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State v. Reynolds

Supreme Court of Arkansas

May 23, 2019

STATE OF ARKANSAS APPELLANT
v.
DAVID REYNOLDS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CR-16-2938] HONORABLE HERBERT T. WRIGHT, JR., JUDGE

          Leslie Rutledge, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellant.

          Fuqua Campbell, P.A., by: J. Blake Hendrix and Annie Depper, for appellee.

          JOHN DAN KEMP, CHIEF JUSTICE

         The State brings this interlocutory appeal pursuant to Arkansas Rule of Appellate Procedure-Criminal 3 (2018) and contends that the circuit court erred in granting appellee David Reynolds's motion to suppress evidence seized from a search of his cell phone. For reversal, the State contends that the circuit court erred as a matter of law (1) in finding that there was no nexus between Reynolds's cell phone and the criminal activity alleged in the search warrant and (2) in concluding that the cell phone was beyond the scope of the warrant. We dismiss for lack of a proper State appeal.

         I. Facts

         The investigation of Reynolds began with a CyberTipline report submitted to the National Center for Missing and Exploited Children (NCMEC). NCMEC is a nonprofit organization that operates the CyberTipline, a website through which law enforcement, members of the public, and others report incidents of child pornography and child exploitation. Electronic-service providers that "obtain[] actual knowledge of any facts and circumstances from which there is an apparent violation" or a "planned or imminent" violation of statutes concerning child pornography are legally obligated to report such facts and circumstances to NCMEC. See 18 U.S.C. § 2258A(a). NCMEC must forward reports that it receives to an appropriate law enforcement agency. Id. § 2285A(c). When an electronic-service provider voluntarily reports an internet protocol (IP) address[1] for the user or person being reported, NCMEC will "geographically resolve" the IP address via a publicly available online search.

         On December 28, 2015, NCMEC received a tip from Twitter, a social-media platform. Twitter reported that devices associated with multiple IP addresses had accessed "sweetoothcandy3," a Twitter account believed to contain images and videos of child pornography. Using publicly available geolocation technology, NCMEC placed one of the IP addresses in Sherwood, Arkansas. NCMEC forwarded the tip and IP-address information to Arkansas law enforcement. Detective Frank Spence of the Sherwood Police Department subpoenaed Comcast, the internet-service provider for that IP address, and requested "information related to the subscriber . . . assigned that IP address during the time in question." In response, Comcast disclosed that the IP address was assigned to David Reynolds at 2324 Miramonte Drive in Sherwood.

          Spence prepared an affidavit for a search-and-seizure warrant recounting the information that he had received from NCMEC and Comcast. He stated that through his investigation, he learned that the IP address linked to Reynolds's residence had accessed "sweetoothcandy3," the Twitter account containing images of child pornography, forty-one times in December 2015. He also stated that on February 16, 2016, he received a cyber tip that a device associated with the same IP address had accessed a Twitter account tagged with the username "EthanluvsTS" and uploaded twenty images, "several of which depicted children engaging in sexual[ly] explicit conduct." Spence stated that he issued a subpoena to Comcast, and Comcast reported that the IP address was still registered to Reynolds at the Miramonte address. The affidavit stated that there was probable cause to believe that evidence of distributing, viewing, or possessing child pornography would be found on the premises of 2324 Miramonte Drive. According to the affidavit, the "premises" comprised a one-story single-family dwelling; surrounding grounds; outbuildings; and vehicles. Spence sought a warrant to search the premises and seize potential evidence, including computers, computer files, cameras, and mobile-communication devices with internet access.

         The district court found probable cause and signed a warrant authorizing the search and seizure sought by Spence. On March 3, 2016, at 12:35 p.m., Spence, along with other Sherwood officers and investigators from the Arkansas Attorney General's office, executed the warrant. When officers first arrived at the residence, no one was home. A few minutes later, Reynolds arrived and drove into the garage where he was met by Spence and another officer. Spence testified at the suppression hearing that he approached Reynolds in the garage and advised him that he had a warrant to search the home and seize any digital devices. Spence asked Reynolds if he had a cell phone. Reynolds produced an iPhone, and Spence took it from him. Spence explained that the officers were there to execute the warrant and that Reynolds was not under arrest and was free to leave. Spence asked for the phone's passcode, and Reynolds declined to provide it. After some discussion with Spence, Reynolds unlocked the phone. Spence handed the phone to Chris Cone, a special agent with the attorney general's office. Cone used "Black Light" software to conduct a "logical acquisition" of the phone to extract data for a more detailed view. While Cone was extracting the data, Reynolds told Spence that he needed to pick up his son from school. Spence told Reynolds that he was free to leave at any time but that officers were "retaining custody" of the house until they completed their search. The search ended at 3:09 p.m. Spence testified that Cone's "cursory examination . . . really didn't find any images to be alarmed about," so they returned the phone to Reynolds. Reynolds left and agreed to bring his son's cell phone to the police department for examination later that day.

         After a subsequent, more thorough search of the data that was obtained from Reynolds's phone, as well as statements that he made to police, Reynolds was arrested and charged with thirty counts of possessing or viewing images depicting sexually explicit conduct involving a child. See Ark. Code Ann. § 5-27-602 (Repl. 2013). Thereafter, he filed a motion to suppress the evidence from the search and seizure of his cell phone. Reynolds contended that the evidence recovered from the search of his cell phone should be suppressed because (1) the search warrant was not supported by probable cause, (2) the search warrant was overly broad, and (3) the search of his cell phone exceeded the scope of the warrant. He filed a separate motion to suppress his statements to police.

         A hearing on the motions was held on July 5, 2017. Spence and Cone testified about the application for and execution of the search warrant. The circuit court took the matter under advisement and allowed the parties to file posthearing briefs. Reynolds argued in his brief that the search warrant was not supported by probable cause because (1) the affidavit failed to establish a nexus between his cell phone and the crime and (2) Spence had failed to attach the images or describe them in the affidavit. He also argued that the warrant was overbroad and an unconstitutional "general warrant" because it failed to describe with particularity the place where the child pornography might be located within the electronic devices. Reynolds asserted that Cone's search of his cell phone exceeded the scope of the search warrant, which authorized only the seizure, not the search, of items described in the warrant. Finally, Reynolds contended that his statements to police should be suppressed as fruit of the poisonous tree.

         The circuit court entered an order on September 18, 2017, granting Reynolds's motion to suppress the evidence from his cell phone. The circuit court ruled that the search warrant for the residence was supported by probable cause and rejected Reynolds's argument that the search warrant was overbroad. But the circuit court agreed with Reynolds that the search and seizure of his phone exceeded the scope of the search warrant, finding that there was no nexus between the criminal activities alleged in the search warrant and the cell phone that was improperly seized from Reynolds. The circuit court also granted Reynolds's motion to suppress statements he made to police, ruling that the statements were fruit of the poisonous tree. The State appeals.

         II. Law ...


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