United States v. Kim

• Decision Date: 10 November 2017
• Docket Number: 16-CR-191 (PKC)
• Parties: UNITED STATES OF AMERICA, v. YANG KIM, also known as ANDREW KIM, Defendant.
• Court: U.S. District Court — Eastern District of New York

UNITED STATES OF AMERICA, v. YANG KIM, also known as ANDREW KIM, Defendant.

16-CR-191 (PKC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 10, 2017

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

On April 14, 2016, a grand jury returned a two-count indictment against Defendant Yang Kim. The indictment charged Defendant with one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(4) and (b)(2), and one count of receipt of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1). On February 14, 2017, Defendant filed a motion to suppress all evidence obtained from the government's search of his computer on the basis that the search warrant violated his rights under the Fourth Amendment. (Defendant's Brief ("Def. Br."), Dkt. 33.) He asks, in the alternative, that the Court hold a Franks hearing to determine "whether the agent signing the warrant misrepresented the probable cause supporting the warrant." (Id. at 3 n.1.) Because the Court finds that the government acted in good faith in obtaining the search warrant, Defendant's motion is denied.¹

BACKGROUND

The Court assumes the parties' familiarity with the facts in this case and thus recites them only to the extent relevant to the Court's analysis.²

On February 20, 2015, Federal Bureau of Investigation ("FBI") Special Agent Douglas Macfarlane swore out an affidavit in support of an application for a search warrant in the Eastern District of Virginia. (NIT Warrant Application, Dkt. 33, at 18-51.)³ The subject of that warrant was "Playpen," a website "dedicated to the advertisement and distribution of child pornography" and "the discussion of matters pertinent to child sexual abuse." (Id. at 28.) Because Playpen operated on the "Tor"⁴ network—a network designed to maintain a user's anonymity⁵—the FBI could not easily identify Playpen users. (Id. at 28-29.) As a result, the FBI obtained a search warrant (the "NIT Warrant") authorizing it to deploy a "Network Investigative Technique" ("NIT") onto any computer used to log into the Playpen website. The NIT was deployed from the Playpen server located in the Eastern District of Virginia (id. at 41-42) and placed onto the "activating" computers—defined as the computer "of any user or administrator who logs into [Playpen] by entering a username and password" (id. at 50)—located anywhere in the UnitedStates.⁶ United States v. Allain, 213 F. Supp. 3d 236, 249 (D. Mass. 2016). By installing the NIT onto Playpen users' computers, the FBI could identify the IP addresses, and eventually the individuals, that logged into the site.

In the Warrant Application, Special Agent Macfarlane stated that there was "probable cause to believe there exist[ed] evidence, fruits, and instrumentalities of criminal activity related to the sexual exploitation of children on computers that access [Playpen], in violation of 18 U.S.C. §§ 2251 and 2252A," and that the search authorized by the NIT Warrant would help the FBI to identify the computers used to log into Playpen and the locations and users of those computers. (NIT Warrant, at 49.) When deployed, the NIT would cause the user's computer, i.e., the "activating" computer, to transmit the following information to the government's server:

1) the computer's actual IP address and the date and time that the NIT determined what that IP address was;

2) a unique identifier generated by the NIT to distinguish data from that of other computers;

3) the type of operating system running on the computer;

4) information about whether the NIT had already been delivered to the "activating" computer;

5) the computer's Host Name;

6) the computer's active operating system username; and

7) the computer's media access control ("MAC") address.

(Id. at 51.)

The NIT Warrant was issued on February 20, 2015, by Theresa Carroll Buchanan, a United States Magistrate Judge for the Eastern District of Virginia.

DISCUSSION

This case is one of more than 60 cases around the country in which the validity of the NIT Warrant has been challenged. (See Government's Opposition, Dkt. 34, at 5-7 nn.3-5 (collecting cases)); see also United States v. Dzwonczyk, No. 4:15-CR-3134, 2016 WL 7428390, at *4 (D. Neb. Dec. 23, 2016) ("[T]he Playpen investigation has resulted in nationwide litigation, producing largely divergent opinions regarding the validity of the NIT warrant under Fed. R. Crim. P. 41(b), and the applicability, if at all, of the exclusionary rule."). As the Middle District of Tennessee explained in United States v. Austin,

Numerous courts across the country have considered the validity of the same NIT Warrant challenged here. In general terms, the decisions fall into three categories. Several courts have determined that the NIT Warrant violated Rule 41(b), or assumed without deciding that the warrant violated Rule 41(b), but, nonetheless, concluded that suppression was not warranted. Other courts have determined that the NIT Warrant did not violate Rule 41(b) because it is a "tracking device" authorized by Rule 41(b)(4), but even if that were not the case, suppression is not warranted. Finally, a few courts have concluded that the NIT Warrant violated Rule 41(b), and ordered suppression as a remedy.

230 F. Supp. 3d 828, 832-33 (M.D. Tenn. 2017) (collecting cases) (internal citations omitted).

This case is no exception: Kim argues that the NIT Warrant violated the territorial limitations of the Federal Magistrates Act and Federal Rule of Criminal Procedure 41(b) ("Rule 41(b)").⁷ Specifically, he contends that his Fourth Amendment protection against illegal searcheswas violated because "a magistrate judge in the Eastern District of Virginia authorize[d] a search in New York" in violation of Rule 41(b). (Def. Br. 7-11); see also United States v. Hammond, No.16-CR-102, 2016 WL 7157762, at *3 (N.D. Cal. Dec. 8, 2016) ("The critical issue here is that the magistrate judge in the Eastern District of Virginia signed off on a warrant that authorized the search of 'activating computers' located outside of her district."). According to Kim, this violation of Rule 41(b) rendered the warrant void ab initio and unconstitutional, and, therefore, "no ['good faith'] exception to the Fourth Amendment warrant requirement applies, and the fruits of the search should be suppressed . . . with no further inquiry." (Def. Br. 12-13.) In the alternative, he argues that even if the good faith exception is applicable, "the Court should still suppress the fruits of the NIT because the government here did not act in good faith." (Defendant's Reply Brief ("Def. Reply Br."), Dkt. 35, at 6.)

The Court need not decide whether the NIT Warrant was validly issued.⁸ Rather, assuming without deciding that the NIT Warrant was void ab initio, the Court finds that suppression is not warranted under the good faith exception to the exclusionary rule first announced by the Supreme Court in United States. v. Leon, 468 U.S. 897 (1984). See also Davis v. United States, 564 U.S. 229 (2011); Herring v. United States, 155 U.S. 135 (2009); Arizona v. Evans, 514 U.S. 1 (1995).

A. Whether the Good Faith Exception Applies Where a Warrant Is Void Ab Initio

Kim argues that the good faith exception cannot apply where a search warrant was "void ab initio." (Def. Br. 11-12.) The Court disagrees, and joins the three Courts of Appeals and more than 40 district courts that have considered and rejected this argument with respect to the NITWarrant.⁹ As both the Supreme Court and Second Circuit have held, a violation of the Fourth Amendment "does not necessarily result in the application of the exclusionary rule." United Statesv. Rosa, 626 F.3d 56, 64 (2d Cir. 2010); see also Herring, 555 U.S. at 138. This is because the exclusion of evidence obtained in violation of the Fourth Amendment "is a 'prudential' remedy, crafted by the Supreme Court," United States v. Raymonda, 780 F.3d 105, 117 (2d Cir.), cert. denied, 136 S.Ct. 433 (2015) (citation omitted), "not a personal constitutional right," Davis, 564 U.S. at 236 (citation omitted). The purpose of the exclusionary rule "is not to redress the injury to the privacy of the search victim," but to "deter police misconduct." United States v. Calandra, 414 U.S. 338, 347, 351 (1974). Therefore, suppression involves a two-part inquiry: (1) were an individual defendant's Fourth Amendment rights violated; and (2) if so, would suppression of the ill-gotten evidence "deter[] Fourth Amendment violations in the future." Herring, 555 U.S. at 141; see also United States v. Master, 614 F.3d 236, 243 (6th Cir. 2010) (finding that "[t]he Supreme Court has effectively created a balancing test by requiring that in order for a court to suppress evidence following the finding of a Fourth Amendment violation, 'the benefits of deterrence must outweigh the costs'" (quoting Herring, 555 U.S. at 141)). Contrary to Defendant's argument, this "basic insight of the Leon line of cases," Davis, 564 U.S. at 238 (internal quotationmarks omitted), "applies equally to searches conducted with or without a warrant," Raymonda, 780 F.3d at 118 n.5.

Defendant's argument that the issuance of the NIT Warrant in violation of Rule 41(b) rendered the warrant void ab initio and thus unconstitutional rests entirely on an unsupported and outdated reading of dicta from the Second Circuit's decision in United States v. Burke, 517 F.2d 377 (2d Cir. 1975). (Def. Br. 13-14; Def. Reply Br. 3-4). In Burke, the defendant challenged the government's seizure of a shotgun pursuant to a search warrant, claiming that the warrant's failure to comply with certain requirements of Rule 41 rendered it invalid and warranted suppression. The Second Circuit, however, rejected this argument, finding that the violations of Rule 41 were "not of sufficient consequence to justify use of the exclusionary rule." 517 F.2d at 385.

In discussing the "relatively little case law on the question [of] how far the failure of a warrant to conform to...