Legal Blog

Child Pornography Defendant Lacks Standing to Challenge Subpoena

March 18, 2017

In Courtney v. State, the defendant in a child pornography case filed an interlocutory appeal to determine whether the trial court erred in denying his motion challenging the subpoena used by the police to obtain information from his internet service provider.

The Court held that the defendant did not have standing to challenge the subpoena issued to the internet provider.

A detective received information that suspected child pornography files were being downloaded from a particular IP address. Using an administrative subpoena issued by the D.A.’s office, the detective obtained the subscriber information (name and address) associated with that IP address. With this information, the detective then obtained a search warrant to search that residence.

The defendant moved to suppress this evidence, arguing that the use of an administrative subpoena was in violation of O.C.G.A. § 16-9-109 (b)(1) which specifically provides a mechanism for obtaining information from internet providers via search warrant, not subpoena.

The Court held that the defendant did not have standing to challenge the subpoena because he had no reasonable expectation of privacy in information that he voluntarily conveyed to his internet service provider. This is in line with the Court’s prior holding in Ensley v. State as well as U.S. Supreme Court precedent.

While the Court didn’t address this point, it should be noted that in 16-9-109 (b)(2), the statute does provide that law enforcement may use a subpoena to obtain the name and address of a subscriber from any “provider of electronic communication service.”

As a result, the Court affirmed the trial court’s denial of the defendant’s motion to suppress and remanded the case for trial on the child pornography charges.

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