A conference Monday at the U.S. Supreme Court may decide whether San Diego’s Luke Wilson can make his unlawful search argument. Image via supremecourt.gov

Former Grantville* resident Luke Noel Wilson is serving a 45-years-to-life state sentence for crimes that included paying a teenager to send him photos of her molesting her own infant daughter and a 5-year-old female cousin.

Petition for review of Luke Wilson case by U.S. Supreme Court (PDF)

But a precedent-setting ruling Tuesday by the 9th U.S. Circuit Court of Appeals could lead to his freedom if the U.S. Supreme Court decides to hear the case — and rules in his favor.

In June, the nation’s highest court was asked to take up Wilson’s petition, which argues that an automated Google “CyberTip” service led to law enforcement viewing evidence without a search warrant.

This week’s ruling by 9th Circuit judges Marsha S. Berzon, Paul J. Watford and Robert H. Whaley contradicted that of California courts, which said the warrantless viewing was OK.

Attorney Charles Sevilla, representing Wilson in the state case, on Thursday said a closed hearing Monday could lead to justices accepting the case for review or denying review without comment.

(The court also could delay the conference or order California to respond to the petition without granting review, he said, “then the case is set off until this round of briefing is done and they consider whether to formally grant review or not.”)

Fellow San Diego attorney Devin Burstein appealed Wilson’s 11-year concurrent federal sentence by district Judge Gonzalo P. Curiel.

In a statement, Burstein told Times of San Diego: “The 9th Circuit took a big step toward ensuring that individuals continue to have robust Fourth Amendment protection in the digital age. The opinion is clear, comprehensive and compelling. We are thrilled with the result and grateful to the ACLU, EFF and EPIC for their amicus assistance.”

Those are references to the American Civil Liberties Union, Electronic Frontier Foundation and Electronic Privacy Information Center, which filed briefs in the case. (Burstein also defended former Rep. Duncan D. Hunter in his corruption case.)

A spokeswoman for the San Diego U.S. Attorney’s Office declined comment on the 9th Circuit ruling. Marc S. Kohnen, who originally defended Wilson in the federal case after his Oct. 15, 2015, arrest, said via email: “I am going to respectfully decline comment as further litigation and an ultimate resolution still remain pending.”

Google didn’t immediately respond to a request for comment.

At issue in the U.S. Supreme Court, Sevilla wrote, is: “Does the private search doctrine place Google’s automated electronic scan of all email on its system outside the protection of the Fourth Amendment for law enforcement searches?”

Opinion by 9th U.S. Circuit panel in Luke Wilson case. (PDF)

The original federal complaint against Wilson, a former marketing director for Monster Energy, noted how on June 17, 2015, the National Center for Missing and Exploited Children sent a CyberTipline report to the Internet Crimes Against Children Task Force in San Diego. Four images found as email attachments led to an investigation under a search warrant.

“The warrant resulted in the discovery of Wilson’s emails offering to pay [a woman named] J.A. to molest and exploit children,” said the petition to the U.S. Supreme Court. “The investigator also reviewed emails in which Wilson distributed apparent child pornography to others.”

That August, Special Agent William Thompson with Homeland Security Investigations obtained a search warrant for Wilson’s apartment at 6540 Reflection Drive and vehicle. He seized computer equipment, storage devices and other items.

“While executing the search warrant, a participating officer observed a backpack fall from Wilson’s balcony,” said the petition. “The officer retrieved the backpack, which held Wilson’s checkbook and a thumb drive containing thousands of images of child pornography. Additional images were found on devices in Wilson’s apartment.”

Judge Curiel would later estimate that Wilson, 41, had 500 videos and 11,000 images of child pornography.

But prosecutors wouldn’t have launched the probe without Google’s hashing technology — which assigned a child-porn identifier to Wilson’s email.

The 9th Circuit panel said Google, as required by federal law, reported to the NCMEC that Wilson had uploaded four images as email attachments.

“No one at Google had opened or viewed the defendant’s email attachments; its report was based on an automated assessment that the images the defendant uploaded were the same as images other Google employees had earlier viewed and classified as child pornography,” the opinion said.

“Someone at NCMEC then, also without opening or viewing them, sent the defendant’s email attachments to the San Diego Internet Crimes Against Children Task Force, where an officer ultimately viewed the email attachments without a warrant. The officer then applied for warrants to search both the defendant’s email account and his home, describing the attachments in detail in the application.”

But the panel held that the “government did not meet its burden to prove that the officer’s warrantless search was justified by the private search exception to the Fourth Amendment’s warrant requirement.”

Original federal charges against Luke Wilson in San Diego. (PDF)

(The 39-page opinion said Google “stores only the hash values” of images identified as apparent child pornography, not the actual images.)

The 9th Circuit judges agreed with the San Diego district court, which found that if Agent Thompson’s affidavit in support of a warrant had been “excise[d]” of “the tainted evidence,” “the affidavit would not support issuance of the search warrant for Defendant’s email account.”

In other words, Wilson’s trove of child porn might never have been found.

In its conclusion, the 9th Circuit noted that 18.4 million CyberTips were made in 2018, “making it all the more important that we take care that the automated scanning of email, and the automated reporting of suspected illegal content, not undermine individuals’ Fourth Amendment protections.”

Luke Wilson awaits his fate at Avenal State Prison in Kings County in the San Joaquin Valley.

At his Dec. 19, 2018, federal sentencing before Curiel, Wilson said he was deeply sorry for his actions and the collateral damage he created.

“It haunts me every day,” he said. “I wake up knowing that, from a keyboard, I let my sex addiction push the envelope so far I caused this much harm. I have continued intensive therapy while out on bond and now have numerous coping tools to deal with this sexual addiction that I have been dealing with.”

Curiel said Wilson was the victim of sexual abuse at ages 6 and 11, first by a schoolteacher and later by a male acquaintance.

“He also suffered profound loss when he lost his brother when he was young,” Curiel said. “And these factors are ones pointed to as contributing to Mr. Wilson’s falling prey to pornography as some kind of coping mechanism.”

Transcript of 2018 sentencing hearing before federal Judge Gonzalo Curiel (PDF)

But Wilson said: “I am the only person to blame for my actions, not because of some neighbor who hurt me as a kid. I understand my actions paint me as this terrible person. I, too, am horrified every time I go through my discovery or I think about my past behavior.”

Apart from his sex crimes, Wilson — who had no prior criminal record — said “99 percent of my life, I was doing positive things. I had a fiancee who was the love of my life, two dogs and an amazing circle of friends. I directed the marketing for a $40 billion company, overseeing 30 countries and managing a team of over 100 people.”

He said he volunteered with San Diego County’s Muscular Dystrophy Association as well as numerous fundraising efforts for San Diego Police Department’s Fallen Angel Foundation.

“I have an amazing sister, Sarah, and she’s helped me through these difficult times,” he said. “Sarah is a Children’s Hospital chief doctor, and she shares with me various families’ heartbreaking stories of loss, as well as triumphs of families beating impossible odds, and it really affects me.”

He concluded: “Your Honor, in the future, I swear to you, I will never contribute to any family’s heartbreak in any form. The last thing I wanted to be in this life was the villain, the bad guy. I am a person who is not wired to be this way. Hurting children, or anyone, for that matter, is incomprehensible to me. My point being, if I am ever released into society again, my past behavior will never happen again and my therapy and quest for forgiveness will never end.”

Lawyer Sevilla, 76, once profiled by The San Diego Union-Tribune for his books documenting courtroom humor, says he spoke with Wilson on Tuesday.

“We are a long way from predicting or guesstimating relief for him,” he said.

*An earlier version of this report incorrectly said Wilson lived in Mission Valley.

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