In June 2021, a user named Vivy91 distributed child pornography and solicited sexual acts with a child via the MeetMe dating app. After the recipient reported the activity, law enforcement traced the IP address used to send the images to an AT&T connection associated with the home of Emory Day's neighbors. Officers obtained the neighbors' testimony, which stated they had given their Wi-Fi password exclusively to Day and that two devices connected to their router did not belong to them. Based on this, a magistrate judge issued a search warrant for Day's home. FBI agents executed the warrant and found two cell phones. Day admitted to owning one phone, and the other phone contained the MeetMe app, the child pornography images, and Day's login credentials for various social media accounts. Day was charged with one count of distributing and one count of possessing child pornography. He moved to suppress the evidence, arguing the warrant lacked probable cause, but the district court denied the motion. A jury convicted him, and the court sentenced him to 132 months in prison followed by five years of supervised release.
The Sixth Circuit addressed four arguments raised by Day. First, regarding the Fourth Amendment challenge, the court applied de novo review to the legal standard and clear error review to the facts. The court reiterated that a warrant requires a 'substantial basis' for the magistrate's probable-cause finding. The court held that the warrant application provided sufficient independent evidence linking the residence to the crime. The neighbors' testimony that they gave their Wi-Fi password only to Day, combined with the identification of two unrecognized devices on their network, created a 'fair probability' that evidence of the crime would be found at Day's home. Second, on the sufficiency of the evidence, the court viewed the facts in the light most favorable to the prosecution. The court found that the presence of the phones in Day's home, the shared login information for social media accounts, and the identical search history for illicit imagery on both phones provided a rational basis for a jury to conclude the Samsung phone belonged to Day. Third, the court rejected Day's claim that he should have been allowed to stipulate to the nature of the images to avoid showing them to the jury, citing precedent that child pornography defendants do not have such a right. Finally, the court addressed the sentencing enhancement under U.S.S.G. § 2G2.2(b)(4)(A) for sadistic or masochistic conduct. The court found no procedural unreasonableness, noting that an FBI agent's testimony describing the images as depicting a prepubescent minor with sexual penetration was sufficient to support the enhancement by a preponderance of the evidence. The court also noted that Day waived any argument regarding the images being AI-generated by conceding they were child pornography in the district court.
The decision affirms the conviction and sentence of Emory Day, leaving the 132-month prison term and five-year supervised release in place. It reinforces the legal standard for establishing probable cause in digital search warrants where IP addresses are traced through shared Wi-Fi networks and neighbor testimony. The ruling clarifies that defendants in child pornography cases cannot compel stipulations to avoid displaying images to a jury and confirms that witness testimony regarding the content of images is sufficient to support specific sentencing enhancements.
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