State v. Daigle

93 So. 3d 657, 11 La.App. 3 Cir. 1209, 2012 WL 1522208, 2012 La. App. LEXIS 573
Louisiana Court of Appeal·Decided May 2, 2012·No. No. KA 11-1209·Published·Cited by 3 cases

Opinion

EZELL, Judge.

hOn June 13, 2011, Defendant, Timothy Eric Daigle, pled guilty to one count of pornography with juveniles, in violation of La.R.S. 14:81.1. As part of his plea bargain, Defendant received a two-year hard labor sentence without benefit of probation, parole, or suspension of sentence; Defendant was credited for time served; Defendant was required to register as a sex offender, and Defendant reserved the right to contest the trial court’s ruling on his motions to suppress evidence under State v. Crosby, 338 So.2d 584 (La.1976).

The record shows that, prior to his guilty plea, Defendant filed a “Motion to Suppress Warrant and Incorporated Memorandum” on September 25, 2009. In his motion, Defendant contended that, contrary to law enforcement’s assertion that the files were in “plain sight,” the files were illegally seized from Defendant’s home computer as Defendant’s home computer neither broadcasted nor transmitted any information concerning the content of Defendant’s hard drive. Further, the prosecution did not allege that any such transmission or broadcast occurred. Defendant additionally urged that the only way the files could be viewed was through the use of complex decryption software. Defendant continued that the title “secure hash algorithm values,” SHA values, implied an expectation of privacy in addition to the encryption placed on the files. The presence of a firewall on Defendant’s computer also added to his expectation of privacy.

On November 30, 2009, the trial court denied Defendant’s motion to suppress:

Mr. Daigle is present. United States versus Stults, S-T-U-L-T-S, it is cited as 575 Federal 3rd, 834, and it was filed August 14, 2009, It’s United States District Court the 8th Circuit Court of Appeal in Nebraska.
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| ¡And, the case says, basically, that there is no expectation of privacy on your client’s part in this case. He filed sharing information that was seized by the police. There was no expectation of privacy.
Basically, it says, “as a result, although it was a jail matter, an individual has an objectively reasonable expectation of privacy in his personal computer, we fail to see how this expectation can survive the defendant’s decision to install and use file sharing software, thereby opening his computer to anyone else with the same freely available program.” So it discusses the same issues that we have in our case with Daigle. It is completely on point with the Daigle issue. And, based upon this decision [659] and all the cases that it cites, I’m going to deny your Motion to Suppress the evidence that was seized from Mr. Dai-gle, that we previously have heard testimony on.

On April 12, 2010, the defense filed a “Supplemental Motion to Suppress and Incorporated Memorandum” with the trial court. In this supplemental motion, Defendant pointed out that Detective Chad Gremillion with the Louisiana State Police testified that he did not download any files but viewed the SHA-1 values for the file, which were available to the general public. Defendant claimed that Detective Gremil-lion viewed the SHA-1 values by using the Wyoming Tool Kit, which has access to a database of SHA-1 values that may be associated with child pornography.

Defendant claimed that the State failed to establish probable cause because it relied solely on the information in that database, which was prohibited by the “Internet Crimes Against Children Data Network Access and Use Agreement,” IDN, for the Wyoming Tool Kit. Further, the program did not vouch for the completeness or accuracy of the information contained in the “IDN.” Despite this statement that the program could not guarantee the accuracy of the information, Detective Gremillion relied solely upon the database to establish probable cause. He did not actually view the files or consult with the source agency before taking action. Defendant urges, therefore, that “the warrant was not based upon proper probable cause.”

|sOn June 28, 2010, Defendant filed a “Second Supplemental Motion to Suppress” in open court. In this motion, the defense alleged that the ICAC, Internet Crimes Against Children, database only produced files possibly consistent with child pornography and that the database was not available to the public. Thus, the information contained in the affidavit supporting the warrant application was not true as the Wyoming Tool Kit and ICAC database are only available to members of law enforcement. Defendant argued that the trial court should not apply cases involving BearShare to the instant case because neither that program nor any other third-party peer sharing software was used in investigating Defendant. Defendant asserted he had an expectation of privacy because he had a binding contract with BearShare that limited file sharing access to other members.

On October 11, 2010, the district court denied Defendant’s second supplemental motion to suppress. Then, on June 13, 2011, the district court clarified that it had denied relief on all of Defendant’s motions to suppress. Defendant now appeals.

STATEMENT OF FACTS

The parties appeared for a pretrial discovery hearing on September 28, 2009. Defense counsel requested and received permission to proceed with the motion to suppress hearing as far as possible. Detective Chad Gremillion with the Louisiana State Police was called as the State’s sole witness. Detective Gremillion was involved in investigating Defendant on October 2, 2008, when he began a peer to peer proactive investigation. During the investigation, Detective Gremillion identified an internet protocol, “IP,” address, which was basically a telephone number, for a specific place where internet service was provided. Through information provided by the Wyoming Tool Kit, Detective Gremillion saw that the |4IP address “had been seen” with SHA values that were consistent with child pornography.

Detective Gremillion explained that the Wyoming Tool Kit was a program designed by the Wyoming Department of Justice that ran on the Gnutella network. [660] Software such as Limewire and BearShare also ran on the Gnutella network. The Wyoming Tool Kit identified IP addresses that had SHA values matching images previously identified as child pornography. Detective Gremillion described a SHA value as “a unique DNA fingerprint of a particular image.” Every computer file was assigned either a SHA value or a MD5 value. The SHA value was an alphanumeric string of approximately sixteen characters. Different copies of the same file could not have different SHA values.

Detective Gremillion stated that, based on the information obtained from the Wyoming Tool Kit, he saw that the IP address 74.195.10.157 contained images with SHA values suspected to be child pornography. When Detective Gremillion checked, he discovered a SHA value and the filename “Daisy” that he recognized. Detective Gremillion revealed how he recognized the SHA value:

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State v. Daigle, 93 So. 3d 657, 11 La.App. 3 Cir. 1209, 2012 WL 1522208, 2012 La. App. LEXIS 573 (La. Ct. App. 2012).

93 So. 3d 657 (State v. Daigle) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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