Case 6:13-cr-10176-EFM Document 13 Filed 02/26/14 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
vs.
WALTER ACKERMAN
Defendant.

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Case No. 13-10176-01-EFM

MOTION TO SUPPRESS

COMES NOW the defendant, Walter Ackerman, by and through his attorney, John
K. Henderson, Jr., Assistant Federal Public Defender for the District of Kansas, and moves
this Court for an Order suppressing any and all evidence seized from an illegal search of the
content of Mr. Ackerman’s email documents, and any and all statements made by defendant
to the authorities at his workplace absent any warning under Miranda.
1. Email Documents
The defendant anticipates that the testimony regarding the interaction between AOL
and the National Center for Missing and Exploited children (NCMEC) and Homeland
Security and the Wichita Police Department are similar to the relationships described in United
States v. Keith, 2013 WL 5918524 (D. Mass. November 5, 2013).

While leaving the

government to its proof, in summary, upon information and belief, when an individual sends
a private email to another individual with attachments to the email, AOL is watching and will
identify potentially suspicious emails. Those emails and their attachments are sent to NCMEC
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and law enforcement personnel associated with NCMEC read the email and open the
attachments, without a warrant or permission of the parties communicating with each other.
The defendant asserts that he has an expectation of privacy in the email, its contents
and the content of any attachments. The defendant also asserts that AOL is acting as an agent
of the relevant law enforcement and that NCMEC is also acting as an agent of relevant law
enforcement. Therefore, a search of Mr. Ackerman’s emails by AOL and or NCMEC invoke
the Fourth Amendment and a search of the email, its content, the attachments, and the content
of its attachments are subject to Fourth Amendment scrutiny.
1. Expectation of Privacy
It is well established that there is an expectation of privacy as to suitcases, footlockers
and computers. See, United States v. Andrus, 483 F.3d 711, 716 – 719 (10th Cir. 2007).
Although the Supreme Court and the Tenth Circuit have not addressed the issue as to emails,
it appears that the momentum of authority reflects the natural extension of the expectation of
privacy as it applies to new technology, such as emails, based upon the same principles. See
discussion in United States v. Bode, 2013 WL 4501303 * 15 (D. Md. August 21, 2013)
(government concession in accord with precedent is that there is a reasonable expectation of
privacy in the use of email services), In re Applications for Search Warrants for Information
Associated with Target Email Address, Nos. 12-MJ-8119-DJW & 12-MJ-8191-DJW, 2012 WL
4383917, at * 5 (D. Kan. September 21, 2012) (the Court finds the rationale set forth in
Warshak persuasive and therefore holds that an individual has a reasonable expectation of

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privacy in emails) and United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) (a subscriber
enjoys a reasonable expectation of privacy in the contents of emails).
2. AOL is an Agent of Law Enforcement
The analysis adopted by the Courts to determine whether or not a private entity is
acting as an agent or instrumentality of the government asks 1.) whether the government knew
of and acquiesced in the intrusive conduct, and 2.) whether the party performing the search
or seizure intended to assist law enforcement efforts or to further its own ends. United States
v. Smythe, 84 F.3d 1240, 1242 – 1243 (10th Cir. 1996) and Skinner v. Railway Labor Executives
Assn, 489 U.S. 602, 614 (1989).
Upon information and belief, leaving the government to its proof, it appears that
information is supplied by law enforcement to AOL to identify potentially suspicious
information contained within emails. AOL takes that information knowing the purpose for
which it is supplied, aware of its role in the law enforcement process, and acts as an agent for
the government in collecting information which is intended and anticipated to be used in
criminal prosecutions. The government also knows how AOL will use the information and
expects AOL to use the information as the government intended – to collect information from
the private emails which may be used in criminal prosecutions. The defendant believes that
both predicate considerations will be found in this case as to AOL. Contrary authority is
found in United States v. Keith, 2013 WL 5918524 (D. Mass. November 5, 2013) (AOL not
an agent of the government but NCMEC was an agent)

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3. NCMEC is an Agent of Law Enforcement
For the same reasons asserted as to AOL, the defendant argues that NCMEC is an
agent of law enforcement. See, also, United States v. Keith, 2013 WL 5918524 (D. Mass.
November 5, 2013) (AOL not an agent of the government but NCMEC was an agent).
4. Good Faith Exception
The defendant submits that the good faith exception does not apply in this case. “The
good-faith exception to the exclusionary rule applies when a search is objectively reasonable
under the binding, settled case law of a United States Court of Appeals, even if the search is
later rendered unconstitutional by a Supreme Court decision.” United States v. Madden, 682
F.3d 920, 926 (10th Cir. 2012). While there has not been a decision directly addressing the
search of emails in the 10th Circuit or the Supreme Court, the decisions described above, other
than Keith, predate the action in this case and establish precedent in favor of establishing the
expectation of privacy as to emails which is based upon a well established expectation of
privacy as to mail and correspondence. The question really is has there been any authority
altering the well established expectation of privacy as to correspondence based upon the use
of emails and the answer is no, to the contrary, the initial principle still stands.
Similarly, the law as to agency is well established. Agency as to AOL has been
addressed in several cases and AOL under the facts in those cases has been found not to be
an agent of the government. See, Keith. However, the issues were clearly articulated and if
the evidence establishes the requisite factual predicate in this case, different from other cases,
then it cannot be argued that the law is somehow new in this area.
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The argument is even stronger in the case of NCMEC which is staffed by law
enforcement, works hand in glove with law enforcement and is essentially a law enforcement
agency. The law of agency as it would apply to them has not changed. The District Court in
Keith did find that the good faith exception applied to NCMEC. However, the defendant
respectfully disagrees and notes the court there appeared to be influenced by the minimal
deterrent effect in that case.
For these reasons the defendant moves to suppress the seizure and search of his email,
the content of his email, the attachments to his email and the search of the attachments to his
email.
5. Miranda
A police officer=s failure to administer Miranda warnings prior to a custodial
interrogation Acreates a presumption of compulsion.@ Oregon v. Elstad, 470 U.S. 298, 306
(1985). As such, statements by a defendant are inadmissible with no need for the Atimeconsuming and difficult enquiry into voluntariness.@ United States v. Patane, 542 U.S. 630,
646 (2004) (Souter, J., dissenting). If the statements are not suppressed due to the unlawful
arrest, statements made outside of a knowing and voluntary waiver of the Miranda rights
should be suppressed.
In this case, upon information and belief, the agent serving the search warrant went to
Mr. Ackerman’s workplace and made arrangements with Mr. Ackerman’s supervisor to have
Mr. Ackerman brought to a room at the workplace to meet with the agent. When the agent
met with Mr. Ackerman he was told that he would be arrested unless he cooperated. Mr.
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Ackerman did not reasonably believe he was free to leave. Mr. Ackerman was then questioned
without the benefit of the Miranda warnings.
The defendant moves to suppress his statements taken as a result of that
interrogation by the agent at his place of business.
Respectfully submitted,
s/John K. Henderson, Jr.
JOHN K. HENDERSON, JR.
Sup. Ct. No. 19022
Assistant Federal Public Defender
Federal Public Defender Office
301 N. Main, Suite 850
Wichita, KS 67202
Telephone: (316) 269-6445
Fax: (316) 269-6175
E-mail: John_Henderson@fd.org

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CERTIFICATE OF SERVICE
I hereby certify that on February 26, 2014, I electronically filed the foregoing
MOTION TO SUPPRESS with the Clerk of the Court by using the CM/ECF system which
will send a notice of electronic filing to the following:
Jason Hart
Assistant U.S. Attorney
301 N. Main, Suite 1200
Wichita, KS 67202
s/John K. Henderson, Jr.
JOHN K. HENDERSON, JR.
Sup. Ct. No. 19022
Assistant Federal Public Defender
Federal Public Defender Office
301 N. Main, Suite 850
Wichita, KS 67202
Telephone: (316) 269-6445
Fax: (316) 269-6175
E-mail: John_Henderson@fd.org

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