United States v. Kienast

• Decision Date: 23 October 2018
• Docket Number: No. 17-2439,No. 17-1840, No. 17-1989,17-1840
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Neil C. KIENAST, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Marcus A. Owens, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Braman B. Broy, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

907 F.3d 522

UNITED STATES of America, Plaintiff-Appellee,

v.Neil C. KIENAST, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Marcus A. Owens, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Braman B. Broy, Defendant-Appellant.

No. 17-1840

No. 17-1989

No. 17-2439

United States Court of Appeals, Seventh Circuit.

Argued February 6, 2018

Decided October 23, 2018

Jonathan H. Koenig, Benjamin W. Proctor, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Milwaukee, WI, Greggory R. Walters, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Peoria, IL, for Plaintiff-Appellee.

John Miller Carroll, Tyler Tod Fredrickson, Attorney, JOHN MILLER CARROLL LAW OFFICE, Appleton, WI, for Defendant-Appellant NEIL KIENAST.

Anderson M. Gansner, Attorney, FEDERAL DEFENDER SERVICES OF EASTERN WISCONSIN, INCORPORATED, for Defendant-Appellant MARCUS A. OWENS.

David A. Greene, Attorney, ELECTRONIC FRONTIER FOUNDATION, San Francisco, CA, Amicus Curiae for ELECTRONIC FRONTIER FOUNDATION.

John F. Murphy, Attorney, OFFICE OF THE FEDERAL DEFENDER PROGRAM, Chicago, IL, Amicus Curiae for NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS.

Steve A. Greenberg, Attorney, STEVEN A. GREENBERG AND ASSOCIATES, LTD., Chicago, IL, for Defendant-Appellant BRAMEN B. BROY.

Before Ripple, Sykes, and Barrett, Circuit Judges.

Barrett, Circuit Judge.

In 2015, federal agents infiltrated a child pornography website called Playpen and deployed a computer program to identify Playpen's users. This operation resulted in the successful prosecution of defendants all around the country, including Neil Kienast, Marcus Owens, and Braman Broy, whose appeals are consolidated before us. Kienast, Owens, and Broy, like many other defendants caught in this sting, argue that the warrant authorizing the Playpen searches was invalid and that the fruit of those searches—the defendants' identities—should therefore have been suppressed. Every circuit that has considered the suppression argument has rejected it, and so do we. Even assuming that these digital searches violated the Fourth Amendment, the good-faith exception to the exclusionary rule applies. We affirm all three judgments.

I.

In 2014, the Federal Bureau of Investigation began investigating a child pornography forum called Playpen. This site created an anonymous space for its membership of over 150,000 people to discuss, consume, and share child pornography.

Playpen exists solely on the dark web, so it can be accessed only through a series of affirmative steps. First, the user must download The Onion Router (Tor) software. The Tor software makes user information untraceable by relaying it through a series of interconnected computers. It also allows a user to access the Tor network, where Playpen and other "hidden services" websites are hosted. Once on this network, a user must enter a specific sixteen-character web address to visit Playpen. Finally, Playpen requires visitors to create a username and password before granting them access to its contents.

In 2015, FBI agents gained access to Playpen's servers and relocated them to a government facility in the Eastern District of Virginia. The FBI then operated the website for about two weeks in order to observe Playpen users. But while the FBI could observe Playpen traffic, Tor prevented it from identifying any specific user information.

To unmask and apprehend the anonymous Playpen users, the FBI sought a warrant in the Eastern District of Virginia to use a Network Investigative Technique (NIT). The NIT deployed computer code instructing computers that accessed Playpen to send identifying information to the government.

In support of its warrant application to deploy the NIT, the FBI submitted a 31-page affidavit from a special agent who specialized in child pornography cases. The affidavit detailed Playpen's architecture and contents, explained the nature of the Tor network, and described the numerous affirmative steps a user had to take to locate Playpen and access its contents. The affidavit further asserted that use of the NIT was necessary to identify and locate the users and administrators of Playpen, because other investigative procedures had either failed or would likely fail.

The affidavit also provided details about the proposed NIT. Special computer code would be added to the digital content on the Playpen website. After a user entered a username and password to access Playpen, the website would cause the user's computer to download that code. The code would then instruct the user's computer to send back the following information: (1) the computer's IP address and the date and time that it was determined; (2) a unique identifier to distinguish data from that of other computers accessing Playpen; (3) the computer's operating system; (4) information about whether the NIT had already been delivered to the computer; (5) the computer's host name; (6) the operating system's username; and (7) the computer's media access control address.

A federal magistrate judge in the Eastern District of Virginia issued the NIT Warrant in February 2015. The magistrate judge approved the use of the NIT to obtain information from all "activating computers," which the warrant described as the computers "of any user or administrator who logs into [Playpen] by entering a username and password."

The three defendants on appeal were such users. At various times during the nearly two weeks that the government hosted the Playpen servers, Neil Kienast, Marcus Owens, and Braman Broy accessed Playpen. By entering their usernames and passwords, they unknowingly triggered the NIT, which unmasked their identities. Once identified, FBI agents in the Eastern District of Virginia notified FBI regional offices in the defendants' home districts. Local FBI agents then obtained warrants to search the defendants' computers and homes. Each search unearthed child pornography.

On the basis of evidence recovered in these searches, grand juries charged the defendants with receiving, possessing, or viewing child pornography in violation of 18 U.S.C. § 2252A. The defendants each moved to suppress the evidence obtained as a result of the NIT Warrant, raising assorted challenges to its validity. The respective district courts denied their motions to suppress and the defendants entered conditional guilty pleas, reserving the right to appeal the denial of their suppression motions. These appeals followed.

II.

All three defendants assert that the searches performed by the NIT violated the Fourth Amendment and that the evidence obtained by them should have therefore been suppressed. We need not decide, however, whether the searches violated the Fourth Amendment. Even if they did, the district courts did not err by declining to suppress the evidence, because the good-faith exception to the exclusionary rule applies.

Suppression of evidence is a "last resort." Hudson v. Michigan , 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). It is not a personal constitutional right, nor is it intended to remedy the injury of having one's rights violated. Davis v. United States , 564 U.S. 229, 236, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). Instead, it is a judge-made rule meant to deter future Fourth Amendment violations. Id. at 236–37, 131 S.Ct. 2419. And its application has been strictly limited by the Supreme Court.

The Court has instructed that the exclusionary rule be limited to cases in which its deterrent effect on police conduct will outweigh its "heavy costs." Id. at 237, 131 S.Ct. 2419. Strong cases for exclusion involve "deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights" on the part of the police. Id. at 238, 131 S.Ct. 2419 (internal quotation marks omitted). In such cases, "the deterrent value of exclusion is strong and tends to outweigh the resulting costs." Id. But exclusion is not appropriate where "the police act with an objectively reasonable good-faith belief that their conduct is lawful." Id. (internal quotation marks omitted). In that type of case, "the deterrence rationale loses much of its force, and exclusion cannot pay its way." Id. (internal quotation marks and citations omitted). The flagship case for this "good faith" principle is United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

The defendants offer two major arguments against applying the good-faith exception in this case. The first is that the good-faith exception is categorically inapplicable when the warrant is void ab initio (or "from the beginning"). According to the defendants, this warrant is void because the magistrate judge lacked the authority to issue it. Federal Rule of Criminal Procedure 41(b)(1) authorizes a magistrate judge "to issue a warrant to search for and seize a person or property located within the [magistrate judge's] district." This warrant, they say, extended to people and property located outside the magistrate's district. Defendants contend that a void warrant is tantamount to no warrant at all, nullifying the good-faith exception.¹

We disagree. Even if the warrant were void ab initio , we would treat this like any other constitutional violation. We see no reason to make the good-faith exception unavailable in such cases. The deterrence rationale for the exclusionary rule aims at the conduct of the police, not the conduct of the magistrate judge. See Davis , 564 U.S. at 238, 131 S.Ct. 2419 (focusing the cost-benefit analysis in exclusion cases on the "flagrancy of the police misconduct" at issue). Thus, whether the magistrate judge lacked authority has no impact on the rule. As Leon explains, "[p]enalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." 468 U.S. at 921, 104 S.Ct. 3405 ; see also Herring v. United States, 555 U.S. 135, 136–37, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (invoking the good-faith exception where an officer reasonably but wrongly...