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United States v. Trahan

United States District Court, D. Massachusetts

July 3, 2018

SEAN TRAHAN, Defendant.


          George A. O'Toole, Jr. United States District Judge.

         The defendant, Sean Trahan, is charged with one count of possession of child pornography and one count of knowing access with intent to view child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). The charges arise from an FBI investigation into users of a child pornography website “Playpen” and the FBI's use of a network investigative technique (“NIT”) that relayed identifying information about a Playpen user to the FBI when the user logged in to the site. Trahan has moved to suppress all evidence gathered by the NIT, as well as any fruits of the allegedly unconstitutional search. He also has moved to dismiss the indictment on the basis of allegedly egregious government misconduct.

         I. Factual Background

         The government's use of the NIT led to the identification of hundreds of users of the child pornography website Playpen and has subsequently been the subject of litigation around the country. See, e.g., United States v. Taylor, 250 F.Supp.3d 1215, 1222-23 (N.D. Ala. 2017) (collecting and categorizing district court cases as of April 2017). Most of the relevant facts have been described by numerous other courts, including recently by the First Circuit in United States v. Levin, 874 F.3d 316 (1st Cir. 2017). Accordingly, the factual background and case history are recited here only to the extent necessary to resolve the pending motions.

         In 2014, FBI agents began investigating Playpen. Playpen operated on the internet network known as Tor, which provides anonymity for users by permitting them to hide identifying information such as Internet Protocol addresses (“IP addresses”). Playpen was a “hidden service” on the “Dark Web, ” reachable only by a browser capable of using Tor or similar software and by users who knew or were redirected to the algorithm-generated website address (or “URL”). The website required visitors to register and log in to the website, after which a user could view its illicit content. When a user attempted to register by clicking a registration hyperlink on the homepage, the user saw a message from the forum operators. The message explained that the forum required new users to enter an email address, but that they should not enter real addresses. The message further warned users to refrain from posting any information that could be used to identify them. It also emphasized the site's privacy features, including the staff's inability to confirm true identities or see user IP addresses.

         For the majority of the FBI's investigation, the Playpen homepage contained the images of two partially clothed prepubescent females with their legs spread apart. The homepage later was changed to an image of a young girl wearing a short dress and black thigh-high stockings, leaning back on a red chair with her legs crossed.

         In February 2015, the government seized control of the website from its web-hosting facility pursuant to a warrant. The FBI then moved it to a server located in the Eastern District of Virginia. The government permitted Playpen to continue to operate through March 4, 2015, as it monitored its traffic.

         On February 20, 2015, FBI agents obtained a search warrant from a magistrate judge in the Eastern District of Virginia which authorized the FBI to deploy the NIT onto any “activating computer, ” defined as the computer of “any user or administrator who logs into [Playpen] by entering a username and password.” (Mot. to Suppress Ex. B at 3 (dkt. no. 63-2).) When deployed, the NIT would cause the user's computer to send identifying information, such as the computer's actual IP address, back to a government-controlled computer located in the Eastern District of Virginia.

         According to data obtained by the government through the deployment of the NIT, a Playpen user named “Kelly33” accessed several images of child pornography on February 21, 22, and 28, 2015. The user had registered an account with Playpen on September 2, 2014, and was actively logged in to the website for over seventy-seven hours between September 2, 2014, and March 4, 2015. Between February 21, 2015, and March 4, 2015, the user viewed approximately 409 threads on the website.

         Using the information it obtained through the NIT, the government served an administrative subpoena on the internet service provider for the account associated with the IP address, which revealed that the IP address was assigned to the defendant's father with service at the family's home in Seekonk, Massachusetts. The government obtained a warrant from a magistrate judge in Massachusetts to search the Seekonk home, and upon execution of the search warrant, seized a computer from the defendant's bedroom. On subsequent forensic examination, the device was found to contain child pornography. The defendant also made inculpatory statements to law enforcement agents.

         II. Motion to Suppress

         The defendant raises several arguments in support his motion to suppress. Some relate to the magistrate judge's authority to issue the NIT warrant and are foreclosed by the First Circuit's recent Levin decision. The defendant's other suppression arguments, including that the NIT warrant did not authorize searches outside of the Eastern District of Virginia, lacked particularity, and was not supported by probable cause; that the NIT's triggering condition failed; and that a Franks hearing is required, are also rejected for the reasons set forth below.

         A. Magistrate Judge's Authority

         The defendant's arguments related to the magistrate judge's authority-that the NIT warrant violated Federal Rule of Criminal Procedure 41(b), that the NIT warrant was void ab initio because, absent authority under Rule 41, it violated the Federal Magistrates Act and was issued without jurisdiction, and that suppression is required for a Rule 41 violation-all fail in light of Levin. See874 F.3d 316. In that case, the district judge suppressed evidence obtained from the deployment of the NIT, finding that “since the warrant purported to authorize a search of property located outside the federal judicial district where the issuing judge sat, the NIT warrant was issued without jurisdiction and thus was void ab initio” and that “the magistrate judge was not authorized to issue it either under Rule 41 . . . or under the Federal Magistrates Act.” Id. at 320-21. The district court further concluded that the ...

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