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United States v. Allen

United States District Court, E.D. New York

December 13, 2017




         On December 3, 2015, a grand jury returned a two-count indictment that charges defendant Richard Allen (“Defendant” or “Allen”) with receipt and possession of child pornography. ECF 14. On July 21, 2017, Allen moved to suppress all evidentiary fruits of the government's search of his computer, which search Allen alleges violated the Fourth Amendment, the Federal Magistrates Act (28 U.S.C. § 636(a)), and Rule 41 of the Federal Rules of Criminal Procedure. ECF 35 (“Def. Br.”). In the alternative, Allen asked the Court to hold a Franks hearing “to determine whether the agent signing the warrant misrepresented the probable cause supporting the warrant to the issuing magistrate.” Id. at 1 n.1. Because the Court concludes that the good faith exception to the exclusionary rule applies, Defendant's motion is denied.


         In January 2015, pursuant to a warrant not at issue here, FBI agents seized control of “Playpen, ” a child-pornography website. ECF 35-1 (“NIT Warrant Application”) ¶ 28. Playpen operated on the internet network known as “Tor, ” the key feature of which is that it maintains users' anonymity by masking their computers' Internet Protocol (“IP”) addresses. See Id. ¶¶ 7-9. To identify the administrators and users of Playpen, the FBI obtained a search warrant (the “NIT Warrant”) authorizing them to use a network investigative technique (“NIT”). Specifically, the NIT Warrant authorized the FBI to augment the Playpen website such that, when a user logged into Playpen by entering a username and password, the user's computer would be sent computer instructions; once downloaded, those computer instructions-which make up the NIT-would cause the user's computer (the “activating” computer) to send identifying information, including the activating computer's IP address, to a government-controlled computer. See Id. ¶ 46, Attachs. A-B; ECF 35-2 (“NIT Warrant”). The NIT Warrant provided that that the NIT would be deployed on the computer server in the Eastern District of Virginia on which the government was operating Playpen, NIT Warrant, Attach. A, but as indicated in the warrant application, the activating computers could be located anywhere, see NIT Warrant Application ¶ 46. The NIT Warrant was issued by a magistrate judge in the Eastern District of Virginia. See NIT Warrant at 1. Armed with the NIT Warrant, the FBI deployed the NIT on Playpen for a two-week period, between February 20, 2015 and March 4, 2015. Def. Br. at 2 (citing ECF 1 (“Compl.”) ¶¶ 3-9).

         Through use of the NIT, the FBI learned the IP address of the computer being used by a Playpen user with the user name “alexandroalek2.” Compl. ¶¶ 26-27. The IP address in question belonged to Optimum Online, and through an administrative subpoena to Optimum, the FBI learned that the IP address was associated with a residence in Brooklyn-Defendant's residence. See Id. ¶¶ 32-34. In July 2015, the FBI obtained and executed a warrant (the “Brooklyn Warrant”) to search the premises of that residence in Brooklyn. Id. ¶ 33. During the search of the residence, the FBI seized an external hard drive that contained hundreds of images and videos of child pornography. Id. ¶ 35. Defendant was present during the search of his residence, and upon being advised of its basis, he confessed to having accessed Playpen; confirmed his username, “alexandroalek2”; and admitted that he had downloaded child pornography to an external hard drive. Id. ¶ 34. Defendant was indicted on December 3, 2015. ECF 14.


         The NIT Warrant at issue in this case has led to scores of prosecutions across the country. In over sixty cases, defendants have filed motions to suppress on substantially identical grounds as did Defendant here. See ECF 41 at 9-11 & nn.4-6 (collecting cases). Courts have issued dozens of decisions regarding the validity of the NIT Warrant and the applicability, if any, of the exclusionary rule, and those decisions fall into three categories:

[1] 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. [2] 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. [3] Finally, a few courts have concluded that the NIT Warrant violated Rule 41(b), and ordered suppression as a remedy.

United States v. Austin, 230 F.Supp.3d 828, 832-33 (M.D. Tenn. 2017) (collecting cases) (internal citations omitted); see also United States v. Dzwonczyk, No. 4:15-CR-3134, 2016 WL 7428390, at *4 (D. Neb. Dec. 23, 2016) (describing same state of the litigation). The few courts that have ordered suppression as a remedy have all been reversed or overruled.[1]

         In this case, Allen makes the same arguments that have been made by defendants across the country in other NIT Warrant cases.[2] In support of his motion to suppress, Defendant does not argue that either the NIT Warrant or the Brooklyn Warrant was deficient as to probable cause or particularity. Instead, Defendant's motion is grounded in his contention that the NIT Warrant did not comply with Rule 41 of the Federal Rules of Criminal Procedure.[3] Rule 41 provides that “a magistrate judge with authority in the district . . . has authority to issue a warrant to search for and seize a person or property located within the district.” Fed. R. Crim. P. 41(b)(1) (emphasis added). Defendant argues that the NIT effectively searched his computer, which was located in Brooklyn-i.e., not “within the district.” See Def. Br. at 4-5. Thus, according to Defendant, the NIT Warrant violated Rule 41 because it purported to authorize the search of property outside the Eastern District of Virginia. See Id. at 6-10. Defendant argues that (i) the Rule 41 violation rendered the NIT Warrant void ab initio-because the magistrate judge did not have the authority to issue it-and thus the resulting search unconstitutional; (ii) all the evidentiary fruits of the NIT Warrant-including all of the evidence obtained pursuant to the subsequent Brooklyn Warrant- should therefore be suppressed; and (iii) no good faith exception applies. See Id. at 10-15.

         The government responds by arguing that (i) the NIT Warrant complied with Rule 41 because the NIT was a tracking device, which under Rule 41(b)(4) may “track the movement of a person or property located within the district, outside the district, or both, ” provided it is installed within the district, see ECF 41 (“Gov. Br.”) at 11-18; (ii) even if the NIT Warrant violated Rule 41, the violation was a technical deficiency, not a constitutional infirmity, and therefore suppression is not warranted because Defendant cannot show that he was prejudiced or that the FBI intentionally and deliberately disregarded the Rule, see Id. at 18-25; and (iii) even if the NIT Warrant was void ab initio and thus the resulting search unconstitutional, the good faith exception to the exclusionary rule applies, precluding suppression of evidence, because the FBI agents acted in objectively reasonable reliance on the NIT Warrant, see Id. at 26-27. The government also argues that public policy favors denial of the motion. See Id. at 27-28.

         To decide this motion, the Court need not resolve whether the NIT Warrant violated Rule 41, an issue on which courts have split. Nearly fifty courts-including the First, Eighth, and Tenth Circuits and the one court in this District to have considered this issue-have denied motions to suppress evidence obtained from the NIT Warrant on the independently dispositive ground that, even if the NIT Warrant was void ab initio, the good faith exception to the exclusionary rule applies. See United States v. Kim, No. 16-CR-191, 2017 WL 5256753, at *6-7 & n.9 (E.D.N.Y. Nov. 10, 2017) (collecting cases); Gov. Br. at 9 & n.5 (same). Assuming arguendo that the NIT Warrant was void ab initio, the Court joins this chorus of courts in concluding that the good faith exception applies, and Defendant's motion is denied on that basis. The Court also denies Allen's requested alternative relief-a Franks hearing to determine whether the FBI misrepresented the basis for probable cause in applying for the NIT Warrant-because Defendant has not made the requisite showing that (i) the affidavit filed in support of the NIT warrant contained a knowingly or recklessly false statement and (ii) such false statement was necessary to the finding of probable cause.

         I. The Good Faith Exception to the Exclusionary Rule Applies

         The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Notably, the Amendment “contains no provision expressly precluding the use of evidence obtained in violation” of its terms. United States v. Leon, 468 U.S. 897, 906 (1984). The exclusionary rule developed as “a ‘prudential' remedy, crafted by the Supreme Court.” United States v. Raymonda, 780 F.3d 105, 117 (2d Cir. 2015). The rule is neither a “personal constitutional right” nor a means “to ‘redress the injury' occasioned by an unconstitutional search.” Davis v. United States, 564 U.S. 229, 237 (2009)). Rather, “[t]he rule's sole purpose . . . is to deter future Fourth Amendment violations.” Id. Crucially, “the exclusionary rule is designed to deter police misconduct, ” not mistakes by judges and magistrates. Leon, 468 U.S. at 916.

         Moreover, “[b]ecause the remedy exacts a heavy toll on the justice system . . . the exclusionary rule does not apply whenever suppressing evidence ‘might provide marginal deterrence.'” Raymonda, 780 F.3d at 117 (quoting Herring v. United States, 555 U.S. 135, 141 (2009)). “The rule's corrective value justifies its cost when the police ‘exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights.'” Id. (quoting United States v. Stokes, 733 F.3d 438, 443 (2d Cir. 2013)). The countervailing considerations at play were described eloquently by then-Judge Cardozo, in People v. Defore, as follows:

No doubt the protection of the statute would be greater from the point of view of the individual whose privacy had been invaded if the government were required to ignore what it had learned through the invasion. The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office.

242 N.Y. 13, 24-25 (1926) (Cardozo, J.). In essence, the value of the corrective rule is diminished when the value of deterrence is exceeded by society's need for protection.

         In assessing the exclusionary rule's deterrent purpose, the Supreme Court has recognized society's need by crafting a good faith exception to the rule's application. By its terms, evidence will not be suppressed “when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope, ” United States v. Leon, 468 U.S. 897, 920 (1984), even if the warrant is subsequently found to have been invalid. The good faith inquiry is confined to “the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.” Herring, 555 U.S. at 145 (citation and internal quotation marks omitted). Defendants seeking to invoke the exclusionary rule face a “high obstacle” due to “the rule's costly toll upon truth-seeking and law ...

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