United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION
TO SUPPRESS (DKT. NO. 100)
G. MASTROIANNI United States District Judge.
defendant, Victor Stepus, moves to suppress all evidence
obtained against him related to the seizure and search of his
computer which ultimately was accomplished through the
Government's use of a network investigating technique
(“NIT”). This technique involved the deployment
of software downloaded to Defendant's computer, which
then relayed information about the computer back to law
enforcement. The defendant claims suppression is appropriate
under 28 U.S.C. § 636(a) and Federal Rule of Criminal
Procedure 41. Specifically, on August 21, 2015 FBI agents
executed a search warrant and seized a computer at the home
of Defendant in Chicopee, Massachusetts. This search was
conducted pursuant to warrant issued by Magistrate Judge
Katherine Robertson of the District of Massachusetts, however
the search warrant for Defendant's home was based on
information obtained under a warrant issued by a magistrate
judge in the Eastern District of Virginia which was directed
at a child pornography website. The warrant issued in
Virginia authorized law enforcement to deploy the NIT to
individuals accessing a child pornography website which was
had been seized by the government. The NIT caused the
computers which accessed the website, during a short window
before the government shut the website down, including
Defendant's computer, to deliver data from those
computers to the government-controlled server in Virginia.
The delivered data included important information about each
computer, including its actual IP address.
Defendant claims the search of his Massachusetts home and the
computer removed from his home was based on information the
government obtained when the NIT caused Defendant's
computer to transmit data to the government-controlled server
in Virginia. As a result, the evidence obtained from that
search was obtained in violation of Fed. R. Crim. P. 41 and
28 U.S.C. § 636(a) because the NIT was authorized by a
magistrate judge in the Eastern District of Virginia. The
same type of NIT relayed information from computers all over
the country causing a number of courts to weigh in on the
issues raised by the use of the NIT to obtain information
from computers physically located outside of Virginia. This
court has reviewed many of these decisions, paying special
attention to the United States v. Levin, Civ. No.
15-10271-WGY, __ F.Supp.3d __, 2016 WL 2596010 (D. Mass. May
5, 2016) and United States v. Anzalone, Civ. No.
15-10347-PBS, 2016 WL 5339723 (D. Mass. September 9, 2016).
In Anzalone Judge Saris provides a persuasive
analysis of the issues at play in these cases.
court rejects Defendant's argument that the warrant
authorizing the NIT was issued in violation of 28 U.S.C.
§ 636(a). The magistrate judge may have lacked authority
to issue a warrant that permitted deployment of the NIT
outside of the court's district, but the warrant was not
void ab initio. See Anzalone, 2016 WL
5339723 at *11; but see Levin, 2016 WL 2596010 at
*4. The magistrate judge had authority to allow the NIT to be
deployed to computers within the court's district and she
signed the warrant within that district.
to the potential rules violations, this court agrees with the
analysis in Anzalone that neither Rule 41(b)(1) or
(2) are applicable to this situation and provide no support
for the issuance of a warrant in the Eastern District of
Virginia permitting the deployment of the NIT on a computer
in Massachusetts. Given the circumstances in this case, it is
arguable that Rule 41(b)(4), which authorizes magistrate
judges to grant warrants for the installation of a tracking
device in one district that will transmit information after
moving into another district, provided authority for the
warrant authorizing the NIT. See Anzalone, 2016 WL
5339723 at *8-*9 (describing how courts examining this issue
have reached opposing conclusions as to the tracking device
analysis). Having considered the facts in this case, the
court finds Rule 41(b)(4) is not applicable here. The NIT was
installed outside the Eastern District of Virginia when its
relay reached Defendant's computer and this investigative
technique goes well beyond tracking by actually searching.
in Anzalone the court found the applicability of
rule 41(b) was a "close call" and this court
affirmatively finds the rule was violated, this court again
agrees with the analysis and ruling on the good faith
exception in Anzalone. Other courts, all examining
the same issues raised in this case, have extensively
discussed applicability of the good faith exception. This
case will now become one of many that are put into categories
of rulings to organize the central issues for ultimate
resolution by the Court of Appeals. As in Anzalone
and for the reasons articulated in that opinion at *9-*11,
this court applies the good faith exception and concludes
suppression is not warranted.
reasons set forth above, it is hereby ORDERED that
Defendant's motion to suppress (Dkt. No. 100) is DENIED.
It is So Ordered.
 The parties' memoranda include
very detailed descriptions of the entire investigation of
this particular child pornography website. Additionally, a
thorough outline of the relevant facts is included in
United States v. Levin, Civ. No. 15-10271-WGY, 2016
WL 2596010 (D. Mass. May 5, 2016), and the many other
decisions since ...