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Shumate v. State

Court of Appeals of Missouri, Western District, Third Division

March 28, 2017

KENNETH SHUMATE, Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF GENTRY COUNTY, MISSOURI THE HONORABLE ROGER M. PROKES, JUDGE

          Before Victor C. Howard, Presiding Judge, Gary D. Witt, Judge and Zel Fischer, Special Judge

          VICTOR C. HOWARD, JUDGE.

         Kenneth Shumate appeals the judgment of the motion court denying his Rule 29.15 motion for postconviction relief without an evidentiary hearing. Shumate sought to vacate his convictions following a bench trial of three counts of first-degree statutory sodomy, six counts of second-degree statutory sodomy, two counts of second-degree statutory rape, and one count of sexual exploitation of a minor and consecutive sentences of three terms of life imprisonment plus fifty-five years. He claims that he received ineffective assistance of counsel when counsel failed to move to suppress all evidence obtained as a result of the warrantless search of the United States Internet Crimes Against Children database that provided law enforcement officers his IP address despite lack of prior individualized probable cause. The judgment is affirmed.

         Background

         In the spring of 2012, law enforcement officers suspected that a particular IP (Internet Protocol) address was sharing child pornography. The officers served an investigative subpoena to the Internet service provider to obtain the name and address of the subscriber for the IP address, which identified Shumate. After unsuccessfully trying to download files offered for sharing directly from Shumate's IP address, officers decided to make contact with him at his home on September 25, 2012. The officers explained that they were conducting an investigation involving the downloading of child pornography and asked Shumate if he had any knowledge of such. Shumate told the officers that he had two laptops and Internet service and that he downloaded adult pornography but not child pornography. Shumate and his wife consented to an examination of the laptops by the officers. The officers found several pornographic pictures of a female they believed to be about fourteen years old. They also found a website open to a story involving sexual relations with children. At that point, the officers seized the computers so that they could apply for a search warrant to conduct computer forensic examinations. A warrant was issued, and forensic examinations of the computers found images of sexual encounters between Shumate's wife and his minor son. Shumate was arrested, a search of his house and car recovered a thumb drive and camera, and his two minor sons were interviewed, which led to the statutory sodomy, statutory rape, and exploitation charges.

         Before trial, defense counsel filed a motion to suppress any items seized from the Defendant's person and/or residence on or about the 25th day of September, 2012 and thereafter including but not limited to Shumate's HP Pavillion laptop, his wife's HP laptop, all evidence seized from the computers, the recorded interviews of the child victims, and the testimony of law enforcement officers regarding evidence viewed as a result of the unlawful search and seizure including statement made to them by Shumate. Defense counsel generally alleged that the search and seizure violated the United States and Missouri Constitutions because they were made without a valid warrant and without lawful authority.

         At the evidentiary hearing on the motion to suppress, the State presented the testimony of Detective Steve Feeney of the Kirksville Police Department. Regarding the issue in this case, Detective Feeney testified that he is a member of the Missouri Internet Crimes Against Children (ICAC) task force that conducts online investigations throughout the state of cases involving child pornography, child enticement, and sexual abuse of children. The State is divided into 61 task forces by geographical location with Detective Feeney's task force covering thirteen counties in Northeast Missouri. As a task force member, Detective Feeney received specialized training on the peer-to-peer Ares and Gnutella networks. He explained that a peer-to-peer network is a network made up of individual computers linked together through the Internet to conduct file sharing. Users on the network use file-sharing programs such as Limewire and Frostwire to search for and share image, video, and music files.

         Detective Feeney explained that the United States Department of Justice provides a website for ICAC task force members to use in their investigations.[1] Part of the website allows investigators to use the same file-sharing programs and keyword searches used by peer-to-peer file sharers to find child pornography files. A search will return files that are being offered to share along with the IP address of the computer that is offering them.

         In this particular case, other ICAC investigators found three files dated February 16, 17, and 20, 2016, that were being offered to share by an IP address. The files were flagged through the National Center for Missing and Exploited Children as being recognized child pornography based on the SHA1 value of each file. Detective Feeney explained that the SHA1 value is a mathematical algorithm that, because of its length, acts as the DNA or digital fingerprint for a file whether it is an image or video. No two files will have the same SHA1 value; one pixel can be removed from a picture and it will have a completely different SHA1 value than the first. Once the IP address was seen offering files believed to be child pornography based on their SHA1 values, the IP address was "Geo located" to Unionville in Putnam County, which is one of the 13 counties Detective Feeney covers, with an Internet service provider of North Missouri Rural Telephone Company. Based on this information, Detective Feeney obtained and served an investigative subpoena on March 8, 2012, to the Internet service provider to obtain the name and address of the subscriber for the IP address. Shumate was identified as the subscriber.

         The trial court denied Shumate's motion to suppress, and following a bench trial, Shumate was found guilty of three counts of first-degree statutory sodomy, six counts of second-degree statutory sodomy, two counts of second-degree statutory rape, and one count of sexual exploitation of a minor and sentenced to consecutive sentences of three terms of life imprisonment plus fifty-five years. This court affirmed Shumate's convictions and sentences on direct appeal. State v. Shumate, 462 S.W.3d 775 (Mo. App. W.D. 2015).

         Thereafter, Shumate filed a timely pro se Rule 29.15 motion for postconviction relief. Appointed counsel filed an amended motion on his behalf. The amended motion alleged, in pertinent part, that defense counsel was ineffective for failing to move to suppress all evidence obtained as a result of the government's wholesale surveillance of peer-to-peer networks, including Shumate's laptop, and its seizure of Shumate's IP address from a restricted United States government website without a prior warrant. The motion court denied Shumate's motion without an evidentiary hearing. This appeal by Shumate followed.

         Timeliness of Notice of Appeal

         Initially, the State asserts that Shumate's appeal should be dismissed because his notice of appeal, which was filed on March 7, 2016, was untimely. It argues that the judgment denying his postconviction relief motion was entered on January 22, 2016, when the judge signed it and became final thirty ...


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