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United States v. Hinds

United States District Court, W.D. Tennessee, Western Division

November 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
AUGUST HINDS, Defendant.

          REPORT AND RECOMMENDATION

          TU M. PHAM UNITED STATES MAGISTRATE JUDGE

         Before the court by order of reference is defendant August Hinds's Motion to Suppress Evidence, filed on July 12, 2017. (ECF No. 22.) The United States filed a response on August 4, 2017. (ECF No. 26.) For the following reasons, it is recommended that the motion be denied.

         I. PROPOSED FINDINGS OF FACT

         For the limited purpose of resolving the present motion, the parties agree that the following facts are not in dispute.[1] This case stems from a nationwide federal investigation into an online child pornography website. In 2014, an undercover agent with the FBI learned about “Playpen” - an online forum that promoted the trafficking of child pornography. (ECF No. 22 at 2; No. 26 at 2.) Playpen relied on “The Onion Router” or “Tor” technology to mask its users' locations and ensure anonymous access to its illicit content. (ECF No. 22 at 3; No. 26 at 2.) However, the anonymizing feature of Tor was inadvertently disabled in December 2014, allowing investigators temporarily to determine the true physical location of the server. (ECF No. 26 at 2.) Investigators subsequently identified and arrested Playpen's administrator and gained control of the website. (ECF No. 22 at 2.) In order to locate and apprehend the site's users, investigators obtained authorization to place a copy of the Playpen website on a government-controlled server in the Eastern District of Virginia and to operate it for up to 30 days. (ECF No. 22 at 2; No. 26 at 3.) The Tor technology nonetheless remained in place on the server, rendering its users' locations and other identifying information anonymous and untraceable. (ECF No. 22 at 3; No. 26 at 3.) To circumvent the Tor anonymizing technology, investigators sought to install their own Network Investigative Technique (“NIT”) technology on the server. (ECF No. 22 at 3; No. 26 at 3.) Once installed, the NIT technology would send communications to any computer that accessed the Playpen server. (ECF No. 22 at 3; No. 26-4 at 20.) That communication would force the user's computer to transmit back to the government server certain identifying information, such as the computer's Internet Protocol (“IP”) address, the date and time of access, and the type of operating system being used. (ECF No. 22 at 3; No. 26-4 at 20.)

         Prior to installing the NIT technology and collecting the above information, investigators applied for a search warrant (the “NIT warrant”). (ECF No. 22 at 5; No. 26 at 4.) The NIT warrant specifically stated that information could be collected from any computer that accessed the Playpen server, i.e., without a territorial limitation. (ECF No. 22 at 5.) A federal magistrate judge in the Eastern District of Virginia authorized the NIT warrant on February 20, 2015. (ECF No. 22 at 1-2.) Thereafter, investigators operated the Playpen server (augmented by the NIT technology) for approximately fourteen days and collected the relevant information, including the IP address, username, and date and time of access, of computers that accessed the site. (ECF No. 22 at 2; No. 26 at 3.) Investigators identified one user named “lovemuffin” and served a subpoena on Comcast, requesting information relating to the IP address associated with the account. (ECF No. 22 at 6.) The subpoena revealed a physical address in Memphis, Tennessee. (ECF No. 22 at 6; No. 26 at 4.) Investigators identified August Hinds as a resident of this address and obtained a search warrant for the residence from a federal magistrate judge in the Western District of Tennessee. (ECF No. 22 at 6; No. 26 at 4.) The FBI executed the warrant on September 3, 2015, and seized a computer, a cell phone, thumb drives, CDs, and DVDs. On March 8, 2017, a federal grand jury in the Western District of Tennessee returned a one-count indictment charging Hinds with accessing a website and server with the intent to view child pornography. (ECF No. 1.)

         II. PROPOSED CONCLUSIONS OF LAW

         Hinds moves to suppress all evidence seized and statements made as a result of the NIT warrant.[2] He argues that the magistrate judge in the Eastern District of Virginia lacked authority under the Federal Magistrates Act, 28 U.S.C. § 636(a), and Federal Rule of Criminal Procedure 41(b) to issue the warrant, rendering the warrant void ab initio. He further argues that the good-faith exception under United States v. Leon, 468 U.S. 897 (1984), should not apply.

         The Federal Magistrates Act provides, in part, as follows:

Each United States magistrate judge serving under [the Act] shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law -
(1) all powers and duties conferred or imposed . . . by the Rules of Criminal Procedure for the United States District Courts[.]

28 U.S.C. § 636(a)(1). Rule 41(b) of the Federal Rules of Criminal Procedure, in turn, grants a magistrate judge authority to issue warrants “to search for and seize” persons and property within the district in which the magistrate judge sits. Rule 41(b)(4) provides a magistrate judge with authority to issue a warrant to install within the district a “tracking device” so that law enforcement can track the movement of a person or property within and outside the judicial district.[3]

         Hinds's case is one of many similar prosecutions that have been brought in federal districts across the nation based on evidence seized as a result of the same NIT warrant. Although the Court of Appeals for the Sixth Circuit has not yet addressed a challenge to the validity of the NIT warrant, more than fifty decisions involving motions to suppress challenging the NIT warrant have been issued by appellate and district courts, including several from district courts within the Sixth Circuit. With only one exception, every motion to suppress has been denied, either at the district court level or subsequently on appeal to the Court of Appeals. See United States v. Moorehead, 1:15-cr-10077-STA-1 (W.D. Tenn. June 6, 2017) (Anderson, C.J.) (surveying then-current state of the case law involving challenges to NIT warrant and denying motion to suppress); see also United States v. Kim, No. 16-cr-191, 2017 WL 5256753, at *4-5 (E.D.N.Y. Nov. 10, 2017) (denying motion to suppress and finding good-faith exception applied to NIT warrant, even assuming warrant violated Rule 41 and was void ab initio); United States v. Grisanti, No. 4:16-cr-00018-TWP-VTW, 2017 WL 4650871, at *6 (S.D. Ind. Oct. 17, 2017) (finding that although NIT warrant exceeded the magistrate judge's jurisdictional authority, suppression was not warranted under the good-faith exception); United States v. Brooks, No. 16-cr-6028, 2017 WL 4641258, at *3 (W.D.N.Y. Oct. 16, 2017) (adopting Report and Recommendation and denying motion to suppress based on challenge to NIT warrant); United States v. Leonard, No. 17-cr-135, 2017 WL 4478330, at *4 (E.D. Va. Oct. 6, 2017) (denying defendant's motion to suppress based in part on the good-faith exception); United States v. Eqal, No. 5:17-32-KKC, 2017 WL 4150467, at *6 (E.D. Ky. Sept. 19, 2017) (finding good-faith exception applied to NIT warrant); United States v. Halgren, No. SA-16-Cr-008-XR, 2017 WL 3741558, at *3 (W.D. Tex. Aug. 30, 2017) (same); United States v. Carlson, No. 16-317 (JRT/FLN), 2017 WL 3382309, at *8 (D. Minn. August 7, 2017) (same); United States v. Wheeler, No. 1:15-Cr-390-MHC-JFK, 2017 WL 3589564, at *4 (N.D.Ga. August 21, 2017) (same). But see United States v. Arterbury, No. 15-CR-182 (N.D. Okla. Apr. 25, 2016).

         Three appellate courts have reviewed challenges to the NIT warrant, and in each case, the court concluded that Leon's good-faith exception applied and that suppression was not warranted. See United States v. Levin, 874 F.3d 316 (1st Cir. 2017); United States v. Horton, 863 F.3d 1041 (8th Cir. 2017); United States v. Workman, 863 F.3d 1313 (10th Cir. 2017). In Workman, the district court had granted the defendant's motion to suppress, finding that the magistrate judge lacked authority to issue the NIT warrant and that the Leon good-faith exception did not apply because the warrant was void ab initio. On appeal, the Tenth Circuit reversed the district court's decision. The court assumed without deciding that the magistrate judge lacked authority to issue the warrant and that the resulting search was unconstitutional or a prejudicial violation of federal law or a federal rule. Workman, 863 F.3d at 1317. Nevertheless, the court found that the Leon good-faith exception applied even if the magistrate judge had exceeded geographic constraints in issuing the NIT warrant. Id. at 1318 (citing Herring v. United States, 555 U.S. 135 (2009); Arizona v. Evans, 514 U.S. 1 (1995)). The Tenth Circuit explained that:

In Herring and Evans, the absence of a valid warrant did not preclude application of the Leon exception because there was no misconduct to deter. Here too there was nothing to deter if the agents had mistakenly relied on the magistrate judge's authority to issue the warrant. As a result, Herring and Evans would require us to apply the Leon ...

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