United States District Court, E.D. New York
MEMORANDUM & ORDER
K. CHEN, UNITED STATES DISTRICT JUDGE.
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.
STATES OF AMERICA, v.
KIM, also known as ANDREW KIM, Defendant.
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.
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.
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.) 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” network-a network designed
to maintain a user's anonymity-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. 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.
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
(Id. at 51.)
Warrant was issued on February 20, 2015, by Theresa Carroll
Buchanan, a United States Magistrate Judge for the Eastern
District of Virginia.
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.
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
230 F.Supp.3d 828, 832-33 (M.D. Tenn. 2017) (collecting
cases) (internal citations omitted).
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)”). 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. ...