PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS MCCOY RICHARDSON, JR.,
No. 09-4072
Defendant-Appellant.
AOL LLC,
Amicus Supporting Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Martin K. Reidinger, District Judge.
(3:06-cr-00085-MR-1)
Argued: March 24, 2010
Decided: June 11, 2010
Before TRAXLER, Chief Judge, and WILKINSON and
DUNCAN, Circuit Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Wilkinson and Judge Duncan joined.
2 UNITED STATES v. RICHARDSON
COUNSEL
ARGUED: Anthony Glen Scheer, RAWLS, DICKINSON &
SCHEER, PA, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON
BRIEF: Edward R. Ryan, United States Attorney, Charlotte,
North Carolina, for Appellee. Christopher G. Bubb, Vice
President, General Counsel, John R. LoGalbo, Assistant Gen-
eral Counsel, AOL LLC, Dulles, Virginia, for Amicus Sup-
porting Appellee.
OPINION
TRAXLER, Chief Judge:
Thomas McCoy Richardson, Jr., pled guilty to violating 18
U.S.C. § 2252A(a)(1) & (b)(1) by "knowingly transport[ing]
and ship[ping] in interstate and foreign commerce, by means
of a computer, child pornography," J.A. 16, and to violating
18 U.S.C. § 2252A(a)(5) by "knowingly possess[ing] material
that contained images of child pornography," J.A. 16. In
doing so, Richardson preserved the right to appeal the district
court’s order denying his motion to suppress and quashing his
subpoena duces tecum under Rule 17(c)(2) of the Federal
Rules of Criminal Procedure.
On appeal, Richardson contends that AOL LLC ("AOL"),
an internet service provider ("ISP") with whom he had an e-
mail account, discovered the illegal images on which Richard-
son’s child pornography charges were based by conducting an
unconstitutional search on behalf of the Government. Rich-
ardson also contends that the search warrant subsequently
executed at his Charlotte-area apartment was not supported by
probable cause, rendering the evidence culled from his com-
puter inadmissible. Finally, Richardson claims that the district
UNITED STATES v. RICHARDSON 3
court committed reversible error in granting AOL’s motion to
quash his subpoena seeking the production of documents that
would establish an agency relationship between AOL and the
Government with respect to the detection of AOL subscribers
involved in child pornography. We conclude that the district
court correctly rejected these arguments and affirm the district
court.
I.
On June 10, 2004, AOL, pursuant to a mandatory reporting
requirement set forth in 42 U.S.C. § 13032(b)(1),1 reported to
the Cyber Tip Line at the National Center for Missing and
Exploited Children ("NCMEC") that AOL had detected the
transmission of child pornography images by a subscriber
using an e-mail address called knifeisland@aol.com.
NCMEC, also as mandated by the same federal law, passed
along this information to the North Carolina State Bureau of
Investigation ("SBI"), which, in turn, served AOL with an
administrative subpoena for subscriber information related to
the "knifeisland@aol.com" address. AOL determined that the
"knifeisland@aol.com" account was registered to Richardson
at 2541 Pine View Lane, Apartment H, Gastonia, North Caro-
lina. The screen name "tr2066" was also linked to this
account. By August 2004, however, when SBI agents
received and followed up on this information, Richardson no
longer resided at the 2541 Pine View Lane address and no
forwarding address was available.
The investigation of Richardson apparently stalled for
about one year. Then, on September 2, 2005, AOL reported
to NCMEC that it had detected the transmission of two e-mail
messages containing images depicting child pornography
from an account named "tr1029@aol.com" by a person using
the screen name "tr1029." NCSBI Agent J.D. White initiated
1
This particular provision is no longer in effect. The reporting require-
ments were amended and are now codified in 18 U.S.C. § 2258A.
4 UNITED STATES v. RICHARDSON
an investigation following this second report. Pursuant to
another administrative subpoena, AOL indicated that the
"tr1029@aol.com" account was registered to Richardson at
8508 Park Road, Charlotte, North Carolina. The Park Road
address, as it turned out, was the location of a UPS store. Fur-
ther investigation by the NCSBI, however, revealed that Rich-
ardson was residing in Charlotte at 7805 Andover Woods
Drive, Apartment 604, and linked Richardson through his
driver’s license to both the Park Road address of the UPS
store (where Richardson had apparently received mail for a
period of time) and the Pine View Lane address in Gastonia
(where Richardson had established the knifeisland@aol.com
account).
NCSBI agents researched Richardson’s criminal history
and discovered that Richardson was a registered sex offender
in South Carolina as a result of two 1996 convictions. In the
first instance, Richardson was arrested and charged with per-
forming a lewd act upon a child under 14 years of age after
he entered a Wal-Mart store in Florence, South Carolina,
grabbed the buttocks of a minor girl, and uttered an obscene
remark to her. He was ultimately convicted of assault and bat-
tery of a high and aggravated nature. In the second instance,
Richardson was convicted for exposing himself as he walked
through the same Wal-Mart.
On November 17, 2005, Agent White applied for a search
warrant to search Richardson’s Andover Woods Drive apart-
ment in Charlotte primarily for evidence of Richardson’s use
of a computer to view, store, and transmit images of child
pornography. In support of his probable cause showing, Agent
White included the information disclosed by AOL pursuant to
the administrative subpoenas and the details of the subsequent
investigation conducted by NCSBI. Additionally, Agent
White provided a summary of his background in criminal and
computer investigation as well as his special training in the
"investigation[ ] of child sexual exploitation and child por-
nography." J.A. 41. Based on his experience, Agent White
UNITED STATES v. RICHARDSON 5
indicated "[t]he use of computers to traffic in, trade, or collect
child pornography has become one of the preferred methods
of obtaining such materials . . . [because computers] pro-
vide[ ] a high degree of anonymity in obtaining child pornog-
raphy . . . [and] a sense of privacy and secrecy not attainable
by other media." J.A. 50. White further explained in his affi-
davit that "[i]ndividuals involved in the possession and trans-
portation of child pornography rarely, if ever, dispose of their
sexually explicit materials," which "are extremely valuable to
these individuals because of the difficulty, scarcity, expense,
and danger involved in their collection." J.A. 50. Noting that
even computer files that are deleted from the hard drive can
be retrieved through a forensic examination of the computer,
White asked the issuing judge to find "probable cause to
believe that Thomas Richardson’s residence, 7805 Andover
Woods Drive, Apartment 604, Charlotte, North Carolina, con-
tains a computer or computers that have been used to commu-
nicate with individuals to acquire child pornography; store
images of child pornography, and distribute images of child
pornography." J.A. 51.
On November 17, 2005, law enforcement officers executed
the search warrant for Richardson’s Andover Woods apart-
ment. The primary evidence recovered in the search was a
computer. Richardson indicated that he was the sole user of
the computer and admitted that he had sent and received child
pornography by email. Richardson also told officers that he
was "addicted to viewing [child pornography] over the Inter-
net, but denied ever meeting or speaking by phone with any-
one he met on the Internet under the age of 18." J.A. 211. A
forensic examination of Richardson’s computer revealed 28
images and 21 video files containing child pornography.
Some of these images included depictions of adults engaged
in illegal, obscene sexual acts with children between four and
nine years of age.
Richardson moved to suppress both the evidence seized in
the search of his home and his statements to law enforcement
6 UNITED STATES v. RICHARDSON
officers during the search. First, Richardson argued that in
reporting the contents of his email, AOL was acting as an
agent of the Government and had therefore conducted an
unconstitutional warrantless search of his private email com-
munications. Second, Richardson argued that even if AOL
had not acted as a law enforcement agent in reporting the
emails, the issuing judge lacked probable cause to believe that
evidence of a child pornography offense would be located at
his apartment at the time of the search.
Subsequently, in hopes of obtaining documentary support
for his argument that AOL was acting as an agent for the
Government, Richardson served AOL with a subpoena duces
tecum pursuant to Rule 17(c)(1) of the Federal Rules of Civil
Procedure requesting that AOL produce
all records (including but not limited to emails,
postal correspondence, minutes/notes of meetings,
memoranda, and public relations material, and Con-
gressional testimony) relating to AOL’s coordination
of efforts, training and/or strategic partnerships with
all agencies of the United States Department of Jus-
tice, the United States Postal Service, the Secret Ser-
vice, the Internet Crimes Against Children Task
Force with the Department of Justice, and the
[NCMEC], regarding the detection and reporting of
child pornography content in emails and/or web
browsing activities by AOL subscribers or on its net-
work.
J.A. 64.
In response to the subpoena, AOL filed a motion to quash
on the grounds that the subpoena was grossly overbroad in
scope and that "compliance would be unreasonable or oppres-
sive." Fed. R. Crim. P. 17(c)(2). AOL argued that Richard-
son’s subpoena was essentially a fishing expedition "based on
the unsupported legal theory that AOL is an agent of the
UNITED STATES v. RICHARDSON 7
United States," J.A. 58, and that compliance with the sub-
poena would require AOL "to carry out a search of its
immense paper files and data bases seeking that which does
not exist." J.A. 60.
In support of its motion to quash, AOL submitted a declara-
tion from AOL Assistant General Counsel John R. LoGalbo
primarily to show that there was no agency relationship
between AOL and the Government. LoGalbo denied that law
enforcement asked AOL to search Richardson’s email or oth-
erwise participate in the investigation of Richardson "except
through the ordinary forms of compulsory legal process." J.A.
66. Instead, LoGalbo stated, AOL detected the illegal images
attached to Richardson’s email transmissions through AOL’s
Image Detection and Filtering Program ("IDFP"), one of sev-
eral internally-developed scanning programs designed to keep
AOL’s systems secure. The IDFP, as summarized by the
LoGalbo Declaration, recognizes and compares the digital
"fingerprint" (known as a "hash value") of a given file
attached to a subscriber’s email with the digital "fingerprint"
of a file that AOL previously identified as containing an
image depicting child pornography. LoGalbo indicated that if
the IDFP detected a match suggesting that an email transmis-
sion contained child pornography images, then AOL notified
the NCMEC as required by 42 U.S.C. § 13032. According to
LoGalbo, "AOL developed and began using the IDFP in 2002
in order to protect its rights and property against lawbreakers,
prevent the network from being used to carry or store contra-
band (i.e., illegal child pornography), and fulfill its legal obli-
gation to report the transmission . . . of child pornography on
its systems." J.A. 65.
The magistrate judge concluded that the subpoena was
unreasonably broad and, therefore, that Richardson failed to
show that all of the information sought by the subpoena was
relevant, admissible, and specific. See United States v. Nixon,
418 U.S. 683, 698-700 (1974). The district court adopted the
ruling of the magistrate judge.
8 UNITED STATES v. RICHARDSON
The magistrate judge then recommended that Richardson’s
motion to suppress be denied. First, the magistrate judge con-
cluded that the search warrant was supported by probable
cause and rejected Richardson’s argument that Agent White’s
affidavit failed to establish a sufficient nexus between evi-
dence of the child pornography offense and the Andover
Woods apartment where the warrant was executed. The mag-
istrate judge found that, based both on the allegations specifi-
cally related to Richardson and the "general ‘profile’" of child
pornographers, J.A. 214, "there was a fair probability that the
computer used by defendant for transmission of and storage
of [child pornography] would be found in his residence." J.A.
213. The district court adopted the recommendation of the
magistrate judge.2
Second, the magistrate judge rejected Richardson’s argu-
ment that AOL was acting as an agent for law enforcement
and therefore conducted a warrantless search. In concluding
that Richardson failed to carry his burden of establishing that
AOL served as an agent or instrument of the government, the
magistrate judge noted that AOL’s "discovery of [child por-
nography] associated with [Richardson’s] email account was
the result of routine scanning the company conducts to recog-
nize files that may be detrimental to AOL." J.A. 216. The dis-
trict court adopted this recommendation as well.
Following the denial of his motion to suppress, Richardson
pled guilty to transporting and shipping child pornography in
violation of 18 U.S.C. §§ 2252A(a)(1) & (b)(1), and to pos-
sessing child pornography in violation of 18 U.S.C.
§ 2252A(a)(5). Under the terms of his plea agreement, Rich-
ardson preserved his right to appeal both the denial of his
2
The magistrate judge also concluded that even if the warrant lacked
probable cause, the good faith exception under United States v. Leon, 468
U.S. 897, 913 (1984), would apply. The district court, however, declined
to reach the issue of whether the law enforcement officers acted in good
faith.
UNITED STATES v. RICHARDSON 9
motion to suppress and the granting of AOL’s motion to
quash.
II.
Richardson believes that AOL, functioning as a govern-
ment agent, conducted a constitutionally impermissible search
when it scanned his email communications for illicit images
of child pornography without a search warrant. If AOL was
a government agent, then probable cause and a warrant were
required before any search was undertaken. If, however, AOL
acted in a private capacity, then government activity is not
implicated and the Fourth Amendment does not apply.
Assuming that AOL conducted a search within the meaning
of the Fourth Amendment, we conclude that AOL’s actions
did not equate to governmental conduct triggering constitu-
tional protection. The Fourth Amendment guarantees citizens
the right to be free from "unreasonable searches and seizures."
U.S. Const. amend. IV. But for a few exceptions, warrantless
searches and seizures are "per se unreasonable." Schneckloth
v. Bustamonte, 412 U.S. 218, 219 (1973) (internal quotation
marks omitted). The Fourth Amendment, however, does not
protect against searches, no matter how unreasonable, con-
ducted "by private individuals acting in a private capacity."
United States v. Jarrett, 338 F.3d 339, 344 (4th Cir. 2003);
see United States v. Jacobsen, 466 U.S. 109, 113 (1984).
Rather, the Fourth Amendment "proscrib[es] only govern-
mental action," Jacobsen, 466 U.S. at 113, and thus "evidence
secured by private searches, even if illegal, need not be
excluded from a criminal trial," United States v. Ellyson, 326
F.3d 522, 527 (4th Cir. 2003) (internal quotation marks omit-
ted).
However, when a private individual conducts a search "as
an instrument or agent of the Government," Skinner v. Rail-
way Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989), the
limits imposed by the Fourth Amendment apply, see Jarrett,
10 UNITED STATES v. RICHARDSON
338 F.3d at 344 ("The Fourth Amendment protects against
unreasonable searches and seizures by Government officials
and those private individuals acting as instruments or agents
of the Government." (alterations and internal quotation marks
omitted)). The defendant shoulders the burden of establishing
the existence of an agency relationship—"a fact-intensive
inquiry that is guided by common law agency principles."
Ellyson, 326 F.3d at 527; see Jarrett, 338 F.3d at 344.
The question of whether a private entity such as AOL
serves as a mere conduit for the Government in performing a
search "necessarily turns on the degree of the Government’s
participation in the private party’s activities." Skinner, 489
U.S. at 614. "[T]here must be some evidence of Government
participation in or affirmative encouragement of the private
search before a court will hold it unconstitutional. Passive
acceptance by the Government is not enough." Jarrett, 338
F.3d at 346. Additionally, we generally look for evidence
bearing upon the question of "whether the private party’s pur-
pose for conducting the search was to assist law enforcement
efforts or to further h[is] own ends." Ellyson, 326 F.3d at 527
(internal quotation marks omitted).
Thus, the key factors bearing upon the question of whether
a search by a private person constitutes a Government search
are: "(1) whether the Government knew of and acquiesced in
the private search; and (2) whether the private individual
intended to assist law enforcement or had some other inde-
pendent motivation." Jarrett, 338 F.3d at 344.
There is no question that law enforcement agents did not
actually participate in the search at issue here. Richardson
does not dispute LoGalbo’s assertion that no law enforcement
agency specifically asked AOL to search Richardson’s email
or provided information about Richardson to cause AOL to
scan his emails. Neither did law enforcement officials request
that AOL aid in the investigation of Richardson "except
through the ordinary forms of compulsory legal process," i.e.,
UNITED STATES v. RICHARDSON 11
"two administrative subpoenas and a preservation request"
served pursuant to the Stored Communications Act "for the
purpose of identifying the name, address, and other subscriber
identifying information for an AOL client." J.A. 66; see 18
U.S.C. § 2703. There is nothing in the record to suggest that,
in fact, law enforcement agents were involved in the search
or investigation of Richardson’s email transmissions until
after AOL reported its discoveries to NCMEC. Likewise,
there is little evidence in this record to suggest that AOL
intended to assist the Government in its case against Richard-
son. Without the unspecified discovery materials to which he
believes he is entitled pursuant to the subpoena duces tecum
quashed by the district court, Richardson is essentially forced
to concede that there is little evidence in this record upon
which to demonstrate the existence of a de facto agency rela-
tionship between AOL and the Government.
Instead, Richardson contends that by mandating AOL’s
compliance with the reporting scheme set forth in 42 U.S.C.
§ 13032, the Government actively encouraged the search of
his email and transformed AOL into its agent. According to
Richardson, the Government, by regulating ISP conduct, did
not simply acquiesce to AOL’s actions, but instead was
actively involved in the search so as to "trigger[ ] Fourth
Amendment protections, regardless of the private party’s
intentions." Presley v. City of Charlottesville, 464 F.3d 480,
488 n.7 (4th Cir. 2006).
Richardson draws an analogy to the Supreme Court’s deci-
sion in Skinner v. Railway Labor Executives’ Association for
the basis of his argument. In Skinner, the Court considered
whether the regulatory scheme imposed by the Federal Rail-
road Administration ("FRA") for mandatory and permissive
drug testing by private railroads implicated the Fourth
Amendment. Subpart C of the regulations, entitled "Post-
Accident Toxicological Testing," required railroads to gather
blood and urine samples from employees involved in serious
accidents resulting in fatalities, injuries or significant property
12 UNITED STATES v. RICHARDSON
damage. See Skinner, 489 U.S. at 609. Because the regula-
tions in subpart C mandated the means, methods and proce-
dures for testing, the Court concluded that "[a] railroad that
complies with the provisions of Subpart C of the regulations
does so by compulsion of sovereign authority, and the lawful-
ness of its acts is controlled by the Fourth Amendment." Id.
at 614.
A more difficult question for the Skinner Court, however,
was whether the Fourth Amendment was implicated when a
private railroad tested its employees under certain non-
mandatory regulations. Subpart D of the FRA’s regulatory
scheme, entitled "Authorization to Test for Cause," was per-
missive, authorizing breath or urine tests when a supervisor
had a "‘reasonable suspicion’" that a worker’s actions "con-
tributed to the occurrence or severity of [an] accident" or that
an employee was "under the influence of alcohol." Id. at 611.
Although permissive, Subpart D nevertheless dictated how the
blood and urine tests were to be conducted: "As in the case
of samples procured under Subpart C, the regulations set forth
procedures for the collection of samples, and require[d] that
samples be analyzed by a method that is reliable within
known tolerances." Id. at 611-12 (internal quotation marks
omitted). Moreover, the regulations "confer[red] upon the
FRA the right to receive certain biological samples and test
results procured by railroads pursuant to Subpart D." Id. at 615.3
3
Subpart D also prescribed formal procedures in the event samples pro-
cured under Subpart D were used for disciplinary purposes:
Subpart D further provides that whenever the results of either
breath or urine tests are intended for use in a disciplinary pro-
ceeding, the employee must be given the opportunity to provide
a blood sample for analysis at an independent medical facility.
§ 219.303(c). If an employee declines to give a blood sample, the
railroad may presume impairment, absent persuasive evidence to
the contrary, from a positive showing of controlled substance res-
idues in the urine. The railroad must, however, provide detailed
notice of this presumption to its employees, and advise them of
their right to provide a contemporaneous blood sample.
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 611 (1989).
UNITED STATES v. RICHARDSON 13
The Court concluded that, despite the non-mandatory
nature of Subpart D, a private railroad acts as a government
agent when conducting breath or urine tests under that sec-
tion:
The fact that the Government has not compelled a
private party to perform a search does not, by itself,
establish that the search is a private one. Here, spe-
cific features of the regulations combine to convince
us that the Government did more than adopt a pas-
sive position toward the underlying private conduct.
Id. at 615. The Court explained that the Government’s intent
to actively participate and exert a measure of control over any
search under Subpart D was apparent from the fact that the
regulations preempted state law and "supersede[d] any provi-
sion of a collective bargaining agreement, or arbitration award
construing such an agreement." Id. (internal quotation marks
omitted). Additionally, the Court noted a private railroad was
not permitted to "divest itself of, or otherwise compromise by
contract, the authority conferred by Subpart D," and its
employees were not "free to decline . . . to submit to breath
or urine tests under the conditions set forth in Subpart D." Id.
Based on those provisions, the Court in Skinner concluded
that any testing under Subpart D was not "primarily the result
of private initiative" and thus triggered application of the
Fourth Amendment. Id. The regulations in Skinner clearly
demonstrated "the Government’s encouragement, endorse-
ment, and participation," id. at 615-16, by "remov[ing] all
legal barriers" to such testing, by making clear the Govern-
ment’s "strong preference for testing" and "its desire to share
the fruits of such intrusions," and by "mandat[ing] that the
railroads not bargain away the authority to perform tests
granted by Subpart D." Id. at 615.
We reject Richardson’s attempt to draw an analogy
between the simple reporting requirement of § 13032 and the
14 UNITED STATES v. RICHARDSON
regulatory scheme at issue in Skinner authorizing a search.
The version of § 13032 in effect when AOL reported Richard-
son required only that an ISP such as AOL report to the Cyber
Tip Line at NCMEC in the event it "obtain[ed] knowledge of
facts or circumstances from which a violation of section . . .
2252A . . . involving child pornography . . . [wa]s apparent."
42 U.S.C. § 13032(b)(1). Unlike the regulatory scheme at
issue in Skinner, § 13032(b)(1) neither directed AOL to
actively seek evidence of child pornography in certain cir-
cumstances nor prescribed the procedures for doing so in the
event that AOL decided to ferret out subscribers using its sys-
tem to transmit illegal digital images. In fact, Congress made
abundantly clear that § 13032(b)(1) was not to be interpreted
as requiring an ISP to monitor a subscriber’s internet activity,
explicitly stating that "[n]othing in this section may be con-
strued to require a provider of electronic communication ser-
vices or remote computing services to engage in the
monitoring of any user, subscriber, or customer of that pro-
vider, or the content of any communication of any such per-
son." 42 U.S.C. § 13032(e).
The extensive regulatory scheme at issue in Skinner sug-
gested a "strong preference for testing," having eliminated "all
legal barriers to the testing." Skinner, 489 U.S. at 615. Indeed,
the FRA’s regulatory scheme forbade railroads from contract-
ing away the authority to perform such tests via the collective
bargaining process. By contrast, nothing in § 13032 precludes
AOL or any other ISP from entering into subscriber agree-
ments that actually preclude monitoring or the use of a scan-
ning tool, nor does any portion of § 13032 remotely suggest
a congressional preference for monitoring.
Moreover, the penalty provision for failure to report con-
tained in § 13032 does not persuade us to the contrary. Rich-
ardson suggests that ISPs such as AOL would be compelled
as a practical matter to monitor their subscribers in the face
of substantial monetary fines imposed against "[a] provider
. . . who knowingly and willfully fails to make a report" under
UNITED STATES v. RICHARDSON 15
§ 13032(b)(1). 42 U.S.C. § 13032(b)(4).4 As AOL points out,
however, the converse is just as likely to be true, if not more
so—if substantial fines are imposed for the failure to report
known facts suggesting a violation of federal child pornogra-
phy laws, ISPs and others subject to such penalties might just
as well take steps to avoid discovering reportable information.
Finally, we reject Richardson’s argument that Congress’
intent to deputize ISPs in the Government’s effort to fight
child pornography on the Internet is reflected by the immunity
from civil liability afforded by § 13032(c). See 42 U.S.C.
§ 13032(c) ("No provider or user of an electronic communica-
tion service or a remote computing service to the public shall
be held liable on account of any action taken in good faith to
comply with or pursuant to this section."). Richardson
believes this is especially true given the policy statements
contained in the Communications Decency Act of a national
policy "to remove disincentives for the development and utili-
zation of blocking and filtering technologies that empower
parents to restrict their children’s access to objectionable or
inappropriate online material" and "to ensure vigorous
enforcement of Federal criminal laws to deter and punish traf-
ficking in obscenity . . . by means of computer." 47 U.S.C.
§§ 230(b)(4) & (5).
The plain language of § 13032(c) clears the way for ISPs
to report violations of the child pornography laws, not investi-
gate them. The provision was clearly aimed at immunizing
civil claims for mistaken and incorrect reports issued to the
NCMEC and in no way encourages surreptitious searches.
The Communications Decency Act is likewise of no assis-
tance to Richardson, as it aims "to encourage service provid-
ers to self-regulate the dissemination of offensive material
over their services" by protecting service providers from law-
4
An initial failure to report carried a fine of up to $50,000, while a sub-
sequent failure carried a possible fine of $100,000. See 42 U.S.C.
§ 13032(b)(4).
16 UNITED STATES v. RICHARDSON
suits casting them "in the role of a publisher." Zeran v. Amer-
ica Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997).
We conclude that the statutory provision pursuant to which
AOL reported Richardson’s activities did not effectively con-
vert AOL into an agent of the Government for Fourth Amend-
ment purposes.
III.
We review the district court’s order granting AOL’s motion
to quash under Rule 17(c) of the Federal Rules of Criminal
Procedure for an abuse of discretion. See United States v.
Fowler, 932 F.2d 306, 311 (4th Cir. 1991). In this context, an
abuse of discretion occurs when the court uses an erroneous
legal standard or bases its decision on clearly erroneous facts.
See United States v. Under Seal (In re Grand Jury), 478 F.3d
581, 584 (4th Cir. 2007).
The subpoena duces tecum issued by Richardson to AOL
sought the production of essentially any document that would
support his theory that AOL was in an agency relationship
with the Government:
YOU ARE . . . COMMANDED to bring with you
the following document(s) or object(s): . . . [A]ll
records (including but not limited to emails, postal
correspondence, minutes/notes of meetings, memo-
randa, and public relations material, and Congressio-
nal testimony) relating to AOL’s coordination of
efforts, training and/or strategic partnerships with all
agencies of the [U.S.] Department of Justice, . . .
Postal Service, the Secret Service, the Internet
Crimes Against Children Task Force . . . and the
[NCMEC], regarding the detection and reporting of
child pornography content in emails and/or web
browsing activity by AOL subscribers or on its net-
work.
UNITED STATES v. RICHARDSON 17
J.A. 64.
Under Rule 17(c)(2), the court "may quash or modify" a
subpoena duces tecum "if compliance would be unreasonable
or oppressive." Fed. R. Civ. P. 17(c)(2). A subpoena is unrea-
sonable or oppressive if it is "excessively broad" or "overly
vague." In re Grand Jury, 478 F.3d at 584. In that vein, a fun-
damental concern is that the subpoena duces tecum is not
intended to provide a means of pretrial discovery; rather, its
primary purpose is simply "to expedite the trial by providing
a time and place before trial for the inspection of subpoenaed
materials." Nixon, 418 U.S. at 689-99; see Fowler, 932 F.2d
at 311 (rejecting criminal defendant’s application for a sub-
poena duces tecum in that it "was little more than a duplica-
tion of [his] discovery motion").
Richardson bears the burden under Nixon of showing that
the material he has subpoenaed meets the requirements of "(1)
relevancy; (2) admissibility; [and] (3) specificity." Nixon, 418
U.S. at 700. The subpoena duces tecum must be "made in
good faith and [must] not [be] intended as a general ‘fishing
expedition.’" Id.
Richardson contends that any information tending to show
a partnership or agency relationship between AOL and the
Government was highly relevant to his Fourth Amendment
claim and that the district court’s refusal to require compli-
ance precluded him from developing this claim. While such
information might indeed be relevant, Richardson fails to
address the principal deficiency in his subpoena—the lack of
specificity. Without it, Richardson is merely fishing for evi-
dence that might support his theory, as if he were in the dis-
covery phase of a civil action. Even on appeal, the phrasing
of Richardson’s argument—that "he should be allowed to dis-
cover the facts" supporting his theory that AOL and the Gov-
ernment were in a partnership—betrays his intention to
misuse the subpoena duces tecum as a discovery mechanism
to develop his agency claim. As we have explained consis-
18 UNITED STATES v. RICHARDSON
tently, "a Rule 17 subpoena duces tecum cannot substitute for
the limited discovery otherwise permitted in criminal cases
and the hope of obtaining favorable evidence does not justify
the issuance of such a subpoena." United States v. Caro, 597
F.3d 608, 620 (4th Cir. 2010) (internal quotation marks omit-
ted).
We conclude, therefore, that the district court did not abuse
its discretion in granting AOL’s motion to quash.
IV.
Finally, Richardson challenges the district court’s conclu-
sion that the search warrant was supported by probable cause.
When considering a district court’s denial of a suppression
motion, we review factual findings for clear error and legal
conclusions de novo. See United States v. Blake, 571 F.3d
331, 338 (4th Cir. 2009), cert. denied, 130 S. Ct. 1104 (2010).
And, "[a]lthough we review de novo the denial of the motion
to suppress by the district court, the determination of probable
cause by the issuing magistrate is entitled to great deference
from this court." United States v. Hodge, 354 F.3d 305, 309
(4th Cir. 2004). Our duty "‘is simply to ensure that the magis-
trate had a substantial basis for concluding that probable
cause existed.’" Id. (quoting Illinois v. Gates, 462 U.S. 213,
238-39 (1983)).
Although the concept of probable cause defies a precise
definition, it "exist[s] where the known facts and circum-
stances are sufficient to warrant a man of reasonable prudence
in the belief that contraband or evidence of a crime will be
found" in the place to be searched. Ornelas v. United States,
517 U.S. 690, 696 (1996). A probable cause assessment
requires the issuing judge to decide whether, given the totality
of the circumstances, there is a "fair probability that contra-
band or evidence of a crime will be found in a particular
place." Gates, 462 U.S. at 238.
UNITED STATES v. RICHARDSON 19
Richardson contends that there was no probable cause
because the information supporting the issuance of the search
warrant was stale. See United States v. McCall, 740 F.2d
1331, 1335-36 (4th Cir. 1984) ("A valid search warrant may
issue only upon allegations of facts so closely related to the
time of the issue of the warrant as to justify a finding of prob-
able cause at that time." (internal quotation marks omitted));
id. at 1336 ("[E]vidence seized pursuant to a warrant sup-
ported by ‘stale’ probable cause is not admissible in a crimi-
nal trial to establish the defendant’s guilt."). In this regard,
Richardson claims that the fatal flaw in Agent White’s affida-
vit is that it failed to specify the date on which he possessed
or emailed the illegal images; at most, Richardson contends,
the supporting affidavit established probable cause that he
possessed and distributed child pornography at some unspeci-
fied time in the past. Furthermore, Richardson suggests that
the only information offered to the issuing judge to "freshen"
the probable cause was boilerplate "profile" information about
the general tendencies of child pornography collectors, e.g.,
that "[i]ndividuals involved in the possession and transporta-
tion of child pornography rarely, if ever, dispose of their sexu-
ally explicit materials" and tend to store their collected
materials in their "residence or other secure location to ensure
convenient and ready access." J.A. 50. If Agent White’s affi-
davit establishes probable cause, Richardson concludes, then
the residence of anyone who has ever possessed or distributed
any such materials at some point in the past will be subject to
a search so long as the supporting affidavit includes similar
boilerplate language. See United States v. Prideaux-Wentz,
543 F.3d 954, 957, 958-59 (7th Cir. 2008) (concluding affida-
vit contained stale information despite description of "‘child
pornography collector characteristics’" where the government
did not identify dates on which illegal images were uploaded
and record indicated that images could have been obtained as
much as four years prior to the warrant). We cannot agree.
Although "there is no question that time is a crucial ele-
ment of probable cause," McCall, 740 F.2d at 1335, the exis-
20 UNITED STATES v. RICHARDSON
tence of probable cause cannot be determined "by simply
counting the number of days between the occurrence of the
facts supplied and the issuance of the affidavit," id. at 1336
(internal quotation marks omitted). Instead, we "look to all the
facts and circumstances of the case, including the nature of
the unlawful activity alleged, the length of the activity, and
the nature of the property to be seized." Id. In the context of
child pornography cases, courts have largely concluded that a
delay—even a substantial delay—between distribution and
the issuance of a search warrant does not render the underly-
ing information stale. This consensus rests on the widespread
view among the courts—in accord with Agent White’s affida-
vit—that "collectors and distributors of child pornography
value their sexually explicit materials highly, ‘rarely if ever’
dispose of such material, and store it ‘for long periods’ in a
secure place, typically in their homes." United States v. Lacy,
119 F.3d 742, 746 (9th Cir. 1997); see United States v. Watz-
man, 486 F.3d 1004, 1008 (7th Cir. 2007) (rejecting challenge
to probable cause where three months elapsed between the
crime and issuance of the warrant where agent testified child
pornographers retain their collected materials for long periods
of time); United States v. Gourde, 440 F.3d 1065, 1072 (9th
Cir. 2006) (en banc) (concluding that "[t]he details provided
on the use of computers by child pornographers and the col-
lector profile" provided support for a finding of probable
cause); United States v. Riccardi, 405 F.3d 852, 861 (10th
Cir. 2005) (finding probable cause based, in part, on "the
observation that possessors often keep electronic copies of
child pornography"); United States v. Lemon, 590 F.3d 612,
615 (8th Cir. 2010) ("Many courts, including our own, have
given substantial weight to testimony from qualified law
enforcement agents about the extent to which pedophiles
retain child pornography."), cert. denied, No. 90-10170, 2010
WL 1531424 (May 17, 2010); United States v. Morales-
Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (holding that
three-year delay between acquisition of child pornography
and application for warrant did not render supporting informa-
UNITED STATES v. RICHARDSON 21
tion stale since "customers of child pornography sites do not
quickly dispose of their cache"), cert. denied, 129 S. Ct. 512
(2008).
Here, the information provided by Agent White established
that no more than four months had passed from the time that
Richardson emailed an image depicting child pornography
using his "tr1029@aol.com" account until the warrant was
issued on November 17, 2005. Although Agent White did not
supply the precise date of the email transmission, he indicated
that the "tr1029@aol.com" account was established by Rich-
ardson on July 22, 2005, and the offending email could thus
not have been sent before that time. We conclude that a delay
of four months does not preclude a finding of probable cause
based on staleness in light of the other information supplied
by Agent White, including the previous instance in which
Richardson used an AOL account to send such images and
Agent White’s sworn statement that child pornographers
"rarely, if ever, dispose of their sexually explicit materials,"
and that "even if a computer file is deleted from a hard drive
or other computer media, a computer expert is still likely to
retrieve . . . such files through scientific examination of the
computer." J.A. 50.
Richardson raises one other challenge to the search warrant
that is closely related to the idea of staleness. He contends that
the affidavit failed to include any specific facts suggesting
that evidence of these offenses would be found in the Ando-
ver Woods apartment. That is, Richardson argues the affidavit
failed to establish a nexus with the place to be searched.
According to Richardson, the only basis in the supporting
affidavit for finding the required nexus to Richardson’s Ando-
ver Woods apartment was the generic, boilerplate "child por-
nographer profile." Richardson believes that there must be
some "specific" allegation that he was keeping evidence of
these crimes at the Andover Woods apartment—for example,
that he was using the same computer at the new residence. We
disagree.
22 UNITED STATES v. RICHARDSON
Richardson’s argument ignores the reasonable, common-
sense inferences that an issuing magistrate is permitted to
draw from the totality of the circumstances in assessing prob-
able cause. As we have observed before, "the nexus between
the place to be searched and the items to be seized may be
established by the nature of the item and the normal infer-
ences of where one would likely keep such evidence." United
States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988). Agent
White’s affidavit linked Richardson’s email accounts, which
he used to distribute child pornography, to his previous and
current (at the time of the warrant) addresses. The totality of
the evidence, including this information, provided the issuing
magistrate with a substantial basis for concluding that there
was a fair probability that the computer Richardson used to
engage in these unlawful activities was kept in his current res-
idence.
V.
For the foregoing reasons, we affirm the order of the dis-
trict court denying Richardson’s motion to suppress and
granting AOL’s motion to quash the subpoena duces tecum.
AFFIRMED