The government used a summons under 19 U.S.C. § 1509 to obtain information to prosecute defendant for child pornography. Use of § 1509 didn’t violate the Fourth Amendment, and there’s no exclusionary rule for violation anyway. Defendant’s claim that the state search warrant lacked probable cause and had a Franks violation fails for a failure of overcoming the presumption of validity of a search warrant. United States v. Wellbeloved-Stone, 2018 U.S. Dist. LEXIS 71002 (W.D. Va. Apr. 26, 2018). As to § 1509 summons and the Fourth Amendment:
1. The Search Pursuant to the § 1509 Summonses did not Violate the Fourth Amendment
Summonses under 19 U.S.C. § 1509 can be, and have been, properly used to investigate child pornography offenses. Cray, 450 F. App’x at 926 (stating that the Government’s case, using a § 1509 summons, was “put together by agents of [DHS], [ICE], the FBI, and the Georgia Bureau of Investigation” in charging the defendant with child pornography offenses); United States v. Merrell, 88 F. Supp. 3d 1017, 1033 (D. Minn. 2015), aff’d, 842 F.3d 577 (8th Cir. 2016) (finding that there was “nothing improper” about an agent from DHS, tasked with investigating child exploitation violations, issuing a § 1509 summons); United States v. McLean, No. SA-09-CR-270, 2010 WL 376381, at *3 (W.D. Tex. Jan. 25, 2010), aff’d, 419 F. App’x 473 (5th Cir. 2011) (“The United States Customs Service is charged with insuring compliance with child exploitation laws,” including child pornography offenses); see also United States v. Fletcher, 763 F.3d 711, 713 (7th Cir. 2014) (“Immigration and Customs Enforcement (‘ICE’) Special Agents [] are experts in investigating child exploitation offenses.”). Defendant’s argument that the instant offenses are somehow outside the purview of 19 U.S.C. § 1509 and the role of HSI is without merit.
In order to challenge an administrative summons under the Fourth Amendment, the defendant must have a subjective expectation of privacy in the information sought, and that subjective expectation must be reasonable. United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010); see also United States v. Kitchens, 114 F.3d 29, 31 (4th Cir. 1997) (citing Katz, 389 U.S. 347 (1967)). Courts have consistently found there is no expectation of privacy in a subscriber’s personal information provided to his internet service provider, phone company, or voluntarily to a third party. In fact, “[e]very federal court to address this issue has 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) (collecting cases) (holding that there was no expectation of privacy for defendant’s Yahoo! and Cox subscriber information seized in the course of investigating child pornography offenses); see also United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017); Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001) (“We conclude that plaintiffs in these cases lack a Fourth Amendment privacy interest in their subscriber information because they communicated it to the systems operators.”). Moreover, the Fourth Circuit has held that a defendant does not have an objectively reasonable expectation of privacy in his internet and phone subscriber information, when such information was voluntarily conveyed to the internet and phone companies. Bynum, 604 F.3d at 164. The Fourth Circuit recognized that such “administrative subpoenas [do] not invade any legitimate privacy interest possessed by [the defendant] …” and therefore do not violate the Fourth Amendment. Id. at 164.
Defendant’s argument that the legal landscape could change in light of the Supreme Court’s looming decision in Carpenter v. United States, No. 16-402, is rather beside the point, and I refuse to speculate on how that case will be decided or its hypothetical application here. While the digital age has and will continue to prompt changes in the law, Defendant cites no binding precedent that compels finding that the summons violated current Fourth Amendment doctrine.
2. An Exclusionary Remedy is Unavailable under § 1509
Although the Government’s search did not violate the Fourth Amendment, the evidence may nonetheless be excluded if there is a violation of the statute, and the statute itself provides an exclusionary remedy. “In the statutory context, suppression is a creature of the statute, and its availability depends on the statutory text.” Clenney, 631 F.3d at 667 (citing States v. Donovan, 429 U.S. 413, 432 n. 22 (1977)). What is more, “there is no exclusionary rule generally applicable to statutory violations.” Id. Exclusion of evidence for a statutory violation is only appropriate “where [1] the statute specifically provides for suppression as a remedy or [2] the statutory violation implicates underlying constitutional rights such as the right to be free from unreasonable search and seizure.” United States v. Abdi, 463 F.3d 547, 556 (6th Cir. 2006) (citing Sanchez-Llamas v. Oregon, 548 U.S. 331, 349 (2006). Because I find the statute at issue here, 19 U.S.C. § 1509, does not contain an exclusionary remedy, nor does it implicate Defendant’s Fourth Amendment rights, Defendant’s motion to suppress the summonses will be denied.
First, assuming that there was a violation of the statute, 19 U.S.C. § 1509 does not provide for an exclusionary remedy. United States v. Reed, No. CR. 08-40010, 2008 WL 11350272, at *3 (D.S.D. Nov. 17, 2008), report and recommendation adopted, No. CR 08-40010, 2009 WL 10678958 (D.S.D. May 7, 2009) (analogizing from the ECPA to find that there was no exclusionary remedy in 19 U.S.C. § 1509). An exclusionary remedy is simply nowhere to be found in the statutory text. Further, the alleged violation of the statute cannot be remedied by the judicially fashioned exclusionary rule. United States v. Donovan, 429 U.S. 413, 432 n. 22 (1977) (“[T]he suppression remedy for … statutory, as opposed to constitutional, violations … turns on the provisions of [the statute] rather than the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights.”); Clenney, 631 F.3d at 667 (holding there is no generally applicable exclusionary rule to statutory violations). The Supreme Court and the Fourth Circuit have left it to the legislature to articulate remedies for statutory violations, so this Court will not create a remedy Congress has declined to provide.
Second, the alleged statutory violation does not implicate any constitutional rights, specifically Defendant’s Fourth Amendment rights. As demonstrated above, Defendant has no expectation of privacy in the personal information obtained by the Government via the 19 U.S.C. § 1509 summonses. See Part II.A.1. Perrine, 518 F.3d at 1204 (collecting cases) (“Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.”).
In sum, there is no statutory exclusionary remedy for 19 U.S.C. § 1509, and Defendant’s Fourth Amendment rights are not implicated.
