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United States v. Dzwonczyk

United States District Court, D. Nebraska

December 23, 2016



          John M. Gerrard United States District Judge.

         This matter is before the Court on the defendant's motion to suppress evidence (filing 37), the Magistrate Judge's Findings and Recommendation (filing 56) recommending that the motion be denied, and the defendant's objection (filing 59) to the findings and recommendation. Having conducted a de novo review of the record pursuant to 28 U.S.C. § 636(b)(1)(C), the Court will adopt the Magistrate Judge's recommendation. Accordingly, the defendant's objection (filing 59) will be overruled, and the defendant's motion to suppress (filing 37) will be denied.

         I. BACKGROUND

         This case arises from an FBI investigation into online child pornography.[1] The investigation focused on a website called Playpen, which was accessible to users through the "Tor" network. In 2015, the FBI- pursuant to a warrant-seized control of the server supporting that website. Rather than shutting the website down, the agents continued to operate it out of a government facility in Virginia in an attempt to identify and prosecute administrators and users throughout the country. To this end, the FBI requested authorization from a magistrate judge for the use of a Network Investigative Technique, or "NIT"-software that the government could deploy onto the computer of any person who successfully logged on to the Playpen website. Once on a user's computer, the software would transmit certain identifying information about that user back to the FBI-and, in doing so, reveal the user's public IP address. The FBI would then use that information to track the physical location of the user, and to secure a search warrant for that user's home or property.

         The defendant, through the username "RebeckaBecka, " allegedly visited the Playpen website while it was in the government's control. Filing 66 at 6. Using the NIT software, the government uncovered the defendant's IP address, which led them to Cox Communications-an internet provider that services areas in and around Bellevue, Nebraska. Filing 66 at 6. Cox indicated that the IP address was assigned to the defendant, and on August 14, 2015, authorities secured a search warrant for the defendant's home. Filing 66 at 6. The search uncovered child pornography on the defendant's computer.

         The defendant has moved to suppress all evidence obtained from the search of his residence and the computers therein. In support of his motion, the defendant argues that the NIT warrant was issued in violation of Fed. R. Crim. P. 41 and 28 U.S.C. § 636(a). See filing 38 at 4-8. Relatedly, the defendant argues that, given the nature of the Rule 41(b) violation, the Leon good faith exception does not apply. Filing 38 at 10.

         After thoroughly reviewing the relevant facts and law, Magistrate Judge Zwart recommended that this Court deny the defendant's motion to suppress. Filing 56 at 20. The defendant filed a timely objection to the Magistrate's Findings and Recommendation, renewing his argument that the evidence was seized in violation of the Federal Rules of Criminal Procedure. Filing 59.

         Before addressing the merits of the defendant's objection, the Court will examine the relevant facts in more detail.

         1. Playpen & The Tor Network

         Playpen was an internet website that was designed and utilized for the advertisement and distribution of child pornography. Filing 40 at 15. The website also included features whereby users could discuss "matters pertinent to child sexual abuse, including methods and tactics . . . use[d] to abuse children, . . . [and] to avoid law enforcement detection while perpetrating online child sexual exploitation crimes[.]" Filing 40 at 15. Administrators and users routinely utilized the website to send and receive illegal child pornography. Filing 40 at 15.

         Playpen operated as a hidden service on an anonymity provider called the "Tor" network. Filing 40 at 15. As explained in the Magistrate's Judge's Findings and Recommendation, hidden services on the Tor network are not typically accessible through traditional internet searches. Filing 56 at 1. So, a user could not, for example, locate or access Playpen through a standard Google or Yahoo search. Rather, a user of the site must (a) have access to the Tor network, and (b) know the Tor network address for Playpen. See, filing 56 at 1; filing 40 at 17. Thus, as set forth in the application for the NIT warrant, accessing Playpen "requires numerous affirmative steps by the user, making it extremely unlikely that any user could simply stumble upon . . . [Playpen] without understanding its purpose and content." Filing 40 at 17-18.

         The value of the Tor network lies in the anonymity it provides its users. To this end, the Tor software "bounc[es users'] communications around a distributed network of relay computers run by volunteers all around the world[.]" See, filing 56 at 2; filing 40 at 16. These relay computers are known as "nodes, " and an "exit node" is the last computer through which a user's communication is routed. Filing 56 at 2; filing 40 at 16. So, when a user on the Tor network accesses a website, it is the IP address of the "exit node"- not the user-that appears on the site's IP log. See filing 40 at 16. Thus, the process is designed to mask the user's actual IP address so that the user remains, to the extent possible, completely unidentifiable. Filing 40 at 16.

         2. The Warrants

         (a) The NIT Warrant

         In December 2014, the FBI received information regarding the possible owner of the IP address associated with Playpen. See filing 40 at 26-27. Based on this information, the FBI, in January 2015, obtained and executed a search warrant to seize Playpen's host server. Filing 40 at 27. After reviewing the contents of the server, and confirming its association with Playpen, the FBI cloned the server on a government server in the Eastern District of Virginia. Filing 40 at 27. The administrator of that server was subsequently identified and apprehended.

         Rather than shutting down Playpen, the FBI kept operating the site in an attempt to identify and locate other administrators and users of the website. To do so, the FBI, on February 20, 2015, submitted an application for a search warrant, along with a supporting affidavit, to a magistrate judge in the Eastern District of Virginia. See generally filing 40. According to the supporting affidavit, the government would "continue to operate [Playpen] from the government-controlled computer server in Newington, Virginia" for a limited period of time, not to exceed 30 days, "in order to locate and identify the administrators and users of [Playpen]." Filing 40 at 28.

         But the Tor network, as described above, complicated this investigation by actively masking the IP addresses-and thus the identities-of the website's users. To address this issue, the government sought authorization from the same Eastern District of Virginia magistrate judge to use a Network Investigation Technique, or "NIT, " which it would activate on the Playpen website. Once installed, the NIT would deploy onto the computer of any user who logged on (via username and password) to the Playpen website. Filing 40 at 31. The NIT would then communicate with the computer of the Playpen user, causing the computer to send identifying information back to the FBI. Filing 40 at 31. As described in the warrant application,

In the normal course of operation, websites send content to visitors. A user's computer downloads that content and uses it to display web pages on the user's computer. Under the NIT authorized by this warrant, the [Playpen website], which will be located in Newington, Virginia, in the Eastern District of Virginia, would augment that content with additional computer instructions. When a user's computer successfully downloads those instructions from the [Playpen website], . . . the instructions, which comprise the NIT, are designed to cause the user's "activating" computer to transmit certain information to a computer controlled by or known to the government.

         Filing 40 at 29. The information transmitted from the "activating" computer to the FBI via the NIT included: the IP address of the activating computer, and the date and time that 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 the computer; information about whether the NIT has already been delivered to the activating computer; the activating computer's operating system username; and the MAC address of the activating computer. Filing 40 at 30-31. The Eastern District of Virginia magistrate judge approved the warrant, authorizing the FBI to deploy the NIT for 30 days. See filing 40 at 3.

         (b) The Nebraska Warrant

         The parties to this dispute agree that, on or around February 28, 2015, the NIT was deployed and attached to a computer with an IP address allegedly belonging to the defendant. See filing 38 at 3. Information was gleaned from the defendant's computer, which led the authorities to the defendant's home in Bellevue, Nebraska. The authorities obtained a search warrant (the "Nebraska warrant"), and on August 21, 2015, that warrant was executed on the defendant's home. Filing 38 at 3. Electronic evidence was seized, and an indictment charging the defendant with one count of possession of child pornography and one count of receipt of child pornography was filed on December 8, 2015. Filing 38 at 3.

         II. ANALYSIS

         The defendant contends that the Eastern District of Virginia magistrate judge, in authorizing the NIT warrant, exceeded the jurisdictional requirements established under the Federal Magistrates Act and Rule 41(b) of the Federal Rules of Criminal Procedure. To this end, the defendant argues that the NIT warrant impermissibly authorized government agents to "seize and search computers located outside the [Eastern District of Virginia.]" Filing 38 at 4-5. And because the NIT warrant exceeded the jurisdictional boundaries of its issuing authority, the defendant argues that it was void, and that the deployment of the NIT therefore amounted to a warrantless search and seizure. Thus, he contends that the government obtained his IP address unlawfully, and then used that information as the basis of probable cause for the subsequent Nebraska warrant. Based on these events, and the nature of the Rule 41(b) violation, the defendant argues that the evidence obtained from his computer (i.e., the pornographic images) must be suppressed.

         Before addressing the merits of this argument, the Court will address two separate yet related points. First, it is worth noting that, to the extent the defendant is claiming a violation of his Fourth Amendment rights, that claim is part and parcel of his argument regarding Rule 41(b). In other words, the defendant has not alleged that the warrants were constitutionally deficient under the Warrants clause of the Fourth Amendment and issued in violation of Rule 41(b). Rather, his sole claim is that the warrant exceeded the jurisdictional requirements of Fed. R. Crim. P. 41(b), and that the Rule 41(b) violation, at least in part, resulted in a constitutional infirmity.

         In advancing this argument, the defendant acknowledges that a violation of Rule 41 is not itself tantamount to a Fourth Amendment violation, and that noncompliance with the Rule does not, in every instance, require suppression. U.S. v. Spencer, 439 F.3d 905, 913 (8th Cir. 2006). In this way, and as discussed in more detail below, the Eighth Circuit distinguishes between Rule 41(b) violations that are "fundamental, " thereby necessitating suppression, and those that are "non-fundamental, " in which suppression is appropriate only upon a showing of prejudice or reckless disregard of proper procedure. See United States v. Freeman, 897 F.2d 346, 349-50 (8th Cir. 1990); see also United States v. Jean, 2016 WL 4771096, at *17 (W.D. Ark. Sept. 13, 2016). Thus, applying this framework to the facts of his case, the defendant argues that suppression is required because the purported violation of the Rule is fundamental (in that it facilitated a violation of his constitutional rights), and, alternatively, that it resulted in prejudice (in that the search of his home would not have occurred if the Rule had been followed). See, filing 38 at 8; filing 52 at 2-3.

         Second, the Playpen investigation has resulted in nationwide litigation, producing largely divergent opinions regarding the validity of the NIT warrant under Fed. R. Crim. P. 41(b), and the applicability, if at all, of the exclusionary rule. With respect to these issues, and as discussed in more detail below, courts have generally reached one of three results: either (1) the NIT warrant was unlawfully issued and suppression is required; (2) the NIT warrant was unlawfully issued, but suppression is not the appropriate remedy; or (3) the NIT warrant was lawfully issued, and there are no legal violations that require suppression. See United States v. Johnson, 2016 WL 6136586, at *3 (W.D. Mo. Oct. 20, 2016) (collecting cases).

         Magistrate Judge Zwart, in her Findings and Recommendation to this Court, recommends the third result-that is, that the NIT warrant complied with Fed. R. Crim. P. 41(b), and that there are no legal violations that require suppression. Seefiling 56 at 13, 16. In reaching this result, Judge Zwart first determined that the deployment of the NIT was not a "search" for purposes of the Fourth Amendment. Filing 56 at 10. She next concluded that, even assuming the NIT was a search, the search warrant was validly issued under Fed. R. Crim. P. 41(b), and even assuming otherwise, that it did not result in a constitutional infirmity or prejudice. Filing 56 at 10-16. And finally, she determined that even assuming the warrant was invalid, and that it caused either a constitutional infirmity or prejudice, that the good faith exception set forth in United States v. Leon and its progeny would prohibit suppression of the evidence. Filing 56 at 17.

         For the reasons set forth below, the Court adopts the Magistrate Judge's recommendation, and accordingly, will deny the defendant's motion to suppress. However, the Court takes a different path to this result. Specifically, the Court concludes that the NIT warrant was issued in violation of Rule 41(b), and that the government's conduct amounted to a search under the Fourth Amendment. However, consistent with the findings and recommendation, the Court concludes that the Rule 41(b) violation was neither "of constitutional magnitude, " or otherwise prejudicial. Further, because the officers acted in reasonable good faith, the Court finds that, even if the violation implicated the exclusionary rule, suppression-at least on these facts-is not the appropriate remedy.

         1. Fed. R. Crim. P. 41

         The defendant argues that the NIT warrant was issued in violation of Federal Rule of Criminal Procedure 41(b), which, at all relevant times, [2]provided in part,

(b) Authority to Issue a Warrant. At the request of a federal law enforcement officer or an attorney ...

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