FILED 


APRIL 9, 2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 32058-8-III 

) 

Respondent, ) 

) 

V. ) OPINION PUBLISHED 

) IN PART 

CASEY D. PEPPIN, ) 

) 

Appellant. ) 

LAWRENCE-BERREY, J. - A trial court found Casey Peppin guilty ofthree counts 

of first degree possession of depictions of a minor engaged in sexually explicit conduct. 

In this appeal, Mr. Peppin challenges the trial court's denial ofhis motion to suppress the 

images ofchild pornography found on his computer. He raises an issue of first 

impression in Washington. He contends that law enforcement's use of enhanced peer to 

peer file sharing software to remotely access the shared files on his computer was illegal 

under the Fourth Amendment ofthe United States Constitution and article I, section 7 of 

the Washington State Constitution. He maintains that such conduct represents an 

intrusion into his private affairs because he had a reasonable expectation ofprivacy in his 

personal computer files. We hold that Mr. Peppin did not have a constitutionally 
No. 32058-8-III 

State v. Peppin 

protected privacy right in the image files he shared with the public. We therefore affirm 

his convictions. 

FACTS 

On December 29,2011, Spokane Detective Brian Cestnik conducted an online 

investigation of the Gnutella network to identifY persons possessing and sharing child 

pornography. Using peer to peer software called Round Up version 1.5.3, Detective 

Cestnik found child pornography on Mr. Peppin's computer in a shared folder. 

Detective Cestnik's report of the investigation explains peer to peer file sharing. 

According to his report, peer to peer file sharing is a method of Internet communication 

that allows users to share digital files. User computers link together to form a network; 

the network allows direct transfer of shared files from one user to another. Peer to peer 

software applications allow users to set up and share files on the network with others 

using compatible peer to peer software. For instance, LimeWire and Shareaza are 

software applications that allow users to share files over the Gnutella network. 

To gain access to shared files, a user must first download peer to peer software, 

which can be found on the Internet. Then, the user opens the peer to peer software on his 

or her computer and conducts a keyword search for files that are currently being shared 

on the network. The results are displayed and the user selects a file for download. The 

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No. 32058-8-III 

State v. Peppin 

downloaded file is transferred through a direct connection between the computer wishing 

to share the file and the user's computer requesting the file. The Gnutella network gives 

users the ability to see a list of all files that are available for sharing on a particular 

computer. 

F or example, a person interested in obtaining child pornographic images opens the 

peer to peer software application on his or her computer and conducts a file search using 

keyword terms such as "preteen sex." The search is sent out over the network of 

computers to those using compatible peer to peer software. The results of the search are 

returned and displayed on the user's computer. The user selects the file he or she wishes 

to download. The file is then downloaded directly from the host computer onto the user's 

computer. The downloaded file is stored on the user's computer until moved or deleted. 

When more than one host computer offers the file that is requested, peer to peer 

software allows the user to download different parts of the file from different computers. 

This speeds up the time it takes to download a file. For instance, a person using Shareaza 

to download an image may actually receive parts of the image from multiple computers. 

However, often a user downloading an image file receives the entire image from one 

computer. 

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No. 32058-8-III 

State v. Peppin 

Every file shared on the Gnutella network has a unique identifier based on a 

Secure Hash Algorithm (SHAl) value, sometimes called a hash value. The SHAI value 

acts as a fingerprint for that file. It is computationally infeasible for two files with 

different content to have the same SHAI hash value. 

A peer to peer file transfer is assisted by reference to an Internet Protocol (IP) 

address. In general, the numeric IP address is unique to a particular computer during an 

online Internet session. The IP address provides a location, making it possible for data to 

be transferred between computers. Investigators can search public records on the Internet 

to determine which Internet provider is assigned the IP address. Investigators can contact 

the Internet provider and gain information about the user based on the IP address assigned 

to the computer. 

Detective Cestnik searched the Gnutella network for "pthc," the commonly used 

term for preteen hard core Internet pornography. Clerk's Papers (CP) at 17. The results 

indicated that images matching the search terms could be found on a host computer with 

an IP address linked to Spokane. Detective Cestnik's check of the IP address through two 

different Internet search engines confirmed that the IP address was in Spokane and that 

Qwest Communications was the provider. 

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No. 32058-8-III 

State v. Peppin 

Detective Cestnik used the IP address to access the host computer. The host 

computer was configured to allow browsing of its shared folder. Detective Cestnik 

viewed the contents of the folder and noticed four files that appeared to be child 

pornography. Detective Cestnik successfully downloaded three files from the host 

computer before it stopped. After reviewing the videos in the files, he determined that 

each video constituted possession or dealing in depictions ofminors engaged in sexually 

explicit conduct. 

Detective Cestnik presented Qwest Communications with a search warrant 

requesting information on the IP address for the host computer. Qwest Communications 

advised Detective Cestnik that the IP address was connected to Mr. Peppin and provided 

Mr. Peppin's address. 

Detective Cestnik then obtained a search warrant for Mr. Peppin's computer. A 

complete forensic investigation uncovered over 100 videos of what appeared to be minors 

engaged in sexually explicit conduct. The State charged Mr. Peppin by amended 

information with three counts offirst degree possession of depictions of minors engaged 

in sexually explicit conduct and one count of first degree dealing in depictions ofminors 

engaged in sexually explicit conduct. 

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No. 32058-8-III 

State v. Peppin 

Mr. Peppin moved to suppress the computer files downloaded by Detective 

Cestnik during his Internet search. He maintained that law enforcement's access and 

download of his computer files via the Internet was an intrusion into his private affairs 

and an unlawful warrantless search. At the suppression hearing, Mr. Peppin also argued 

that the use of enhanced peer to peer software provided information to law enforcement 

that was not available to the general public. 

At the hearing, in addition to the report provided by Detective Cestnik, the court 

heard from Mr. Peppin's expert, Jennifer McCamm. Ms. McCamm worked as a 

computer system administrator, with some background in computer forensics. Ms. 

McCamm testified that the purpose of peer to peer file sharing programs is to share files. 

She explained that sharing is inherent in these programs and a user must change the 

default setting ifthey desire not to share files. 

Ms. McCamm said that she had not seen the law enforcement peer to peer 

software. Still, she testified that law enforcement uses an enhanced version ofpeer to 

peer software that is different from what is available to the general public. As the biggest 

difference, she noted that law enforcement software has features that make searching the 

network easier. For instance, law enforcement software can search all user files on the 

Gnutella network, regardless ofwhat client interface is being used. Also, the software 

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No. 32058-8-111 

State v. Peppin 

provides law enforcement with a computer's IP address and gives the ability to identifY 

files by hash value. Last, the software is built to do single source downloads. Despite 

this testimony, Ms. McCamm repeated that she had never tested or interacted with this 

software in any form. 

The trial court denied Mr. Peppin's motion to suppress. The court found that 

under both article I, section 7 ofthe Washington State Constitution and the Fourth 

Amendment to the United States Constitution, Mr. Peppin had no reasonable expectation 

ofprivacy or trespass protection when using file sharing software. 

After a bench trial, the court returned guilty findings for the three counts of first 

degree possession of depictions ofminors engaged in sexually explicit conduct. The 

court returned a finding of not guilty on the one count of dealing in the depictions of 

minors engaged in sexually explicit conduct. The court declined Mr. Peppin's request for 

an exceptional sentence downward. The court imposed a low-end standard range 

sentence of 46 months. 

ANALYSIS 

Whether Mr. Peppin had a constitutionally protected privacy right in the image files he 

shared with the public 

The Fourth Amendment to the United States Constitution prohibits unreasonable 

search and seizures. The Washington State Constitution offers broader protection of 

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No. 32058-8-III 

State v. Peppin 

privacy than the United States Constitution. State v. Carter, 151 Wn.2d 118, 125,85 P.3d 

887 (2004). Article I, section 7 of the Washington State Constitution provides, "No 

person shall be disturbed in his private affairs, or his horne invaded, without authority of 

law." 

"[U]nder the Washington Constitution, the inquiry focuses on 'those privacy 

interests which citizens of this state have held, and should be entitIedto hold, safe from 

governmental trespass absent a warrant.'" State v. Young, 123 Wn.2d 173,181,867 P.2d 

593 (1994)(quotingState v. Myrick, 102 Wn.2d 506,511,688 P.2d 151 (1984». The 

interpretation and application of article I, section 7 requires a two-part analysis. State v. 

Puapuaga, 164 Wn.2d 515,522, 192 P.3d 360 (2008). "The first step requires us to 

detennine whether the action complained of constitutes a disturbance of one's private 

affairs. If there is no private affair being disturbed, the analysis ends and there is no 

article I, section 7 violation. If, however, a private affair has been disturbed, the second 

step is to detennine whether authority of law justifies the intrusion. Authority of law may 

be satisfied by a valid warrant." [d. 

Whether a person's affairs ar~ private is not judged by the person's subjective 

expectation ofprivacy, but is detennined in part by the historical treatment of the interest 

asserted. [d. If there is no historical evidence ofprotection under article I, section 7, then 

8 

No. 32058-8-III 

State v. Peppin 

the relevant inquiry is whether the expectation is one that a citizen ofthis state is entitled 

to hold. Id. "This part ofthe inquiry includes a look into the nature and extent of the 

information that may be obtained as a result ofthe governmental conduct and the extent 

to which the information has been voluntarily exposed to the public." Id. 

Federal circuit courts have consistently held that a person who installs and uses file 

sharing software does not have a reasonable expectation of privacy in the files to be 

shared on his or her computer. See United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 

2008); United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008); United States 

v. Stults, 575 F.3d 834, 842-43 (8th Cir. 2009). Ganoe held that a defendant's 

expectation of privacy in his or her personal computer does not "survive [his] decision to 

install and use file-sharing software, thereby opening his computer to anyone else with 

the same freely available program." Ganoe, 538 F.3d at 1127. 

The Ninth Circuit in United States v. Borowy, 595 F .3d 1045 (9th Cir. 2010), 

addressed a situation identical to the one here. A law enforcement agent used LimeWire 

peer to peer software to monitor trafficking in child pornography. Id. at 1046. After 

conducting a keyword search, the agent used special software that verified the "hash 

marks" of files known to be images of child pornography. Id. At least one ofthese files 

was shared through what was later determined to be Mr. Borowy's IP address. Id. The 

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No. 32058-8-III 

State v. Peppin 

officer used LimeWire to search the rest of the files being shared on Mr. Borowy's 

computer. Id. at 1046-47. The agent downloaded seven files, four of which were child 

pornography. Id. at 1047. Later, a search warrant executed on Mr. Borowy's home 

uncovered a large number of images and videos of child pornography. Id. 

Mr. Borowy moved to suppress this evidence, arguing that the agent's activities in 

locating and downloading the files from Lime Wire constituted a warrantless search and 

seizure without probable cause that violated his Fourth Amendment rights. Id. The Ninth 

Circuit upheld the lower court's denial ofthe motion and held that Mr. Borowy lacked a 

reasonable expectation of privacy in the shared files. Id. at 1047-48. The court 

concluded that Mr. Borowy's files were entirely exposed to the public view and available 

for download so his "subjective intention not to share his files did not create an 

objectively reasonable expectation of privacy in the face of such widespread public 

access." Id. at 1048. Furthermore, the court also rejected Mr. Borowy's argument that 

the use of a publicly unavailable software program rendered the search unlawful. Id. The 

court concluded that Mr. Borowy had exposed the entirety of the files to the public, which 

negated any reasonable expectation of privacy in those files, and that the government's 

software simply functioned as a mechanism to sort through the shared files. Id. It is clear 

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No. 32058-8-111 

State v. Peppin 

from Borowy and other federal cases that Detective Cestnik's access of Mr. Peppin's 

shared files was not a violation the Fourth Amendment to the United States Constitution. 

The broader protection of the Washington State Constitution also does not offer 

any relief to Mr. Peppin. Detective Cestnik's access ofMr. Peppin's computer through 

peer to peer software and download ofthe shared files was not a disturbance ofMr. 

Peppin's private affairs. Historically speaking, Washington courts have not afforded 

article I, section 7 protections to information voluntarily held out to the public. "[W]hat is 

voluntarily exposed to the general public and observable without the use of enhancement 

devices from an unprotected area is not considered part of a person's private affairs." 

Young, 123 Wn.2d at 182. Here, Mr. Peppin voluntarily offered public access to the 

computer files obtained by Detective Cestnik. Mr. Peppin used peer to peer software to 

make these shared files available without restriction. Anyone wanting to view or 

download the files could do so. Law enforcement's access of these files was not an 

intrusion into Mr. Peppin's private affairs. 

Additionally, this is not the type ofinformation that a citizen of this state is entitled 

to hold as private. The inherent nature ofpeer to peer software is the public sharing of 

digital computer files. Individuals using file sharing software cannot expect a privacy 

interest in files they hold open to the public. Again, Mr. Peppin's use ofpeer to peer file 

11 

No. 32058·8·III 

State v. Peppin 

sharing voluntarily opened this information to the public for anyone to access, including 

law enforcement. There is no disturbance of a person's private affairs when law 

enforcement accesses shared computer files that the person holds publically available for 

viewing and download. Thus, there is no violation within the context of article I, section 

7 ofthe Washington Constitution. 

Despite Mr. Peppin's argument, Detective Cestnik's use of specially designed 

software to search the peer to peer network did not transform his actions into an unlawful 

search. This situation is not like Young, where the Washington Supreme Court held that 

the use of an infrared device to gather information ofthe interior ofa defendant's home 

was a warrantless invasion in his private affairs and his home. Young, 123 Wn.2d at 188. 

In Young, the thermal infrared investigation was an invasion of privacy because it 

allowed law enforcement to peer into the walls of the home and reveal more than what 

was available to the naked eye. [d. at 183. Additionally, the use ofthe sense·enhancing 

device penetrated the constitutional line of privacy that encircled the home, thus invading 

the home for purposes of article I, section 7 of the Washington Constitution. [d. at 186. 

Here, unlike Young, law enforcement did not gain more information than was 

available to the public. Detective Cestnik did not intrude into a computer file that Mr. 

Peppin intended to keep private. The files obtained by Detective Cestnik were ones that 

12 

No. 32058-8-III 

State v. Peppin 

Mr. Peppin made available to the public on the Gnutella network. Additionally, unlike 

Young, the peer to peer software was not an enhancement device that allowed law 

enforcement to view what was hidden to the pUblic. Law enforcement simply used a 

more efficient method for finding this publicly shared information. The government's 

software allowed them to efficiently view what was already knowingly exposed to the 

pUblic. 

We conclude that a person's private affairs are not disturbed when law 

enforcement uses peer to peer software to view files that the person voluntarily shares 

with the public on his or her computer. The trial court properly denied Mr. Peppin's 

motion to suppress. 

The remainder of this opinion has no precedential value. Therefore, it will be filed 

for public record in accordance with RCW 2.06.040, the rules governing unpublished 

opInIOns. 

Statement ofAdditional Grounds for Review 

Mr. Peppin raises three issues in his statement of additional grounds. First, he 

challenges the calculation of his offender score. He contends that the multiple counts of 

possession of depictions ofminors engaged in sexually explicit conduct constituted the 

same criminal conduct. 

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No. 32058-8-III 

State v. Peppin 

Generally, "[w ]hen imposing a sentence for two or more current offenses, the court 

determines the sentence range for each current offense by using all other current and prior 

convictions as ifthey were prior convictions for the purpose of the offender score." State 

v. Ehli, 115 Wn. App. 556, 560,62 P.3d 929 (2003) (footnote omitted). However, some 

or all current offenses can count as one crime ifthe court finds that those offenses 

encompass the same criminal conduct. RCW 9.94A.589(1)(a). "Same criminal conduct" 

means two or more crimes that require the same criminal intent, are committed at the 

same time and place, and involve the same victim. RCW 9.94A.589(1)(a). 

Mr. Peppin's challenge fails. The three counts do not constitute the same criminal 

conduct. The undisputed findings by the trial court show that each video depicts a 

different victim. When a defendant is convicted of multiple counts of depictions of 

minors engaged in sexually explicit conduct and the depictions are of different child 

victims, the current convictions do not count as the same criminal conduct. See Ehli, 115 

Wn. App. at 560-61. 

Second, Mr. Peppin contends that the trial court erred by denying his request for an 

exceptional sentence downward. He maintains that the trial court should have imposed a 

sentence below the standard range because he suffers from mental health problems as a 

result from a head injury. 

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No. 32058-8-II1 

State v. Peppin 

A standard range sentence is generally not appealable. State v. Khanteechit, 101 

Wn. App. 137, 138,5 P.3d 727 (2000). However, where a defendant has requested an 

exceptional sentence below the standard range, the denial can be reviewed if the court 

"either refused to exercise its discretion at all or relied on an impermissible basis for 

refusing to impose an exceptional sentence." ld. '" [A] trial court that has considered the 

facts and has concluded that there is no basis for an exceptional sentence has exercised its 

discretion, and the defendant may not appeal that ruling.'" ld. at 138-39 (quoting State v. 

Garcia-Martinez, 88 Wn. App. 322, 330,944 P.2d 1104 (1997». 

Mr. Peppin may not appeal his standard range sentence because the trial court 

exercised its discretion during sentencing. The trial court considered Mr. Peppin's brain 

injury and his request for an exceptional sentence downward. The court noted that a 

doctor diagnosed Mr. Peppin with recurrent major depression, generalized anxiety and 

masochistic personality traits, and that these disorders influenced Mr. Peppin's behavior 

and poor decision-making. However, the court found that Mr. Peppin was not 

incompetent nor suffering from a major mental disorder that would make him unable to 

understand that what he was doing was wrong. To the contrary, the court recognized that 

when Mr. Peppin was arrested, he acknowledged that he knew his actions were wrong. 

Although sympathetic to Mr. Peppin's circumstances, the trial court concluded that there 

15 

No. 32058-8-III 

State v. Peppin 

was no substantial and compelling reason to depart from the standard range sentence. 

The trial court exercised its discretion. Thus, Mr. Peppin's standard range sentence is not 

reviewable. 

Third, Mr. Peppin calls attention to defense counsel's discussion with the trial 

court where counsel pointed out that the court failed to identify which video supported 

each charge. He asks this court to investigate whether an error took place. The trial court 

made explicit findings that identify the video or videos that support each count. The 

findings for each count names the video or videos that supported the count and described 

the depiction in the video. The court concluded that each ofthe videos in counts I, III, 

and IV depicted sexually explicit conduct as defined by RCW 9 .68A.O 11 (4). This court 

does not find any error in the issues raised by Mr. Peppin in his statement of additional 

grounds. 

Affirm. 

WE CONCUR: 


Lawrence-Berrey, J. 

Sid~rtg: Korsmo, J. ? 

16