In re Austin B. ( 2019 )

June 10, 2019 June 10, 2019
June 10, 2019
Supreme Court
No. 2016-237-Appeal.
(99-511-04)
In re Austin B. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island,
250 Benefit Street, Providence, Rhode Island 02903, at Telephone
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2016-237-Appeal.
(99-511-04)
In re Austin B. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Indeglia, for the Court. The respondent, Austin B. (respondent), appeals from a
Family Court order and judgment finding him delinquent for possession of child pornography,
pursuant to G.L. 1956 § 11-9-1.3(a)(4). On appeal, the respondent asserts: (1) that the Family
Court magistrate erred in denying the respondent’s request for a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978); that the trial justice erred in (2) determining that the search
warrant was supported by probable cause; (3) deciding that the police did not need to obtain a new
search warrant after they determined that their original warrant was based on misinformation; and
(4) not suppressing the respondent’s oral statements to the police at the residence where the search
warrant was executed. For the reasons set forth in this opinion, we affirm the decisions below on
issues one through three and conclude that the respondent waived argument regarding the fourth
issue.
I
Technical Background
Because cases involving the crime of possession of child pornography often involve
technical terminology, and because a basic understanding of these principles is crucial to analyze
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the issues before the Court, we will begin with an overview of the technical background and
vocabulary pertinent to this case before delving into the facts.
An Internet Protocol address (IP address) is a unique string of numbers that all computers
or mobile devices that connect to the Internet acquire. Commonwealth v. Martinez, 71 N.E.3d 105,
107 (Mass. 2017) (citing Internet Corporation for Assigned Names and Numbers, Beginners Guide
to Internet Protocol (IP) Addresses 2, 4 (2011)). IP addresses are owned by an Internet service
provider (ISP), such as Cox Communications, Inc. (Cox). See id. When a person purchases
Internet service from an ISP, the ISP selects from a roster of IP addresses under its control and
assigns a unique IP address to the subscriber at a particular physical address. Id. A subscriber’s
IP address may change, but the ISP keeps a log of which IP address is assigned to each subscriber
at any given moment in time. Id. In the Internet’s early days, the correlation between an IP address
and a subscriber to a particular computer was stronger, because a residential Internet subscriber
went online using only a home computer connected to a hard-wired Internet connection. Id. Today,
though, many subscribers use a wireless Internet router to connect their laptops, cell phones, and
other mobile devices to the Internet. See id. These wireless routers allow multiple devices within
the router’s range to connect to the Internet at the same time. Id. Consequently, “the correlation
between an Internet subscriber’s assigned IP address and any one particular Internet-enabled
device may often be weaker than it once was.” Id. at 108. Nevertheless, “the correlation between
an IP address and a physical address can still be strong, at least when the ISP has verified its
assignment of a particular IP address to a subscriber at a specific physical address at a specific
point in time.” Id.
Additionally, the matter before the Court also concerns a “peer-to-peer file-sharing
network.” When a person uses these types of file-sharing services, it is akin to “leaving one’s
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documents in a box marked ‘free’ on a busy city street.” Clifford Fishman & Anne McKenna,
Wiretapping and Eavesdropping § 23:25 at 88 (2016) (internal citations omitted). In order to use
a peer-to-peer network, an individual must download software for the program. Peer-to-peer
networks use hash values to verify the content of electronic files that are available for copying.1
Hash values—commonly referred to as “electronic fingerprints”—consist of “a string of numbers
that, for all practical purposes, uniquely identifies a digital file” and will change any time a file is
altered. Martinez, 71 N.E.3d at 108 n.1. Over time, law enforcement and other entities have
identified and confirmed that certain hash values contain child pornography.
II
Facts and Travel
We now turn to the facts of the matter before us. On January 2, 2015, Coventry police
detective Kevin Harris, a member of the Rhode Island Internet Crimes Against Children Task
Force (ICAC),2 informed North Smithfield police detective Stephen Riccitelli, also a member of
ICAC, that on December 31, 2014, someone was using a peer-to-peer file-sharing network via the
IP address 68.9.210.241, and was suspected of possessing and sharing images of child
pornography. Detective Harris advised Det. Riccitelli “that a direct connection was made to the
aforementioned IP address and several files of suspected child pornography were downloaded.”
Accordingly, Det. Riccitelli viewed one of the files and confirmed it to be consistent with the
definition of child pornography contained in § 11-9-1.3.3
1
The search warrant affidavit in this case describes a hash value as “an alpha-numeric string * * *
that is calculated by applying a mathematical algorithm to the electronic data that is contained in
an electronic file.”
2
The ICAC is a task force administered by the Rhode Island State Police.
3
General Laws 1956 § 11-9-1.3 defines “child pornography” as:
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With this information, Det. Riccitelli conducted an inquiry with the American Registry of
Internet Numbers (ARIN) and determined that Cox was the ISP that owned the IP address. Thus,
Det. Riccitelli “sent legal process to Cox Communications in order to obtain subscriber
information for the account associated with the IP address” on the date in question; in response,
Cox identified a Mr. Barrows of 246 Sackett Street, Unit 2, Providence, Rhode Island (246 Sackett
Street) as the subscriber.4
Detective Riccitelli requested a “State Control package,” which did not uncover relevant
information, and he also performed a “cross-agency check,”5 which revealed that Mr. Barrows was
associated with 246 Sackett Street and that he was also associated with another address out of state.
Moreover, Det. Riccitelli conducted surveillance in the area of 246 Sackett Street and observed
what appeared to be a three-story house, “gray in color with matching gray trim[,]” and the number
“246” affixed to the front. In his initial investigation, Det. Riccitelli also performed a search for
246 Sackett Street on Vision Appraisal, which indicated that Whitmarsh Corporation (Whitmarsh)
“any visual depiction, including any photograph, film, video,
picture, or computer or computer-generated image or picture,
whether made or produced by electronic, mechanical, or other
means, of sexually explicit conduct where:
“(i) The production of such visual depiction involves the use of a
minor engaging in sexually explicit conduct;
“(ii) Such visual depiction is a digital image, computer image, or
computer-generated image of a minor engaging in sexually explicit
conduct; or
“(iii) Such visual depiction has been created, adapted, or modified
to display an identifiable minor engaging in sexually explicit
conduct.” Section 11-9-1.3(c)(1).
4
In the warrant, Mr. Barrows was identified by his first and last name. However, because it is not
alleged that Mr. Barrows had any involvement in the criminal activity giving rise to this case, we
will simply refer to him as “Mr. Barrows” throughout this opinion in an effort to maintain some
anonymity.
5
Detective Riccitelli testified that a cross-agency check is something that police officers use to
input an individual’s name and date of birth in order to show contacts that the individual has had
with other law enforcement agencies in the state.
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owned the property. The appraisal company also listed 246 Sackett Street as a three-family
property.
Armed with this information, Det. Riccitelli applied for a search warrant for “Computer
hardware, computer software, computer-related documentation, records, documents, material, and
passwords or other data security devices related to the acquisition, possession and transfer of child
pornography.” The search warrant permitted the search of “[t]he person of [Mr.] Barrows * * *
and the premises located at 246 Sackett Street, Unit 2[.]” Detective Riccitelli also filed a
supporting affidavit with his search warrant application, along with Attachments “A” and “B.”6 In
the affidavit, Det. Riccitelli explained the details relating to his investigation, as well as the
necessary technical background. On February 10, 2015, the District Court judge found that
probable cause existed and signed the search warrant.7
The police executed the warrant the next day.8 When the officers arrived at 246 Sackett
Street, the front door was unlocked, and they proceeded inside. Once inside the residence, the
officers continued up a staircase to the second-floor landing, where, as Det. Riccitelli later testified,
there was only one door.9 One of the officers knocked on the second-floor door, and they were
6
Detective Riccitelli testified that “Attachment A” contains definitions of terms included in the
items to be seized and “Attachment B” explains “volume of evidence” and talks about the technical
requirements involved when searching computer systems for evidence of criminal activity.
Detective Riccitelli further testified that these attachments were included with the search warrant
for purposes of educating the District Court judge.
7
We acknowledge that the terms “judge” and “magistrate” are often interspersed in the context of
caselaw concerning search warrant applications. We further note that several judges, as well as a
magistrate, were involved throughout the travel of this case, and many of them have since acquired
new titles. For ease of reference herein, we will refer to them in their capacities at the time of the
proceedings in this case.
8
There is some discrepancy as to the number of officers that were present the morning of the
search; however, the parties appear to agree that there were between six and ten officers present.
9
Detective Riccitelli testified that he recalled two doors on the first floor, one marked with the
number “1.”
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met by a man who identified himself as Frank Akinmurele. It was around this time that the officers
learned that 246 Sackett Street was a Department of Children, Youth, and Families (DCYF) group
home owned by Whitmarsh, and that Mr. Akinmurele was a Whitmarsh employee. Moreover, the
officers inquired about Mr. Barrows and learned that Mr. Barrows was employed by Whitmarsh,
but that he no longer worked at the 246 Sackett Street location. The officers also learned that the
Internet service for 246 Sackett Street remained in Mr. Barrows’ name for financial reasons,
despite his employment at a different location.
Thereafter, the officers passed through the second-floor door. A few of the officers then
gathered the residents and placed them in the common area while other officers executed the search
warrant.10 The second-floor layout consisted of a staff office, two bedrooms, a common area, a
kitchenette, and a bathroom. In executing the search, the officers “located the router that was used
for the Internet service at that location in the office.” Detective Brian Macera of the Rhode Island
State Police entered one of the bedrooms and located two LG cell phones next to the bed, one of
which had a “cracked” screen. Detective Macera also located a binder with respondent’s name on
it in that bedroom. When Det. Macera attempted to view the contents of the damaged phone, he
determined that the cell phone was password-protected and proceeded to the common room where
the residents were sitting. Detective Macera asked the occupants whose bedroom it was that he
had been in and who owned the cell phones; respondent identified the bedroom and the cell phones
as his own. Upon Det. Macera’s request, respondent provided his passcode to the cell phone; Det.
Macera performed an “on-site preview” of the contents of the cell phone.11
10
Detective Riccitelli testified that this was “protocol for officer safety” and to “make sure there
is no one hiding and there are no other officer safety issues.”
11
At the suppression hearing and at trial, the witness testimony only spoke to the evidence found
on the damaged phone.
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Detective Macera’s “on-site preview” of the cell phone revealed a folder entitled “Pix.” In
that folder, Det. Macera located approximately fifty to one hundred images that he believed to be
child pornography.12 After the images were discovered on respondent’s phone, respondent was
arrested, taken into custody, and transported to the Lincoln Woods State Police barracks (the
barracks).13
On October 5, 19, and 27, 2015, a waiver hearing was held in Family Court pursuant to the
state’s request that the case be transferred to Superior Court. On January 28, 2016, a Family Court
justice issued a bench decision denying the state’s motion. Subsequently, respondent filed a
motion requesting a Franks hearing and a motion to suppress evidence—the state objected to both
motions.
A
Motion for a Franks Hearing
On March 18, 2016, the parties presented arguments concerning respondent’s request for
a Franks hearing before a Family Court magistrate.14 The respondent asserted that he was entitled
to a Franks hearing because Det. Riccitelli, “at a minimum[,]” provided the signing District Court
judge with information in the application for the search warrant “with a reckless disregard to the
truth.” The respondent argued that “Cox specifically stated the information being provided was
12
A later digital forensic investigation of the cell phone revealed approximately 2,480 images of
child pornography. The state had originally filed a second petition against respondent for
transferring child pornography, pursuant to § 11-9-1.3; however, prior to trial the state dismissed
that petition.
13
Laura Hay, the residential director of Whitmarsh at the time, was informed that respondent had
been arrested, and she went to the barracks to accompany him. Ms. Hay was present when the
police interviewed respondent at the barracks.
14
In Franks, the United States Supreme Court announced a procedure to challenge warrants
alleged to have been obtained through misleading affidavits. Franks v. Delaware, 438 U.S. 154,
155-56 (1978).
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for limited business purposes only and they could not guarantee that it represented information
linking the identified customer to the State Police’s investigation.” The respondent acknowledged
that Det. Riccitelli ran Mr. Barrows’ name through the law enforcement databases and conducted
physical surveillance of 246 Sackett Street and that Det. Riccitelli based the affidavit supporting
the warrant on that information. However, respondent maintained that Det. Riccitelli’s
investigation and cross-agency check could not confirm that Mr. Barrows resided at 246 Sackett
Street and did not reveal any information regarding who lived inside the home.
In opposing the motion, the state contended that Det. Riccitelli’s statement that Mr.
Barrows resided at 246 Sackett Street “was neither intentionally made to deceive, nor was it made
in reckless disregard of the truth and, in addition, it’s immaterial and irrelevant to finding probable
cause in this case.” The state further argued that, even if Det. Riccitelli’s statement was cast aside,
“there still exists a substantial basis * * * to find the probable cause to search that residence.”
At the conclusion of the parties’ arguments, the Family Court magistrate issued a bench
decision denying respondent’s motion. First, the Family Court magistrate found that respondent
had standing. Next, he noted the significance of Det. Riccitelli seeking and obtaining information
from Cox to ascertain subscriber information for the account associated with the IP address. The
magistrate acknowledged the discrepancy between Det. Riccitelli’s testimony that he could not
confirm that Mr. Barrows resided at 246 Sackett Street versus the affidavit language indicating
that a review of law enforcement databases confirmed that Mr. Barrows did reside there. He
further highlighted Det. Riccitelli’s testimony explaining that the link established in performing
the cross-agency check did not necessarily mean that Mr. Barrows resided there, but rather that he
had a connection to the address. Ultimately, the magistrate stated: “I cannot find, based upon the
arguments and the documents that have been presented to me, that the word resides being placed
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in the affidavit—and I do believe it would be hyper-technical scrutiny for the [c]ourt to do this—
was intentionally and recklessly placed in the affidavit for the sole purpose of obtaining a search
warrant.” The magistrate also emphasized that, while not to respondent’s satisfaction, Det.
Riccitelli did perform follow-up investigative work when he surveilled 246 Sackett Street and
completed a cross-agency check. Lastly, the magistrate found that “even if it was removed from
the affidavit * * * there is still sufficient evidence” for a finding of probable cause; he therefore
denied respondent’s motion for a Franks hearing.
B
Motion to Suppress
The respondent also filed a motion to suppress the fruits of the search of 246 Sackett Street,
asserting that the affidavit supporting the search warrant application was insufficient to establish
probable cause. This motion was heard before a Family Court justice who later presided over the
trial. The parties presented testimony and arguments on May 2 and 3, 2016. At the suppression
hearing, respondent argued that the officers lacked probable cause to obtain a warrant, and
contended that, pursuant to Maryland v. Garrison, 480 U.S. 79 (1987), the police were required to
obtain a new search warrant when they realized that the warrant was based on misinformation.
Specifically, respondent averred that the warrant was invalid based on Mr. Barrows being named,
because Mr. Barrows did not reside at 246 Sackett Street. Further, respondent contested the use
of “Unit 2,” as there is no such thing as a “Unit 2” at 246 Sackett Street, and because the property
was improperly listed in the warrant as a three-family residence. As such, respondent averred that
the evidence obtained from the invalid search—namely, the cell phone—should be suppressed as
fruit of the poisonous tree.
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The state argued that the crucial fact in this case was that Det. Riccitelli had information
about the criminal activity occurring and “that they had a fair probability that it was occurring at a
particular place.” The state explained that having the subscriber information and location, as well
as the IP address, is sufficient to establish probable cause and has routinely been upheld in federal
courts. Moreover, the state, relying on our opinion in State v. Storey, 8 A.3d 454 (R.I. 2010),
argued that search warrants are directed at places, not people. The state further contended that the
officers acted reasonably in the execution of the warrant.
At the suppression hearing, Det. Riccitelli, Det. Macera, and Ms. Hay testified, mostly
reciting the facts discussed above. Detective Riccitelli’s testimony is central to this matter.
Detective Riccitelli testified that Det. Harris advised Det. Riccitelli that a computer user at IP
address 68.9.210.241 was using a peer-to-peer file-sharing network to share files suspected to be
child pornography. Detective Riccitelli testified that he viewed one of the aforementioned files
and confirmed that the file was consistent with the definition of child pornography. Thereafter,
Det. Riccitelli used ARIN to determine that Cox owned the IP address. Accordingly, Det.
Riccitelli sent an administrative subpoena to Cox to obtain subscriber information associated with
the IP address. On January 26, 2015, Cox responded to the legal process and identified Mr.
Barrows, of 246 Sackett Street, Unit 2, Providence, Rhode Island, as the subscriber on the date in
question. Armed with that information, Det. Riccitelli conducted a review of various law
enforcement databases and confirmed that Mr. Barrows was, at one time, associated with that
address. Moreover, Det. Riccitelli conducted surveillance of 246 Sackett Street and observed the
structure to be a three-family residence, gray in color with matching gray trim. Detective Riccitelli
stated in the affidavit that his training and experience led him to reasonably believe that a device
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with Internet connection within 246 Sackett Street was used to facilitate the possession of child
pornography.
On May 3, 2016, the trial justice issued a decision on respondent’s motion. The court first
explained that “it is reasonable to conclude that Unit 2 refers to the second floor of that property
at 246 Sackett Street.” The court then addressed the use of Mr. Barrows’ name in the affidavit,
and cited Storey for the proposition that search warrants are not directed at persons but instead
authorize the search of places and the seizure of things. The court explained that “Mr. Barrows is
like the proverbial red herring. It may smell a lot. It may smell the case up a lot, but it really has
no bearing on the issue before this [c]ourt.” The court found that the combination of the reasonable
inferences drawn from the facts of this case “certainly indicated probable cause to search that
property[.]” The trial justice upheld the validity of the search warrant and denied respondent’s
motion to suppress.
C
Bench Trial and Decision
Shortly thereafter, the trial was held on May 16 through 18, 2016. At trial, Det. Riccitelli
described much of the same information that he testified to at the suppression hearing. A
representative from Cox and Det. Macera also testified. On May 19, 2016, the trial justice rendered
a bench decision. The trial justice recounted the testimony of Det. Riccitelli and discussed the
warrant and the affidavit with attachments, noting the significance of the attachments. The trial
justice then highlighted the “extensive cross-examination” that occurred regarding the issue of Mr.
Barrows being named on the warrant and the reference to “Unit 2.” Then, the trial justice reviewed
the testimony of Det. Macera.
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The trial justice stated that he “felt the [c]ourt had an obligation to comment on” the
questions that were asked at 246 Sackett Street regarding whose room was on the second floor and
whose cell phones the officer had seized. He reiterated the findings of fact that he had announced
at the suppression hearing and ultimately concluded that, “based on the totality of the evidence,
including the property seized, in accordance with the search warrant, the admissions made by the
Respondent, after validly waiving his Miranda Rights, and based upon a clear reading of * * * [§]
11-9-1.3 * * * the Respondent has violated Section 11-9-1.3 of the Rhode Island General Laws,
and is found to be delinquent.” The trial justice sentenced respondent to commitment at the
Training School until his nineteenth birthday, suspended, with probation.15 Additionally,
respondent was required to register as a sex offender for ten years following the completion of his
sentence, pursuant to G.L. 1956 § 11-37.1-4(a). The respondent timely appealed.
The respondent raises four arguments on appeal: (1) the Family Court magistrate erred in
denying respondent’s request for a Franks hearing; (2) the search warrant was unsupported by
evidence of probable cause; (3) the police improperly executed the warrant, as they were obligated
to obtain a new search warrant once they learned that Mr. Barrows did not reside at 246 Sackett
Street; and (4) respondent’s statements to Det. Macera at the residence and the images recovered
from his cell phone should have been suppressed.
15
The respondent’s nineteenth birthday was two days after his sentencing.
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III
Discussion
A
Franks Hearing
In an effort to remain consistent with the travel of the proceedings below, we will first
address respondent’s argument that the Family Court magistrate erred in denying his request for a
Franks hearing. In Franks, the United States Supreme Court announced a procedure, which we
subsequently adopted, to challenge warrants allegedly obtained using misleading affidavits. See
Franks, 438 U.S. at 155-56; State v. Verrecchia, 880 A.2d 89, 94 (R.I. 2005). The Supreme Court
explained that “where the defendant makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant
in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable
cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Franks,
438 U.S. at 155-56; see State v. Tejeda, 171 A.3d 983, 997 (R.I. 2017). Moreover, “to raise a
Franks challenge, a defendant must establish standing in the area or items sought to be searched
and seized by the challenged warrant.” State v. Patino, 93 A.3d 40, 59 (R.I. 2014).
The respondent posits that Det. Riccitelli did not properly verify any of the information
about Mr. Barrows and ignored the fact that the cross-agency check provided another address for
him in addition to 246 Sackett Street. The respondent argues that the magistrate should have found
that the challenged statements in the warrant application recklessly disregarded the truth and that
he should have quashed the warrant and the fruits obtained therefrom.
In reviewing a request for a Franks hearing, this Court has explained that “[t]here must be
allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must
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be accompanied by an offer of proof.” Verrecchia, 880 A.2d at 99 (quoting Franks, 483 U.S. at
171). We review a decision to deny a respondent’s request for a Franks hearing with deference.
Tejeda, 171 A.3d at 997. Moreover, we have stated: “If the statements under attack are found to
be sufficiently false and are set aside, but ‘there remains sufficient content in the warrant affidavit
to support a finding of probable cause, no hearing is required.’” Id. (quoting State v. DeMagistris,
714 A.2d 567, 574 (R.I. 1998)).
The Family Court magistrate properly denied respondent’s request for a Franks hearing.
Affording deference to the magistrate, our review of the record does not reveal anything within
the affidavit that rises to the level of a knowing or intelligent false statement or one made with
reckless disregard for the truth. Instead, Det. Riccitelli’s investigation ensued after he received
information that someone was sharing child pornography on a peer-to-peer file-sharing network
from a device with the IP address 68.9.210.241. Using that information, police were able to make
a direct connection between the device using that IP address and downloaded child pornography.
Accordingly, Det. Riccitelli learned that Cox was the ISP for that IP address, and the detective sent
an administrative subpoena to Cox requesting subscriber information. The statement that Mr.
Barrows resided at 246 Sackett Street did not entitle respondent to a Franks hearing. Even if we
disregard Mr. Barrows’ name in the warrant affidavit, there was probable cause for the search
warrant, as explained in more detail below, when considering the information regarding the IP
address, the confirmation from Cox, and Det. Riccitelli’s surveillance of 246 Sackett Street.
B
Search Warrant Based on Probable Cause
On appeal, respondent raises two issues concerning the search warrant: (1) whether the
warrant was based on probable cause and (2) whether the police properly executed the warrant.
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The respondent first asserts that “[t]he search warrant drafted by the state police here got
everything wrong and nothing right—not the name of its target, not the place he resided, not the
specific address to be searched.” The respondent contends that “[t]he underlying problem was that
the state police drafted the warrant application as if they had independently verified the information
supplied by Cox Communications, while knowing full well that they had not done so.” Essentially,
respondent challenges the adequacy of Det. Riccitelli’s investigation, and argues that “[a]n IP
address alone should not supply the probable cause for a search warrant when blatantly incorrect
information about the identity of the alleged offender is connected to it * * *.”
When this Court conducts a review of a search warrant that has issued, it accords “great
deference to the issuing magistrate’s probable-cause determination, so long as there is a showing
of a substantial basis from which to discern probable cause.” Tejeda, 171 A.3d at 996 (quoting
Storey, 8 A.3d at 460). The Fourth Amendment to the United States Constitution dictates that a
warrant must “particularly describ[e] the place to be searched, and the persons or things to be
seized.” U.S. Const. Amend. IV. Similarly, article 1, section 6 of the Rhode Island Constitution
requires that a warrant “describ[e] as nearly as may be, the place to be searched and the persons or
things to be seized.” R.I. Const. art. 1, § 6. We have stated that “an affidavit offered in support
of a search warrant should not be judged as if it had been drafted by one schooled in the niceties
of the law nor should it be interpreted in a hypertechnical manner.” Tejeda, 171 A.3d at 996-97
(quoting Verrecchia, 880 A.2d at 94). This Court has further explained that “the approach to the
probable cause question should be pragmatic and flexible.” Id. at 997 (quoting Verrecchia, 880
A.2d at 94). “[O]ur ultimate inquiry asks whether the magistrate made a ‘practical, common-sense
determination’ that ‘there is a fair probability that contraband or evidence of a crime will be found
in a particular place.’” Storey, 8 A.3d at 461 (emphasis added).
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We explained in State v. DeLaurier, 533 A.2d 1167 (R.I. 1987), that “the name in [a]
warrant is unnecessary to the warrant’s validity.” DeLaurier, 533 A.2d at 1170; see also Storey, 8
A.3d at 466. Instead, “[t]he application requires the name of the owner ‘if known.’” Id.
Importantly, we have made clear that “[s]earch warrants are not directed at persons; they authorize
the search of places and the seizure of things, and as a constitutional matter they need not even
name the person from whom the things will be seized.” Id. (brackets omitted) (quoting Zurcher v.
Stanford Daily, 436 U.S. 547, 555 (1978)).
This Court has not yet addressed the precise issue of whether information that an IP address
at a particular physical address is being used to send or receive child pornography creates a
reasonable probability that the child pornography will be found within that physical location.
However, several federal and state courts have agreed that it does. See, e.g., United States v.
Featherly, 846 F.3d 237, 240 (7th Cir. 2017) (holding that “the connection between an IP address
and a modem at an Internet subscriber’s residence is sufficient to justify a search”); United States
v. Vosburgh, 602 F.3d 512, 526 (3d Cir. 2010) (agreeing with “several Courts of Appeals [that]
have held that evidence that the user of a computer employing a particular IP address possessed or
transmitted child pornography can support a search warrant for the physical premises linked to that
IP address”). In fact, respondent “acknowledges that a number of courts have found that probable
cause may be established solely through evidence of an IP address connected to a specific
residence rather than the identity of the subscriber.”
The Massachusetts Supreme Judicial Court recently decided a case with facts similar to the
matter now before us, concluding that an IP address at a certain location was sufficient to establish
probable cause to search that location. See Martinez, 71 N.E.3d at 114. In Martinez, the defendant
appealed from his conviction of possession of child pornography, arguing “that the police needed
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to do more to link the defendant to the place searched and the items seized before a warrant could
validly issue.” Id. at 107. There, the investigating officer discovered that a computer using a
specific IP address was using a peer-to-peer sharing network and sharing suspected child
pornography. Id. at 108. The officer then conducted an Internet search and determined that
Comcast Cable was the ISP for that IP address; the officer issued a subpoena to Comcast to obtain
the subscriber information for the IP address. Id. at 108-09. After the officer obtained the
defendant’s name (as the subscriber) and the physical address associated with the IP address, the
officer referred the investigation to the local police department, and an officer there sought and
received a search warrant based on that information. Id. at 109.
On appeal, the central question before the court in Martinez was whether the information
that the IP address had been assigned at the time in question to an Internet subscriber at a specific
physical address was “sufficient to establish probable cause for the search, even though the named
subscriber was neither listed as, nor confirmed to be, living in the unit, and even though police had
no information before the search linking the defendant to the residence.” Id. at 110. In holding
that the warrant was valid, that court concluded “that there was probable cause to search for
evidence related to sharing child pornography based on the information police obtained through
their [peer-to-peer network] surveillance and the administrative subpoena, independent of whose
name was on the Internet account or in the housing development’s records.” Id. at 111-12.
Moreover, the court stated that: “The temporal and geographical links between the target IP
address and the physical address to be searched provided a substantial basis for concluding that
evidence sought (computers and related items) was connected to the suspected crime (possessing
or sharing child pornography) and likely would be found at the specified premises (the apartment),
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and therefore gave rise to a sufficient nexus between the suspected criminal activity and the
residence.” Id. at 111.
We are mindful that searches of computers and cell phones lend themselves to situations
where the danger of the Fourth Amendment’s privacy concerns may well be at its greatest.
Nevertheless, we are satisfied that Det. Riccitelli’s actions here alleviate those concerns. In line
with the officers’ investigations in Martinez, Det. Riccitelli did take steps to corroborate and
develop the information he received from Det. Harris. While Det. Riccitelli might have been more
thorough in his investigation, the law does not require him to do so. Upon being informed that the
IP address 68.9.210.241 was suspected of involvement with child pornography, Det. Riccitelli
reviewed the images associated with that IP address and confirmed that the images were consistent
with the definition of child pornography in the statute, based on his training and experience. Then,
Det. Riccitelli determined that Cox was the ISP for the IP address at issue, and he accordingly
requested subscriber information from Cox. After learning the physical address associated with
the IP address, Det. Riccitelli performed a cross-agency check and confirmed that Mr. Barrows,
the named subscriber, had once had an affiliation with the address. The respondent makes much
of the fact that Det. Riccitelli used the word “resides” in the affidavit. Like the trial justice,
however, we do not find the use of that word to be detrimental here.16 Detective Riccitelli provided
more than enough information in the warrant application and supporting affidavit to establish “a
16
We note that the Internet user being a resident of 246 Sackett Street is of no moment. There
was still probable cause to search the residence because modems and routers, used to connect to
the Internet, maintain logs of the devices that connect to them. See Commonwealth v. Martinez, 71
N.E.3d 105, 114 n.10 (Mass. 2017). That information is valuable evidence, as it may assist in
leading police to an offending device, even if an offending individual’s device is not at the
residence at the time of the search.
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fair probability that contraband or evidence of a crime would be found” at 246 Sackett Street.
Storey, 8 A.3d at 463 (brackets omitted) (quoting State v. Byrne, 972 A.2d 633, 638 (R.I. 2009)).
In Storey, we upheld the validity of a search warrant, holding that “there was probable
cause to search the entire place articulated in the warrant, [so] it was not necessary for the
magistrate to take into account who else was living there when he authorized the place to be
searched.” Storey, 8 A.3d at 466 (emphasis in original). Similarly, here, the warrant application
listed the correct IP address and the correct physical address linked to that IP address. The fact
that Mr. Barrows was personally named, but not a resident of 246 Sackett Street, does not
invalidate the warrant. As in Martinez, we opine that Det. Riccitelli’s investigation established
probable cause to search for evidence relating to child pornography at 246 Sackett Street, Unit 2,
despite Mr. Barrows being the named person in the search warrant. Accordingly, we affirm the
hearing justice’s denial of respondent’s motion to suppress.
C
Execution of the Search Warrant
Additionally, respondent asserts that, even if the warrant was based on probable cause
when issued, “it should have become immediately clear to the officers upon entering the Sackett
Street group home that they were confronted with a plethora of new information and they needed
a new warrant.” The respondent argues that the police were required to seek a new warrant when
they entered 246 Sackett Street, proceeded to the second floor to an unmarked door, and when Mr.
Akinmurele informed them that: (1) it was a DCYF group home for minor residents, not a
multifamily structure and (2) Mr. Barrows—the named target of the warrant—was a Whitmarsh
employee but did not reside there. The respondent contends that “because the location the
magistrate intended to be searched in the warrant was diametrically different than the place the
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officers searched, the evidence seized therein should have been suppressed.” To the contrary, the
state argues that the warrant permitted the police to search “Unit 2” and that the police were
reasonable in believing that the second floor of the building constituted that unit.
This Court’s “review of whether a warrant states with sufficient particularity (or as nearly
as may be) the description of the place to be searched * * * requires bifurcation.” Storey, 8 A.3d
at 460. We afford great deference through application of the clearly erroneous standard to the
“findings of fact made by the trial justice in denying a motion to suppress for want of
particularity[.]” Id. Thereafter, this Court conducts a de novo review in “the application of
constitutional law regarding particularity to the facts.” Id.
The respondent relies heavily on Garrison for the proposition that the officers, upon
learning new information about the use of 246 Sackett Street and the fact that Mr. Barrows did not
reside there, were required to seek a new warrant. In Garrison, the police obtained a search warrant
for the third-floor apartment of a suspect named McWebb. Garrison, 480 U.S. at 80. “When the
police applied for the warrant and when they conducted the search pursuant to the warrant, they
reasonably believed that there was only one apartment on the premises described in the warrant.”
Id. As it turned out, however, there were two apartments, and the police initially entered the wrong
one, where the defendant resided. Id. Before the officers realized they were in the wrong
apartment, they discovered contraband leading to the defendant’s arrest. Id. The defendant filed a
motion to suppress the evidence found in his apartment, arguing that the search was invalid
pursuant to the Fourth Amendment to the United States Constitution. Id. at 80-81. The Supreme
Court upheld the trial court’s decision to deny the suppression motion, reasoning that “[t]he
objective facts available to the officers at the time suggested no distinction between McWebb’s
apartment and the third-floor premises.” Id. at 88. The Court explained that, if the officers had
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become aware of their mistake prior to entering the apartment, they would have been obligated to
limit their search. Id. at 86. Further, the Court stated: “Prior to the officers’ discovery of the factual
mistake, they perceived McWebb’s apartment and the third-floor premises as one and the same;
therefore their execution of the warrant reasonably included the entire third floor.” Id. at 88. In
conclusion, the Court noted that “the officers’ conduct was consistent with a reasonable effort to
ascertain and identify the place intended to be searched within the meaning of the Fourth
Amendment.” Id. at 88-89.
The facts of this case are distinct from those of Garrison. In Garrison, the officers were
in the wrong apartment because there were two apartments on the third floor, instead of one. Here,
the fact that 246 Sackett Street was being operated as a group home does nothing to invalidate the
fact that the officers reasonably and objectively believed that the only second-floor apartment
constituted the “Unit 2” that the warrant authorized them to search.
Detective Riccitelli had received credible information that a crime had occurred through
the use of the IP address. Detective Riccitelli then went through the phases of his investigation to
determine that the IP address was associated with the physical address of 246 Sackett Street, Unit
2, and that the structure was a multifamily unit. There is nothing in the record to indicate that Det.
Riccitelli had any information that Unit 2 did not exist. When the police arrived at 246 Sackett
Street, they proceeded to the second floor of the structure and knocked on the only door there.
Upon passing through the door, the officers were confronted with a layout consistent with an
apportioned multifamily structure. The respondent’s bedroom was on the second floor, and the
cell phone containing child pornography was seized from that bedroom.
Further, as discussed at length herein, Mr. Barrows’ whereabouts is irrelevant to the
execution of the warrant as his name was not required for a valid warrant to issue. The
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respondent’s suggestion that Mr. Akinmurele’s statements to the police required them to get a new
warrant is also misplaced. See United States v. Ayers, 924 F.2d 1468, 1479-80 (9th Cir. 1991)
(holding that the police had the right to execute the warrant, notwithstanding the defendant’s
mother’s statement that the defendant did not reside at the residence, because the police had
independently confirmed the address in their investigation). Mr. Akinmurele could have been Mr.
Barrows, or could have been the suspect using a device associated with the IP address.
Consequently, the police here acted reasonably based on the objective facts known at the time.
The warrant described the place to be searched and the items to be seized with sufficient
particularity, and the officers were permitted to perform the search on that existing warrant.
D
Custodial Interrogation at the Home
For the first time on appeal, respondent raises a custodial-interrogation argument, asserting
that his statements to police at 246 Sackett Street and the evidence obtained from his cell phone as
a result of those statements should be suppressed. Specifically, respondent now contends that
“even if one were to assume that the state police entered and searched the group home pursuant to
a valid search warrant, the statements [respondent] made to the police while detained inside his
home * * * should have been suppressed because at the time those statements were made
[respondent] was a juvenile in police custody and under interrogation who had not been advised
of his rights.” The respondent challenges his statements to police admitting his residence in the
searched bedroom, acknowledging his ownership of the cell phone, and providing his PIN number
needed to access the phone’s contents.17
17
The respondent does not raise any argument on appeal concerning statements made at the
barracks after his arrest.
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The state maintains that respondent’s arguments regarding custodial interrogation and any
statements he gave while the officers searched the home are waived. The state highlights that
respondent failed to raise the argument below and, even when encouraged by the trial justice to do
so, only disputed the admissibility of his statements at the barracks or referred back to his search
warrant arguments.
Pursuant to our “raise-or-waive” rule, we will not consider respondent’s arguments
pertaining to this issue on appeal. See State v. Romero, 193 A.3d 1167, 1170-71 (R.I. 2018)
(explaining that “[i]n accordance with this Court’s longstanding ‘raise-or-waive’ rule, if an issue
was not properly asserted, and thereby preserved, in the lower tribunals, this Court will not
consider the issue on appeal”) (quoting Miller v. Wells Fargo Bank, N.A., 160 A.3d 975, 980 (R.I.
2017)). We have made clear that, “in order to satisfy the strictures of our ‘raise-or-waive’ rule, an
evidentiary objection must be ‘sufficiently focused so as to call the trial justice’s attention to the
basis for said objection.’” State v. Diefenderfer, 970 A.2d 12, 30 (R.I. 2009) (deletion omitted)
(quoting State v. Warren, 624 A.2d 841, 842 (R.I. 1993)). “A mere oblique reference to an issue
that is not litigated and upon which a factual predicate is not even sought to be made furnishes no
basis for appellate review.” State v. Fogarty, 433 A.2d 972, 974 (R.I. 1981).
Prior to trial, respondent filed a motion challenging the validity of the search warrant,
arguing that his statements at the barracks should be suppressed as fruit of the poisonous tree.
During closing arguments at the suppression hearing on May 3, 2016, the trial justice explained
that his understanding was that the suppression hearing “was directed, essentially, towards the
search warrant and the execution of the search warrant and not whether or not the statements made
by the Respondent were in any way coerced or in violation, say, of his Miranda rights.” At that
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time, respondent’s counsel specifically stated: “[T]here hasn’t been an issue raised with respect to
whether my client was in custody for Miranda purposes when he gave those answers.”
Notably, the trial justice invited the respondent to brief the issue of custodial interrogation
and also invited the respondent to file a motion and have another hearing on the issue,
notwithstanding the respondent’s failure to make a motion on those grounds. Anytime the topic
of custodial interrogation at 246 Sackett Street did arise at trial, the respondent’s arguments
consistently referred back to the search-warrant argument, contending that the statements should
be suppressed as fruit of the poisonous tree. At trial, the respondent’s counsel asked Det. Riccitelli:
“Prior to being interrogated at the police station, [the respondent] did not make a statement to the
police, correct?” Detective Riccitelli responded: “Prior to his interview, no.” After that question,
counsel continued with her cross-examination, never probing Det. Riccitelli on the subject of
custodial interrogation at 246 Sackett Street. In rendering his decision, the trial justice noted, as
he did at the suppression hearing, that the court “did not find that a significant challenge was made
by Respondent to the voluntariness of the statement or the voluntary waiver of his rights under
Miranda.” The trial justice further stated that “[e]verything that was indicated, in the [c]ourt’s
opinion, in the nature of challenge, was to the original search warrant and the basis for that,
including the affidavit.” Ultimately, the trial justice made his own ruling on the matter, concluding
that the respondent was not in custody at 246 Sackett Street and that the respondent “volunteered
answers to both questions[.]” For these reasons, we hold that the respondent waived any argument
regarding custodial interrogation at 246 Sackett Street.
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IV
Conclusion
For the above-stated reasons, we affirm the judgment of the Family Court. The record shall
be returned to that tribunal.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case In re Austin B.
No. 2016-237-Appeal.
Case Number
(99-511-04)
June 10, 2019
Date Opinion Filed
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice Gilbert V. Indeglia
Providence County Family Court
Source of Appeal
Judicial Officer From Lower Court Associate Justice Howard I. Lipsey
For State:
Owen Murphy
Attorney(s) on Appeal Department of Attorney General
For Respondent:
Lara Montecalvo
Office of the Public Defender
SU‐CMS‐02A (revised June 2016)