United States v. Dorosheff
| Decision Date | 24 August 2021 |
| Docket Number | 16-30049 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DONALD DOROSHEFF, Defendant. |
| Court | U.S. District Court — Central District of Illinois |
This matter comes before the Court on Defendant Donald Dorosheff's Motion to Exclude Evidence (d/e 57). Because the good faith exception to the exclusionary rule applies to the warrant at issue, the motion is DENIED.
Defendant's Motion to Exclude Evidence concerns two warrants: one issued on February 20, 2015, in the Eastern District of Virginia (the “NIT warrant”), and the other issued on March 1, 2016, in this district (the “residence warrant”). Defendant seeks to suppress any evidence derived from the NIT warrant as well as evidence obtained from subsequent searches as “fruit of the poisonous tree.” Mem. Supp. Mot. to Exclude 8 (d/e 58) (quoting Utah v. Strieff, 136 S.Ct. 2056, 2061 (2016)). Defendant argues: (1) the NIT warrant violated a substantive provision of Federal Rule of Criminal Procedure 41(b); and (2) the good-faith exception does not apply because Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) officials were aware of the Rule 41(b) violation when FBI agents obtained and executed the NIT warrant.
The charges in this case arise from an investigation of a website called Playpen, a global online forum through which registered users distributed and accessed child pornography. Resp. to Mot. to Suppress Evid. 2 (d/e 18). This investigation was known as Operation Pacifier. Playpen operated on the Tor network which allows users to maintain anonymity by masking the user's actual Internet Protocol (IP) address by bouncing user communications around a network of relay computers called nodes. Id. at 3.
In January 2015, the FBI seized the Playpen website and allowed it to continue to operate at a government facility in the Eastern District of Virginia from February 20, 2015, through March 4, 2015. Id. at 5. FBI agents obtained the NIT warrant from the Eastern District of Virginia to monitor the site users' communications and to deploy a Network Investigative Technique (NIT) on the site in order to attempt to identify registered users. Id.
Using the NIT, the FBI identified an IP address associated with Playpen user “Grite” and traced it to Defendant. Id. at 6. On March 1, 2016, Magistrate Judge Schanzle-Haskins issued the residence warrant to FBI Special Agent David Harmon. Id. The residence warrant authorized law enforcement to search the home of Donald Dorosheff and to seize computers and other electronic storage media as well as records and information relating to child pornography offenses.
On March 3, 2016, agents executed the residence warrant at Defendant's home. Id. The search yielded 1, 114 images and 1 video of confirmed child pornography. Id. On October 5, 2016, a four-count indictment was filed against Defendant, charging him with two counts of Receiving Child Pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1) and two counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2) (d/e 1). The indictment also included a forfeiture claim against Defendant for two laptops, five flash drives, and one media card. Id. at 5.
Defendant subsequently filed a Motion to Suppress Evidence arguing that both warrants lacked probable cause and that the good-faith exception was inapplicable because the residence warrant was based on stale information (d/e 21). This Court denied the Motion to Suppress Evidence, finding that neither warrant lacked probable cause. Opinion and Order (d/e 26). The Court also found that the NIT warrant violated Rule 41(b), but that suppression was not warranted because the executing officers acted in good-faith reliance on the validity of the NIT warrant. Id. at 15- 20.
Defendant then filed a Motion for Reconsideration (d/e 28) of the Court's Order denying his motion to suppress. The Court denied Defendant's Motion for Reconsideration, finding that the motion raised no new issues and, instead, addressed previous arguments that the Court had already rejected (d/e 34).
Defendant's attorney, Michael J. Costello, then filed a Motion to Withdraw as Counsel of Record (d/e 35). The Court granted the motion as well as Defendant's request for substitution, appointing the Federal Public Defender's office for the Central District of Illinois to represent Defendant in all further proceedings in this matter. Shortly thereafter, Assistant Federal Public Defender Johanes Maliza filed a Motion to Withdraw as Counsel (d/e 41) and Defendant requested substitution of an attorney. The Court granted the motion and appointed CJA attorney Howard Feldman as counsel. Defendant, by his new counsel, then filed a Motion to Exclude Evidence (d/e 57) which the Court now addresses. Although the Motion to Exclude Evidence is perhaps properly construed as a second successive motion for reconsideration of the Court's prior Order denying Defendant's Motion to Suppress Evidence-in which case the Court would deny the Motion to Exclude Evidence as not meeting the standard for reconsideration as it raises the same issues the Court previously decided-the Court will conduct a full analysis of the Motion in light of the new evidence presented.
In support of this Motion, Defendant has attached a number of exhibits containing previously unknown information, purporting to show that (1) prior to the investigation, DOJ officials were aware that Rule 41(b) precluded a nationwide remote-access search warrant; (2) the DOJ was actively involved in amending Rule 41 to allow such a warrant; and (3) officials at the highest level of the DOJ were involved in the Playpen investigation and made the decision to obtain the NIT warrant. Mot. to Exclude Evid. Ex. A-I (d/e 57). Defendant argues that this information shows that the DOJ acted in bad faith in authorizing law enforcement officials to seek and obtain a warrant which the DOJ knew to be illegal.
The Court held a hearing on Defendant's Motion to Exclude Evidence at which Defendant presented the attached exhibits to the Court. After hearing the parties' arguments, the Court reserved ruling on the Motion to permit further discovery on the issue of good faith. The Court later entered a Text Order directing the parties to brief the issue of knowledge or should-have knowledge of the Assistant U.S. Attorney and FBI agent who applied for the NIT warrant and that of their superiors and other officers or agents of DOJ and FBI regarding the discussions of amendments to Rule 41 and the case of In re Warrant to Search a Target Computer at Premises Unknown, 958 F.Supp.2d 753 (S.D. Tex. 2013).
Defendant then filed a Motion to Compel Discovery, (d/e 67), asking the Court to direct the Government to respond to a discovery request seeking materials “directly relating to the issue of the Government's simultaneous pursuit of amendments to Rule 41 of the Federal Rules of Criminal Procedure and Operation Pacifier.” Mot. to Compel Ex. A 1 (d/e 67-1). The Government has filed its response to the Motion to Compel (d/e 68) asserting that some responsive documents were already in Defendant's possession, but that any “internal documents subject to attorney-client privilege, the deliberative process privilege, or otherwise not subject to disclosure under Rule 16 of the Federal Rules of Criminal Procedure” would not be provided. Resp. to Mot. to Compel 2. After requesting and receiving an extension of time to do so, the parties filed the supplemental briefs requested by the Court.
Also pending is a Motion in Limine to Exclude Evidence of Other Crimes (d/e 13) filed by Attorney Costello prior to his withdrawal. In the Motion in Limine, Defendant seeks to bar pornographic material seized during the execution of the warrants from being introduced at trial under Federal Rule of Evidence 404(b). The Motion in Limine was later adopted by Attorney Maliza before he also withdrew from the representation. See Notice of Adoption of Pending Motion, d/e 39. The Court denies the Motion in Limine to Exclude Evidence of Other Crimes without prejudice to Defendant reraising the issue in a pretrial motion if appropriate.
The Fourth Amendment to the Constitution guarantees the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. It is a violation of the Fourth Amendment for a police officer to search a defendant's residence without a valid warrant. However, the exclusionary rule precludes admission of evidence obtained as a result of unlawful searches and seizures. United States v. Calandra, 414 U.S. 338, 347 (1974). The purpose of the exclusionary rule “is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” Id.
The Supreme Court has established a good-faith exception to the exclusionary rule that precludes suppression of evidence when law enforcement acts in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate. United States v. Leon, 468 U.S. 897, 922 (1984). The exception supports the public's interest in admitting all relevant and reliable evidence and the policy of deterring police misconduct. Nix v. Williams, 467 U.S. 431, 443 (1984).
At the time Defendant filed his Motion to Exclude Evidence, five circuits had concluded that the good-faith exception applies to the very same NIT warrant at issue here. See United States v. Werdene, 883 F.3d 204, 217-19 (3d Cir. 2018); United States v. McLamb, 880 F.3d 685, 689-90 (4th Cir. 2018); United States v. Levin,...
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