     Case: 17-30820       Document: 00514537760         Page: 1     Date Filed: 07/02/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                     No. 17-30820                               July 2, 2018
                                   Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JUSTIN LANDRY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:16-CR-80-1


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Justin Landry appeals his conditional guilty-plea conviction for
distributing and possessing child pornography, in violation of 18 U.S.C. §§
2252A(a)(2)(A) & (a)(5)(B), claiming the district court erred by denying his
motion to suppress evidence of his offenses.                 According to Landry, the
Government was required to prove he did not have a reasonable expectation of
privacy in the location of digital images accessed, without a warrant, by


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
    Case: 17-30820     Document: 00514537760     Page: 2   Date Filed: 07/02/2018


                                  No. 17-30820

investigators on his home computer. In that regard, he alleges investigators
accessed private files that were not made available in the shared folder of his
peer-to-peer sharing network.
      The Fourth Amendment applies only if defendant had a “legitimate
expectation of privacy” in the area searched. Byrd v. United States, 138 S. Ct.
1518, 1526 (2018).    Accordingly, Landry must have had both a subjective
expectation of privacy and an objectively reasonable one. United States v.
Cardoza-Hinojosa, 140 F.3d 610, 614 (5th Cir. 1998). Whether an expectation
of privacy was reasonable is reviewed de novo; findings of underlying facts, for
clear error. Id. at 613.
      Contrary to Landry’s assertion, he was required to show by a
preponderance of the evidence that he had a reasonable expectation of privacy
in the location of the files accessed by investigators. United States v. Iraheta,
764 F.3d 455, 461 (5th Cir. 2014) (“The proponent of a motion to suppress has
the burden of establishing that his own Fourth Amendment rights were
violated” (citation omitted)). To the extent he relies on caselaw requiring the
Government to prove an exception to the warrant requirement, that reliance
is misplaced. Only after it is determined that defendant had a reasonable
expectation of privacy implicating the Fourth Amendment do we consider
whether such an exception applied. E.g., id. at 462–63 (considering first, the
availability of Fourth Amendment claim, then whether the consent exception
applied).
      There is no reasonable expectation of privacy with respect to IP
addresses, or images and information made publicly available in a shared
folder on a peer-to-peer network. United States v. Weast, 811 F.3d 743, 747–
48 (5th Cir. 2016).    Although Landry alleged that investigators accessed
private files that were not in his shared folder, he did not offer any evidence to



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                                No. 17-30820

support that claim. Moreover, the Government’s expert witness testified that
the software used by investigators in accessing the images was incapable of
accessing files not made available for sharing. Accordingly, the district court
did not err in concluding that Landry failed to establish a Fourth Amendment
violation. E.g., Iraheta, 764 F.3d at 461; Cardoza-Hinojosa, 140 F.3d at 613–
14.
       AFFIRMED.




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