Petition for Writ of Certiorari — Ryan Galal VanDyck, Petitioner v. United States

Supreme Court briefSep 19, 2024

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IN THE

SUPREME COURT OF THE UNITED STATES

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RYAN GALAL VAN DYCK

Petitioner,

filed

SEP 1 9 2024

su°re^°FcourtLmqK

vs.

UNITED STATES OF AMERICA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

RYAN G. VAN DYCK

41206-408

PO Box 1000

Petersburg, VA 23804

Pro Se Petitioner

RECEIVED

JAN - 8 2025

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QUESTION PRESENTED TO THE COURT

The Sixth Amendment is paramount to defendants in a criminal

proceeding to ensure effective assistance of counsel. When

this doesn’t happen, there is no fair proceedings or justice.

Here, trial counsel failed to raise a critical issue where

police conducted a warrantless search of an email attachment

which uncovered evidence used to support probable cause for a

search warrant that allowed evidence that was key to my

conviction. At the time, there was both binding and persuasive

caselaw prohibiting this unconstitutional search. But for

counsel’s failure to research, the outcome of the case would

have been different. Did the lower courts err by concluding' tfa

that trial counsel was strategic to abandon this ground especially given that proof was provided trial counsel pursued

the exact defense in state court after realizing his critical

error?

PARTIES AND PROCEEDINGS

All parties to the proceedings are listed in the caption. The

Petitioner is not a corporation.

This case arises from the following proceedings in the United

States District Court for the District of Arizona and the United

States Court of Appeals for the Ninth Circuit: VanDyck~v. United

States. No. 4:21-cv-00399-CKJ (D. Ariz. Dec, 15, 2022) and

VanDyck v. United States, Ninth Cir. No. 23-15109 (9th Cir. 2024).

RELATED PROCEEDINGS

I am unaware of any other proceedings in any other court that

are directly related to this case. However, this case had a direct

impact in denying relief in my state case.

Table of Contents

Introduction

Opinions Below

Jurisdiction

Constitutional Provisions Involved

Statement of Case

REASONS FOR GRANTING THE WRIT

1. Trial Counsel Rendered Ineffective Assistance of Counsel

for His Ignorance of the Law and Failure to Conduct

Resarch................................................................................................

2. Law Enforcement Violated My Fourth Amendment Rights by

Conducting a Warrantless Search of my Email Contents....

A. Law Enforcement Violated My Property Rights in Email

Content..........................................................................................

i. The Third Party Doctrine Does Not Apply to Email

Content....................................................................................

B. Law Enforcement Violated My Privacy Rights in Email

Content..........................................................................................

3. The Terms of Service does Not Reduce an Expectation of

Privacy................................................................................................

Ac The Terms of Service here, were Not in Effect..............

B. There was No Announced Monitoring Policy........................

C. Terms of Service Does Not Affect the Fourth Amendment.

4. The Private Search Exception Can Not Apply to This Case • •

5. Suppression of Evidence in the Proper Remedy....................

6. The Court Improperly Denied an Evidentiary Hearing........

Conclusion..................................................................................................

Appendix A - Court of Appeals Decision

Appendix B - District Court Decision

Appendix C - Court of Appeals Denying Rehearing

Appendix D - Order Granitng Extension of Time

Appendix E - Arizona Court of Appeals Decision (Relevant)

iii

Table of Authorities

Aiemian v. Yahoo!, Inc.,

478 Hass. 169 (20l’/).

Baumann v. United States,

692 F.2nd 565 (9th Cir. 1982)

Burdeau v. McDowell,

256 U.S. 465 (1921)..................

Byrd v. United States,

138 S.Ct. 1518 (7018)

18, 26

Carpenter v. United States,

38 S.Ct. 2206 (2018)

6, 9, 14

City of Ontario v. Quon

560 U.S. 746 (2010).

6, 10

Ex Parte Jackson,

96 U.S. 727 (1877)......................

10, 14

Grand Jury Subpoena v. Kitzhaber,

828 F.3d 1083 (9th Cir. 2016;.

14, 20

Herring v. United States,

555 U.S. 135 (2009)..................

Hinton v. Alabama,

5/1 U.S. 263 (2014)....................

J-Tfee v. Google, Inc.,

746 F.3d 920 (9th Cir. 2013)..

Kimmelman v. Morrison

4// U.S. 365, 106 S.Ct. 2574 (1986)

7, 8

Kyllo v. United States,

477 U.S. 27 (2001)..

Lockhart v. Fretwell,

506 U.S. 364 (19^3).

Miller v. Gamie,

335 F.3d 889 (9th Cir. 2003) (En Banc)

17, 24

Rakas v. Illinois,

439 U.S. 128 (1978).................. .................

Rann v. Atchison,

689 F.3d 832 (7th Cir. 2012)

32-33

Riley v. California,

573 U.S. 373 (2014) ....

6, 32

Schneckloth v. Bustamonte,

412 u.s. 218 uy/3;....

Segura v. United States,

468 U.S. 796 (1983)....

Smith v. Maryland,

442 U.S . 735 (1979)...

13-14, 19, 25-26

Strickland v. Washington,

466 U.S. 668 (1984;...

5-7, 12, 24, 33, 35

United States v. Ackerman,

296 F.Supp.3d 1267 (D. Kan. 2017)

15, 24

United States v. Ackerman,

831 F.3rd 1292 UOth Cir. 2016)

11, 15-16

United States v. Anderson !

154 F.3rd 1225 (10th Cir. 1998)

United States v. Barth,

26 F.Supp.3d 929 (W.D. Tx 1998)

United States v. Borowy ?

595 F.3d 1045 (6th Cir. 2010)

19, 25, 28

United States v. Camou,

773 F.3rd /35 (9th Cir. 2014)

United States v. Cotterman,

709 F.3d 952 (9th Cir. 2013) (En Banc)

11, 15, 21

United States v. Forrester

012 {•'.3d ooo (9th Cir. i008)

13, 17, 20-21

United States v. Ganoe,

538 F.3d 1117 (9th Cir. 2008)

United States v. Heckenkamp,

482 F.3d 1142 (9th Cir. 2007)

United States v. Howard,

381 F.3d 873 (9th Cir. 2004).

United States v. Jacobsen,

466 0.8. 109 (1984) . . ..............

9, 18, 27-29, 31-32

United States v. Jeffers,

342 U.S. 48 (1981)

18, 22, 30

United States v. Jones,

565 U.S. 4UU (.2012;......................................

9, 16

United States v. Keith,

980 F.Supp.3d 33 CD. Mass. 2013).......... ..

4, 21 29-30

United States v. Kernell,

2010 U.S. LEXIS 364 / 7 (E.D. Tenn. 2010)

United States v. Leon,

468 U.S. 897 (1984) ......................................

United States v. Miller

425 u.s. 435 uy/u;...............................

12-13

United States v. Mohamud,

843 F.3d 420 (9th Cir. 2016)....................

United States v. Morel,

922 F.3d 1 ust Cir. 2019)........................

United States v. Owens,

782 F.3d 146 (10th Cir. 1986)

18, 26

United States v. Runyan,

275 E.3d 449 (5th Cir. 2001)

United States v. Stratton,

339 F.Supp.3d 2340 CD. Kan.

2017)

United States v. Thomas,

44/ F.3d 1191 (.9th Cir.2006)....

United States v. VanDyck,

776 Fed. Appx. 495 C9th Cir. 2019)

United States v. Walton,

763 F.3d 635 (,7th Cir. 2014)

United States v. Warshak,

631 F.3d 266 (.6th Cir. 2010).

, 10, 13-14 20-21

United States v. Wilson,

13 F.4th 961 (9th Cir. 2021)..

8, 18, 28., 30-33

VanDyck v. United States,

14l S.Ct. 295 (.Mem; (2020)......

VanDyck v. United States,

2022 WL 17689168 (D. Ariz. 2022)

8, 15,17-19 22, 28, 33

VanDyck v. United States,

2024 WL 1477398 (,9th Cir. 2024)

7, 25

Walter v. United States

447 U.S. 649 (1980.)

1, 20, 27, 29-31

Wong Sun v. United States,

371 U.S. 471 (1963)

8, 18 34

Statutes

28 U.S.C. § 1241(1)

28 U.S.C. §2255 .. .

2-3.> 35

Other

Roderick O'Dorisio, "You've got Mail!" Decoding the Bits

and Bytes of the Fourth Amendment Computer Searches

after Ackerman

94 Denv. L. Rev. 651 (2017)

viii

15-16

Introduction

The Sixth Amendment protects the accused from unprofessional

errors by defense counsel that leave defendants vulnerable to

unfair prosecution. Here, defense counsel failed to research the

facts and law related to Fourth Amendment protections of email

content and Electronic Service Provider (ESP) cybertip processes.

In this case, law enforcement examined an email attachment

flagged by America Online (AOL). AOL did not physically review the

attachment. It was software, designed to detect files passing

through AOL's network. It is unknown, who, when or why the file

was flagged as illicit pornography. The software matches hash

values, similar to a label, suggesting the file may be illegal.

But no information about the content is available. The question

is, does law enforcement have the right to open an email attachment

file, not previously examined by AOL, without a warrant?

This Court answered this question over forty years ago. "The

fact that the labels on the box established probable cause to

believe the films were obscene clearly cannot excuse failure to

obtain a warrant; for if probable cause dispensed with necessity

of a warrant, one would never be needed." Walter v. United States.

447 U.S. 649, 657 n. 10 (1980).

The email attachment here had Fourth Amendment protections

both under the digital property-trespass and expectation of

privacy framework. There was no private search. AOL's terms of

service indicated all content posted to their services (email)

remained a user's property, buttressing property protections and

excluding the application of the Third-party doctrine.

Law enforcement's search was illegal. The evidence should

have been suppressed. The district court's findings conflicted

with binding authority. At the time, the available caselaw favored

this issue. The liklihood of success was strong because a similar

case on this ground was successful in my Circuit. But for

counsel's errors, the outcome of my case would have been different.

I humbly pray for relief from this Court under the Fourth and

Sixth Amedment.

Opinions Below

The Court of Appeals' opinion affirming the district court's

denial of my 28 U.S.C §2255 motion is unreported and attached.

Appendix A. The district court's order denying relief of my 28

U.S.C. §2255 motion is unreported and attached. Appendix B. The

court of appeals' order denying my petition for rehearing is

unreported and attached. Appendix C. The state of Arizona court of

appeals opinion is unreported and attached for information

purposes. Appendix F.

Jurisdiction

The judgement of the United States Court of Appeals for the

Ninth Circuit was April 5, 2024. Appendix A. My petition for

rehearing was denied by that court April 22, 2024. Appendix C.

On June 27, 2024, the Honorable Justice Kegam extended time for

filing my petition in this Court until September 19, 2024

(23A1161). Appendix D. On September 18, 2024, I attempted to mail

this Petition legal mail from my prison but was deprived access.

After speaking to this Court's clerk office, I submit it for

consideration. This Court's jurisdiction is invoked under 28

U.S.C. § 1241(1).

Constitutional Provisions Involved

The Fourth Amendment to our Constitution provides:

The right of the people to be secure in their papers, houses

papers, and effects against unreasonable searches and

seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

The Sixth Amendment of our Constitution provides:

In all criminal prosecutions, the accused shall enjoy the

right... to have the Assistance of Counsel.

Statement of Case

Procedural History

I was convicted of conspiracy to produce child pornography

and possession of child pornography following a bench trial.

[District of Arizona 4:15-cr-00742]. I appealed to the Ninth

Circuit [Ninth Cir. No. 10524] and they affirmed? I filed a

petition for certiorari to this Court [Scotus No. 19-8596],

which was denied October 5, 2020?

On October 4, 2021, I filed a motion under 28 U.S.C. §2255

to vacate

set aside or correct a sentence. [District of Arizona

no. 4:21-cv-00399]. The district court denied my request for an

evidentiary hearing, denied the motion, and dismissed the case

with prejudice. The court issued a certificate of appealability

on the claim of ineffective assistance of trial counsel (the

issue raised in this petition), but didn't on my second claim.

Appendix B.

1. United States v. VanDyck, 776 Fed. Appx. 495 (9th Cir. 2019)

2. VanDyck v. United States, 141 S.Ct. 295 (Mem) (2020)

On August 14, 2023, I appealed to the Ninth Circuit. [Ninth

Cir. No. 23-15198]. The court affirmed the district court's

denial of my 28 U.S.C. §2255 motion. App. B.

Facts Relevant to Review

In March of 2014, America Online (AOL) detected an email

attachment suspected of containing child pornography. The

attachment was sent from AOL account: "doudykid@aim.com." The

attachment was detected with softare using a method called

Image Detection Filtration Process (IDFP)t AOL maintains a

database of hash values that at some point, someone opined may

be child pornography^ AOL also blindly receives hash values

from other ESP's^ When AOL detects a file passing through its

network with a corresponding hash in their database, a cybertip

is automatically generated to the National Center for Missing

and exploited Children (NCMEC). However, no AOL employee

reviews the file prior to the cybertip submission. This

determination is made soley on software.^

Once NCMEC receives the tip, they conduct a preliminary

review and find the origin of the email IP address,

In this

case, the email was geolocated to Comcast Cable in Tucson,

Arizona. Tucson Police Department (TPD) received the cybertip

and email attachment and opened it without a warrant. TPD then

drafted a warrant affidavit and provided a graphic description

3. IDFP is a program that compares file properties that pass

through a network by matching "hash values" of files

previously suspected to be illicit. See United States v.

Keith, 980 F.Supp.3d 33 (D. Mass. 20131) Below, the government

did not dispute the cybertip process as dilineated in Keith.

4. Id.

5. T5.

6. TcT.

of this suspect email attachment to support probable cause. It was

the fruits of this warrant that is the basis for this case.

REASONS FOR GRANTING THE WRIT

Consistent with Rule 10 (a)&(c) of this Court, there are

compelling reasons to grant this petition for writ of certiorari.

The Circuit Court's ruling departed from this Court's

framework under Strickland v. Washington, 466 U.S. 668 (1984) by

concluding trial counsel strategically omitted this claim.

Specifically, clear evidence was submitted proving that trial

counsel pursued this ground in state court but could not do so

in federal court because it was too late. The Circuit court

ignored this pivotal evidence.

Now, recently affirmed by the Ninth Circuit, the Arizona

district court concludes: emails "generally" have Fourth Amendment

protections; however, the mere presence of contraband eliminates

it. In other words, a warrantless search can be justified by the

discovery of evidence. This departs from clearly established

federal law and puts our nation's citizens at great risk by

validating otherwise illegal searches. Additionally, other courts

• may find this approach persuasive to deny relief to other

defendants. This incorrect ruling has already effected my state

rslisf efforts. See App. E, till 3, 11. This Court's supervisory

supervisory authority is necessary to resolve it.

Many recent decisions of this Court have demonstrated a

concern for the Fourth Amendment and its application to emerging

technology. See Carpenter v. United States, 138 S.Ct. 2206 (2018);

Riley v. California. 573 U.S. 373 (2014); City of Ontario v. Quon,

560 U.S. 746 (2011). In Carpenter, each Justice on this Court

contributed to or was in agreeance that our Fourth Amendment

protects digital information. Id. at 2206, 2222, 2230, 2262,

2269.

There are signifigant concerns that need to be resolved.

Are lower courts correct to justify warrantless searches based

on discovery of contraband? How far does the private search

exception apply, especially when law enforcement clearly

establish probable cause based on their examination of evidence;

not the private parties. Does the Third-Party doctrine really

apply to emails: when the account belongs to the user. Given

these critical concerns of our nation’s privacy, this Court

should grant this petition to resolve these issues.

1. Trial Counsel Rendered Ineffective Assistance of Counsel for

His Ignorance of the Law and Failure to Conduct Research

The standard for ineffective assistance of counsel is in

Strickland v. Washington, 466 U.S. 668 (1984). First, whether

counsel's performance fell below an objectively reasonable

standard (deficiency); and second, that the deficiency

prejudiced the Petitioner (a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different. Id^. at 688, 694.

"An attorneys ignorance of a point of law that is fundamental

to his case combined with his failure to perform basic research

on that point is a quintessential example of unreasonable

performance under Strickland." Hinton v. Alabama, 571 U.S. 263,

274, (2014)

In my case

trial counsel simply did not research the law on

Fourth Amendment protections of email content or AOL's cybertip

processes. The fruits of the email content illegally examined by

✓

law enforcement was basis for the entire case. There were binding

cases in my Circuit that established email protections and

another case that provided direct foundation to the illegality of

law enforcement's search. These cases would have led to other

authority that supported this ground.

Without analysis, the Ninth Circuit accepted the district

court's ruling that trial counsel strategically abandoned this

ground in favor of stronger arguments. VanDyck v. United States,

2024 WL 1477398 (9th Cir. 2024) at *2. However, this finding is

contrary to the evidence provided. During the pendency of my

federal appeal, trial counsel pursued this exact ground in state

court as it was in pre-trial posture. (FER-27-59)?

The district

and appellant court do not acknowledge this evidence.

Regarding Fourth Amendment issues, this Court has

acknowledged that "a single, serious error may support a claim of

ineffective assistance of counsel." Kimmelman v. Morrison, 477

U.S. 365, 383 (1986) (citation omitted). This was my strongest

ground for relief. The Circuit Court conceded at oral argument,

that the warrantless search of the email attachment was "the key

to the door" to my entire case. There is no doubt that this

failure was "unreasonable" and not "sound strategy." Strickland,

466 U.S. at 688-89.

7. In this Petition, district court records are referenced.

Excerpts of Record "ER" (Doc. No. 18) and Further Excerpts of

Record "FER" (Doc. No. 36) are found in Ninth Circuit Appellant

Docket, Case No. 23-15198.

This failure also harmed me. Because trial counsel failed

to research the protection of emails and the cybertip process,

evidence came into trial that was unconstitutionally seized. The

first search warrant of my home was invalid because the

information supplying probable cause was obtained in an

unconstitutional search of my email. Without evidence seized from

my home, there would be no second (federal) search warrant. All

evidence would require suppression under fruits of the poisonous,

tree. Wong Sun v. United States, 371 U.S. 471, 488 (1963). Thus,

"there is a reasonable probability that the verdict would have

been different absent excludable evidence." Kimmelman, 477 U.S.

at 375.

Prejudice is established by demonstrating a strong liklihood

of success had this issue been raised. I did so below and herein.

The Circuit Court did not conduct any analysis. This analysis is

relevant to establish prejudice.

Prejudice is especially established here because this claim

was successful in my Circuit. Prejudice can be evaluated with the

benefit of hindsight. Lockhart v. Fretwell, 506 U.S. 364, 372

(1993). My Circuit reversed a district court's denial of a motion

to suppress on the same ground. See United States v. Wilson

F.4th 961 (9th Cir. 2021)?8 But for counsel's mistake, the

leading case in my Circuit may have well been "United States v.

Van Dyck,

8. See VanDyck v. United_______

States_ 2022 WL 17689168 (D. AZ 2022)

at *6 (district court conceding "Under Wilson, the record in

[my] case would support suppression of the evidence gathered

pursuant to the warrantless search of the email attachment."

Therefore, counsel's mistake to not investigate, research and

not raise this issue was ineffective assistance of counsel.

Law Enforcement Violated My Fourth Amendment Rights by

Conducting a WarrantlessSearch of my Email Contents.

The Fourth Amendment prohibits unreasonable searches and

seizures. The "basic purpose of this Amendment

• • •

is to safeguard

the privacy and security of individuals against arbitrary

invasions by government officials." Carpenter, 138 S.Ct. at 2213

(citation omitted). "Warrantless searches are typically

unreasonable where 'a search is undertaken by law enforcement

officials to discover evidence of wrongdoing." ^d. at 2221

(citation omitted).

A Fourth Amendment search can occur in either of two

occassions. First, a "search" can also occur when law enforcement

intrudes or trespasses upon a constitutioally protected area "papers, houses, papers, [or] effects" - for the purpose of

obtaining information." United States v. Jones, 565 U.S. 400, 404

(2012). Second, there is a "search" within the Fourth Amendment

when law enforcement infringes on "an expectation of privacy

that society is prepared to consider reasonable[.] United States

v. Jacobsen, 466 U.S. 109, 113 (1984). In my case, law

enforcement violated my Fourth Amendment rights both by

trespassing on my digital property and searching email content

that I had a reasonable expectation of privacy.

There was substantial authority to support this claim. As

demonstrated’below, trial counsel was Constitutionally deficient

for failing to protect my Fourth Amendment rights.

A. Law Enforcement Violated My Property Rights in Email Content

Over a century ago, this Court established property principles

in mail, stating, "[l]etters and sealed packages

• • •

in the mail

are as fully guarded from examination and inspection, except as

to their outward form and weight, as if they were retained by

the parties forwarding to their own domiciles." Ex Parte Jackson.

96 U.S. 727, 733 (1877). Therefore, it's "[t]he constitutional

guaranty of the right of the people to be secure in their papers,

thus closed against inspection, wherever they may be. Whilst in

the mail, they can only be opened and examined under like warrant

as is required when papers are subjected to search in one's own

household." Id.

This concept has been applied to email around this country

for over a decade because email "is the technological scion of

tangible mail, and it plays a indispensable part in the

Information Age." United States v. Warshak, 631 F.3d 266, 286

(6th Cir. 2010). This is because email is used to "send sensitive

and intimate information instantaneously, to friends, family,

and colleagues half a wold away. Lovers exchange sweet nothings,

and businessmen swap ambitious plans, all with the click of a

mouse button."

at 284. And for over a decade, this Court

has "consider[ed] [email] to be essential means or necessary

instruments for self-expression, even self identification."

City of Ontario v. Quon, 560 U.S. 746, 760 (2010).

Critically, in this case, the Ninth Circuit was very explicit

about the protection of emails holding "[email] implicates the

Fourth Amendment's specific guarantee of the people's right to

be secure in their

papers.* The express listing of papers'

reflects the Founders' deep concern with safeguarding the

privacy of thoughts and ideas - what we might call freedom of

conscience - from invasion by the government." United States v.

Cotterman, 709 F.3d 952, 964 (9th Cir. 2013) (en banc) (citation

omitted).

As now-Justice Gorsuch wrote, "an email is a 'paper' or

'effect' for Fourth Amendment purposes, a form of communication

capable of storing all sorts of private and personal details,

from correspondence to images, video or audio files, and so much

more." United States v. Ackerman, 831 F.3d 1292

1304 (10th Cir.

2016) (citing Cotterman, 709 F.3d at 964). Therefore, when law

enforcement conducts a warrantless search of emails and their

attachments, "that seems pretty clearly to qualify as exactly

the type of trespass to chattels that the framers sought to

prevent when they adopted the Fourth Amendment." (Id. at 1307).

Though "the framers were concerned with the protection of

physical mail rather than virtual correspondence[,] a more

obvious analogy from principle to new technology is hard to

imagine and, indeed, many courts have already applied common

law's ancient trespass to chattels doctrine to electronic, not

just written, communications. (Id, at 1308) (citing cases).

In this case, trial counsel had various cases available to

him to support that emails and their enclosures had property

interests under the Fourth Amendment. This failure to research

the law was deficient and this error harmed me because it

permitted illegally obtained evidence to secure a conviction

against me.

The government never contested that emails have property

protections under the Fourth Amendment and did not contest that

my trial counsel was deficient for failing to raise this issue

or that it harmed me under Strickland. The Ninth Circuit did not

provide any analysis on the substance of this argument.

i. The Third Party Doctrine Does Not Apply to Email

Content

Emails have property and possessory interests that belong to

the user. This remains true even if a user sends email through

third-party internet service providers (ISP).

AOL specifically states that "the owner of any content that

[is] posted to [AOL's] service retains ownership of all rights,

titles and interests of that content." See AOL Terms of Service

(2-ER-178-197). This is because AOL does not use the content of

emails for any legitimate business purpose. The content posted to

their service (such as email) is done for the explicit purpose of

delivery to an intended recipient. Therefore, email content does

not fall under the third-party doctrine.

The "third-party doctrine" found its roots in United States

v. Miller. 425 U.S. 435, 437-439 (1976). In Miller, the

government subpoenaed the defendant's bank records. This Court

declined Miller's Fourth Amendment claim as he could demonstrate

"neither ownership nor possession" of the bank's business

records. Id. at 440. These records were used in commercial

transactions and exposed to employees in the ordinary course of

business. Id. Because these records were used and generated by

the bank, this Court concluded that no personal Fourth Amendment

rights were infringed upon. _I<I* However, Miller is not

applicable to communications content as explained below.

The defendant in Miller had no expectation of privacy in

the content of bank records, checks, or deposit slips since it

was voluntarily shared with the bank for the regular course of

business. Warshak, 631 F.3rd at 288. Warshak distinguished

"simple business records" from "confidential communications"

such as email. J[d. Therefore, Miller is inapplicable to email.

The second case this Court evaluated is Smith v. Maryland,

442 U.S. 735, 743-45 (1979), where the precepts of Miller were

applied to telephone communications. This Court determined that

phone numbers dialed should not expect to remain private

because its used for business purposes, such as routing calls.

Id. This Court ultimately held that the use of a pen register

which only records phone numbers dialed, did not offend the

Fourth Amendment. J!d. at 745-46.

Following this Court's framework in Smith, the Ninth Circuit

arrived at a constitutional distinction. United States v.

Forrester, 512 F.3d 500, 509-510 (9th Cir. 2008). Forrester

distinguished pen registers from more intrusive surveillance

techniques because "pen registers do not acquire the content of

communications." Id. (citations omitted). Phone numbers are

shared for the normal course of business for switching

equipment to route calls. W.* In this way, IP addresses were

distinguished from email content. Like the content of phone

calls, email content does not fall under the third party doctrine

because that content is not used for business purposes.

This protection remains in tact even if the third-party has

the physical ability to monitor or record contents sent by the

user. Warshak, 631 F.3d at 285, 287 (citing Smith, 442 U.S. at

735) (telephone communications are protected by the Fourth and

Fourteenth Amendment despite ability to monitor or listen). An

ISP is the "functional equivalent" of a post office because

"emails must pass through an ISP's server to reach their intended

recipient." ^d. at 286. See also Grand Jury Subpoena v. Kitzhaber,

828 F.3d 1083, 1090 (9th Cir. 2016) ("emails are to be treated

like physical mail for expectation of privacy purposes and

current possession of the emails not vitiate that claim").

To this end, this Court has said, "few doubt that email

should be treated like the traditioal mail it has largely

supplanted - as a bailment in which the owner retains a vital

and protected legal interest." Carpenter, 138 S.Ct. 2269.

(Gorsuch, J. dissenting). Other courts have already recognized

this approach. See Ajemian v. Yahoo!, 478 Mass. 169, 170 (2017)

(an email account is a "form of property often referred to as a

'digital asset. I fl ); United States v. Kernell, 2010 U.S. LEXIS

36477, **13-15 (E.D. Tenn 2010) (an individual has a property

right to the exclusive use of information and pictures contained

in her email account).

Therefore

the fact my emails were bailed to a third-party

doesn't matter. I still "enjoyed the same Fourth Amendment

protections as [i] d[id] 'when the papers are subjected to search

in one's own household. I II Carpenter, 138 S.Ct. at 2269 (quoting

Ex Parte Jackson, 96 U.S. at 733).

In my case, the district court simply stated that law

enforcement did not intrude into my emails; instead AOL did and

provided a "copy of the attachment" that law enforcement viewed.

VanDyck, 2022 WL 17689168 at *4. Therefore, there was "simply

no warrantless physical trespass." Id. The court suggests that

the trespass must be "tangible" property. The theory that copies

of a file are not property because the original binary file

properties are in the original email account is not supported.

There is no case law that only protects originals. "An

individuals copied data on a government-owned hard disk drive is

still property of the individual under the data-rights theory."

Roderick O'Dorisio, "You've Got Mail!" Decoding Bits and Bytes of

the Fourth Amendment After Ackerman, 94 Denv. L. Rev. 651, 672 (2

(2017) ("You've Got Mail!"). Now-Justice Gorsuch stressed that

sent "images, video or audio files" are part of tlie "email," and

are constitutionally protected as a sender's papers and effects.

Ackerman, 831 F.3d at 1304. There was binding authority that emails

had property-based protection. Cotterman, 709 F.3d at 964; see also

Joffee v. Google. Inc.. 746 F.3d 920, 931 (9th Cir. 2013) (sent

email attachments are protected). The district court erred by

applying the third-party doctrine.

This finds further support in that email is considered a

"virtual container9 which had Fourth Amendment property and

9) Courts have held for some time that "disk(s)" or "computer

files" are containers, and "standards governing closed container

files are applicable. United States v. Barth, 26 F.Sudd.2d

929, 936 (W.D. TX 199871

-----------------15

possessory interests. See also Ackerman. 831 F.3d at 1306 (email

is a virtual container capable of storing all sorts of private

and personal details). This is constitutionally significant

because "[t]he act of double clicking to open a previously

unopened file is analogous to the act of physically opening a

closed container." You've Got Mail! at 674.

Law enforcement violated this protected legal interest.

Opening the closed email attachment (file) was like law

enforcement opening private mail in my home without a warrant.

This Court has warned, "obtaining by [] technology any information

[from] the interior of the home that could not otherwise have been

obtained without physical 'intrusion into a constitutionally

protected area,' constitutes a search[.]..Kyllo v. United States.

533 U.S. 27, 34 (2011) (citation omitted). This is the modern

equivalent of common law trespass. Jones, 565 U.S. at 419 ("At

common law, a suit for trespass to chattels could be maintained

if there was a violation of the dignitary interest in the

inviolability of chattels") (Alito, J., concurring) (internal

quotes and citations omitted). And "[t]he Fourth Amendment is no

less protective of persons and property against govermental

invasions than the common law was at the time of founding."

Ackerman, 831 F.3d at 1307.

Trial counsel had ample caselaw to support that emails were

digital 'papers' and 'effects.' This failure was based on a

failure to research and investigate. This error harmed me

because absent this excludable evidence, the outcome of my case

would have been different.

The lower courts erred because by applying the Third Party

Doctrine; they departed from binding caselaw.10 see Forrester, 512

F.3d at 511 ("subscribers enjoy a reasonable expectation of privacy

in contents of emails that are stored with, or sent or received

through,

a commercial ISP").

Because the courts did not follow binding authority and the

appellant court did not acknowledge my property-based argument

(unchallenged by the government), I request relief.

B. Law Enforcement Violated My Privacy Rights in Email Content

To determine if a person has an expectation of privacy, this

Court crafed the Katz test. To establish an expectation of privacy

you must satisfy two-fold requirement[.] [F]irst that the person

has exhibited an actual (subjective) expectation of privacy and

second, that the expectation be one that society is prepared to

recognize as 'reasonable. i tt Katz, 389 U.S. at 361.

At the outset, the district court determined there was no

Fourth Amendment search because "there was no reasonable

expectation of privacy" in the email attachment because it

"contain[ed] child pornography." VanDyck, WL 17689168 at *6. The

court acknowledged citizens "generally" have a reasonable

expectation of privacy in emails, but here, the mere presence of

contraband eliminated it. Id. at *7. Thus, the court retroactively

justified the search based on discovery of the contraband. This

10) Miller v. Gamie, 335 F.3d 889- 899-900 (9th Cir. 2003)

Banc) (District courts and three judge panels of the Ninth

Circuit are bound by prior 9th Circuit authority unless it is

clearly irreconcilable with intervening authority from the en

banc Ninth Circuit or the Supreme Court).

Court has prohibited this approach. See United States v. Jeffers,

342 U.S. 48, 53-54 (1981) (rejecting the theory that a search tha

that uncovers contraband is not a Fourth Amendment search);

Wong Sun v. United States, 371 U.S. 471, 484 (1963) ("[A]

search unlawful at its inception many [not] be validated by what

it turns up").

The presence of criminal activity does not diminish an

expectation of privacy. See United States v. Wilson, 13 F.4th

961, 963-64 (2021) (expectation of privacy in email attachment

despite child pornography); United States v. Anderson, 154 F.3d

1225, 1233 (10th Cir. 1998) (expectation of privacy in office

despite child pornography); United States v. Owens, 782 F.2d 146,

150 (10th Cir. 1986) (expectation of privacy in hotel room despite

drugs); Jacobsen. 466 U.S. at 114 (expectation of privacy in box

containing contraband prior to private search); Byrd v. United

States, 138 S.Ct. 1518, 1529 (2018) (reasonable expectation of

privacy in rental car, despite drugs). Because the trial court

retroactively justified the search, the entire Fourth Amendment

analysis was tainted.

The district court determined the subjective expectation of

privacy was lost due to AOL's terms of service ’’monitoring"

policy. The courts opinion does not cite to the record where AOL's

monitoring policy is. The Court created a distinction to say,

"even if [A0L] did not read the text of emails, it monitored the

contents of emails, and attachments. • • • " VanDyck, WL 17689168 at *

*7. This is a mistake of fact. There is no such language in AOL's

AOL's communication tools, AOL does not read your private online

communications without your consent." (2-ER-190). An AOL user

would reasonably expect their communications are private. The

Court also opined that an emails subject line "please trade," and

the email not being marked "confidential" reduce an expectation of

privacy. VanDyck, WL 1768168 at *7, 9. However, these findings

are contrary to binding caselaw.

A subjective expectation of privacy under the Fourth

Amendment is established if "the individual has shown he seeks to

preserve something as private." Smith, 442 U.S. at 740 (quoting

Katz, 389 U.S. at 351. See also United States v. Chavez, 423

F.Supp 3d 194, 201 (W.D.N.C. 2019) ("courts consider whether the

defendant 'took steps to avoid' 'allowing the public at large to

access' pertinent evidence") (citing United States v. Borowy, 595

F.3d at 1048.

Steps were made to remain private. The email address was

anonymous - associated with no particular person. The account

owner - "Kym Doudy" was a pseudonym. Both NCMEC and TPD were

unable to determine who owned the email account^ The email was

password protected - preventing public access. Compare United

States v. Morel, 922 F.3d 1, 9-10 (1st Cir. 2019) (no password to

protect access to files) or Borowy, 595 F.3d at 1048 (Using a

program that allowed widespread public access to folders). There

is no doubt steps to remain private were employed here.

11) This anonymity runs contrary to the district court's opinion.

VanDyck, WL 17689168 at *9. see also (2-ER-172, 150-51)

The court's conclusion that emails have to be marked

"confidential" to be protected also conflicted with binding

caselaw. Surely a parcel travelling through the US mail system

without confidentiality signage (even with a marking "please

trade") would not invite warrantless inspections. Emails should

be treated no different, see Forrester, 512 F.3d at 511

(protections of physical mail and email are identical).

As an example, in Walter v. United States, 447 U.S. 649,

651-52 (1980), this Court examined a case where mail parcels were

examined by law enforcement with labels on the individual film

boxes indicating they contained obscene pictures. Id. There was

also suggestive drawings and descriptions of those contents. Id.

This Court concluded the warrantless search was "an unreasonable

invasion of their owner's constitutionally protected interest in

privacy." _Id. at 654. The box in Walter provided a lot more

inferences of criminal activity than the email's subject line

"please trade" in this case. Therefore, I had a subjective

expectation of privacy in the email attachment.

Additionally, emails have an expectation of privacy that

society is willing to recognize as reasonable. This is because

"email, like physical mail, has a package of content that the

✓

sender presumes will be read only by the intended recipient. The

two forms of communication are identical." Forrester, 512 F.3d at

511. Society would expect that any "subscriber enjoys a

reasonable expectation of privacy in the contents of emails that

are stored with, or sent or received through, a commercial ISP."

Warshak, 631 F.3d at 288. See also Grand Jury Subpoena v.

Kitzhaber, 828 F.3d 1083, 1090 (9th Cir. 2016) ("emails are to be

treated as closed, addressed packages for expectation of privacy

purposes"); United States v. Mohamud, 843 F.3d 420, 442 (9th Cir.

2016) (same).

Trial counsel in this case had ample caselaw to support that

email content (including this attachment) had Fourth Amendment

protections. Forrester, Cotterman, Warshak, and Keith all existed

prior to the time trial counsel would have been evaluating his

suppression options. Trial counsel's failure to research TPD's

illegal acquisition of evidence led to my conviction and was

constitutionally deficient.

3. The Terms of Service does Not.Reduce an Expectation of Privacy

A. The Terms of Service here, were Not in Effect

The government submitted an AOL terms of service (T0S) in the

district pleadings. (2-ER-178-186). However, the effective date on

the TOS is September 15, 2014. (2-ER-182). The alleged violation

occured March 30, 2014. Therefore, this TOS was not in effect.

The government may argue that I waived this challenge, (see

A.B. at 20-21)12 This is incorrect. I did challenge the TOS in my

district court reply: (1) the government provided no proof that I

was required to"agree to such terms at the time of account

creation,. (2) the government did not prove that I agreed to "any

such terms of service" and (3) no "exact terms of service" was

presented to the court. See (FER-16). Because the TOS submitted

was post-dated, it was not the "exact" TOS I allegedly agreed to.

12) see Answering Brief (A.B.) [Ninth Cir. No. 23-15198, Doc. 26].

The government was not prejudiced by this challenge and they

provided a rebuttal on appeal. Their proposed TOS says, "Effective

September 15, 2024, the AOL terms of service and privacy policy

will be updated. By continuing to use AOL's online properties,

you agree to these updated documents.*' (2-ER-182) (emphasis mine).

Agreements are only binding when they are executed. Therefore, the

district court relied on an improper agreement.

B. There was No Announced Monitoring Policy

On appeal, the government avowed throughout their entire

brief that AOL's TOS had a "monitoring policy" and that "AOL

monitored the contents of emails and attachments." (A.B. at p. 25)

(see also pp. 20, 23-25, 28, 30-31, 33, 37). They stressed the

district court's adoption of this position, see VanDyck, 2022 WL

17689168 at *9. But neither the government nor the court cite

where this monitoring provision is. This significant error

impacted the Fourth Amendment analysis in the district court. The

Circuit court provided no review.

The TOS provided required a user's "compliance with

applicable laws__ " to not "participate in, facilitate or further

illegal activities;" or "post [] content that contains explicit or

graphic descriptions or accounts of sexual acts." (2-ER-182). It

also provides that AOL can take "legal" or "technical action" to

"prevent," "enforce," "any violations." Id. AOL also prohibits

"postfing] content that is offensive" (listing examples) and to

13) The government may argue the "uncertainty of AOL's policies"

fall on me. see A.B. at 21. However, the government relies on

AOL's TOS for a warrant exception. See Jeffers, 342 U.S. at '

51 (burden is on party seeking warrant exception).

"refrain from activity harmful to [AOL] and [others] • • • *

and

any other misuse of AOL's infrastructure." Icl. The remaining part

of their policy speaks to a user's device compatibility, the

ownership of content on AOL's server, trademarks, fee based

services, liability and resolutions. (2-ER-183-185). While there

are rules against illegal activity and explicit use, no where does

it say that AOL audits, scans or monitors for this activity.

Incorporated in the TOS is AOL's privacy policy. One relevant

section states that under good faith belief or knowledge of a

crime on AOL's platform, contents of online communications may be

disclosed in response to legal process. (2-ER-190). But this is

no indication of "monitoring." To the contrary, AOL makes this

plain in their privacy policy, section: How is your AOL

information used," saying, "AOL does not read your private online

communications." _Id. This is clarified again in the Privacy FAQ:

"AOL does not read your private online communications when you,

use these communication tools without your consent." (2-ER-196).

Therefore, there is no impression left to the user that AOL will

audit, scan or monitor their private content.

In my Circuit, the Court held an expectation of privacy was

maintained where limited instances for access were permitted to

protect the university computer's integrity. United States v.

Heckenkamp, 482 F.3d 1142, 1146-47 (9th Cir. 2017). When that

Court evaluated the TOS in "their entirety" and found there was

lt_ _

no announced monitoring policy," they held the defendant's

expectation of privacy was reasonable. Id. AOL likewise does

not have any monitoring policy.

The government will likely argue United States v. Ackerman,

296 F.Supp.3d 1267 (D. Kan. 2017) applies, holding that AOL's

TOS reduced an expectation of privacy in email containing child

pornography. Similar to my case, the Ackerman district court does

not cite any monitoring provision in its opinion. The court

supports its ruling on two cases: United States v. Stratton, 229

F.Supp.3d 1230 (D. Kan. 2017),: and United States v. Wilson, 2017

U.S. Dist. LEXIS 98432 (S.D. Cal. 2017). However, these cases

had clear monitoring language in their TOS.

In Stratton, a playstation network's TOS explicitly said:

"[Sony] reserves the right to monitor and record any online

activity and communication • • • " and the user "give[s] [Sony]

your express consent to monitor and record your activities."

229 F.Supp.3d at 1233. The district court in Wilson

likewise

observed that Google had an "express monitoring policy • • • •

2017 LEXIS 98432 at *19 and n.6. That is not the case here.

Under Strickland, my district court's application of

Ackerman is misplaced. Ackerman was decided after trial counsel

would have been preparing his suppression motions. Under the

performance prong, the inquiry looks at counsel's perspective at

the time the mistake was made. Strickland, 466 U.S. at 689. This

case would have no impact on his decision.

The district court erred by concluding A0L informed users of

a "monitoring" policy. This tainted the expectation of privacy

analysis. The Ninth Circuit conducted no analysis or review. It

simply stated trial counsel would have abandoned the warrantless

search matter because of "AOL's monitoring policy." VanDyck, 2024

WL 1477398 at *2. However

the concern remains

the court did no

not cite AOL's "monitoring” provision from the record and the

authority relied upon in their opinion was inapposite?-^

C. Terms of Service Does Not Affect the Fourth Amendment

A private TOS between an ESP and private user does not reduce

an expectation of privacy. If this was possible, ISP's would

determine the parameters of the Fourth Amendment; not the Courts.

This would lead to an absurd result. This Court has cautioned

"that arcane distinctions developed in property and tort law • • •

ought not to cotnrol" the analysis of who has a "legally

sufficient interest in a place." Rakas v. Illinois

439 U.S. 128,

142-43 (1978). The Katz anaylsis is designed to determine

"well-recognized Fourth Amendment freedoms," Smith, 442 U.S. at

740 n.5, not the interests of private ESP's with a standard TOS.

Major ESP's such as Google, Microsoft), et. al, maintain,

"[t]he Fourth Amendment generally protects a users' reasonable

expectation of privacy in the contents of emails held by a Third

party service provider from a warrantless search and seizure from

the government irrespective of whether the service provider has

terminated the user's account or whether the user violates the

terms governing his relationship with the service provider."

Breif of Amici Curiae, Electronic Privacy Information Center

14) The Court cites United States v. Ganoe, 528 F.3d 1117 (9th

Cir. 2008) and Borowy, 595 F.3d 1045 (9th Cir. 2010) claiming

there were "express terms notifying users that A0L monitored

their accounts and would disclose suspected activity."

VanDyck, 2024 WL 1477398 at *2. These cases don't discuss the

impact of an ESP's TOS on an expectation of privacy.

United States v. Miller, No. 18-5578

at 6-7 (6th Cir. 2018)!5

Many courts have declined to allow private contracts to

reduce an expectation of privacy under the Fourth Amendment. One

court held stating "[a]ll motel guests cannot be expected to be

familiar with detailed internal policies and bookkeeping

procedures where they lodge." Owens, 782 F.2nd at 150. My Circuit

held that a "technical violation of a leasing contract" did not

compromise an authorized user's legitimate expectation of privacy

in a rental car. United States v. Thomas, 447 F.3d 1191, 1198

(9th Cir. 2006); see also United States v. Walton, 763 F.3d 655,

656-57 (7th Cir. 2014) (violation of rental car agreement does

■N

not effect expectation of privacy under the Fourth Amendment).

This Court appears to agree with these Circuit's approach to

a private terms of service not impacting the Fourth Amendment. This

Court agreed that an unauthorized use of a vehicle "constitutes a

breach of a rental agreement, and perhaps a serious one, [but]

the government fails to explain what bearing this breach of

contract, standing alone, has on expectations of privacy in the

car." Byrd, 138 S.Ct. at 1529. This Court admonished, "[w]e are

not inclined to make a crazy quilt of the Fourth Amendment,

especially in circumstances where (as here) the pattern of

protection would be dictated by billing practices of a private

corporation. Smith, 442 U.S. at 747. This Court should not permit

private agreements to effect the Fourth Amendment, see also

Warshak, 631 F.3d at 287 (an ability or right to monitor contents

through standard service agreements do not diminsh an expectation

15) https://epic.org/amicus/algorythmic-transparency/miller/usv-miller-6th-cir-corp-amicus-brief.pdf.

of privacy in email contents).

4. The Private Search Exception Can Not Apply to This Case

The Circuit court erred by concluding trial counsel would

have abandoned this claim because the private search exception.

applied. No authority was provided for this conclusion. The

government also argued the private search exception applied.

However, these cases were not applicable to my case.16

A warrantless search is per se unreasonable under the Fourth

Amendment, subject to only a "few specifically established and

well-delineated exceptions." Schneckloth v. Bustamonte, 412 U.S.

218, 219 (1973) (citing Katz, 389 U.S. at 357). One of those

exceptions is the "private search exception." The Fourth Amendment

protects citizens with these types of searches from governmental

actors, not private action. Burdeau v. McDowell

256 U.S. 465

(1921). To distinguish these types of searches, this Court

developed the private search framework in two cases: Walter v.

United States, 447 U.S. 649 (1980) and United States v. Jacobsen,

466 U.S. 109 (1984).

In Jacobsen, FedEx employees discovered and opened a

damaged package, found suspicious bags of powder, and invited

law enforcement to inspect the parcel. .466 U.S. at 111. DEA

agents repeated the same search: opening the package and

inspecting the powder. Id. Additionally, the DEA chemical tested

the powder to determine if it was cocaine. J^i. at 111-112. This

Court determined the initial search was lawful because the DEA

16) The government did not preserve this argument. They only

suggested trial counsel may have concluded it applied to lmy case.

No argument was provided, see District of Arizona Case No.

4:21-cv-00399-CKJ, Doc. NoTTO at p. 14 n. 5.

repeated the same search as FeDEx. Id. at 118. However, "[t]he

question remain[ed] whether the additional test occassioned by

the field test ... was an unlawful 'search' or 'seizure' within

the meaning of the Fourth Amendment.'' Ici. at 122. This Court

decided it did not because "the federal agents did not infringe

any constitutioally protected privacy interest that had not

already been frustrated as the result of private conduct. Id. at

126. The chemical test was conducted on powder in plain view.

In my case, the district court applied Jacobsen determining,

"[t]he government's conduct at issue in [my] case can only reveal

whether an image is child pornography. No other private fact is

revealed when the government opens an image reported to it in a

cybertip." VanDyck, 2022 WL 17689168 at *11. The court further

opined that the government's conduct was based on a limited

investigative procedure (like IDFP) and could only reveal that

the file at question was illegal. 2^. However, the government's

conduct here was a warrantless search, not IDFP. Compare Borowy,

595 F.3d at 1048 (detective comparing hash values of files to his

own database of known child pornography).

In Wilson, the Ninth Circuit reviewed a case nearly

identical to mine. Google used proprietary technology (IDFP) to

identify four images of suspected child pornography. Wilson, 13

F.4th at 965. With this technology, Google compared the has values

of content uploaded to their servers against a repository of

hashes previously suspected to be contraband. Id_. Google sent a

cybertip

to NCMEC which included the four attachments, and NCMEC

sent it to local law enforcement who opened it without a warrant.

Id. The Circuit Court concluded the.government's search (viewing

the email attachment in the cybertip) exceeded "the limits of the

private search exception as delineated in Walter and Jacobsen and

their progeny." Id. at 971 (footnote omitted). The actual viewing

of the image attachment allowed them to determine exactly what

the images depicted. W.* at 973-74. Like my case

the "government

learned new, critical information that it used to obtain a warrant

and then to prosecute [the] defendant for possession and

distribution of child pornography."

at 972. The Circuit court

erred, rejecting binding authority - applying a private search1.^

Walter much better relates to law. enforcement's actions in my

case. As explained before, in Walter, sealed packages containing

films were delivered to a wrong company, who opened and examined

the package, finding boxes with "suggestive drawings" and

"explicit descriptions of these contents." 477 U.S. at 651-52. The

FBI picked up the packages, and without a warrant viewed the

films. J[d. This Court held, "the unauthorized exhibition of the

films constitutes an unreasonable invasion of their owner's

constitutionally protected interest in privacy. It was a search;

there was no warrant; the owner had no consented; and there was

no exigent circumstances." Id.

The Keith court agrees, a case directly on point with my

issue. AOL detected a hash value match in an email and forwarded

a cybertip to NCMEC. Keith, 980 F.Supp.3d at 36-38. Unlike my

17) To reduce confusion, the district court applied Jacobsen

(private search exception) in the expectation of privacy

analysis. VanDyck, 2022 WL 17689168 at *11. The court erred

by applying Jacobsen in the Katz analysis.

case: at the time, NCMEC physically reviewed cybertip attachments

prior to forwarding them to law enforcement. Id. at 37. Still,

the Keith court explained even if NCMEC had not opened the image

but instead law enforcement viewed them first, under Walter, "it

could not seriously be contended that the law enforcement agency

could open and inspect the contents of the file without regard to

the Fourth Amendment's warrant requirement. Id. at 41-42. Keith

goes on to explain why Walter is controlling;

"Although the media in which criminally obscene material

was stored are different in Walter and this case, the

pattern is the same. A label (here, a hash value) that is

examined without opening the film or file, suggested the

nature of the contents. For that reason, concerned private

parties provided the film or file to the government

without first reviewing the contents themselves.

Government personnel then examined the contents of the

film or file by opening and viewing it. .Id. at 42.

Legally, a hash value matching cannot frustrate a person's

18 "[Mjatching the hash value of a file to

expectation of privacy,

a stored hash value is not the virtual equivalent of viewing the

contents of a file. What a match says is that two files are

identical; it does not itself convey any information about the

contents of a file. It does say that the suspect file is identical

to a file that someone, sometime, identified as containing child

pornography, but the provenance of that designation is unknown.

Id. at 43.

18) The government below argued that AOL's determination method

reliability and any gaps in the record to this regard is my

burden. (A.B. p. 35 and n.4). The government did not

preserve this argument. However, even if they had, it is the

government's burden to show AOL's involvement constituted a

private search. See Jeffers, 342 U.S. at 51 (burden is on

party seeking exception). They did not in this case.

A private party's conduct must "frustrate[] the original

expectation of privacy." Jacobsen, 466 U.S. at 117, 126. The

files matched by IDFP remain closed and unseen by AOL and arrive

that way to NCMEC and law enforcement. "[U]ntil [TPD] viewed the

image[], [they] had no image at all; the entire composition was

hidden." Wilson, 13 F.4th at 974. No privacy of the attachment

was frustrated. This is especially true in the absence of human

participation in the hashing and reporting procedure. Only a

human can violate another human's privacy interest. If a human

doesn't know what software flagged, there is no frustration of

privacy. AOL cannot tell you what the suspect file contained,

when or why it was hashed. You cannot even reverse-generate a

hash into an image. That is why a hash value cannot provide

probable cause for a warrant or sustain a conviction.

Hashing is insufficient under the Fourth Amendment.19 This is

why law enforcement continually look at cybertip images, because

they don't know for sure if the file is illegal. A physical

viewing of the image tells you everything: who, what, where and

other details. See Walter, 477 U.S. at 659 n.14 (It was "clearly

necessary" for FBI to screen the films because the private party

had not, to complete their "law enforcement objectives"). When

TPD view these cybertip files, they learn more information "not

previously

• • •

learned during the private search." Jacobsen, 466

U.S. at 120. This Court should find that software detection is

19) The government provided no reliability of IDFPj thus presents

a Daubert related problem with untested "proprietary" (secret)

technology AOL uses. This is relevant to the probable cause

determination. Further, the government provides no proof of

AOL's employee training in detecting contraband. This raises

serious Fourth Amendment concerns.

not constitutionally sufficient to invoke the private search

exception to warrant requirements. To do so would put citizens

in a vulnerable position for digital trolling by the police.

Below, the government suggested "[j]acobsen illustrates how

far offiers may got beyond the initial private search." See A.B.

at 29. However, their reading of Jacobsen overlooks the state of

two separate searches. See Wilson, 13 F.4th at 978 ("conflat[ing]"

Jacobsen*s first holding about the private search with this

Court's second holding about the field test on "already exposed

and seized contraband substance").

In Jacobsen, FedEx (private actor) conducted the initial

search, examining and discovering the bags of powder. This

frustrated the expectation of privacy in the package. The only

remaining thing for the DEA to do was to conduct the chemical

test on cocaine bags in plain view. Here, the situation is in the

inverse. AOL performed the limited, non-invasive scan of the

attachment and police expanded on the search by examing the file

contents. Jacobsen simply cannot apply to this case. Trial

counsel would have easily discerned this distinction.

The government below likened Rann v. Atchison, 689 F.3rd

832 (7th Cir. 2012) and United States v. Runyan, 275 F.3d 449

(5th Cir. 2001) to my case.

In Rann, the victim personally

testified that she knew the defendant took pornographic pictures

20) The Ninth Circuit would have rejected the government's

reliance on Runyan and Rann because it ignored the Circuit's

approach to digital devices and recent decisions from this

Court including Jacobsen, Riley, and (listing others).

Wilson, 13 F.4th at 977.

of her and gave police the memory card she knew contained the

images. Rann, 689 F.3d at 837-38. In Runyan, multiple private

searches were done by the defendant's ex-wife and her friends

that turned up child pornography on multiple devices. 275 F.3d at

452-53

463. Police had direct statements from private parties

about the content of the files. However, the Runyan court was

sure to note that police exceeded the scope of the private

search*.when police looked at disks the private party had not

examined. Id. at 464. Here, AOL could tell you nothing about the

hash mark or suspect images. These cases are inapposite.

The private search exception does not apply. In the context

of the Strickland inquiry, there was no caselaw contrary to my

claim to deter trial counsel from running the issue. The Circuit

court's finding that trial counsel would have reasonably abandoned

the issue is also undermined by his supplemental motion to

suppress in state court on the same exact grounds. (FER-46-51).

5. Suppression of Evidence is the Proper Remedy

There was no warrant, no statute, and no binding precedent

authorizing TPD's warrantless search of the email image in this

case; therefore, suppression is the proper remedy. The government

did not argue they are entitled to this exception below.21

21) The government mayargue that trial counsel may have abandoned

the issue anticipating the "fruits of the poisonous tree"

argument to fail, and the remaining information in the

affidavit would nave provided probable cause. (A.B. pp.

34-35). The government did not preserve this argument.

However, the district court concluded that absent the image,

probable cause would no longer exist. VanDyck, 2022 WL

17689168 at *3. see also Wilson, 13 F.4th at 973 (if search

warrant "excised" of "tainted evidence" probable cause would

be lacking).

This Court has historically provided an exception to

exclusion where an officer reasonably relied on a judge’s mislead

decision to grant a warrant. United States v. Leon, 468 U.S. 897,

922 (1984). However, this case involves a warrantless search and

is outside the context for the basis of the good faith exception.

The only other exception that potentially had relevance to

my situation is if TPD had relied on another person's negligent

mistake. Herring v. United States, 555 U.S. 135, 147-148 (2009).

However, Herring is not applicable here because that officer

relied on the county clerk's statement about the defendant having

an outstanding warrant, which was based on another law

enforcement employees' negligence. However, in my case

it was

law enforcement's own negligence that led to the violation of

my rights.22

The exclusionary rule effects not only the immediate fruits

of this illegal search but also the subsequent evidence discovered

associated to the illegality or "fruit of the poisonous tree."

Segura v. United States, 468 U.S. 796, 804 (1983). "It 'extends

as well to the indirect as the direct products' of

unconstitutional conduct." Id. (quoting Wong Sun. 37 U.S. at 484.

Here, all evidence in this case originates from law

enforcement's initial warrantless search of my email attachment

file. The image attachment must be suppressed. With that, all

evidence seized must be suppressed that was found in the state

22) This Court has never applied the good faith exception to

excuse an officer who was negligent himself, resulting in a

violation of a defendant's rights. See United States v. Camou.

773 F.3d 735, 744 (9th Cir. 2014).----------- -------------------------- ----- ’

and federal search warrant. Further, all statements during the

police interviews would require suppression because without the

evidence discovered from this illegal search, law enforcement

would not have conducted these interviews.

The Court Improperly Denied an Evidentiary Hearing

In my Circuit, it is binding law that when a petitioner

files a motion under 28 U.S.C. §2255, the district court shall

grant a request for an evidentiary hearing "[ujnless the motion

and the files and records of the case conclusively show that the

prisoner is entitled to no relief. United States v. Howard, 381

F.3d 873, 877 (9th Cir. 2004). This means, "a hearing is

mandatory whenever the record does not affirmatively manifest the

factual or legal invalidity of the petitioner's claims." Baumann

v. United States. 692 F.2d 565, 571 (9th Cir. 1982).

Here, an evidentiary hearing was absolutely warranted. Most

importantly, under the Strickland inquiry, the lower courts

opined that trial counsel strategically omitted this claim. But

in fact, evidence was presented on record that trial counsel did

pursue this exact ground in state court after his error was

discovered in my direct appeal. The lower courts ignored this

evidence. However, I was deprived the opportunity to confirm this

in court.

Other important matters should have been resolved in the

evidentiary hearing and was not conflicted by an established

record. This included the terms of service monitoring language

issue and other important matters relevant to the legal issue.

This error was plain and effected the fairness of my proceedings.

Therefore, I am also entitled to relief for the lower

court's departing from binding authority denying me an

evidentiary hearing. Although I do request this Court to grant

relief on the merits of my entire petition, I would alternatively

request to remand for an evidentiary hearing on the entire

grounds.

Conclusion

For the reasons set forth above, I humbly and prayerfully

request this Court to grant this writ.

Respectfully submitted this 3^

day of December , 2024.

Ryan Galal Van Dyck

Pro Se Petitioner

No.

IN THE SUPREME COURT OF THE UNITED STATES

RYAN GALAL VAN DYCK, Petitioner,

vs.

UNITED STATES OF AMERICA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

FOR THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CERTIFICATE OF COMPLIANCE

I, Ryan G. Van Dyck, appearing Pro Se, certify that to the best of

my ability this Petition for a Writ of Certiorari complies with the

requirements of this Court provided in Rules 32.(g), 33.2 and 34. To

my best estimate, this Petition is under 9,000

words, excluding the

sections of the Petition exempt under Rule 33.2(b).

Respectfully submitted

iliZ-blM

Ryan G. Van Dyck, Pro Se Petitioner

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