State v. Rolfe ( 2013 )

#26096-rev in pt & aff in pt-GAS
2013 S.D. 2IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JOHN A. ROLFE, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE THOMAS L. TRIMBLE
Judge
****
MARTY J. JACKLEY
Attorney General
ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
ELLERY GREY
Rapid City, South Dakota Attorney for defendant
and appellant.
****
ARGUED OCTOBER 1, 2012
OPINION FILED 01/09/13
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SEVERSON, Justice
[¶1.] John A. Rolfe was convicted of three counts of first-degree rape of a
minor and 12 counts of possessing, manufacturing, or distributing child
pornography. The trial court sentenced Rolfe to three concurrent life sentences
without parole and 12 consecutive 10-year sentences in the South Dakota State
Penitentiary. Rolfe appeals, raising two issues. First, Rolfe argues that the trial
court violated his right to a public trial because it excluded the general public from
the courtroom when the child victim testified about sexual abuse. Second, Rolfe
argues that the State lacked legal authority to issue subpoenas to Midcontinent
Communications prior to his indictment. Regarding the right to a public trial, we
remand the case to the trial court to supplement the record with the facts and
reasons for the closure of the courtroom during the victim’s testimony. Further, we
hold that Rolfe has no privacy interest in the information obtained by subpoenas
issued to Midcontinent Communications.
BACKGROUND
[¶2.] In May 2009, the Pennington County Internet Crimes Division
conducted an undercover investigation, looking for persons distributing or
possessing child pornography. By using special software to conduct the
investigation, law enforcement officers found a person who appeared to possess
child pornography at a specific IP address. The person that officers suspected of
possessing child pornography used LimeWire, a person-to-person file sharing
program, to share files. Investigators used the software program to locate and
download three shared files containing child pornography.
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[¶3.] In June 2010, using the same software, Pennington County
investigators again made contact with a person using the same IP address.
Investigators located and downloaded additional shared files containing child
pornography. They also determined that the IP address was assigned to a
Midcontinent subscriber.
[¶4.] Also in June 2010, Pennington County investigators briefed a deputy
state’s attorney on their investigation. The deputy state’s attorney issued
subpoenas to Midcontinent, requesting the email address and personal information
of the subscriber associated with the IP address where officers found child
pornography.
[¶5.] Shortly after receiving the subpoenas, Midcontinent contacted
investigators and provided them with a phone number and email address for an
account in Rapid City. Using the phone number provided, investigators found that
the number was registered to John A. Rolfe, who resided at the address provided by
Midcontinent that was associated with the specific IP address. The deputy state’s
attorney issued another subpoena, directing Midcontinent to provide information on
any other owners of accounts associated with the original account.
[¶6.] On July 19, 2010, the trial court granted a search warrant for Rolfe’s
residence in Rapid City. Investigators conducted the search on July 20 and seized
cell phones, letters, cameras, memory flashcards, and two laptop computers.
Investigators conducted a forensic analysis of these items. On the laptop found in
Rolfe’s bedroom, investigators discovered child pornography involving A.F., the 12-
year-old daughter of Rolfe’s son’s live-in girlfriend. A.F. later told investigators that
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Rolfe had drugged, sexually assaulted, and photographed her over several years at
his home and on trips around the state. In addition, A.F. told investigators that
Rolfe filmed her changing out of her clothing on one trip outside of the state.
[¶7.] On August 19, 2010, a Pennington County grand jury indicted Rolfe on
three counts of first-degree rape and 12 counts of possessing, manufacturing, or
distributing child pornography.
[¶8.] Prior to trial, Rolfe filed a motion to suppress the evidence found in
this case through the search of Rolfe’s home and computer. Rolfe argued that the
subpoenas ordering Midcontinent to release the name and contact information
associated with the IP address were issued in violation of the law. Rolfe further
argued that information collected as a result of the improper subpoenas was used to
obtain search warrants and collect evidence at Rolfe’s home. Thus, the evidence
collected was “fruit of the poisonous tree” and should be excluded from use at trial.
[¶9.] The trial court denied Rolfe’s motion to suppress. The court found that
an IP address is a unique number that identifies a computer and its location in
connection to the Internet. The court determined that Rolfe had no Fourth
Amendment expectation of privacy in his IP address subscriber information because
he publicly disseminated the information. Finally, the court concluded that even if
the method of subpoenaing the IP address and records from Midcontinent was
invalid, the court would not sanction the State by suppressing the evidence in the
case.
[¶10.] The court held a jury trial in this case from April 18 through 21, 2011.
At the beginning of the third day of trial, the State invoked SDCL 23A-24-6, a
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statute that authorizes the closure of a courtroom when a child testifies about a
sexual offense committed against that child or another child. The statute allows the
court to exclude the general public except the parties’ attorneys, victim or witness
assistant, the victim’s parents or guardians, officers of the court, and
representatives of the media. Rolfe objected to the closure as a violation of his Sixth
Amendment right to a public trial. The trial court overruled the objection and
allowed the courtroom to be closed during A.F.’s testimony. 1
[¶11.] The jury found Rolfe guilty of three counts of first-degree rape of A.F.
and 12 counts of possessing, manufacturing, or distributing child pornography. The
trial court sentenced Rolfe to three concurrent life sentences without parole and 12
consecutive 10-year sentences in the South Dakota State Penitentiary.
[¶12.] Rolfe appeals, raising two issues. First, Rolfe argues that the trial
court violated his right to a public trial when it excluded the general public from the
courtroom during A.F.’s testimony. Second, Rolfe argues that the State lacked legal
authority to issue subpoenas to Midcontinent Communications prior to his
indictment.
STANDARD OF REVIEW
[¶13.] “Constitutional interpretation is a question of law reviewable de novo.”
Steinkruger v. Miller, 2000 S.D. 83, ¶ 8, 612 N.W.2d 591, 595 (citing State v. Beck,
1996 S.D. 30, ¶ 6, 545 N.W.2d 811, 812). Statutes are presumed to be constitutional
1. The record notes few “interested spectators” attending the trial, other than
occasional officers of the court. The only specific spectators identified who
were excluded by the order were the victim’s grandparents.
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and the challenger has the “burden to prove beyond a reasonable doubt that a
statute violates a constitutional provision.” Id. (citing Kyllo v. Panzer, 535 N.W.2d
896, 898 (S.D. 1995)). “[W]e review the constitutionality of a statute only when it is
necessary to resolve the specific matter before us, and then only to first decide if the
statute can be reasonably construed to avoid an unconstitutional interpretation.”
Id. (citing City of Chamberlain v. R.E. Lien, Inc., 521 N.W.2d 130, 131 (S.D. 1994)).
[¶14.] A violation of the right to a public trial is a “structural defect affecting
the framework within which the trial proceeds, rather than simply an error in the
trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246,
1265, 113 L. Ed. 2d 302 (1991). See also Waller v. Georgia, 467 U.S. 39, 49 n.9, 104
S. Ct. 2210, 2217 n.9, 81 L. Ed. 2d 31 (1984). “‘Without these basic protections, a
criminal trial cannot reliably serve its function as a vehicle for determination of
guilt or innocence, and no criminal punishment may be regarded as fundamentally
fair.’” Fulminante, 499 U.S. at 310, 111 S. Ct. at 1265 (quoting Rose v. Clark, 478
U.S. 570, 577-78, 106 S. Ct. 3101, 3106, 92 L. Ed. 2d 460 (1986)).
[¶15.] “Statutory interpretation is also a question of law reviewed under the
de novo standard.” State v. Wilson, 2004 S.D. 33, ¶ 9, 678 N.W.2d 176, 180 (citing
Steinberg v. S.D. Dept. of Military & Veterans Affairs, 2000 S.D. 36, ¶ 6, 607 N.W.2d
596, 599). We review the trial court’s “application of the law de novo, and the
ultimate decision to close a [court] proceeding for an abuse of discretion.” Rapid
City Journal v. Delaney, 2011 S.D. 55, ¶ 9, 804 N.W.2d 388, 392.
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DISCUSSION
[¶16.] 1. Whether Rolfe’s right to a public trial was violated.
[¶17.] Rolfe argues that his Sixth Amendment right to a public trial was
violated when the trial court excluded the general public during A.F.’s testimony.
The Sixth Amendment provides, in part, “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed . . . .” U.S. Const. amend.
VI. See also S.D. Const. art. VI, § 7 (“In all criminal prosecutions the accused shall
have the right to . . . a speedy public trial . . . .”). In general, courts conduct public
trials “‘for the benefit of the accused; that the public may see he is fairly dealt with
and not unjustly condemned, and that the presence of interested spectators may
keep his triers keenly alive to a sense of their responsibility and to the importance
of their functions.’” Waller, 467 U.S. at 46, 104 S. Ct. at 2215 (quoting Gannett Co.
v. DePasquale, 443 U.S. 368, 380, 99 S. Ct. 2898, 2906, 61 L. Ed. 2d 608 (1979)).
Recently, the United States Supreme Court reinforced the importance of public
trials in Presley v. Georgia, where it stated that “[t]he public has a right to be
present whether or not any party has asserted the right.” 558 U.S. 209, ___, 130 S.
Ct. 721, 724-25, 175 L. Ed. 2d 675 (2010).
[¶18.] The right of access to a criminal trial is not absolute. Globe Newspaper
Co. v. Super. Ct. for Norfolk Cnty., 457 U.S. 596, 606, 102 S. Ct. 2613, 2620, 73 L.
Ed. 2d 248 (1982). “‘The right to an open trial may give way in certain cases to
other rights or interests, such as the defendant’s right to a fair trial or the
government’s interest in inhibiting disclosure of sensitive information.’” Presley,
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558 U.S. at ___, 130 S. Ct. at 724 (quoting Waller, 467 U.S. at 45, 104 S. Ct. at
2215). “‘Such circumstances will be rare, however, and the balance of interests
must be struck with special care.’” Id. (quoting Waller, 467 U.S. at 45, 104 S. Ct. at
2215).
[¶19.] One such circumstance where trial courts may weigh closure is in
cases where a child victim is testifying about sexual abuse. Trial courts can
consider on a case-by-case basis whether closure of a courtroom is necessary to
protect a child victim of sexual abuse. Globe Newspaper Co., 457 U.S. at 608, 102 S.
Ct. at 2621. A trial court should weigh factors such as the “victim’s age,
psychological maturity and understanding, the nature of the crime, the desires of
the victim, and the interests of parents and relatives.” Id. (footnote omitted). South
Dakota has a specific statute to address closing a courtroom for child victim
testimony. SDCL 23A-24-6 provides:
Any portion of criminal proceedings, with the exception of grand
jury proceedings, at which a minor is required to testify
concerning rape of a child, sexual contact with a child, child
abuse involving sexual abuse, or any other sexual offense
involving a child may be closed to all persons except the parties’
attorneys, the victim or witness assistant, the victim’s parents
or guardian, and officers of the court and authorized
representatives of the news media, unless the court, after proper
hearing, determines that the minor’s testimony should be closed
to the news media or the victim’s parents or guardian in the best
interest of the minor.
This section allows the trial court discretion to determine who should remain in the
courtroom when a child testifies about a sexual offense. It also allows the trial
court to minimize the number of spectators in the courtroom during testimony while
allowing for public observation of the trial via the news media.
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[¶20.] However, in order to close a courtroom during any testimony, the
United States Supreme Court has held that certain procedures must be followed to
protect the defendant’s Sixth Amendment right to a public trial. In order to close
all or portions of a public trial, the party seeking closure of the proceeding must (1)
“advance an overriding interest that is likely to be prejudiced,” (2) “the closure must
be no broader than necessary to protect that interest,” (3) “the trial court must
consider reasonable alternatives to closing the proceeding,” and (4) “[the trial court]
must make findings adequate to support the closure.” Waller, 467 U.S. at 48, 104 S.
Ct. at 2216. The interest and specific findings should be articulated so that a
reviewing court can make a determination about whether closure was proper.
Press-Enterprise Co. v. Super. Ct. of Cal., Riverside Cnty., 464 U.S. 501, 510, 104 S.
Ct. 819, 824, 78 L. Ed. 2d 629 (1984).
[¶21.] Our recent decision, Rapid City Journal v. Delaney, holding that a trial
court impermissibly closed a trial, is a civil case, but has some application in the
present case. 2011 S.D. 55, ¶¶ 29, 32, 804 N.W.2d at 399-400. Delaney concluded
that the trial court abused its discretion because it “failed to ‘articulate . . . findings
specific enough that a reviewing court could determine whether the closure order
was properly entered.’” Id. ¶ 22, 804 N.W.2d at 396. “[W]ithout specific findings,
meaningful review is illusive.” Id. ¶ 28, 804 N.W.2d at 399.
[¶22.] Although the United States Supreme Court has not addressed the
issue, some federal circuits have modified the Waller test, based on partial versus
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total closure 2 of the courtroom. “‘When a trial judge orders a partial, as opposed to
a total, closure of a court proceeding at the request of one party, a “substantial
reason” rather than Waller’s “overriding interest” will justify the closure’ because a
partial closure does not ‘implicate the same secrecy and fairness concerns that a
total closure does.’” United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994)
(quoting Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992)). See also United
States v. Petters, 663 F.3d 375, 382-83 (8th Cir. 2011); United States v. Sherlock, 962
F.2d 1349, 1356-58 (9th Cir. 1989); Nieto v. Sullivan, 879 F.2d 743, 749-54 (10th
Cir. 1989), cert. denied, 493 U.S. 957, 110 S. Ct. 373, 107 L. Ed. 2d 359 (1989);
Douglas v. Wainwright, 739 F.2d 531 (11th Cir. 1984) (per curiam), cert. denied, 469
U.S. 1208, 105 S. Ct. 1170, 84 L. Ed. 2d 321 (1985). Importantly, even though a
substantial reason, rather than an overriding interest, may justify the partial
closure of the courtroom, the rest of Waller’s requirements must be addressed. A
2. Partial closure versus total closure of a courtroom is described by the 11th
Circuit Court of Appeals in Douglas v. Wainwright:
The most important distinguishing factor is that Waller involved
a total closure, with only the parties, lawyers, witnesses, and
court personnel present, the press and public specifically having
been excluded, while Douglas entailed only a partial closure, as
the press and family members of the defendant, witness, and
decedent were all allowed to remain. Moreover, the closure in
Waller was for the entire seven days of the suppression hearing
although the playing of the disputed tapes lasted only two-and-
one-half hours, whereas in Douglas the partial closure was
limited to the one witness’ testimony. Douglas, therefore,
presented this court with a fact situation different and unique
from that faced by the Waller Court.
739 F.2d 531, 532 (11th Cir. 1984) (per curiam), cert. denied, 469 U.S. 1208,
105 S. Ct. 1170, 84 L. Ed. 2d 321 (1985).
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trial court must still (1) determine that the closure is “no broader than necessary,”
(2) “consider reasonable alternatives to closing the proceeding,” and (3) “it must
make findings adequate to support the closure.” Waller, 467 U.S. at 48, 104 S. Ct.
at 2216.
[¶23.] Again, although not addressed by the United States Supreme Court,
some federal courts have held that “specific findings by the [trial] court are not
necessary if we can glean sufficient support for a partial temporary closure from the
record.” Farmer, 32 F.3d at 371 (citing United States v. Lucas, 932 F.2d 1210, 1216-
17 (8th Cir. 1991), cert. denied, 502 U.S. 949, 112 S. Ct. 399, 116 L. Ed. 2d 348(1991)). In Farmer, the court held that even though there were not specific findings
on the record, the “victim’s age, the brutal nature of the offense and the victim’s
well-reasoned fear of [the defendant] was more than enough to justify the decision”
to partially close the courtroom. Id. at 371-72.
[¶24.] In this case, Rolfe argues that his Sixth Amendment rights were
violated because the trial court closed the courtroom to the general public during
A.F.’s testimony without addressing the factors required by Waller. Rolfe’s attorney
was notified the evening before A.F.’s testimony that the State would invoke SDCL
23A-24-6 to close the courtroom during A.F.’s testimony. 3 On the morning of A.F.’s
3. The North Dakota Supreme Court has stated that a motion to close a trial
must be made prior to the trial. See N.D. R. Crim. P. Rule 17.1. “The reason
is obvious-to avoid unfair surprise and to give the trial court the benefit of
the parties’ research and arguments.” State v. Klem, 438 N.W.2d 798, 800
(N.D. 1989). South Dakota’s equivalent rule, SDCL 23A-15-1, allows, but
does not require, a motion for closure to be brought prior to trial. Bringing a
motion to close certain testimony prior to trial would appear to be the better
practice.
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testimony, outside the presence of the jury, attorneys for Rolfe and the State made
brief arguments regarding closure of the trial. Judge Trimble made the following
oral ruling:
Well, as everybody here knows, in juvenile matters we have a
closed courtroom. Never been found to be unconstitutional when
juveniles are involved. Those same people are allowed in the
courtroom. Really nobody else. The outside general public are
not allowed to be involved in juvenile matters, 4 and since this is
a juvenile testifying, the Court will follow the statute if it’s
requested, which it is.
Judge Trimble’s ruling primarily relies on the language of SDCL 23A-24-6, and he
did not make specific findings as required by Waller and Delaney.
[¶25.] Even considering the cases that did not require specific findings
because they found the record sufficient, Judge Trimble’s ruling and the record do
not address all of the factors that Waller requires. In addition to a determination
that there was an overriding interest, or even a substantial reason for a partial
closure, Waller requires a court to (1) determine that the closure of the courtroom is
“no broader than necessary to protect that interest,” (2) “consider reasonable
alternatives to closing the proceeding,” and (3) “it must make findings adequate to
support the closure.” 467 U.S. at 48, 104 S. Ct. at 2216. Judge Trimble did not
make specific findings on whether there was an overriding interest or substantial
4. Judge Trimble references SDCL 26-7A-36, which provides that juvenile
proceedings are presumed closed to the general public, unless the court finds
compelling reasons to open the proceedings. In general, juvenile proceedings
are closed to protect the best interests of the child by providing anonymity
and confidentiality, which serves the rehabilitative goals of the juvenile
justice system. See In re M.C., 527 N.W.2d 290, 293 (S.D. 1995) (citing In re
J.D.C., 594 A.2d 70, 76 (D.C. 1991) and San Bernardino Cty. Dept. of Pub.
Soc. Servs. v. Super. Ct., 283 Cal. Rptr. 332, 339 (Cal. Ct. App. 1991)).
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reason to justify total or partial closure. He also did not make specific findings
about the breadth of the closure or the alternatives he considered in closing the
courtroom. Further, he did not address any of the factors supporting closure or
partial closure for child sexual abuse victims identified in Globe Newspaper Co.,
including the “victim’s age, psychological maturity and understanding, the nature of
the crime, the desires of the victim, and the interests of parents and relatives.” 457
U.S. at 608, 102 S. Ct. at 2621 (footnote omitted).
[¶26.] We must consider what relief should be ordered to remedy the
violation of Rolfe’s Sixth Amendment right to a public trial. As in Waller, “the
defendant should not be required to prove specific prejudice in order to obtain relief
for a violation of the public-trial guarantee.” 467 U.S. at 49, 104 S. Ct. at 2217.
But, the remedy should be appropriate to the violation and it does not require a new
trial in this case. Rolfe’s rights can be fully protected by a remand to the trial court
“with direction to hold an inquiry consistent with this opinion.” Goldberg v. U.S.,
425 U.S. 94, 111, 96 S. Ct. 1338, 1348, 47 L. Ed. 2d 603 (1976). The trial court
should supplement the record with specific findings and reasoning. If, after
addressing the Waller factors, the trial court finds that the closure or partial closure
was justified under Waller, it may enter a new final judgment of conviction. If the
trial court finds that the courtroom should not have been closed or partially closed
during A.F.’s testimony, the trial court may vacate the judgment of conviction and
grant Rolfe a new trial. Accordingly, we remand the case to the trial court to
supplement the record with specific facts and reasons for the closure of the
courtroom during A.F.’s testimony.
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[¶27.] Finally, Rolfe challenges the constitutionality of SDCL 23A-24-6
because the statute does not include a requirement that the Waller factors be
addressed on the record. The United States Supreme Court has previously held
that statutes requiring mandatory, total closure of a courtroom when a child victim
testifies about a sexual offense are unconstitutional. Globe Newspaper Co., 457 U.S.
at 607-08, 102 S. Ct. at 2620-21. The statute at issue here does not mandate total
closure—it allows trial courts the discretion to determine if partial or total closure is
appropriate when a child is testifying about a sexual offense. SDCL 23A-24-6. As
noted above, the right to a public trial is not absolute. Waller, 476 U.S. at 45, 104 S.
Ct. at 2215. This statute is not unconstitutional on its face, or as applied in this
case because it allows trial courts to weigh competing interests, make specific
findings to follow Waller, and to protect the integrity of the process with the
continual presence of news media representatives.
[¶28.] 2. Whether the State had legal authority to issue subpoenas
to Midcontinent Communications.
[¶29.] We first address the issue of standing to challenge the subpoenas. In
general, standing is established by being a “‘real party in interest’” and “‘determined
by the status of the party seeking relief.’” Arnoldy v. Mahoney, 2010 S.D. 89, ¶¶ 18-
19, 791 N.W.2d 645, 653 (quoting SDCL 15-6-17(a) and D.G. v. D.M., 1996 S.D. 144,
¶ 22, 557 N.W.2d 235, 239). “‘The real party in interest requirement for standing is
satisfied if the litigant can show that he personally has suffered some actual or
threatened injury as a result of the putatively illegal conduct of the [other party].’”
Id. ¶ 19, 791 N.W.2d at 653 (quoting D.G., 1996 S.D. 144, ¶ 22, 557 N.W.2d at 239).
In order to assert the violation of a person’s constitutional right to be free from
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unreasonable search and seizure, as Rolfe does here, the person asserting the right
must have standing. See State v. Westerfield, 1997 S.D. 100, ¶ 9, 567 N.W.2d 863,
866 (citing Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633(1980)). See also United States v. Muhammad, 58 F.3d 353 (8th Cir. 1995). If there
is a legitimate expectation of privacy, then the person has standing to challenge a
search. Westerfield, 1997 S.D. 100, ¶ 9, 567 N.W.2d at 866 (citing Rawlings, 448
U.S. at 104, 100 S. Ct. at 2561). We must now determine if Rolfe had a legitimate
expectation of privacy in the information that the State acquired by issuing a
subpoena to Midcontinent.
[¶30.] The United States Supreme Court held that “the Fourth Amendment
does not prohibit . . . obtaining . . . information revealed to a third party and
conveyed by [the third party] to Government authorities.” United States v. Miller,
425 U.S. 435, 443, 96 S. Ct. 1619, 1624, 48 L. Ed. 2d 71 (1976) (citations omitted).
The Court further held that because there were no Fourth Amendment rights at
issue, “this case is governed by the general rule that the issuance of a subpoena to a
third party to obtain the records of that party does not violate the rights of a
defendant, even if a criminal prosecution is contemplated” when the subpoena is
issued. Id. at 444, 96 S. Ct. at 1624 (citing Cal. Bankers Ass’n. v. Shultz, 416 U.S.
21, 53, 94 S. Ct. 1494, 1513, 39 L. Ed. 2d 812 (1974) and Donaldson v. United
States, 400 U.S. 517, 537, 91 S. Ct. 534, 545, 27 L. Ed. 2d 580 (1971) (Douglas, J.,
concurring)). Specifically, there is no violation of a defendant’s Fourth Amendment
rights when a third party internet provider receives a subpoena and discloses the
defendant’s subscriber information. “Every federal court to address this issue has
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held that subscriber information provided to an internet provider is not protected by
the Fourth Amendment’s privacy expectation.” United States v. Perrine, 518 F.3d
1196, 1204 (10th Cir. 2008) (citing Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001);
United States v. Hambrick, 225 F.3d 656 (4th Cir. 2000) (unpublished), affirming
United States v. Hambrick, 55 F. Supp. 2d 504, 508–09 (W.D. Va. 1999); United
States v. D’Andrea, 497 F. Supp. 2d 117, 120 (D. Mass. 2007); Freedman v. Am.
Online, Inc., 412 F. Supp. 2d 174, 181 (D. Conn. 2005); United States v. Sherr, 400
F. Supp. 2d 843, 848 (D. Md. 2005); United States v. Cox, 190 F. Supp. 2d 330, 332
(N.D.N.Y. 2002); United States v. Kennedy, 81 F. Supp. 2d 1103, 1110 (D. Kan.
2000); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008); United States v.
Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004)). In addition, a number of federal courts
have “rejected the argument that an individual has a reasonable expectation of
privacy in his or her personal computer when file-sharing software, such as
LimeWire, is installed.” United States v. Stults, 575 F.3d 834, 842 (8th Cir. 2009)
(citations omitted).
[¶31.] Here, Rolfe’s email address and other personal information were
obtained from Midcontinent via the subpoenas issued by the State. Rolfe provided
his information to Midcontinent and he has no legitimate expectation of privacy in
that information. Rolfe had no legitimate privacy interest, as required by
Westerfield, and thus, has no standing to challenge the subpoenas issued by the
State to Midcontinent.
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CONCLUSION
[¶32.] The trial court failed to address all of the Waller factors and make
specific findings regarding the closure of the courtroom. We remand to the trial
court to make specific findings based on Waller, Farmer, and Globe Newspaper Co.’s
standards for closure. However, the trial court correctly found that Rolfe had no
Fourth Amendment expectation of privacy in his IP address subscriber information
because Rolfe made the information available to Midcontinent.
[¶33.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
WILBUR, Justices, concur.
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