United States v. Harney

934 F.3d 502

UNITED STATES of America, Plaintiff-Appellee,

v.Jeffrey W. HARNEY, Defendant-Appellant.

No. 18-6010

United States Court of Appeals, Sixth Circuit.

Argued: August 6, 2019

Decided and Filed: August 14, 2019

Rehearing En Banc Denied October 16, 2019^*

ARGUED: Steven D. Jaeger, THE JAEGER FIRM PLLC, Erlanger, Kentucky, for Appellant. James T. Chapman, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee. ON BRIEF: Steven D. Jaeger, THE JAEGER FIRM PLLC, Erlanger, Kentucky, for Appellant. James T. Chapman, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

Before: SUTTON, GRIFFIN, and READLER, Circuit Judges.

SUTTON, Circuit Judge.

This case presents the latest installment in the government’s investigation of a child pornography website called Playpen. As part of a nationwide investigation into this website and as part of the nationwide search warrant that went with it, the government searched Jeffrey Harney’s computer and found illicit images. Harney moved to suppress the evidence and asked the district court to require the United States to turn over all of the background information related to its search. The district court denied both motions. Harney pleaded guilty to receiving child pornography but reserved the right to appeal the denial of his suppression and discovery motions. We affirm.

I.

In 2015, the Federal Bureau of Investigation gained control over Playpen, a large child pornography website. Agents moved a controlled server containing a copy of the website to a government building in Virginia and continued operating the site in hopes of nabbing its users. The nature of the site complicated the government’s efforts. It uses "The Onion Router," known to insiders as Tor, which conceals users’ internet protocol addresses and other identifying information.

Through a 33-page affidavit, the government sought a warrant that would identify the individuals veiled behind the usernames. The proposed warrant, the affidavit explained, would authorize additional instructions to the content that a computer automatically downloaded when visiting the site. The added instructions would cause the user’s computer to send back seven specific pieces of information about the computer, including the actual IP address. A magistrate judge in the Eastern District of Virginia authorized the government to use the technique to search any computer that logged into Playpen with a username and password over the next 30 days.

The technique worked. It identified several users of Playpen. One of them was Harney. He created a Playpen profile and spent about an hour and 20 minutes on the site during the window of observation. Harney viewed several images or videos of child pornography on the site. The protocol captured Harney’s IP address, which allowed agents to get his physical address from his internet provider.

Armed with that information, officers obtained a warrant to search Harney’s house. During the search, Harney admitted he had downloaded child pornography onto his computer. A forensic examination confirmed as much. Harney had 3,640 images, including 1,199 videos, of child pornography on his computer.

The government charged Harney with four counts of receiving and one count of possessing child pornography. Harney moved to suppress the evidence, arguing that a warrant authorizing such an investigation violated the Fourth Amendment. Harney also asked the court to require the government to hand over all of the information about the technique. The district court denied both motions. Even if the warrant violated the Fourth Amendment, it ruled, the good-faith exception applied. And given the government’s willingness to produce some information about the technique, it also ruled, Harney failed to show a legitimate need for the rest.

Harney pleaded guilty to one count of receiving child pornography, 18 U.S.C. § 2252(a)(2), but reserved the right to appeal the adverse rulings on his two motions.

II.

Motion to suppress . The Fourth Amendment protects against "unreasonable searches and seizures" and requires that warrants be based on "probable cause" and "particularly describ[e] the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. When officials violate those commands, courts ordinarily suppress the resulting evidence. See Mapp v. Ohio , 367 U.S. 643, 648, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). But because the Fourth Amendment by its terms and history does not require exclusion, Davis v. United States , 564 U.S. 229, 236, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), courts will not exclude evidence when the costs of suppression outweigh the benefits of deterrence, id. at 237, 131 S.Ct. 2419, such as when reasonable officers rely on a magistrate’s warrant in good faith, United States v. Leon , 468 U.S. 897, 919–21, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). That exception comes with an exception of its own. An officer "cannot reasonably presume" that a "facially deficient" warrant is valid. Id. at 923, 104 S.Ct. 3405.

The investigators acted in good faith in relying on this warrant. Special Agent Douglas Macfarlane submitted a 33-page affidavit to the issuing magistrate, explaining the need for the search and detailing how it would work. The warrant spelled out that the government could search those computers that logged into Playpen with a username and password. And it listed the seven items the government sought from each computer. When the magistrate granted the warrant on the basis of all of this information, the officers were entitled to execute it.

Harney objects on several grounds.

The warrant, he says, did not adequately describe the places the government would search, as the government did not know where the searched computers would be located. But that frequent reality of web-based searches does not transform the warrant into a general warrant, which "specified only an offense" and left officers free to search or arrest anyone. Steagald v. United States , 451 U.S. 204, 220, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). Far from the kind of general warrant at which the particularity requirement takes aim, this warrant allowed the government to search only those computers that logged into Playpen (a known child pornography website) with a username and password after downloading software to access the site.

The warrant thus sufficiently described the place to be searched, saying all that reasonably could be said under the circumstances. Every circuit court to address the question has answered it the same way. United States v. Levin , 874 F.3d 316, 322–23 (1st Cir. 2017) ; United States v. Werdene , 883 F.3d 204, 217 (3d Cir. 2018) ; United States v. Henderson , 906 F.3d 1109, 1119 (9th Cir. 2018).

To the extent Harney means to argue that the agents could not rely on the warrant in good faith because it allowed the government to search computers outside of the Eastern District of Virginia, that does not work either. Our decision in United States v. Moorehead holds to the contrary. 912 F.3d 963, 970–71 (6th Cir. 2019). And for good reason: In the aftermath of this operation, the Federal Rules Committee amended Criminal Rule 41 to spell out that magistrates could issue warrants in just this setting, further undermining any deterrent value of suppressing such evidence. Fed. R. Crim. P. 41(b)(6) ; Moorehead , 912 F.3d at 971.

Trying to nudge outside Moorehead ’s domain, Harney says it doesn’t apply because he didn’t create his Playpen account until after the magistrate issued the warrant. But Harney never offers any explanation why that distinction matters with respect to these types of warrants—all designed to target future access to the website. Nor can we think of any such explanation. Nothing in Moorehead itself, moreover, remotely suggests such a good-for-Tuesdays-but-not-for-Wednesdays distinction.

Harney adds that Special Agent Macfarlane could not rely on the warrant because he did not base the affidavit on personal knowledge. That is wrong on the facts and the law. Factually, Macfarlane conveyed firsthand knowledge in the affidavit. He worked in the Bureau’s Violent Crimes Against Children section, investigating child pornography offenses. And he based the affidavit in part on his "experience, training[,] and background." R. 36 at 6. Legally, officers need not base affidavits on their own knowledge or observations as long as the supporting facts establish probable cause. United States v. Kinison , 710 F.3d 678, 682 (6th Cir. 2013).

Harney insists that investigators could not rely on the warrant in good faith because it authorized illegal or outrageous conduct: the government’s continued operation of Playpen. In limited circumstances, it’s true, we have suggested that the government’s investigative conduct could be so conscience-shocking that it would violate due process. See, e.g. , United States v. Napier , 787 F.3d 333, 341 (6th Cir. 2015). "Suggested" and "could" are the key qualifiers. In truth, we have never applied the defense. United States v. Al-Cholan , 610 F.3d 945, 952 (6th Cir. 2010). The lack of readily discernible standards for applying such a defense, the frequency of sting operations in all manner of criminal investigative settings, and the political (as opposed to judicial) considerations underlying most such investigations all make this the kind of rare bird that is much talked about but never seen. See United States v. Miller , 891 F.2d 1265, 1271–73 (7th Cir. 1989) (Easterbrook, J., concurring); see also Hampton v. United States , 425 U.S. 484, 490, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (plurality) (rejecting the defense); United States v. Boyd , 55 F.3d 239, 241 (7th Cir. 1995) (same).

One could be forgiven for thinking we had already put the defense to rest in 1994 in United States v. Tucker , 28 F.3d 1420 (6th Cir.). There, we held that a defendant could not circumvent any restrictions on an inducement or entrapment defense by...