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Commonwealth v. Molina

Supreme Judicial Court of Massachusetts, Suffolk

February 7, 2017


          Heard: October 6, 2016.

         Obscenity, Child pornography, Dissemination of matter harmful to minor. Constitutional Law, Search and seizure, Confrontation of witnesses. Search and Seizure, Warrant, Computer. Evidence, Information stored on computer, Intent. Subpoena. Intent. Practice, Criminal, Subpoena, Restitution, Confrontation of witnesses. Restitution.

         Indictments found and returned in the Superior Court Department on August 27, 2012.

         A pretrial motion to suppress evidence was heard by Mitchell H. Kaplan, J.; the cases were heard by Brian A. Davis, J., and a motion for restitution was considered by him.

         The Supreme Judicial Court granted an application for direct appellate review.

          Ethan C. Stiles for the defendant.

          Ryan E. Ferch, Assistant Attorney General (Nancy Ruthstein, Assistant Attorney General, also present) for the Commonwealth.

          Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

          BOTSFORD, J.

         The defendant, Josue Molina, appeals from his child pornography convictions under G. L. c. 272, §§ 29B and 29C, on three grounds. First, he argues that the search warrant for the apartment in which he was living was overbroad as to places and things to be searched. We disagree, concluding that the search warrant was appropriately particularized. Second, the defendant challenges the validity of the administrative subpoena that issued under G. L. c. 271, § 17B, for Internet service records; he argues that the subpoena, to be constitutional, could only be issued based on a showing of probable cause. We similarly reject this argument. Finally, the defendant argues that the Commonwealth failed to prove that he had the lascivious intent necessary to support a conviction under G. L. c. 272, § 29B (§ 29B). Although we agree with the defendant that lascivious intent is required to be proved with respect to every type of conduct proscribed by § 29B, we conclude that this requirement was met in this case. We affirm the defendant's convictions.

         The Commonwealth cross-appeals, arguing that it is entitled to a restitution hearing in this case, and that the victim for whom the Commonwealth seeks restitution is not required as a matter of law to appear and testify in order to protect the defendant's constitutional right of confrontation. We agree, and remand for the requested restitution hearing.

         1. Background.[1]

         a. File-sharing.

         The dissemination of child pornography is facilitated by free "peer-to-peer" file-sharing programs, which allow users to directly connect to other users' computers in order to search and download files shared by other users. See United States v. McLellan, 792 F.3d 200, 205 (1st Cir.), cert, denied, 136 S.Ct. 494 (2015). Ares is one such file-sharing program, freely available to the general public for download. Ares requires users to accept a license agreement explaining that any files stored in the program's default download location, called "My Shared Folder, " are accessible to other users. Users may move downloaded files out of this default folder and save them elsewhere, beyond the reach of other Ares users.

         Another version of the Ares program, known as Roundup Ares, is available only to law enforcement. By conducting searches using Roundup Ares of terms commonly associated with child pornography, a law enforcement investigator can generate the

         Internet protocol (IP) addresses[2] of program users sharing suspected files of child pornography. Every computer file has a unique identifier known as a "secure hash algorithm" (hash value). Composed of thirty-two characters, hash values are like "digital fingerprints" allowing law enforcement agencies to recognize files previously identified as child pornography. See Commonwealth v. Martinez, 476 Mass., & n.l (2017).

         b. Facts.

         On March 12, 2012, State police Trooper Michael Murphy conducted a search for child pornography by accessing the Roundup Ares program. His search indicated that a computer associated with the IP address might then be sharing child pornography files. By connecting directly to that computer, Murphy was able to view a list of the files in its shared folder. Among the listed file titles, Murphy recognized terms commonly associated with child pornography and proceeded to download two complete video files. He viewed both and determined that they depicted child pornography, specifically, nude prepubescent females engaged in sexual conduct.

         In order to identify the account holder associated with the IP address, at Murphy's request, the district attorney for the Essex district sent an administrative subpoena to Verizon Internet Services, Inc. (Verizon), pursuant to G. L. c. 271, § 17B. Verizon responded, indicating that IP address was associated with a subscriber named "Hermes Delcid" at a certain address in Revere (apartment). Murphy then referred the investigation to the cyber crime division in the office of the Attorney General.

         As a member of that division, State police Trooper Daniel Herman conducted physical surveillance of the apartment, and observed outside the house a mailbox with five names on it, including Delcid's (and also including the defendant's). Herman performed as well a check of registry of motor vehicles records, which confirmed that address as Delcid's apartment. Based on this information, on April 2, 2012, State police Trooper Mark Walsh, also of the Attorney General's cyber crime division, applied for and obtained a warrant to search the apartment and in particular for the following: electronic devices containing evidence of child pornography; evidence of child pornography in any other format; evidence of use, control, ownership, or access to the Verizon Internet account of Delcid at that address; evidence of ownership, access, or control of the peer-to-peer network that was operating with IP address; evidence of custody or control of the apartment; and evidence of use, control, ownership, possession, or access to electronic devices at the apartment. Walsh's supporting affidavit detailed his experience, summarized the investigation, and provided background information on peer-to-peer file sharing and the Ares file-sharing program. See note 1, supra. The search warrant authorized the search of the apartment described without naming any person to be searched.

         State police officers executed the search warrant on the morning of April 4, 2012; some officers proceeded into the apartment while others remained in the driveway. Inside the apartment, the officers found Delcid, his wife, and a small child. Forensic examiner Mark Scichilone[3] "previewed" a computer located in the living room and belonging to Delcid, but excluded it from further search when his preliminary review yielded no files consistent with child pornography. In a bedroom later identified as the defendant's, officers observed the Ares program operating on an open laptop computer.[4] Scichilone photographed the computer screen, which showed downloads and uploads of child pornography files in progress from and to other computers.

         In the driveway, officers observed an idling motor vehicle with someone sitting in the front passenger seat. State police Lieutenant Steven Fennessy approached the vehicle and spoke to its occupant, who was the defendant. After being informed by Fennessy that he was not under arrest, the defendant stated that he lived in the apartment, [5] that he owned a laptop computer located in his bedroom at the front of the apartment, and that he used the Ares program. In response, Fennessy advised the defendant of the Miranda rights, and the defendant stated that he was willing to continue the conversation.

         At that point, Fennessy and the defendant moved to an unmarked police vehicle, where the defendant signed a Miranda waiver form and the rest of the interview was recorded. The defendant admitted to being interested in child pornography and to having downloaded about twenty such video recordings, and cited several search terms he had used. He estimated that he had been downloading child pornography for about five years, and recalled having previously used another file-sharing program on the desktop computer in his room. He further stated that he owned an external hard drive. The defendant characterized child pornography as "when underage or any kids, they record it and it's like sex abuse basically;" he estimated the age of the girls depicted in recent downloads to be about nine. He denied knowing any of the children depicted or having ever sexually abused any children. The defendant was then arrested.

         The State police search team seized numerous electronic devices from the apartment, including the defendant's laptop and desktop computers and his external hard drive.[6] The hard drive from the laptop computer contained the Ares program; a large majority of files downloaded through the file-sharing feature of the program contained terms associated with child pornography. Six files in the shared folder were confirmed to contain child pornography. The laptop and desktop computers and the external hard drive revealed over one hundred files containing suspected child pornography. An analyst employed by the Attorney General previewed a sample of the video recordings on each device; the samples contained child pornography. The devices were also found to include one of the files Murphy had downloaded during his Roundup Ares surveillance on March 12, 2012, and remnants of the other.

         c. Procedural history.

         On August 27, 2012, a grand jury indicted the defendant on one count of possession of child pornography with the intent to disseminate in violation of § 29B, one count of dissemination of child pornography in violation of § 29B, and three counts of possession of child pornography in violation of G. L. c. 272, § 29C. The defendant filed a motion to suppress the electronic evidence seized from the apartment as well as his statements. After a nonevidentiary hearing, a judge in the Superior Court (motion judge) denied the motion. The defendant was tried jury-waived before a different Superior Court judge (trial judge) and was found guilty of all charges. The Commonwealth moved for restitution for harm to a victim, but the trial judge denied the motion without a hearing and thereafter denied the Commonwealth's motion to reconsider. The defendant filed a timely notice of appeal from his convictions, and the Commonwealth also filed a notice of appeal.[7]We granted the defendant's application for direct appellate review.

         2. Discussion.

         a. Overbreadth of the search.

         The defendant argues that the search warrant was impermissibly overbroad, as to both places and "things" to be searched. It is a given that under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, probable cause, necessary for the issuance of a search warrant, requires a substantial basis for concluding that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues. Commonwealth v. Kaupp, 453 Mass. 102, 110 (2009), and cases cited. In addition, under the Fourth Amendment, warrants must "particularly describ[e] the place to be searched, and the persons or things to be seized, " and art. 14 requires warrants to be "accompanied with a special designation of the persons or objects of search, arrest, or seizure." See G. L. c. 276, § 2 (search warrants "shall particularly describe the property or articles to be searched for"). By defining and limiting the scope of the search, these constitutional and statutory particularity requirements prohibit general warrants amounting to "exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). See Commonwealth v. Pope, 354 Mass. 625, 629 (1968). A warrant lacking the requisite particularity may thus be challenged as overbroad.

         In reviewing a finding of probable cause, the affidavit supporting the warrant should be interpreted "in a commonsense and realistic fashion, " and "read as a whole, not parsed, severed, and subjected to hypercritical analysis" (citations omitted). Kaupp, 453 Mass. at 111. An inference drawn from the affidavit, "if not forbidden by some rule of law, need only be reasonable and possible; it need not be necessary or inescapable" (citation omitted) . Id. A reviewing court gives considerable deference to a magistrate's determination of probable cause. Commonwealth v. Anthony, 451 Mass. 59, 69 (2008). Because such a determination is a conclusion of law, however, we review it de novo. Commonwealth v. Foster, 471 Mass. 236, 242 (2015).

          i. Place ...

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