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United States v. Kendall

United States District Court, E.D. Kentucky, Northern Division, Ashland

November 6, 2019

UNITED STATES OF AMERICA PLAINTIFF
v.
GARY KENDALL DEFENDANT

          ORDER ADOPTING REPORT AND RECOMMENDATION

          David L. Bunning United States District Judge.

         This matter is before the Court upon Magistrate Judge Edward B. Atkins's Report and Recommendation (“R&R”), (Doc. # 56), wherein he recommends that Defendant Gary Kendall's Motion to Suppress, (Doc. # 50), be denied. Defendant having filed Objections to the R&R, (Doc. # 57), and the Government having responded to Defendant's Objections, (Doc. # 61), the R&R is now ripe for the Court's review. For the reasons set forth herein, Defendant's Objections are overruled, the R&R is adopted in full, and the Motion to Suppress is denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On January 6, 2017, Chatstep, a private online chatroom company, notified the National Center for Missing and Exploited Children (“NCMEC”) that a file containing an image of suspected child pornography (the “Chatstep file”) had been uploaded to a Chatstep forum. (Doc. # 52 at 1). Chatstep used Microsoft PhotoDNA Cloud Service (“Microsoft PhotoDNA”), a program that “automatically scans and compares the hash values of known child pornography images to the hash values of user-uploaded files and images” to detect the file. Id. at 5. A hash value is “a sort of digital fingerprint, ” and is considered a highly-reliable method of identifying an image on the internet. (Doc. # 56 at 7) (quoting United States v. Ackerman, 831 F.3d 1292, 1294 (10th Cir. 2016)). In addition to the Chatstep file's hash value, Microsoft PhotoDNA provided Chatstep with “the date and time the file was uploaded, the screen or username of the person being reported, and an IP address” of the computer that uploaded the file. (Doc. # 56 at 1). Without opening the file, Chatstep provided all the information it learned from Microsoft PhotoDNA to NCMEC. Id. NCMEC staff also did not open or view the file. (Doc. # 52 at 2). Instead, NCMEC traced the Chatstep file's IP address to Greenup, Kentucky and provided the file and other data to the Kentucky State Police (“KSP”) on March 2, 2017. Id. A KSP detective opened the Chatstep file and confirmed that it appeared to be child pornography. (Doc. # 56 at 1). The detective then conducted independent research and traced the file's IP address to Defendant Kendall's residence. Id. Based on this information, KSP obtained a search warrant for Kendall's residence, where they found “multiple electronic devices containing images of child pornography.” (Doc. # 56 at 2).

         A federal grand jury indicted Defendant Kendall on December 6, 2018. (Doc. # 1). The Indictment charged Defendant with one count of possessing child pornography. Id. On August 9, 2019, Defendant filed a Motion to Suppress “any and all evidence seized from [Defendant] Kendall.” (Doc. # 50 at 1). After the United States filed its Response, (Doc. # 52), Judge Atkins entered an R&R on August 30, 2019, (Doc. # 56), wherein he recommended that Defendant's Motion to Suppress, (Doc. # 50), be denied. (Doc. # 56 at 9). On September 13, 2019, Defendant filed Objections to the R&R, (Doc. # 57), to which the United States responded on October 15, 2019.[1] (Doc. # 61). The Motion to Suppress, (Doc. # 50), and the R&R, (Doc. # 56), are now ripe for review.

         II. ANALYSIS

         A. Standard of Review

         Pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Criminal Procedure 59, a district court may refer a motion to suppress to a magistrate judge for the preparation of a report and recommendation. “The magistrate judge must promptly conduct the required proceedings and enter on the record a recommendation for disposing of the matter, including any proposed findings of fact.” Fed. R. Crim. P. 59(b)(1). If a party files timely objections to the recommendation, the district court must consider those objections de novo and “accept, reject, or modify the recommendation.” Fed. R. Crim. P. 59(b)(3). Failure to object to a magistrate judge's findings or conclusions results in waiver of those objections. Fed. R. Crim. P. 59(b)(2).

         “The filing of objections to a magistrate's report enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985). Therefore, objections to a magistrate judge's R&R must be “specific.” Fed. R. Crim. P. 59(b)(2). Vague, general, or conclusory objections are improper, will not be considered by the reviewing court, and are “tantamount to a complete failure to object.” Cole v. Yukins, 7 Fed.Appx. 354, 356 (6th Cir. 2001); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (“[A] general objection to a magistrate's report, which fails to specify the issues of contention, does not satisfy the requirement that an objection be filed. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious.”). Objections that merely state disagreements with the magistrate judge's conclusion or restate arguments previously presented to the magistrate judge are similarly improper. United States v. Bowers, No. 0:06-cv-7-DLB-REW, 2017 WL 6606860, at *1 (E.D. Ky. Dec. 26, 2017); United States v. Vanover, No. 2:10-cr-14-DLB-REW, 2017 WL 1356328, at *1 (E.D. Ky. Apr. 11, 2017).

         Here, Defendant raises two main objections to the R&R. (Doc. # 57). First, Defendant objects to Judge Atkins's finding “that NCMEC was acting purely as a private entity in this case.” Id. at 3-5. Second, Defendant objects to Judge Atkins's determination that NCMEC and KSP did not exceed the scope of the private search performed by Chatstep. Id. at 4-7. The Court will address each of Defendant's objections in turn.

         B. Judge Atkins did not find that NCMEC was a private actor.

         The Fourth Amendment protects individuals from “unreasonable searches and seizures” by the government, not by private entities. U.S. Const. amend. IV. Indeed, the Fourth Amendment “is wholly inapplicable” to searches and seizures by “a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” United States v. Jacobsen, 466 U.S. 109, 113-14 (1984) (internal quotation marks omitted). The Sixth Circuit uses a two-part test to determine whether a private entity is a government agent for the purposes of the Fourth Amendment. “In the context of a search, the defendant must demonstrate two facts: (1) [l]aw enforcement ‘instigated, encouraged or participated in the search' and (2) the individual ‘engaged in the search with the intent of assisting the police in their investigative efforts.'” United States v. Hardin, 539 F.3d 404, 419 (6th Cir. 2008) (quoting United States v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985)). If the defendant cannot show both facts, then the private actor is not a government agent.

         Here, Defendant claims that Judge Atkins incorrectly found that NCMEC was acting as a private entity. (Doc. # 57 at 5). Defendant argues that had Judge Atkins applied the two-part Hardin test, he would have found that NCMEC was a government actor. Id. at 5-6. As an initial matter, Defendant mischaracterizes Judge Atkins's finding. Judge Atkins did not definitively say whether NCMEC was acting as a private entity or as a government agent. (Doc. # 56 at 2-4). Rather, Judge Atkins recommended that Defendant's Motion to Suppress be denied because he found that NCMEC did not conduct a “search in violation of the Fourth Amendment, ” not because he found that NCMEC was a private actor. (Doc. # 56 at 9). Furthermore, even if NCMEC is a government actor as Defendant argues, [2] it would not change the outcome of this matter because NCMEC did not exceed the scope of the search done by Chatstep, a private actor. See infra. Accordingly, Defendant's misguided objection that Judge Atkins erred by characterizing NCMEC as a private actor is overruled.

         C. NCMEC and KSP did not violate the private ...


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