MEMORANDUM
Gabriel Werdene (“Werdene”) was indicted on September 17, 2015 on one count of possessing and attempting to possess child pornography pursuant to 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). The indictment was based on evidence obtained during a June 17,-2015 search of Werdene’s Bensa-lem, Pennsylvania home, which was conducted in accordance with a warrant issued by a magistrate judge in this judicial district. The Federal Bureau of Investigation (“FBI”) identified Werdene after a magistrate judge in Virginia issued a warrant permitting agents to deploy software that revealed the IP addresses of visitors to a child pornography website called Playpen.
Playpen’s patrons accessed the website through software called “Tor,” an acronym for “The onion router.” Tor conceals the IP addresses of people who visit certain websites, in Werdene’s case a website purveying child pornography. Otherwise stated, Tor enables people to use websites like Playpen to view, upload and share child pornography without being identified by traditional law enforcement investigative methods. To circumvent Tor, the FBI used a Network Investigative Technique (“NIT”). The NIT caused software to be activated whenever a Playpen user logged into the website with his username and password. The software caused the Playpen user’s computer to reveal its IP address to the FBI. The search warrant issued by the Virginia magistrate authorized the NIT.
I.
Playpen operated on the “dark web,” a collection of websites that use anonymity tools to hide those websites’ IP addresses and mask the identity of their administrators. Websites on the dark web can only be accessed using certain software such as Tor. (See Gov’t. Mem. in Opp. to Def.’s Mot. to Suppress (“Gov’t’s Opp.”), Ex. 1 ¶¶7-10, ECF No. 21.) Playppn, as its name connotes in this context, was “dedicated to the advertisement and distribution of child pornography, [and] the discussion of matters pertinent to child sexual abuse.” (Id., Ex. 1 ¶ 6.) The website’s home page displayed an image of two partially clothed prepubescent females with their legs spread. (Id., Ex. 1 ¶ 12.) Upon arriving at the home page, a user was prompted to either register an account or login using his pre-existing username and password. (Id.) Prior to registering an account, a message was displayed which told the user, among other things, “NOT [to] ... enter a real [email] address” and “[f]or your security you should not post information here that can be used to identify you.” (Id., Ex. 1 ¶ 13.) The message also stated that “[t]his website is not able to see your IP address and can not [sic] collect or send any other form of information to your computer except what you expressly upload.” (Id.)
After successfully registering and logging into the site, the user reached a page which listed a number of “forums” or discussion boards on which users could post images, videos or text regarding various topics. The “forums” included “Jailbait— Boy,” “Jailbait—Girl,” “Preteen—Boy,” “Preteen—Girl,” “Jailbait Videos,” “Jail-bait Photos,” “Pre-teen Videos,” “Pre-Teen Photos,” “Family—Incest” and “Toddlers.” (Id., Ex. 1 - 14.) Within the pre-teen videos and photos forums were “subforums” titled “Girls [hardcore],” “Boys [hardcore],” “Girls [softcore/non-nude]” and “Boys [softcore/non-nude].”
Playpen also included features available to all users of the website referred to as
A.
Playpen operated on and was only accessible through Tor. (Id., Ex. 1 ¶ 7.) Unlike a public website, a user could hot reach Playpen through a traditional web search engine, such as Google. (Id., Ex. 1 .¶ 10.) Rather, he could only access the website by using Tor and inputting the “particular ... combination of letters and numbers that” matched Playpen’s specific Tor-based web address. (Id., Ex. 1 ¶¶ 9-10; Hr’g Tr. 38:9-13, EOF No. 29.)
Although the United States Naval Research Laboratory initially designed and implemented Tor for the primary purpose of protecting government communications, it is now “free software, [ ] available worldwide” to the public. (Gov’t’s Op'p., Ex. 1 ¶ 7; Hr’g Tr. 7:13-17.) In order to access the Tor network, a user must take affirmative steps to install the software on his computer by either downloading an add-on to his web browser or downloading the Tor software available on its website. (Gov’t’s Opp., Ex 1 ¶ 7.)
The use of Tor thwarts traditional IP identification and investigative techniques. (Id., Ex. 2 ¶23.) Under those traditional methods, FBI agents can review IP address logs after they seize a website to detennine which IP addresses visited the site. (Id., Ex. 1 ¶22.) They can then conduct a publicly available search to determine'. which internet service providers (“ISPs”) owned the target IP address and issue a subpoena to the ISP to ascertain the identity of the user. (Id.)
The Tor software masks a user’s IP address by “bouncing their communications around a distributed network of relay computers run by volunteers all around the world.” (Id., Ex. 1 ¶ 8.) As a result, “traditional IP identification techniques are not viable” because the last computer or “exit node” is not the IP address of the actual user who visits the website. (Id.; id., Ex. 2 ¶ 23.) It is also impossible to trace the IP address back to the originating computer. (Id., Ex. 2 ¶ 23.) The Tor network “operates similarly to a proxy server—that is, a computer through which communications are routed to obscure a user’s true location.” (Id., Ex. 1 ¶ 8.)
Tor also allows websites, such as Playpen, to operate as a “hidden service.” (Id., Ex. 1 ¶ 9.) Tor masks the website server’s IP address and replaces it with a Tor-based web address. (Id.) The Tor-based address is usually a series of algorithm-generated characters such as “asdlk8fs9dflku7f” followed by the suffix “.onion.” (Id.) The user may obtain Playpen’s specific address from other users or through a link posted on one of Tor’s “hidden services” pages dedicated to childpornography and pedophilia. (Id., Ex. 1 ¶ 10.)
B.
In December 2014, a foreign law enforcement agency informed the FBI that it suspected a United States-based IP address was associated with Playpen. (Id., Ex. 1 ¶ 28.) The FBI confirmed through a publicly available search that the IP address was owned by Centrilogic, a server hosting company headquartered in Lenoir, North Carolina. (Id.) The FBI subsequently obtained a search warrant for the server. (Id.) FBI agents examined the server
Additional investigation revealed that a resident of Naples, Florida had administrative control of Playpen and the computer server in Lenoir. (Id.) On February 19, 2015 FBI personnel executed a court-authorized search of the suspected administrator’s residence in Naples. (Id., Ex. 1 ¶30.) The FBI arrested the suspect and assumed administrative control of Playpen. (Id.) On February 20, 2015, Agent Macfar-lane applied to a United States Magistrate Judge in the Eastern District of Virgmia for a warrant to use the NIT while the FBI assumed administrative control of Playpen on a copy of its server in Newing-ton. (See generally id., Ex. 1.)
Agent Macfarlane stated in the warrant application that the NIT was necessary to overcome the obstacles presented by Tor’s masking capabilities. (Id., Ex. 1 ¶ 31.) He stated that “other investigative procedures that are usually employed in criminal investigations of this type have been tried and failed or reasonably appear to be unlikely to succeed if they are tried.” (Id.) The agent represented that the search would aid the FBI in its investigation by revealing “information that may assist in identifying the user’s computer, its location, and the user of the computer.” (Id., Ex. 1 ¶ 34.) He explained in the warrant application that the NIT would “augment” the normal content that websites send to its visitors with “additional computer instructions.” (Id., Ex. 1 ¶ 33.) Specifically, those instructions “are designed to cause the user’s ‘activating’ computer to transmit certain information to a computer con-; trolled by or known to the government,”f including the “activating” computer’s actual IP address.
Agent Macfarlane explained that the “NIT may cause an activating computer— wherever located—to send to a computer controlled by or known to the government network level messages containing information that may assist in identifying the computer, its location, other information about the computer and the user of the computer.”. (Id., Ex. 1 ¶46 (emphasis added).) In Attachment A to the warrant application, which identified the “place to be searched,” Agent Macfarlane stated that the NIT would be “deployed on the computer server.... located at a government facility in the Eastern District of Virginia.” (Id., Ex. 1 Attach. A.) It stated that the NIT would seek information from the “activating computers,” which “are those ■ of any user or administrator who logs into [Playpen] by entering a username and password.” (Id.) On February 20, 2015, the magistrate judge issued the search warrant. (Id., Ex. 1.)
C.
While monitoring activity on Playpen after seizing a copy of the sérver, FBI
On February 28, 2015, after the NIT had already been deployed, “thepervert” logged into Playpen by entering his user-name and password. (Id., Ex. 2 ¶ 28.) That triggered certain information on his computer, including his IP address, to be transmitted to the government. (Id.) During that browsing session, “thepervert” accessed forums depicting child pornography. (Id., Ex. 2 If 29.)
Using publicly available websites, FBI agents were able to determine that Com-cast Cable (“Gomcast”) operated the suspect’s IP address. (Id., Ex. 2 ¶ 30.) They served upon Comcast an administrative subpoena/summons requesting information related to the IP address associated with “thepervert.” (Id., Ex. 2 ¶ 31.) According to the information received from Comcast, the IP . address was assigned to Werdene. (Id., Ex. 2 ¶ 31-33.)
On June 17, 2015, FBI agents sought and obtained from a Magistrate Judge in the United States District Court for the Eastern District of Pennsylvania a warrant to search Werdene’s home in Bensalem for “evidence, contraband, [and] fruits/instru-mentalities” of child pornography. (Id.) On that same day, FBI agents searched Wer-dene’s home and obtained a laptop, a USB drive contained in a safe and one DVD, all containing child pornography. (Gov’t’s Opp. at 8.) Werdene lived alone and was not home at the time of the search. (Id.) FBI agents later interviewed him, where he admitted to using and downloading the material on his laptop. (Id.) Werdene was indicted on September 17, 2015. (Id.)
D.
On February 11, 2016 Werdene filed a motion to suppress all physical evidence seized from his home and “all fruits therefrom,” including any inculpatory statements he made. (Def.’s Mot. to Suppress at *1, ECF No. 19.) He argues that the government “knowingly circumvented” Federal Rule of Criminal Procedure 41, which “limits the authority of a magistrate judge to issue a warrant and “serves, as a bulwark against the very type , of sweeping dragnet searches and unrestrained government surveillance that occurred in this case.” (Def.’s Mem. in Supp. of Mot. to Suppress (“Def.’s Mem.”) at 9, ECF No. 19.) He argues that the violation of Rule 41 is “of constitutional magnitude” and the evidence seized pursuant to the NIT should be suppressed. (Id. at 15-16.) He further argues that even if the- Court does not find a constitutional violation, suppression is warranted because he was prejudiced by the government’s violation of the Rule. (Id. at 16-17.) Werdene also contends that the FBI acted with intentional and deliberate disregard of Rule 41 because - they misled the magistrate judge “with respect to the true location of the activating computers to. be searched.” (Id. at 17.)
The Government argues that “[t]he fact that Rule 41 does not explicitly authorize some procedure does not mean that those procedures are unlawful.” (Gov’t’s Opp.' at 17.) It argues that under these circumstances, Werdene’s use of Tor made it impossible for FBI agents to comply with the requirements of Rule 41 because he “made sure that his location could not be
E.
A number of federal courts have recently issued opinions in cases arising from the same NIT application and warrant issued in this ’case. See United States v. Levin, 15-cr-10271,
Although the courts generally agree that the magistrate judge in Virginia lacked authority under Rule 41 to issue the warrant, they do not all agree that suppression is required or even appropriate. Compare Michaud,
II.
Rule 41(b) describes five scenarios in which a magistrate judge has authority to issue a warrant. Subsection (b)(1) states the general rule that “a magistrate judge with authority in the district ... has authority to issue a warrant to search for and seize a person or property located within the district.” Fed. R. Crim. P. 41(b)(1). The following four subsections provide that that a magistrate judge has authority to issue a warrant: (2) “if the person or property is located within the district but might move or be moved outside the district before the warrant is executed;” (3) if the magistrate judge sits in a district in which activities related to terrorism have occurred; (4) to install a tracking device within the district, though the magistrate judge may authorize the continued use of the device if the person or object subsequently moves or is moved outside of the district; and (5) where the criminal activities occur in the District of Columbia, any United States territory, or on any land or within any building outside of the country owned by the United States or used by a United States diplomat. Fed. R. Crim. P. 41(b)(2)—(5).
Werdene argues that the NIT warrant “is not authorized under any of these sections, and, therefore, plainly unlawful.” (Def.’s Mem. at 11.) He contends that in
During the hearing, Werdene’s counsel introduced as the lone defense exhibit a Decembér 22, 2014 letter from United States Deputy Assistant Attorney General David Bitkower to Judge Reena Raggi, Chair of the Advisory Committee on Criminal Rules, regarding “Response to Comments Concerning Proposed Amendment to Rule 41.”
In a section titled “Concealed through technological means,” the letter states that “[ujnder the proposed amendment, a magistrate judge in a district where activities related to a crime may have occurred will have authority to issue a warrant for a remote search if the location of the computer to be searched ‘has been concealed through technological means.’” (Id. at 10.) Counsel for Werdene contends the lettér is evidence of a Rule 41 violation in her client’s case because “the law has not caught up with technology” and the evidence should be suppressed because • “a violation is ... a violation.” (Hr’g Tr. 17:15, 18:8-9.) The Court need not address whether or not law enforcement has to cease its investigative efforts while the process to amend the Federal Rules of Criminal Procedure plays out. As explained infra, a violation of Rule 41 does not end the inquiry. The facts of this case compel the ■ conclusion that suppression is unwarranted.
The Government does not contend that the NIT warrant falls within any specific subsection of Rule 41. (Gov’t’s Opp. at 15-20.) It instead argues that Rule 41 is flexible, and the failure of Rule 41 to “authorize some procedure does not mean that those procedures are unlawful.” (Id. at 17.) The Government highlights the predicament with which the FBI agents were faced: the Defendant’s use of Tor made it impossible for agents to know in which district it should seek a warrant, and they accordingly “sought [the] warrant in the only logical district—the one in which they had the server on which they would install the NIT.” (Id. at 16.)
“Rule 41(b) is to be applied flexibly, not rigidly.” Michaud,
Subsection (b)(1) states that a magistrate judge may issue a warrant “to search for and seize a person or property located within the district.” The Government does not attempt to argue here, as it has done in similar cases in other districts, that the NIT targeted property in the Eastern District of Virginia because the Defendant initiated contact with the server in that
That Congress has “not caught up” with technological advances does not change the fact that the target of the NIT in Wer-dene’s case was located outside of the magistrate judge’s district and beyond her jurisdiction under subsection (b)(1). The property to be seized pursuant to the NIT warrant was not the server located in Newington, Virginia, but the IP address and related material “[fjrom any ‘activating’ computer” that accessed Playpen. (Gov’t’s Opp., Ex. 1 Attach. A.) Since that material was located outside of the Eastern District of ’ Virginia, the magistrate judge did not have authority to issue the warrant under Rule 41(b)(1).
Subsections (b)(2)—(5) are also inapplicable to the NIT warrant: (b)(2) relates to a person or object located within the district at the time the warrant is issued but that the government has reason to believe might move or be moved outside the district; (b)(3) relates to terrorist activity; (b)(4) permits tracking devices to be installed on a person or property within the district; and (b)(5) allows the magistrate judge to issue a warrant when the activity occurs in certain territories outside of the district, none of which are applicable here. Subsections (b)(2) and (b)(4), the only provisions potentially applicable to this case, are both premised on the person or property being located within the district. It is uncontested that the computer information that the NIT targeted was at all relevant times located beyond the boundaries of the Eastern District of Virginia. The magistrate judge was accordingly without authority to issue the NIT warrant under Rule 41.
III.
“There are two categories of Rule 41 violations: those involving constitutional violations, and all others.” United States v. Simons,
To demonstrate that the violation of Rule 41 was of constitutional magnitude, Werdene must show a violation of his Fourth Amendment rights. See United States v. Martinez-Zayas,
Werdene does not argue that the Government violated his Fourth Amendment rights by seeking a warrant without probable cause. (Hr’g Tr. 23:16-22.) Rather, as the Government asserts, his argument is that Agent Macfarlane applied for the NIT warrant in the wrong district. (Gov’t’s Opp. at 15.) Werdene contends rather circularly that the Government’s “violation of Rule 41 is of constitutional magnitude because it did not involve mere ministerial violations of the rule.” (Def.’s Mot. at 16 (citation omitted).) He argues that the Fourth Amendment protects his use of his computer inside the privacy of his own home and “[allowing the Government to ignore the limits imposed by the Rule will invite further violations and undermine the core constitutional requirement that warrants particularly describe the place or places to be searched.” (Id. (citations omitted).)
The Supreme Court of the United States has “uniformly ... held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by the government action.” Smith v. Maryland,
In Smith, the Supreme Court addressed whether petitioner Michael Lee Smith had a reasonable expectation of privacy in the telephone numbers he dialed.
The Third Circuit has similarly held that an individual has “no reasonable expectation of privacy in his IP address and so cannot establish a Fourth Amendment violation.” United States v. Christie,
Werdene had no reasonable expectation of privacy in his IP address. Aside from providing the address to Comcast, his internet service provider, a necessary aspect of Tor is the initial transmission of a user’s IP address to a third-party: “in order for a prospective user to use the Tqr network they must disclose information, including them IP addresses, to unknown individuals running Tor nodes, so that their communications can be directed toward their destinations.” United States v. Farrell, No. 15-cr-029,
That Werdene’s IP address was subsequently bounced from node to node within the Tor network to mask his identity does not alter the analysis of whether he had an actual expectation of privacy in that IP address. In Smith, the petitioner argued that the numbers he dialed on his telephone remained private because they were processed through automatic switching equipment rather' than a live operator.
B.
Even if Werdene maintained a subjective expectation that, his IP address would remain private through his use of Tor, that expectation is not “one that society is prepared to recognize as ‘reasonable.’ ” Katz,
Stanley contended that the officers’ use of MoocherHunter constituted a warrant-less search and sought suppression of the evidence against him. Id. at 117. After- the district court denied his motion, the Third Circuit affirmed, holding that the officers did not conduct a “search” within ffie meaning of the Fourth Amendment because Stanley did not have a reasonable expectation of privacy in his wireless internet signal. Id. at 119-22.
The Third Circuit reasoned that “while Stanley may have justifiably expected the path of his invisible radio waves to go undetected, society would not consider this expectation ‘legitimate’ given the unauthorized nature of his transmission.” Id. at 120 (citing Rakas v. Illinois,
The Third Circuit further stated in Stanley that recognizing his expectation of privacy as “legitimate” would “reward him for establishing his Internet connection in
IV.
Werdene is left to contend that suppression is warranted even if the Government’s violation of Rule 41 was noncon-stitutional, procedural or “ministerial.” (Def.’s Mem. at 16-17.) He relies on the Tenth Circuit Court of Appeals’s suppression standard in the context of a nonconsti-tutional Rule 41 violation. Specifically, in United States v. Krueger,
consider[s] whether the defendant can establish that, as a result of the Rule violation (1) there was prejudice in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision of the Rule.
Id. at 1114.
The Third Circuit defines prejudice differently than the Tenth Circuit.
After assuming control of Playpen and moving its server to a government facility in Newington, Virginia, Agent Macfarlane sought and obtained a warrant to employ the NIT in the Eastern District of Virginia, (Gov’t’s Opp., Ex. 1 ¶¶ 28, 30.) Before activating the NIT, Agent Macfarlane did not—and could not—know that Werdéne resided in the Eastern District of Pennsylvania. Indeed, the only way in which the Government could have procedurally complied with Rule 41 was' either through sheer luck (ie., Werdene’s location happened to be within the Eastern District of Virginia) or by applying for a warrant in every one of the ninety-four federal judicial districts. Agent Macfarlane’s warrant application, which was approved by a neutral and detached magistrate, judge, described the NIT process in copious detail. (See generally Gov’t’s Opp., Ex. 1.) The warrant application states that the NIT would deploy “each time that any user or administrator log[ged] into Playpen by entering a username and password.” (Id., Ex. 1 ¶36.) This enabled the FBI to link a username and its corresponding activity to an IP address. (Id., Ex. 1 ¶37.) Agent Macfarlane specifically noted that the NIT could enable this process on users of Playpen “wherever located.” (Id., Ex. 1 ¶ 46.) The Government’s nonconstitutional violation of Rule 41 does not offend concepts of fundamental fairness or due process and Werdene’s motion to suppress cannot be granted on prejudice grounds. See United States v. McMillion, No. 08-cr-0205,
B.
Werdene also contends that the Government acted with intentional and deliberate disregard of Rule 41 because the FBI misled the magistrate judge “with respect to the true location of the activating computers to be searched.” (Def.’s Mem. at 17.) Werdene claims that this was “egregious! ] because it is a deliberate flaunting of the Rule[.]” (Hr’g Tr. 33:2-3.) A review of the record, and specifically Agent Macfarlane’s warrant application, shows no deception on the Government’s part. The warrant request was candid about the challenge that the Tor network poses, specifically its ability to mask a user’s physical location. (Gov’t’s Opp., Ex. 1 ¶¶ 28, 30.) Agent Macfarlane stated that the NIT would be deployed “each time” that “any user” logged into Playpen “wherever” they were “located.” (Id., Ex, 1 ¶ 46.) As discussed infra, Section V.D., the Government did not mislead the magistrate judge but was instead up front about the NIT’s method and scope.
V.
Even if Werdene had a reasonable expectation of privacy in the information ob
A.
When the Government seeks to admit evidence collected pursuant to an illegal search or seizure, the exclusionary rule operates to suppress that evidence and makes it unavailable at trial. See United States v. Katzin,
Whether suppression is appropriate • under the exclusionary rule is a separate question from whether a defendant’s Fourth Amendment rights were violated. See Hudson v. Michigan,
Application of the rule is instead “limited to those ‘unusual cases’ in which it may achieve its objective: to appreciably deter governmental violations of the Fourth Amendment.” Katzin,
The good faith exception to the exclusionary rule “was developed to effectuate this balance and has been applied ‘across a range of cases.’” Id. (quoting Davis,
B.
Werdene relies on United States v. Levin, No. 15-cr-10271,
In finding that the NIT warrant was a substantive violation of Rule 41(b), the Levin court reasoned that “the violation here involved ‘substantive judicial authority1 rather than simply ‘the procedures for obtaining and issuing warrants.’ ” Id. at 36,
The court went further, concluding that this jurisdictional flaw rendered the warrant “void ab initio.” Id. (citing, inter alia, United States v. Master,
The court also held that the good faith exception was not available in cases where a warrant was void ab initio and, therefore granted the motion to suppress. Id. at 38-43,
C.
Levin’s, reliance on Scott was misplaced, particularly given the court’s acknowledgement that “the Sixth Circuit effectively reversed [Scott]” in United States v. Master,
Whereas Scott effectively required the government to qualify for an exception to the general rule of suppression, the Supreme Court has since emphasized that the decision to exclude evidence is divorced from whether a Fourth Amendment violation occurred. The exclusionary rule’s purpose is instead to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.
Id. (citations and internal quotation marks omitted). The Sixth Circuit accordingly found that the good faith exception could apply in situations where the warrant was void ab initio. See id. at 242-43.
Rather than rely on Master, the court in Levin instead deférred to Scott, stating that “[t]he Master court read the Supreme Court’s recent good-faith cases too broadly.” Levin,
The Third Circuit has emphasized that courts “must be prepared to apply th[e] good-faith exception across a range of cases.” Katzin,
Additionally, as Master indicates, “the exclusionary rule was crafted to curb police rather than judicial misconduct.” Id. at 242' (citation omitted). Arguably, the magistrate judge’s lack of authority to issue the warrant has' no impact on police misconduct. See id. Applying the rule here without exception makes little sense where it was the magistrate, not the agents, who determined that she had jurisdiction. See, e.g., Emp’rs Ins. of Wausau v. Crown Cork & Seal Co.,
D.
The question is whether “the agents acted with a good faith belief in the lawfulness of their conduct that was ‘objectively reasonable.’” Katzin,
The agents in this case acted upon an objectively reasonable good faith belief in the legality of their conduct. Attachment A to the warrant application is titled “Place to be Searched” and specifically authorizes deployment of the NIT to “activating computers.” (Gov’t Opp., Ex. 1 Attach A.) “Activating computers” are defined as “those of any user or administrator who logs into [Playpen] by entering a username and password.” (Id.) Attachment A notes that the Eastern District of Virginia is where the NIT will be deployed. (Id.) Thus, an “objectively reasonable” reading of-the warrant gave the agents “authority to deploy the NIT from a government-controlled computer in the Eastern District of Virginia against anyone logging.onto Website A, with any information gathered by the NIT to be returned to the government-controlled computer in the Eastern- District of Virginia.” United States v. Michaud, No. 15-cr-05351,
Werdene claims that the Government acted with intentional and deliberate disregard of Rule 41 because the FBI misled the magistrate judge- “with respect to the true location of the activating computers to
While the Levin court found the good faith exception foreclosed in this scenario, it alternatively held that if the exception did apply, suppression was nonetheless appropriate. See Levin,
The court in Levin did not analyze the “costs” associated with suppression. The Supreme Court has stated that these costs are “substantial,” Leon,
Further, to the extent a mistake was made in this case, it was not made by the agents in “reckless ... disregard for Fourth Amendment rights.” Davis,
A magistrate judge’s mistaken belief that she had jurisdiction, absent any indi-cia of reckless conduct by the agents, does not warrant suppression. The Supreme Court has stated:
To the extent ... proponents of exclusion rely on its behavioral effects on judges and magistrates in these areas, their reliance is misplaced .... [Tjhere exists nb evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion .... And, to the extent that the rule is thought to operate as a “systemic” deterrent on a wider audience, it clearly can have no such effect on individuals empowered to issue search warrants. Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions. The threat of exclusion thus cannot be. expected significantly to deter them.
Leon,
Had the agents lied to the magistrate 'and told her that all the information being sought, would be gathered only in the Eastern District of Virginia, the Court’s analysis would likely change because suppression deters misrepresentations made to the Court. See, e.g., Franks,
Here, as in Katzin, “the Government’s evidence against [the defendant] is substantial, and it is uncontested that the Government would have no case without it.” Katzin,
An appropriate order follows.
Notes
. The parties refer to Playpen as “Website A,” ostensibly to preserve the anonymity of the site during the continued investigation of its users and administrators. A number of published articles and judicial opinions, see infra Section I.E, have already identified “Website A” as Playpen, eliminating the need for any further efforts to conceal its identity.
. FBI Special Agent Douglas Macfarlane (“Agent Macfarlane’’) stated in his warrant application to employ the NIT that "jailbait refers to underage but post-pubescent minors.” (Gov't's Opp., Ex. 1 ¶ 14 n.4.) Furthermore, "hardcore” typically depicts "penetrative sexually explicit conduct,” "softcore” depicts "non-penetrative sexually explicit conduct,” and "non-nude” depicts "subjects who are fully or partially clothed.” (Id., Ex. 1 ¶ 14 n.5.)
. Other information gathered from the NIT included: (1) a unique identifier generated by the NIT to distinguish data from that particular computer; (2) the type of operating system running on the computer; (3) information about whether the NIT has already been delivered to the "activating” computer; (4) the “activating” computer’s host name; (5) the “activating” computer’s active operating system username; and (6) the “activating” computer's media access control ("MAC”) address. (Gov’t’s Opp., Ex. 1 Attach. B.)
. The issue that the court addressed in Stamper was not suppression for violation of Rule 41, but instead suppression for violation of the Fourth Amendment.
. Judge Raggi sits on the United States Court of Appeals for the Second Circuit.
. In support of his argument, Werdene relies on In re Warrant to Search a Target Computer at Premises Unknown,
. Werdene does not argue that he had a reasonable expectation of privacy in the other material gathered by the NIT, including the type of operating system running on the computer, his computer's active operating system username and his computer's MAC address. Nor does Werdene contend that any of that information was material to the investigation of his activities and his subsequent identification.
. In Krueger, the Tenth Circuit adopted the Ninth Circuit’s suppression standard for non-constitutional violations of Rule 41 first articulated in United States v. Stefanson,
. The Government also argues that Krueger’s facts are distinguishable from this case. (Gov’t’s Opp. at 17.) In Krueger, Homeland Security Investigations (“HIS”) agents sought and obtained a warrant from a magistrate judge in the District of Kansas to search properties in Oklahoma. See United States v. Krueger,
. Werdene also argues that the Government violated Rule 41’s notice requirement. (Def.’s Mem. at 18-20.) A careful reading of Agent Macfarlane’s warrant application, however, shows that he requested the delay of any notice for up to 30 days under Rule 41(f)(3) and 18 U.S.C. § 3103(a)(b)(l) and (3) to avoid any tampering with Playpen while the investigation was ongoing. (Gov’t's Opp., Ex. 1 ¶¶ 38-41.) He also noted that due to the anonymity of Playpen's users, "the investigation has not yet identified an iappropriate person to whom such notice can be given.” (Id., Ex. 1 ¶ 40.) Regardless, even if the notice requirement was Violated, suppression is not an appropriate remedy because he was not prejudiced by the violation. See supra Section IV.A.
. Levin later noted that "[e]ven in Master ... the court acknowledged that the recent Su