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Burwell v. State

Court of Appeals of Texas, First District

May 21, 2019


          On Appeal from the 248th District Court Harris County, Texas Trial Court Case Nos. 1557904, 1557905, 1557906, 1557907

          Panel consists of Justices Keyes, Higley, and Landau.



         A jury convicted appellant, Troy Levi Burwell, of four counts of possession of child pornography and assessed his punishment at imprisonment for two years in two of the offenses and probation for ten years in the other two offenses.[1] In his sole issue on appeal, appellant argues that the trial court improperly denied his motion to suppress evidence obtained from Adobe Systems Incorporated, the entity with which appellant had electronically stored some photographs.

         We affirm.


         Appellant was charged with four counts of possession of child pornography after images containing child pornography were recovered from his Adobe Photoshop photo-storage account. An employee of Adobe Systems Inc. had reported the images to the National Center for Missing and Exploited Children (NCMEC), which in turn sent the tip to the Houston Police Department (HPD). HPD obtained a search warrant and conducted a further investigation, leading to appellant's arrest and prosecution.

         In his motion to suppress, appellant argued that Adobe acted as an agent of NCMEC, which he asserted was a governmental entity. He "specifically invoked the protections of the Fourth, Fifth and Fourteenth Amendments to the United States Constitution; Article I, Sections 9 and 19 of the Texas Constitution, and Articles 38.22 [and] 38.23 of the Texas Code of Criminal Procedure."

         At the suppression hearing, HPD Officer M. Wilson testified that he was assigned to HPD's Internet Crimes Against Children Task Force. Officer Wilson stated that he received two "Cyber Tips" from NCMEC, which he described as tips generated by an internet service provider which were then reported through NCMEC. He stated that when NCMEC receives a Cyber Tip, it then "delegate[s] [the tip] to local law enforcement for further investigation."[2] Officer Wilson identified Adobe Systems Incorporated as the internet service provider that created the tips and notified NCMEC. He stated that Adobe is a for-profit company and that it is not a law enforcement agency. Officer Wilson testified that the tips usually consist of "subscriber information" such as "a user name, an IP address, an email address, [and] possibly a phone number."

         Officer Wilson testified that, in the present case, the tips provided appellant's Adobe user name, email address, and two different IP addresses and that the tips included four "images of interest" that had been flagged as potentially containing child pornography. Officer Wilson further stated that, in the two tips he received relevant to this case, Adobe indicated that it had reviewed the contents of the files it sent to NCMEC. Officer Wilson testified that he did not have any direct communication with Adobe, but he was aware that Adobe had user agreements with its customers and that entities like Adobe are subject to federal laws requiring that they report suspected child pornography or abuse to NCMEC. Officer Wilson was not aware of any demand or request by law enforcement made to Adobe that led to the search of appellant's account, and he stated that, to the best of his knowledge, Adobe searched appellant's account "based solely on [its] own interests." Officer Wilson testified that he did not know how Adobe came to discover the reported files in appellant's account-all he knew was that the files were not found as a result of running a "hash algorithm"[3] but that they "were actually viewed" by someone. He also testified that, prior to obtaining a search warrant, he did not look at or search anything beyond what Adobe had looked at and provided to NCMEC, and, to the best of his knowledge, neither did NCMEC.

         Officer Wilson also testified regarding his subsequent investigation in the case. Using the IP addresses provided in the tips, he was able to determine the internet service providers to those IP addresses, and he "submitted administrative subpoenas to both [internet service providers] and requested subscriber information." This led him to appellant. Officer Wilson obtained a search warrant to examine the entire content of appellant's Adobe account and residence, and officers discovered images of child pornography associated with appellant's account, including some of the same images that were the basis of the Cyber Tips.

         Finally, appellant offered copies of the CyberTipline reports and a copy of Adobe's General Terms of Use.

         The Terms of Use provided, in relevant part, that users grant Adobe "a non-exclusive, worldwide, royalty-free, sub-licensable, and transferrable license to use, reproduce, publicly display, distribute, [or] modify" content uploaded to Adobe's systems "for the purpose of operating or improving the Services." Regarding "Our Access," Adobe's Terms of Use provided:

We will only access, view, or listen to your content in limited ways. For example, in order to perform the Services, we may need to access, view, or listen to your content to (a) respond to support requests; (b) detect, prevent or otherwise address fraud, security, unlawful, or technical issues; and (c) enforce these terms. Our automated systems may analyze your content using techniques such as machine learning. This analysis might occur as the content is sent, received, or when it is stored. From this analysis, we are able to improve the Services. . . .

         The Terms of Use further prohibited users from using Adobe's services to "upload or share any content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another's privacy, ...

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