United States v. Perdue, 237 F. Supp. 3d 471

Background

In early 2015 the FBI seized the server hosting “Playpen,” a Tor-hidden child‑pornography website, copied it, and operated the site from an FBI server in the Eastern District of Virginia.
The FBI deployed a network investigative technique (NIT) embedded in files on the site to cause visitors’ computers to transmit identifying data (including real IP addresses) to the FBI.
On Feb. 23, 2015 Perdue accessed Playpen via Tor from Texas, downloaded content that delivered the NIT, and the NIT reported his IP and identifying information to the FBI in Virginia.
The FBI subpoenaed Perdue’s ISP, obtained his identity, searched his residence, found child pornography and other inculpatory evidence, and Perdue confessed to accessing Playpen.
Perdue was indicted for receipt and possession of child pornography and moved to suppress the NIT-derived evidence (arguing the Virginia magistrate lacked authority under Rule 41(b) and § 636(a)) and to dismiss the indictment as an outrageous-governmental-conduct violation of due process.
The court found the NIT warrant exceeded a magistrate judge’s Rule 41(b) authority but applied the Leon good‑faith exception and denied suppression; it also rejected Perdue’s outrageous‑conduct due‑process claim and denied dismissal.

Issues

Issue	Perdue's Argument	Government's Argument	Held
Whether the Virginia magistrate had authority under Rule 41(b) and § 636(a) to authorize the NIT searching a computer in Texas	Magistrate lacked authority; warrant exceeded Rule 41(b) and § 636(a) because the searched computer was outside the issuing magistrate’s district	NIT functioned like a tracking device tied to activity in Virginia and therefore fell within Rule 41(b) authority	Court: NIT warrant exceeded magistrate authority under Rule 41(b) (warrant invalid as to magistrate’s geographic authority)
Whether suppression is required despite the Rule 41(b) defect	Warrant was void ab initio or the Rule 41(b) violation is jurisdictional and cannot be excused; government acted intentionally/forum‑shopped	Evidence admissible under Leon good‑faith exception because officers reasonably relied on the warrant and it was not clearly invalid at the time	Court: Good‑faith exception applies; suppression denied
Whether the Rule 41(b) violation amounted to a constitutional Fourth Amendment violation (precluding good faith)	Rule 41 violation is jurisdictional/substantive and implicates constitutional authority so exclusion is required	Rule 41 is a statutory/rule limitation, not a Fourth Amendment defect; magistrate error does not automatically render warrant unconstitutional	Court: Violation did not implicate the Fourth Amendment; good‑faith exception available
Whether government’s operation of Playpen was so outrageous as to violate due process and require dismissal	Operating the site, maintaining distribution, and facilitating uploads meant government ran the enterprise and instigated criminality — outrageous conduct	Government did not create Playpen, solicit users, or materially expand the site; defendants actively sought and downloaded content via Tor	Court: Conduct was not outrageous under Russell/Tobias framework; dismissal denied

Key Cases Cited

Katz v. United States, 389 U.S. 347 (recognizes warrant requirement under Fourth Amendment)
United States v. Leon, 468 U.S. 897 (good‑faith exception to exclusionary rule)
Wong Sun v. United States, 371 U.S. 471 (fruit of the poisonous tree/exclusionary rule principles)
United States v. Comstock, 805 F.2d 1194 (5th Cir.) (analysis of Rule 41 violations and suppression/prejudice)
United States v. Tobias, 662 F.2d 381 (government conduct may be reviewed for outrageousness but infiltration permitted absent government‑run enterprise)
United States v. Jean, 207 F. Supp. 3d 920 (district judge authority and discussion of NIT warrants)