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No Standing to Contest Search Warrant for ISP Subscriber Information

November 19, 2014

In Ensley v. State, the Georgia Court of Appeals held in a child pornography case that the defendant lacked standing to contest a search warrant that was issued to his internet service provider for subscriber information.

In this case, a detective from the Cherokee County Sheriff’s Office obtained a search warrant from the Cherokee County Magistrate Court that directed Comcast to provide subscriber information for a particular IP address. The detective faxed it to Comcast’s legal department in New Jersey. In response, Comcast provided subscriber information showing that the IP address was linked to the defendant’s account. Based on this information, the detective obtained another warrant to search the defendant’s residence. During this search, law enforcement seized computers and other devices that contained child pornography.

The defendant moved to suppress all of this evidence, arguing that the Magistrate lacked jurisdiction to issue a search warrant for records that were located in New Jersey. Under Georgia law, it is clear that a judge only has authority to issue a search warrant for items located within the jurisdiction in which he or she presides. The trial court denied the motion, finding that the defendant did not have standing to challenge the issuance of the search warrant.

The Court of Appeals affirmed. To challenge a search or seizure under the Fourth Amendment, a defendant must demonstrate that “he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” The Court cited Hatcher v. State, in which it “expressed doubt” that a defendant could claim a reasonable expectation of privacy in information voluntarily conveyed to the internet service provider. The Court in this case found that reasoning persuasive and held that because the defendant voluntarily gave his identity and address to Comcast, he had no reasonable expectation of privacy in that information. Thus, the Court concluded that he lacked standing to challenge the search by which law enforcement obtained that information.

The result in this case would have been different had the search warrant provided for the production of private information such as email communications. In such a case, the defendant would clearly have an expectation of privacy and standing to contest the issuance of the search warrant.

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