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Rideout v. Commonwealth

Court of Appeals of Virginia, Richmond

February 4, 2014

Marvin T. RIDEOUT, III
v.
COMMONWEALTH of Virginia.

Page 596

J. Todd DuVal (McDonald, Sutton & DuVal, PLC, Richmond, on brief), for appellant.

John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: PETTY, BEALES and CHAFIN, JJ.

BEALES, Judge.

[62 Va.App. 782] Pursuant to a conditional guilty plea agreement, Marvin T. Rideout, III (appellant) entered pleas under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (" Alford pleas" ) to twenty counts of possession of child pornography in violation of Code § 18.2-374.1:1(A). [1] Appellant

Page 597

argues that the trial court erred in denying his motion to suppress evidence supporting these convictions because appellant claims that the police breached his reasonable expectation of privacy in the contents of his personal computer— files from which appellant had displayed to the public through peer-to-peer, file-sharing software. We hold that the trial court did not err when it denied appellant's motion to suppress, and, accordingly, for the following reasons, we affirm appellant's twenty convictions for possession of child pornography.

I. BACKGROUND

We consider the evidence on appeal " ‘ in the light most favorable to the Commonwealth as we must since it was the prevailing party’ " in the trial court. Beasley v. Commonwealth, 60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). In this case, Sergeant Stephen Anders of the Bedford County Sheriff's Office (assigned to the Southern Virginia Internet Crimes Against Children Task Force) conducted an authorized, remote undercover investigation into the online sexual exploitation of children on the internet. On August 29, 2011, a certain internet protocol (IP) address of 174.66.3.142 caught his attention. Sergeant Anders suspected that this IP address was involved in the collection and sharing of child pornography. On September 1, 2011, through a [62 Va.App. 783] program called " Shareaza LE," [2] Sergeant Anders was able to connect to, and begin downloading, a known file of child pornography from IP address of 174.66.3.142. On September 2, 2011, and on September 4, 2011, Sergeant Anders again was able to connect to the IP address of 174.66.3.142 and begin to download child pornography files.

Sergeant Anders also obtained and submitted an administrative subpoena to Cox Communications, the owner of the IP address at issue. In response to that administrative subpoena, Cox Communications informed Sergeant Anders that the IP address had been issued to Marvin Rideout of New Kent, Virginia.

On December 15, 2011, after verifying that " Marvin Rideout" was, in fact, the suspect detected by Special Agent Anders, Detective J. McLaughlin, III, of the New Kent County Sheriff's Office, obtained a search warrant for appellant's residence.[3] Detective McLaughlin executed the search warrant at appellant's residence on the following morning. When Detective McLaughlin explained to appellant why he was there, appellant put his head down and said, " I have been waiting for y'all to come." Sergeant Anders then analyzed [62 Va.App. 784] various electronic items seized from appellant's home, finding many images and movies depicting child pornography.

Appellant filed a pre-trial motion to suppress the three files of child pornography giving rise to the search warrant (i.e., the files that Sergeant Anders was able to access on September 1, 2, and 4 of 2011), as well as all of the files found as a result of execution of the search warrant. At the suppression hearing, appellant testified that he had downloaded a software program called " Shareaza" somewhere between two and three years prior to the suppression hearing. Shareaza is,

Page 598

according to appellant's expert Eric Myer, designed to facilitate the sharing of files— " it wants to share." As Sergeant Anders also explained, with respect to peer-to-peer sharing programs like Shareaza, " the whole purpose is for everybody to share." Appellant had previously used a peer-to-peer file sharing program called Limewire for several years prior to downloading Shareaza, so he had several years of experience with peer-to-peer software. Appellant explained that, when he initially downloaded the Shareaza software, he had applied settings that he thought would prevent others from being able to access files on his computer. According to the theory advanced by appellant at the suppression hearing, despite selecting settings on Shareaza to prevent sharing, however, when appellant changed the location of the downloads from the default destination, he inadvertently activated the sharing of that folder without receiving any notification that he was actually sharing ...


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