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United States v. Noden

United States District Court, D. Nebraska

April 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
KEITH B. NODEN, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This matter is before the Court on the Findings and Recommendation, ECF No. 30, issued by Magistrate Judge F.A. Gossett, III, recommending that the Motion to Suppress, ECF No. 23, filed by the Defendant, Keith Noden (“Defendant”), be denied. Defendant filed an Objection to the Findings and Recommendation and a brief in support, ECF No. 33, as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government did not respond. For the reasons set forth below, the Findings and Recommendation will be adopted and the Motion to Suppress will be denied.

         BACKGROUND

         Defendant is charged in the Indictment, ECF No. 1, with affecting interstate commerce by means of knowingly receiving child pornography on his laptop computer in violation of 18 U.S.C. § 2252A(a)(2).

         On or about April 13, 2016, Darin Morrissey (“Affiant”), a Sarpy County Sheriff's Detective working with the Federal Bureau of Investigation (“FBI”) Cyber Crimes Task Force, began an investigation into peer-to-peer file-sharing computer software used to download digital files from other users within the peer-to-peer software network. Such file-sharing networks are commonly used to share and download files containing images of child pornography. Affiant initiated his investigation by utilizing an automated software program called “Grid Cop.” Grid Cop is shared by child exploitation investigation entities and it browses the various peer-to-peer program networks to identify Internet Protocol (“IP”) addresses “that are seen having child-notable child pornography files available for sharing” and generates an activity log of its findings. ECF No. 32, Page ID 100. Whenever an individual user shares files containing child pornography via peer-to-peer computer software, Grid Cop is potentially logging that activity and identifying it by the user's associated computer IP address.

         When an investigator observes that Grid Cop has identified a particular IP address as having shared child pornography files, the investigator is able to extract the hash[1] values associated with each file and convert them into Secure Hash Algorithm Version 1 (“SHA-1”)[2] values. ECF No. 32, Page ID 102. SHA-1 values are a particular type of hash value, [3] and law enforcement agencies maintain their own libraries of files containing child pornography identified by SHA-1 values. Id. This allows the investigator to extract the hash values from files identified by Grid Cop as containing child pornography, convert them to SHA-1 values, and check law enforcement libraries for a matching SHA-1 value. Id. If the converted SHA-1 values match the SHA-1 values of a file within law enforcement libraries, the investigator downloads the file from the library to confirm the illicit content in the suspect file provided by Grid Cop. Investigator Dishaw testified that this conversion and comparison process is highly accurate and comparable to the standard DNA comparison accuracy rate. Id.

         According to the Grid Cop software, Affiant observed that IP address 68.229.178.123 had shared, and been in possession of, files containing child pornography on more than ten separate occasions between February 7, 2016, and April 15, 2016. Affiant converted the hash values associated with three of the files to SHA-1 values, located the matching files within the law enforcement file library, downloaded them, and confirmed that they contained child pornography. Affiant also determined that the IP address associated with the illegal files was leased to the Defendant from Cox Communications. Affiant stated the foregoing facts, truthfully, in an affidavit submitted in support of a search warrant for Defendant's home and personal computer.

         The affidavit supporting probable cause for the search also included certain statements that were false. The affidavit stated that Affiant was able to use an undercover computer to participate in the same peer-to-peer file-sharing network as Defendant; that Affiant connected directly to Defendant's IP address; that Affiant browsed the available shared files; and that Affiant downloaded certain files containing child pornography. The Government acknowledged that, in fact, Affiant never directly browsed or downloaded any files made available from Defendant's IP address via a peer-to-peer file-sharing network. Thus, any statements in the affidavit that asserted such a direct connection, browse, and download had been accomplished were untrue.

         Affiant submitted the affidavit; obtained a search warrant; executed it on July 27, 2016; and a laptop computer was recovered from Defendant's bedroom. While no files containing child pornography were found on the computer, the Government observed several explicit keyword searches associated with child pornography. At the time of the search, the Defendant also explained that he had deleted all of the child pornography files from his computer and he admitted installing the “E Mule” file-sharing program to access and view child pornography.

         Defendant moves to suppress all evidence obtained during the search, including his incriminating statements, as fruit of the poisonous tree, i.e., a search warrant issued absent probable cause in violation of the Fourth Amendment. After receiving briefs and holding a Franks hearing, the Magistrate Judge recommended that the Court deny the Motion to Suppress. The Magistrate Judge reasoned that the false statements in the affidavit were not made deliberately and knowingly, or with reckless disregard for the truth pursuant to Franks v. Delaware, 438 U.S. 154, 171-72 (1978). The Magistrate Judge further concluded that absent the false statements, the affidavit still supported probable cause for the warrant to issue. The Magistrate Judge also concluded that Defendant's incriminating statements made during the search would not be subject to the exclusionary rule because they were too attenuated from the asserted Fourth Amendment violation. Finally, the Magistrate Judge found, over Defendant's objection, that the files listed in paragraphs 37 and 38, and the entirety of paragraph 41, were true statements in the supporting affidavit. Defendant objects to each of the foregoing findings.

         STANDARD OF REVIEW

         Under 28 U.S.C. § 636(b)(1)(C), the Court must make a de novo determination of those portions of the findings and recommendation to which the Defendant has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendation. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.

         DISCUSSION

         I. ...


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