United States District Court, D. Minnesota
Katherine Menendez United States Magistrate Judge
matter is before the Court on Christopher Allen Shipton's
“Motion for a Continuance and an Order Pursuant to Fed.
R. Crim. P. 17(c).” ECF No. 40. For the reasons set
forth below, the motion is granted in part and denied in
Shipton requests an extension of deadlines governing briefing
and evidentiary submissions related to his pending motion to
suppress evidence. Mot. to Suppress, ECF No. 20. He asserts
that the additional time is needed so that his expert
witness, Tami Loehrs, has time to analyze forensic evidence
and so that he can obtain relevant documents from the Child
Rescue Coalition (“CRC”). He also asks the Court
to authorize the issuance of a subpoena to the CRC pursuant
to Federal Rule of Criminal Procedure 17(c) for eleven
categories of documents. See ECF No. 42, Attach. 1.
government opposes Mr. Shipton's motion for several
reasons. It argues that: (1) Mr. Shipton has not shown that
his proposed subpoena seeks relevant, admissible, and
specific evidence; (2) his expert's expressed need for
the information sought in the subpoena is not credible given
the criticism her opinions have received in other cases; (3)
he seeks information that is outside the scope of his motion
to suppress; and (4) allowing another continuance in this
matter does not serve the public's interest in bringing
this matter to a close through a speedy trial. See
Gov't's Resp., ECF No. 44. The government also argues
that Mr. Shipton's pending motion has become a moving
target, asserting that Mr. Shipton has yet to clearly
identify the precise conduct being challenged, and the
constitutional basis for his argument.
February 27, 2019, the Court held a hearing on Mr.
Shipton's requests for additional time and for a subpoena
and heard arguments from both counsel about the legal and
practical issues raised by those requests. Following
extensive discussion with the Court, Mr. Shipton clarified
that his Motion to Suppress alleges three different ways in
which law enforcement violated his Fourth Amendment rights.
First, Mr. Shipton argues that law enforcement violated his
Fourth Amendment rights when it used a modified peer-to-peer
software program known as Round-Up Emule to identify a hash
value for suspected child pornography associated with his IP
address. Second, Mr. Shipton argues that CRC, a putative
government actor in this context, violated his Fourth
Amendment rights by using significant computing power to
collect hash values for many other files associated with his
IP address containing known or suspected child pornography.
And third, he argues that CRC violated his Fourth Amendment
rights by storing information that they had gathered
regarding his computer files for an indeterminate
period. Mr. Shipton argues that much of the
evidence against him is fruit of these unlawful violations of
his reasonable expectation of privacy.
Court concludes that Mr. Shipton has adequately supported his
request for a continuance and for permission to obtain some
information from CRC pursuant to a Rule 17(c) subpoena.
However, the Court agrees with the government that the
proposed subpoena is too broad, seeking some information that
is irrelevant to his Fourth Amendment challenges and other
information that could be more efficiently obtained through
testimony at a renewed evidentiary hearing. Accordingly, for
the reasons that follow, Mr. Shipton's motion is granted
Court has previously observed, see Order (Jan. 25,
2019), ECF No. 36, Mr. Shipton's motion raises uniquely
complicated frontier Fourth Amendment issues regarding the
government's use of technology to investigate serious
cyber offenses.This entitles Mr. Shipton to some leeway in
creating the factual record upon which his challenge is
based. The Court also finds that the seriousness of the
charges against Mr. Shipton and the lengthy prison term he
faces if convicted weigh in favor of allowing the additional
time he seeks. In addition, though the Court shares the
government's concern that it has been difficult to pin
down the precise nature of Mr. Shipton's challenge to the
government's investigation, that uncertainty has now been
resolved. Moreover, Mr. Shipton's original expert witness
became unavailable, in part due to funding concerns created
by the recent federal government shutdown. The defense can
hardly be blamed for the complications that have arisen from
the need to obtain a new expert in the middle of the
proceedings while also trying to determine exactly how the
government conducted its investigation.
these reasons, Mr. Shipton's request for a continuance is
granted. However, the mechanics of creating a complete record
for purposes of deciding Mr. Shipton's suppression motion
require some scheduling adjustments beyond simply extending
the time for submission of the anticipated legal memoranda.
The Court addresses those matters in the numbered paragraphs
set out at the conclusion of this Order.
addition, the Court finds that Mr. Shipton has done enough,
with respect to certain subparts of his proposed subpoena, to
satisfy the standard to obtain information from a third party
under Federal Rule of Criminal Procedure 17(c). For a
subpoena to properly issue under Fed. R. Crim. P. 17(c), it
cannot be a general “fishing expedition, ”
United States v. Nixon, 418 U.S. 683, 699 (1974),
but instead, it must identify with some specificity the
information sought, and that information must be relevant and
admissible, see United States v. Stevenson, 727 F.3d
826, 831 (8th Cir. 2013).
Court finds that, given the Fourth Amendment challenges Mr.
Shipton identified during the February 27th hearing, three of
the categories in his proposed subpoena meet this standard.
Specifically, Mr. Shipton will be permitted to serve a Rule
17(c) subpoena duces tecum on CRC to obtain: (1) written
agreements between the Minneapolis Police Department and the
CRC that were in effect in November 2016; (2) the user manual
or similar guide provided to law enforcement for the version
of the Child Protection System software used by the
Minneapolis Police Department in November 2016; and (3)
documents evidencing the number, size and processing ability
of the computers/servers housed at the CRC in Florida. These
documents are identified with reasonable specificity and they
can generally be expected to have a bearing on the
constitutional issues to be decided in connection with Mr.
Shipton's pending motion to suppress. If Mr. Shipton
determines that additional information is ...