United States v. Matish, Criminal No. 4:16cr16

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: HENRY COKE MORGAN, JR., SENIOR UNITED STATES DISTRICT JUDGE
• Citation: 193 F.Supp.3d 585
• Parties: UNITED STATES of America, v. Edward Joseph MATISH, III, Defendant.
• Docket Number: Criminal No. 4:16cr16
• Decision Date: 21 June 2016

193 F.Supp.3d 585

UNITED STATES of America,
v.
Edward Joseph MATISH, III, Defendant.

Criminal No. 4:16cr16

United States District Court, E.D. Virginia, Newport News Division.

Signed June 21, 2016
Filed June 23, 2016

193 F.Supp.3d 591

Kaitlin C. Gratton, Eric M. Hurt, United States Attorney's Office, 721 Lakefront Commons, Suite 300, Newport News, VA, for United States.

Andrew W. Grindrod, Richard J. Colgan, Office of the Federal Public Defender,

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150 Boush Street, Suite 403, Norfolk, VA, for Andrew W. Grindrod.

OPINION AND ORDER

HENRY COKE MORGAN, JR., SENIOR UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Edward Matish, III's ("Defendant" or "Matish") First Motion to Suppress ("First Motion"), Doc. 18, Third Motion to Suppress ("Third Motion"), Doc. 34, and Motion to Compel Discovery, Doc. 37. The Court recently rescheduled the trial in this case from June 14, 2016 to October 25, 2016.

The Court issued an Opinion and Order denying Defendant's First and Third Motions to Suppress on June 1, 2016, and the Court sua sponte filed this Opinion and Order under seal. Doc. 75. Subsequent to an inquiry by the Court on June 14, 2016, defense counsel asked the Court to continue to keep the Opinion and Order, Doc. 75, under seal. However, the Government now has filed a Motion to Unseal the original Opinion and Order. Doc. 89. The Government notes that the trial date has been rescheduled and that Defendant's declarant, Dr. Soghoian, has published information regarding this case and named Defendant on the Internet. See id. Defendant does not oppose the Government's Motion. Doc. 87. Accordingly, the Court will make public its June 1, 2016 Opinion and Order, which it hereby modifies and restates.

On February 8, 2016, Defendant was named in a four (4) count criminal indictment charging him with access with intent to view child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5) and (b)(2). Doc. 1. The Government filed an eight (8) count superseding indictment on April 6, 2016, charging Defendant with access with intent to view child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5) and (b)(2) (Counts One through Four), and receipt of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1) (Counts Five through Eight). Doc. 26. Defendant filed his First Motion on March 17, 2016, Doc. 18, and he adopted it after the Government filed the superseding indictment on April 8, 2016, Doc. 30. Defendant filed his Third Motion on May 2, 2016. Doc. 34. Defendant filed the Motion to Compel Discovery on May 6, 2016. Doc. 37.

In the Motions to Suppress, Defendant seeks to suppress "all evidence seized from Mr. Matish's home computer by the FBI on or about February 27, 2015 through the use of a network investigative technique, as well as all fruits of that search." Doc. 18 at 1; Doc. 34 at 1. Defendant challenges the warrant authorizing the search on the grounds that it lacked probable cause, that the FBI included false information and omitted material information in the supporting affidavit intentionally or recklessly, that the warrant lacked specificity, and that the warrant's triggering event never occurred. See Doc. 18; Doc. 33. Defendant also argues that the warrant was void ab initio , making the warrantless search unconstitutional. Doc. 34 at 1. Finally, Defendant "alleges a prejudicial and deliberate violation of Rule 41." Id.

In the Motion to Compel Discovery, Defendant asks the Court to compel the Government to provide him with the network investigative technique's full source or programming code. Doc. 37 at 1. The defense argues that the full code is relevant not only to Defendant's defense at trial but also to his First and Third Motions to Suppress. Id. at 1-2.

Other courts across the country have considered various challenges to the particular warrant used in this case. See United States v. Werdene, No. 2:15-cr-00434, ECF No. 33 (E.D. Pa. May 18, 2016);

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United States v. Levin, No. 15–10271, 186 F.Supp.3d 26, 2016 WL 2596010 (D.Mass. May 5, 2016); United States v. Arterbury, No. 15-cr-182, ECF No. 47 (N.D. Okla. Apr. 25, 2016) (adopting the report and recommendation of a magistrate judge, ECF No. 42); United States v. Epich, No. 15–cr–163, 2016 WL 953269 (E.D.Wis. Mar. 14, 2016) ; United States v. Stamper, No. 1:15-cr-109, ECF No. 48 (S.D. Ohio Feb. 19, 2016); United States v. Michaud, No. 3:15–cr–05351, 2016 WL 337263 (W.D.Wash. Jan. 28, 2016). The Western District of Washington also has considered a similar discovery motion requesting the full source code. See Michaud, No. 3:15-cr-05351, ECF No. 205 (W.D. Wash. May 18, 2016).

The Court held hearings to address these Motions on May 19, 2016, May 26, 2016, and June 14, 2016. The Court FINDS , for the reasons stated herein, that probable cause supported the warrant's issuance, that the warrant was sufficiently specific, that the triggering event occurred, that Defendant is not entitled to a Franks hearing, and that the magistrate judge did not exceed her jurisdiction or authority in issuing the warrant. Furthermore, the Court FINDS suppression unwarranted because the Government did not need a warrant in this case. Thus, any potential defects in the issuance of the warrant or in the warrant itself could not result in constitutional violations, and even if there were a defect in the warrant or in its issuance, the good faith exception to suppression would apply. Therefore, the Court DENIES Defendant's First and Third Motions to Suppress.

The Court additionally FINDS that Defendant is not entitled to the full source code at this stage of the proceeding. Thus, the Court DENIES Defendant's Motion to Compel Discovery, Doc. 37. The Government raised a timeliness issue concerning this Motion in its response; however, the Court GRANTED Defendant's request to file the Motion late at the hearing on May 26, 2016. Additionally, Defendant submitted a Consent Motion for Leave to File an Expert Declaration Relevant to the Motion to Compel Discovery, Doc. 83, which the Court GRANTS .

I. FACTUAL BACKGROUND

The prosecution of Mr. Matish stems from the Government's investigation of Playpen, a website that contained child pornography. At the hearing on May 19, 2016, the Court heard testimony from FBI Special Agent ("SA") Daniel Alfin and SA Douglas Macfarlane. The Court also admitted several Defense Exhibits. See Def. Exs. 1A, 1B, 2, 3, 4, 5, 6. Doc. 58. The Court admitted Ex. 5 under seal. Id. Additionally, the Court received a brief of amicus curiae from the Electronic Frontier Foundation. See Doc. 42. These sources, in addition to the parties' briefs, informed the Court's understanding of the relevant facts, which are recounted below.

i. The Tor Network

Playpen operated on "the onion router" or "Tor" network. The U.S. Naval Research Laboratory created the Tor network in an attempt to protect government communications. The public now can access the Tor network. Many people and organizations use the Tor network for legal and legitimate purposes; however, the Tor network also is replete with illegal activities, particularly the online sexual exploitation of children.

A person can download the Tor browser from the Tor website. See Tor Project: Anonymity Online, https://www.torproject.org (last visited May 23, 2016). SA Alfin testified that the Tor network possesses two primary purposes: (1) it allows users to access the Internet in an anonymous fashion and (2) it allows some websites—hidden services—to operate only within the Tor network. Although a website's operator usually can identify visitors to his or

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her site through the visitors' Internet Protocol ("IP") addresses, Tor attempts to keep a user's IP address hidden. Additionally, people who log into a hidden service cannot identify or locate the website itself. Furthermore, all communications on hidden services are encrypted. Thus, the Tor network attempts to provide anonymity protections both to operators of a hidden service and to visitors of a hidden service. There are index websites of Tor hidden services that users can search, although these indexes behave differently than a typical search engine like Google. According to SA Alfin, more than 1,000 servers all over the world exist in the Tor network. Because Tor attempts to keep users' IP addresses hidden, the Government cannot rely on traditional identification techniques to identify website visitors who utilize the Tor network.

ii. Playpen

Both parties agree that Playpen contained child pornography. While SA Alfin described Playpen as being entirely dedicated to child pornography, Doc. 59 at 51-52, the Government conceded in its briefs that some of Playpen's sections and forums did not consist entirely of child pornography. See Doc. 24 at 11 (noting that the "vast majority" of Playpen's sections, forums, and sub-forums were "categorized repositories for sexually explicit images of children, subdivided by gender and the age of the victims"). The Government characterizes Playpen as a...