ENTRY AND ORDER DENYING IN PART DEFENDANT’S MOTION TO SUPPRESS, DOC. 33, AND AMENDED MOTION TO SUPPRESS. DOC. 53. DEFENDANT’S REQUEST THAT THE COURT SUPPRESS EVIDENCE DERIVED FROM A NETWORK INVESTIGATIVE TECHNIQUE SEARCH WARRANT IS DENIED.
Pеnding before the Court are Defendant’s Motion to Suppress, doc. 33, and Amended Motion to Suppress. Doc. 53. Therein, Defendant requests that the Court suppress evidence in this case derived from a network investigative technique, or NIT, search warrant, a subsequent search warrant to' search Defendant’s residence, and to suppress all statements made during Defendant’s detention and arrest.
Defendant asserts that the network investigative technique search warrant was unconstitutional because the issuing court lacked jurisdiction to execute it and it violated Federal Rule of Criminal Procedure 41. One basis Defendant proposes for suppressing the subsequent search warrant of Defendant’s residence is that it was based in part on evidence obtained by means of the network investigative technique warrant, and thus, fruit of the рoisonous tree. Wong Sun v. United States,
I. Background
In January 2015, the FBI determined that a child pornography site operating on TOR (“the onion network”) was hosted in North Carolina.
On or about February 20, 2015, the government obtained an order from the Eastern District of Virginia allowing it to seize control of the operation of “Website A,” which is also known as “Playpen.” Website A contains various sections and forums related to child pornography. Website A requires users to install public[ ]ly available computersoftware [called TOR or an “onion router”] before accessing the site. The software prevents someone attempting to monitor the internet connection from learning the user’s physical location by routing communications through other locations. In this way, law enforcement cannot ascertain through public lookups the location of the users of Website A.
Pursuant to the Virginia warrant, the government was authorized to deploy a Network Investigative Technique (“NIT”). Each time a user logged onto Website A with a username and password, the FBI deployed the NIT which sent signals to the user’s computer. Those communications were designed to cаuse the user’s computer to deliver information to the government that identified the actual location of the user. The information included, among other things, the user’s actual IP address. Id. at *1-2.
Sullivan,
As a result of deploying the NIT, law enforcement was able to determine that a user with the moniker “billypedo” had originally registered an account on Playpen on or about February 11, 2015. (Ex. B, Search Warrant and Application for 307 South Second Street (3:15-mj-270 (S.D. Ohio)) (“307 South Second Street Search Warrant”), ¶¶ 25-26.) According to data obtained from Playpen, “billypedo” logged onto Playpen multiple times between February 11 and March 2, 2015. (Id., ¶¶ 27-28.) The deployment of the NIT identified that the “billypedo” user accessed Playpen from IP address 71.67.116.75 on February 26, 2015 and viewed several files containing child pornography. (Id.)
In addition to obtaining the IP аddress from which “billypedo” accessed Playpen, law enforcement also learned the “name” and “logon” of the computer “billypedo” used to access the site on February 26, 2015. (Id., ¶ 29.) Law enforcement ultimately determined that the above IP address was operated by Time Warner Cable. Information received from Time Warner showed that Jones was the subscriber associated with the IP address, and that his account was activated in July 2014, remained active as of March 3, 2015, and was tied to an address in Sidney, Ohio. (Id., ¶ 30.)
The FBI subsequently learned that Jones was a registered sex offender based on an earlier 2003 adjudication in Illinois. (Id., ¶ 32.) Jones’ sex registration paperwork indicated that he had lived from August 2014 until June 2015 at the same Sidney, Ohio address as was listed in the Time Warner records, but was now residing on South Second Street in Anna, Ohio. (Id., ¶¶ 32-33.)
Based on the foregoing, on August 21, 2015, the FBI executed a search warrant at Jones’ South Second Street residence. The FBI seized multiple pieces of electronic media that day containing over 2,300 images of child pornography. Jones and his then fiancée were present during the search warrant. (Id., ¶¶ 54-55.) Jones’ fiancée confirmed that they obtained Internet service through Time Warner, and that they had previously lived in Sidney, Ohio. (Id., ¶ 55.)
On February 25, 2016, a federal grand jury in the Southern District of Ohio returned an indictment charging Jones with two counts of coercion and enticement of a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (Counts 1 & 4), six counts of production or attempted production of child pornography, in violation of 18 U.S.C. § 2251(a) & (e) (Counts 2, 3, 5, 7, 8, 9), one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) & (b)(1) (Count 6), one count
II. Analysis
An analysis of whether the issuing magistrate of the NIT warrant begins with the Federal Magistrates Act, under which:
Each United States magistrate judge serving under [the Act] shall havе within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law—
(1) all powers and duties conferred or imposed.. .by the Rules of Criminal Procedure for the United States District Courts[.]
28 U.S.C. § 686(a)(1).
Primary to our purposes, Rule 41(b) of the Federal Rules of Criminal Procedure grants a federal magistrate judge authority to issue warrants “tо search for and seize” persons and property within the district in which the magistrate sits. Now and at the time the NIT warrant issued, Rule 41(b) sets forth specific instances when a magistrate judge may issue a warrant for persons or property that may be located, or travel, outside the magistrate’s judicial district. Included in this is authority for a magistrate judge to issue a warrant to install within the district a “tracking device” so that law enforcement сan track the movement of persons and property within and outside the judicial district.
Additionally, effective December 1, 2016, Rule 41(b) was amended to add another exception to the requirement that the property to be searched and the persons to be seized be found in the magistrate judge’s district. Subsection 41(b)(6)(A), now provides:
a magistrate judge with authority in any district where activities related to a crime may hаve occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if.. .the district where the media or information is located has been concealed through technological means....
Courts that have addressed the NIT warrant have reaсhed a variety of conclusions on the legality of the NIT warrant. Numerous courts have determined that the magistrate judge possessed adequate authority to issue the NIT warrant under Rule 41(b), such that there was no legal violation that would require suppression. See United States v. Sullivan, No. 1:16-CR-270,
The vast majority of courts have found that, while the NIT warrant may have been issued unlawfully, suppression was not warranted, either under the exclusionary rule in general, or pursuant to the good faith exception set forth in United States v. Leon,
Four cases, including United States v. Levin,
Rule 41(b)(1) permits a warrant for a search within the issuing magistrate judge’s district. Rule 41(b)(4) allows magistrate judges to issue warrants for “tracking devices” that are installed within the district. Defendant argues that Rule 41(b)(1) cannot apply because neither he nor his computer ever physically entered the Eastern District of Virginia. Likewise, agents monitoring the website never physically left the Eastern District of Virginia.
The Court finds persuasive guidance from courts that have determined that the search actually took place in Virginia. United States v. Darby,
Once a visitor logged onto the website in Virginia and downloaded pornography, NIT was deployed and identifying information was sent by the user’s computer. Thus, NIT operated as a virtual tracking device. One court explained the entire process as such:
[The defendant] took a virtual trip to the Eastern District of Virginia, but rather than travel by car, he traveled digitally—his vehicle was cоmprised of packets of information. Once there, the FBI attached a digital electronic tracking device to those packets, which [the defendant] virtually rode back to the Northern District of West Virginia. Upon his virtual return, [the defendant] parked his digital vehicle built of those packets of information on his computer, rather than in his driveway. At that point, the NIT sent back his digital address, just as a GPS tracker would send back his coordinates.
United States v. Lough,
Some courts have rejected the idea conceptualizing the NIT as obtaining the website user’s IP address by tracking data, seeing it instead as searching the user’s computer. See United States v. Workman,
That Rule 41(b) has been amended to include language allowing for a warrant in situations where a suspect is using encryption software to conceal or mask his location does not necessarily mean that the rule as it existed in 2015 did not allow the NIT warrant. Defendant voluntarily and deliberately came to the Eastern District of Virginia when hе took affirmative steps to log into the Playpen website by entering a username and password. The NIT software could not have been deployed if Defendant had not made this virtual trip. See Lough,
Even if the NIT warrant violated Rule 41(b), any alleged violation would not cause this Court to utilize the exclusionary rule. While the Fourth Amendment protects against unreasonable searches and seizures, it does not contain an enforcement mechanism. The exclusionary rule is a “judicial innovation,” United States v. Clariot,
Because operation of the rule carries the heavy societal cost of suppressing otherwise reliable evidence of unlawful behavior, it is not “an automatic consequence of a Fourth Amendment violation.” Herring v. United States,
The good-faith exception to the exclusionary rule announced in Leon recognizes the balance between enforcement of the Fourth Amendment and society’s interest in punishing criminal conduct. See Davis,
Relying primarily upon the Massachusetts decision in Levin, Defendant argues that the good-faith exception finds no application in the present case because the magistrate judge exceeded her jurisdiction, rendering the warrant void ab initio.
Applying the balancing test required by Supreme Court and Sixth Circuit precedent, the Court finds that, even if the magistrate judge exceeded her jurisdiction, suppression is not warranted because the record demonstrates that the FBI agents in the Eastern District of Virginia acted with good faith by diligently gathering information before submitting a detailed affidavit that fully apprised the issuing magistrate judge of all aspects of the NIT process, including the fact that the server for Website A would, at all times, be located in the Eastern District of Virginia, while the activating computers may be located outside the district. See Ammons,
The only possible benefit to be achieved by suppression if the magistrate judge had acted without authority and violated Rule 41(b), would be to deter future magistrate judges from making the same mistake. Yet, as of December 1, 2016, Rule 41(b) expressly provides for the type of warrant that is at issue in this case. See Fed. R. Civ. P. 41(b)(6). Moreover, the exclusionary rule is directed to controlling the conduct of law enforcement and not the conduct of members of the judiciary. See, e.g., United States v. Bray,
III. Conclusion
Thus, even assuming a seаrch occurred, and further assuming the magistrate judge did not have authority under Federal Rule of Criminal Procedure 41(b) to issue the warrant (which she did); the evidence should not be suppressed under Leon’s good faith exception. Defendant’s Motion to Suppress, doc. 33, and Amended Motion to Suppress, Doc. 53, are DENIED IN PART. Evidence in this case derived from the network investigative technique search warrant will be admissible, and, as such, the fruit оf the poisonous tree doctrine does not apply.
To the extent Defendant seeks to suppress evidence of statements made at his residence, as involuntary or in violation of Miranda, a hearing will be held.
DONE and ORDERED in Dayton, Ohio on Wednesday, February 1, 2017.
Notes
. For a thorough understanding of the technology at issue here, including the TOR software (which is used to conceal a user's IP address), NIT software (which is used by law enforcement to send instructions to a computer running TOR to reveal its true location), as well as the nature of the hidden or dark web (where websites like Website A operate in relative secrecy), see United States v. Jean, No. 5:15-CR-50087,
