United States v. Jones

230 F.Supp.3d 819

UNITED STATES of America, Plaintiff,

v.Robert S. JONES, Defendant.

Case No. 3:16–cr–026

United States District Court, S.D. Ohio, Western Division, at Dayton .

Signed February 1, 2017

Filed February 2, 2017

Alex R. Sistla, U.S. Department of Justice, United States Attorney's Office, Dayton, OH, Plaintiff.

Richard Edwin Mayhall, Flack & Mayhall, Springfield, OH, for Defendant.

ENTRY AND ORDER DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS, DOC. 33, AND AMENDED MOTION TO SUPPRESS. DOC. 53. DEFENDANT'S REQUEST THAT THE COURT SUPPRESS EVIDENCE DERIVED FROM A NETWORK INVESTIGATIVE TECHNIQUE SEARCH WARRANT IS DENIED.

THOMAS M. ROSE, UNITED STATES DISTRICT JUDGE

Pending before the Court are Defendant's Motion to Suppress, doc. 33, and Amended Motion to Suppress. Doc. 53. Therein, Defendant requests that the Court suppress evidence in this case derived from a network investigative technique, or NIT, search warrant, a subsequent search warrant to search Defendant's residence, and to suppress all statements made during Defendant's detention and arrest.

Defendant asserts that the network investigative technique search warrant was unconstitutional because the issuing court lacked jurisdiction to execute it and it violated Federal Rule of Criminal Procedure 41. One basis Defendant proposes for suppressing the subsequent search warrant of Defendant's residence is that it was based in part on evidence obtained by means of the network investigative technique warrant, and thus, fruit of the poisonous tree. Wong Sun v. United States , 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Plaintiff primarily relies upon the case of United States v. Levin , 186 F.Supp.3d 26 (D. Mass. 2016) to support his claim that the network investigative technique warrant was unconstitutional.

I. Background

In January 2015, the FBI determined that a child pornography site operating on TOR ("the onion network") was hosted in North Carolina.¹ The out-of-district history of this case has been repeatedly described. In United States v. Sullivan , No. 1:16–CR–270, 2017 WL 201332 (N.D. Ohio Jan. 18, 2017), the court wrote:

On or about February 20, 2015, the government obtained an order from the Eastern District of Virginia allowing it to seize control of the operation of "Website A," which is also known as "Playpen." Website A contains various sections and forums related to child pornography. Website A requires users to install public[ ]ly available computer software [called TOR or an "onion router"] before accessing the site. The software prevents someone attempting to monitor the internet connection from learning the user's physical location by routing communications through other locations. In this way, law enforcement cannot ascertain through public lookups the location of the users of Website A.

Pursuant to the Virginia warrant, the government was authorized to deploy a Network Investigative Technique ("NIT"). Each time a user logged onto Website A with a username and password, the FBI deployed the NIT which sent signals to the user's computer. Those communications were designed to cause the user's computer to deliver information to the government that identified the actual location of the user. The information included, among other things, the user's actual IP address. Id. at *1–2.

Sullivan , 2017 WL 201332 (quoting United States v. Libbey–Tipton , Case No. 1:16–CR–236, Doc. No. 19 (N.D. Ohio Oct. 19, 2016)).

As a result of deploying the NIT, law enforcement was able to determine that a user with the moniker "billypedo" had originally registered an account on Playpen on or about February 11, 2015. (Ex. B, Search Warrant and Application for 307 South Second Street (3:15–mj–270 (S.D. Ohio)) ("307 South Second Street Search Warrant"), ¶¶ 25–26.) According to data obtained from Playpen, "billypedo" logged onto Playpen multiple times between February 11 and March 2, 2015. (Id., ¶¶ 27–28.) The deployment of the NIT identified that the "billypedo" user accessed Playpen from IP address 71.67.116.75 on February 26, 2015 and viewed several files containing child pornography. (Id.)

In addition to obtaining the IP address from which "billypedo" accessed Playpen, law enforcement also learned the "name" and "logon" of the computer "billypedo" used to access the site on February 26, 2015. (Id., ¶ 29.) Law enforcement ultimately determined that the above IP address was operated by Time Warner Cable. Information received from Time Warner showed that Jones was the subscriber associated with the IP address, and that his account was activated in July 2014, remained active as of March 3, 2015, and was tied to an address in Sidney, Ohio. (Id., ¶ 30.)

The FBI subsequently learned that Jones was a registered sex offender based on an earlier 2003 adjudication in Illinois. (Id., ¶ 32.) Jones' sex registration paperwork indicated that he had lived from August 2014 until June 2015 at the same Sidney, Ohio address as was listed in the Time Warner records, but was now residing on South Second Street in Anna, Ohio. (Id., ¶¶ 32–33.)

Based on the foregoing, on August 21, 2015, the FBI executed a search warrant at Jones' South Second Street residence. The FBI seized multiple pieces of electronic media that day containing over 2,300 images of child pornography. Jones and his then fiancée were present during the search warrant. (Id., ¶¶ 54–55.) Jones' fiancée confirmed that they obtained Internet service through Time Warner, and that they had previously lived in Sidney, Ohio. (Id., ¶ 55.)

On February 25, 2016, a federal grand jury in the Southern District of Ohio returned an indictment charging Jones with two counts of coercion and enticement of a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (Counts 1 & 4), six counts of production or attempted production of child pornography, in violation of 18 U.S.C. § 2251(a) & (e) (Counts 2, 3, 5, 7, 8, 9), one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) & (b)(1) (Count 6), one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) & (b)(2) (Count 10), and one count of committing a felony offense involving a minor while being required by federal or other law to register as a sex offender, in violation 18 U.S.C. § 2260A (Count 11). (R. 20, Indictment, 79–88.) Defendant has moved the Court to suppress the fruits of the search of his residence.

II. Analysis

An analysis of whether the issuing magistrate of the NIT warrant begins with the Federal Magistrates Act, under which:

Each United States magistrate judge serving under [the Act] shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law—

(1) all powers and duties conferred or imposed...by the Rules of Criminal Procedure for the United States District Courts[.]

28 U.S.C. § 636(a)(1).

Primary to our purposes, Rule 41(b) of the Federal Rules of Criminal Procedure grants a federal magistrate judge authority to issue warrants "to search for and seize" persons and property within the district in which the magistrate sits. Now and at the time the NIT warrant issued, Rule 41(b) sets forth specific instances when a magistrate judge may issue a warrant for persons or property that may be located, or travel, outside the magistrate's judicial district. Included in this is authority for a magistrate judge to issue a warrant to install within the district a "tracking device" so that law enforcement can track the movement of persons and property within and outside the judicial district.

Additionally, effective December 1, 2016, Rule 41(b) was amended to add another exception to the requirement that the property to be searched and the persons to be seized be found in the magistrate judge's district. Subsection 41(b)(6)(A), now provides:

a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if...the district where the media or information is located has been concealed through technological means....

Courts that have addressed the NIT warrant have reached a variety of conclusions on the legality of the NIT warrant. Numerous courts have determined that the magistrate judge possessed adequate authority to issue the NIT warrant under Rule 41(b), such that there was no legal violation that would require suppression. See United States v. Sullivan , No. 1:16–CR–270, 2017 WL 201332, at *8 (N.D. Ohio Jan. 18, 2017) (gathering cases).

The vast majority of courts have found that, while the NIT warrant may have been issued unlawfully, suppression was not warranted, either under the exclusionary rule in general, or pursuant to the good faith exception set forth in United States v. Leon , 468 U.S. 897, 920, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Id .

Four cases, including United States v. Levin , 186 F.Supp.3d 26 (D. Mass. 2016), have concluded that the NIT warrant was unlawfully issued and suppressed all fruits of it. Id. Relying primarily on the Levin decision, Defendant urges the Court to join the minority of courts that have concluded that suppression of all evidence flowing from the execution of the network investigative technique warrant is necessary.

The network investigative technique is akin to a pen register to collect dialed telephone numbers, which the Supreme Court has found constitutional even when Rule 41 did not specifically include electronic intrusions in its definition of property. See United States v. N.Y. Tele. Co. , 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). Rule 41"is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause." Id. at 169, 98 S.Ct. 364 & n.16. Similarly, the Ninth Circuit upheld a...