Unitied States American v. Henderson
| Decision Date | 01 September 2016 |
| Docket Number | Case No. 15-cr-00565-WHO-1 |
| Parties | UNITIED STATES OF AMERICA, Plaintiff, v. BRYAN GILBERT HENDERSON, Defendant. |
| Court | U.S. District Court — Northern District of California |
On August 24, 2015, Chief Magistrate Judge Joseph C. Spero of the Northern District of California issued a search warrant for the residence located at 1106 E. 16th Avenue, San Mateo, California on information that Bryan Henderson, or an internet user at that residence, had accessed Playpen, a website used to receive and send child pornography. McDougall Decl. Ex. A. ("San Mateo Warrant") (Dkt. No. 56-2). The San Mateo Warrant was based substantially on evidence obtained in execution of a search warrant issued in the Eastern District of Virginia on February 20, 2015 by Magistrate Judge Theresa Carroll Buchanan. McDougall Decl. Ex. B ("NIT Warrant") (Dkt. No. 56-3). FBI agents executed the San Mateo Warrant, during which they seized multiple computers and cell devices from Henderson's residence and interrogated Henderson for several hours. The FBI arrested Henderson on November 3, 3015 based on evidence obtained in that search, which indicated that Henderson was in possession of child pornography. The United States has indicted Henderson for alleged offenses of 18 U.S.C. § 2252(a)(2) and 18 U.S.C. § 2252(a)(4)(b) for receipt and possession of child pornography. Dkt. No. 26.
On June 16, 2016, Henderson filed a motion to suppress the NIT Warrant and all fruits of the Warrant, including all evidence seized or obtained during the execution of the San Mateo Warrant on September 2, 2015. Motion to Suppress ("Mot.") 1 (Dkt. No. 56). Henderson argues that the NIT Warrant was invalid when issued because it violated Federal Rule of Criminal Procedure 41(b), which outlines the geographic limitations of a magistrate judge's authority to issue a warrant, and violated the Federal Magistrates Act, which incorporates Rule 41.
More than a dozen motions to suppress similar NIT Warrants have been decided in federal courts throughout the country. I agree with the majority of courts that the motion should be denied. I conclude that, although the NIT Warrant was invalid under Rule 41(b), suppression is not appropriate because the violation was technical, not constitutional, Henderson was not prejudiced, the FBI did not act with deliberate disregard for Rule 41, and the NIT Warrant was executed in good faith.
Playpen is a website dedicated to sharing child pornography that operated on an anonymous network called "Tor."1 Mot. 6. The Tor network protects user anonymity by allowing computers to access a large number of intermediary users before accessing the target website. Id. This masks the location and identity of the user and prevents publicizing the computer's IP address. Id. Tor also allows anonymous web hosting which allows users to host a website on the Tor network while preventing the website's location and its user's locations from being identified. Id. at 7.
In 2014, the FBI began an investigation into Playpen. Id. In December 2014, the FBI determined that Playpen was hosted on servers located in Lenoir, North Carolina. Id. On February 20, 2015, the FBI executed a warrant and seized the Playpen servers which were then relocated to an FBI facility in Newington, Virginia. Id. The same day, the FBI obtained a search warrant authorizing use of a "Network Investigative Technique" ("NIT") that would allow the FBI to search computers accessing the Playpen site for identifying information. NIT Warrant.
The NIT worked by augmenting information exchanged between a user's computer and the Playpen server. A user can only access the site by first entering the Tor network, locating the hidden website hosted on the network, and then entering a username and password. Once acomputer completed these steps and accessed the Playpen site (located on servers in Virginia), the NIT would be sent to the activating computer (at the computer's unknown location) and would instruct the activating computer to send identifying information, including the IP address of the computer, back to the Playpen servers in Virginia. Id.
Using the NIT, the FBI obtained the IP address associated with Playpen user "askjeff." San Mateo Warrant at 11-12. After conducting an additional investigation, the FBI determined that this IP address likely belonged to Bryan Henderson, located in San Mateo, California. Id. The FBI then obtained a search warrant from Judge Spero to search Henderson's San Mateo residence and to seize electronic and computer devices believed to contain evidence that Henderson received and possessed child pornography. Id. The FBI executed the San Mateo Warrant and arrested Henderson after it found evidence of child pornography on his electronic devices.
Henderson moves to suppress the NIT Warrant and all fruits of the NIT Warrant, including all evidence seized and obtained on September 2, 2015. He argues that the NIT Warrant was invalid at the time it was issued because it violated Federal Rule 41 and 28 U.S.C. § 636(a) - the Federal Magistrates Act - which limit the jurisdictional reach of a magistrate judge. Mot. 10. Henderson contends that a magistrate judge's authority is limited to the district in which he or she sits except under specific circumstances, none of which apply to the facts here, and that the NIT Warrant exceeded this limitation because it permitted government agents to conduct a search of computers outside the Eastern District of Virginia. I heard oral argument on August 18, 2016 and granted Henderson leave to submit supplemental briefing on August 26, 2016, which I have now reviewed.
Henderson argues that the NIT Warrant is invalid under the Federal Magistrates Act and Rule 41(b) of the Federal Rules of Criminal Procedure. The Federal Magistrates Act, Section 636(a) provides that a magistrate judge shall have within her district and "elsewhere as authorized by law . . . all powers and duties conferred or imposed upon the United States commissioners by law or by the Rules of Criminal Procedures for the United States District Courts." 28 U.S.C. §636(a). Henderson contends that the NIT Warrant violated Section 636(a) by failing to meet the requirements of Rule 41(b). Mot. 14. Therefore, analysis of Henderson's arguments under both sections is identical.
Federal Rule 41(b) outlines the geographical areas over which a magistrate judge has authority to issue warrants:
(b) Authority to issue a Warrant. At the request of a federal law enforcement officer or an attorney for the government:
Rule 41 violations fall into two categories: fundamental errors and mere technical errors. United States v. Negrete-Gonzales, 966 F.2d 1277, 1283 (9th Cir. 1992). A fundamental error is one resulting in a constitutional violation, requiring suppression. Id. A technical error requires suppression only if: (1) the defendant is prejudiced by the error, or (2) there is evidence ofdeliberate disregard for Rule 41. Id.
Henderson contends that the NIT Warrant was not permissible under any of the five sections of 41(b) because it was issued by a magistrate judge in the Eastern District of Virginia and, through the use of the NIT, permitted searches of Playpen users' computers wherever they were located. Many computers, including Henderson's, were not within the Eastern District of Virginia.
The government argues that the NIT Warrant is valid under Rule 41(b)(1), (2), and (4) because the Playpen servers were located in the Eastern District of Virginia and Playpen users had to virtually reach into the district to access the Playpen site, at which time the NIT was sent and installed on their computers. Opposition ("Oppo.") 15 (Dkt. No. 54). The United States adds that the provisions of Rule 41 are to be read broadly and flexibly where a particular type of search does not fall explicitly under the language of the rule. Id. at 14.
I agree with Henderson that the NIT Warrant is not permissible under Rule 41(b)(1) and (2)....
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