State v. Rolfe

#26096-rev in pt & aff in pt-GAS

2013 S.D. 2

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JOHN A. ROLFE, Defendant and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

****

THE HONORABLE THOMAS L. TRIMBLE
Judge

****

MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

ELLERY GREY
Rapid City, South Dakota Attorney for defendant
and appellant.

****
ARGUED OCTOBER 1, 2012

OPINION FILED 01/09/13
#26096

SEVERSON, Justice

[¶1.] John A. Rolfe was convicted of three counts of first-degree rape of a

minor and 12 counts of possessing, manufacturing, or distributing child

pornography. The trial court sentenced Rolfe to three concurrent life sentences

without parole and 12 consecutive 10-year sentences in the South Dakota State

Penitentiary. Rolfe appeals, raising two issues. First, Rolfe argues that the trial

court violated his right to a public trial because it excluded the general public from

the courtroom when the child victim testified about sexual abuse. Second, Rolfe

argues that the State lacked legal authority to issue subpoenas to Midcontinent

Communications prior to his indictment. Regarding the right to a public trial, we

remand the case to the trial court to supplement the record with the facts and

reasons for the closure of the courtroom during the victim’s testimony. Further, we

hold that Rolfe has no privacy interest in the information obtained by subpoenas

issued to Midcontinent Communications.

BACKGROUND

[¶2.] In May 2009, the Pennington County Internet Crimes Division

conducted an undercover investigation, looking for persons distributing or

possessing child pornography. By using special software to conduct the

investigation, law enforcement officers found a person who appeared to possess

child pornography at a specific IP address. The person that officers suspected of

possessing child pornography used LimeWire, a person-to-person file sharing

program, to share files. Investigators used the software program to locate and

download three shared files containing child pornography.

-1-
#26096

[¶3.] In June 2010, using the same software, Pennington County

investigators again made contact with a person using the same IP address.

Investigators located and downloaded additional shared files containing child

pornography. They also determined that the IP address was assigned to a

Midcontinent subscriber.

[¶4.] Also in June 2010, Pennington County investigators briefed a deputy

state’s attorney on their investigation. The deputy state’s attorney issued

subpoenas to Midcontinent, requesting the email address and personal information

of the subscriber associated with the IP address where officers found child

pornography.

[¶5.] Shortly after receiving the subpoenas, Midcontinent contacted

investigators and provided them with a phone number and email address for an

account in Rapid City. Using the phone number provided, investigators found that

the number was registered to John A. Rolfe, who resided at the address provided by

Midcontinent that was associated with the specific IP address. The deputy state’s

attorney issued another subpoena, directing Midcontinent to provide information on

any other owners of accounts associated with the original account.

[¶6.] On July 19, 2010, the trial court granted a search warrant for Rolfe’s

residence in Rapid City. Investigators conducted the search on July 20 and seized

cell phones, letters, cameras, memory flashcards, and two laptop computers.

Investigators conducted a forensic analysis of these items. On the laptop found in

Rolfe’s bedroom, investigators discovered child pornography involving A.F., the 12-

year-old daughter of Rolfe’s son’s live-in girlfriend. A.F. later told investigators that

-2-
#26096

Rolfe had drugged, sexually assaulted, and photographed her over several years at

his home and on trips around the state. In addition, A.F. told investigators that

Rolfe filmed her changing out of her clothing on one trip outside of the state.

[¶7.] On August 19, 2010, a Pennington County grand jury indicted Rolfe on

three counts of first-degree rape and 12 counts of possessing, manufacturing, or

distributing child pornography.

[¶8.] Prior to trial, Rolfe filed a motion to suppress the evidence found in

this case through the search of Rolfe’s home and computer. Rolfe argued that the

subpoenas ordering Midcontinent to release the name and contact information

associated with the IP address were issued in violation of the law. Rolfe further

argued that information collected as a result of the improper subpoenas was used to

obtain search warrants and collect evidence at Rolfe’s home. Thus, the evidence

collected was “fruit of the poisonous tree” and should be excluded from use at trial.

[¶9.] The trial court denied Rolfe’s motion to suppress. The court found that

an IP address is a unique number that identifies a computer and its location in

connection to the Internet. The court determined that Rolfe had no Fourth

Amendment expectation of privacy in his IP address subscriber information because

he publicly disseminated the information. Finally, the court concluded that even if

the method of subpoenaing the IP address and records from Midcontinent was

invalid, the court would not sanction the State by suppressing the evidence in the

case.

[¶10.] The court held a jury trial in this case from April 18 through 21, 2011.

At the beginning of the third day of trial, the State invoked SDCL 23A-24-6, a

-3-
#26096

statute that authorizes the closure of a courtroom when a child testifies about a

sexual offense committed against that child or another child. The statute allows the

court to exclude the general public except the parties’ attorneys, victim or witness

assistant, the victim’s parents or guardians, officers of the court, and

representatives of the media. Rolfe objected to the closure as a violation of his Sixth

Amendment right to a public trial. The trial court overruled the objection and

allowed the courtroom to be closed during A.F.’s testimony. 1

[¶11.] The jury found Rolfe guilty of three counts of first-degree rape of A.F.

and 12 counts of possessing, manufacturing, or distributing child pornography. The

trial court sentenced Rolfe to three concurrent life sentences without parole and 12

consecutive 10-year sentences in the South Dakota State Penitentiary.

[¶12.] Rolfe appeals, raising two issues. First, Rolfe argues that the trial

court violated his right to a public trial when it excluded the general public from the

courtroom during A.F.’s testimony. Second, Rolfe argues that the State lacked legal

authority to issue subpoenas to Midcontinent Communications prior to his

indictment.

STANDARD OF REVIEW

[¶13.] “Constitutional interpretation is a question of law reviewable de novo.”

Steinkruger v. Miller, 2000 S.D. 83, ¶ 8, 612 N.W.2d 591, 595 (citing State v. Beck,

1996 S.D. 30, ¶ 6, 545 N.W.2d 811, 812). Statutes are presumed to be constitutional

1. The record notes few “interested spectators” attending the trial, other than
occasional officers of the court. The only specific spectators identified who
were excluded by the order were the victim’s grandparents.

-4-
#26096

and the challenger has the “burden to prove beyond a reasonable doubt that a

statute violates a constitutional provision.” Id. (citing Kyllo v. Panzer, 535 N.W.2d

896, 898 (S.D. 1995)). “[W]e review the constitutionality of a statute only when it is

necessary to resolve the specific matter before us, and then only to first decide if the

statute can be reasonably construed to avoid an unconstitutional interpretation.”

Id. (citing City of Chamberlain v. R.E. Lien, Inc., 521 N.W.2d 130, 131 (S.D. 1994)).

[¶14.] A violation of the right to a public trial is a “structural defect affecting

the framework within which the trial proceeds, rather than simply an error in the

trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246,

1265, 113 L. Ed. 2d 302 (1991). See also Waller v. Georgia, 467 U.S. 39, 49 n.9, 104

S. Ct. 2210, 2217 n.9, 81 L. Ed. 2d 31 (1984). “‘Without these basic protections, a

criminal trial cannot reliably serve its function as a vehicle for determination of

guilt or innocence, and no criminal punishment may be regarded as fundamentally

fair.’” Fulminante, 499 U.S. at 310, 111 S. Ct. at 1265 (quoting Rose v. Clark, 478

U.S. 570, 577-78, 106 S. Ct. 3101, 3106, 92 L. Ed. 2d 460 (1986)).

[¶15.] “Statutory interpretation is also a question of law reviewed under the

de novo standard.” State v. Wilson, 2004 S.D. 33, ¶ 9, 678 N.W.2d 176, 180 (citing

Steinberg v. S.D. Dept. of Military & Veterans Affairs, 2000 S.D. 36, ¶ 6, 607 N.W.2d

596, 599). We review the trial court’s “application of the law de novo, and the

ultimate decision to close a [court] proceeding for an abuse of discretion.” Rapid

City Journal v. Delaney, 2011 S.D. 55, ¶ 9, 804 N.W.2d 388, 392.

-5-
#26096

DISCUSSION

[¶16.] 1. Whether Rolfe’s right to a public trial was violated.

[¶17.] Rolfe argues that his Sixth Amendment right to a public trial was

violated when the trial court excluded the general public during A.F.’s testimony.

The Sixth Amendment provides, in part, “[i]n all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed . . . .” U.S. Const. amend.

VI. See also S.D. Const. art. VI, § 7 (“In all criminal prosecutions the accused shall

have the right to . . . a speedy public trial . . . .”). In general, courts conduct public

trials “‘for the benefit of the accused; that the public may see he is fairly dealt with

and not unjustly condemned, and that the presence of interested spectators may

keep his triers keenly alive to a sense of their responsibility and to the importance

of their functions.’” Waller, 467 U.S. at 46, 104 S. Ct. at 2215 (quoting Gannett Co.

v. DePasquale, 443 U.S. 368, 380, 99 S. Ct. 2898, 2906, 61 L. Ed. 2d 608 (1979)).

Recently, the United States Supreme Court reinforced the importance of public

trials in Presley v. Georgia, where it stated that “[t]he public has a right to be

present whether or not any party has asserted the right.” 558 U.S. 209, ___, 130 S.

Ct. 721, 724-25, 175 L. Ed. 2d 675 (2010).

[¶18.] The right of access to a criminal trial is not absolute. Globe Newspaper

Co. v. Super. Ct. for Norfolk Cnty., 457 U.S. 596, 606, 102 S. Ct. 2613, 2620, 73 L.

Ed. 2d 248 (1982). “‘The right to an open trial may give way in certain cases to

other rights or interests, such as the defendant’s right to a fair trial or the

government’s interest in inhibiting disclosure of sensitive information.’” Presley,

-6-
#26096

558 U.S. at ___, 130 S. Ct. at 724 (quoting Waller, 467 U.S. at 45, 104 S. Ct. at

2215). “‘Such circumstances will be rare, however, and the balance of interests

must be struck with special care.’” Id. (quoting Waller, 467 U.S. at 45, 104 S. Ct. at

2215).

[¶19.] One such circumstance where trial courts may weigh closure is in

cases where a child victim is testifying about sexual abuse. Trial courts can

consider on a case-by-case basis whether closure of a courtroom is necessary to

protect a child victim of sexual abuse. Globe Newspaper Co., 457 U.S. at 608, 102 S.

Ct. at 2621. A trial court should weigh factors such as the “victim’s age,

psychological maturity and understanding, the nature of the crime, the desires of

the victim, and the interests of parents and relatives.” Id. (footnote omitted). South

Dakota has a specific statute to address closing a courtroom for child victim

testimony. SDCL 23A-24-6 provides:

Any portion of criminal proceedings, with the exception of grand
jury proceedings, at which a minor is required to testify
concerning rape of a child, sexual contact with a child, child
abuse involving sexual abuse, or any other sexual offense
involving a child may be closed to all persons except the parties’
attorneys, the victim or witness assistant, the victim’s parents
or guardian, and officers of the court and authorized
representatives of the news media, unless the court, after proper
hearing, determines that the minor’s testimony should be closed
to the news media or the victim’s parents or guardian in the best
interest of the minor.

This section allows the trial court discretion to determine who should remain in the

courtroom when a child testifies about a sexual offense. It also allows the trial

court to minimize the number of spectators in the courtroom during testimony while

allowing for public observation of the trial via the news media.

-7-
#26096

[¶20.] However, in order to close a courtroom during any testimony, the

United States Supreme Court has held that certain procedures must be followed to

protect the defendant’s Sixth Amendment right to a public trial. In order to close

all or portions of a public trial, the party seeking closure of the proceeding must (1)

“advance an overriding interest that is likely to be prejudiced,” (2) “the closure must

be no broader than necessary to protect that interest,” (3) “the trial court must

consider reasonable alternatives to closing the proceeding,” and (4) “[the trial court]

must make findings adequate to support the closure.” Waller, 467 U.S. at 48, 104 S.

Ct. at 2216. The interest and specific findings should be articulated so that a

reviewing court can make a determination about whether closure was proper.

Press-Enterprise Co. v. Super. Ct. of Cal., Riverside Cnty., 464 U.S. 501, 510, 104 S.

Ct. 819, 824, 78 L. Ed. 2d 629 (1984).

[¶21.] Our recent decision, Rapid City Journal v. Delaney, holding that a trial

court impermissibly closed a trial, is a civil case, but has some application in the

present case. 2011 S.D. 55, ¶¶ 29, 32, 804 N.W.2d at 399-400. Delaney concluded

that the trial court abused its discretion because it “failed to ‘articulate . . . findings

specific enough that a reviewing court could determine whether the closure order

was properly entered.’” Id. ¶ 22, 804 N.W.2d at 396. “[W]ithout specific findings,

meaningful review is illusive.” Id. ¶ 28, 804 N.W.2d at 399.

[¶22.] Although the United States Supreme Court has not addressed the

issue, some federal circuits have modified the Waller test, based on partial versus

-8-
#26096

total closure 2 of the courtroom. “‘When a trial judge orders a partial, as opposed to

a total, closure of a court proceeding at the request of one party, a “substantial

reason” rather than Waller’s “overriding interest” will justify the closure’ because a

partial closure does not ‘implicate the same secrecy and fairness concerns that a

total closure does.’” United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994)

(quoting Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992)). See also United

States v. Petters, 663 F.3d 375, 382-83 (8th Cir. 2011); United States v. Sherlock, 962

F.2d 1349, 1356-58 (9th Cir. 1989); Nieto v. Sullivan, 879 F.2d 743, 749-54 (10th

Cir. 1989), cert. denied, 493 U.S. 957, 110 S. Ct. 373, 107 L. Ed. 2d 359 (1989);

Douglas v. Wainwright, 739 F.2d 531 (11th Cir. 1984) (per curiam), cert. denied, 469

U.S. 1208, 105 S. Ct. 1170, 84 L. Ed. 2d 321 (1985). Importantly, even though a

substantial reason, rather than an overriding interest, may justify the partial

closure of the courtroom, the rest of Waller’s requirements must be addressed. A

2. Partial closure versus total closure of a courtroom is described by the 11th
Circuit Court of Appeals in Douglas v. Wainwright:

The most important distinguishing factor is that Waller involved
a total closure, with only the parties, lawyers, witnesses, and
court personnel present, the press and public specifically having
been excluded, while Douglas entailed only a partial closure, as
the press and family members of the defendant, witness, and
decedent were all allowed to remain. Moreover, the closure in
Waller was for the entire seven days of the suppression hearing
although the playing of the disputed tapes lasted only two-and-
one-half hours, whereas in Douglas the partial closure was
limited to the one witness’ testimony. Douglas, therefore,
presented this court with a fact situation different and unique
from that faced by the Waller Court.

739 F.2d 531, 532 (11th Cir. 1984) (per curiam), cert. denied, 469 U.S. 1208,
105 S. Ct. 1170, 84 L. Ed. 2d 321 (1985).

-9-
#26096

trial court must still (1) determine that the closure is “no broader than necessary,”

(2) “consider reasonable alternatives to closing the proceeding,” and (3) “it must

make findings adequate to support the closure.” Waller, 467 U.S. at 48, 104 S. Ct.

at 2216.

[¶23.] Again, although not addressed by the United States Supreme Court,

some federal courts have held that “specific findings by the [trial] court are not

necessary if we can glean sufficient support for a partial temporary closure from the

record.” Farmer, 32 F.3d at 371 (citing United States v. Lucas, 932 F.2d 1210, 1216-

17 (8th Cir. 1991), cert. denied, 502 U.S. 949, 112 S. Ct. 399, 116 L. Ed. 2d 348

(1991)). In Farmer, the court held that even though there were not specific findings

on the record, the “victim’s age, the brutal nature of the offense and the victim’s

well-reasoned fear of [the defendant] was more than enough to justify the decision”

to partially close the courtroom. Id. at 371-72.

[¶24.] In this case, Rolfe argues that his Sixth Amendment rights were

violated because the trial court closed the courtroom to the general public during

A.F.’s testimony without addressing the factors required by Waller. Rolfe’s attorney

was notified the evening before A.F.’s testimony that the State would invoke SDCL

23A-24-6 to close the courtroom during A.F.’s testimony. 3 On the morning of A.F.’s

3. The North Dakota Supreme Court has stated that a motion to close a trial
must be made prior to the trial. See N.D. R. Crim. P. Rule 17.1. “The reason
is obvious-to avoid unfair surprise and to give the trial court the benefit of
the parties’ research and arguments.” State v. Klem, 438 N.W.2d 798, 800
(N.D. 1989). South Dakota’s equivalent rule, SDCL 23A-15-1, allows, but
does not require, a motion for closure to be brought prior to trial. Bringing a
motion to close certain testimony prior to trial would appear to be the better
practice.

- 10 -
#26096

testimony, outside the presence of the jury, attorneys for Rolfe and the State made

brief arguments regarding closure of the trial. Judge Trimble made the following

oral ruling:

Well, as everybody here knows, in juvenile matters we have a
closed courtroom. Never been found to be unconstitutional when
juveniles are involved. Those same people are allowed in the
courtroom. Really nobody else. The outside general public are
not allowed to be involved in juvenile matters, 4 and since this is
a juvenile testifying, the Court will follow the statute if it’s
requested, which it is.

Judge Trimble’s ruling primarily relies on the language of SDCL 23A-24-6, and he

did not make specific findings as required by Waller and Delaney.

[¶25.] Even considering the cases that did not require specific findings

because they found the record sufficient, Judge Trimble’s ruling and the record do

not address all of the factors that Waller requires. In addition to a determination

that there was an overriding interest, or even a substantial reason for a partial

closure, Waller requires a court to (1) determine that the closure of the courtroom is

“no broader than necessary to protect that interest,” (2) “consider reasonable

alternatives to closing the proceeding,” and (3) “it must make findings adequate to

support the closure.” 467 U.S. at 48, 104 S. Ct. at 2216. Judge Trimble did not

make specific findings on whether there was an overriding interest or substantial

4. Judge Trimble references SDCL 26-7A-36, which provides that juvenile
proceedings are presumed closed to the general public, unless the court finds
compelling reasons to open the proceedings. In general, juvenile proceedings
are closed to protect the best interests of the child by providing anonymity
and confidentiality, which serves the rehabilitative goals of the juvenile
justice system. See In re M.C., 527 N.W.2d 290, 293 (S.D. 1995) (citing In re
J.D.C., 594 A.2d 70, 76 (D.C. 1991) and San Bernardino Cty. Dept. of Pub.
Soc. Servs. v. Super. Ct., 283 Cal. Rptr. 332, 339 (Cal. Ct. App. 1991)).

- 11 -
#26096

reason to justify total or partial closure. He also did not make specific findings

about the breadth of the closure or the alternatives he considered in closing the

courtroom. Further, he did not address any of the factors supporting closure or

partial closure for child sexual abuse victims identified in Globe Newspaper Co.,

including the “victim’s age, psychological maturity and understanding, the nature of

the crime, the desires of the victim, and the interests of parents and relatives.” 457

U.S. at 608, 102 S. Ct. at 2621 (footnote omitted).

[¶26.] We must consider what relief should be ordered to remedy the

violation of Rolfe’s Sixth Amendment right to a public trial. As in Waller, “the

defendant should not be required to prove specific prejudice in order to obtain relief

for a violation of the public-trial guarantee.” 467 U.S. at 49, 104 S. Ct. at 2217.

But, the remedy should be appropriate to the violation and it does not require a new

trial in this case. Rolfe’s rights can be fully protected by a remand to the trial court

“with direction to hold an inquiry consistent with this opinion.” Goldberg v. U.S.,

425 U.S. 94, 111, 96 S. Ct. 1338, 1348, 47 L. Ed. 2d 603 (1976). The trial court

should supplement the record with specific findings and reasoning. If, after

addressing the Waller factors, the trial court finds that the closure or partial closure

was justified under Waller, it may enter a new final judgment of conviction. If the

trial court finds that the courtroom should not have been closed or partially closed

during A.F.’s testimony, the trial court may vacate the judgment of conviction and

grant Rolfe a new trial. Accordingly, we remand the case to the trial court to

supplement the record with specific facts and reasons for the closure of the

courtroom during A.F.’s testimony.

- 12 -
#26096

[¶27.] Finally, Rolfe challenges the constitutionality of SDCL 23A-24-6

because the statute does not include a requirement that the Waller factors be

addressed on the record. The United States Supreme Court has previously held

that statutes requiring mandatory, total closure of a courtroom when a child victim

testifies about a sexual offense are unconstitutional. Globe Newspaper Co., 457 U.S.

at 607-08, 102 S. Ct. at 2620-21. The statute at issue here does not mandate total

closure—it allows trial courts the discretion to determine if partial or total closure is

appropriate when a child is testifying about a sexual offense. SDCL 23A-24-6. As

noted above, the right to a public trial is not absolute. Waller, 476 U.S. at 45, 104 S.

Ct. at 2215. This statute is not unconstitutional on its face, or as applied in this

case because it allows trial courts to weigh competing interests, make specific

findings to follow Waller, and to protect the integrity of the process with the

continual presence of news media representatives.

[¶28.] 2. Whether the State had legal authority to issue subpoenas
to Midcontinent Communications.

[¶29.] We first address the issue of standing to challenge the subpoenas. In

general, standing is established by being a “‘real party in interest’” and “‘determined

by the status of the party seeking relief.’” Arnoldy v. Mahoney, 2010 S.D. 89, ¶¶ 18-

19, 791 N.W.2d 645, 653 (quoting SDCL 15-6-17(a) and D.G. v. D.M., 1996 S.D. 144,

¶ 22, 557 N.W.2d 235, 239). “‘The real party in interest requirement for standing is

satisfied if the litigant can show that he personally has suffered some actual or

threatened injury as a result of the putatively illegal conduct of the [other party].’”

Id. ¶ 19, 791 N.W.2d at 653 (quoting D.G., 1996 S.D. 144, ¶ 22, 557 N.W.2d at 239).

In order to assert the violation of a person’s constitutional right to be free from

- 13 -
#26096

unreasonable search and seizure, as Rolfe does here, the person asserting the right

must have standing. See State v. Westerfield, 1997 S.D. 100, ¶ 9, 567 N.W.2d 863,

866 (citing Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633

(1980)). See also United States v. Muhammad, 58 F.3d 353 (8th Cir. 1995). If there

is a legitimate expectation of privacy, then the person has standing to challenge a

search. Westerfield, 1997 S.D. 100, ¶ 9, 567 N.W.2d at 866 (citing Rawlings, 448

U.S. at 104, 100 S. Ct. at 2561). We must now determine if Rolfe had a legitimate

expectation of privacy in the information that the State acquired by issuing a

subpoena to Midcontinent.

[¶30.] The United States Supreme Court held that “the Fourth Amendment

does not prohibit . . . obtaining . . . information revealed to a third party and

conveyed by [the third party] to Government authorities.” United States v. Miller,

425 U.S. 435, 443, 96 S. Ct. 1619, 1624, 48 L. Ed. 2d 71 (1976) (citations omitted).

The Court further held that because there were no Fourth Amendment rights at

issue, “this case is governed by the general rule that the issuance of a subpoena to a

third party to obtain the records of that party does not violate the rights of a

defendant, even if a criminal prosecution is contemplated” when the subpoena is

issued. Id. at 444, 96 S. Ct. at 1624 (citing Cal. Bankers Ass’n. v. Shultz, 416 U.S.

21, 53, 94 S. Ct. 1494, 1513, 39 L. Ed. 2d 812 (1974) and Donaldson v. United

States, 400 U.S. 517, 537, 91 S. Ct. 534, 545, 27 L. Ed. 2d 580 (1971) (Douglas, J.,

concurring)). Specifically, there is no violation of a defendant’s Fourth Amendment

rights when a third party internet provider receives a subpoena and discloses the

defendant’s subscriber information. “Every federal court to address this issue has

- 14 -
#26096

held that subscriber information provided to an internet provider is not protected by

the Fourth Amendment’s privacy expectation.” United States v. Perrine, 518 F.3d

1196, 1204 (10th Cir. 2008) (citing Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001);

United States v. Hambrick, 225 F.3d 656 (4th Cir. 2000) (unpublished), affirming

United States v. Hambrick, 55 F. Supp. 2d 504, 508–09 (W.D. Va. 1999); United

States v. D’Andrea, 497 F. Supp. 2d 117, 120 (D. Mass. 2007); Freedman v. Am.

Online, Inc., 412 F. Supp. 2d 174, 181 (D. Conn. 2005); United States v. Sherr, 400

F. Supp. 2d 843, 848 (D. Md. 2005); United States v. Cox, 190 F. Supp. 2d 330, 332

(N.D.N.Y. 2002); United States v. Kennedy, 81 F. Supp. 2d 1103, 1110 (D. Kan.

2000); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008); United States v.

Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004)). In addition, a number of federal courts

have “rejected the argument that an individual has a reasonable expectation of

privacy in his or her personal computer when file-sharing software, such as

LimeWire, is installed.” United States v. Stults, 575 F.3d 834, 842 (8th Cir. 2009)

(citations omitted).

[¶31.] Here, Rolfe’s email address and other personal information were

obtained from Midcontinent via the subpoenas issued by the State. Rolfe provided

his information to Midcontinent and he has no legitimate expectation of privacy in

that information. Rolfe had no legitimate privacy interest, as required by

Westerfield, and thus, has no standing to challenge the subpoenas issued by the

State to Midcontinent.

- 15 -
#26096

CONCLUSION

[¶32.] The trial court failed to address all of the Waller factors and make

specific findings regarding the closure of the courtroom. We remand to the trial

court to make specific findings based on Waller, Farmer, and Globe Newspaper Co.’s

standards for closure. However, the trial court correctly found that Rolfe had no

Fourth Amendment expectation of privacy in his IP address subscriber information

because Rolfe made the information available to Midcontinent.

[¶33.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

WILBUR, Justices, concur.

- 16 -