United States v. Stuart

1

UNITED STATES OF AMERICA, v. JOHN STUART, Defendant.

No. 21-CR-7-LJV-JJM

United States District Court, W.D. New York

February 22, 2024

DECISION & ORDER

LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE.

The defendant, John Stuart, has been charged in an eight-count indictment with one count of receiving child pornography (18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1)); four counts of possessing child pornography (18 U.S.C §§ 2252A(a)(5)(B) and 2252A(b)(2)); and one count each of possessing a firearm by a controlled substance user (18 U.S.C. §§ 922(g)(3) and 924(a)(2)) manufacturing marijuana (21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D)), and maintaining a drug-involved premises (21 U.S.C. § 856(a)(1)). Docket Item 8.

Stuart moved to suppress the physical evidence obtained as a result of a search warrant issued by United States Magistrate Judge Michael J. Roemer. Docket Item 27. Likewise, he moved to suppress the statements he later made as fruit of the illegal search. Id.

On December 15, 2021, United States Magistrate Judge Jeremiah J McCarthy issued a Report, Recommendation and Order (“RR&O”) recommending that Stuart's motion to suppress be denied. Docket Item 33. Stuart objected to the RR&O, Docket Item 36; the government responded, Docket Item 38; and Stuart replied, Docket Item 41. After hearing oral argument, see Docket Item 43, this Court issued a decision and order accepting and adopting Judge McCarthy's RR&O and denying Stuart's motion to suppress. Docket Item 44.

Following this Court's decision and order, Stuart moved to compel discovery, Docket Item 55, and to vacate the protective order, Docket Item 85. He also filed a supplemental motion to suppress evidence and for a hearing under Franks v. Delaware, 438 U.S. 154 (1978). Docket Item 89. After the government responded to those motions, Docket Items 66, 87, and 92, Judge McCarthy issued a second RR&O (“Second RR&O”) denying Stuart's motions to compel and to vacate the protective order and recommending that Stuart's supplemental motion to suppress and for a Franks hearing also be denied. Docket Item 99.

On August 7, 2023, Stuart objected to the Second RR&O and appealed Judge McCarthy's denial of his motions to compel and to vacate the protective order. Docket Item 100. On September 27, 2023, the government responded both to the objections and to the appeal. Docket Item 105. This Court then heard oral argument and ordered supplemental briefing on two questions: (1) whether someone's internet protocol (“IP”) address is entitled to protection under the Fourth Amendment if that person was actively seeking to keep such information private, and (2) whether information gleaned by virtue of a Fourth Amendment violation can be used to establish probable cause in a subsequent application for a search warrant. See Docket Item 107.

Stuart filed the requested supplemental brief, Docket Item 112; the government responded, Docket Item 116; and Stuart replied, Docket Item 121. This Court then heard oral argument on the supplemental briefing on January 23, 2024, and reserved decision. See Docket Item 123.

A district court may accept, reject, or modify the findings or recommendations of a magistrate judge. 28 USC § 636(b)(1); Fed. R. Crim. P. 59(b)(3). The court must review de novo those portions of a magistrate's recommendations to which a party objects. Id.

With respect to non-dispositive motions, however, “a district court may only ‘modify or set aside any part of the [magistrate judge's] order that is clearly erroneous or is contrary to law.'” United States v. Aventura Techs., Inc., 607 F.Supp.3d 278, 282 (E.D.N.Y. 2022) (quoting 28 U.S.C. § 636(b)(1)(A)). “This standard is highly deferential and only permits reversal where the magistrate [judge] abused his discretion.” Id. (quoting Mental Disability Law Clinic v. Hogan, 739 F.Supp.2d 201, 204 (E.D.N.Y. 2010)).

This Court has carefully and thoroughly reviewed the Second RR&O; the objection, response, and reply; the materials submitted to Judge McCarthy; and the supplemental briefing submitted to this Court. Based on that de novo review and for the reasons that follow, this Court accepts in part and modifies in part Judge McCarthy's Second RR&O. More specifically, this Court adopts Judge McCarthy's recommendation to deny Stuart's supplemental motion to suppress and for a Franks hearing in its entirety but does so on grounds a bit different than those upon which Judge McCarthy based his recommendation. The Court also finds that Judge McCarthy's denial of the motions to compel and to vacate the protective order was not clearly erroneous or contrary to law and therefore will not disturb that order.

DISCUSSION

This is the second round of pretrial motions challenging the FBI's receipt of information from a foreign law enforcement agency (“FLA”) that dismantled several child pornography websites on the Tor network-a computer network designed specifically to facilitate anonymous communication over the internet. The Court assumes the reader's familiarity with the underlying facts and Judge McCarthy's analysis in the Second RR&O, Docket Item 99.

Very briefly, after the FLA uncovered IP addresses that had accessed child pornography websites on the Tor network, it provided those addresses to the appropriate countries to prosecute the individuals who accessed those websites. One such address was linked to Stuart's residence in Cheektowaga, New York, and the FLA transmitted that information to the FBI in Buffalo, New York, in July 2020. After getting authorization to monitor IP activity linked to Stuart's home, the FBI obtained a federal search warrant on October 8, 2020, based on the affidavit of FBI Task Force Officer (“TFO”) Michael Hockwater. 20-MJ-5207 Docket Item 2 (search warrant). Following the search, Stuart was charged with the child pornography, narcotics, and firearm offenses noted above.

I. SUPPLEMENTAL MOTION TO SUPPRESS

As already noted, this Court denied Stuart's initial motion to suppress the evidence seized from his home. Docket Item 44. Since then, Stuart says, he has learned that the government's “summary of [its] investigation” in its search warrant application was “intentionally misleading.” Docket Item 100 at 4. More specifically, Stuart explains, “[t]he government now claims that one [FLA] seized the server at issue and another FLA deanonymized the IP addresses provided to them by the first FLA.” Id. Previously, the government had identified only one FLA. Id. at 9-10.

What is more, Stuart asserts, the second FLA “did not disclose to the United States the methodology it used” to obtain Stuart's IP address. Id. at 4. According to Stuart, “[l]acking any transparency in this part of the process, it is impossible to know whether whatever method the second FLA used was a reliable and accurate one.” Id. at 5-6. And, he says, “[i]f the government cannot tell this Court how the evidence was gathered, it cannot assure this Court that it does not shock the conscience.” Id. at 6-7. In other words, according to Stuart, “[w]ithout this crucial information” about the FLA's process for obtaining Stuart's IP address, “the government can make no assurance on the reliability or constitutionality of that process.” Id. at 7.

A. Constitutionality

Generally, “[t]he Fourth Amendment and its exclusionary rule do not apply to the law enforcement activities of foreign authorities acting in their own country.” United States v. Getto, 729 F.3d 221, 227 (2d Cir. 2013) (quoting United States v. Busic, 592 F.2d 13, 23 (2d Cir. 1978)). This rule-sometimes referred to as the “international silver platter doctrine”-has two exceptions: (1) “where the conduct of foreign officials in acquiring the evidence is so extreme that it shocks the judicial conscience,” and (2) “where cooperation with foreign law enforcement officials may implicate constitutional restrictions.” Id. (quoting United States v. Lee, 723 F.3d 134, 140 (2d Cir. 2013)). Here, Stuart suggests that the FLA's acquisition of his IP address could fall into one or both of these exceptions.

When this Court heard oral argument on Stuart's objection to Judge McCarthy's Second RR&O, it asked the parties a threshold question: whether a person who has been actively seeking to keep his IP address private-for example, by using the Tor network-has Fourth Amendment protections over his IP address. If the Fourth Amendment does not protect an IP address that the user seeks to keep secret, then Stuart's argument is a nonstarter. And after careful review of the parties' submissions and oral argument, this Court finds that there is no Fourth Amendment protection over a person's IP address even when used on the Tor network.

“A defendant seeking to suppress the fruits of a search by reason of a violation of the Fourth Amendment must show that he had a ‘legitimate expectation of privacy' in the place searched.” United States v. Hamilton, 538 F.3d 162, 167 (2d Cir. 2008) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). “This inquiry involves two distinct questions: first, whether the individual had a subjective expectation of privacy; and second, whether that expectation of privacy is one that society accepts as reasonable.” Id. “A defendant seeking to suppress evidence . . . bears the burden of showing that he had a reasonable expectation of privacy in the place or object searched.” United States v. Sparks, 287 Fed.Appx. 918, 919 (2d Cir. 2008) (summary order) (citing California v. Greenwood, 486 U.S. 35, 39 (1988)).

As Stuart acknowledges, “courts mostly agree that a typical internet user does not have a reasonable expectation of privacy in his or her IP address.” Docket Item 112 at 2. “That is because, like phone users who should know that by using their phone...