United States v. Derek Tagg
886 F.3d 579
| 6th Cir. | 2018Background
- In 2015 FBI agents used a network investigative technique (NIT) on the Tor-hidden site “Playpen” to identify users; one identified user was Derek Tagg (pseudonym “derpderk”).
- The affidavit for the residential warrant reported Tagg spent ~5 hours on Playpen, clicked >160 links, browsed indexes including “Pre-Teen Videos” and “Girls HC,” and visited pages with titles indicating hard-core child sexual content; it did not allege Tagg actually viewed or downloaded specific illegal images.
- A magistrate issued a warrant for Tagg’s residence based on 18 U.S.C. § 2252A(a)(5)(B) (access with intent to view child pornography); search of Tagg’s home recovered >20,000 child-pornography files.
- Tagg moved to suppress, arguing the residential warrant lacked probable cause (because it did not allege actual viewing) and that officers could not reasonably rely on it; the district court granted suppression.
- The government appealed; the Sixth Circuit reviewed de novo whether the warrant affidavit supplied probable cause and whether the nexus to Tagg’s residence was established.
Issues
| Issue | Government's Argument | Tagg's Argument | Held |
|---|---|---|---|
| Probable cause for residential search | Affidavit showed Tagg deliberately accessed a site that contained child pornography, spent hours clicking explicit links, demonstrating intent to view; probable cause is a practical, totality-of-circumstances inquiry | Affidavit failed to show he actually viewed illegal images; mere presence on site or browsing lawful erotica is insufficient | Warrant supported probable cause. Court: visiting, prolonged browsing, and deliberate access to site and explicit forums gave reasonable officer cause to suspect access-with-intent offense |
| Whether accessing without viewing can constitute crime under §2252A(a)(5)(B) | Statute punishes knowingly accessing with intent to view; the offense completes when access and intent coincide — viewing is not required for probable cause | Without proof of viewing or possession, intent cannot be inferred for probable-cause purposes | Court: statute criminalizes access-with-intent; reasonable inference of intent from Tagg’s conduct sufficed for probable cause |
| Nexus between online activity and residence | FBI linked the IP address from NIT data to Tagg’s residence and observed his comings/Goings; precedent permits residential nexus via IP | Mere use of a computer doesn’t automatically link crime to home; more is required | Court: IP-address linkage plus observed entry/exit provided the necessary nexus to search the home |
| Relevance of out-of-circuit precedents (e.g., Falso, Raymonda, Edwards) | Those cases are either consistent with or distinguishable from Tagg’s facts; some actually support finding probable cause for registered/members-only site activity | Cited out-of-circuit authority to argue affidavit insufficient (e.g., Falso, Edwards) | Court: those cases do not control and are distinguishable; Tagg’s sustained, targeted browsing differs materially |
Key Cases Cited
- District of Columbia v. Wesby, 138 S. Ct. 577 (2018) (probable cause is a practical, totality-of-the-circumstances inquiry; courts must not dissect affidavits excessively)
- Gates v. Illinois, 462 U.S. 213 (1983) (establishes ‘‘substantial basis’’ deference to magistrate probable-cause findings)
- Florida v. Harris, 568 U.S. 237 (2013) (probable cause concerns probabilities warranting reasonable caution)
- United States v. Frechette, 583 F.3d 374 (6th Cir. 2009) (subscription/extended use of child-porn site can support probable cause to search)
- United States v. Wagers, 452 F.3d 534 (6th Cir. 2006) (visiting or subscribing to child-porn sites creates reasonable inference of stored child pornography)
- United States v. Elbe, 774 F.3d 885 (6th Cir. 2014) (IP-address linkage can establish nexus between online activity and residence)
- United States v. Kinison, 710 F.3d 678 (6th Cir. 2013) (discusses nexus and logic of searching home where child-pornography images are likely kept)