2013 UT App 257

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH

, Plaintiff and Appellee,

v.

W AYNE J AY B ERGESON

, Defendant and Appellant.

Memorandum Decision

No. 20120193

‐ CA

Filed October 24, 2013

Third District Court, Salt Lake Department

The Honorable Judith S.H. Atherton

No. 071901042

Richard G. Uday, Attorney for Appellant

John E. Swallow and Marian Decker, Attorneys for

Appellee

S ENIOR J UDGE R USSELL W. B ENCH authored this Memorandum

Decision, in which J UDGES J AMES Z. D AVIS and S TEPHEN L. R OTH

concurred. 1

BENCH, Senior Judge:

¶1 Defendant Wayne Jay Bergeson appeals from his convictions

of multiple counts of sexual exploitation of a minor and possession

of a dangerous weapon by a restricted person. He argues that the

district court erred by denying his Request to Amend Motion to

Suppress Evidence and by denying his motion to suppress. We

affirm.

1 The Honorable Russell W. Bench, Senior Judge, sat by

special assignment as authorized by law. See generally Utah Code

Jud. Admin. R. 11

‐ 201(6).State v. Bergeson

¶2 This matter was before this court on a prior appeal wherein

Defendant argued that the district court erred in refusing to

consider his motion to suppress evidence. State v. Bergeson

, 2010 UT

App 281, ¶ 1, 241 P.3d 777. This court reversed and remanded

the case for consideration of the suppression motion. Id. ¶ 9. On

remand, with new counsel, Defendant filed a motion to amend the

previously filed suppression motion to include three additional

issues. 2 The district court denied Defendant’s motion to amend

based on its determination that this court’s directions on remand

required the district court to consider only the merits of the

previously filed motion to suppress.

¶3 Thereafter, the district court held an evidentiary hearing on

Defendant’s original suppression motion, which motion raised two

issues: (1) whether Detective Mark Buhman’s use of specialized

software developed by and available only to law enforcement

personnel constituted an illegal search, and (2) whether the

affidavit in support of the search warrant was misleading because

it did not mention the use of the specialized software. At the

suppression hearing, Defendant sought to introduce the search

warrant and the affidavit in support of the search warrant. The

court denied the admission of the documents on the ground that

they were not attached to the original motion to suppress. The State

called Detective Buhman to testify about the specialized software

at issue. He testified that the software “only organized publically

2 The additional issues are as follows: (1) whether the

administrative subpoena used to get Defendant’s internet proto

‐

col (IP) address was in fact signed by the person whose signature

it bears; (2) whether the administrative subpoena was “pub

‐

lished” as required by federal law, and (3) whether the involve

‐

ment in this matter of the federal Department of Homeland

Security, in executing the administrative subpoena on behalf of

state law enforcement officials, violated the mandate of federal

law.

20120193

‐ CA 2013 UT App 257 2State v. Bergeson

available information,” making it “faster and smoother” for him

“to shuffle through all those IP addresses.”

¶4 After arguments, the district court determined that

Defendant’s second issue pertaining to the allegedly misleading

affidavit was not preserved because his former counsel had failed

to introduce into evidence a copy of the search warrant and

accompanying affidavit. The court then addressed the merits of

Defendant’s first issue and found that Detective Buhman’s use of

the software did not constitute a search. Specifically, the court

ruled as follows:

The Court finds that [the] defense has merely made

a broad allegation that the identification of the IP

address constitutes a search. Defense counsel has not

made any citation to case law to support the

proposition that there is an expectation of privacy in

an IP address. The Court finds that using the law

enforcement search tools is analogous to looking up

a license plate using Division of Motor Vehicles

databases. The Court finds that Peer to Peer file

sharing is open to the public and parties who use it

do so knowing that anyone else who is using the

Gnutella network and the same file sharing program

can access IP address information from them

regarding their shared files. In addition, anyone

using that file sharing program can acquire

information about SHA

‐ 1 values and file size. In this

case, law enforcement made a “direct connect” with

[Defendant’s] computer and was able to browse and

view [Defendant’s] shared folder to find suspected

child pornography files. Law enforcement agents

then used the unique SHA

‐ 1 values associated with

those images to confirm that the images were child

pornography. The Court finds that [Defendant]

opened his computer, his IP address and his files to

the Gnutella network and there is no Fourth

Amendment violation.

20120193

‐ CA 2013 UT App 257 3State v. Bergeson

For these reasons, the district court denied Defendant’s motion to

suppress.

I. Motion To Suppress and Motion To Supplement the Record

¶5 On appeal, Defendant first asserts that the district court

erred in denying his motion to supplement the record with a copy

of the search warrant and accompanying affidavit. Specifically,

Defendant argues that the district court misconstrued this court’s

directions on remand as requiring the district court to consider

only the evidence in the record at the time of the previous filing.

The supplemental evidence Defendant sought to include below

pertains to Defendant’s second issue, i.e., whether the affidavit was

misleading because it did not mention the specialized software.

Defendant fails, however, to challenge the controlling issue.

¶6 The district court determined that Detective Buhman’s use

of the specialized software did not constitute a search. Thus, it

follows that if the detective’s use of the software was not an illegal

search, any failure to mention its use in the affidavit was not

prejudicially misleading. Because Defendant does not challenge the

district court’s ruling that the software use did not constitute a

search—which controls the second issue about the sufficiency of

the affidavit—we decline to reverse the court’s suppression ruling.

Cf. Salt Lake Cnty. v. Butler, Crockett & Walsh Dev. Corp.

, 2013 UT

App 30, ¶ 28, 297 P.3d 38 (“This court will not reverse a ruling of

the trial court that rests on independent alternative grounds where

the appellant challenges only one of those grounds.”).

II. Motion to Amend the Suppression Motion

¶7 Defendant next argues that the district court erred in

denying his post

‐ remand motion to amend his suppression motion.

Defendant asserts that the district court misconstrued this court’s

remand directions by erroneously reasoning that they required the

district court to consider only the motion that was actually before

20120193

‐ CA 2013 UT App 257 4State v. Bergeson

the court at the time of Defendant’s trial. The district court denied

Defendant’s motion to amend as follows:

The Utah Court of Appeals in State of Utah v. Wayne

J. Bergeson

, 2010 UT App 281, instructed this Court to

“consider the merits of [Defendant’s] motion [to

suppress].” Defendant’s Motion had been filed

eleven days prior to trial. This Court concludes that

the Court of Appeals has required this Court to

consider the merits of the previously filed Motion.

Accordingly, this Court denies defendant’s Motion to

Amend the Motion to Suppress.

(Second alteration in original.) We agree with Defendant that the

district court erred when it denied his motion to amend solely on

the basis of our prior remand language.

¶8 The prior remand directions did not include any language

that limited the district court in this manner. Rather, this court

remanded the matter to the district court “to consider the merits of

[Defendant’s suppression] motion” but stated that “[t]he procedure

for considering [Defendant’s] motion is within the sound discretion

of the district court.” State v. Bergeson

, 2010 UT App 281, ¶ 9, 241

P.3d 777. Thus, we expressly granted the district court the

discretion to consider procedural matters such as whether to allow

Defendant to amend his motion. Cf. Utah R. Crim. P. 4(d) (treating

the amendment of an information or indictment as a matter of

criminal procedure). While the district court’s caution seems to

have been motivated by a desire to remain within the bounds of

our mandate, the language of this court’s directions on remand was

expansive enough to allow consideration of Defendant’s motion to

amend.

¶9 Although we conclude that the district court interpreted the

remand language too narrowly, Defendant is entitled to relief on

appeal only if he can demonstrate prejudice resulting from the

district court’s error. “[W]e will not reverse [the] trial court for

20120193

‐ CA 2013 UT App 257 5State v. Bergeson

committing harmless error,” State v. Vargas

, 2001 UT 5, ¶ 48, 20

P.3d 271 (second alteration in original) (citation and internal

quotation marks omitted), and the burden is on Defendant to

“show that the court’s ruling led to a likelihood of prejudice,” see

id. (citation and internal quotation marks omitted). Here,

Defendant has made no showing whatsoever that the issues he

sought to raise in his motion to amend—all of which pertain to the

State’s use of an administrative subpoena to obtain Defendant’s

subscriber information from his internet provider—had any

likelihood of being deemed meritorious. 3 Because Defendant has

failed to make such a showing, we conclude that the district court’s

error in denying his motion to amend was harmless.

III. Ineffective Assistance of Counsel Claim

¶10 Defendant also raises an ineffective assistance of counsel

claim. Defendant asserts that his trial counsel’s performance was

deficient when counsel repeatedly delayed the filing of the

suppression motion, failed to attach the requisite documents, and

failed to raise available issues. Even if counsel’s actions were

deficient in some way, Defendant must still show that counsel’s

performance prejudiced his defense. See Strickland v. Washington

,

466 U.S. 668, 687 (1984). To prove that counsel’s deficient

performance prejudiced Defendant, he “must show that there is a

reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” See id. at

3 After oral argument, the State provided supplemental

authority suggesting that the issues Defendant sought to raise in

his motion to amend would necessarily have been denied be

‐

cause there is no reasonable expectation of privacy in internet

subscriber information. See United States v. Perrine

, 518 F.3d 1196,

1204–05 (10th Cir. 2008) (“Every federal court to address this

issue has held that subscriber information provided to an

internet provider is not protected by the Fourth Amendment’s

privacy expectation.”).

20120193

‐ CA 2013 UT App 257 6State v. Bergeson

694. In light of the district court’s ruling that the detective’s use of

the specialized software did not constitute a search, Defendant

makes no effort to demonstrate that but for counsel’s failure to

more timely file the motion to suppress with supporting

documents, the court would have suppressed the evidence. And,

as discussed above, Defendant has failed to make a showing that

the issues ultimately raised in his post

‐ remand motion to amend

had any likelihood of prevailing. See supra ¶ 9. Without showing

prejudice, Defendant cannot sustain his claim for ineffective

assistance of counsel.

¶11 We conclude that Defendant has failed to challenge the

district court’s conclusion that the use of software to identify his IP

address did not constitute a search. Defendant has also failed to

make any showing that the issues raised in his motion to amend his

suppression motion possessed merit. For these reasons, Defendant

has failed to demonstrate error in the denial of his motion to

suppress, harmful error in the denial of his motion to amend, or

ineffective assistance by his trial counsel. Affirmed.

20120193

‐ CA 2013 UT App 257 7