FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-3996
_____________________________
ZACHARY M. MORALES,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Santa Rosa County.
John F. Simon, Jr., Judge.
June 20, 2019
JAY, J.
In this appeal from his conviction for ten counts of possession
of photographs depicting sexual conduct by a child, Appellant
claims that the trial court committed reversible error in denying
his motion to suppress, which asserted that law enforcement
conducted an illegal warrantless search by opening and reviewing
an image file that had been flagged by a private party as matching
known child pornography. We affirm because the trial court
properly found that Appellant failed to demonstrate that he had a
reasonable expectation of privacy when he uploaded child
pornography to an anonymous online chat room. Alternatively, we
conclude that Appellant’s motion was properly denied under the
private search doctrine.
I.
Appellant uploaded a digital image file to an anonymous
chatroom hosted by ChatStep, a private company in California.
ChatStep had a subscription with PhotoDNA—a private company
run by Microsoft—that compared the hash value of the file with
the hash values of known images of child pornography. Upon
receiving notification from PhotoDNA that the hash value of the
file matched the hash value of known child pornography, ChatStep
sent the image file to the National Center for Missing and
Exploited Children (NCMEC), which then sent the file to the
Florida Department of Law Enforcement (FDLE). It is undisputed
that no person connected with PhotoDNA, ChatStep, or NCMEC
had opened and viewed the file before it was sent to FDLE. An
FDLE agent opened the file and confirmed that it contained child
pornography, which was used to obtain a search warrant for
Appellant’s home and two computers.
After he was charged with ten counts of possession of
photographs depicting sexual conduct by a child, Appellant filed a
motion to suppress on the ground that FDLE conducted an
unlawful search in violation of the Fourth Amendment when its
agent opened the image file prior to obtaining a warrant. Appellant
claimed that all evidence of child pornography—as well as his
incriminating statements concerning the child pornography—had
to be suppressed because the unlawful opening of the file tainted
the subsequent search of Appellant’s home and computers.
At the suppression hearing, the only witness to testify was
Christopher Wilkinson, a forensics specialist for the Escambia
County Sheriff’s Office. Wilkinson testified that the hash value of
a file was a secure computer-generated algorithm that ensured the
authenticity of data shared between two or more users. Wilkinson
further testified (1) that a hash value was so sensitive that if one
took a picture file and changed the shading of one pixel out of the
millions of pixels that made up the picture, the hash value would
be completely different; (2) that there had never been two different
files with the same hash value other than in a lab setting where it
took two supercomputers over two years to manufacture an
identical hash value for two different and very small (four kilobyte)
files; (3) that it was not possible for the average home computer to
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create the same hash value for two different pictures, each of which
would contain from 256 kilobytes to 17 megabytes of data; and (4)
that there was more of a chance that two random individuals
shared the same DNA than two random files shared the same
hash value. According to Wilkinson, when a hash value was
identified in a database as child pornography, it had been
identified by a human being as being child exploitative at one point
in time, and it was not necessary for a company to have their
employees repeatedly view such images, which often resulted in
posttraumatic stress.
After Wilkinson’s testimony, the parties presented argument
on whether the opening of the image file constituted a search
under the Fourth Amendment. The trial court then inquired about
whether Appellant had a reasonable expectation of privacy when
he uploaded child pornography to an online chatroom. After taking
the matter under advisement, the trial court denied the motion to
suppress on the ground that Appellant had not demonstrated that
he had a reasonable expectation of privacy that would invoke the
protections of the Fourth Amendment.
Afterwards, Appellant entered an open plea of nolo contendere
to all ten counts, reserving the right to appeal the denial of his
dispositive motion to suppress. The trial court adjudicated
Appellant guilty and sentenced him to 36.4 months in prison
followed by 2 years of community control and 5 years of probation.
This appeal followed.
II.
Under article I, section 12 of the Florida Constitution, the
right of individuals to be free from unreasonable searches and
seizures must be construed in conformity with the Fourth
Amendment to the United States Constitution as interpreted by
the United States Supreme Court. Clayton v. State, 252 So. 3d 827,
829 (Fla. 1st DCA 2018). “For purposes of the Fourth Amendment,
a ‘search’ occurs only when an individual’s reasonable expectation
of privacy is infringed by an agent of the government.” Duke v.
State, 255 So. 3d 478, 480 (Fla. 1st DCA 2018) (citing United States
v. Jacobsen, 466 U.S. 109, 113 (1984)). Thus, “a Fourth
Amendment search does not occur . . . unless ‘the individual
manifested a subjective expectation of privacy in the object of the
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challenged search,’ and ‘society [is] willing to recognize that
expectation as reasonable.’” Kyllo v. United States, 533 U.S. 27, 33
(2001) (quoting California v. Ciraolo, 476 U.S. 207, 211 (1986)).
“Before a defendant may invoke the protections of the Fourth
Amendment, he must establish standing by showing that he has a
legitimate expectation of privacy in the area searched or the item
seized.” State v. Williams, 184 So. 3d 1205, 1208-09 (Fla. 1st DCA
2016).
We conclude that the trial court properly denied Appellant’s
motion to suppress on the ground that Appellant failed to establish
that he had a reasonable expectation of privacy when he uploaded
child pornography to an online chatroom. The United States Court
of Appeals for the First Circuit addressed a similar issue in United
States v. Morel, 922 F.3d 1 (1st Cir. 2019).
In that case, Morel uploaded images to a digital album on
Imgur, an image-hosting website. Following an anonymous tip to
NCMEC, Imgur reviewed the images and reported six of them as
containing child pornography to NCMEC, which provided the
reports to law enforcement authorities in New Hampshire who
used the reports to obtain a warrant to search Morel’s computer.
After he was charged with possession of child pornography, Morel
filed a motion to suppress.
In denying the motion, the trial court concluded that Morel
failed to demonstrate a reasonable expectation of privacy in the
uploaded images absent any indication that Morel took affirmative
steps to protect or prevent others from accessing images uploaded
to Imgur’s servers. The court observed that “[a]n individual who
places a file on the Internet, without taking affirmative steps to
protect the information it contains, cannot reasonably expect it to
remain private.” United States v. Morel, No. 14-cr-148-JL, 2017
WL 1376363, at *6-7 (D.N.H. Apr. 14, 2017).
On appeal, the First Circuit affirmed the denial of the motion
to suppress. The court noted that in order to challenge the
admissibility of evidence on Fourth Amendment grounds, “[t]he
defendant carries the burden of making the threshold showing
that he has ‘a reasonable expectation of privacy in the area
searched and in relation to the items seized’” and that “[t]his
burden must be carried at the time of the pretrial hearing and on
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the record compiled at that hearing.” Morel, 922 F.3d at 8 (quoting
United States v. Stokes, 829 F.3d 47, 51 (1st Cir. 2016)(quoting
United States v. Aguirre, 839 F.2d 854, 856 (1st Cir. 1988))). The
court went on to explain:
Whether a defendant has a reasonable expectation of
privacy is a fact-specific inquiry. Aguirre, 839 F.2d at 857.
“What a person knowingly exposes to the public, even in
his own home or office, is not a subject of Fourth
Amendment protection.” Katz v. United States, 389 U.S.
347, 351, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967). “But what
he seeks to preserve as private, even in an area accessible
to the public, may be constitutionally protected.” Id.
Factors especially relevant to determining whether
one has a reasonable expectation of privacy include
“ownership, possession and/or control; historical use of
the property searched or the thing seized; ability to
regulate access; the totality of the surrounding
circumstances; the existence or nonexistence of a
subjective anticipation of privacy; and the objective
reasonableness of such an expectancy under the facts of
a given case.” Stokes, 829 F.3d at 53 (quoting Aguirre, 839
F.2d at 856–57).
Id. at 10. The court concluded that Morel failed to establish that
he had a reasonable expectation of privacy in the images he
uploaded to Imgur based on the lower court’s findings that the
images were publicly available and no evidence suggested that
Morel took affirmative steps to protect the images. Id.
Likewise, in this case, Appellant failed to establish that he
had a reasonable expectation of privacy in the image file he
uploaded to the anonymous online chatroom hosted by ChatStep.
There is nothing in the record indicating the number of
participants in the chat room, whether Appellant had exclusive
control to admit people into the chat room, or whether ChatStep
monitored the chat room for illegal activity as part of its service
agreement. Although the chat room was characterized below as
“private,” this alone was not sufficient to establish a reasonable
expectation of privacy. Appellant presented no evidence that the
uploaded file was password-protected, or that he took any
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affirmative steps to restrict access to the file. Because Appellant
did not carry his burden of making a threshold showing that he
had a reasonable expectation of privacy, he could not challenge the
admissibility of the evidence on Fourth Amendment grounds.
III.
Even if Appellant had established a reasonable expectation of
privacy, “[t]he Fourth Amendment is ‘wholly inapplicable to a
search or seizure, even an unreasonable one, effected by a private
individual not acting as an agent of the Government or with the
participation or knowledge of any governmental official.’” Duke,
255 So. 3d at 480-81 (quoting Jacobsen, 466 U.S. at 113). Thus,
“[w]here a warrantless search by law enforcement is prompted by
a prior search by a private party, the warrantless search does not
violate the Fourth Amendment so long as it does not exceed the
scope of the private party’s search.” Id. at 481.
Here, the warrantless search by law enforcement did not
violate the Fourth Amendment where it was prompted by a prior
search by a private party and did not exceed the scope of the
private party’s search. This same issue was addressed by the
United States Court of Appeals for the Fifth Circuit in United
States v. Reddick, 900 F.3d 636 (5th Cir. 2018).
In that case, Reddick uploaded digital image files to Microsoft
SkyDrive, a cloud hosting service that used PhotoDNA to
automatically scan the hash values of user-uploaded files and
compare them against the hash values of known images of child
pornography. When PhotoDNA detected a match, it created a
CyberTip and sent the file to NCMEC. In early 2015, Microsoft
sent CyberTips to NCMEC based on the hash values of the files
Reddick had uploaded to SkyDrive. In turn, NCMEC forwarded
the CyberTips to the Corpus Christi Police Department where
Detective Ilse opened each of the suspect files and confirmed that
each contained child pornography. Shortly thereafter, Detective
Isle applied for and received a warrant to search Reddick’s home
and seize his computer and related materials.
After being indicted for possession of child pornography,
Reddick filed a motion to suppress on the ground that the
detective’s warrantless opening of the files associated with the
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CyberTips constituted an unlawful search. After the trial court
denied the motion, Reddick entered a guilty plea reserving the
right to appeal the denial of his suppression motion.
On appeal, the Fifth Circuit affirmed the denial of the motion
to suppress, explaining:
When Reddick uploaded files to SkyDrive,
Microsoft’s PhotoDNA program automatically reviewed
the hash values of those files and compared them against
an existing database of known child pornography hash
values. In other words, his “package” (that is, his set of
computer files) was inspected and deemed suspicious by
a private actor. Accordingly, whatever expectation of
privacy Reddick might have had in the hash values of his
files was frustrated by Microsoft’s private search.
When Detective Ilse first received Reddick’s files, he
already knew that their hash values matched the hash
values of child pornography images known to NCMEC.
As our court has previously noted, hash value comparison
“allows law enforcement to identify child pornography
with almost absolute certainty,” since hash values are
“specific to the makeup of a particular image’s data.”
United States v. Larman, 547 F. App’x 475, 477 (5th Cir.
2013) (unpublished). See also United States v. Sosa-
Pintor, 741 F. App’x 207, 208 (5th Cir. 2018)
(unpublished) (describing a file’s hash value as its
“unique digital fingerprint”).
Accordingly, when Detective Ilse opened the files,
there was no “significant expansion of the search that had
been conducted previously by a private party” sufficient
to constitute “a separate search.” Walter v. United States,
447 U.S. 649, 657, 100 S. Ct. 2395, 65 L.Ed.2d 410 (1980).
His visual review of the suspect images—a step which
merely dispelled any residual doubt about the contents of
the files—was akin to the government agents’ decision to
conduct chemical tests on the white powder in [United
States v. Jacobsen, 466 U.S. 109 (1984)]. “A chemical test
that merely discloses whether or not a particular
substance is cocaine does not compromise any legitimate
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interest in privacy.” 466 U.S. at 123, 104 S. Ct. 1652. This
principle readily applies here—opening the file merely
confirmed that the flagged file was indeed child
pornography, as suspected. As in Jacobsen, “the
suspicious nature of the material made it virtually
certain that the substance tested was in fact contraband.”
Id. at 125, 104 S. Ct. 1652.
Id. at 639.
Similarly, in this case, the FDLE agent’s warrantless review
of the digital image file did not violate the Fourth Amendment
because (1) whatever expectation of privacy Appellant might have
had in the hash value of the file was frustrated by ChatStep’s
private search, which matched the hash value of the file to known
child pornography; (2) the visual review of the file was not a
significant expansion of ChatStep’s private search because it
merely confirmed what the hash value match already had
established with almost virtual certainty; and (3) there was no
indication that the agent had searched any of Appellant’s files not
flagged as child pornography. Accordingly, we conclude that the
denial of Appellant’s motion to suppress was also proper under the
private search doctrine.
IV.
The trial court properly denied Appellant’s motion to suppress
because Appellant failed to carry his threshold burden of
demonstrating that he had a reasonable expectation of privacy
when he uploaded child pornography to an anonymous online
chatroom hosted by ChatStep. Alternatively, even if Appellant had
demonstrated a reasonable expectation of privacy, the denial of
Appellant’s motion to suppress was proper under the private
search doctrine because FDLE’s search was prompted by a prior
search by private parties—ChatStep and PhotoDNA—and did not
exceed the scope of that private search.
AFFIRMED.
ROWE and M.K. THOMAS, JJ., concur.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Andy Thomas, Public, Defender, and Lori A. Willner, Assistant
Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Tabitha Herrera, Assistant
Attorney General, Tallahassee, for Appellee.
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