United States District Court, E.D. Kentucky, Northern Division, Ashland
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Bunning United States District Judge.
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
FACTUAL AND PROCEDURAL BACKGROUND
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).
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. (Doc. # 61). The Motion to Suppress, (Doc.
# 50), and the R&R, (Doc. # 56), are now ripe for review.
Standard of Review
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).
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.
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.
Judge Atkins did not find that NCMEC was a private
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.
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,  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
NCMEC and KSP did not violate the private ...