                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Beales and Chafin
PUBLISHED


            Argued at Richmond, Virginia


            MARVIN T. RIDEOUT, III
                                                                                OPINION BY
            v.     Record No. 0513-13-2                                  JUDGE RANDOLPH A. BEALES
                                                                             FEBRUARY 4, 2014
            COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF NEW KENT COUNTY
                                           Thomas B. Hoover, Judge

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

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


                   Pursuant to a conditional guilty plea agreement, Marvin T. Rideout, III (appellant)

            entered pleas under North Carolina v. Alford, 400 U.S. 25 (1970) (“Alford pleas”) to twenty

            counts of possession of child pornography in violation of Code § 18.2-374.1:1(A).1 Appellant

            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.



                   1
                     Appellant had been charged with twenty additional counts of possession of child
            pornography, one count of distribution of child pornography, and two counts of distribution of
            child pornography (second or subsequent violation). As part of the conditional plea agreement,
            the Commonwealth disposed of those remaining charges by nolle prosequi.
                                        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 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




       2
         Shareaza is a peer-to-peer sharing program that allows users to trade electronic files,
including music, photographic, and video files. Shareaza LE is the law enforcement version of
Shareaza which, according to Sergeant Anders, differs from the regular Shareaza in that it does
not permit law enforcement to share files with other users.

                                               -2-
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 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, 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


       3
         Sergeant Anders prepared an affidavit in support of the application for a search warrant
in which he provided the issuing magistrate with an extensive description of peer-to-peer (P2P)
software and how computer files are shared and accessed using that software. Sergeant Anders
explained, “When the P2P software is installed on a computer, the user is directed to specify a
‘shared’ folder. All files placed in that user’s ‘shared’ folder are available to anyone on the
world-wide network for download.” Sergeant Anders also indicated that the law enforcement
version of Shareaza “uses only publicly available P2P options which follow the programming
language (protocols) set forth in the public P2P protocol standards.” Accordingly, Sergeant
Anders stated in the affidavit, “No functionality outside of the publicly available protocols is
added, thus eliminating any potential private intrusion on the suspect IP’s computer or files.”

                                                 -3-
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 files.4 Thus, appellant claimed at the suppression

hearing that he had been using the Shareaza software under the mistaken impression that he had

set up Shareaza in a way that would prevent other users from gaining access to any files on his

computer.

       At the time of the suppression hearing, appellant’s counsel and the Commonwealth

stipulated to certain facts, including: (1) that any efforts appellant made to block access to his

computer were ineffective when Sergeant Anders was able to obtain the three child pornography

files from appellant’s computer, and (2) that law enforcement “did not ‘hack’ or otherwise use

nefarious means” to gain access to appellant’s computer, but did so only through a modified

version of Shareaza (that was designed to prevent the police from sharing child pornography

with others). Appellant argued that he nonetheless had a reasonable expectation of privacy

relating to the contents of his personal computer, including the files depicting child pornography,

because he contended that he had applied settings to Shareaza that he thought would prevent

others from accessing those files on his own computer. In overruling appellant’s motion to

suppress, the trial court stated as follows:

               The Court makes the following findings: . . . The Court finds that
               the defendant had no reasonable expectation of privacy when he
               installed a software program on his computer which has the
               primary purpose to share information among other computer users.
               Number two, that the police did not act in an improper manner to
               obtain information from the defendant’s computer. And therefore
               the motion to suppress is denied.



       4
         Sergeant Anders testified that it was also possible to add folders into the library through
a “sharing manager” window. That window indicates clearly that any folders added to it will be
shared.

                                                -4-
Appellant thereafter entered Alford pleas to twenty charges of possessing child pornography, and

reserved the right to appeal the trial court’s ruling on appellant’s motion to suppress.

                                           II. ANALYSIS

       In reviewing a trial court’s denial of a motion to suppress, “[t]he burden is on the

defendant to show that the denial of his suppression motion, when the evidence is considered in

the light most favorable to the Commonwealth, was reversible error.” McCain v.

Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001) (citing Fore v. Commonwealth,

220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980); Weathers v. Commonwealth, 32 Va. App. 652,

658, 529 S.E.2d 847, 850 (2000)). On appeal, we review “de novo the trial court’s application of

defined legal standards such as whether a defendant had a reasonable expectation of privacy

sufficient to permit him to raise a Fourth Amendment challenge to a search.” Sharpe v.

Commonwealth, 44 Va. App. 448, 454, 605 S.E.2d 346, 349 (2004) (citing United States v.

Gordon, 168 F.3d 1222, 1225 (10th Cir. 1999)). Furthermore, we are “bound by the trial court’s

findings of historical fact unless ‘plainly wrong’ or without evidence to support them and we

give due weight to the inferences drawn from those facts by resident judges and local law

enforcement officers.” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261

(1997) (en banc) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).

             A. WHETHER APPELLANT ESTABLISHED AN EXPECTATION OF PRIVACY

       The Fourth Amendment of the United States Constitution states,

               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
               shall not be violated, and no [w]arrants shall issue, but upon
               probable cause, supported by oath of affirmation, and particularly
               describing the place to be searched, and the persons or things to be
               seized.

“Since Katz v. United States, 389 U.S. 347 (1967), the touchstone of [Fourth] Amendment

analysis has been the question whether a person has a ‘constitutionally protected reasonable
                                                -5-
expectation of privacy.’” Oliver v. United States, 466 U.S. 170, 177 (1984) (quoting Katz, 389

U.S. at 360 (Harlan, J., concurring)). Thus,

               in order to claim the protection of the Fourth Amendment, a
               defendant must demonstrate that he personally has an expectation
               of privacy in the place searched, and that his expectation is
               reasonable; i.e., one that has “a source outside of the Fourth
               Amendment, either by reference to concepts of real or personal
               property law or to understandings that are recognized and
               permitted by society.”

Minnesota v. Carter, 525 U.S. 83, 88 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143-44

n.12 (1978)); see also Smith v. Maryland, 442 U.S. 735, 740-41 (1979) (adopting Justice

Harlan’s two-prong reasonable expectation of privacy test from his concurrence in Katz, 389

U.S. 347, which first looks at the person’s subjective expectation of privacy and then considers

whether that view is objectively reasonable).5 Appellant contends that, given his claim that he

disabled the sharing features of Shareaza, he then retained a reasonable expectation of privacy in

the contents of his computer and in the files located on his computer that could otherwise be

shared via Shareaza.

       In Smith, 442 U.S. at 740, the United States Supreme Court explained:

               Consistently with Katz, this Court uniformly has held that the
               application of the Fourth Amendment depends on whether the
               person invoking its protection can claim a “justifiable,” a
               “reasonable,” or a “legitimate expectation of privacy” that has been
               invaded by government action. [(Citations omitted).] This
               inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence,
               normally embraces two discrete questions. The first is whether the
               individual, by his conduct, has “exhibited an actual (subjective)
               expectation of privacy,” 389 U.S., at 361 -- whether, in the words

       5
          While recent United States Supreme Court decisions such as United States v. Jones, 132
S. Ct. 945 (2012), have considered Fourth Amendment principles from the perspective of
whether a trespass to property has occurred, the Supreme Court has stated that the Katz
reasonable expectation of privacy test has been added to this Fourth Amendment trespass test.
According to the Supreme Court, “Situations involving merely the transmission of electronic
signals without trespass would remain subject to Katz analysis.” Jones, 132 S. Ct. at 953. Thus,
it is appropriate to apply the Katz test here.

                                               -6-
               of the Katz majority, the individual has shown that “he seeks to
               preserve [something] as private.” Id., at 351. The second question
               is whether the individual’s subjective expectation of privacy is
               “one that society is prepared to recognize as ‘reasonable,’” id. at
               361-- whether, in the words of the Katz majority, the individual’s
               expectation, viewed objectively, is “justifiable” under the
               circumstances. Id. at 353. [(Foonote and citations omitted).]

Thus, an individual can claim Fourth Amendment protection under this test only if (1) the

individual has a subjective expectation of privacy and (2) the individual has an objectively

reasonable expectation of privacy that is justifiable under the circumstances.

       Even though appellant testified that he was under the impression that he had disabled the

sharing feature on Shareaza, the record establishes that appellant actually said to Detective

McLaughlin, “I have been waiting for y’all to come.” Viewing the evidence in the light most

favorable to the Commonwealth, as we must since it prevailed below, this statement in itself

strongly suggests that appellant knew or at least suspected that files from his computer were able

to be shared. Indeed, a rational trier of fact assessing the testimony at the suppression hearing

could infer from this statement that appellant was aware that he was not the only individual with

access to those files due to his installation of the Shareaza program. Certainly, the trial court was

not obligated to believe appellant’s self-serving testimony that he believed that he had

safeguarded his files containing child pornography from being shared on Shareaza – which, of

course, is peer-to-peer software actually designed for the sharing of files over the internet. See

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).

       Here, the trial court expressly found that appellant lacked a reasonable expectation of

privacy “when he installed a software program on his computer which has the primary purpose

to share information among other computer users.” We, like the trial court, find several federal

appellate court decisions to be applicable and instructive on this point. “‘Although as a general

matter an individual has an objectively reasonable expectation of privacy in his personal

                                                -7-
computer, we fail to see how this expectation can survive [appellant’s] decision to install and use

file-sharing software, thereby opening his computer to anyone else with the same freely available

program.’” United States. v. Stults, 575 F.3d 834, 843 (8th Cir. 2009) (quoting United States v.

Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008)). Thus, by simply installing file-sharing software

onto his computer, appellant has “‘failed to demonstrate an expectation of privacy that society is

prepared to accept as reasonable.’” Id. Appellant’s installation of Shareaza presents a situation

that is analogous to a person who hands over the keys to his house to a number of friends. That

person should not be surprised when some of those friends simply come inside his house without

knocking on the door. Id.

       Appellant contends, however, that his claimed attempt to apply settings to Shareaza to

prevent others from accessing his files depicting child pornography creates an objectively

reasonable expectation of privacy in those computer files. However, the decision in United

States v. Borowy, 595 F.3d 1045, 1047 (9th Cir. 2010), is highly persuasive on the facts here. In

Borowy, the defendant claimed that he had attempted to engage the feature in his version of

peer-to-peer file-sharing software that would prevent others from downloading and viewing his

files. However, that feature was not actually engaged, and an FBI agent was able to access

incriminating files from the defendant’s computer. Id. Concluding that the defendant’s

“subjective intention not to share his files did not create an objectively reasonable expectation of

privacy in the face of such widespread public access,” id. at 1048, the appellate court affirmed

the lower court’s decision to deny the defendant’s motion to suppress. Id. at 1049.

       Applying the logic in Borowy to this case, therefore, even assuming without deciding that

appellant actually had the subjective intention to prevent others from accessing his files,

appellant still did not have an objectively reasonable expectation of privacy in those files, given

his decision to install the Shareaza file-sharing program on his computer. Indeed, appellant

                                                -8-
installed software on his computer that is specifically designed to share files from one’s own

computer with other users of that software. By installing the Shareaza peer-to-peer file sharing

software on his computer, appellant assumed the risk that other users of Shareaza – including the

police – could readily access those incriminating files that could be shared through Shareaza.

                                   B. THE EXCLUSIONARY RULE

       During oral argument before this Court, appellant’s counsel argued that suppression of

the evidence would still be appropriate because it was a police officer who accessed the child

pornography files shared from appellant’s computer. However, this case is not one where the

suppression of evidence would even serve any of the rationales underlying the purpose of the

exclusionary rule. The United States Supreme Court has explained:

               First, the exclusionary rule is not an individual right and applies
               only where it “‘result[s] in appreciable deterrence.’” We have
               repeatedly rejected the argument that exclusion is a necessary
               consequence of a Fourth Amendment violation. Instead we have
               focused on the efficacy of the rule in deterring Fourth Amendment
               violations in the future.

               In addition, the benefits of deterrence must outweigh the costs.
               “We have never suggested that the exclusionary rule must apply in
               every circumstance in which it might provide marginal
               deterrence.” “[T]o the extent that application of the exclusionary
               rule could provide some incremental deterrent, that possible
               benefit must be weighed against [its] substantial social costs.” The
               principal cost of applying the rule is, of course, letting guilty and
               possibly dangerous defendants go free—something that “offends
               basic concepts of the criminal justice system.” “[T]he rule’s costly
               toll upon truth-seeking and law enforcement objectives presents a
               high obstacle for those urging [its] application.”

Herring v. United States, 555 U.S. 135, 141 (2009) (citations omitted); see Hudson v. Michigan,

547 U.S. 586, 591 (2006); Washington v. Commonwealth, 60 Va. App. 427, 435-36, 728 S.E.2d

521, 525-26 (2012). See also Davis v. United States, 131 S. Ct. 2419, 2426-28 (2011).

       Furthermore, binding case law plainly states, “‘The deterrent purpose of the exclusionary

rule necessarily assumes that the police have engaged in willful, or at the very least negligent,

                                                -9-
conduct which has deprived the defendant of some right.’” Knight v. Commonwealth, 61

Va. App. 297, 311, 734 S.E.2d 716, 723 (2012) (quoting Michigan v. Tucker, 417 U.S. 433, 447

(1974)); see Herring, 555 U.S. at 144 (“As laid out in our cases, the exclusionary rule serves to

deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or

systemic negligence.”).

       In this case, the police clearly did not engage in any conduct that ought to be deterred

through the application of the exclusionary rule. Indeed, as the trial court here correctly found,

“the police did not act in an improper manner to obtain information from the defendant’s

computer.” The parties even stipulated that the police “did not ‘hack’ or otherwise use

nefarious means to gain access to the defendant’s computer, but did so through a

modified version of the software that the defendant had downloaded and was using.” Sergeant

Anders specifically stated in his affidavit in support of a search warrant of appellant’s residence

that the law enforcement version of Shareaza that he had used in his investigation had been

modified in a manner so that it “eliminate[ed] any potential private intrusion on the suspect IP’s

computer or files.” (Emphasis added). Therefore, in other words, the record establishes that,

when Sergeant Anders accessed and viewed the child pornography files on appellant’s computer,

he did not do so by taking any action that a member of the public could not also have taken in

accessing and viewing those files. In this respect, the law enforcement version of Shareaza that

Sergeant Anders used was like the version of Shareaza that any member of the public could use,

in that it could access any files that another Shareaza user had made publicly available –

intentionally or inadvertently – for sharing

       Simply put, by downloading Shareaza, a program designed to facilitate the sharing of

files, appellant opened his shared files to any other person – law enforcement or otherwise.

Sergeant Anders viewed appellant’s incriminating files (like anyone else using Shareaza could

                                               - 10 -
do), and then the police properly obtained and executed a search warrant at appellant’s home,

where more incriminating evidence was discovered. On this record, contrary to appellant’s

argument on appeal, appellant certainly was not entitled to the suppression of evidence under the

exclusionary rule.

                                         III. CONCLUSION

       The record establishes that appellant installed file-sharing software onto his computer –

the very purpose of which is to share files with other users of the same software. Even though

appellant claimed to be under the impression that he had applied settings that would prevent

others from accessing his computer files, law enforcement – through a means available to any

member of the public – was nonetheless able to access appellant’s files depicting child

pornography. In addition, the record establishes that appellant was not surprised when police

officers arrived at his residence, remarking that he had even “been waiting for y’all [the police]

to come.” Viewing the evidence in the light most favorable to the Commonwealth, as we must

since it was the prevailing party below, the circumstances here do not establish a reasonable

expectation of privacy by appellant in the contents of the incriminating files that appellant

actually shared via the Shareaza software – and certainly do not require exclusion of the child

pornography seized from appellant’s computer. The trial court did not err in denying appellant’s

motion to suppress that evidence, and, accordingly, we affirm appellant’s twenty convictions for

possession of child pornography.

                                                                                          Affirmed.




                                               - 11 -
