United States v. Case, Case No. 13-CR-120
| Decision Date | 17 March 2014 |
| Docket Number | Case No. 13-CR-120 |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | UNITED STATES OF AMERICA Plaintiff, v. PAUL CASE Defendant. |
The government charged defendant Paul Case with distribution and possession of child pornography. Pursuant to Franks v. Delaware, 438 U.S. 154 (1978), defendant moved to suppress evidence obtained pursuant to a search warrant, arguing that the agent who applied for the warrant misled the issuing magistrate judge by failing to disclose the FBI's use of an automated computer program to discover child pornography files on defendant's computer available for download through a peer-to-peer ("P2P") file sharing network. Defendant further claimed that the program may have infiltrated non-shared, private portions of his computer, in violation of the Fourth Amendment. The magistrate judge handling pre-trial proceedings in this case denied the request for a Franks hearing and recommended that the motion to suppress be denied. Defendant objects. I review the recommendation de novo. Fed. R. Crim. P. 59(b).
Search warrants enjoy a presumption of validity. See Franks, 438 U.S. at 171; United States v. Walker, 25 F.3d 540, 544 (7th Cir. 1994). A defendant is entitled to an evidentiary hearing to examine the sufficiency of a search warrant only if he makes a "substantial preliminary showing" that the warrant application contained a materially false statement madeby law enforcement with deliberate or reckless disregard for the truth and that the false statement was necessary for the finding of probable cause. United States v. Williams, 718 F.3d 644, 649 (7th Cir. 2013) (citing Franks, 438 U.S. at 155-56). A defendant may also challenge an affidavit by demonstrating that the affiant intentionally or recklessly omitted material information. United States v. Hoffman, 519 F.3d 672, 675 (7th Cir. 2008).
The court need not hold a Franks hearing based on conclusory or generalized assertions. See United States v. Currie, 739 F.3d 960, 963-64 (7th Cir. 2014); United States v. Taylor, 154 F.3d 675, 680 (7th Cir. 1998). Rather, the defendant must offer direct evidence of the affiant's state of mind or inferential evidence that the affiant had obvious reasons for omitting facts in order to prove deliberate falsehood or reckless disregard. United States v. Souffront, 338 F.3d 809, 822 (7th Cir. 2003). Finally, if the allegedly false statements are excluded - or the omitted facts are included - and the affidavit still supports a finding of probable cause, no hearing is required. Id.; United States v. Williams, 737 F.2d 594, 604 (7th Cir. 1984); see also Betker v. Gomez, 692 F.3d 854, 862 (7th Cir. 2012) ().
In the present case, the magistrate judge concluded that failing to disclose the use of the computer program, even if misleading, was not material. The affidavit still established that the government downloaded child pornography files from a computer, which agents then linked to defendant through the IP address; that the computer program may have streamlined the process of identifying the target computer did not, the magistrate judge found, upset the probable cause finding. The magistrate judge further noted that it appeared defendant actuallywanted to launch a more general attack on the constitutionality of the use of this computer program. However, defendant failed to present any evidence that the program invaded private sections of his computer, and courts have rejected constitutional challenges to law enforcement's use of forensic software, including the program used here (called "RoundUp"), to download files from P2P networks. See, e.g., United States v. Brashear, No. 4:11-CR-0062, 2013 WL 6065326, at *2-3 (M.D. Pa. Nov. 18, 2013) (collecting cases).
In his original objection to the recommendation, defendant argued that the agent-affiant lied, attributing the work of the computer program to an "online covert employee" (called "OCE-5023" in the warrant application), in order to conceal the government's use of RoundUp. He claimed that FBI agents regularly do this when applying for search warrants in this district. He argued that the government should bear the burden of explaining why the agent lied and of refuting his claim that the government engaged in a so-called "parallel construction" investigation.1 He concluded that, while the agent's false statement concerning the source of his evidence did not by itself provide the basis for a Franks hearing, it did require the government to establish that the concealment of RoundUp was not an implementation of parallel construction designed to hide the acquisition of data the government had no right toexamine or insert.2
I held a status hearing on the motion, noting that defendant's argument did not really fit under the Franks framework. It is hard to see how omitting use of this investigative technique from the affidavit undermines the facts supporting probable cause. Instead, as I advised the parties at the hearing, this seems more like a Murray/Markling argument. See United States v. Groce, 255 F. Supp. 2d 936, 943 (E.D. Wis. 2003) (citing Murray v. United States, 487 U.S. 533, 542 (1988); United States v. Markling, 7 F.3d 1309, 1315 (7th Cir. 1993)). Under those cases, a defendant may challenge a search warrant obtained based on evidence recovered during a previous, unlawful search. See United States v. Gray, 410 F.3d 338, 344 (7th Cir. 2005) (). I suggested that the parties address defendant's argument under this framework.
At the hearing, defendant presented a "proposed statement" in support of his objection. The government has filed a response, and defendant a reply. The matter is ready for decision.
Defendant's argument has evolved throughout the course of these proceedings. In his original objection, supporting materials, and proposed statement, defendant appeared to make two claims: (1) that the agent lied about the existence of the online covert employee (OCE-5023) in order to conceal the use of RoundUp; and (2) that RoundUp allows law enforcement to invade the private spaces of a suspect's computer. In his reply brief in support of the objection, he appears to abandon the first claim and raises a third - that RoundUp may not be sufficiently reliable. I address each of these three claims in turn.
Citing other search warrant applications in this district, defendant contends that an FBI directive prevents the disclosure of RoundUp in such affidavits and requires that its use be concealed by alleging the participation of a fictitious online covert employee. In its response to the objection, the government indicates that OCE-5023 is a real person, whose name is not disclosed given his/her role in covert investigations; the government denies any deception in the warrant affidavit.
Defendant presents no evidence refuting the government's assertion; indeed, in his reply brief he appears to accept it, which dooms his request for a Franks hearing based on deception. See United States v. Johnson, 580 F.3d 666, 671 (7th Cir. 2009) ().5 Instead, heindicates that RoundUp may have been running unattended at the time of the downloads from his computer and argues that an evidentiary hearing is required to determine the reach of this program, how it was used in his case, and whether it is reliable.
Relying on the articles written by RoundUp's creators, defendant contends that the program surreptitiously enters the private spaces of a target's computer and inserts data into those private spaces. I cannot find any support for that claim in the articles. The authors state: "No unauthorized access to the target's machine is required; tags are inserted in the normal function of a system." (R. 38-2 at 6.)6 The authors also suggest that the hash value of the tag be provided to the magistrate as part of the search warrant application (id.), which controverts defendant's claim that agents using the program are instructed to conceal their activities. The articles provide no non-speculative basis for believing that RoundUp may be used to invade private spaces. Nor do the articles discuss tagging in relation to the "Ares" P2P network, which was used in the present case. Based on materials defendant previously submitted, it appears that RoundUp for Ares was developed by the Ontario Provincial Police, rather than the computer science professors who wrote the articles upon which defendant now relies. (See R. 27-2 at 2.) In any event, even if RoundUp could be used improperly, defendant makes no claim that the government invaded the private spaces of his computer, to insert tags or tosearch for evidence, despite the fact that he had forensic experts examine the computer.7 He admits that he does not know whether tagging was even being used at the time his computer was accessed.8
Defendant asks for a hearing so the court can determine whether agents used the program to enter the unshared space on his computer, but the district court is required to hold a hearing on a motion to suppress only if the defendant's allegations are sufficiently definite, specific, non-conjectural, and detailed. United States v. Curlin, 638 F.3d 562, 564 (7th Cir. 2011). Given the speculative nature...
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