Petition for Writ of Certiorari — Neil C. Kienast and Braman B. Broy, Petitioners v. United States

App. 1

In the

United States Court of Appeals

for the Seventh Circuit

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NO. 17-1840

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NEIL C. KIENAST,

Defendant-Appellant.

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Appeal from the United States District Court

for the Eastern District of Wisconsin,

No. 1:16-cr-00103-WCG-1—William C. Griesbach,

Chief Judge.

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NO. 17-1989

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARCUS A. OWENS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Eastern District of Wisconsin,

No. 2:16-cr-00038-JPS-1—J.P. Stadtmueller, Judge.

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App. 2

NO. 17-2439

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRAMAN B. BROY,

Defendant-Appellant.

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Appeal from the United States District Court

for the Central District of Illinois

No. 1:16-cr-10030-MMM-JEH-1—

Michael M. Mihm, Judge.

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ARGUED FEBRUARY 6, 2018—DECIDED OCTOBER 23, 2018

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Before RIPPLE, SYKES, and BARRETT, Circuit

Judges.

BARRETT, Circuit Judge. In 2015, federal agents infiltrated a child pornography website called Playpen

and deployed a computer program to identify Playpen’s users. This operation resulted in the successful

prosecution of defendants all around the country, including Neil Kienast, Marcus Owens, and Braman

Broy, whose appeals are consolidated before us.

Kienast, Owens, and Broy, like many other defendants

caught in this sting, argue that the warrant authorizing the Playpen searches was invalid and that the fruit

of those searches—the defendants’ identities—should

therefore have been suppressed. Every circuit that has

App. 3

considered the suppression argument has rejected it,

and so do we. Even assuming that these digital

searches violated the Fourth Amendment, the goodfaith exception to the exclusionary rule applies. We affirm all three judgments.

I.

In 2014, the Federal Bureau of Investigation began investigating a child pornography forum called

Playpen. This site created an anonymous space for its

membership of over 150,000 people to discuss, consume, and share child pornography.

Playpen exists solely on the dark web, so it can be

accessed only through a series of affirmative steps.

First, the user must download The Onion Router (Tor)

software. The Tor software makes user information untraceable by relaying it through a series of interconnected computers. It also allows a user to access the

Tor network, where Playpen and other “hidden services” websites are hosted. Once on this network, a

user must enter a specific sixteen-character web address to visit Playpen. Finally, Playpen requires visitors to create a username and password before

granting them access to its contents.

In 2015, FBI agents gained access to Playpen’s

servers and relocated them to a government facility in

the Eastern District of Virginia. The FBI then operated

the website for about two weeks in order to observe

Playpen users. But while the FBI could observe

App. 4

Playpen traffic, Tor prevented it from identifying any

specific user information.

To unmask and apprehend the anonymous Playpen users, the FBI sought a warrant in the Eastern

District of Virginia to use a Network Investigative

Technique (NIT). The NIT deployed computer code instructing computers that accessed Playpen to send

identifying information to the government.

In support of its warrant application to deploy the

NIT, the FBI submitted a 31-page affidavit from a special agent who specialized in child pornography cases.

The affidavit detailed Playpen’s architecture and contents, explained the nature of the Tor network, and described the numerous affirmative steps a user had to

take to locate Playpen and access its contents. The affidavit further asserted that use of the NIT was necessary to identify and locate the users and

administrators of Playpen, because other investigative

procedures had either failed or would likely fail.

The affidavit also provided details about the proposed NIT. Special computer code would be added to

the digital content on the Playpen website. After a user

entered a username and password to access Playpen,

the website would cause the user’s computer to download that code. The code would then instruct the user’s

computer to send back the following information:

(1) the computer’s IP address and the date and time

that it was determined; (2) a unique identifier to distinguish data from that of other computers accessing

Playpen; (3) the computer’s operating system;

App. 5

(4) information about whether the NIT had already

been delivered to the computer; (5) the computer’s host

name; (6) the operating system’s username; and (7) the

computer’s media access control address.

A federal magistrate judge in the Eastern District

of Virginia issued the NIT Warrant in February 2015.

The magistrate judge approved the use of the NIT to

obtain information from all “activating computers,”

which the warrant described as the computers “of any

user or administrator who logs into [Playpen] by entering a username and password.”

The three defendants on appeal were such users.

At various times during the nearly two weeks that the

government hosted the Playpen servers, Neil Kienast,

Marcus Owens, and Braman Broy accessed Playpen.

By entering their usernames and passwords, they unknowingly triggered the NIT, which unmasked their

identities. Once identified, FBI agents in the Eastern

District of Virginia notified FBI regional offices in the

defendants’ home districts. Local FBI agents then obtained warrants to search the defendants’ computers

and homes. Each search unearthed child pornography.

On the basis of evidence recovered in these

searches, grand juries charged the defendants with receiving, possessing, or viewing child pornography in violation of 18 U.S.C. § 2252A. The defendants each

moved to suppress the evidence obtained as a result of

the NIT Warrant, raising assorted challenges to its validity. The respective district courts denied their motions to suppress and the defendants entered

App. 6

conditional guilty pleas, reserving the right to appeal

the denial of their suppression motions. These appeals

followed.

II.

All three defendants assert that the searches performed by the NIT violated the Fourth Amendment

and that the evidence obtained by them should have

therefore been suppressed. We need not decide, however, whether the searches violated the Fourth Amendment. Even if they did, the district courts did not err

by declining to suppress the evidence, because the

good-faith exception to the exclusionary rule applies.

Suppression of evidence is a “last resort.” Hudson

v. Michigan, 547 U.S. 586, 591 (2006). It is not a personal constitutional right, nor is it intended to remedy

the injury of having one’s rights violated. Davis v.

United States, 564 U.S. 229, 236 (2011). Instead, it is a

judge-made rule meant to deter future Fourth Amendment violations. Id. at 236–37. And its application has

been strictly limited by the Supreme Court.

The Court has instructed that the exclusionary

rule be limited to cases in which its deterrent effect on

police conduct will outweigh its “heavy costs.” Id. at

237. Strong cases for exclusion involve “deliberate,

reckless, or grossly negligent disregard for Fourth

Amendment rights” on the part of the police. Id. at 238

(internal quotation marks omitted). In such cases, “the

deterrent value of exclusion is strong and tends to outweigh the resulting costs.” Id. But exclusion is not

App. 7

appropriate where “the police act with an objectively

reasonable good-faith belief that their conduct is lawful.” Id. (internal quotation marks omitted). In that

type of case, “the deterrence rationale loses much of its

force, and exclusion cannot pay its way.” Id. (internal

quotation marks and citations omitted). The flagship

case for this “good faith” principle is United States v.

Leon, 468 U.S. 897 (1984).

The defendants offer two major arguments

against applying the good-faith exception in this case.

The first is that the good-faith exception is categorically inapplicable when the warrant is void ab initio

(or “from the beginning”). According to the defendants,

this warrant is void because the magistrate judge

lacked the authority to issue it. Federal Rule of Criminal Procedure 41(b)(1) authorizes a magistrate judge

“to issue a warrant to search for and seize a person or

property located within the [magistrate judge’s] district.” This warrant, they say, extended to people and

property located outside the magistrate’s district. Defendants contend that a void warrant is tantamount to

no warrant at all, nullifying the good-faith exception.1

We disagree. Even if the warrant were void ab initio, we would treat this like any other constitutional

violation. We see no reason to make the good-faith exception unavailable in such cases. The deterrence rationale for the exclusionary rule aims at the conduct of

1

We note that Rule 41 was amended in 2016 to expressly

permit magistrate judges to issue warrants such as the NIT Warrant here. See Fed. R. Crim. P. 41(b)(6)(A).

App. 8

the police, not the conduct of the magistrate judge. See

Davis, 564 U.S. at 238 (focusing the cost-benefit analysis in exclusion cases on the “flagrancy of the police

misconduct” at issue). Thus, whether the magistrate

judge lacked authority has no impact on the rule. As

Leon explains, “[p]enalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment

violations.” 468 U.S. at 921; see also Herring v. United

States, 555 U.S. 135, 136–37 (2009) (invoking the goodfaith exception where an officer reasonably but

wrongly believed that there was an outstanding

arrest warrant for the defendant); cf. United States v.

Cazares-Olivas, 515 F.3d 726, 730 (7th Cir. 2008) (concluding that even though the violation of Rule 41 was

“regrettable,” allowing the defendants to go free on

that basis “would be a remedy wildly out of proportion

to the wrong”). Other circuits have similarly held that

the good-faith exception can apply to warrants that are

void ab initio. See United States v. Levin, 874 F.3d 316,

323–24 (1st Cir. 2017); United States v. Werdene, 883

F.3d 204, 216–17 (3d Cir. 2018); United States v.

McLamb, 880 F.3d 685, 691 (4th Cir. 2018); United

States v. Horton, 863 F.3d 1041, 1050 (8th Cir. 2017);

United States v. Workman, 863 F.3d 1313, 1319 (10th

Cir. 2017); see also United States v. Master, 614 F.3d

236, 242–43 (6th Cir. 2010) (repudiating a prior pronouncement that ab initio warrants preclude application of the good-faith exception in light of intervening

Supreme Court precedent).

App. 9

The defendants’ second argument is that the goodfaith exception fails on its own terms because the

agents did not execute this search in good faith.2 Leon

states that the good-faith exception might not apply in

cases where: (1) “the issuing magistrate wholly abandoned his judicial role”; (2) the warrant was “so lacking

in indicia of probable cause as to render official belief

in its existence entirely unreasonable”; or (3) “a warrant [was] so facially deficient” that the “executing officers [could not] reasonably presume it to be valid.”

Leon, 468 U.S. at 923.

The defendants focus on the third scenario,

arguing that the officers should have recognized this

warrant as facially invalid. They maintain that a welltrained officer, familiar with computer investigations

and associated warrants, knows that a magistrate

judge lacks the authority to authorize a warrant outside his or her own district. This warrant permitted the

officers to access information originating from computers around the country. Thus, the defendants say, the

officers should have known that the magistrate judge

lacked authority to issue it.

The defendants are wrong—the officers could have

reasonably relied on the magistrate judge’s conclusion

that this warrant was consistent with Rule 41. This

warrant poses difficult conceptual questions about

2

Sometimes, the defendants’ arguments seem centered on

the agents located in the Eastern District of Virginia; other times,

their arguments drift to attack the local agents who executed the

search warrants. Our analysis does not depend on which agents

were allegedly at fault.

App. 10

what occurred. Perhaps the warrant impermissibly allowed the search of computers outside the magistrate

judge’s district, as the defendants suggest. But the government suggests another theory. It notes that under

Rule 41(b)(4), a magistrate judge can issue a warrant

for the installation of a “tracking device” within the

district that can track movement outside the district.

Fed. R. Crim. P. 41(b)(4). The government characterizes

the NIT as such a device, maintaining that its installation occurred in-district because the defendants were

accessing servers located in that district. Choosing between these frameworks has split district courts across

the country, which underscores the difficulty of the

question.3 See United States v. Taylor, 250 F. Supp. 3d

1215, 1222–23 (N.D. Ala. 2017) (collecting cases). We do

not decide this question today because we hold that the

good-faith exception applies in any event. But the fact

that so many district judges have differed on this question is strong evidence that any error on the part of the

magistrate judge would not necessarily have been obvious to the officers.

The defendants raise other theories of bad faith.

They note that “where the officer seeking the warrant

was dishonest or reckless in preparing the affidavit,”

the good-faith exception does not apply. United States

v. Harris, 464 F.3d 733, 740 (7th Cir. 2006). Owens

maintains that the affidavit accompanying the NIT

Warrant contained dishonest statements that omitted

3

Two courts of appeals have held that the NIT Warrant violated Rule 41 but that the good-faith exception applied. See

Werdene, 883 F.3d at 217; Horton, 863 F.3d at 1052.

App. 11

material information. The affidavit, for example, describes the Playpen homepage as featuring “two images depicting partially clothed prepubescent females

with their legs spread apart,” which was true as of February 18, 2015. But on February 19, the site administrator changed the homepage to instead depict a

prepubescent girl wearing a short dress. Owens makes

much of the fact that the affidavit had not been updated to reflect this change when the magistrate judge

signed the warrant on February 20. This change is immaterial. And even if it were not, the failure to update

the affidavit in real time would not begin to approach

the dishonesty that Harris describes.

Nor do we think that the police behavior here was

reckless. The defendants believe that the warrant was

reckless because it was overinclusive. They insist that

it sweeps up innocent actors that stumble upon Playpen but don’t engage in any illegal activity. But by the

time such actors have downloaded the software needed

to access the dark web, entered the specific, sixteendigit character jumble that is Playpen’s web address,

and logged into the site featuring at least one sexually

suggestive image of a child, we are very skeptical that

they are surprised to find themselves on a website offering child pornography.

The record establishes that the FBI acted reasonably both when it prepared its affidavit and when it

executed the search warrants. Faced with the daunting

task of apprehending tens of thousands of individuals

engaged in perverse crimes but cloaked in anonymity

through their use of Tor, the FBI developed a

App. 12

sophisticated tool to unmask and locate those suspected criminals. The agency fully and accurately described the NIT to the neutral and detached

magistrate judge who signed the warrant. We join the

five circuits who have held the good-faith exception applicable to this NIT Warrant. See Levin, 874 F.3d at

324, Werdene, 883 F.3d at 217–19; McLamb, 880 F.3d

at 689–90; Horton, 863 F.3d at 1052; Workman, 863

F.3d at 1321. In the absence of culpable police conduct,

the exclusionary rule cannot “pay its way.” Davis, 564

U.S. at 238.

III.

Kienast and Owens individually raise additional

challenges to their convictions. We address these in

turn.

Kienast asserts that the district court erred by

denying his motion to compel the government to allow

him to review the NIT source code and cross-examine

the FBI special agent who created the affidavit. According to Kienast, he needs this information to establish the scope of the Fourth Amendment violation. The

district court rejected his motion, holding that the information Kienast sought was immaterial to the goodfaith determination. We review a district court’s ruling

on a motion to compel discovery for abuse of discretion.

Thermal Design, Inc. v. Am. Soc’y of Heating, Refrigerating & Air-Conditioning Eng’rs, Inc., 755 F.3d 832, 838

(7th Cir. 2014). The district court did not abuse its discretion in holding that the discovery sought was

App. 13

immaterial and “essentially a fishing trip.” Testimony

from the FBI agent and access to the source code would

not have affected the good-faith determination.

Owens argues that the fruit of the NIT search

should be suppressed because the government’s conduct was so “outrageous” that it violated his right to

due process. He cites Rochin v. California, which holds

that certain conduct that “shocks the conscience” can

constitute a due process violation. 342 U.S. 165, 172

(1952) (police pumping the stomach of a suspect to obtain evidence violated due process). Owens asserts that

by operating the Playpen website after seizing it, the

“government distributed over a million images of child

pornography,” which he believes qualifies as “outrageous conduct” that shocks the conscience. His theory

is that this unconstitutional behavior “absolutely

bar[s] the government from invoking judicial processes,” which he thinks justifies suppression. United

States v. Russell, 411 U.S. 423, 431-32 (1973). The district court denied relief on this ground, but it noted a

“tension” between our circuit and the Supreme Court

concerning the availability of this defense. United

States v. Owens, 2016 WL 7079617, at *4 (E.D. Wis.

Dec. 5, 2016).

There is no conflict between our cases and the Supreme Court’s. In United States v. Russell, the Court

left open the possibility that the government’s engagement in illegal activity might violate due process if it

is “shocking to the universal sense of justice.” 411 U.S.

at 431–32. In that case, an undercover agent supplied

the defendant with an essential ingredient for the

App. 14

manufacture of methamphetamine as part of an operation to gather evidence against him. While the Court

determined that this conduct did not shock the conscience, it said 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.” Id.

Thus, the Supreme Court did not foreclose the

“outrageous conduct” defense—but it did not mandate

its application either. And “[w]e repeatedly have reaffirmed our decision not to recognize the defense.”

United States v. Smith, 792 F.3d 760, 765 (7th Cir.

2015); see also United States v. Stallworth, 656 F.3d

721, 730 (7th Cir. 2011) (“Outrageous government conduct is not a defense in this circuit.”). Our cases are

consistent with those of the Court and they control

here. And in any event, the defense would do Owens no

good even if it were available. In Russell, the defendant

was the victim of the government’s allegedly outrageous conduct. Russell, 411 U.S. at 431–32. Here, Owens does not charge the government with harming him;

he complains that the government’s allegedly outrageous conduct harmed the children whose images were

distributed while the government operated the server.

Owens’s argument is itself more than a little outrageous: he seeks to shield himself from prosecution because the children he victimized were allegedly

victimized by someone else too.

Owens makes one last pitch: he asks us to remand

his case for a Franks hearing. In Franks v. Delaware,

App. 15

the Court held that the Fourth Amendment entitles a

defendant to an evidentiary hearing when a defendant

makes a substantial preliminary showing that the police procured a warrant to search his property with intentional or reckless misrepresentations in the

warrant affidavit and such statements were necessary

to a finding of probable cause. 438 U.S. 154, 171–72

(1978). The district court rejected Owens’s argument

because it found that Owens failed to make the requisite “substantial preliminary showing” to justify a

hearing. Owens, 2016 WL 7079609, at *7. We agree

with the district court. As we explained, law enforcement made no reckless misrepresentations. Owens further gives us no “firm and definite” reasons, under the

requisite clear error review, why the district court

erred. United States v. Pace, 898 F.2d 1218, 1226–27

(7th Cir. 1990). The district court, armed with all the

information that we reviewed, made a reasoned determination to deny Owens a Franks hearing.

IV.

The arguments that the defendants raise on appeal concerning the constitutionality of the NIT Warrant all lead to the same outcome: the agents acted in

good-faith reliance on the NIT Warrant, and there is

nothing to deter by applying the exclusionary rule. The

defendants’ distinct arguments are without merit.

Each defendant’s judgment of conviction is accordingly

AFFIRMED.

App. 16

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

UNITED STATES

OF AMERICA,

Plaintiff,

v.

Case No. 16-CR-103

NEIL C. KIENAST,

Defendant.

DECISION AND ORDER DENYING

MOTION TO SUPPRESS

Defendant Neil C. Kienast has been charged in a

superseding indictment with two counts of receiving

child pornography, in violation of 18 U.S.C.

§ 2252A(a)(2), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

The case is presently before the court on Kienast’s motion to suppress the evidence seized from his home and

computer pursuant to a search warrant issued by Magistrate Judge James R. Sickel, as well as any evidence

derived therefrom. For the reasons that follow,

Kienast’s motion will be denied.

The charges against Kienast stem from a nationwide child pornography investigation conducted by the

FBI in conjunction with the U.S. Department of Justice. Acting in part upon a tip from a foreign law enforcement agency, the FBI was able to seize control of

an online forum hosted at a facility in North Carolina

App. 17

which was dedicated to the advertisement and distribution of child pornography, “Website A”. Website A

had 150,000 members who collectively engaged in tens

of thousands of postings of child pornography images

and videos categorized according to the gender and age

of the minor victim. The site did not advertise or distribute adult pornographic images.

Website A operated as a “hidden service” on the

anonymous TOR network and was generally not accessible through the traditional internet. To access Website A, a user had to know its exact web address on the

TOR network. In addition, the TOR network allows users to hide their actual IP addresses while accessing

the internet. To access the TOR network, a user must

install TOR software which routes user communications around a distributed network of relay computers

called nodes, which are run by volunteers around the

world. When a user on the TOR network accesses a

website, the IP address of a TOR “exit node,” rather

than the user’s actual IP address, shows up on the website’s IP log. An exit node is the last computer through

which the user’s communications are routed. TOR is

designed to prevent tracing the user’s actual IP address back through the TOR exit node IP address. As a

result, traditional IP-address-based identification

techniques used by law enforcement agents investigating online crimes are not viable against a website operated on the TOR network. NIT Search Warrant (ECF

No. 12-3).

Faced with this investigative roadblock, FBI

agents took an unusual step. Instead of immediately

App. 18

shutting Website A down, which would have allowed

the users of the site to go unidentified and free to continue receiving and trafficking in child pornography,

the FBI seized control of Website A and continued it in

operation for a two-week period from a facility located

in the Eastern District of Virginia. The FBI also obtained a search warrant from a magistrate judge in

that District that authorized the agency to use a “Network Investigative Technique” (NIT) to identify individual users who were accessing content on the site.

The NIT consisted of computer instructions which

were downloaded to the computer of a registered user

of Website A, along with the requested content from

Website A, when Website A was accessed by such user.

Once downloaded, the NIT would cause the user’s computer to transmit to the FBI a limited amount of information—the computer’s true IP address and other

computer-related information—that would allow the

FBI to identify the computer used to access Website A

and its user. Id.

Based upon data obtained from deployment of the

NIT and the logs on Website A, law enforcement

learned that a user with the user name “Playpendrifter” actively logged into Website A for a total of 10

hours and 39 minutes between December 9, 2014 and

March 4, 2015. On February 25, 2015, Playpendrifter

logged into Website A from an IP address of

104.55.29.65 and accessed posts that contained child

pornography including a video with 19 images of a prepubescent female between 4 and 6 years of age performing oral sex on an adult male’s penis and exposing

App. 19

her vagina and anus. Using publicly available websites, FBI Special Agents were able to determine that

the IP address from which Playpendrifter logged into

Website A was operated by the Internet Service Provider (ISP) AT&T U-Verse. AT&T U-Verse then provided the FBI with the street address of the premises

of the user assigned that IP address in response to an

administrative subpoena. That address was the home

of Kienast.

Armed with this information, law enforcement

agents obtained a warrant authorizing them to search

Kienast’s residence and seize and examine his computers and related equipment for evidence of the crimes

related to child pornography. The warrant was executed on January 16, 2016, and resulted in the seizure

of several computers and storage media from Kienast’s

residence. A subsequent search of the computers revealed child pornography video and image files. Law

enforcement also undertook to interview Kienast, and

he admitted viewing child pornography for the past

several years and using the TOR network to do so. It is

this evidence that forms the basis of the charges

against him.

Kienast argues that the evidence must be suppressed because the warrant to search his residence is

invalid. That warrant is invalid, he contends, because

it was obtained using evidence illegally retrieved from

his computer via the NIT warrant. Kienast also initially argued that it was also obtained using information illegally obtained from the Social Security

Administration (SSA), but he has since abandoned

App. 20

that argument in that whatever evidence law enforcement may have obtained from SSA was not used in its

application for the warrant authorizing the search of

his home. With respect to the NIT warrant, however,

Kienast argues it is void because it was signed by a

magistrate judge with no authority to authorize a

search outside the boundaries of the district in which

her court was located.

Kienast’s argument is a technical one based on the

language of the statute and rule governing the authority of magistrate judges to issue search warrants. The

Federal Magistrates Act provides, in relevant part, as

follows:

(a) Each magistrate judge serving under

this chapter 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—

(1) all powers and duties conferred or

imposed . . . by law or by the Rules of

Criminal Procedure for the United States

District Courts.

28 U.S.C. § 636(a) (emphasis added). Rule 41(b) of the

Federal Rules of Criminal Procedure in turn sets out

territorial limits on a magistrate judge’s authority to

issue a search warrant. It authorizes magistrate

judges to issue warrants to (1) “search for and seize a

person or property located within [the judge’s] district”; (2) search for and seize a person or property located outside the judge’s district “if the person or

App. 21

property is located within the district when the warrant is issued but might move or be moved outside the

district before the warrant is executed”; (3) search for

and seize a person or property located outside the

judge’s district if the investigation relates to terrorism;

(4) install within [the judge’s] district a tracking device

. . . to track the movement of a person or property located within the district, outside the district, or both;

or (5) search for or seize a person or property outside

the judge’s district but within a United States territory, possession, commonwealth, or premises used by a

United States diplomat or consular mission.

Kienast argues that because the NIT was intended

to search computers that were outside, as well as inside the Eastern District of Virginia, the magistrate

judge in that District acted outside her authority in issuing the NIT warrant. More specifically, he argues

that a magistrate judge in Virginia had no authority to

authorize a search of his computer in Wisconsin. As a

result, Kienast argues that the NIT warrant was void

and thus any information obtained from it may not be

used against him. And because information obtained

from the search authorized by the NIT warrant was

used to obtain the Wisconsin warrant that authorized

the search of his house and seizure of his computers,

Kienast argues that warrant was invalid as well. It

thus follows, he contends, that all of the evidence

seized from his home based upon that warrant, as well

as derivative evidence such as his confession, must be

suppressed.

App. 22

As the defendant notes, the validity of search warrants growing out of the FBI’s investigation of Website

A based on the NIT warrant has been addressed by

courts in districts around the country, including this

district. See United States v. Epich, 15-CR-163-PP,

2016 WL 953269 (E.D. Wis. Mar. 14, 2016); see also

United States v. Broy, 16-CR-10030, 2016 WL 5172853,

at *1 (C.D. Ill. Sept. 21, 2016) (collecting cases). Though

most courts have denied the defendants’ motion to suppress, Kienast relies primarily upon the decision in

United States v. Levin, No. CR 15–10271–WGY, ___

F.Supp.3d ___, 2016 WL 2596010 (D.Mass. May 5,

2016), which did not. Levin held that because the NIT

warrant authorized a search of property outside the

territorial jurisdiction of the issuing magistrate judge,

it was void ab initio and any evidence obtained from

its execution was unlawfully obtained. Levin further

held that the good faith exception to the exclusionary

rule set forth in United State [sic] v. Leon, 468 U.S. 897,

918 (1984), did not apply and thus must be suppressed.

Kienast urges this Court to follow Levin.

It is the practice in this district that pretrial proceedings, including motions to suppress, are referred to

the assigned magistrate judge. On September 7, 2016,

Magistrate Judge David E. Jones issued a thorough report recommending that Kienast’s motion be denied.

Relying on the Seventh Circuit’s decision in United

States v. Berkos, 543 F.3d 392 (7th Cir. 2008), Magistrate Judge Jones found it unnecessary to decide

whether the Virginia magistrate judge exceeded her

territorial jurisdiction in issuing the NIT warrant and,

App. 23

if so, whether Leon’s good faith exception to the exclusionary rule applied. Berkos reaffirmed the circuit’s

previous holdings that “violations of federal rules do

not justify the exclusion of evidence that has been

seized on the basis of probable cause and with advance

judicial approval.” Id. at 396 (quoting United States v.

Cazares–Olivas, 515 F.3d 726, 730 (7th Cir.2008);

United States v. Trost, 152 F.3d 715, 722 (7th

Cir.1998)). “The remedy of allowing a defendant to go

free based on a violation of Rule 41’s requirements for

obtaining a proper search warrant,” the Berkos court

noted, “would be ‘wildly out of proportion to the

wrong.’ ” Id. (quoting Cazares–Olivas, 515 F.3d at 730).

Noting that the purpose of the exclusionary rule was

“to deter illegal police conduct, not mistakes by judges

or magistrate judges,” Recommendation at 11 (quoting

United States v. Bonner, 808 F.2d 864, 867 (1st Cir.

1986)), Magistrate Judge Jones concluded that suppression would be especially inappropriate here where

“the only mistake law enforcement made . . . was

knocking on the wrong door in seeking authorization

for the NIT Warrant.” Id. at 11 (noting that even Levin

acknowledged that the NIT Warrant could have been

lawfully issued by any of the seven Article III judges

routinely sitting in the same courthouse as the issuing

magistrate judge). He therefore recommended that

Kienast’s motion to suppress be denied.

Kienast timely filed his objections to Magistrate

Judge Jones’ recommendation and requested an evidentiary hearing which the Court held on September

23, 2016. Consistent with his original motion to

App. 24

suppress, Kienast argued in his objections and post

hearing brief that, contrary to Berkos, suppression of

evidence is the proper remedy when law enforcement

relies upon a warrant that exceeds the territorial jurisdiction of the issuing magistrate judge. He notes

that this case is factually distinguishable from Berkos

and the cases it relied upon. But, of course, every case

is factually distinguishable from every other case. The

question is whether the factual distinctions are material such that the principle enunciated by the court in

Berkos should not apply here. Kienast fails to offer a

persuasive argument that the same principle should

not apply. Instead, he offers two new arguments that

were not properly set forth in his original motion. He

argues that the NIT Warrant fails to satisfy the Fourth

Amendment’s particularity requirement because it

“fails to identify in any meaningful way the true scope

and nature of the search.” Objections at 7. Further, in

order to properly establish the scope of the Fourth

Amendment violation, Kienast argues he needs the

sources for the NIT utilized by the FBI to obtain that

identifying information from his computer. Def.’s Offer

of Proof (ECF No. 17).

These additional arguments first surfaced in

Kienast’s reply brief in support of his motion to suppress that he filed before Magistrate Judge Jones. As

Magistrate Judge Jones observed, arguments raised

for the first time in a reply are deemed waived and

need not be addressed. Recommendation at 6 n.1. (citing United States v. Diaz, 533 F.3d 574, 577 (7th Cir.

2008)). But even if they had not been waived, Kienast’s

App. 25

new arguments are not persuasive. The thirty-one

page affidavit submitted in support of the application

for the NIT Warrant in Virginia particularly described

the evidence the FBI was seeking—identifying information from the computers of users who were accessing a website exclusively designed to allow the viewing

and distribution of child pornography. The facts set

forth in the affidavit established at least probable

cause, if not virtual certainty, that those accessing the

website were committing crimes involving the receipt,

possession, and distribution of such material. The particularity requirement is intended “to prevent general

searches. By limiting the authorization to search to the

specific areas and things for which there is probable

cause to search, the requirement ensures that the

search is carefully tailored to its justification, and does

not resemble the wide-ranging general searches that

the Framers intended to prohibit.” Leon, 468 U.S. at

963 (Stevens, J., dissenting on other grounds). Kienast

offers no intelligible argument that the NIT Warrant

did not satisfy this requirement. Nor does Kienast offer

a persuasive argument why the NIT source code is

needed in order to decide his motion. There is no requirement that a warrant specify the precise manner

in which the search is to be executed or, in this case,

how the NIT actually worked. Dalia v. United States,

441 U.S. 238, 257 (1979).

In this case, it is reasonably arguable that the NIT

was essentially a tracking device that the Virginia

magistrate judge authorized the FBI to install on data

retrieved from Website A by users across the country

App. 26

and around the world. The NIT was then carried back

to the user’s computer with the contraband data and

transmitted, much like a traditional tracking device,

the address to which it was taken. See United States v.

Jean, No. 5:15-CR-50087-001, 2016 WL 4771096, at

**16–17 (W.D. Ark. Sept. 13, 2016). If so, then the NIT

Warrant was valid and Kienast’s motion could be denied on that basis alone. But even if it did not literally

fall within the territorial limits set forth in Rule 41(b),

suppression would be entirely inappropriate, especially since the key item of evidence obtained—

Kienast’s IP address—is not even information over

which he would have a reasonable expectation of privacy. See United States v. Caira, 833 F.3d 803, 808–09

(7th Cir. 2016) (“Because Caira voluntarily shared his

I.P. addresses with Microsoft, he had no reasonable expectation of privacy in those addresses.”).

Procedural rules, especially those that protect our

homes and persons from unreasonable searches and

seizures, are no doubt important, but the investigation

and punishment of crime is not a game. It makes no

sense to suppress evidence of serious criminal conduct

obtained by law enforcement agents operating in good

faith on the basis of a warrant issued by a magistrate

judge likewise operating in good faith. Suppression of

evidence is a drastic remedy that carries heavy costs.

Leon, 468 U.S. at 907 (“The substantial social costs exacted by the exclusionary rule for the vindication of

Fourth Amendment rights have long been a source of

concern.”). It should not be lightly ordered if courts are

App. 27

to retain the respect of the public that is essential for

them to carry out their duties.

For all of the foregoing reasons, the recommendation of Magistrate Judge Jones is adopted and

Kienast’s motion to suppress is denied. The Clerk is directed to place this matter on the Court’s calendar for

a change of plea or trial.

SO ORDERED at Green Bay, Wisconsin this 14th

day of November, 2016.

s/ William C. Griesbach

William C. Griesbach, Chief Judge

United States District Court

App. 28

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

UNITED STATES

OF AMERICA,

)

)

)

Plaintiff,

)

Case No. 16-cr-10030

v.

)

)

BRAMAN BENJAMIN BROY,

)

Defendant.

)

ORDER

(Filed Sep. 21, 2016)

This matter is now before the Court on Defendant

Braman Broy’s (“Broy”) Motion to Suppress Evidence

(ECF No. 12). For the reasons set forth below, Broy’s

Motion to Suppress Evidence (ECF No. 12) is DENIED.

Significance of the Present Case

The Court notes the seriousness and complexity of

the legal issues in this case and that similar issues are

likely to present themselves as technology continues

to evolve faster than the law can keep pace. It further

recognizes that reasonable jurists can – and have –

come to different conclusions on these issues and that

district judges will await further guidance from the

courts of appeals. The Court suggests readers familiarize themselves with previous cases stemming from the

warrant at issue in this case before continuing to read

App. 29

this Order. See, e.g., United States v. Adams, No. 6:16CR-11-ORL-40GJK, 2016 WL 4212079 (M.D. Fla. Aug.

10, 2016); United States v. Acevedo-Lemus, No. SACR

15-00137-CJC, 2016 WL 4208436 (C.D. Cal. Aug. 8,

2016); United States v. Eure, No. 2:16CR43, 2016 WL

4059663 (E.D. Va. July 28, 2016); United States v. Matish, No. 4:16CR16, 2016 WL 3545776 (E.D. Va. June 23,

2016); United States v. Darby, No. 2:16CR36, 2016 WL

3189703 (E.D. Va. June 3, 2016); United States v.

Werdene, No. CR 15-434, 2016 WL 3002376 (E.D. Pa.

May 18, 2016); United States v. Levin, No. CR 1510271-WGY, 2016 WL 2596010 (D. Mass. May 5, 2016);

United States v. Epich, No. 15-CR-163-PP, 2016 WL

953269 (E.D. Wis. Mar. 14, 2016); United States v.

Michaud, No. 3:15-CR-05351-RJB, 2016 WL 337263

(W.D. Wash. Jan. 28, 2016).

Background

Playpen (“Website A”) was a website whose primary purpose was the advertisement and distribution

of child pornography. ECF No. 20 at ¶ 1. Website A

operated only on the “Tor” network, an open-source

software tool which routes communications through

multiple computers called “nodes” in order to mask a

user’s IP address and, thus, keeps the user’s identity

anonymous. ECF No. 13 at 1-2. These nodes are run by

volunteers throughout the world. ECF No. 15 at 3. In

order to use the Tor network, a user must download

and run Tor software on his or her personal computer.

ECF No. 13 at 2. When first logging into the Tor network, a user, whether knowingly or not, communicates

App. 30

his or her IP address to the first node volunteer. It is

only after an IP address has been routed through multiple nodes that a user’s IP address becomes masked.

Indeed, when a user finally accesses a website while

logged into the Tor network, only the IP address of the

“exit node” is visible to that site (and, thus, any law

enforcement officials monitoring that site). ECF No. 15

at 3-4. Traditional investigative techniques are therefore ineffective in finding a Tor user’s real IP address.

Id. at 4.

Website A was a “hidden service” on the Tor network. Id. at 4. A “hidden service” does not operate like

a normal Internet website, where one could find a page

by happenstance, such as by entering key terms into a

search engine. Id. at 4. Rather, a “hidden service” requires a user to acquire its exact web address from another source, such as another user of that “hidden

service” or online postings detailing its web address,

before accessing the website. Id. at 4. Thus, it was extremely unlikely anyone could have accessed Website

A accidentally.

Website A was hosted on a server in North Carolina and maintained by an administrator in Florida.

ECF No. 20 at ¶ 2. In January 2015, FBI agents executed a search warrant and copied the contents of the

server. ECF No. 15 at 5. Upon searching the website

logs, the FBI determined that a Tor network user with

the username “maproy99” had accessed several images

of child pornography in January 2015. ECF No. 20

at ¶ 16. That username was later traced to Broy. Id.

at ¶ 19. Rather than shutting down the server and

App. 31

Website A, the FBI continued to operate both at a government facility in the Eastern District of Virginia. Id.

at ¶ 4. The FBI operated the server and Website A between February 20, 2015, and March 4, 2015. Id. at ¶ 4.

Also on February 20, 2015, the FBI obtained from

a district judge in the Eastern District of Virginia an

order pursuant to Title III of the Electronic Communications Privacy Act, which prohibits the government

from intercepting private electronic communications

without a court order. Id. at ¶ 5. The Title III order permitted the FBI to intercept communications between

Website A users. Id. at ¶ 5. On the same day the FBI

obtained the order from the district judge, they also obtained from a magistrate judge in the Eastern District

of Virginia a warrant which allowed them to implement a Network Investigation Technique (“NIT”) on

the Website A server. Id. at ¶ 7. The NIT operated by

sending to “activating computers” instructions designed to cause those computers to transmit certain

information to a separate government computer, also

located in the Eastern District of Virginia. Id. at ¶¶ 9,

12. The warrant authorized the FBI to obtain from

an “activating computer” seven pieces of information:

(1) the IP address of the computer and the date and

time the NIT determined the IP address; (2) a unique

identifier generated by the NIT to distinguish data

from one activating computer from that of another;

(3) the type of operating system used by the computer;

(4) information about whether the NIT had already

been delivered to the computer; (5) the computer’s host

name; (6) the computer’s operating system username;

App. 32

and (7) the computer’s media access control address.

Id. at ¶ 8.

On February 26, 2015, Broy, under the username

maproy99, accessed a post containing child pornography from Website A, at which point the NIT was deployed to the activating computer.1 ECF No. 13 at 3.

The NIT, without Broy’s awareness, collected the

above-listed information and sent it to the separate

government computer in the Eastern District of Virginia. ECF No. 20 at ¶ 12. The unmasked IP address

allowed the FBI to determine the physical address of

the activating computer, which was ultimately determined to be Broy’s.2 Id. at ¶ 13. It is undisputed that

without the use of the NIT, law enforcement would not

have been able to identify the IP address connected to

Broy. Id. at ¶ 18. On October 19, 2015, the FBI obtained

a residential search warrant from United States Magistrate Judge Tom Schanzle-Haskins, a magistrate in

the district of Broy’s residence, the Central District of

Illinois. Id. at ¶ 20. On October 21, 2015, FBI agents

executed that warrant at Broy’s home, where they

identified files containing child pornography. Id. at ¶ 20.

Broy was subsequently indicted for receipt of child pornography, possession of child pornography, and access

with intent to view child pornography. Id. at ¶ 21.

1

The NIT ultimately revealed Broy also accessed posts containing child pornography on March 2 and March 4, 2015.

2

It is possible the computer did not technically belong to

Broy, as it was found at his mother’s address. Broy, however, admitted to using the computer to access images of child pornography.

App. 33

Discussion

Broy argues the execution of the NIT warrant constituted an unreasonable search and seizure under

the Fourth Amendment and requires suppression of

the evidence to which it led. Specifically, he argues

the warrant contravened the Fourth Amendment’s

particularity requirement with regard to the place to

be searched, rendering it a general warrant. He also

claims the NIT’s activation constituted a search in violation of his reasonable expectation of privacy in his

computer and its contents. Broy further argues the

magistrate judge lacked authority to issue the NIT

warrant under the Federal Magistrate’s Act and Rule

41(b) of the Federal Rules of Criminal Procedure. For

the reasons set forth below, the Court finds that although the warrant itself was sufficiently particular,

Broy was nevertheless the subject of an unreasonable,

warrantless search in contravention of the Fourth

Amendment. The Court, however, holds suppression is

not an appropriate remedy in this case.

A. Whether the NIT Warrant Lacked

Particularity and Amounted

to a General Warrant

The Fourth Amendment to the United States Constitution provides, in part, “[n]o warrants shall issue,

but upon probable cause, . . . and particularly describing the place to be searched, and the persons or things

to be seized.” U.S. CONST. AMEND. IV. This particularity

requirement limits “the authorization to search to the

specific areas and things for which there is probable

App. 34

cause to search” and, thus, “ensures that the search

will be carefully tailored to its justifications, and will

not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.”

Maryland v. Garrison, 480 U.S. 79, 84 (1987). With regard to place, “[t]he requirement is satisfied if ‘the description is such that the officer with a search warrant

can with reasonable effort ascertain and identify the

place intended.’ ” United States v. McMillian, 786 F.3d

630, 639 (7th Cir. 2015) (quoting Steele v. United States,

267 U.S. 498, 503 (1925)). With regard to the items or

information to be seized, “nothing [may be] left to the

discretion of the officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196 (1927). Only if

both of these requirements are satisfied is a warrant

sufficiently particular.

Here, Broy asserts the NIT warrant did not state

with particularity the place or places to be searched.

He is misguided. Attachment A to the NIT warrant

states the NIT was “to be deployed on the computer

server described below, obtaining information from the

activating computers described below. . . . The activating computers are those of any user or administrator

who logs into the TARGET WEBSITE by entering a

username and password.” ECF No. 14-1 at 2 (emphasis

added). The attachment does not limit the warrant’s

applicability to “the computer of any user who resides

in the Eastern District of Virginia.” Rather, it authorizes the deployment of the NIT onto the computer of

“any user,” which encompasses users who reside inside

and outside the district. Id. at 2. It further required

App. 35

those users to log into Website A with a username and

password, which, as described above, supra pages 2-3,

was nearly impossible to do by accident. Moreover,

the affidavit accompanying the warrant application

asked the magistrate to authorize the NIT to “cause

an activating computer – wherever located – to send”

information to the government. ECF No. 15 at 33-34

(emphasis added). “Wherever located” clearly contemplates more than just users and computers located

within the Eastern District of Virginia. That the warrant encompassed a large number of possible computers potentially located in a large number of districts

does not mean it suffered from a lack of particularity;

it merely indicates the FBI suspected a large number

of users would access Website A from all over the country.

Broy does not claim the particularity requirement

was violated with regard to the things to be seized. Nor

could he; attachment B of the warrant listed the seven

specific pieces of information the NIT would gather

from the activating computer and send back to the government computer in the Eastern District of Virginia.

ECF No. 14-1 at 3. Thus, both the place and items to be

seized were described with sufficient particularity so

as not to render the warrant a general one.

B. Whether the NIT’s Activation

Constituted a Fourth Amendment Search

A threshold question in the Court’s Fourth Amendment analyses is whether a defendant had a reasonable

App. 36

expectation of privacy in the things and places searched.

A Fourth Amendment search occurs when “the government violates [the defendant’s] subjective expectation

of privacy that society recognizes as reasonable.” Kyllo

v. United States, 533 U.S. 27, 33 (2001); see Katz v.

United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). And “[a]lthough it has become an old saw that

the Fourth Amendment protects people, not places, the

starting point in the Katz inquiry generally ‘requires

reference to a place.’ ” United States v. Cuevas-Perez,

640 F.3d 272 (7th Cir.2011) (quoting Katz, 389 U.S. at

361 (Harlan, J., concurring) (internal quotation marks

omitted)). Indeed, Rakas v. Illinois, 439 U.S. 128 (1978),

and Rawlings v. Kentucky, 448 U.S. 98 (1980), make

clear that “a person can have a legally sufficient interest in a place other than his home so that the Fourth

Amendment protects him from unreasonable governmental intrusion into that place.” Rakas, 439 U.S. at

142-43, 148-49 (finding passengers of a car had a legally insufficient interest in a car in which they were

riding). See also, Rawlings, 448 U.S. at 104-05 (finding

defendant had a legally insufficient interest in his girlfriend’s purse); United States v. Chadwick, 433 U.S. 1,

11 (1977) (finding defendant who placed marijuana in

a double-locked footlocker could claim Fourth Amendment protection); Katz, 389 U.S. at 352 (finding defendant who entered a telephone booth, shut the door, and

paid the toll to use the phone could claim Fourth

Amendment protection). In 2010, the Seventh Circuit

reiterated its reliance on a five-factor test, originally

announced in United States v. Peters, 791 F.2d 1270

App. 37

(7th Cir. 1986), used to determine whether a defendant

had such a privacy interest:

(1) whether the defendant had a possessory

[or ownership] interest in the thing seized

or the place searched, (2) whether he had

the right to exclude others from that place,

(3) whether he exhibited a subjective expectation that it would remain free from governmental invasion, (4) whether he took normal

precautions to maintain his privacy, and

(5) whether he was legitimately on the premises.

United States v. Carlisle, 614 F.3d 750, 758 (7th Cir.

2010) (quoting Peters, 791 F.2d at 1281).

The parties have dedicated much of their briefing

to whether Broy had a reasonable expectation of privacy in his IP address. Indeed, many of the district

courts that have considered the warrant at issue in

this case have focused their Fourth Amendment analysis on this point. See, e.g., Acevedo-Lemus, 2016 WL

4208436 at **4-6; Werdene, 2016 WL 3002376 at **710; Michaud, 2016 WL 337263 at *7. But the analysis

should not and does not end there. Whether Broy had

a reasonable expectation of privacy in his computer

and its contents is equally as important as whether he

had one in his IP address. This is so because the NIT

was designed to yield more than just Broy’s IP address.

Rather, it was designed to enter Broy’s computer and

gather seven different pieces of information. Accordingly, the Court shall consider in turn whether Broy

App. 38

had a reasonable expectation of privacy in: (1) his IP

address; and (2) his computer and its contents.

i.

Broy’s IP Address

The Seventh Circuit has recently given guidance

on whether a defendant has a reasonable expectation

of privacy in his or her IP address. United States v.

Caira, ___ F.3d ___ 2016 WL 4376472 (7th Cir. Aug. 17,

2016). In Caira, the DEA was monitoring a website

through which the user of gslabs@hotmail.com was

asking about buying sassafras oil, an ingredient in ecstasy. The DEA subpoenaed Microsoft Corporation (the

owner of Hotmail), asking for basic information including, inter alia, the user’s “IP Login history,” which the

user had necessarily and voluntarily communicated to

both Microsoft and Comcast Corporation (the owner of

the I.P. address commonly associated with the email

account). Id. at *1. Subsequent investigation and an

additional subpoena led the DEA to determine the

defendant was the user of the email address. The defendant made a motion to suppress the information

gleaned from the subpoenas, which the district court

denied. The Seventh Circuit held that sharing his IP

address with a third party negated the defendant’s

reasonable expectation of privacy for Fourth Amendment purposes. Id. at *5. Indeed, the court noted that

even if the defendant had a subjective expectation of

privacy in such information, “once information is voluntarily disclosed to a third party, any such expectation is ‘not one that society is prepared to recognize as

App. 39

reasonable.’ ” Id. at *2 (quoting Smith v. Maryland, 442

U.S. 735, 743 (1979)).

The government claims that, despite his attempts

to conceal his identity, Broy had no reasonable expectation of privacy in his IP address because he communicated it to third parties. ECF No. 19-1 at 7. Broy, on

the other hand, claims that he still had a reasonable

expectation of privacy in his IP address because he was

“not logging into an open commercial website, but using the anonymous Tor network, which as the government itself acknowledged, cloaks and scrambles a

user’s actual IP address.” ECF No. 22 at 2. The Court

finds Broy’s distinction unpersuasive. The fact that

Broy may have felt as if his identity was anonymous

does not negate the fact that, in order to gain that feeling of anonymity, he voluntarily disclosed his IP address to the operator of the first Tor node. Moreover,

the Court finds Broy should not be able to use the Tor

network as both a shield to conceal his identity and a

sword to claim a reasonable expectation of privacy

such that accessing that information without a warrant would violate the Fourth Amendment. Accordingly, the Court holds Broy did not have a reasonable

expectation of privacy in his IP address, and, thus, its

discovery by the FBI was not a search that required a

warrant under the Fourth Amendment.

ii.

Broy’s Computer

Broy further argues, albeit briefly, that he had a

reasonable expectation of privacy in his computer

App. 40

itself, ECF No. 13 at 11, and the Court agrees. The

Court begins by noting how, in the present case, it is

possible that Broy may have had no reasonable expectation of privacy in his IP address, yet it was still unobtainable without a warrant. Considering the same

warrant at issue in this case, the district court in Adams nicely framed the issue:

The NIT searches the user’s computer to discover the IP address associated with that device. Therefore, one’s expectation of privacy in

that device is the proper focus of the analysis,

not one’s expectation of privacy in the IP address residing in that device. For example, a

defendant has an expectation of privacy in his

garage, even if that defendant lacks an expectation of privacy in the stolen vehicle parked

in the garage. Remove the stolen car from the

garage, and no expectation of privacy in the

vehicle exists. An IP address located in the

“open” is akin to a stolen car parked on the

street. However, the agents were required to

deploy the NIT to search the contents of Defendant’s laptop, and Defendant enjoyed a

reasonable expectation of privacy in that device.

Adams, 2016 WL 4212079 at *4 (emphasis added) (internal citation omitted).

To determine whether Broy had a reasonable expectation of privacy in his computer, the Court relies

on the five-factor Peters test and recent Supreme Court

jurisprudence. All five Peters factors either point in

Broy’s favor or are unclear from the record. As noted

App. 41

supra, page 4 n. 2, the computer may have technically

belonged to Broy’s mother, but he certainly had a possessory interest in it. Along with that interest came the

right to exclude people from its use.3 Broy also had the

subjective expectation that his computer would remain

free from governmental invasion. The record is unclear

as to whether he took normal precautions to maintain

his computer’s privacy, but if the steps Broy took to protect his IP address are indicative, the fourth factor

points in his favor. Finally, he was legitimately on his

computer. Thus, Peters suggests Broy had a legally sufficient interest in his computer such that the Fourth

Amendment protected it from unreasonable, warrantless searches.

In Riley v. California, 134 S. Ct. 2473 (2014), the

United States Supreme Court unanimously held police

officers generally may not, without a warrant, search

the digital information on cell phones seized from defendants during searches incident to arrest. Id. at

2485. The Court rejected the United States’ contention

that police could, at the very least, access the call log

in arrestees’ phones. Id. at 2492-93. The United States

believed police had this authority based on Smith,

where the Court found the use of a pen register did not

constitute a Fourth Amendment search. Id. at 2492-93.

See also Smith, 442 U.S. at 745-46. In Riley, however,

3

It is possible that his mother also used the computer, but

“the fact that others may have occasional access to the computer”

does not necessarily extinguish any privacy expectations. United

States v. Heckenkamp, 482 F.3d 1142, 1147 (9th Cir. 2007) (citing

Leventhal v. Knapek, 266 F.3d 64, 74 (2d Cir. 2001)).

App. 42

the Court noted there was “no dispute” that officers engaged in a search of the defendants’ cell phones. Riley,

134 S. Ct. at 2492-93. Thus, like the stolen vehicle in

the garage, it was irrelevant that the defendants may

not have had a reasonable expectation of privacy in

some pieces of information in the phones so long as

they had one in the phones more broadly. Id. at 249293.

As noted above, supra page 9, Broy did not have

an expectation of privacy in his IP address. And while

the Court does not decide whether he had a reasonable

expectation of privacy in the other six specific pieces of

information gathered and sent by the NIT, the Court

finds Broy had a reasonable expectation of privacy in

his computer more generally under Riley. Thus, the use

of the NIT constituted a Fourth Amendment search.

The Court notes that at least two district courts

which have considered both the warrant at issue in

this case and whether the respective defendants had

reasonable expectations of privacy in their computers

have come to the conclusion that such privacy expectations existed. See Adams, 2016 WL 4212079 at *4;

Darby, 2016 WL 3189703 at **5-6.

The opinion of one district court that decided differently, however, is worth mentioning. In Matish, the

court found the defendant had no reasonable expectation of privacy in his computer. Matish, 2016 WL

3545776 at *21. The court first noted – this Court

thinks incorrectly – that “the NIT only obtained identifying information; it did not cross the line between

App. 43

collecting addressing information and gathering the

contents of any suspect’s computer.” Id. at *22. But

while the “identifying information” may not have been

images of child pornography, it was still part of the

computer’s code. Indeed, as the Darby court said, “[t]he

‘contents’ of a computer are nothing but its code.”

Darby, 2016 WL 3189703 at *6. Thus, the NIT did, in

fact, gather the contents of the defendants’ computers.

Next, the Matish court, through a history of hacking,

detailed society’s changing view of the Internet and

supposed corresponding diminished expectation of

privacy in people’s online posts and computers themselves. Matish, at *22-23. It continued by referring to

Justice Breyer’s concurrence in Minnesota v. Carter,

523 U.S. 83 (1998). The Matish court concluded that

just as “a police officer who peers through broken

blinds does not violate anyone’s Fourth Amendment

rights, FBI agents who exploit a vulnerability in an

online network do not violate the Fourth Amendment.”

Matish, WL 3545776 at *23 (internal citation omitted).

This Court rejects that comparison. Using the NIT to

“exploit a vulnerability in the online network” is not

akin to police merely peering through broken blinds; it

is akin to the police breaking the blinds and then peering through them. The Matish court finally noted the

severity of child pornography, likening it to an international crime. Id. at 23. While this Court appreciates the

deplorable nature of child pornography, the crime itself

is immaterial in deciding whether a defendant had a

reasonable expectation of privacy in his computer.

App. 44

Having concluded the use of the NIT constituted a

Fourth Amendment search, the Court must now turn

its attention to whether the warrant upon which the

search was premised was valid.

C.

Whether the Magistrate’s Issuance

of the NIT Warrant Violated the

Federal Magistrate’s Act and Rule 41(b)

The Federal Magistrate’s Act, 28 U.S.C. § 636, specifically incorporates the Federal Rules of Criminal

Procedure. Accordingly, the Court combines its analysis of the Federal Magistrate’s Act and Rule 41(b) and

finds the magistrate judge acted without authority to

issue the warrant. Rule 41(b) provides that upon the

request of a federal law enforcement officer or government attorney:

(1) a magistrate judge with authority in the

district – or if none is reasonably available, a judge of a state court of record in

the district – has authority to issue a warrant to search for and seize a person or

property located within the district;

(2) a magistrate judge with authority in the

district has authority to issue a warrant

for a person or property outside the district if the person or property is located

within the district when the warrant is issued but might move or be moved outside

the district before the warrant is executed;

App. 45

(3) a magistrate judge – in an investigation

of domestic terrorism or international

terrorism – with authority in any district

in which the activities related to the terrorism may have occurred has authority

to issue a warrant for a person or property within or outside that district;

(4) a magistrate judge with authority in the

district has authority to issue a warrant

to install within the district a tracking

device; the warrant may authorize the

use of the device to track the movement

of a person or property located within the

district, outside the district, or both; and

(5) a magistrate judge having authority in

any district where activities related to

the crime may have occurred, or in the

District of Columbia, may issue a warrant

for property that is located outside the

jurisdiction of any state or district, but

within any of the following:

(A) a United States territory, possession,

or commonwealth;

(B) the premises – no matter who owns

them – of a United States diplomatic

or consular mission in a foreign state,

including any appurtenant building,

part of a building, or land used for the

mission’s purposes; or

(C) a residence and any appurtenant land

owned or leased by the United States

and used by United States personnel

App. 46

assigned to a United States diplomatic or consular mission in a foreign state.

FED. R. CRIM. P. 41(b). Subsections (b)(3) and (5) are

clearly inapplicable to the present case. The government, however, argues subsections (b)(1), (2), and (4)

all permit the magistrate’s actions. Accordingly, the

Court shall consider and reject each argument in turn.

i.

41(b)(1)

The government argues “it was reasonable” for the

magistrate to issue the warrant because “the defendant entered the Eastern District of Virginia by accessing the Playpen server there, retrieved the NIT from

that server, and the NIT sent his information back to a

server in that district.” ECF No. 15 at 43. Subsection

(b)(1), however, is unconcerned with those activities.

Rather, it allows a magistrate “to issue a warrant to

search for and seize a person or property located

within the district.” While the NIT may have been deployed from the Eastern District of Virginia, the search

it initiated took place in Broy’s computer in Illinois.

Furthermore, while Broy himself may have virtually

entered the Eastern District of Virginia, he did not

bring with him the information the NIT instructed the

computer to transmit back to the government.4 Thus,

4

There is a colorable argument that he brought with him his

IP address, but the Tor network ensured the IP address he

brought was not from the “activating computer.” Furthermore, he

certainly did not bring with him the other six pieces of information

App. 47

Rule 41(b)(1) did not authorize the magistrate to issue

the warrant.

ii.

41(b)(2)

The government also contends subsection (b)(2)

authorized the magistrate to issue the warrant because the NIT was originally installed on a government server in the Eastern District of Virginia. ECF

No. 15 at 42. The government again misses the point.

Subsection (b)(2) allows a magistrate to issue a warrant for a person or property outside the district if that

person or property is within the district when the warrant is issued but may move or be moved outside the

district before the warrant is executed. It does not create methods by which to seize property that was never

in the district. It is true that the NIT was in the district

when the warrant was issued. But the property to be

searched and seized, namely Broy’s computer and its

contents, remained in Illinois. The Court acknowledges

the government’s position is not an unreasonable one

in the abstract, but it is weak given the mechanics of

how the NIT operated.5 Thus, subsection (b)(2) similarly did not authorize the magistrate’s actions.

the NIT gathered and returned to the government. Those stayed

in the computer in Illinois until the NIT accessed them.

5

If, for example, a suspect visited the Eastern District of Virginia with his computer but was likely to leave the district soon,

this subsection may have authorized the magistrate’s actions.

App. 48

iii.

41(b)(4)

The government dedicates most of its Rule 41(b)

analysis to subsection (b)(4), the “tracking device” subsection. As the government put it, “[i]nvestigators installed the NIT in the Eastern District of Virginia on

the server that hosted [Website A]. When the defendant logged on and retrieved information from that

server, he also retrieved the NIT. The NIT then sent

network information from the defendant’s computer

back to law enforcement.” ECF No. 15 at 39 (emphasis

added). The government’s own wording is fatal to its

argument. Subsection (b)(4) allows the installation of

a tracking device to track the movement of a person or

property; it does not allow the installation of a device

that searches for information that it then sends back

to the government. The Court agrees with the court in

Adams: “the NIT [did] not track; it searche[d].” Adams,

2016 WL 4212079 at *6. But see Darby, 2016 WL

3189703 at **11-12; Matish, 2016 WL 3545776 at **1517. Thus, subsection (b)(4) did not authorize the magistrate to issue the warrant.

Because none of Rule 41(b)’s subsections authorized the magistrate’s actions, the Court is left to conclude the issuance of the warrant violated Rule 41. By

the government’s own admission, because “the warrant was issued without lawful authority under Rule

41, it [was] void at the outset,” or ab initio. ECF No. 15

at 28. See also Levin, 2016 WL 2596010 at *15. But see

Adams, 2016 WL 4212079 at *6. As mentioned above,

supra page 11, Broy had a reasonable expectation of

privacy in his computer such that the use of the NIT

App. 49

was a Fourth Amendment search. The Court thus finds

the government’s actions ran afoul of Broy’s Fourth

Amendment protections. Accordingly, it is left to consider whether suppression is an appropriate remedy in

this case.

D. Whether Suppression

is an Appropriate Remedy

Broy argues that in the face of a violation of Rule

41(b) of constitutional magnitude, the Court should

suppress the evidence discovered as a result of the

Fourth Amendment violation. ECF No. 13 at 12-14.

The government, on the other hand, argues suppression is not the proper remedy, any constitutional violation notwithstanding. ECF No. 15 at 34-36. The Court

agrees with the government in this case.

“The fact that a Fourth Amendment violation occurred . . . does not necessarily mean that the exclusionary rule applies.” Herring v. United States, 555 U.S.

135, 140 (2009) (citing Illinois v. Gates, 462 U.S. 213,

223 (1983)). In fact, exclusion has always been considered a “last resort, not [a] first impulse.” Hudson v.

Michigan, 547 U.S. 586, 591 (2006).

The Court in United States v. Arterbury, No. 15CR-182-JHP, 2016 U.S. Dist. LEXIS 67091 (N.D. Okla.

Apr. 25, 2016) on which Broy relies in part, pointed to

relevant Seventh Circuit law which, in its opinion,

would resolve any suppression question in the Seventh

Circuit. Arterbury, 2016 U.S. Dist. LEXIS 67091 at

**15-17. U.S. v. Cazares-Olivas, 515 F.3d 726 (7th Cir.

App. 50

2008), for example, says “violations of federal rules do

not justify the exclusion of evidence that has been

seized on the basis of probable cause.” 515 F.3d at 730.

Furthermore, “[t]he remedy of allowing a defendant to

go free based on a violation of Rule 41’s requirements

for obtaining a proper search warrant would be ‘wildly

out of proportion to the wrong.’ ” U.S. v. Berkos, 543 F.3d

392, 396 (7th Cir. 2008) (quoting Cazares-Olivas, 515

F.3d at 730). While this Court believes these two cases

are instructive, it notes that whether they control is

not a certainty. Neither Cazares-Olivas nor Berkos

involved warrants specifically determined to be void

ab initio, as the warrant in this case has been.6 In

addition, the depth of the Rule 41 analyses in those

cases is not as great as here. But regardless whether

Cazares-Olivas and Berkos dictate a result, the Court

still finds suppression inappropriate in the instant

case under the good faith exception to the exclusionary

rule.

In United States v. Leon, 468 U.S. 897 (1984), the

Supreme Court announced its “good-faith exception” to

the exclusionary rule and held suppression is not warranted when officers act in reasonable reliance on a

search warrant issued by a detached and neutral magistrate. 468 U.S. at 913, 925-26. It found suppression

“should be ordered only on a case-by-case basis and

6

The Court sees no other way of reading Cazares-Olivas,

however, where the Seventh Circuit noted “[t]he agents had judicial approval, based on probable cause, but they did not have a

warrant.” 515 F.3d 726, 729. The same scenario presents itself in

the current case.

App. 51

only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” Id. at 918.

The primary purpose of the exclusionary rule is, of

course, “to safeguard Fourth Amendment rights generally through its deterrent effect.” Id. at 906 (quoting

United States v. Calandra, 414 U.S. 338, 348 (1974)).

The good faith exception to the exclusionary rule turns

on “objective reasonableness.” Id. at 924.

It appears to be an unsettled question whether the

Leon exception applies to warrants that are void ab initio. Broy points to the Levin court, which held Supreme Court precedent did not require the Leon

exception be applied to searches pursuant to warrants

that are determined to be void ab initio. ECF No. 18 at

12-13. See also Levin, 2016 WL 2596010 at *12-13.

Broy further points to United States v. Krueger, 809

F.3d 1109 (10th Cir. 2015), where the Tenth Circuit recently affirmed a district court’s order granting the

defendant’s motion to suppress because suppression

would “further[ ] the purpose of the exclusionary rule

by deterring law enforcement from seeking and obtaining warrants that clearly violate” Rule 41(b). Krueger,

809 F.3d at 1117. His argument that Krueger is applicable in this case boils down to his assertion that the

government was not merely negligent, but rather that

they made “purposeful misrepresentations” to the magistrate judge, thus foreclosing any possibility of objective reasonableness. ECF No. 18 at 15. Broy claims

Herring, 555 U.S. 135 (2009), is inapplicable here for

this same reason. The Court need not decide whether

App. 52

the government was even negligent, however, as it

finds Broy is mistaken as to Herring’s applicability.

In Herring, Chief Justice Roberts wrote that in order “[t]o trigger the exclusionary rule, police conduct

must be sufficiently deliberate that exclusion can

meaningfully deter it, and sufficiently culpable that

such deterrence is worth the price paid by the justice

system.” 555 U.S. at 144. He noted Supreme Court

cases “require any deterrence to be weighed against

the substantial social costs exacted by the exclusionary

rule.” Id. at 144 n. 4 (internal quotations omitted).

Here, while Broy claims the FBI having two different

judges issue warrants is evidence of deliberateness

and culpability, this is nothing but rank speculation in

which the Court cannot engage. In fact, the Court finds

no indication in this record of any false or misleading

statements made to the magistrate in the warrant application that could support an inference of bad faith.

On the contrary, the government’s efforts in establishing probable cause and obtaining the NIT warrant

were unusually detailed and specific. Such efforts are

to be lauded, not deterred.

Moreover, the only benefit to suppression in this

case would be ensuring magistrate judges are more

careful about issuing NIT warrants in the future, but

two reasons limit the effect of such a benefit. First, the

benefit would not last for long. On April 28, 2016, the

Supreme Court approved an amendment to Rule 41(b)

which, when it takes effect on December 1, 2016, will

empower magistrate judges to issue warrants which authorize remote searches of computers wherever located

App. 53

if the computer’s location has been concealed through

technological means.7 Second, and more importantly,

the exclusionary rule is designed to control the conduct

of law enforcement, not the conduct of federal judges.

E.g., Leon, 468 U.S. at 906-08. As mentioned above, law

enforcement exhibited laudable conduct in this case.

The Court further notes that, in any event, Broy was

not prejudiced by the Rule 41(b) violation. The record

contains no indication of any impediment or legal barrier that would have arisen to prevent a district judge

from issuing the NIT warrant. Thus, the Court finds

Herring counsels against suppression. Overall, then,

the Leon exception to the exclusionary rule applies.

Suppression is not an appropriate remedy in this case.

Conclusion

For the reasons set forth herein, Broy’s Motion to

Suppress Evidence (ECF No. 12) is DENIED.

7

The full amendment can be found at https://www.supremecourt.

gov/orders/courtorders/frcr16_mj80.pdf.