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United States v. Uskokovic

United States District Court, E.D. New York

November 10, 2017

UNITED STATES OF AMERICA,
v.
DANIEL USKOKOVIC, Defendant.

          MEMORANDUM & ORDER

          PAMELA K. CHEN, UNITED STATES DISTRICT JUDGE.

         In light of this Court's decision in United States v. Kim (16-cr-191, Dkt. 55). dated November 10, 2017, a copy of which is attached and incorporated by reference, and for the reasons set forth therein, Defendant's Motion to Suppress (Dkt. 32) is denied.

         SO ORDERED.

         UNITED STATES OF AMERICA, v.

         YANG KIM, also known as ANDREW KIM, Defendant.

         No. 16-CR-191 (PKC)

         MEMORANDUM & ORDER

         On April 14, 2016, a grand jury returned a two-count indictment against Defendant Yang Kim. The indictment charged Defendant with one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(4) and (b)(2), and one count of receipt of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1). On February 14, 2017, Defendant filed a motion to suppress all evidence obtained from the government's search of his computer on the basis that the search warrant violated his rights under the Fourth Amendment. (Defendant's Brief (“Def. Br.”), Dkt. 33.) He asks, in the alternative, that the Court hold a Franks hearing to determine “whether the agent signing the warrant misrepresented the probable cause supporting the warrant.” (Id. at 3 n.1.) Because the Court finds that the government acted in good faith in obtaining the search warrant, Defendant's motion is denied.[1]

         BACKGROUND

         The Court assumes the parties' familiarity with the facts in this case and thus recites them only to the extent relevant to the Court's analysis.[2]

         On February 20, 2015, Federal Bureau of Investigation (“FBI”) Special Agent Douglas Macfarlane swore out an affidavit in support of an application for a search warrant in the Eastern District of Virginia. (NIT Warrant Application, Dkt. 33, at 18-51.)[3] The subject of that warrant was “Playpen, ” a website “dedicated to the advertisement and distribution of child pornography” and “the discussion of matters pertinent to child sexual abuse.” (Id. at 28.) Because Playpen operated on the “Tor”[4] network-a network designed to maintain a user's anonymity[5]-the FBI could not easily identify Playpen users. (Id. at 28-29.) As a result, the FBI obtained a search warrant (the “NIT Warrant”) authorizing it to deploy a “Network Investigative Technique” (“NIT”) onto any computer used to log into the Playpen website. The NIT was deployed from the Playpen server located in the Eastern District of Virginia (id. at 41-42) and placed onto the “activating” computers-defined as the computer “of any user or administrator who logs into [Playpen] by entering a username and password” (id. at 50)-located anywhere in the United States.[6] United States v. Allain, 213 F.Supp.3d 236, 249 (D. Mass. 2016). By installing the NIT onto Playpen users' computers, the FBI could identify the IP addresses, and eventually the individuals, that logged into the site.

         In the Warrant Application, Special Agent Macfarlane stated that there was “probable cause to believe there exist[ed] evidence, fruits, and instrumentalities of criminal activity related to the sexual exploitation of children on computers that access [Playpen], in violation of 18 U.S.C. §§ 2251 and 2252A, ” and that the search authorized by the NIT Warrant would help the FBI to identify the computers used to log into Playpen and the locations and users of those computers. (NIT Warrant, at 49.) When deployed, the NIT would cause the user's computer, i.e., the “activating” computer, to transmit the following information to the government's server:

1) the computer's actual IP address and the date and time that the NIT determined what that IP address was;
2) a unique identifier generated by the NIT to distinguish data from that of other computers;
3) the type of operating system running on the computer;
4) information about whether the NIT had already been delivered to the “activating” computer;
5) the computer's Host Name;
6) the computer's active operating system username; and
7) the computer's media access control (“MAC”) address.

(Id. at 51.)

         The NIT Warrant was issued on February 20, 2015, by Theresa Carroll Buchanan, a United States Magistrate Judge for the Eastern District of Virginia.

         DISCUSSION

         This case is one of more than 60 cases around the country in which the validity of the NIT Warrant has been challenged. (See Government's Opposition, Dkt. 34, at 5-7 nn.3-5 (collecting cases)); see also United States v. Dzwonczyk, No. 4:15-CR-3134, 2016 WL 7428390, at *4 (D. Neb. Dec. 23, 2016) (“[T]he Playpen investigation has resulted in nationwide litigation, producing largely divergent opinions regarding the validity of the NIT warrant under Fed. R. Crim. P. 41(b), and the applicability, if at all, of the exclusionary rule.”). As the Middle District of Tennessee explained in United States v. Austin,

Numerous courts across the country have considered the validity of the same NIT Warrant challenged here. In general terms, the decisions fall into three categories. Several courts have determined that the NIT Warrant violated Rule 41(b), or assumed without deciding that the warrant violated Rule 41(b), but, nonetheless, concluded that suppression was not warranted. Other courts have determined that the NIT Warrant did not violate Rule 41(b) because it is a “tracking device” authorized by Rule 41(b)(4), but even if that were not the case, suppression is not warranted. Finally, a few courts have concluded that the NIT Warrant violated Rule 41(b), and ordered suppression as a remedy.

230 F.Supp.3d 828, 832-33 (M.D. Tenn. 2017) (collecting cases) (internal citations omitted).

         This case is no exception: Kim argues that the NIT Warrant violated the territorial limitations of the Federal Magistrates Act and Federal Rule of Criminal Procedure 41(b) (“Rule 41(b)”).[7] Specifically, he contends that his Fourth Amendment protection against illegal searches was violated because “a magistrate judge in the Eastern District of Virginia authorize[d] a search in New York” in violation of Rule 41(b). (Def. Br. 7-11); see also United States v. Hammond, No. 16-CR-102, 2016 WL 7157762, at *3 (N.D. Cal. Dec. 8, 2016) (“The critical issue here is that the magistrate judge in the Eastern District of Virginia signed off on a warrant that authorized the search of ‘activating computers' located outside of her district.”). According to Kim, this violation of Rule 41(b) rendered the warrant void ab initio and unconstitutional, and, therefore, “no [‘good faith'] exception to the Fourth Amendment warrant requirement applies, and the fruits of the search should be suppressed . . . with no further inquiry.” (Def. Br. ...


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