United States District Court, W.D. Missouri, Western Division
A. FENNER, JUDGE
before the Court is Defendant Thomas Johnson's
(“Defendant's”) Motion to Suppress Evidence.
(Doc. # 26). On August 16, 2016, United States Magistrate
Judge John T. Maughmer issued his Report and Recommendation
(“R&R”). (Doc. # 40). On September 26, 2016,
Defendant filed his Objections to the R&R. (Doc. # 43).
For the reasons stated below, and upon careful and
independent review of the pending motion, Defendant's
objections to Judge Maughmer's R&R, as well as the
applicable law, this Court hereby ADOPTS in part the R&R
of Judge Maughmer and incorporates it in part as its own
Opinion and Order and DENIES Defendant's Motion to
Suppress Evidence. 
essential facts are agreed upon by the parties, which Judge
Maughmer summarized as follows:
On February 20, 2015, the federal government obtained an
order from  Magistrate Judge [Theresa Carroll Buchanan] in
the United States District Court for the Eastern District of
Virginia permitting the government to intercept
communications by and between users of a particular global
online forum (“1Website A”). Website A is alleged
to have been dedicated to the advertisement and distribution
of child pornography. [Defendant] is alleged to be a frequent
visitor to Website A.
Website A operated on what is sometimes referred to as the
“dark web, ” and in the case of Website A,
specifically on the Tor network. See generally
www.torproject.org. Users of the Tor network must
download special software that lets them access the network.
One of the main characteristics of the Tor network is the
seeming anonymity it affords to its users.
Typically, when an individual visits a website on the
Internet, the website is able to determine the
individual's Internet Protocol (“IP”)
address. Because internet access is typically
purchased for a single location, an IP address may be used by
law enforcement to determine the home or business address of
an Internet user. However, when an Internet user connects to
a website, the only IP address that the website actually
“sees” or “detects” is the IP address
of the last computer through which the user's
communications were routed (“the exit node”).
When an Internet user accesses the Tor network,
communications from that user are routed through a system of
network computers that are run by volunteers around the
world. As a consequence, because there is no practical way to
trace a user's communications from the exit node back to
the user's computer, Internet users of the Tor network
are effectively anonymous to the websites and to law
enforcement officers who may be monitoring the
Based on a tip from a foreign law enforcement agency and
other investigation, the FBI determined that Website A was
being hosted from a computer server at a web-hosting facility
in North Carolina. Based on that information, in February of
2015, the FBI apprehended the administrator of Website A and
seized the web site from the North Carolina web-hosting
However, following the seizure, the FBI did not shut the site
down. Instead, the FBI allowed the site to continue to
operate from a government facility located in the Eastern
District of Virginia from February 20 to March 4, 2015,
simultaneously obtaining [Judge Buchanan's] order
permitting it to intercept communications by and between
users of Website A. The order, thus, allowed the government
to employ a Network Investigative Technique
(“NIT”). Specifically, the NIT search warrant
allowed the government to include certain computer
instructions in Website A's usual Tor access software.
These computer instructions (a form of malware) caused a
user's computer to transmit certain information
(including a true IP address) so as to allow the FBI to
identify and locate users of Website A. Using the information
generated pursuant to the NIT warrant, the FBI determined
that one particular IP address accessing Website A was
associated with [Defendant's] residence.
On September 24, 2015, law enforcement officers obtained a
search warrant from a Magistrate Judge with this Court
allowing a search of [Defendant's] residence. The search
warrant was executed the next day. Subsequently a second
search warrant was obtained to permit a search of the
contents of a laptop allegedly belonging to [Defendant]. A
forensic examination found child pornography on the
laptop's hard drive. [Defendant] was then indicted for
possession and production of child pornography as well as
travel with intent to engage in illicit sexual conduct.
(R&R (located at Doc. # 40), pp. 1-3).
Federal Magistrates Act ‘does not preclude further
review [of a report and recommendation] by the district
judge, sua sponte or at the request of a party,
under a de novo or any other standard.'”
Streambend Prop. II, LLC v. Ivy Town Minneapolis,
LLC, 781 F.3d 1003, 1010 n.3 (8th Cir. 2015) (quoting
Thomas v. Arn, 474 U.S. 140, 154 (1985)). However,
when a party objects to the report and recommendation, in
whole or in part, the district court judge must conduct a de
novo review of it. 28 U.S.C. § 636(b)(1). “When
conducting de novo review, the district court makes its own
determinations of disputed issues . . . .” Branch
v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989). The
district court must undertake an independent and meaningful
review of the evidence and law when conducting its de novo
review. United States v. Azure, 539 F.3d 904, 910
(8th Cir. 2008). “The court need not conduct a de novo
hearing, but must nonetheless make a de novo determination of
that finding based on the record.” Taylor v.
Farrier, 910 F.2d 518, 521 (8th Cir. 1990) (citations
omitted). The Article III judge “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
has raised six objections to Judge Maughmer's R&R:
(1) the characterization that the Motion to Suppress was
grounded solely on Federal Rule of Criminal Procedure 41(b);
(2) the characterization that Defendant did not argue the
officers intentionally or deliberately disregarded the
provisions of Rule 41 when applying for and executing the NIT
warrant; (3) that Defendant bore the burden to demonstrate
prejudice; (4) the R&R does not analyze United States
v. Turner, 781 F.3d 374 (8th Cir. 2015); (5) the
conclusion that Defendant did not have a reasonable
expectation of privacy in his IP address; and (6) the
conclusion that the good-faith exception is applicable. (Doc.
# 43, pp. 1-5). The Court has reviewed these objections and
examined the evidence submitted to Judge Maughmer as well as
the applicable law. For reasons discussed below, the Court
overrules Defendant's objections and concludes the NIT
warrant is valid, and alternatively, suppression of the
evidence is not justified even if the warrant was invalid.
Validity of the NIT Warrant
cases in other districts have analyzed whether the NIT
warrant issued by the Eastern District of Virginia was valid.
Several courts have determined it was invalid but declined to
suppress the evidence because the Rule 41 violation was only
a technical or procedural violation. See United States v.
Adams, No. 6:16-CR-11-Orl-40GJK, 2016 WL 4212079 (M.D.
Fla. Aug. 10, 2016); United States v. Acevedo-Lemus,
No. SACR15-00137-CJC, 2016 WL 4208436 (C.D. Cal. Aug. 8,
2016); United States v. Werdene, ___F.Supp.3d___,
2016 WL 3002376 (E.D. Pa. May 18, 2016); United States v.
Epich, No. 15-CR-163-PP, 2016 WL 953269 (E.D. Wis. Mar.
14, 2016); United States v. Stamper, No.
1:15-CR-00109, 2016 WL 695660 (S.D. Ohio Feb. 19, 2016);
United States v. Michaud, No. 3:15-CR-05351-RJB,
2016 WL 337263 (W.D. Wash. Jan. 28, 2016). However, other
courts have determined the NIT warrant was void ab
initio and then suppressed the evidence. See United
States v. Croghan, ___F.Supp.3d___, 2016 WL 4992105
(S.D. Iowa Sept. 19, 2016); United States v. Levin,
___F.Supp.3d___, 2016 WL 2596010 (D. Mass. May 5, 2016);
United States v. Arterbury, No. 15-CR-182, slip op.
(N.D. Okla. April 25, 2016). Still others have found the
warrant is valid and declined to suppress the evidence.
See United States v. Jean, --F.Supp.3d--, 2016 WL
4771096 (W.D. Ark. Sept. 13, 2016); United States v.
Eure, No. 2:16CR43, 2016 WL 4059663 (E.D. Va. July 28,
2016); United States v. Darby, ___F.Supp.3d___, 2016
WL 3189703 (E.D. Va. June 3, 2016); United States v.
Matish, ___F.Supp.3d___, 2016 WL 3545776 (E.D. Va. June
the R&R followed the line of reasoning of the first group
of cases, the Court is persuaded by the third group's
analysis, particularly that of Judge Timothy L. Brooks in
Jean. Judge Brooks's thorough and well-reasoned
opinion first explored case law on the expectation of
privacy, summarizing that, while the Eighth Circuit has never
definitely ruled on the issue, the Third, Fourth, Sixth,
Ninth, and Tenth have all explicitly held that there is no
reasonable expectation of privacy in an IP address. See
Jean, 2016 WL 4771096, at *8 (collecting cases). This is
so because a person generally has no legitimate expectation
of privacy in information he voluntarily turns over to third
parties, United States v. Miller, 425 U.S. 435,
442-44 (1976), and IP addresses are regularly conveyed to and
from third parties, including Internet service providers.
United States v. Christie, 624 F.3d 558, 576 (3d
The use of Tor software to mask a user's IP address does
not change the analysis.
TOR's encryption works by substituting components of the
IP address of each volunteer node as it hops across the
internet, but on its very first hop, the TOR user's true
IP address is disclosed to the first node computer in the TOR
chain. Thus, the user's true IP address is not a complete
secret, and the user must necessarily assume some measure of
risk that TOR's encryption technology could be defeated
and thereby potentially reveal his true IP address. Taking
this reasoning to its logical conclusion, the principles
behind the decision in United States v. Miller would
apply: If a user engaged in illegal activity while using TOR,
and law enforcement obtained the user's true IP address,
it would follow that the user would have no legitimate
expectation of privacy in the IP address, as he “[took]
the risk, in revealing his affairs to others, ”-namely,
to both his ISP and the owner of the first node computer in
the TOR chain-“that the information [would] be conveyed
by that person to the Government.” 425 U.S. at 443, 96
Jean, 2016 WL 4771096, at *9. Consequently, it is
likely a warrant was not even constitutionally necessary to
discover Defendant's IP address. Id. However,
the fact is the FBI did obtain a warrant. Like Judge Brooks,
the Court will assume a warrant was necessary as no
definitive, binding authority on the matter currently exists.
objections to the R&R, Defendant contends Judge Maughmer
did not address his Fourth Amendment argument concerning the
NIT warrant. (Doc. # 43, ¶ 1). While the Court does not
believe Defendant properly raised the issue in his Motion to
Suppress because it was raised for the first time in his
Reply suggestions to the Motion to Suppress, it will briefly
address the issue as the NIT warrant fully complied with the
Fourth Amendment requirements. Defendant asserted that,
because the NIT warrant was invalid, the search of his
computer is presumptively unreasonable. (Doc. # 33, p. 12).
Specifically, he argued the warrant violated his expectation
of privacy and was therefore invalid. As noted previously,
Defendant had no expectation in the privacy in his IP
address, even when using the Tor network. Consequently, the
NIT warrant, having probable cause and sufficient
particularity, meets the requirements of Fourth Amendment.
Motion to Suppress, Defendant primarily argued the NIT
warrant violated Rule 41(b),  which provides:
(b) Authority to Issue a Warrant. At the request of a federal
law enforcement officer or an attorney for the government:
(1) a magistrate judge with authority in the district -- or
if none is reasonably available, a judge of a state court of
record in the district -- has authority to issue a warrant to
search for and seize a person or property located within the
(2) a magistrate judge with authority in the district has
authority to issue a warrant for a person or property outside
the district if the person or property is located within the
district when the warrant is issued but might move or be