United States v. DiTomasso, No. 17-1699 (2d Cir. July 30, 2019), involves a defendant who was convicted after a jury trial of producing and distributing child pornography. On appeal, he argued that the district court should have granted his motion to suppress certain electronic communications found through searches conducted by two Internet service providers (AOL and Omegle), and reported to the National Center for Missing and Exploited Children. He also argued that he should have been granted a hearing on whether his trial attorney was ineffective for not calling a witness (the defendant’s uncle) who supposedly would have confessed that he, not the defendant, was guilty of the charged crimes. The Circuit rejected all the defendant’s contentions and affirmed his convictions.
First, the Court held, the AOL searches did not afford a basis for relief. The district court found that the AOL searches constituted government searches for Fourth Amendment purposes because AOL had made clear that it intended to actively assist law enforcement in investigating child pornography offenses. But the district court concluded that no Fourth Amendment violation occurred because the defendant had voluntarily consented to AOL’s practices.
The Circuit affirmed, but on different grounds. It held that any Fourth Amendment violation as to the AOL searches was harmless because the evidence obtained from those searches was not admitted at trial. Nor did the AOL searches or their fruits fatally taint subsequent search warrants because probable cause for those warrants would have existed even without the allegedly tainted information.
The Omegle searches similarly did not warrant relief. The district court found that the Omegle searches, unlike the AOL searches, were private searches, not government searches conducted “in a law enforcement capacity.” The defendant did not challenge that finding on appeal. Accordingly, the searches did not implicate the Fourth Amendment.
Further, because the record contained no evidence that the National Center for Missing and Exploited Children had engaged in a search of its own, or had acted as a government agent, the Court held that there was “no foundation” for the defendant’s claim that the organization had violated his Fourth Amendment rights.
Finally, the Circuit rejected the defendant’s claim of ineffective assistance. The record supported the district court’s conclusion that neither the defendant nor his attorney believed that the defendant’s uncle would be willing to testify at the defendant’s trial that the uncle had performed all of the illegal acts at issue. Nor was there a reasonable probability that, even if the uncle had testified favorably for the defendant, the outcome of the trial would have been different.