Citation[]
United States v. Bynum, 604 F.3d 161 (4th Cir. 2010) (full-text).
Factual Background[]
In 2003, an undercover FBI agent entered a child-pornography online chat group administered by Yahoo! and observed that someone had uploaded a dozen photos depicting children engaged in sexual acts. The FBI agent subpoenaed Yahoo! in order to identify the “markie” and was directed to an internet service provider associated with the IP address, UNNET. UNNET was issued a subpoena asking for information on the customer associated with the IP addresses. An email address and telephone number revealed that the defendant had used a “dial up service and not a cable or DSL line” to access the internet.
On September 22, 2003, the Agent entered the online chat group again and observed a third upload from “markie”. The FBI used this information to prepare an affidavit in support of a search warrant of the Bynum home. During the search, 5074 photos and 154 videos of child pornography were discovered.
The defendant was convicted of transporting and possessing child pornography. Bynum moved to suppress the evidence seized during the December 2003 search, which was denied. He appealed.
Appellate Court Proceedings[]
Whether certain conduct by law enforcement officers infringes upon the rights guaranteed by the Fourth Amendment is a question of law subject to de novo review. The touchstone of the Fourth Amendment analysis is whether the individual had a reasonable expectation of privacy in the area searched. To demonstrate a legitimate expectation of privacy, a defendant must have a subjective expectation of privacy, and that subjective expectation must be reasonable.
Bynum did not have a subjective expectation of privacy in his subscriber information. Bynum voluntarily conveyed all this information to his internet and phone companies. He deliberately chose a screen name derived from his first name and voluntarily posted his photo, location, sex, and age on his Yahoo! profile page. Subscriber information provided to an internet service provider is not protected by the Fourth Amendment’s privacy expectation.
The Fourth Amendment mandates that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Probable cause to search exists if there is "a fair probability that contraband or evidence of a crime will be found in a particular place."
The defendant presents no reason that undermined the magistrate judge’s reasonable conclusion that the home of Bynum’s mother likely contained evidence of a crime. The affidavits established “a fair probability” that a search of the premises might uncover evidence of possession and transmission of child pornography, as required for a search. The affidavit also established that the FBI observed a certain screen name uploading child pornography to the Internet and that later somebody at the defendant’s address used that screen name.
In determining sufficiency of the evidence, one must view the evidence in the light most favorable to the government. Any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Sufficient evidence supported the conclusion that the defendant and not someone else, committed the offenses charged. A rational fact finder could have found, beyond a reasonable doubt, that Bynum knowingly possessed and transmitted child pornography.
Sufficient evidence similarly supported the jury’s conclusion that the images and videos in question depicted real children, rather than computer-generated ones.
Qualifying the FBI analyst as an expert witness to determine the authenticity of the child pornography was not an abuse of discretion. Several appellate courts have assumed that the testimony of experienced forensic or medical professionals establishing the authenticity of alleged child pornography constitutes appropriate expert testimony. Forensic photographic investigators with extensive child pornography experience are qualified to give expert testimony as to whether images depict real children. The FBI analyst had served 18 years with the FBI, had 13 years of experience in examining the questioned photographic evidence, completed proficiency testing in image authentication, and had been qualified as an expert 35 times in the past. The test of reliability is flexible and the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.
The Court of Appeals held that: (1) the defendant did not have a subjective expectation of privacy in his subscriber information; (2) the affidavit provided probable cause; (3) sufficient evidence supported the conclusion that the defendant, and not somebody else in his residence, committed the offenses charged; (4) sufficient evidence supported the jury finding that the images and videos depicted real children; and (5) qualifying the FBI analyst as an expert witness to determine the authenticity of the child pornography was not an abuse of discretion.