ROBERT W. PRATT, Judge, U.S. DISTRICT COURT.
Before the Court are two Motions to Suppress, one filed by Defendant Beau Croghan in Case No. 1:15-cr-48 ("Croghan"), and one filed by Defendant Steven Horton in Case No. 1:15-cr-51 ("Horton"). Croghan Clerk's No. 33; Horton Clerk's No. 45. The Government filed an identical resistance brief in each case. Croghan Clerk's No. 36; Horton Clerk's No. 49. Because the facts leading to each Defendant's arrest are fundamentally the same, the Court considers the Motions to Suppress together. And, because the facts are undisputed, the Court agrees with the parties that no hearing is necessary. The matters are, therefore, fully submitted.
In approximately September 2014, the Federal Bureau of Investigation ("FBI") began investigating a child pornography website known as "Playpen." NIT Warrant
During the course of its investigation, the FBI connected to the Playpen website and discovered that it appeared to be dedicated to advertising and distributing child pornography. Id. ¶¶ 11-12. In December 2014, a foreign law enforcement agency advised the FBI that it had discovered the actual IP address of the Playpen server and that such server was located in Lenoir, North Carolina. Id. ¶ 28. In January 2015, the FBI obtained and executed a search warrant whereby it seized the Playpen website server. Id. Hoping to locate and identify visitors to the site, the FBI placed a complete copy of the Playpen website, including all of the child pornography on the website, on a government-controlled server located in Newington, Virginia. Id.; see also Gov't Resistance Br. at 2. On February 19, 2015, the FBI arrested the suspected administrator of the Playpen website and "assumed administrative control" of it. NIT Warrant ¶ 30.
On February 20, 2015, the FBI submitted an application for and affidavit in support of a search warrant to Eastern District of Virginia Magistrate Judge Theresa Carroll Buchanan. See generally NIT Warrant. The affidavit provided that the FBI intended to continue operating the Playpen website from its own server for a period of time not to exceed 30 days in an attempt to identify users of the site. Id. ¶ 30. Because the site utilized the Tor network to mask user identify information, the FBI requested that Magistrate Judge Buchanan authorize use of a "Network Investigative Technique" ("NIT") whereby the FBI would insert computer software into the Playpen website that would assist it in "locat[ing] and apprehend[ing] the TARGET SUBJECTS who are engaging in the continuing sexual abuse and exploitation of children" by accessing the Playpen website. Id. Once installed on the Playpen website on the government-controlled server, the NIT would be deployed to the computer of any user who visited the Playpen website and entered a user name and password. Id. ¶¶ 31-34; Croghan Br. at 7 (noting that the NIT would be deployed to "`any user' who logged into the site with a username and password, regardless of their physical location, whether or not they were using the site's chat features, or viewing child pornography"). The NIT would then force the "activating" computer to transmit information back to the FBI, including: the IP address of the activating computer; the date and time the NIT determined the IP address; a unique identifier generated by the NIT to distinguish data from different activating computers; the type of operating system running on the activating computer, including type, version, and architecture; information on whether the NIT had already been delivered to the activating computer; the "host name" of the activating computer; the operating system used by the activating computer; and the Media Access Control ("MAC") address of the activating computer. NIT Warrant ¶ 34. Magistrate Judge Buchanan approved the warrant and authorized the FBI to deploy the NIT for 30 days. See generally Id. She further granted a request by the Government to delay notice of the search "until 30 days after any individual accessing the [Playpen site] has been identified to a sufficient degree as to provide notice" under 18 U.S.C. § 3103(a)(b) and Federal Rule of Criminal Procedure 41(f)(3). Id. ¶¶ 38-41.
The Government began deploying the NIT on February 20, 2015, and continued to do so until March 4, 2015, at which time it took the Playpen website offline. Gov't Resistance Br. at 2. On July 17, 2015, law enforcement obtained a search warrant for
Defendants urge that all evidence discovered by virtue of and flowing from the NIT warrant must be suppressed. In particular, they argue: (1) the NIT warrant was issued in violation of Federal Rule of Criminal Procedure 41; (2) as a result of the Rule 41 violation, evidence obtained by use of the NIT must be suppressed; (3) evidence obtained as a result of the Iowa Warrants must also be suppressed because the probable cause supporting their issuance was derived solely from evidence collected by virtue of the NIT; and (4) no good faith exception is applicable to avoid suppression. The Government counters: (1) that the NIT warrant complied with Rule 41; (2) that even if Rule 41 was violated, suppression is not warranted; and (3) that the good faith exception applies in any event.
The Court notes that the NIT Warrant at issue in this case has resulted in a great deal of litigation across the country. The numerous district courts to consider motions similar to the present Motions to Suppress have reached varying conclusions on the legal issues at play. At least two courts have concluded that the NIT Warrant was unlawfully issued and suppressed all fruits of it. See, e.g., United States v. Levin, No. 15-10271, 186 F.Supp.3d 26, 2016 WL 2596010 (D.Mass. May 5, 2016); United States v. Arterbury, No. 15-cr-182, Clerk's No. 42 (N.D. Okla. Apr. 25, 2016). Several others 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 Leon
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). Federal Rule of Criminal Procedure 41(b) provides in relevant part:
The Court finds, and the Government seemingly concedes, that neither Rule 41(b)(1) nor Rule 41(b)(2) authorized an Eastern District of Virginia magistrate judge to issue the NIT Warrant.
The Government urges that the NIT Warrant was permissible pursuant to Rule 41(b)(4), because the Defendants "logged onto [Playpen] from computers located in the Southern District of Iowa, which triggered the NIT during the time period that the NIT tracking device was active, which gathered identifying information, including an IP address, for each of the defendant's computers." Gov't Resistance at 7. In support of its position, the Government cites Matish and Darby. In Matish, the court found that Magistrate Judge Buchanan had authority to issue the NIT Warrant under Rule 41(b)(4) because Playpen users made "a virtual trip via the Internet to Virginia." 193 F.Supp.3d at 612, 2016 WL 3545776, at *18. Thus, it concluded that the NIT "resembles a tracking device" in that the installation of the NIT occurred on "each individual computer that entered the Eastern District of Virginia when its user logged into Playpen via the Tor network. When that computer left Virginia — when the user logged out of Playpen — the NIT worked to determine its location, just as traditional tracking devices inform law enforcement of a target's location." Id. The Darby court likewise found the NIT Warrant permissible pursuant to Rule 41(b)(4):
190 F.Supp.3d at 536, 2016 WL 3189703, at *11-12.
The Court finds Darby and Matish unpersuasive. The Court additionally disagrees with the Jean decision, which was decided after the Government filed its resistance brief. There, the court found that the NIT Warrant "did not violate Rule 41(b)(4)'s jurisdictional boundaries, because law enforcement did not leave the Eastern District of Virginia to attach the
2016 WL 4771096, at *17.
A "tracking device" is defined for purposes of Rule 41 as any "electronic or mechanical device which permits the tracking of the movement of a person or object." See Rule 41(a)(2)(E) (employing the definition of "tracking device" as set out in 18 U.S.C. § 3117(b)). Although the term "track" is not further defined, its ordinary meaning is "[t]o follow up the track or footsteps of; to trace the course or movements of; to pursue by or as by the track left." See
Having rejected the position advanced by the Government, the Court instead agrees with the numerous district courts who have concluded that Magistrate Judge Buchanan lacked authority to issue the NIT Warrant under Rule 41(b)(4). In particular, the Court agrees with Michaud, wherein the court found that application of Rule 41(b)(4) to the NIT Warrant "stretches the rule too far":
2016 WL 337263, at *6; see also Henderson, 2016 WL 4549108, at *3 ("The NIT search does not meet the requirements of 41(b)(4) because, even though it was analogous to a tracking device in some ways, it nevertheless falls outside the meaning of a `tracking device' as contemplated by the rule. Further, the NIT was installed outside of the district, at the location of the activating computers, not within the district as required by Rule 41(b)(4)."); Werdene, 188 F.Supp.3d at 442, 2016 WL 3002376, at *7 (finding Rule 41(b)(4) inapplicable because it is "premised on the person or property being located within the district" and because 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"); Levin, 186 F.Supp.3d at 34, 2016 WL 2596010, at *6 (finding unpersuasive the government's attempt to analogize the transmittal of the NIT to activating computers to "the installation of a tracking device in a container holding contraband"); Arterbury, No. 15-cr-182, Clerk's No. 42 at 17 (agreeing with Michaud and concluding that the "NIT warrant was not for the purpose of installing a device that would permit authorities to track the movements of Defendant or his property"). The Court thus concludes that Magistrate Judge Buchanan lacked authority to issue the NIT Warrant pursuant to any provision of Rule 41(b).
"Rule 41 and the Fourth Amendment are not coextensive," and "[n]oncompliance with [Rule] 41 prerequisites does not automatically require the exclusion of evidence in a federal prosecution." United States v. Schoenheit, 856 F.2d 74, 76-77 (8th Cir.1988). "Absent a constitutional infirmity, the exclusionary rule is applied only to violations of Federal Rule 41 that prejudice a defendant or show reckless disregard of proper procedure." United States v. Hyten, 5 F.3d 1154, 1157 (8th Cir.1993) (citing United States v. Freeman, 897 F.2d 346, 348-49 (8th Cir.1990)); see also United States v. Welch, 811 F.3d 275, 280-81 (8th Cir.2016) (stating that a defendant "must show, in addition to the Rule 41 violation, either that he was prejudiced by the violation or that the investigators recklessly disregarded proper procedure").
Once a court determines that a Rule 41 violation has occurred, it must next "determin[e] whether that specific Rule 41 violation rises to the level of a Fourth Amendment violation." United States v. Krueger, 809 F.3d 1109, 1113-14 (10th Cir.2015). If it does, the violation can be considered constitutional and suppression is warranted without further evidence of prejudice or reckless disregard. See Id. at 1114 ("Unless the defendant can establish prejudice or intentional disregard of the Rule, a non-constitutional violation of Rule 41 will not, by itself, justify suppression.").
Only the Levin and Arterbury courts have explicitly held that the Rule 41(b) violation in relation to issuance of the NIT Warrant was of constitutional concern. In Levin, the court reasoned that Rule 41(b) violations cannot be considered merely ministerial or procedural because
Upon careful review of the case law, this Court adopts the well-reasoned decisions in Levin and Arterbury and concludes that a warrant issued without proper jurisdiction is void ab initio and that any search conducted pursuant to such warrant is the equivalent of a warrantless search. See Levin, 186 F.Supp.3d at 40-42, 2016 WL 2596010, at *12; Arterbury, No. 15-cr-182, Clerk's No. 42 at 26; see also United States v. Glover, 736 F.3d 509, 515 (D.C.Cir.2013) (rejecting the notion that violation of the jurisdictional limitations of Rule 41(b) is merely a "technical defect"); United States v. Barber, No. 15-40043, 184 F.Supp.3d 1013, 1018, 2016 WL 1660534, at *3 (D.Kan. Apr. 27, 2016) (holding that "warrants issued without jurisdiction are void from their inception. A warrant that is void from its inception is not warrant at all." (citing Krueger, 809 F.3d at 1124-25)). "In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement." Riley v. California, ___ U.S. ___, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014). Here, the Government does not argue that a warrantless search was permissible under the circumstances of this case.
Assuming that the Rule 41(b) violation was merely technical, the Court would still find suppression appropriate in this case for the reasons articulated in Levin and Arterbury. As discussed supra, if the Rule 41(b) violation is considered non-constitutional, suppression is only warranted if Defendants were prejudiced by the violation or if there is evidence that law enforcement recklessly disregarded procedure. See Schoenheit, 856 F.2d at 76-77. In the Eighth Circuit, prejudice may be found where "the search might not have occurred or would not have been so abrasive if the Rule had been followed," whereas reckless disregard may be found where "there is evidence of intentional and deliberate disregard of a provision in the Rule." United States v. Freeman, 897 F.2d 346, 349-50 (8th Cir.1990) (quoting United States v. Burke, 517 F.2d 377, 386-87 (2d Cir.1975) and United States v. Luk, 859 F.2d 667, 671 (9th Cir.1988)).
The Government cites United States v. Wheelock in support of its assertion that Defendants could not have been prejudiced by the Rule 41(b) violation because they had no reasonable expectation of privacy in the specific information obtained by the NIT Warrant, i.e., in their IP addresses and other identifying information obtained from their computers. See Gov't Br. at 10 (citing Wheelock, 772 F.3d 825 (8th Cir. 2014)). In Wheelock, the Eighth Circuit considered whether a defendant's Fourth Amendment rights were violated when law enforcement obtained an administrative subpoena that directed the defendant's ISP to provide subscriber information associated with a particular IP address:
Wheelock, 772 F.3d at 828-29.
It is clear in this case that neither the search pursuant to the NIT Warrant nor the searches pursuant to the Iowa Warrants would have occurred without the violation of Rule 41(b). Had Rule 41 been complied with, law enforcement would not have obtained Defendants' IP addresses, would not have been able to link those IP addresses to Defendants through subsequent investigation and the use of administrative subpoenas, and would not have had sufficient probable cause to obtain the Iowa Warrants. Thus, Defendants have satisfied their burden to prove that they were prejudiced by the Rule 41(b) violation. Suppression is an appropriate means to deter law enforcement from seeking warrants from judges lacking jurisdiction to issue them, and this deterrence function outweighs the societal costs associated with suppression. Moreover, the Court finds that law enforcement was sufficiently experienced, and that there existed adequate case law casting doubt on magisterial authority to issue precisely this type of NIT Warrant, that the good faith exception is inapplicable. See Levin, 186 F.Supp.3d at 42, 2016 WL 2596010, at *13 (finding that the good faith exception would be inapplicable even if the Rule 41(b) violation was not constitutional because the "conduct at issue here can be described as `systemic error or reckless disregard of constitutional requirements'" and because "it was not objectively reasonable for law enforcement — particularly `a veteran FBI agent with 19 years of federal law enforcement experience' — to believe the NIT Warrant was properly issued considering the plain mandate of Rule 41(b)" (citing Glover, 736 F.3d at 516 ("[I]t is quite a stretch to label the government's actions in seeking a warrant so clearly in violation of Rule 41 as motivated by `good faith.'")); Croghan Br. at 20-21 (citing case law supporting a conclusion that law enforcement should have been aware that Rule 41(b) had jurisdictional limits that would prevent issuance of the NIT Warrant).
For the reasons stated herein, Defendants' Motions to Suppress (Croghan Clerk's No. 33; Horton Clerk's No. 45) are GRANTED. All evidence flowing from and obtained as a result of the improperly issued NIT Warrant is hereby suppressed.
IT IS SO ORDERED.
