In re A Single-Family Home

549 F.Supp.3d 810

In the MATTER OF the SEARCH OF: a SINGLE-FAMILY HOME

No. 20 M 684

United States District Court, N.D. Illinois, Eastern Division.

Signed May 14, 2021

AUSA, Caitlin S. Walgamuth, United States Attorney's Office, Chicago, IL, for United States of America.

MEMORANDUM OPINION AND ORDER

John Z. Lee, United States District Judge Following a long-term investigation, the government applied for a warrant to search a house for evidence related to the suspected possession and distribution of child pornography by one of its residents in violation of 18 U.S.C. §§ 2251(d), 2252, and 2252A. The duty magistrate judge granted the government's request to search the premises, as well as to seize and later search any electronic devices—other than cell phones—found inside. As for cell phones, however, the magistrate judge permitted the government only to seize and search any cell phones that the agents reasonably believe belong to, or are regularly used by, the suspected individual, who lives at the residence along with his wife and child. As for any other cell phones found in the residence, the magistrate judge denied the government's application, finding that it had failed to establish probable cause that such cell phones would contain evidence of the suspected offenses.

Believing it to be an overly restrictive application of Fourth Amendment law, the government asks the Court to review the magistrate judge's order. For the following reasons, the order is affirmed.

I. Background ¹

In early 2020, the Federal Bureau of Investigations ("FBI"), through the work of an undercover officer ("UCO"), determined that the suspected individual ("Subject One") was distributing child pornography on an internet platform ("the Platform") that allows users to create groups and share content with other members. 1/22/21 Am. Sealed Order ("Magistrate Judge Order") at 2, ECF No. 5. Although the Platform affords a degree of anonymity to users, it assigns each user a unique numeric identifier that remains constant. Id.

At the initial phase of the investigation, the UCO discovered that Subject One was a member of several groups whose members shared child pornography through hyperlinks and drop boxes. Id. The UCO noted that Subject One took an active role in monitoring one group in particular, leading the UCO to conclude that Subject One "was responsible for reviewing links, photos, and videos posted [to this group] by other members to confirm the content contained child pornography." Id.

In the spring of 2020, the UCO observed Subject One's user account post a hyperlink within the group. Id. When the UCO accessed the hyperlink, it led to numerous images and videos of child pornography. Id. Nine of the videos that the UCO reviewed contained known child pornography victims. Id.

The FBI ultimately linked the user account in question to Subject One by tracing the numeric identifier assigned by the Platform to an email address that had been created by an individual with Subject One's date of birth; the individual also had used an alternative email address and a cell phone number that were linked to Subject One. Id. at 3. Furthermore, the IP address used to access the account was registered to Subject One at the residence in question. Id. In all, the FBI's analysis of login information showed that Subject One's user account had been accessed over 1,700 times during an approximately five-month period from winter to summer of 2020. Id. And the FBI had reason to believe that Subject One used a number of electronic devices, including an Apple iPhone or other Apple branded device, to access the account. Id.

Based on the UCO's affidavit, the government applied for a search warrant on December 31, 2020. The magistrate judge found that the affidavit established probable cause to search the residence of Subject One and to seize and later search all electronic devices found therein, with the exception of cell phones not "belonging to or controlled by Subject One." Id. at 6.

In singling out cell phones, the magistrate judge relied on the heightened privacy interest that an individual has in her cell phone as articulated by the Supreme Court in Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). There, the Supreme Court held that law enforcement officers "must generally secure a warrant"—and so establish probable cause—before conducting a search of data on a cell phone, even when the search is incident to an arrest. Magistrate Judge Order at 6 (quoting Riley , 573 U.S. at 386, 134 S.Ct. 2473 ).

Here, the magistrate judge "[did] not believe that the government ha[d] established probable cause that cell telephones possessed by individuals other than Subject One may contain evidence of a criminal offense or contraband." Id. at 1. This was so because the government had submitted "no information about any other individual associated with [the residence] who might be involved in, or even aware of, the possession and distribution of child pornography that Subject One is seemingly engaged in," nor "any basis [to] support a reasonable inference that others who reside at or may be found at [the residence] would have information or evidence on their respective cell phones of Subject One's likely criminal conduct." Id. at 3.

To the contrary, the magistrate judge noted, "much of the boiler plate language [in the government's affidavit] suggests the opposite—that Subject One would conceal his criminal conduct from others." Id. For instance, the affiant asserted that the majority of individuals who possess child pornography "may go to great lengths to conceal and protect from discovery, theft, and damage their collections of illicit materials." This, concluded the magistrate judge, supported the inference that "most collectors of child pornography hide their conduct from individuals with whom they live." Id. at 4–5 (emphasis removed). Thus, the magistrate judge found that the affidavit demonstrated "[a]t best ... that determining which cell phones belong to or are regularly used by Subject One may be difficult to ascertain." Id. at 6.

To address the magistrate judge's concern, the government argued that agents would not search any cell phones they could affirmatively identify as being used exclusively by someone other than Subject One. Id. at 7. But the magistrate judge identified two "fatal flaw[s]" in this argument. First, he noted that the government's approach inverted Riley ’s presumption that cell phones ab initio are protected from governmental inspection absent sufficient justification. Id. Second, the magistrate judge asserted that the government's proposal left the determination of which cell phones may be seized and searched "completely to the agents’ discretion" in contravention of the Fourth Amendment's particularity requirement. Id. at 8.

Alternatively, the government proposed conducting a cursory search of any cell phone found in the house before engaging in a full review, as a means of ascertaining whether it belongs to Subject One or someone else. But the magistrate judge rejected this as well, stating that the Seventh Circuit "has already found such conduct to violate the Fourth Amendment." Id. at 9 (citing United States v. Jenkins , 850 F.3d 912, 920 (7th Cir. 2017) ).

After the magistrate judge issued his order, the government filed a motion to reconsider, supported by an amended affidavit, asserting that the magistrate judge had erred in not permitting it to seize and search all cell phones "that appear capable of containing evidence, contraband, instrumentalities and information related to Subject One's child pornography offense." Gov't’s Sealed Mot. at 2, ECF No. 3. The magistrate judge denied the motion, finding no reason to depart from his earlier ruling that the government may seize and search only those cell phones "that belong to or are regularly used by Subject One, based on the agents’ reasonable belief as to the phones that meet this description." Magistrate Judge Order at 17.

The government then filed this request for review of the magistrate judge's order pursuant to Local Criminal Rule 50.4.²

II. Legal Standard

Pursuant to Local Criminal Rule 50.4, review of an order entered by the duty magistrate judge in proceedings directly assigned thereto under Local Criminal Rule 5.1 "shall be heard by the emergency [district] judge." LCrR.50.4. In reviewing an order on a warrant application, the district judge "afford[s] great deference" to the magistrate judge's findings as to probable cause, which must be upheld so long as they are supported by "a substantial basis." See United States v. Aljabari , 626 F.3d 940, 944 (7th Cir. 2010) (cleaned up); see also Gates , 462 U.S. at 238–39, 103 S.Ct. 2317 ("[T]he duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." (cleaned up)). At the same time, the district judge reviews the magistrate judge's order de novo "insofar as it presents questions of law under the Fourth Amendment." United States v. Sewell , 780 F.3d 839, 845 (7th Cir. 2015).

III. Analysis

As an initial matter, it is important to note what the government does not challenge in requesting review of the magistrate judge's order. First, the government does not challenge the magistrate judge's determination that, with regard to cell phones within the residence, probable cause extends only to those phones belonging to or regularly used by Subject One. As the magistrate judge noted, the government's affidavit is devoid of facts to "support a reasonable inference that others who reside at or may be found at [the home] would have information or evidence on their respective cell phones of Subject One's likely criminal conduct." Magistrate Judge Order at 3 (emphasis added). To the contrary, the affidavit "suggests the opposite—that Subject One would conceal his criminal conduct from others." Id. ; see also id. at 4–5. Conceding as much, the government...