State v. Bergeson

2013 UT App 257_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
WAYNE JAY BERGESON,
Defendant and Appellant.
Memorandum Decision
No. 20120193‐CA
Filed October 24, 2013
Third District Court, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 071901042
Richard G. Uday, Attorney for Appellant
John E. Swallow and Marian Decker, Attorneys for
Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGES JAMES Z. DAVIS and STEPHEN L. ROTH
concurred.1
BENCH, Senior Judge:
¶1 Defendant Wayne Jay Bergeson appeals from his convictions
of multiple counts of sexual exploitation of a minor and possession
of a dangerous weapon by a restricted person. He argues that the
district court erred by denying his Request to Amend Motion to
Suppress Evidence and by denying his motion to suppress. We
affirm.
1
The Honorable Russell W. Bench, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11‐201(6).
State v. Bergeson
¶2 This matter was before this court on a prior appeal wherein
Defendant argued that the district court erred in refusing to
consider his motion to suppress evidence. State v. Bergeson, 2010 UT
App 281, ¶ 1, 241 P.3d 777. This court reversed and remanded
the case for consideration of the suppression motion. Id. ¶ 9. On
remand, with new counsel, Defendant filed a motion to amend the
previously filed suppression motion to include three additional
issues.2 The district court denied Defendant’s motion to amend
based on its determination that this court’s directions on remand
required the district court to consider only the merits of the
previously filed motion to suppress.
¶3 Thereafter, the district court held an evidentiary hearing on
Defendant’s original suppression motion, which motion raised two
issues: (1) whether Detective Mark Buhman’s use of specialized
software developed by and available only to law enforcement
personnel constituted an illegal search, and (2) whether the
affidavit in support of the search warrant was misleading because
it did not mention the use of the specialized software. At the
suppression hearing, Defendant sought to introduce the search
warrant and the affidavit in support of the search warrant. The
court denied the admission of the documents on the ground that
they were not attached to the original motion to suppress. The State
called Detective Buhman to testify about the specialized software
at issue. He testified that the software “only organized publically
2
The additional issues are as follows: (1) whether the
administrative subpoena used to get Defendant’s internet proto‐
col (IP) address was in fact signed by the person whose signature
it bears; (2) whether the administrative subpoena was “pub‐
lished” as required by federal law, and (3) whether the involve‐
ment in this matter of the federal Department of Homeland
Security, in executing the administrative subpoena on behalf of
state law enforcement officials, violated the mandate of federal
law.
20120193‐CA 2 2013 UT App 257State v. Bergeson
available information,” making it “faster and smoother” for him
“to shuffle through all those IP addresses.”
¶4 After arguments, the district court determined that
Defendant’s second issue pertaining to the allegedly misleading
affidavit was not preserved because his former counsel had failed
to introduce into evidence a copy of the search warrant and
accompanying affidavit. The court then addressed the merits of
Defendant’s first issue and found that Detective Buhman’s use of
the software did not constitute a search. Specifically, the court
ruled as follows:
The Court finds that [the] defense has merely made
a broad allegation that the identification of the IP
address constitutes a search. Defense counsel has not
made any citation to case law to support the
proposition that there is an expectation of privacy in
an IP address. The Court finds that using the law
enforcement search tools is analogous to looking up
a license plate using Division of Motor Vehicles
databases. The Court finds that Peer to Peer file
sharing is open to the public and parties who use it
do so knowing that anyone else who is using the
Gnutella network and the same file sharing program
can access IP address information from them
regarding their shared files. In addition, anyone
using that file sharing program can acquire
information about SHA‐1 values and file size. In this
case, law enforcement made a “direct connect” with
[Defendant’s] computer and was able to browse and
view [Defendant’s] shared folder to find suspected
child pornography files. Law enforcement agents
then used the unique SHA‐1 values associated with
those images to confirm that the images were child
pornography. The Court finds that [Defendant]
opened his computer, his IP address and his files to
the Gnutella network and there is no Fourth
Amendment violation.
20120193‐CA 3 2013 UT App 257State v. Bergeson
For these reasons, the district court denied Defendant’s motion to
suppress.
I. Motion To Suppress and Motion To Supplement the Record
¶5 On appeal, Defendant first asserts that the district court
erred in denying his motion to supplement the record with a copy
of the search warrant and accompanying affidavit. Specifically,
Defendant argues that the district court misconstrued this court’s
directions on remand as requiring the district court to consider
only the evidence in the record at the time of the previous filing.
The supplemental evidence Defendant sought to include below
pertains to Defendant’s second issue, i.e., whether the affidavit was
misleading because it did not mention the specialized software.
Defendant fails, however, to challenge the controlling issue.
¶6 The district court determined that Detective Buhman’s use
of the specialized software did not constitute a search. Thus, it
follows that if the detective’s use of the software was not an illegal
search, any failure to mention its use in the affidavit was not
prejudicially misleading. Because Defendant does not challenge the
district court’s ruling that the software use did not constitute a
search—which controls the second issue about the sufficiency of
the affidavit—we decline to reverse the court’s suppression ruling.
Cf. Salt Lake Cnty. v. Butler, Crockett & Walsh Dev. Corp., 2013 UT
App 30, ¶ 28, 297 P.3d 38 (“This court will not reverse a ruling of
the trial court that rests on independent alternative grounds where
the appellant challenges only one of those grounds.”).
II. Motion to Amend the Suppression Motion
¶7 Defendant next argues that the district court erred in
denying his post‐remand motion to amend his suppression motion.
Defendant asserts that the district court misconstrued this court’s
remand directions by erroneously reasoning that they required the
district court to consider only the motion that was actually before
20120193‐CA 4 2013 UT App 257State v. Bergeson
the court at the time of Defendant’s trial. The district court denied
Defendant’s motion to amend as follows:
The Utah Court of Appeals in State of Utah v. Wayne
J. Bergeson, 2010 UT App 281, instructed this Court to
“consider the merits of [Defendant’s] motion [to
suppress].” Defendant’s Motion had been filed
eleven days prior to trial. This Court concludes that
the Court of Appeals has required this Court to
consider the merits of the previously filed Motion.
Accordingly, this Court denies defendant’s Motion to
Amend the Motion to Suppress.
(Second alteration in original.) We agree with Defendant that the
district court erred when it denied his motion to amend solely on
the basis of our prior remand language.
¶8 The prior remand directions did not include any language
that limited the district court in this manner. Rather, this court
remanded the matter to the district court “to consider the merits of
[Defendant’s suppression] motion” but stated that “[t]he procedure
for considering [Defendant’s] motion is within the sound discretion
of the district court.” State v. Bergeson, 2010 UT App 281, ¶ 9, 241
P.3d 777. Thus, we expressly granted the district court the
discretion to consider procedural matters such as whether to allow
Defendant to amend his motion. Cf. Utah R. Crim. P. 4(d) (treating
the amendment of an information or indictment as a matter of
criminal procedure). While the district court’s caution seems to
have been motivated by a desire to remain within the bounds of
our mandate, the language of this court’s directions on remand was
expansive enough to allow consideration of Defendant’s motion to
amend.
¶9 Although we conclude that the district court interpreted the
remand language too narrowly, Defendant is entitled to relief on
appeal only if he can demonstrate prejudice resulting from the
district court’s error. “[W]e will not reverse [the] trial court for
20120193‐CA 5 2013 UT App 257State v. Bergeson
committing harmless error,” State v. Vargas, 2001 UT 5, ¶ 48, 20
P.3d 271 (second alteration in original) (citation and internal
quotation marks omitted), and the burden is on Defendant to
“show that the court’s ruling led to a likelihood of prejudice,” see
id. (citation and internal quotation marks omitted). Here,
Defendant has made no showing whatsoever that the issues he
sought to raise in his motion to amend—all of which pertain to the
State’s use of an administrative subpoena to obtain Defendant’s
subscriber information from his internet provider—had any
likelihood of being deemed meritorious.3 Because Defendant has
failed to make such a showing, we conclude that the district court’s
error in denying his motion to amend was harmless.
III. Ineffective Assistance of Counsel Claim
¶10 Defendant also raises an ineffective assistance of counsel
claim. Defendant asserts that his trial counsel’s performance was
deficient when counsel repeatedly delayed the filing of the
suppression motion, failed to attach the requisite documents, and
failed to raise available issues. Even if counsel’s actions were
deficient in some way, Defendant must still show that counsel’s
performance prejudiced his defense. See Strickland v. Washington,
466 U.S. 668, 687 (1984). To prove that counsel’s deficient
performance prejudiced Defendant, he “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” See id. at
3
After oral argument, the State provided supplemental
authority suggesting that the issues Defendant sought to raise in
his motion to amend would necessarily have been denied be‐
cause there is no reasonable expectation of privacy in internet
subscriber information. See United States v. Perrine, 518 F.3d 1196,
1204–05 (10th Cir. 2008) (“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.”).
20120193‐CA 6 2013 UT App 257State v. Bergeson
694. In light of the district court’s ruling that the detective’s use of
the specialized software did not constitute a search, Defendant
makes no effort to demonstrate that but for counsel’s failure to
more timely file the motion to suppress with supporting
documents, the court would have suppressed the evidence. And,
as discussed above, Defendant has failed to make a showing that
the issues ultimately raised in his post‐remand motion to amend
had any likelihood of prevailing. See supra ¶ 9. Without showing
prejudice, Defendant cannot sustain his claim for ineffective
assistance of counsel.
¶11 We conclude that Defendant has failed to challenge the
district court’s conclusion that the use of software to identify his IP
address did not constitute a search. Defendant has also failed to
make any showing that the issues raised in his motion to amend his
suppression motion possessed merit. For these reasons, Defendant
has failed to demonstrate error in the denial of his motion to
suppress, harmful error in the denial of his motion to amend, or
ineffective assistance by his trial counsel. Affirmed.
20120193‐CA 7 2013 UT App 257