UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 99-4793

SCOTT MARSHALL HAMBRICK,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-98-42-C)

Argued: May 4, 2000

Decided: August 3, 2000

Before MURNAGHAN and TRAXLER, Circuit Judges, and
Jerome B. FRIEDMAN, United States District Judge for the
Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Deborah C. Wyatt, WYATT & CARTER, Charlottes-
ville, Virginia, for Appellant. Anne Marie Farrar, Trial Attorney,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Bruce R. Williamson, WILLIAM-
SON & TOSCANO, Charlottesville, Virginia, for Appellant. Anthony
P. Giorno, OFFICE OF THE UNITED STATES ATTORNEY, Roa-
noke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Scott Marshall Hambrick entered a conditional plea of guilty to one
count of transmission of child pornography, in violation of Title 18
U.S.C. § 2252(a)(1), and one count of possession of child pornogra-
phy, in violation of Title 18 U.S.C. § 2242A(a)(5)(B). Hambrick
reserved his right to appeal the district court's denial of his motion to
suppress. The district court denied Hambrick's motion to suppress on
July 7, 1999, and Hambrick appeals only the denial of this motion.1
Finding no error in the court's ruling, we affirm.

I.

Hambrick was arrested in his Albemarle County home following a
search warrant executed by the Albemarle County Police and federal
officials on July 10, 1998. At the time of the offenses and his arrest,
Hambrick was a Captain in the Albemarle County Police Department.
He was indicted for possession of child pornography, transmission of
child pornography, and using an interstate facility to engage a child
in sexual activity. These charges stemmed from on-line chats Ham-
brick had with another adult, Detective J.L. McLaughlin, a police
officer with the Keene, New Hampshire Police Department, who is a
member of a regional task force against Internet crimes aimed at chil-
dren. McLaughlin was on-line on a chat room called"#gaydads4sons"
when he encountered Hambrick, who engaged McLaughlin in discus-
sions regarding Hambrick's interest in young boys and an exchange
_________________________________________________________________

1 At sentencing, Hambrick sought a downward departure based on his
personal circumstances, which was denied. Originally, defendant argued
on appeal that the failure to downwardly depart was reversible error.
However, in his reply brief, Hambrick waived the argument on the
downward departure and indicated that he only intended to proceed on
the motion to suppress.

                     2
of pornography, obviously without knowing McLaughlin's connec-
tion with the police department. At the time of the chats, McLaughlin
assumed the identity of a fourteen-year-old boy and was writing under
the screen name, "Rory14," and the defendant was writing under the
screen name "BlowUinVA."

During the course of the on-line communications,"BlowUinVA"
stated that he was looking for a boy who was bored with his home
life and who would run away to live with "BlowUinVA" and engage
in a sexual relationship. When "Rory14" informed "BlowUinVA" that
he had a twelve-year-old brother, "BlowUinVA" requested that
"Rory14" also bring his brother for the purpose of engaging in a sex-
ual relationship with him. "BlowUinVA" stated that he would send
money for the boys to take a bus to Richmond, Virginia. Ultimately,
"BlowUinVA" sent $270 to a Post Office Box provided by "Rory14"
along with explicit instructions regarding the meeting arrangements.

Following several chats with Hambrick, but prior to submission of
any child pornography, McLaughlin faxed to Hambrick's Internet
Service Provider ("ISP"), MindSpring, a subpoena obtained on March
19, 1998. The subpoena was signed by Richard R. Richards. Mr.
Richards is a justice of the peace as well as a detective in the Keene
Police Department. It is undisputed that the procedure utilized for the
issuance of this subpoena was faulty, and the government has con-
ceded the invalidity of the warrant. The subpoena sought only user
non-content information, and not any content information such as e-
mail content or file content.

Based on the subpoena, McLaughlin received the following infor-
mation from MindSpring: Hambrick's name, billing address, on-line
address ("IP address"), credit card information, and other identifying
information. The government obtained this information to determine
the identity of "BlowUinVA," and this information was not utilized
to access Hambrick's e-mails or other file content. McLaughlin then
referred the matter to the FBI, who assumed the identity of "Rory14"
in the on-line communications with Hambrick. The FBI later sought
information from MindSpring by using a "grand jury subpoena."

Based on the information received from the subpoenas, the FBI
obtained a search warrant for Hambrick's residence, and executed the

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warrant on July 10, 1998. The search yielded computers and computer
disks containing child pornography, including those transmitted to
McLaughlin during the investigation. As a result, the defendant was
indicted on July 16, 1998 for two counts of using an interstate facility
to engage a child in sexual activity, and two counts of transmission
of child pornography. Later, the grand jury returned a superceding
indictment against the defendant for three counts of transmission of
child pornography, one count of possession of child pornography, two
counts of using an interstate facility to engage a child in sexual activ-
ity, and one count for forfeiture.

The defendant moved to suppress the evidence arguing that the
subpoenas were invalid. The government, including the New Hamp-
shire Attorney General, conceded that the subpoenas were invalid, but
denied that they were obtained in bad faith. The motion to suppress
was taken under advisement by the district court. The defendant sub-
sequently entered into a plea agreement contingent on the district
court's decision on the motion to suppress. The district court denied
the motion, and the defendant pled guilty to one count of possession
of child pornography and one count of transmission of child pornog-
raphy, and retained the right to appeal the denial of the motion to sup-
press. This appeal follows.

II.

In reviewing the denial of a motion to suppress, we review the fac-
tual findings of the district court for clear error and its legal conclu-
sions de novo. See United States v. Johnson, 114 F.3d 435, 439 (4th
Cir. 1997).

III.

A.

In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court
analyzed the scope of the protection afforded by the Fourth Amend-
ment, stating that a search occurs only when there has been a "physi-
cal intrusion" in a "constitutionally protected area," noting further that
the Fourth Amendment "protects people, not places." Id. at 351-53.

                     4
Since Katz, the Supreme Court has consistently held that the applica-
tion of the Fourth Amendment depends on whether the person invok-
ing this protection can claim a "justifiable," "reasonable," or
"legitimate expectation of privacy." See , e.g., Rakas v. Illinois, 439
U.S. 128, 143 (1978); United States v. White, 401 U.S. 745, 752
(1971) (plurality opinion); Terry v. Ohio, 392 U.S. 1, 9 (1968). To
establish an expectation of privacy under the Fourth Amendment,
Hambrick must establish 1) that he held "an actual (subjective) expec-
tation of privacy," and 2) that this expectation of privacy is "one that
society is prepared to recognize as `reasonable.'" See Katz, 389 U.S.
at 361 (Harlan, J., concurring). The district court correctly applied the
traditional Fourth Amendment analysis as stated in Katz to Ham-
brick's billing information released to the government, and the district
court properly denied Hambrick's motion to suppress. 2 At issue on
appeal is whether Hambrick had a legitimate privacy expectation in
information that he provided to MindSpring which was subsequently
released to the government as a result of an invalid subpoena.

"What a person knowingly exposes to the public . . . is not a subject
of Fourth Amendment protection." Id. at 351. Accordingly, the
Supreme Court has held that a "person has no legitimate expectation
of privacy in information . . . voluntarily turn[ed] over to third par-
ties." Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (holding that
under Katz, the defendant likely did not entertain an actual expecta-
tion of privacy in the phone numbers he dialed that were revealed
through a pen registry, and if he did, that expectation was not one
society would consider legitimate). The Supreme Court further stated
in Smith that when an individual voluntarily conveys information to
_________________________________________________________________

2 We similarly agree with the district court's conclusion with regard to
the inapplicability of the Electronic Communications Privacy Act of
1986 ("ECPA"), 18 U.S.C. §§ 2510-2711, to the facts of this case. The
ECPA does not represent a legislative determination of a reasonable
expectation of privacy in non-content information released by ISPs. The
ECPA does not even provide for the relief requested in this case, namely
in the form of suppression. See 18 U.S.C.§ 2707 (providing to aggrieved
individual a right to certain civil remedies); 18 U.S.C. § 2708 (reciting
exclusivity of remedies); see also Tucker v. Waddell, 83 F.3d 688, 693
(4th Cir. 1996) (holding that the ECPA does not authorize a civil suit
against a governmental entity for violations of§ 3703(c)).

                     5
a third party, the individual "assume[s] the risk" of subsequent disclo-
sure. See id. at 744.

In United States v. Miller, 425 U.S. 435 (1976), the Supreme Court
cited Hoffa v. United States, 385 U.S. 293 (1966), for the proposition
that "`no interest legitimately protected by the Fourth Amendment' is
implicated by governmental investigative activities unless there is an
intrusion into a zone of privacy, into `the security a man relies upon
when he places himself or his property within a constitutionally pro-
tected area.'" Miller, 425 U.S. at 440 (citing Hoffa, 385 U.S. at 301-
02). The Supreme Court in Miller emphasized that an individual has
no Fourth Amendment privacy interest in information released to a
third party and later conveyed by that third party to a governmental
entity, "even if the information is revealed on the assumption that it
will be used only for a limited purpose and the confidence placed in
the third party will not be betrayed."3 Id. at 443. The Supreme Court
concluded that the bank records subpoenaed in Miller were not "pri-
vate papers" and that the defendant could assert neither ownership nor
possession over these papers. See id. at 441-42. Instead, the Supreme
Court concluded that they were merely business records of the bank.
See id. at 442.

The subpoena at issue in this case requested that MindSpring pro-
duce "any records pertaining to the billing and/or user records docu-
menting the subject using your services on March 14th, 1998 at
1210HRS (EST) using the Internet Protocol Number 207.69.169.92."
This information was requested in order to determine the identity of
the individual using the screen name "BlowUinVA," as this screen
name is tied to the user's identity in all of MindSpring's business
records. The information the government received from MindSpring
consisted of Hambrick's subscriber information, which included his
_________________________________________________________________
3 The district court, however, noted that there is no evidence in this
case to suggest that there was a restrictive agreement between Hambrick
and MindSpring that would limit the right of MindSpring to release
Hambrick's personal information to nongovernmental entities. The dis-
trict court further observed that it is common practice for ISPs, such as
Mindspring, to reveal the type of information at issue in this case to mar-
keting firms and other organizations interested in soliciting business
from Internet users.

                    6
name; billing address; home, work, and fax phone numbers; and other
billing information. When Hambrick entered into a service agreement
with MindSpring, he knowingly revealed this information to Mind-
Spring and its employees. The records that the government obtained
from MindSpring had been available to MindSpring employees in the
normal course of business. Once the government received this infor-
mation, it was not later utilized to read Hambrick's e-mails or to
attain any other content information.

While under certain circumstances, a person may have an expecta-
tion of privacy in content information, a person does not have an
interest in the account information given to the ISP in order to estab-
lish the e-mail account, which is non-content information. See Smith,
442 U.S. at 741 (noting critical distinction between content and non-
content information); Katz, 389 U.S. at 352 (holding that the user of
a public telephone is entitled to "assume that the words he utters into
the mouthpiece will not be broadcast to the world"). Disclosure of this
non-content information to a third party destroys the privacy expecta-
tion that might have existed previously. In this case, the government
never utilized the non-content information retrieved from MindSpring
to attain additional content information, such as the substance of
Hambrick's e-mails. In this case, as in Miller , there is no legitimate
expectation of privacy in information "voluntarily conveyed to [a
third party] and exposed to their employees in the ordinary course of
business." Miller, 425 U.S. at 442. The information subject to the
motion to suppress is merely third-party business records, and there-
fore, Hambrick's Fourth Amendment claim cannot succeed.4

B.

The invalidity of the subpoena in this case does not trigger the
application of the Fourth Amendment, as Hambrick had no privacy
_________________________________________________________________
4 While the Court is aware of the"revolutionary" nature of the Internet
as well as the vast extent of communications it has initiated, the informa-
tion at issue in this case is not distinguishable from the materials in Mil-
ler and Smith, as the government merely obtained non-content
information that was part of MindSpring's business records. We do not
address here any subsequent use of the non-content information to reveal
the substance of an Internet user's e-mails or other file content.

                    7
interest in the non-content information obtained as a result of the sub-
poena. In Miller, the Supreme Court held that 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 at the time the subpoena issued." Id. at
444. Extending this rationale to circumstances in which the evidence
is obtained as a result of an invalid subpoena, the Supreme Court in
United States v. Payner, 447 U.S. 727 (1980), held that a federal court
should not "suppress otherwise admissible evidence on the ground
that it was seized unlawfully from a third party not before the court."
Id. at 735. The Payner Court reasoned that "the interest in deterring
illegal searches does not justify the exclusion of tainted evidence at
the instance of a party who was not the victim of the challenged prac-
tices." Id. Based on these Supreme Court standards, Hambrick had no
legally protected interest in the information provided by MindSpring
to the government pursuant to an invalid subpoena. Therefore, the dis-
trict court correctly concluded that Hambrick had no reasonable
expectation of privacy in the information the government obtained
from MindSpring, and we agree with the district court's denial of
Hambrick's motion to suppress.

For the foregoing reasons, the judgment of the district court is
affirmed.

AFFIRMED

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