United States v. Sullivan

• Decision Date: 18 January 2017
• Docket Number: CASE NO. 1:16–cr–270
• Citation: 229 F.Supp.3d 647
• Parties: UNITED STATES of America, Plaintiff, v. Lauden A. SULLIVAN, Defendant.
• Court: U.S. District Court — Northern District of Ohio

229 F.Supp.3d 647

UNITED STATES of America, Plaintiff,

v.Lauden A. SULLIVAN, Defendant.

CASE NO. 1:16–cr–270

United States District Court, N.D. Ohio, Eastern Division.

Signed January 18, 2017

Benedict S. Gullo, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff.

Louis J. Carlozzi, Carlozzi & Associates, Timothy C. Ivey, Office of the Federal Public Defender, Cleveland, OH, for Defendant.

MEMORANDUM OPINION

HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE

Defendant Lauden Sullivan seeks suppression of all evidence seized from his residence at 1216 West Jackson Street, Painesville, Ohio on January 22, 2016, as well as statements made by Sullivan to federal agents. (Doc. No. 13 ["Mot."].) It is defendant's position that a 2015 warrant issued by a magistrate judge sitting in the Eastern District of Virginia, which permitted the FBI to monitor a site devoted to the advertisement and dissemination of child pornography and deploy a Network Investigative Technique ("NIT") to identify users who visited the website, was void (hereinafter this warrant, attached to defendant's motion at Doc. No. 13–1, shall be referred to as the "NIT Warrant"). Because it is undisputed that the NIT Warrant led to the FBI's discovery that Lauden had visited the website and supplied probable cause for the 2016 residential search, defendant argues that the evidence and statements must be suppressed as fruits of the poisonous tree. The government opposes the motion. (Doc. No. 16 ["Opp'n"].) On January 10, 2016, the Court conducted a hearing on the motion. At the conclusion of the hearing, the Court took the matter under advisement.

Defendant's motion to suppress raises interesting issues relative to the interplay between recent technological advancements and the Fourth Amendment. However, the Court does not write on a clean slate. Given the fact that the underlying investigation was one of the largest sting operations targeting a child porn website—"the Playpen" or "Website A" (as it is referred to in the supporting affidavit)—it is not surprising that dozens of district courts have already written on the enforceability of the very same Virginia warrant that is at issue in this case. The Court has the benefit of these opinions, in addition to the informative and well-written briefs supplied by the government and defendant in the present case.

The Court concludes that the initial search of defendant's computer did not violate the Fourth Amendment, and further finds that, even if the search was unconstitutional, suppression would not be appropriate. Accordingly, and for the reasons set forth below, the Court denies defendant's motion to suppress.

I. BACKGROUND

For a thorough understanding of the technology at issue here, including the TOR software (which is used to conceal a user's IP address), NIT software (which is used by law enforcement to send instructions to a computer running TOR to reveal its true location), as well as the nature of the hidden or dark web (where websites like Website A operate in relative secrecy), the Court directs the reader to two prior decisions. See United States v. Jean , No. 5:15–CR–50087, 207 F.Supp.3d 920, 2016 WL 4771096 (W.D. Ark. Sept. 13, 2016) ; United States v. Darby , 190 F.Supp.3d 520 (E.D. Va. 2016).

For purposes of framing the issues presented in defendant's motion, the Court relies on the succinct explanation supplied in a prior case from this judicial district, United States v. Libbey–Tipton , Case No. 1:16–CR–236, Doc. No. 19 (N.D. Ohio Oct. 19, 2016). There, the court wrote:

On or about February 20, 2015, the government obtained an order from the Eastern District of Virginia allowing it to seize control of the operation of "Website A." Website A contains various sections and forums related to child pornography. Website A requires users to install publically available computer software [called TOR or an "onion router"] before accessing the site. The software prevents someone attempting to monitor the internet connection from learning the user's physical location by routing communications through other locations. In this way, law enforcement cannot ascertain through public lookups the location of the users of Website A.

Pursuant to the Virginia warrant, the government was authorized to deploy a Network Investigative Technique ("NIT"). Each time a user logged onto Website A with a username and password, the FBI deployed the NIT which sent signals to the user's computer. Those communications were designed to cause the user's computer to deliver information to the government that identified the actual location of the user. The information included, among other things, the user's actual IP address.

Id. at *1–2.

Using the NIT, the FBI determined that a person going by the username of "554422" created an account on Website A on January 21, 2015, and that, on March 1, 2015, the same person logged into the website, during which he accessed several images of child pornography and still shots from a video depicting the same. Cross–referencing the IP address associated with "554422" against publically available databases, the FBI determined that the IP address was operated by the Internet Service Provider ("ISP") Time Warner. Through a subpoena/summons issued to Time Warner on March 11, 2015, the FBI traced the IP address to a home in Painesville, Ohio, where defendant lived.

On January 19, 2016, Magistrate Judge William H. Baughman Jr., sitting in the Northern District of Ohio, issued a warrant to search the Painesville residence and seize any evidence related to child exploitation (hereinafter this warrant shall be referred to as the "Residential Warrant"). During the January 22, 2016 residential search, agents seized a computer from Sullivan's bedroom. In an interview conducted the same day by law enforcement, Sullivan admitted to accessing TOR on his computer, but he denied possessing or viewing any child pornography on his computer. A subsequent search of defendant's computer revealed approximately 662 images and 145 videos of suspected child pornography.

On August 24, 2016, a two-count indictment was returned against Sullivan. Count 1 charges defendant with receipt and distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2). Count 2 charges Sullivan with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Defendant was arrested on these charges on August 31, 2016. During his transport to court to be processed and arraigned, and after being provided his Miranda warnings, Sullivan told an FBI agent, "I only looked at [TOR] one time."

II. LAW AND DISCUSSION

The key to this and other cases that have grappled with the constitutionality of the NIT Warrant was that Website A was located in the Eastern District of Virginia during the brief period it was operated by the FBI, but was communicating with computers that attempted to log onto the website from all over the country. As previously noted, defendant Sullivan's computer, for example, was physically located in Painesville, Ohio.

A. A Magistrate Judge's Authority to Issue Warrants

The Federal Magistrates Act provides that "[e]ach United States magistrate judge serving under [the Act] shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law" certain duties, including among other things "all powers and duties conferred or imposed ... by the Rules of Criminal Procedure for the United States District Courts[.]" 28 U.S.C. § 636(a)(1).

Rule 41(b) of the Federal Rules of Criminal Procedure addresses a federal magistrate judge's authority to issue warrants. Rule 41(b)(1) extends to a magistrate judge the authority to issue warrants "to search for and seize" persons and property within the district in which she sits. The remaining provisions set forth specific instances wherein a magistrate judge may issue a warrant for persons and property that be located, or travel, outside her jurisdiction. Relevant to defendant's suppression motion, Rule 41(b)(4) permits a magistrate judge to issue a warrant to install within the district a "tracking device" so that law enforcement can track the movement of persons and property within and outside the judicial district.

Additionally, Rule 41(b) was recently amended to add another exception to the requirement that the property to be searched and the persons to be seized be found in the magistrate judge's district. Subsection 41(b)(6)(A), effective December 1, 2016, provides, in relevant part:

a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if ... the district where the media or information is located has been concealed through technological means ....

Defendant does not dispute that the NIT Warrant could have been properly issued under Rule 41(b)(6), had that provision been available to the Virginia magistrate judge on February 20, 2015. Sullivan further concedes, as he must, that any district court judge in the Eastern District of Virginia could have issued the warrant under the existing law in 2015.

B. Prior Decisions Addressing the NIT Warrant

Courts that have previously addressed the NIT Warrant have reached varying conclusions on the legal issues at play. Numerous courts have determined that the magistrate judge possessed adequate authority to issue the NIT Warrant under Rule 41(b), such that there was no legal violation that would require suppression. See United States v. Lough , No. 1:16–CR–18, 221 F.Supp.3d 770, 2016 WL 6834003 (N.D. W. Va. Nov. 18, 2016) ; United States v. Johnson , No. 15–CR–340 (W.D. Mo. Oct. 20, 2016); United States v. Smith , No. 15–CR–467 (S.D. Tex. Sept. 28, 2016); Jean , 207 F.Supp.3d 920, 2016 WL 4771096 ; ...