Thanks for visiting! Welcome to a new way to research case law. You are viewing a free summary from Descrybe.ai. For citation and good law / bad law checking, legal issue analysis, and other advanced tools, explore our Legal Research Toolkit — not free, but close.
United States v. Werdene
Citations: 188 F. Supp. 3d 431; 2016 U.S. Dist. LEXIS 66311; 2016 WL 3002376Docket: CRIMINAL ACTION NO. 15-434
Court: District Court, E.D. Pennsylvania; May 18, 2016; Federal District Court
Gabriel Werdene was indicted on September 17, 2015, for possessing and attempting to possess child pornography under 18 U.S.C. 2252(a)(4)(B) and (b)(2). The indictment stemmed from evidence obtained during a search of his Bensalem, Pennsylvania home on June 17, 2015, conducted under a warrant issued by a magistrate judge. The FBI traced Werdene's activities to the child pornography website Playpen after a Virginia magistrate authorized a warrant allowing agents to deploy software that revealed the IP addresses of users. Werdene's username on Playpen was 'thepervert', which linked to his IP address, leading to the identification of his home. Playpen, accessed via the anonymity software Tor, specialized in child pornography and allowed users to upload and share illicit content while concealing their identities. To counteract Tor's anonymity, the FBI utilized a Network Investigative Technique (NIT), which activated software that disclosed the user's IP address when they logged into Playpen. Werdene sought to suppress the evidence obtained, arguing the Virginia magistrate lacked jurisdiction under Federal Rule of Criminal Procedure 41 to authorize the NIT, claiming this procedural violation warranted suppression. The court ruled against Werdene's motion, stating that even if Rule 41 was not followed, suppression was not the appropriate remedy as it did not violate his Fourth Amendment rights—he had no reasonable expectation of privacy regarding his IP address. Additionally, the good faith exception to the exclusionary rule applied, and any nonconstitutional violation of Rule 41 did not prejudice Werdene. The court denied the motion, highlighting that Playpen was a dark web site dedicated to the distribution of child pornography, featuring explicit content and encouraging users to remain anonymous. Playpen was an online platform featuring forums with topics, authors, and statistics on replies and views. Users could post text, links, and images, with specific functionalities for hosting child pornography via 'Playpen Image Hosting' and 'Playpen Video Hosting.' The platform had over 1,500 daily visitors and more than 11,000 unique users weekly, accumulating 117,773 posts, 10,622 topics, and 214,898 members by March 2015. Accessible only through the Tor network, Playpen could not be reached via standard search engines; users required the specific Tor address to connect, which involved installing Tor software that obscured their IP addresses through a network of volunteer-run relay computers. This prevented traditional IP identification methods used by law enforcement, as the last exit node did not reveal the user's true IP address. In December 2014, a foreign law enforcement agency alerted the FBI about a U.S.-based IP address linked to Playpen. The FBI confirmed this address was owned by Centrilogic in North Carolina and obtained a search warrant for the server, discovering a copy of Playpen stored in Newington, Virginia. Further investigation identified an administrator in Naples, Florida. On February 19, 2015, the FBI executed a search warrant at this administrator's residence, leading to the suspect's arrest and the FBI assuming control of Playpen. The following day, Agent Macfarlane sought a warrant to use a Network Investigative Technique (NIT) while managing the site on the government server. Agent Macfarlane justified the deployment of a Network Investigative Technique (NIT) in a warrant application to counteract the anonymity features of the Tor network. He indicated that traditional investigative methods had proven ineffective or were unlikely to succeed. The NIT was intended to gather information to help identify the user’s computer, its location, and the user. It would augment standard web content with additional instructions causing the target computer to send its actual IP address to a government-controlled server whenever a user logged into Playpen. In the warrant application, Macfarlane specified that the NIT would be executed on government servers in the Eastern District of Virginia and would target any user or administrator logging into Playpen. After the warrant was issued on February 20, 2015, FBI agents monitored the site and noted activity from a user named 'thepervert,' who had been active for over ten hours and made six posts, including links to child pornography. On February 28, 2015, 'thepervert' logged into Playpen, triggering the NIT to transmit his IP address to the government. The FBI traced this IP address to Comcast, which they subpoenaed for user information, revealing it belonged to Werdene. Subsequently, on June 17, 2015, the FBI obtained a search warrant for Werdene’s residence in Bensalem, where they discovered child pornography on a laptop, USB drive, and DVD during a search conducted while Werdene was not present. FBI agents interviewed Werdene, who admitted to downloading illicit material on his laptop. He was indicted on September 17, 2015, and subsequently filed a motion on February 11, 2016, to suppress all evidence obtained from his home, including any incriminating statements. Werdene claims the government violated Federal Rule of Criminal Procedure 41, which restricts a magistrate judge's authority to issue warrants and is designed to prevent broad, invasive searches. He argues that this violation is significant enough to warrant suppression of the evidence obtained through the NIT (Network Investigative Technique) and asserts that he was prejudiced by the government's actions. Werdene further alleges that the FBI misled the magistrate judge about the location of the computers involved in the investigation, demonstrating intentional disregard for Rule 41. The government counters that the absence of explicit procedures in Rule 41 does not render their actions unlawful. They argue that Werdene's use of Tor anonymizing software made it impossible to comply with Rule 41’s requirements, and any violation did not reach a constitutional level, thus suppression is not justified. A hearing on the motion was held on April 7, 2016. Recent federal court opinions regarding similar cases involving the same NIT application show a consensus that the magistrate judge in Virginia lacked authority under Rule 41 to issue the warrant but diverge on whether suppression is warranted. Rule 41(b) outlines five conditions for a magistrate judge to issue a warrant, with the general rule being that warrants must pertain to locations within the district. Werdene argues the NIT warrant does not meet any of these criteria, asserting that the actual place to be searched was his computer in Bensalem, outside the jurisdiction of the Eastern District of Virginia, thus rendering the warrant unlawful. During the hearing, Werdene's counsel presented a December 22, 2014 letter from Deputy Assistant Attorney General David Bitkower, which discussed proposed amendments to Rule 41, particularly concerning the Fourth Amendment's requirements and new standards for warrants involving Internet anonymizing technology. The letter indicated that under the proposed amendment, a magistrate could issue a warrant for a remote search if the computer's location was concealed by technology. Werdene's counsel argued this letter demonstrated a Rule 41 violation in her case, asserting that legal standards have not adapted to technological advances, warranting evidence suppression. The Court clarified that whether law enforcement should pause investigations while amendments to the Federal Rules of Criminal Procedure are considered is irrelevant. It concluded that suppression was not justified given the circumstances. The Government did not assert that the NIT warrant was compliant with specific Rule 41 subsections but claimed Rule 41's flexibility allowed for the warrant's issuance despite its technical violations. The FBI faced challenges due to the Defendant's use of Tor, prompting them to seek a warrant in the district where the server was located. The Court acknowledged that while the NIT warrant technically breached Rule 41(b), it argued that it did not violate the rule's spirit. Rule 41(b)(1) permits magistrates to issue warrants for searches within their district, but the Government's assertion that the crimes occurred within the Eastern District of Virginia was deemed unconvincing. The Court emphasized that the target of the NIT was outside the magistrate's jurisdiction, as the evidence sought was linked to computers that were not located in the Eastern District of Virginia. Consequently, the magistrate lacked the authority to issue the NIT warrant under Rule 41(b). Rule 41 violations are classified into two categories: constitutional violations and other violations. Courts differentiate between substantive or constitutional violations and ministerial or procedural violations. For Werdene to prove a constitutional violation under Rule 41, he must demonstrate a breach of his Fourth Amendment rights, specifically linking the Government’s failure to adhere to Rule 41(b) with a search or seizure that contravenes the Fourth Amendment. Werdene does not claim that the Government lacked probable cause for a warrant; instead, he argues that Agent Macfarlane improperly applied for the NIT warrant in the wrong district. He contends that the Government's Rule 41 violation is significant because it transcends mere procedural issues, asserting that the Fourth Amendment safeguards his computer use in the privacy of his home. He fears that ignoring Rule 41's constraints could lead to further violations and erode the constitutional requirement for warrants to specifically describe the places to be searched. The Supreme Court has established that the application of the Fourth Amendment hinges on whether an individual has a 'justifiable', 'reasonable', or 'legitimate expectation of privacy.' This determination is twofold: first, whether the individual exhibited a subjective expectation of privacy, and second, whether that expectation is one society recognizes as reasonable. In *Smith*, the Court ruled that there is no reasonable expectation of privacy in dialed telephone numbers since individuals voluntarily convey this information to telephone companies. Similarly, the Third Circuit has held that there is no reasonable expectation of privacy in IP addresses, which are also shared with third parties such as internet service providers. Consequently, Werdene could not claim a reasonable expectation of privacy in his IP address, as using the Tor network requires disclosing this information to third parties, including those operating Tor nodes. The court in Farrell determined that Tor users do not have a reasonable expectation of privacy regarding their IP addresses when using the Tor network. Although the Tor network provides a level of anonymity by routing IP addresses through multiple nodes, this does not eliminate the transmission of IP addresses, which users are aware of. The analysis parallels the Smith case, where the Supreme Court found that using automatic telephone switching did not impact privacy expectations. Similarly, whether the third party receiving the IP address is an individual or an entry node does not change the evaluation of privacy expectations. The Tor Project alerts users to vulnerabilities that may compromise their anonymity, indicating that any subjective expectation of privacy regarding an IP address is not considered reasonable by societal standards. In United States v. Stanley, the Third Circuit ruled that Stanley lacked a reasonable expectation of privacy in his wirelessly transmitted internet signal while using his neighbor's internet without permission, affirming that his expectation was not legitimate due to the unauthorized nature of his actions. Applying this reasoning, Werdene cannot claim Fourth Amendment protection simply because he utilized Tor to avoid detection; he does not receive the same constitutional safeguards as individuals who do not conceal their IP addresses. Consequently, the use of the NIT did not constitute a "search" under the Fourth Amendment. Werdene argues for suppression based on a nonconstitutional violation of Rule 41, referencing the Tenth Circuit's suppression standard from United States v. Krueger. This standard requires demonstrating either that the violation might have prevented the search or that there was intentional disregard for the Rule. Werdene asserts that he suffered prejudice because the Network Investigative Technique (NIT) deployment was a result of a violation of Rule 41, which he argues prohibits remote searches of computers outside the authorizing district. He claims the Government acted with intentional disregard of this rule. The Third Circuit's standard for prejudice differs from the Tenth Circuit's; in the Third Circuit, suppression is warranted if a nonconstitutional violation of Rule 41 caused prejudice or was done with deliberate disregard for the rule. However, such a violation must also offend fundamental fairness or due process, as established in United States v. Hall. The Government's actions did not violate these principles, as Agent Macfarlane obtained a warrant in the Eastern District of Virginia after taking control of Playpen. He could not have known that Werdene was located in Pennsylvania, and compliance with Rule 41 would have required either chance or applying for warrants in all federal districts. The warrant application was thorough and detailed the NIT's operation. Furthermore, Werdene's claim that the Government misled the magistrate judge about the locations of the computers is unsupported; the application acknowledged the challenges of the Tor network in masking users' locations. Thus, Werdene's motion to suppress based on prejudice is denied. The Government did not mislead the magistrate judge regarding the Network Investigative Technique (NIT) but was transparent about its method and scope. Even assuming Werdene had a reasonable expectation of privacy concerning the NIT's information gathering—which could imply a violation of Rule 41(b)—suppression of evidence is not the appropriate remedy. The exclusionary rule serves to suppress evidence obtained through illegal searches or seizures, aimed at deterring Fourth Amendment violations. However, whether suppression is warranted is distinct from whether Fourth Amendment rights were violated. Exclusion is not an inherent constitutional right but a judicial mechanism to enforce Fourth Amendment rights. A Fourth Amendment violation does not automatically necessitate evidence suppression; it is reserved for exceptional cases where deterrence of government misconduct justifies the social costs of excluding reliable evidence. The application of the rule considers both its deterrent value and the substantial social costs, including the risk of releasing potentially guilty individuals. The good faith exception to the exclusionary rule seeks to balance these interests, with its effectiveness varying based on the culpability of law enforcement conduct. Deterrent value is more likely to outweigh costs when there is evidence of deliberate, reckless, or gross negligence by law enforcement. Police conduct that is based on an "objectively reasonable good-faith belief" in its legality, or involves "simple, isolated negligence," may not warrant the exclusion of evidence, as the deterrence rationale becomes less effective. Courts must determine if a reasonably trained officer would recognize the illegality of a search based on the circumstances. In United States v. Levin, the Massachusetts District Court found that a Network Investigative Technique (NIT) warrant violated Rule 41(b) and the defendant's Fourth Amendment rights, rendering the warrant a substantive violation due to lack of jurisdiction. The court ruled that the good faith exception did not apply, as a warrant issued without proper authority is considered "void ab initio," equating it to having no warrant at all. This situation is akin to a warrantless search, which is generally deemed unreasonable under the Fourth Amendment. The court rejected the applicability of the good faith exception in this context, emphasizing that prior Supreme Court expansions of this exception did not address cases involving void warrants. Furthermore, Levin's reliance on prior Sixth Circuit decisions was deemed inappropriate, given subsequent rulings that effectively overruled those cases. The Sixth Circuit's decision in Master revisited its earlier ruling in Scott, concerning the applicability of the good faith exception to the exclusionary rule when a warrant is void ab initio. The court concluded that the Supreme Court's decisions in Herring and Hudson suggested that the determination of suppression should be independent of whether a Fourth Amendment violation occurred. The exclusionary rule's aim is to deter egregious or reckless law enforcement conduct, rather than to automatically suppress evidence obtained in violation of the Fourth Amendment. Consequently, the Master court determined that the good faith exception could be applicable even when a warrant is void ab initio. In contrast, the Levin court opted to adhere to the Scott precedent, arguing that Master misinterpreted Herring's implications. Levin asserted that Herring did not address scenarios involving a non-existent valid warrant, which Levin identified as a novel issue for the Circuit. The court further critiqued the logic that supporting one search's constitutionality negates the legitimacy of all others. Supporting this view, the Third Circuit has reinforced the necessity of applying the good faith exception broadly, as evidenced in Katzin, where the court recognized that officers may act on a reasonable belief in the legality of their actions. Thus, the legal status of the warrant should not dictate the availability of the good faith exception; rather, it should be assessed based on the exclusionary rule's purpose and the officers' conduct. The exclusionary rule is primarily intended to address police misconduct rather than judicial errors, which raises questions about its applicability in this case where a magistrate judge issued a warrant despite lacking authority. The argument posits that applying the rule without exception is illogical since it was the magistrate who determined jurisdiction, not the agents. The court emphasizes that it must assess its own jurisdiction before addressing the merits of the case. The good faith exception to the exclusionary rule remains relevant even if the warrant is considered void ab initio, necessitating a determination of whether the agents acted with an objectively reasonable belief in the legality of their actions. This assessment includes evaluating if a well-trained officer would recognize the search as illegal given the circumstances. In this instance, the agents operated under a reasonable good faith belief as the warrant explicitly authorized the deployment of a Network Investigative Technique (NIT) to target computers logging into a specific website. The warrant application clearly stated that the NIT could gather identifying information from activating computers, which the magistrate judge interpreted as sufficient for jurisdiction. Despite claims from the defendant, Werdene, that the FBI misled the magistrate regarding the search's location, the document supports that the warrant and its application were not deceptive. The magistrate was accurately informed, and the good faith exception would not be invalidated as no false or misleading information was presented to the magistrate. The Levin court determined that the good faith exception to the exclusionary rule was not applicable in this case but, if it were, suppression of evidence would still be warranted. The court argued that a veteran FBI agent should not have reasonably believed the NIT Warrant was valid given the clear requirements of Rule 41(b). It characterized the agents' actions as a "systemic error or reckless disregard of constitutional requirements," leading to its decision to suppress the evidence. However, the court did not evaluate the substantial costs of suppression as articulated by the Supreme Court, which noted that it often results in the exclusion of reliable evidence and may allow guilty individuals to evade punishment. The Levin court also failed to consider the deterrent effect of suppression and overlooked the Supreme Court's assertion that the exclusionary rule applies only when it leads to appreciable deterrence. Moreover, any mistake made was not due to the agents' reckless disregard for the Fourth Amendment but rather a misstep by the magistrate who issued the warrant beyond her jurisdiction. The FBI agents had consulted with federal attorneys and provided all necessary information to the magistrate for her decision. The agents did not misrepresent the search's execution or location. The court concluded that a magistrate’s erroneous belief in her jurisdiction, without evidence of the agents' reckless conduct, does not justify suppression. The Supreme Court has indicated that reliance on exclusion as a deterrent effect on judges and magistrates is misguided, as these judicial officers are neutral and not part of law enforcement, thus unlikely to be swayed by the threat of exclusion. Exclusion of evidence in this case would only penalize judicial errors without significantly deterring law enforcement misconduct. The Court noted that if agents had misled the magistrate about the jurisdiction, suppression might have been warranted to deter such misrepresentations. However, since the agents provided necessary information for the magistrate to confirm jurisdiction, their actions were deemed to be in good faith and reasonable under the circumstances. Penalizing law enforcement for a magistrate's mistake does not effectively deter Fourth Amendment violations. The case against the defendant is strong, and suppressing evidence would risk letting a guilty individual go free, which contradicts fundamental principles of justice. The excerpt also mentions that the parties refer to Playpen as "Website A" for anonymity, but this identification is no longer necessary due to existing disclosures. FBI Special Agent Douglas Macfarlane's warrant application details the nature of terms like "jailbait" and types of sexually explicit content, along with specifics of the information collected through the NIT, including unique identifiers and system details. The court's focus in Stamper was on Fourth Amendment violations, not Rule 41, and Werdene's argument references a related case where the FBI sought a warrant for an unlocatable computer. The magistrate judge rejected the warrant request due to non-compliance with Rule 41(b) and violations of the Fourth Amendment regarding particularity and video surveillance protections. The case contrasts with In re Warrant, as the software in question targeted individuals accessing child pornography and retrieved information not protected by a reasonable expectation of privacy. Defendant Werdene did not argue a reasonable expectation of privacy regarding data collected by the NIT, such as his computer's operating system and MAC address, nor did he claim this information was relevant to the investigation. The Tenth Circuit in Krueger adopted the Ninth Circuit’s suppression standard for non-constitutional Rule 41 violations, which is also recognized in other circuits. Unlike Krueger, where the jurisdiction was clear, Werdene's use of Tor obscured his location, complicating the warrant request. Werdene also claimed a violation of the notice requirement under Rule 41; however, the agent’s application requested a 30-day notice delay to prevent tampering during the investigation, citing the anonymity of Playpen users as a reason for not identifying a notice recipient. Even if a violation occurred, suppression was deemed inappropriate as Werdene was not prejudiced. Discussion in Levin highlighted uncertainty regarding whether prior decisions were overruled, particularly in relation to the good-faith exception to the exclusionary rule. In the referenced Master case, the court found that officers failed to adequately seek active magistrates, which fell short of the good-faith standard necessary to apply the exception. Levin’s argument relying on this footnote was explicitly rejected by Master.