                                                              FILED 

                                                            APRIL 9, 2015 

                                                     In the Office of the Clerk of Court 

                                                   W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )          No. 32058-8-III
                                              )
                     Respondent,              )
                                              )
              V.                              )          OPINION PUBLISHED
                                              )          IN PART
CASEY D. PEPPIN,                              )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, J. - A trial court found Casey Peppin guilty of three counts

of first degree possession of depictions of a minor engaged in sexually explicit conduct.

In this appeal, Mr. Peppin challenges the trial court's denial of his motion to suppress the

images of child pornography found on his computer. He raises an issue of first

impression in Washington. He contends that law enforcement's use of enhanced peer to

peer file sharing software to remotely access the shared files on his computer was illegal

under the Fourth Amendment of the United States Constitution and article I, section 7 of

the Washington State Constitution. He maintains that such conduct represents an

intrusion into his private affairs because he had a reasonable expectation of privacy in his

personal computer files. We hold that Mr. Peppin did not have a constitutionally
No. 32058-8-III
State v. Peppin


protected privacy right in the image files he shared with the public. We therefore affirm

his convictions.

                                          FACTS

       On December 29,2011, Spokane Detective Brian Cestnik conducted an online

investigation of the Gnutella network to identifY persons possessing and sharing child

pornography. Using peer to peer software called Round Up version 1.5.3, Detective

Cestnik found child pornography on Mr. Peppin's computer in a shared folder.

       Detective Cestnik's report of the investigation explains peer to peer file sharing.

According to his report, peer to peer file sharing is a method of Internet communication

that allows users to share digital files. User computers link together to form a network;

the network allows direct transfer of shared files from one user to another. Peer to peer

software applications allow users to set up and share files on the network with others

using compatible peer to peer software. For instance, LimeWire and Shareaza are

software applications that allow users to share files over the Gnutella network.

       To gain access to shared files, a user must first download peer to peer software,

which can be found on the Internet. Then, the user opens the peer to peer software on his

or her computer and conducts a keyword search for files that are currently being shared

on the network. The results are displayed and the user selects a file for download. The


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State v. Peppin


downloaded file is transferred through a direct connection between the computer wishing

to share the file and the user's computer requesting the file. The Gnutella network gives

users the ability to see a list of all files that are available for sharing on a particular

computer.

       For example, a person interested in obtaining child pornographic images opens the

peer to peer software application on his or her computer and conducts a file search using

keyword terms such as "preteen sex." The search is sent out over the network of

computers to those using compatible peer to peer software. The results of the search are

returned and displayed on the user's computer. The user selects the file he or she wishes

to download. The file is then downloaded directly from the host computer onto the user's

computer. The downloaded file is stored on the user's computer until moved or deleted.

       When more than one host computer offers the file that is requested, peer to peer

software allows the user to download different parts of the file from different computers.

This speeds up the time it takes to download a file. For instance, a person using Shareaza

to download an image may actually receive parts of the image from multiple computers.

However, often a user downloading an image file receives the entire image from one

computer.




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No. 32058-8-III
State v. Peppin


       Every file shared on the Gnutella network has a unique identifier based on a

Secure Hash Algorithm (SHAl) value, sometimes called a hash value. The SHAI value

acts as a fingerprint for that file. It is computationally infeasible for two files with

different content to have the same SHAI hash value.

       A peer to peer file transfer is assisted by reference to an Internet Protocol (IP)

address. In general, the numeric IP address is unique to a particular computer during an

online Internet session. The IP address provides a location, making it possible for data to

be transferred between computers. Investigators can search public records on the Internet

to determine which Internet provider is assigned the IP address. Investigators can contact

the Internet provider and gain information about the user based on the IP address assigned

to the computer.

       Detective Cestnik searched the Gnutella network for "pthc," the commonly used

term for preteen hard core Internet pornography. Clerk's Papers (CP) at 17. The results

indicated that images matching the search terms could be found on a host computer with

an IP address linked to Spokane. Detective Cestnik's check of the IP address through two

different Internet search engines confirmed that the IP address was in Spokane and that

Qwest Communications was the provider.




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State v. Peppin


       Detective Cestnik used the IP address to access the host computer. The host

computer was configured to allow browsing of its shared folder. Detective Cestnik

viewed the contents of the folder and noticed four files that appeared to be child

pornography. Detective Cestnik successfully downloaded three files from the host

computer before it stopped. After reviewing the videos in the files, he determined that

each video constituted possession or dealing in depictions of minors engaged in sexually

explicit conduct.

       Detective Cestnik presented Qwest Communications with a search warrant

requesting information on the IP address for the host computer. Qwest Communications

advised Detective Cestnik that the IP address was connected to Mr. Peppin and provided

Mr. Peppin's address.

       Detective Cestnik then obtained a search warrant for Mr. Peppin's computer. A

complete forensic investigation uncovered over 100 videos of what appeared to be minors

engaged in sexually explicit conduct. The State charged Mr. Peppin by amended

information with three counts of first degree possession of depictions of minors engaged

in sexually explicit conduct and one count of first degree dealing in depictions of minors

engaged in sexually explicit conduct.




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No. 32058-8-III
State v. Peppin


       Mr. Peppin moved to suppress the computer files downloaded by Detective

Cestnik during his Internet search. He maintained that law enforcement's access and

download of his computer files via the Internet was an intrusion into his private affairs

and an unlawful warrantless search. At the suppression hearing, Mr. Peppin also argued

that the use of enhanced peer to peer software provided information to law enforcement

that was not available to the general public.

       At the hearing, in addition to the report provided by Detective Cestnik, the court

heard from Mr. Peppin's expert, Jennifer McCamm. Ms. McCamm worked as a

computer system administrator, with some background in computer forensics. Ms.

McCamm testified that the purpose of peer to peer file sharing programs is to share files.

She explained that sharing is inherent   in these programs and a user must change the
default setting if they desire not to share files.

       Ms. McCamm said that she had not seen the law enforcement peer to peer

software. Still, she testified that law enforcement uses an enhanced version of peer to

peer software that is different from what is available to the general public. As the biggest

difference, she noted that law enforcement software has features that make searching the

network easier. For instance, law enforcement software can search all user files on the

Gnutella network, regardless of what client interface is being used. Also, the software


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No. 32058-8-111
State v. Peppin


provides law enforcement with a computer's IP address and gives the ability to identifY

files by hash value. Last, the software is built to do single source downloads. Despite

this testimony, Ms. McCamm repeated that she had never tested or interacted with this

software in any form.

       The trial court denied Mr. Peppin's motion to suppress. The court found that

under both article I, section 7 of the Washington State Constitution and the Fourth

Amendment to the United States Constitution, Mr. Peppin had no reasonable expectation

of privacy or trespass protection when using file sharing software.

       After a bench trial, the court returned guilty findings for the three counts of first

degree possession of depictions of minors engaged in sexually explicit conduct. The

court returned a finding of not guilty on the one count of dealing in the depictions of

minors engaged in sexually explicit conduct. The court declined Mr. Peppin's request for

an exceptional sentence downward. The court imposed a low-end standard range

sentence of 46 months.

                                        ANALYSIS

Whether Mr. Peppin had a constitutionally protected privacy right in the image files he
shared with the public

      The Fourth Amendment to the United States Constitution prohibits unreasonable

search and seizures. The Washington State Constitution offers broader protection of

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No. 32058-8-III
State v. Peppin


privacy than the United States Constitution. State v. Carter, 151 Wn.2d 118, 125,85 P.3d

887 (2004). Article I, section 7 of the Washington State Constitution provides, "No

person shall be disturbed in his private affairs, or his horne invaded, without authority of

law."

        "[U]nder the Washington Constitution, the inquiry focuses on 'those privacy

interests which citizens of this state have held, and should be entitIedto hold, safe from

governmental trespass absent a warrant.'" State v. Young, 123 Wn.2d 173,181,867 P.2d

593 (1994)(quotingState v. Myrick, 102 Wn.2d 506,511,688 P.2d 151 (1984». The

interpretation and application of article I, section 7 requires a two-part analysis. State v.

Puapuaga, 164 Wn.2d 515,522, 192 P.3d 360 (2008). "The first step requires us to

detennine whether the action complained of constitutes a disturbance of one's private

affairs. If there is no private affair being disturbed, the analysis ends and there is no

article I, section 7 violation. If, however, a private affair has been disturbed, the second

step is to detennine whether authority of law justifies the intrusion. Authority of law may

be satisfied by a valid warrant." [d.

        Whether a person's affairs ar~ private is not judged by the person's subjective

expectation ofprivacy, but is detennined in part by the historical treatment of the interest

asserted. [d. If there is no historical evidence of protection under article I, section 7, then


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No. 32058-8-III
State v. Peppin


the relevant inquiry is whether the expectation is one that a citizen of this state is entitled

to hold. Id. "This part of the inquiry includes a look into the nature and extent of the

information that may be obtained as a result of the governmental conduct and the extent

to which the information has been voluntarily exposed to the public." Id.

       Federal circuit courts have consistently held that a person who installs and uses file

sharing software does not have a reasonable expectation of privacy in the files to be

shared on his or her computer. See United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir.

2008); United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008); United States

v. Stults, 575 F.3d 834, 842-43 (8th Cir. 2009). Ganoe held that a defendant's

expectation of privacy in his or her personal computer does not "survive [his] decision to

install and use file-sharing software, thereby opening his computer to anyone else with

the same freely available program." Ganoe, 538 F.3d at 1127.

       The Ninth Circuit in United States v. Borowy, 595 F .3d 1045 (9th Cir. 2010),

addressed a situation identical to the one here. A law enforcement agent used LimeWire

peer to peer software to monitor trafficking in child pornography. Id. at 1046. After

conducting a keyword search, the agent used special software that verified the "hash

marks" of files known to be images of child pornography. Id. At least one of these files

was shared through what was later determined to be Mr. Borowy's IP address. Id. The


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No. 32058-8-III
State v. Peppin


officer used LimeWire to search the rest of the files being shared on Mr. Borowy's

computer. Id. at 1046-47. The agent downloaded seven files, four of which were child

pornography. Id. at 1047. Later, a search warrant executed on Mr. Borowy's home

uncovered a large number of images and videos of child pornography. Id.

       Mr. Borowy moved to suppress this evidence, arguing that the agent's activities in

locating and downloading the files from Lime Wire constituted a warrantless search and

seizure without probable cause that violated his Fourth Amendment rights. Id. The Ninth

Circuit upheld the lower court's denial of the motion and held that Mr. Borowy lacked a

reasonable expectation of privacy in the shared files. Id. at 1047-48. The court

concluded that Mr. Borowy's files were entirely exposed to the public view and available

for download so his "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. Furthermore, the court also rejected Mr. Borowy's argument that

the use of a publicly unavailable software program rendered the search unlawful. Id. The

court concluded that Mr. Borowy had exposed the entirety of the files to the public, which

negated any reasonable expectation of privacy in those files, and that the government's

software simply functioned as a mechanism to sort through the shared files. Id. It is clear




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No. 32058-8-111
State v. Peppin


from Borowy and other federal cases that Detective Cestnik's access of Mr. Peppin's

shared files was not a violation the Fourth Amendment to the United States Constitution.

       The broader protection of the Washington State Constitution also does not offer

any relief to Mr. Peppin. Detective Cestnik's access of Mr. Peppin's computer through

peer to peer software and download of the shared files was not a disturbance of Mr.

Peppin's private affairs. Historically speaking, Washington courts have not afforded

article I, section 7 protections to information voluntarily held out to the public. "[W]hat is

voluntarily exposed to the general public and observable without the use of enhancement

devices from an unprotected area is not considered part of a person's private affairs."

Young, 123 Wn.2d at 182. Here, Mr. Peppin voluntarily offered public access to the

computer files obtained by Detective Cestnik. Mr. Peppin used peer to peer software to

make these shared files available without restriction. Anyone wanting to view or

download the files could do so. Law enforcement's access of these files was not an

intrusion into Mr. Peppin's private affairs.

       Additionally, this is not the type of information that a citizen of this state is entitled

to hold as private. The inherent nature of peer to peer software is the public sharing of

digital computer files. Individuals using file sharing software cannot expect a privacy

interest in files they hold open to the public. Again, Mr. Peppin's use of peer to peer file


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No. 32058·8·III
State v. Peppin


sharing voluntarily opened this information to the public for anyone to access, including

law enforcement. There is no disturbance of a person's private affairs when law

enforcement accesses shared computer files that the person holds publically available for

viewing and download. Thus, there is no violation within the context of article I, section

7 of the Washington Constitution.

       Despite Mr. Peppin's argument, Detective Cestnik's use of specially designed

software to search the peer to peer network did not transform his actions into an unlawful

search. This situation is not like Young, where the Washington Supreme Court held that

the use of an infrared device to gather information of the interior ofa defendant's home

was a warrantless invasion in his private affairs and his home. Young, 123 Wn.2d at 188.

In Young, the thermal infrared investigation was an invasion of privacy because it

allowed law enforcement to peer into the walls of the home and reveal more than what

was available to the naked eye. [d. at 183 . Additionally, the use of the sense·enhancing

device penetrated the constitutional line of privacy that encircled the home, thus invading

the home for purposes of article I, section 7 of the Washington Constitution. [d. at 186.

       Here, unlike Young, law enforcement did not gain more information than was

available to the public. Detective Cestnik did not intrude into a computer file that Mr.

Peppin intended to keep private. The files obtained by Detective Cestnik were ones that


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No. 32058-8-III
State v. Peppin


Mr. Peppin made available to the public on the Gnutella network. Additionally, unlike

Young, the peer to peer software was not an enhancement device that allowed law

enforcement to view what was hidden to the pUblic. Law enforcement simply used a

more efficient method for finding this publicly shared information. The government's

software allowed them to efficiently view what was already knowingly exposed to the

pUblic.

          We conclude that a person's private affairs are not disturbed when law

enforcement uses peer to peer software to view files that the person voluntarily shares

with the public on his or her computer. The trial court properly denied Mr. Peppin's

motion to suppress.

          The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with RCW 2.06.040, the rules governing unpublished

opInIOns.

          Statement ofAdditional Grounds for Review

          Mr. Peppin raises three issues in his statement of additional grounds. First, he

challenges the calculation of his offender score. He contends that the multiple counts of

possession of depictions of minors engaged in sexually explicit conduct constituted the

same criminal conduct.


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No. 32058-8-III
State v. Peppin


       Generally, "[w ]hen imposing a sentence for two or more current offenses, the court

determines the sentence range for each current offense by using all other current and prior

convictions as if they were prior convictions for the purpose of the offender score." State

v. Ehli, 115 Wn. App. 556, 560,62 P.3d 929 (2003) (footnote omitted). However, some

or all current offenses can count as one crime if the court finds that those offenses

encompass the same criminal conduct. RCW 9.94A.589(1)(a). "Same criminal conduct"

means two or more crimes that require the same criminal intent, are committed at the

same time and place, and involve the same victim. RCW 9.94A.589(1)(a).

       Mr. Peppin's challenge fails. The three counts do not constitute the same criminal

conduct. The undisputed findings by the trial court show that each video depicts a

different victim. When a defendant is convicted of multiple counts of depictions of

minors engaged in sexually explicit conduct and the depictions are of different child

victims, the current convictions do not count as the same criminal conduct. See Ehli, 115

Wn. App. at 560-61.

       Second, Mr. Peppin contends that the trial court erred by denying his request for an

exceptional sentence downward. He maintains that the trial court should have imposed a

sentence below the standard range because he suffers from mental health problems as a

result from a head injury.


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No. 32058-8-II1
State v. Peppin


       A standard range sentence is generally not appealable. State v. Khanteechit, 101

Wn. App. 137, 138,5 P.3d 727 (2000). However, where a defendant has requested an

exceptional sentence below the standard range, the denial can be reviewed if the court

"either refused to exercise its discretion at all or relied on an impermissible basis for

refusing to impose an exceptional sentence." ld. '" [A] trial court that has considered the

facts and has concluded that there is no basis for an exceptional sentence has exercised its

discretion, and the defendant may not appeal that ruling.'" ld. at 138-39 (quoting State v.

Garcia-Martinez, 88 Wn. App. 322, 330,944 P.2d 1104 (1997».

       Mr. Peppin may not appeal his standard range sentence because the trial court

exercised its discretion during sentencing. The trial court considered Mr. Peppin's brain

injury and his request for an exceptional sentence downward. The court noted that a

doctor diagnosed Mr. Peppin with recurrent major depression, generalized anxiety and

masochistic personality traits, and that these disorders influenced Mr. Peppin's behavior

and poor decision-making. However, the court found that Mr. Peppin was not

incompetent nor suffering from a major mental disorder that would make him unable to

understand that what he was doing was wrong. To the contrary, the court recognized that

when Mr. Peppin was arrested, he acknowledged that he knew his actions were wrong.

Although sympathetic to Mr. Peppin's circumstances, the trial court concluded that there


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No. 32058-8-III
State v. Peppin


was no substantial and compelling reason to depart from the standard range sentence.

The trial court exercised its discretion. Thus, Mr. Peppin's standard range sentence is not

reviewable.

       Third, Mr. Peppin calls attention to defense counsel's discussion with the trial

court where counsel pointed out that the court failed to identify which video supported

each charge. He asks this court to investigate whether an error took place. The trial court

made explicit findings that identify the video or videos that support each count. The

findings for each count names the video or videos that supported the count and described

the depiction in the video. The court concluded that each of the videos in counts I, III,

and IV depicted sexually explicit conduct as defined by RCW 9 .68A.O 11 (4). This court

does not find any error in the issues raised by Mr. Peppin in his statement of additional

grounds.

       Affirm.



                                                    Lawrence-Berrey, J.
WE CONCUR: 




Sid~rtg:                                            Korsmo, J.   ?
                                             16 

