SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
October 29, 2014
In the Court of Appeals of Georgia
A14A1159. ENSLEY v. THE STATE.
MCFADDEN, Judge.
Richard Michael Ensley appeals from his convictions on multiple counts of
sexual exploitation of children (OCGA § 16-12-100 (b)) in connection with child
pornography found on his home computer. He argues that the trial court erred in
denying his motion to suppress information about his name and address obtained
from his internet service provider, Comcast Cable Communications Holdings, Inc.
Because Ensley lacked standing to challenge the acquisition of this subscriber
information from Comcast, we affirm.
“On reviewing a trial court’s ruling on a motion to suppress, evidence is
construed most favorably to uphold the findings and judgment and the trial court’s
findings on disputed facts and credibility must be accepted unless clearly erroneous.”
Wright v. State, 294 Ga. 798, 801 (2) (756 SE2d 513) (2014) (citation and
punctuation omitted). So viewed, the evidence shows that a detective in the Cherokee
County Sheriff’s Department obtained from the magistrate court of that county a
search warrant directing Comcast to provide subscriber information for a particular
IP address. The detective sent a facsimile of the warrant to Comcast’s legal
department in New Jersey, and several days later Comcast provided information that
linked the IP address to Ensley. The detective then obtained a warrant to search
Ensley’s residence. In the ensuing search of the residence, law enforcement officers
seized computers, storage devices, and other electronic devices containing child
pornography.
Ensley moved to suppress all evidence obtained as a result of the search
warrant sent to Comcast, arguing that the magistrate court lacked jurisdiction to issue
that warrant because Comcast’s records were located in New Jersey. The trial court
denied the motion. Revisiting the issue immediately before trial, the trial court again
denied the motion, ruling that Ensley lacked standing to make his challenge.
We find no error. “In order to claim the protections of the Fourth Amendment
against unreasonable search and seizure, a defendant must demonstrate that he
personally has an expectation of privacy in the place searched, and that his
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expectation is reasonable.” Smith v. State, 284 Ga. 17, 21 (3) (663 SE2d 142) (2008)
(citations and punctuation omitted).
Our decision in Hatcher v. State, 314 Ga. App. 836, 837-839 (1) (726 SE2d
117) (2012) (physical precedent), is instructive on the issue of whether Ensley had
a reasonable expectation of privacy in the internet subscriber account information
produced by Comcast. In Hatcher, a household resident (who used Internet service
in the residence but was not himself the internet service subscriber) sought to
suppress subscriber information obtained from Comcast’s New Jersey legal
department following the issuance of a search warrant issued by a Georgia court. We
held that the resident had not shown he had a reasonable expectation of privacy in
information about an account for which he was not the subscriber. Id. at 839 (1). But
we also expressed “doubt that an internet service subscriber can have a reasonable
expectation of privacy in the subscriber information that he voluntarily conveys to an
Internet service provider in order to obtain [i]nternet service.” Id. We noted that the
United States Supreme Court and Georgia appellate courts have held that a person has
no reasonable expectation of privacy in information voluntarily conveyed to another.
Id. at 838 & n. 6 (1) (citing Smith v. Maryland, 442 U. S. 735, 743-744 (II) (B) (99
SCt 2577, 61 LE2d 220) (1979); United States v. Miller, 425 U. S. 435, 442 (II) (96
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SCt 1619, 48 LE2d 71) (1976); Kesler v. State, 249 Ga. 462, 469 (5) (291 SE2d 497)
(1982); Culpepper v. State, 156 Ga. App. 331 (1) (274 SE2d 616) (1980)). And we
acknowledged cases from other jurisdictions that applied this principle to conclude
that internet service customers had no reasonable expectation of privacy in subscriber
information voluntarily given to their Internet service providers. Hatcher, 314 Ga.
App. at 838 (1) (citing United States v. Beckett, 369 Fed. Appx. 52, 56 (II) (A) (1)
(11th Cir. 2010); United States v. Christie, 624 F3d 558, 573-574 (II) (C) (3d Cir.
2010); United States v. Bynum, 604 F3d 161, 164 (II) (A) (4th Cir. 2010); United
States v. Perrine, 518 F3d 1196, 1204 (I) (10th Cir. 2008); Guest v. Leis, 255 F3d
325, 336 (II) (C) (3) (6th Cir. 2001)).
Although our decision in Hatcher is not binding precedent, see Court of
Appeals Rule 33 (a), we find its analysis and cited authorities persuasive in this case.
Ensley voluntarily conveyed to Comcast the subscriber information that Comcast
supplied to law enforcement (his identity and address). For the reasons set forth in
Hatcher, he cannot show that he had a reasonable expectation of privacy in that
information, and consequently he lacks standing to pursue his Fourth Amendment
challenge to the search of Comcast for that information.
Judgment affirmed. Andrews, P. J., and Ray, J., concur.
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