United States v. Croghan, 209 F. Supp. 3d 1080

Background

FBI seized the Playpen child-pornography site, hosted on a server in Eastern District of Virginia, and ran a government-controlled copy to identify site users.
The FBI obtained an Eastern District of Virginia warrant authorizing a Network Investigative Technique (NIT) to be deployed via the site for 30 days to collect identifying data from any user who logged in.
The NIT caused code to install on visitors’ “activating” computers and transmit IP addresses, MAC addresses, host names, OS details, and unique identifiers back to FBI-controlled servers.
The NIT produced usernames and IP addresses that led investigators, via ISPs and subpoenas, to Beau Croghan and Steven Horton in Iowa; separate Iowa search warrants followed and evidence was seized.
Defendants moved to suppress contending the NIT warrant violated Fed. R. Crim. P. 41(b) and thus any evidence derived from it (including evidence seized under the Iowa warrants) must be suppressed; government argued Rule 41(b)(4) authorized the NIT and invoked Leon/good-faith.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the EDVA magistrate had authority under Rule 41(b) to issue the NIT warrant	Gov: Rule 41(b)(4) (tracking-device exception) covers the NIT because users "virtually" touched down in EDVA and the NIT functioned like a tracking device	Defs: The property searched (activating computers) were outside EDVA; NIT is not a "tracking device" as defined and Rule 41(b)(4) does not apply	Court: Magistrate lacked authority under Rule 41(b); Rule 41(b)(4) does not reach this NIT warrant
Whether the Rule 41(b) violation was constitutional (void ab initio) or merely procedural	Gov: Any Rule 41 defect was nonconstitutional or saved by good faith; defendants had no reasonable expectation in IPs	Defs: Jurisdictional defect renders warrant void; NIT intruded on privacy of home computers where data resided	Court: Violation was jurisdictional → warrant void ab initio; the NIT search was effectively warrantless
Whether suppression is the appropriate remedy for the Rule 41 violation	Gov: Exclusion unnecessary; Leon good-faith exception applies; no expectation of privacy in IP/subscriber info	Defs: Suppression required; evidence from Iowa warrants fruit of poisonous tree; Leon inapplicable where warrant void	Court: Suppression required for all evidence obtained from and derived from the NIT and Iowa warrants; Leon does not save evidence from a void warrant
Whether defendants had an objectively reasonable expectation of privacy in the information collected by the NIT	Gov: No reasonable privacy interest in IP/subscriber info (citing third-party disclosure cases)	Defs: Distinction between third-party records and forcing data off home computers; expectation in computers and home locations where data stored	Court: Defendants had privacy interests in their home computers; obtaining data directly from computers required a valid warrant

Key Cases Cited

United States v. Leon, 468 U.S. 897 (1984) (establishes the good-faith exception to exclusionary rule)
Wong Sun v. United States, 371 U.S. 471 (1963) (fruits of the poisonous tree doctrine)
Riley v. California, 134 S. Ct. 2473 (2014) (distinguishes third-party records from data stored on a cell phone/computer)
Davis v. United States, 564 U.S. 229 (2011) (exclusionary rule deterrence analysis)
United States v. Wheelock, 772 F.3d 825 (8th Cir. 2014) (discusses expectation of privacy in ISP subscriber information)
United States v. Krueger, 809 F.3d 1109 (10th Cir. 2015) (analyzes when Rule 41 defects implicate the Fourth Amendment)
United States v. Schoenheit, 856 F.2d 74 (8th Cir. 1988) (Rule 41 violations do not automatically require exclusion)
United States v. Hyten, 5 F.3d 1154 (8th Cir. 1993) (suppression for Rule 41 violations requires prejudice or reckless disregard unless constitutional)
United States v. Freeman, 897 F.2d 346 (8th Cir. 1990) (prejudice and reckless-disregard standards for Rule 41 violations)
United States v. Glover, 736 F.3d 509 (D.C. Cir. 2013) (warrants issued without jurisdiction are void and raise serious Rule 41 concerns)