United States v. Lough

• Decision Date: 18 November 2016
• Docket Number: CRIMINAL ACTION NO. 1:16CR18
• Parties: UNITED STATES of America, Plaintiff, v. Michael P. LOUGH, Defendant.
• Court: U.S. District Court — Northern District of West Virginia

221 F.Supp.3d 770

UNITED STATES of America, Plaintiff,

v.Michael P. LOUGH, Defendant.

CRIMINAL ACTION NO. 1:16CR18

United States District Court, N.D. West Virginia.

Signed November 18, 2016

Sarah Wagner Montoro, U.S. Attorney's Office, Clarksburg, WV, William J. Ihlenfeld, II, U.S. Attorney's Office, Wheeling, WV, for Plaintiff.

Thomas G. Dyer, Dyer Law Offices, Clarksburg, WV, for Defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE [DKT. NO. 43]

IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

Pending before the Court is the motion to suppress filed by the defendant, Michael P. Lough ("Lough"), seeking to suppress evidence seized pursuant to a warrant issued by United States Magistrate Judge Theresa Carroll Buchanan of the Eastern District of Virginia. For the reasons that follow, the Court DENIES the motion (dkt. no. 43).

I. BACKGROUND

In December of 2014, the Federal Bureau of Investigation ("FBI") became aware that a website operating on the "dark web" under the moniker "Playpen" was trafficking in child pornography. Playpen operated on the TOR network,¹ which enables online users to access websites, including Playpen and other child pornography sites, anonymously and beyond traditional law enforcement detection techniques by hiding their IP addresses and identities.

On February 20, 2015, the FBI seized the computer server that hosted the Playpen website from a web-hosting facility in Renoir, North Carolina. Dkt. No. 19 at 2. The FBI removed the server to a facility in the Eastern District of Virginia, at which point it obtained a search warrant from Magistrate Judge Buchanan, which authorized the use of a network investigation technique ("NIT"). Dkt. No. 19–1. Rather than simply disabling the server, however, the FBI continued to administer it for thirteen days in an effort to obtain information about individuals seeking and disseminating child pornography. Whenever a user logged into the Playpen website with their username and password, the NIT program initiated software triggering the user's computer to reveal its IP address and other identifying information.

Utilizing the NIT, the FBI determined that a user living in Fairmont, West Virginia, with the user name "2tots," had logged into the Playpen website and accessed child pornography. Dkt. No. 20–2 at 18–19. Records compiled by the Playpen server established that "2Tots" had been logged on for approximately seventeen hours between November 23, 2014 and March 1, 2015. Id. at 19. The NIT revealed the IP address from which "2Tots" was logging into the Playpen site.² Id. An administrative subpoena served on Frontier Communications Corporation established that the IP address for "2tots" belonged to Lough's account, which was registered to a street address later determined to belong to him. Id. at 20. Based on this information, FBI Special Agent Ryan ("SA Ryan") sought a search warrant for Lough's home (the "Residential warrant"), which United States Magistrate Judge James E. Seibert of this district issued on July 14, 2015. Dkt. No. 19 at 3. SA Ryan and other agents then raided Lough's home, where they seized multiple pieces of evidence suspected of containing child pornography. Id.

The government filed a one-count Information against Lough on March 15, 2016, following which he appeared before United States Magistrate Judge Michael J. Aloi on March 23, 2016 for an initial appearance, arraignment, and plea hearing. At the hearing, Lough was placed under oath and waived his right of indictment. Id. Pursuant to Fed. R. Crim. P. 11(3), the government called SA Ryan, who recounted the factual basis for Lough's guilty plea. Lough then acknowledged the facts as stated by SA Ryan, admitted to the elements of the charge in the information, and entered his guilty plea.

Thereafter, on May 4, 2016, Lough moved to withdraw his guilty plea. Based on a recent opinion by another district court granting a defendant's motion to suppress evidence gathered through the same NIT warrant that is the subject of this case, Lough believed he too could move to suppress such evidence (dkt. no. 17). After due consideration of his motion, on August 25, 2016, the Court vacated his guilty plea and provided the parties with a briefing schedule on the anticipated motion to suppress (dkt. no. 35).

On September 12, 2016, Lough moved to suppress all of the evidence seized as a result of the NIT warrant (dkt. no. 43), arguing it violated Fed. R. Crim. P. 41(b) because it was for a search outside the magistrate judge's jurisdictional limit and, consequently was void ab initio . As such, he contends no good faith or other exceptions would apply and suppression of any evidence gathered as a result of its execution is therefore appropriate.

The government contends that the warrant was authorized under Fed. R. Crim. P. 41(b)(4) because the NIT was a form of tracking device. Alternatively, even if the NIT warrant violated Rule 41, it argues that this was a mere technical violation that does not rise to the level of a constitutional violation necessary to justify suppression. Finally, the government argues that, even if the warrant is void ab initio , the exigent circumstances exception would render a warrantless search reasonable in this case.

II. APPLICABLE LAW

A. Fourth Amendment

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Searches subject to Fourth Amendment protections are those in which the "government violates a subjective expectation of privacy that society recognizes as [objectively] reasonable." United States v. Graham , 824 F.3d 421, 425 (4th Cir. 2016) (en banc) (quoting Kyllo v. United States , 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) ).

B. Federal Rule of Criminal Procedure 41(b)

Fed. R. Crim. P. 41 (b) provides in pertinent part:

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;

...

(4) a magistrate judge with authority in the district has authority to issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both; ....

III. DISCUSSION

The NIT warrant in this case has been the subject of numerous motions to suppress filed by defendants in federal courts throughout the United States.³ For varying reasons, the vast majority of courts addressing the issue have found suppression unwarranted. The initial question presented here is whether Lough had the kind of reasonable expectation of privacy in his IP address that society is prepared to recognize. Assuming he did have such an expectation, the question becomes whether the NIT warrant constituted a search outside of the Eastern District of Virginia that went beyond the magistrate judge's territorial authority under Rule 41(b). Finally, the Court must examine whether any exigent circumstances or the Leon good faith exception counsel against suppression.

A. Reasonable Expectation of Privacy

Lough had no reasonable expectation of privacy in his IP address. To establish that he had a legitimate expectation of privacy, Lough must first demonstrate that he had a "subjective expectation of privacy." United States v. Bynum , 604 F.3d 161, 164 (4th Cir. 2010). That subjective expectation of privacy must be one that is "objectively reasonable; in other words, it must be an expectation that society is willing to recognize as reasonable." U.S. v. Castellanos , 716 F.3d 828, 832 (4th Cir. 2013) (quoting United States v. Bullard , 645 F.3d 237, 242 (4th Cir. 2011) (internal quotation marks omitted)). Absent a legitimate expectation of privacy, Lough cannot invoke the protections of the Fourth Amendment.

The third party doctrine holds that "an individual can claim no legitimate expectation of privacy in information that he has voluntarily turned over to a third party," because when he "reveal[s] his affairs to another, [he] takes the risk ... that the information will be conveyed by that person to the Government." Graham , 824 F.3d at 427 (quoting Smith v. Maryland , 442 U.S. 735, 743–44, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) and United States v. Miller , 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) ). The doctrine applies with equal force even in those instances in which the individual reveals such information "on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." Id. quoting Miller , 425 U.S. at 443, 96 S.Ct. 1619.

Lough could not have had a subjective expectation of privacy because he voluntarily turned over his IP address to every computer with which he made contact, including the first node of the TOR network. Although he may have wished to remain anonymous, and even hoped that the TOR would facilitate that goal, hoping and wishing are not the equivalent of expecting a certain result. At the very least, Lough certainly knew that he was revealing his IP address to one unknown third party who, for all he knew, was a law enforcement officer.⁴ Indeed, Lough's IP address was used by a third party before the NIT ever reached his computer, because the final node in the anonymizing circuit necessarily had to know his IP address to make the final connection on the data's return trip.

Even assuming that Lough did have a subjective expectation of privacy, it is not one that society is prepared to recognize as reasonable....