United States v. Brown

1

UNITED STATES OF AMERICA v. ROBERT SCOTT BROWN JR. (01)

No. 3:22-CR-00267-01

United States District Court, W.D. Louisiana, Monroe Division

August 7, 2023

TERRY A. DOUGHTY, JUDGE.

REPORT AND RECOMMENDATION

KAYLA DYE McCLUSKY, UNITED STATES MAGISTRATE JUDGE.

Pending before the undersigned Magistrate Judge, on reference from the District Court, is a motion to suppress [doc. #28] filed by Defendant Robert S. Brown, Jr. The motion is opposed. [doc. #30]. For reasons that follow, IT IS RECOMMENDED that the motion to suppress be DENIED.

Background

Beginning in August 2021, FBI Special Agent William Scullin began investigating distribution of Child Sex Abuse Material (“CSAM”) on an online peer-to-peer file sharing network called Freenet. [doc. #30, p. 5]. As a result of this investigation, Agent Scullin identified an IP address that was downloading CSAM. [doc. #30, p. 5]. Subsequently, Agent Scullin obtained an administrative subpoena to Comcast Communications, Inc., and learned that the IP address belonged to a computer at 3012 Deborah Drive in Monroe. Id.

On January 28, 2022, Agent Scullin obtained a search warrant for 3012 Deborah Drive, the home of Defendant's parents. Id. at 5. Agents executed the warrant on February 1 2022. Id. Agents found no CSAM in the home but learned from Defendant's parents that Defendant recently moved to an apartment nearby, at 3100 Deborah Drive. Id.

Agents then contacted Defendant, who agreed to travel to his parents' home for an interview. Id. Agents Mirandized Defendant, who subsequently admitted to viewing “older/younger” pornography but denied downloading CSAM via Freenet. Id. at 6. The Defendant also confirmed he recently moved from his parents' home at 3012 Deborah Drive to an apartment at 3100 Deborah Drive. Id.

Ouachita Parish Sheriff Senior Investigator James Humphrey, who was present for the search at 3012 Deborah Drive, applied for a state-court search warrant for Defendant's apartment which he obtained. Id. at 6.

That same day, Agents executed the search warrant and found a computer inside Defendant's apartment with Freenet running on four hard drives. Id. The Agents found numerous images of CSAM on the hard drives. Id.

On October 26, 2022, Defendant was indicted on four counts of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2)(A). [doc. #1].

On March 2, 2023, Defendant filed the instant motion to suppress. [doc. #28]. On March 20, 2023, the Government filed its response. [doc. #30]. On June 7, 2023, the Court held a motion hearing. [doc. #37].

Accordingly this matter is ripe.

Relevant Testimony and Documentary Evidence

Three Government witnesses testified at the hearing: Dr. Brian Levine, Agent Scullin, and OPSD Investigator Humphrey.

Dr. Levine, a professor at the University of Massachusetts, was accepted as an expert in the field of networking and digital forensics at the hearing and testified consistently with the Government's recitations in its brief. [Hearing Transcript, pp. 7-34]. He explained that Freenet allows users' computers to communicate directly with each other to share files. Id. at 22. Freenet has two operational modes: “opennet” and “darknet.” Id. at 16. In “opennet” mode, users connect with other users whose identities are unknown.^[1][doc. #30, p. 3]; (Tr., pp. 16-17). Freenet allows files to be broken into pieces and stored on portions of users' hard drives and then encrypted, so that a user is unaware of the content of pieces filed on their hard drive. (Tr., pp. 17-19). Once a file is fully uploaded, the user who uploaded it receives a “manifest key” that must be entered to access the file. Id. at 19. The user then must share the manifest key with other users for them to access the entire file. Id. at 19-20. Manifest keys for CSAM files are made publicly available via Freenet-based message boards dedicated to child exploitation. [doc. #30, p. 3].

There is a Law Enforcement version of Freenet, developed by Dr. Levine, that allows for statistical analysis to identify, with some probability, the IP address that is requesting to download certain files from Freenet. Id. at 4 (described in greater technical detail); (Tr., p. 26).

Agent Scullin testified that, during his investigation, he used the law-enforcement version of Freenet and determined it was likely that a particular IP address was downloading CSAM. [doc. #30, p. 5]; Tr., pp. 38-40). He also determined that the last request for CSAM files to that IP address was in December 2021. (Tr., p. 45). Subsequently, on September 2, 2021, Agent Scullin obtained an administrative subpoena to Comcast Communications, Inc., and learned that the IP address belonged to Robert Brown at 3012 Deborah Drive in Monroe. Id. at 41-42.

At that time, Agent Scullin conducted further investigative activity and determined that Robert Brown, Sr., as well as Katherine Brown and Robert Scott Brown, Jr., all lived at 3012 Deborah Drive. Id. at 43-44. Agent Scullin performed other investigative measures, including criminal history checks, social media checks, physical surveillance, and employment status. Id. at 44. Agent Scullin determined that Robert Scott Brown, Jr., was employed by the Ouachita Parish School Board as an IT professional. Id. During the investigation, Agent Scullin began collaborating with Investigator Humphrey, a task force officer assigned to the FBI's Monroe office. Id. at 45.

On January 28, 2022, Agent Scullin obtained a federal search warrant for 3012 Deborah Drive. Id. at 45. Agent Scullin, along with Investigator Humphrey, executed the warrant on February 1, 2022. Id. at 46. Agent Scullin interviewed Robert Brown., Sr., as well as Katherine Brown, and learned that their son, Robert Brown, Jr., had moved out at the end of December. Id. at 48. Agent Scullin testified that the timing of Brown, Jr.'s move was significant, as December 2, 2021, was the last date that he received leads identifying the IP address at 3012 Deborah Drive attempting to download suspected CSAM files. Id. at 48. Agent Scullin also testified that the timing of the last CSAM download, as well as the timing of Brown, Jr.'s move, was made known to other officials assisting in the search, including Inspector Humphrey. Id. at 48.

Agent Scullin further testified that he interviewed Brown, Jr., who, after being advised of his Miranda rights, admitted to viewing pornography daily, specifically in the genres of “old, young, and incest.” Id. at 49. He denied knowledge of Freenet but confirmed he moved out at the end of December 2021. Id. Brown, Jr., indicated that he moved to an apartment at 3100 Deborah Drive. Id. at 50.

Later that day, Investigator Humphrey obtained a state search warrant for Brown, Jr.'s apartment. Id. at 50. Humphrey testified that he wrote the search warrant in his truck on a laptop. Id. at 61. He further testified that it was urgent that investigators obtain the warrant for fear of destruction of evidence. Id. Investigators obtained and executed the warrant for Brown, Jr.'s apartment and discovered a computer running Freenet. Id. at 50-51. Investigators later searched the hard drive and found hundreds of CSAM materials, including a file that matched the original file that gave rise to Agent Scullin's investigation. Id. at 51.

Law and Analysis

I. Motion to Suppress Standard

Where a search violates the Fourth Amendment's protection against unlawful seizures, the exclusionary rule allows suppression of the fruits of the unlawful search. United States v. Leon, 468 U.S. 897, 906 (1984).

A motion to suppress evidence obtained under a search warrant is analyzed under two steps. United States v. Sibley, 448 F.3d 754, 657-58 (5th Cir. 2006). First, the court must determine whether the good-faith exception to the exclusionary rule applies. Id. “The good-faith exception provides that where probable cause for a search warrant is founded on incorrect information, but the officer's reliance upon the information's truth was objectively reasonable, the evidence obtained from the search will not be excluded.” Id. (quoting United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2012)). The good-faith exception does not apply when (1) the magistrate issuing the warrant was misled by information in an affidavit that the affiant knew or should have known was false; (2) the issuing magistrate abandoned the judicial role; (3) the warrant was based on an affidavit so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable; or (4) the warrant was so facially deficient that the executing officers could not have reasonably presumed it to be valid. Id.

If the good-faith exception does not apply, the Court must proceed to the second step and determine whether the magistrate judge issuing the warrant had a “substantial basis for believing there was probable cause for the search.” Id. (citing United States v. Cherna, 184 F.23d 403, 407 (5th Cir. 1999)). If so, then the motion to suppress should be denied. See id.

II. Analysis

On March 2, 2023, Defendant filed the instant motion to suppress. [doc. #28-1]. He moves to suppress the evidence seized in this case “as a result of the staleness and paucity of information supplied by the affiant in the warrant and in light of the earlier warrantless search, intrusion and seizure by a government entity.” Id. at 3. In support, he advances four arguments: (1) that the affidavit supporting the state-court search warrant did not specify a time frame for the alleged illegal activity; (2) that no explanation was given for the delay between the alleged violations in the “last few months of 2021” and the state-court warrant's execution on February 1, 2022 which was “woefully stale”; (3) that no explanation was given...