United States v. Rosenschein.
No. 23-2017. 5/12/2025. D.N.M. Judge Eid. Possession and Distribution of Child Pornography—Electronic Service Providers—Reports of Child Exploitation—Fourth Amendment—Motion to Suppress—Motion to Dismiss.
May 12, 2025
The National Center for Missing & Exploited Children (NCMEC) operates the CyberTipline, an online clearinghouse for tips and leads about child exploitation. Federal law requires electronic service providers to report any apparent child pornography that they become aware of to NCMEC. Chatstep, an internet chatroom service, submitted two CyberTipline reports to NCMEC after detecting several uploads of pornographic images by a user named “Carlo.” Chatstep used PhotoDNA, a Microsoft product, to identify and report the uploads. Based on location data derived from the user’s IP address accompanying the files, NCMEC forwarded the reports to the Bernalillo County Sheriff’s Office (BCSO). BCSO investigated the reports, identified the user as Rosenschein, and obtained a warrant to search Rosenschein’s home. During the search, law enforcement discovered devices containing over 19,000 images and 2,000 videos of child pornography. Rosenschein was indicted on charges of possession and distribution of child pornography. In response, Rosenschein moved pretrial to (1) suppress the evidence of his uploads, arguing that Chatstep conducted a warrantless search of his files through PhotoDNA in violation of the Fourth Amendment; (2) dismiss the case or, alternatively, to compel the discovery of the computer programs used by Microsoft and NCMEC to generate reports of child pornography; and (3) compel the government to require expert reports for two of its witnesses before the suppression hearing. The district court denied each motion, and Rosenschein pleaded guilty to one count of possession of child pornography and seven counts of distribution of child pornography, reserving his right to appeal the district court’s denial of his motions.
On appeal, Rosenschein argued that Microsoft and Chatstep violated the Fourth Amendment when they created and used PhotoDNA to search his Chatstep uploads without a warrant. However, Microsoft and Chatstep were not acting as governmental agents because each acted to further its own ends, so their actions cannot implicate the Fourth Amendment. And even if they were governmental agents, Rosenschein’s claim fails because he had no reasonable expectation of privacy in images he uploaded to a reportable internet chatroom with strangers.
Rosenschein also contended that the district court should have suppressed the evidence found in his home under Franks v. Delaware, 438 U.S. 154 (1978). To establish a Fourth Amendment violation under Franks, a defendant must identify a materially false statement or wrongful omission in the search warrant affidavit. Here, Rosenschein failed to show that the affidavit contained false statements or relevant omissions such that the warrant should not have issued. Accordingly, based on the information in the affidavit, the district court correctly concluded that the government’s evidence sufficiently established probable cause to justify the search of Rosenschein’s home.
Rosenschein further asserted that the district court erroneously denied his motion to dismiss the case or, alternatively, to compel discovery of the computer programs used by Microsoft and NCMEC to produce internal reports because Chatstep, Microsoft, and NCMEC conspired to destroy or withhold evidence as part of their effort to frame him for possessing and uploading images he never possessed. First, Rosenschein did not show that Chatstep’s alleged failure to preserve electronic records after it reported the images to NCMEC constitutes bad faith on the part of the government, and the record does not suggest that Chatstep destroyed evidence at the government’s direction or request, so Chatstep’s failure to preserve evidence is not a basis for dismissal of Rosenschein’s criminal charges. Second, the district court did not abuse its discretion by denying Rosenschein’s motion to require production of a report because Rosenschein would have had the opportunity to access that information through the examination of witnesses.
Lastly, Rosenschein argued that the district court erred by denying his motion to require the government to provide expert reports for the vice president of NCMEC’s Exploited Children Division, and a group manager for security and online safety at Microsoft, before the suppression hearing. However, nothing in this case suggests that the district court was required to exercise its discretion to order expert reports in advance of a suppression hearing; and the witnesses’ declarations and testimony, along with their positions in NCMEC and Microsoft, establish a clear basis for their knowledge. And nothing in the record suggests that the district court should not have permitted these witnesses to testify at the suppression hearing. Accordingly, the district court did not abuse its discretion in denying Rosenschein’s motion.
The denial of the motions was affirmed.