State v. Simmons

Citation

State v. Simmons, 27 A.3d 1065, 2011 VT 69 (Vt. June 23, 2011) (full-text).

Factual Background

During an investigation concerning two residential break-ins, a police detective received an anonymous tip that a man named “Graham” was in possession of a computer stolen from one of the victims. The tipster contended that this man lived on the same street as the victims and was using the stolen computer to access his neighbor’s wireless internet network. The detective looked for “Graham” on MySpace and located a profile for “Graham Simmons” living in the area. He then served an inquest subpoena on MySpace to obtain the defendant’s internet protocol (IP) address – a number identifying the computer from which defendant accessed his MySpace account.

The information obtained from MySpace indicated that defendant had accessed his account more than 100 times over the course of a week from the same Verizon IP address. The detective then secured another inquest subpoena for Verizon’s records concerning that IP address. It was determined that this IP address belonged to the defendant’s neighbor. Based on the evidence of unauthorized access to a network in apparent violation of 13 V.S.A. § 4102 (criminalizing knowing and intentional unauthorized access to computer networks and systems), the detective obtained a warrant to search defendant’s residence. During the search, detectives found a laptop with a serial number matching the one owned by the victim, and a small bag of marijuana.

Vermont Supreme Court

Defendant Simmons appealed from the district court’s denial of his motion to suppress evidence discovered in the execution of a search warrant at his residence. He challenged the subpoena of the internet records as a warrantless search and also complained that the warrant was invalidly based on information from an unknown tipster whose reliability was not reasonably established. Because the tipster’s input and credibility were ultimately irrelevant, and because the defendant had no reasonable expectation of privacy in the non-content internet records at issue, the district court’s denial was affirmed.

Defendant’s motion to suppress evidence contended that the IP address was private information and that issuing subpoenas to MySpace and Verizon without probable cause was an invalid search in violation of the Fourth Amendment of the U.S. Constitution and of Chapter 1, Article 11 of the Vermont Constitution. Because the probable cause for the warrant to physically search his house was obtained from the information obtained from MySpace and Verizon, defendant argued that the evidence gathered from that search must be excluded as "fruit of the poisonous tree."

In general, there is no reasonable expectation of privacy in an internet service provider’s subscriber address or use information disclosing non-content data. It is also worth noting that the MySpace privacy policy declares that its account information can be disclosed as deemed necessary “to respond to a subpoena . . . whether or not a response is required by applicable law.”

Defendant’s motion to suppress was denied, and the ruling affirmed, because the relevant statutory protections only prohibit a warrantless search of “those areas or activities that a reasonable person would conclude are intended to be private.” Because the information provided to the detectives was non-content information and did not reveal any personal or intimate information pertaining to the defendant, there was no violation. As a result, the evidence gathered from the subsequently executed warrant, was admissible.