
I.
On April 19, 2016, the government filed a one-count information against Brian Powell, alleging that he had produced child pornography in violation of
Omegle is a chat website that allows users to see each other and "chat" using their computers' video cameras and through instant messaging. In July 2015, Powell used Omegle to produce child pornography by initiating sexually explicit video-chats *3with minors
Before taking Powell's plea, the District Court engaged him in a colloquy pursuant to Rule 11 of the Federal Rules of Criminal Procedure in which, among other things, he was asked if he "disagree[d] with anything that [the prosecutor] ha[d] said," and Powell confirmed that he did not. See Fed. R. Crim. P. 11. The District Court also confirmed that Powell understood the potential sentence that he was facing and how that sentence would be calculated. Powell was next asked if he was "satisfied with the legal advice [he had] received from [his] attorney," to which Powell responded that he was. The District Court also asked Powell's attorney if "to [his] knowledge, is [Powell] pleading guilty because of any illegally obtained evidence in the government's possession?" Powell's attorney replied that he "did not believe" so. At the end of the colloquy, the District Court accepted Powell's guilty plea.
Nevertheless, many months later, on February 17, 2017, Powell filed a motion to withdraw his guilty plea. He alleged in that motion that his Fourth Amendment rights had been violated because Omegle had forwarded screenshots it had collected of Powell's chat sessions and the IP address used for them to the National Center for Missing and Exploited Children (NCMEC), which had then viewed those screenshots and forwarded the IP address and the screenshots to law enforcement. Powell argued that his counsel, in advising him with respect to the guilty plea, had provided him with ineffective assistance of counsel in violation of his Sixth Amendment right to counsel, see Strickland v. Washington,
The District Court acknowledged that Powell would be entitled to withdraw his guilty plea if his counsel had failed to file a meritorious suppression motion, and so it held a hearing to address the potential merits of any such motion. At that hearing, the District Court adduced the following undisputed facts.
Powell's solicitation of child pornography was picked up through Omegle's systematic review process. In this process, Omegle automatically records periodic screenshots of users' video chats. Omegle employees then review these records and forward images that employees suspect of being child pornography to NCMEC, an entity that "is statutorily obliged to maintain an electronic tip line ... to report possible Internet child sexual exploitation violations to the government." United States v. Ackerman,
Omegle followed this process in this case. During Powell's online interactions, Omegle automatically took screenshots. Omegle staff then reviewed these screenshots, along with information about Powell's IP address and webcam. An Omegle employee identified the screenshots as containing possible child pornography. Omegle submitted the screenshots and computer and webcam information to NCMEC. NCMEC reviewed those screenshots and determined that they contained child pornography. NCMEC also identified Powell's geographic area based on his IP address. NCMEC forwarded the screenshots and IP information to law enforcement.
On these facts, the District Court denied Powell's motion on May 25, 2017, because it found that the only information that NCMEC obtained from Omegle was information that Omegle had viewed through its own independent searches prior to providing that information to NCMEC. It thus concluded that NCMEC had not violated Powell's Fourth Amendment rights. Powell now brings this appeal from that ruling.
II.
Our review of "a district court's denial of a motion to withdraw [a guilty plea is] for abuse of discretion." United States v. Dunfee,
We have explained that when a defendant seeks to withdraw a guilty plea based on a claim of ineffective assistance of counsel under the Sixth Amendment, that defendant must make two showings. First, he must demonstrate "that counsel's representation 'fell below an objective level of reasonableness.' " United States v. Pellerito,
Powell agrees that, in accord with these requirements, he can succeed on his challenge to the denial of his motion to withdraw his guilty plea only by showing that the motion to suppress that he contends that his counsel should have filed would have been meritorious. Mercedes-De La Cruz,
The Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. This protection applies when "the person invoking its protection can claim a ... 'legitimate expectation of privacy' that has been invaded by government action." Smith v. Maryland,
The parties do not dispute that Powell had a reasonable expectation of privacy in the screenshots of his Omegle video chat conversations. They also do not dispute that Omegle, under our precedent, was not acting as a governmental entity or agent, United States v. Cameron,
Powell contends, pursuant to what is known as the private search doctrine, that a motion to suppress that evidence would have been successful. The private search doctrine provides that, if a private actor (such as Omegle) searches evidence in which an individual has a reasonable expectation of privacy, and then provides that evidence to law enforcement or its agent (such as, in this case, NCMEC), "[t]he additional invasions of [the individual's] privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search." United States v. Jacobsen,
Under this doctrine, there is no Fourth Amendment violation if the search by law enforcement or its agent is coextensive with the scope of the private actor's private search and there is "a virtual certainty that nothing else of significance" could be revealed by the governmental search.
Powell argues that NCMEC's search of the screenshots exceeded the scope of Omegle's private search, and he relies for that contention on the Tenth Circuit's decision in United States v. Ackerman,
In Ackerman, the defendant's internet service provider (ISP) employed an "automated filter designed to thwart the transmission of child pornography" through the use of "hash value matching." Ackerman,
The Tenth Circuit, on the understanding that Ackerman had a reasonable expectation of privacy in his emails,
The images of the screenshots that NCMEC viewed in Powell's case, however, were precisely the ones that had already been viewed by the private actor, Omegle. And, given the form in which NCMEC received that material, NCMEC's viewing of those images could not have disclosed any "fact previously unknown." Jacobsen, 466 U.S. at 122,
Powell does suggest, in cursory fashion, that subsequent developments in Fourth Amendment jurisprudence cast doubt on the applicability of the private search doctrine in the digital age, such that the screenshots might need to be suppressed even though NCMEC did not exceed the scope of the search conducted by Omegle. But while he cites in general terms to United States v. Jones,
III.
The conviction is affirmed .
The District Court noted that the government had not adduced evidence demonstrating that at least one individual depicted in the screenshots was a minor, because the individual was not identified. The Court then confirmed with Powell's counsel that he had "reviewed this issue with [Powell] and [was] satisfied ... [that Powell] understands that the government would have to prove that this was a minor child and he is not prepared to contest the government's contention on that point[.]" Powell's counsel then confirmed that he had spent "as much time as [he] needed with the forensic detective" reviewing the images and discussed the matter with Powell in discussing his decision whether to plead guilty.
Powell also gestures at an argument that his counsel's performance was ineffective because, relying on United States v. Cavitt,
Reference
- Full Case Name
- United States v. Brian POWELL
- Cited By
- 7 cases
- Status
- Published