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United States v. Johnson

United States District Court, W.D. Missouri, Western Division

October 20, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
TOMAS JOHNSON, Defendant.

          ORDER

          GARY A. FENNER, JUDGE

         Presently 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. [1]

         DISCUSSION

I. FACTS

         The 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.[2] 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 websites.[3]
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 facility.
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).

         II. LEGAL STANDARD

         “[T]he 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. § 636(b)(1).

         III. ANALYSIS

         Defendant 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.

         A. Validity of the NIT Warrant

         Several 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 23, 2016).

         While 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 Cir. 2010).

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 S.Ct. 1619.

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.

         In his 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.

         In the Motion to Suppress, Defendant primarily argued the NIT warrant violated Rule 41(b), [4] 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 district;
(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 ...

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