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Commonwealth v. Martinez

Supreme Judicial Court of Massachusetts, Bristol

February 7, 2017

COMMONWEALTH
v.
ADALBERTO MARTINEZ.

          Heard: October 6, 2016.

         Complaint received and sworn to in the Fall River Division of the District Court Department on May 9, 2012. A pretrial motion to suppress evidence was heard by Kevin J. Finnerty, J., and the case was tried before him.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Michelle A. Dame for the defendant.

          Soshana E. Stern, Assistant District Attorney, for the Commonwealth.

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

          BOTSFORD, J.

         The defendant, Adalberto Martinez, appeals from his conviction of possessing child pornography in violation of G. L. c. 272, § 29C. He challenges the denial of his motion to suppress computer evidence obtained pursuant to a search warrant. The gravamen of the defendant's claim is that the police needed to do more to link the defendant to the place searched and the items seized before a warrant could validly issue. We affirm the denial of the motion to suppress and the conviction.

         Background.

         1. IP addresses.

         All computers that connect to the Internet identify each other through a unique string of numbers known as an Internet protocol address (IP address). See Internet Corporation for Assigned Names and Numbers, Beginner's Guide to Internet Protocol (IP) Addresses 2, 4 (2011) (ICANN Guide). In general, when a subscriber purchases Internet service from an Internet service provider (ISP), the ISP selects from a roster of IP addresses under its control and assigns a unique IP address to the subscriber at a particular physical address. See Id. at 4, 6; United States v. Kearney, 672 F.3d 81, 89-90 & n.6 (1st Cir. 2012). See also Office of Legal Education, United States Department of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations 65 (2009) (DOJ, Searching and Seizing Computers). The IP address assigned to a particular subscriber may change over time, but the ISP keeps a log of which IP address is assigned to each subscriber at any given moment in time. See Kearney, supra; DOJ, Searching and Seizing Computers, supra.

         In the early days of the Internet, when a residential Internet subscriber went online using only a home computer connected to a hard-wired Internet connection, there was a very strong correlation between an IP address assigned to a subscriber and a particular computer. Now, however, many subscribers use a wireless Internet router, which allows multiple devices within the range of the router to connect to the Internet simultaneously. See United States v. McLellan, 792 F.3d 200, 213-214 (1st Cir.), cert, denied, 136 S.Ct. 494 (2015), and cases cited. To the outside world, all of these devices will share a single public IP address -- the one that the ISP has assigned to its subscriber. See Id. But internally, the router will identify each connected device by the device's own identifying number in order to channel data to and from the appropriate device. See Id. See also ICANN Guide, supra at 4. As a result, the correlation between an Internet subscriber's assigned IP address and any one particular Internet-enabled device may often be weaker than it once was. However, the correlation between an IP address and a physical address can still be strong, at least when the ISP has verified its assignment of a particular IP address to a subscriber at a specific physical address at a specific point in time. See DOJ, Searching and Seizing Computers, supra at 65-66; Mackey, Schoen, & Cohn, Unreliable Informants: IP Addresses, Digital Tips and Police Raids 8-10 (Sept. 2016), available at https://www.eff. org/files/2 016/0 9/22/2 016.0 9.2 0_final_formatted_ip_address_white _paper_0.pdf [https://perma.cc/Y42U-C5TG] (EFF, Unreliable Informants).

         2. Search warrant affidavit.

         The affidavit in support of the contested search warrant and related materials aver the following. On March 9, 2012, State police Sergeant Michael Hill was investigating the use of "peer-to-peer" file sharing programs to possess and distribute child pornography. One such file-sharing program, Ares, allows a user to connect to another user's computer via the Internet and then download digital files that are stored locally on the other user's computer. Ares is an open-source software that any person can download for free via the Internet. There is a special version of the Ares program for law enforcement agencies that allows them to monitor and investigate individuals suspected of using Ares to share digital files of child pornography. Using the law enforcement version of Ares to download a file from another Ares user, investigators can determine (1) the user's IP address, (2) whether the user possesses and is sharing a particular file, (3) the "hash value" associated with a particular file, [1] (4) the user's Ares username, and (5) the version of Ares software that the user's computer is operating. Because the law enforcement version of Ares displays both the IP addresses of Ares users and the hash values of files being shared, when police identify a file as one that contains child pornography, police can determine with a high degree of confidence when that child pornography file is being shared through a specific IP address.

         In this case, Hill discovered that a computer using the IP address 65.96.142.191 and displaying the username "datflypapi"Ares" was sharing suspected child pornography via the Ares network. Through an online mapping tool (several of which exist on publicly accessible Web sites), Hill determined that this IP address was likely associated with a computer in Massachusetts. The computer using this IP address was sharing a total of ten files via the network. Hill found that a majority of these files had names containing terms commonly associated with child pornography. Over approximately thirty minutes, Hill downloaded and viewed four video files from the suspect computer and concluded that these files were child pornography. While downloading the files, Hill used another program that confirmed that a computer associated with the IP address 65.96.142.191 was connected to his computer.

         By conducting an Internet search, Hill determined that the IP address in question was associated with Comcast Cable (Comcast), a major cable company and ISP. Based on the above information, the district attorney for the Berkshire district issued an administrative subpoena to Comcast asking to whom the IP address 65.96.142.191 was assigned during the thirty-minute period on March 9, 2012, during which Hill downloaded the four suspected child pornography video files from datflypapi@Ares. Comcast responded to the subpoena on March 15, 2012, and provided information that the IP address was assigned to a subscriber named "Angel Martinez" at a certain address in Fall River (apartment). Hill then referred the investigation to Detective Steven Washington of the Fall River police department. On April 2, 2012, Washington went to the apartment, which is part of a housing development. Washington discovered that Maria Avilez[2] leased the apartment. On April 3, 2012, Washington sought and received, from the Fall River Division of the District Court, a warrant to search the apartment for computers and related items connected to the suspected possession and distribution of child pornography.

         3. Execution of the search warrant.

         Washington and two other officers executed the warrant on April 5, 2012. According to Washington's trial testimony, when the officers first knocked on the door of the apartment, no one answered.[3] Washington then heard someone say, "Hey, he just ran out that way, " and saw a "large male" running down a side street away from the apartment. The officers eventually entered the apartment. Inside they encountered the defendant's girl friend, Ruth Pereira, holding her infant child. Both Avilez and Angel Martinez, the defendant's cousin, arrived at the apartment while officers were conducting the search, but the defendant was not present.

         During the search, Washington noticed two laptop computers underneath a basket of laundry. After some initial testing (which was not described in detail in the trial record), the officers seized the two computers and brought them back to the police station.[4] Upon further inspection at the station, officers discovered five video files of child pornography on one of the defendant's laptop computers. It is not clear from the ...


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