United States v. JonesUnited States v. Jones
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
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 tо obtaining the IP address 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
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 have within the district in which sessions аre 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[.]
Primary to our purposes,
Additionally, effective December 1, 2016,
a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic stоrage 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 reached a variety of conclusions on the legality of the NIT warrant. Numerous courts have determined that the magistrаte judge possessed adequate authority to issue the NIT warrant under
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,
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 comprised of packets of information. Once there, the FBI attached a digital electronic tracking device to those paсkets, 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
Even if the NIT warrant violated
Because operation of the rule carries the heavy societal cost of suppressing othеrwise 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 excеption 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 preсedent, 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 pоssible benefit to be achieved by suppression if the magistrate judge had acted without authority and violated
III. Conclusion
Thus, even assuming a search occurred, and further assuming the magistrate judge did nоt have authority under
To the extent Defеndant 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,