MEMORANDUM OPINION
Defendant Lauden Sullivan seeks suppression of all evidence seized from his residence at 1216 West Jackson Street, Painesville, Ohio on January 22, 2016, as well as statements made by Sullivan to federal agents. (Doc. No. 13 [“Mot.”].) It is defendant’s position that a 2015 warrant issued by a magistrate judge sitting in the Eastern District of Virginia, which permitted the FBI to monitor a site devoted to the advertisement and dissemination of child pornography and deploy a Network Investigative Technique (“NIT”) to identify users who visited the website, was void (hereinafter this warrant, attached to defendant’s motion at Doc. No. 13-1, shall be referred to as the “NIT Warrant”). Because it is undisputed that the NIT Warrant led to the FBI’s discovery that Lau-den had visited the website and supplied probable cause for the 2016 residential search, defendant argues that the evidence and statements must be suppressed as fruits of the poisonous tree. The govern
Defendant’s motion to suppress raises interesting issues relative to the interplay between recent technological advancements and the Fourth Amendment. However, the Court does not write on a clean slate. Given the fact that the underlying investigation was one of the largest sting operations targeting a child porn website—“the Playpen” or “Website A” (as it is referred to in the supporting affidavit)— it is not surprising that dozens of district courts have already written on the enforceability of the very same Virginia warrant that is at issue in this case. The Court has the benefit of these opinions, in addition to the informative and well-written briefs supplied by the government and defendant in the present case.
The Court concludes that the initial search of defendant’s computer did not violate the Fourth Amendment, and further finds that, even if the search was unconstitutional, suppression would not be appropriate. Accordingly, and for the reasons set forth below, the Court denies defendant’s motion to suppress.
I. Background
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), the Court directs the reader to two prior decisions. See United States v. Jean, No. 5:15-CR-50087,
For purposes of framing the issues presented in defendant’s motion, the Court relies on the succinct explanation supplied in a prior case from this judicial district, United States v. Libbey-Tipton, Case No. 1:16-CR-236, Doc. No. 19 (N.D. Ohio Oct. 19, 2016). There, the court wrote:
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.” Website A contains various sections and forums related to child pornography. Website A requires users to install publically available computer software [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 cause 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.
Using the NIT, the FBI determined that a person going by the username of “554422” created an account on Website A on January 21, 2015, and that, on March 1, 2015, the same person logged into the website, during which he accessed several
On January 19, 2016, Magistrate Judge William H. Baughman Jr., sitting in the Northern District of Ohio, issued a warrant to search the Painesville residence and seize any evidence related to child exploitation (hereinafter this warrant shall be referred to as the “Residential Warrant”). During the January 22, 2016 residential search, agents seized a computer from Sullivan’s bedroom. In an interview conducted the same day by law enforcement, Sullivan admitted to accessing TOR on his computer, but he denied possessing or viewing any child pornography on his computer. A subsequent search of defendant’s computer revealed approximately 662 images and 145 videos of suspected child pornography.
On August 24, 2016, a two-count indictment was returned against Sullivan. Count 1 charges defendant with receipt and distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2). Count 2 charges Sullivan with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Defendant was arrested on these charges on August 31, 2016. During his transport to court to be processed and arraigned, and after being provided his Miranda warnings, Sullivan told an FBI agent, “I only looked at [TOR] one time.”
II. Law and Discussion
The key to this and other cases that have grappled with the constitutionality of the NIT Warrant was that Website A was located in the Eastern District of Virginia during the brief period it was operated by the FBI, but was communicating with computers that attempted to log onto the website from all over the country. As previously noted, defendant Sullivan’s computer, for example, was physically located in Painesville, Ohio.
A. A Magistrate Judge’s Authority to Issue Warrants
The Federal Magistrates Act provides that “[e]ach United States magistrate judge serving under [the Act] shall have 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” certain duties, including among other things “all powers and duties conferred or imposed ... by the Rules of Criminal Procedure for the United States District Courts[.]” 28 U.S.C. § 636(a)(1).
Rule 41(b) of the Federal Rules of Criminal Procedure addresses a federal magistrate judge’s authority to issue warrants. Rule 41(b)(1) extends to a magistrate judge the authority to issue warrants “to search for and seize” persons and property within the district in which she sits. The remaining provisions set forth specific instances wherein a magistrate judge may issue a warrant for persons and property that be located, or travel, outside her jurisdiction. Relevant to defendant’s suppression motion, Rule 41(b)(4) permits a magistrate judge to issue a warrant to install within the district a “tracking device” so that law enforcement can track the movement of persons and property within and outside the judicial district.
Additionally, Rule 41(b) was recently amended to add another exception to the requirement that the property to be
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 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
[[Image here]]
Defendant does not dispute that the NIT Warrant could have been properly issued under Rule 41(b)(6), had that provision been available to the Virginia magistrate judge on February 20, 2015. Sullivan further concedes, as he must, that any district court judge in the Eastern District of Virginia could have issued the warrant under the existing law in 2015.
B. Prior Decisions Addressing the NIT Warrant
Courts that have previously addressed the NIT Warrant have reached varying conclusions on the legal issues at play. 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. Lough, No. 1:16-CR-18,
The vast majority of courts, including another judicial officer of this Court, 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,
A small handful of courts have concluded that the NIT Warrant was unlawfully issued and suppressed all fruits of it. See United States v. Croghan, No. 1:15-CR-48,
C. The NIT Warrant does not Violate Rule 41(b)
The government insists that case law dictates that Rule 41(b) is to be interpreted broadly. In support, it cites United States v. N.Y. Tele. Co.,
The starting point for the Court’s analysis is Rule 41(b)(1), which permits a warrant for a search within the issuing magistrate judge’s district. The ending point is Rule 41(b)(4), which allows magistrate judges to issue warrants for “tracking devices” that are installed within the district. As an initial matter, defendant argues that Rule 41(b)(1) cannot apply because neither he, nor his computer, ever physically entered the Eastern District of Virginia. This may be true, but it is equally true that the agents monitoring Website A never physically left the Eastern District of Virginia. Still, a search took place. The Court must, therefore, determine where
The Court finds persuasive guidance from courts that have determined that the search actually took place in Virginia. In Darby, the court reasoned that “[u]sers of [Website A] digitally touched down in the Eastern District of Virginia when they logged into the site. When they logged in, the government placed code on their home computers. Then their home computers, which may have been outside of the district, sent information to the government about their location.” Darby,
Once a visitor entered Virginia by logging onto the website and downloading pornography, NIT was deployed and certain discrete 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 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.
Lough,
Courts that have rejected the idea of a virtual tracking device have done so on the ground that the NIT did not obtain the website user’s IP address by tracking data but did so by searching the user’s computer. See Workman,
However, defendant argues that the fact that Rule 41(b) has since been amended to specifically include a provision allowing for a warrant in situations where a suspect is using encryption software to conceal or mask his location is definitive evidence that the rule as it existed in 2015 could not support the NIT Warrant. He cites a May 4, 2014 letter from the Chair of the Advisory Committee on Criminal Rules to the Chair of the Committee on Rules of Practice and Procedure.
The Court finds that the NIT Warrant did not violate Rule 41(b). Defendant voluntarily and deliberately came to the Eastern District of Virginia when he took affirmative steps to log into the Playpen website by entering a username and password. (See NIT Warrant, Attachment A, at 216.) It is undisputed that the NIT software could not have been deployed if defendant had not made this virtual trip. See Lough,
D. Any Alleged Violation of Rule 41(b) Would not Require Suppression
In the end, the question of whether the NIT Warrant violated Rule 41(b) is academic, as the Court agrees with the vast majority of courts that have held that any alleged violation would not trigger 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 rehable 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, first 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. (Mot. at 53 (citing, among authority, Levin,
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 before this Court demonstrates that the FBI agents 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, (again, assuming that 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) clearly and specifically provides for the very type of warrant that is at issue in this ease. See Fed. R. Civ. P. 41(b)(6). Additionally, as previously observed, the exclusionary rule is directed to controlling the conduct of law enforcement and not the conduct of members of the judiciary. See, e.g., Broy,
III. Conclusion
For all of the foregoing reasons, defendant’s motion to suppress (Doc. No. 13) is denied.
IT IS SO ORDERED.
Notes
. The Court recognizes that some courts have rejected the notion that Rule 41(b) should be interpreted broadly. For example, in Adams, the court observed that neither N.Y. Tele, nor Koyomejian "authorize a magistrate judge to authorize a search of property outside his or her district pursuant to Rule 41(b)(1). This Court recognizes that some flexibility in the type of search is appropriate, but the Court is unwilling to expand the authority of the magistrate judge beyond the geographic limitations clearly established by Rule 41(b).” Adams,
. It is no different than a situation wherein a drug supplier ventures to the Eastern District of Virginia to obtain his shipment of drugs for subsequent distribution to various drug dealers, at which time law enforcement place a traditional physical tracking device on his vehicle. If the drug supplier returns to his home, parks his car in his driveway, and then has the individual drug dealers come to his house to receive their supply of drugs, one would not say that the device has ceased to be a tracking device merely because the vehicle to which it is attached ceases to move. Rather, it continues to send location information'— albeit the same information—to the monitoring agents.
. Available at http://www.courts.gov/sites/ defaull/files/fr_imporl/ST2014-05 .pdf pp. 484-485.
- Defendant also argues that the NIT Warrant does not satisfy the particularity requirement because the warrant did not identify the computer in his Painesville, Ohio home as the place to be searched. (Mot. at 51-52.) The fourth Amendment requires a warrant to "particularly describe[e] the place to be searched, and the persons or things to be • seized.” U.S. Const, amend. IV. "The purpose of this particularity requirement is to prevent the use of general warrants authorizing wide-ranging rummaging searches in violation of the Constitution’s proscription against unreasonable searches and seizures.” United States v. Logan,
. In reaching the conclusion that the good faith exception did not apply to the NIT Warrant, the court in Levin acknowledged the Sixth Circuit’s decision in Masters, noting that the Sixth Circuit was one of the few appellate courts to reach the question of whether Leon’s good-faith exception applies when a warrant is void ab initio. In rejecting the analysis and conclusion of Masters, the court in Levin suggested that the Sixth Circuit interpreted "the Supreme Court’s recent good-faith cases too broadly.” Levin,