MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO SUPPRESS AND MOTION TO DISMISS

(Dkt. Nos. 208 & 206)

MARK G. MASTROIANNI, District Judge.

I. INTRODUCTION

Defendant Victor Stepus is charged with receipt and possession of material involving the sexual exploitation of minors in violation 18 U.S.C. section 2252(a)(2) and (a)(4)(B). Before the Court are Defendant's "Amended Motion to Suppress" (Dkt. No. 206) and his "Motion to Dismiss for Outrageous Government Conduct" (Dkt. No. 208). The parties have briefed both motions, on which the Court held oral argument on Friday, February 9, 2018. For the reasons below both motions are DENIED.1

II. MOTION TO SUPPRESS (Dkt. No. 206)

Defendant's Motion to Suppress seeks to exclude all evidence obtained during the seizure and search of his computer on August 21, 2015. When represented by prior counsel, Defendant previously moved to suppress the same materials on other grounds. In the prior motion, Defendant argued the evidence was excludable because it had been acquired under a warrant that issued in the Eastern District of Virginia and therefore in violation of Federal Rule of Criminal Procedure 41. (Dkt. No 100). This court, noting a split of authorities on whether the good faith exception to the exclusionary rule discussed in United States v. Leon, 468 U.S. 897 (1984) applied to the Virginia warrant, denied the motion and adopted the reasoning in Judge Saris' opinion in United States v. Anzalone, 208 F.Supp.3d 358 (2016), which addressed nearly identical arguments challenging the validity of that warrant.2 . The First Circuit has since addressed the same issue in United States v. Levin, when reversing a district court holding at odds with Anzalone, and held that "because the government acted in good faith reliance on the [Virginia] warrant, and because the deterrent effects on law enforcement do not outweigh the great cost to society of suppressing the resulting evidence, suppression is not warranted." 874 F.3d 316, 324 (1st Cir. 2017). The present motion challenges the same Virginia warrant on new grounds, contending that it lacked probable cause. (See Dkt. 206). This court now denies the motion, finding the warrant was supported by ample probable cause, and holds, regardless of that finding, that the good faith exception applies in light of the First Circuit's broad holding in Levin.

As for probable cause, the court again adopts the reasoning set forth by Judge Saris in Anzalone. As explained there, "Agent Macfarlane's affidavit establishes a fair probability that an individual who downloaded a Tor browser, located the Playpen site, entered an email address and password, and logged in did so with the purpose of accessing child pornography." Anzalone, 208 F. Supp. 3d at 366-67. In arguing to the contrary, Defendant ignores a range of facts provided in the affidavit and narrowly focuses on the images presented at the Playpen homepage. (See Dkt. No. 207, Def.'s Memo., at 1 ("Because there were no other facts which would establish probable cause for any given visitor, any probable cause that existed had to flow from the contents of the home[page].. . .").) As Judge Saris and multiple other courts have explained, however, when considered alongside the totality of the circumstances attested to in the warrant affidavit—including the anonymity of the TOR network, the illegal contents available within the Playpen site, the unlikelihood that a user's encounter with the site would be accidental—the contents of the homepage provide an ample basis to believe that those accessing the site did so with the intent of accessing child pornography. Anzalone, 208 F. Supp. 3d at 366-67; United States v. Matish, 193 F.Supp.3d 585, 603 (E.D. Va. 2016); United States v. Brooks, No. 16-CR-6028L, 2017 WL 3835884, at *10 (W.D.N.Y. Aug. 31, 2017). Indeed, all "[t]he courts that have analyzed the NIT Warrant have all found that it was supported by probable cause." Unitied States v. Henderson, No. 15-CR-00565, 2016 WL 4549108, at *4 (N.D. Cal. Sept. 1, 2016). In short, when viewed as a whole, the affidavit more than established probable cause.

Moreover, suppression would not be warranted in this case even in the absence of probable cause. The First Circuit has essentially already held as much in Levin. There, the court addressed challenges to the same Virginia warrant at issue here and broadly stated "[r]egardless of whether a Fourth Amendment violation occurred, the facts of this case show that the Leon good-faith exception applies." 874 F.3d at 321. In arguing to the contrary at oral argument, counsel correctly noted that Levin did not consider a challenge to probable cause. Nevertheless, the First Circuit's broad statement that the good faith exception applies to the very warrant at issue "regardless of . . . Fourth Amendment violation[s]" renders the distinction all but academic. Accordingly, although the motion was well-argued, it must be denied for the reasons above.

III. MOTION TO DISMISS (Dkt. No. 210)

Defendant's motion to dismiss invokes a due process defense originally discussed in United States v. Russell, 411 U.S. 423 (1973). There, after rejecting an entrapment defense raised by a defendant convicted of manufacturing methamphetamine made with government-supplied phenyl-propane, the Court noted in passing that it "may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction," but concluded that the case before it did raise facts with such constitutional implications. Id. at 431-32.3 Since Russell, however, innumerable criminal defendants have invoked the case, as Defendant does here, in arguing that "outrageous government conduct" violates due process and merits dismissal.

In addressing these arguments, the First Circuit has recognized that "[i]n limited circumstances, courts may dismiss criminal charges in response to outrageous government misconduct." United States v. Djokich, 693 F.3d 37, 43 (1st Cir. 2012). "But the law frowns on the exoneration of a defendant for reasons unrelated to his guilt or innocence, and, accordingly, the power to dismiss charges based solely on government misconduct must be used sparingly." United States v. Guzman, 282 F.3d 56, 59 (1st Cir. 2002). Therefore "the outrageous government misconduct doctrine is reserved for the most appalling and egregious situations," id., and "permits dismissal of criminal charges only in those very rare instances when the government's misconduct is so appalling and egregious as to violate due process by `shocking . . . the universal sense of justice.'" United States v. Luisi, 482 F.3d 43, 59 (1st Cir. 2007) (quoting Russell, 411 U.S. at 432); see also United States v. Santana, 6 F.3d 1, 4 (1st Cir. 1993) ("[T]he doctrine is moribund; in practice, courts have rejected its application with almost monotonous regularity.")

Here, Defendant has not provided any cases in which this defense has been successfully raised—on any facts or in any case—while the government has cited no fewer than twenty-four cases in which courts have denied the defense when targeted at the exact same government actions during the Playpen investigation the Defendant challenges here. The court now joins that roster and holds the government's conduct did not violate Defendant's due process rights. The First Circuit has plainly held that "fundamental fairness is not compromised in a child pornography case merely because the government supplies the contraband." United States v. Gifford, 17 F.3d 462, 471 (1st Cir. 1994). The Defendant's efforts to distinguish that holding by comparing the number of images involved are not persuasive. Accordingly, the motion to dismiss must be denied.

It is So Ordered.