United States District Court, N.D. Georgia, Atlanta Division
H. COHEN UNITED STATES DISTRICT JUDGE
action comes before the Court on the Final Report and
Recommendation ("R&R") of Magistrate Judge
Janet F. King [Doc. 67] recommending that Defendant's
Motion to Dismiss Indictment for Outrageous Government
Misconduct [Doc. 45] and Motion to Suppress Evidence [Doc.
46] be denied. The Order for Service of the R&R [Doc. 68]
provided notice that, in accordance with 28 U.S.C. §
636(b)(1) (2012), the parties were authorized to file
objections within fourteen (14) days of the receipt of that
Order. After obtaining an extension of time within which to
file his objections, on July 17, 2017, Defendant filed his
objections to only that portion of the R&R which
recommends the denial of his Motion to Suppress [Doc. 74]
reviewing a Magistrate Judge's R&R, the district
court "shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1). "Parties filing objections to a
magistrate [judge]'s report and recommendation must
specifically identify those findings objected to. Frivolous,
conclusive, or general objections need not be considered by
the district court." United States v. Schultz, 565 F.3d
1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847
F.2d 1536, 1548 (11th Cir. 1988)). If there are no specific
objections to factual findings made by the Magistrate Judge,
there is no requirement that those findings be reviewed
de novo. Garvev v. Vaughn, 993 F.2d 776, 779 n.9
(11th Cir. 1993). Absent objection, the district court judge
"may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate [judge],
" 28 U.S.C. § 636(b)(1), and may accept the or
recommendation if it is not clearly erroneous of contrary to
the law. Fed. R. Crim. P. 59(a). In accordance with 28 U.S.C.
§ 636(b)(1) and Rule 59 of the Federal Rules of Criminal
Procedure, the Court has conducted a de novo review
of those portions of the R&R to which Defendant objects
and has reviewed the remainder of the R&R for plain
error. See United States V. Slav, 714 F.2d 1093, 1095 (11th
October 27, 2015, a two-count indictment was returned against
Defendant for knowingly receiving child pornography, in
violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1)
(Count One), and knowingly possessing child pornography, in
violation of O.C.G.A. §§ 2252(a)(4)(B) and (b)(2)
(Count Two). On March 11, 2016, Defendant entered a plea of
guilty to Count Two of the Indictment based upon a plea
agreement with the Government. [Docs. 31, 39.] However, prior
to his sentencing, Defendant filed a motion to withdraw his
guilty plea in order to challenge the legality of the search
warrant issued by a United States Magistrate Judge for the
Eastern District of Virginia, which led to the evidence
ultimately obtained against him through a warrant issued in
this district. [Doc. 35.] The Court granted Defendant's
motion to withdraw his guilty plea, provided time for
Defendant to file his motion to suppress, and referred the
matter to Judge King for further proceedings. Order of June
23, 2016 [Doc. 43].
time of the Court's June 2016 Order, there were less than
a dozen cases that had issued opinions with respect to the
legality of the search warrant that authorized the government
to deploy a Network Investigative Technique ("NIT")
in order to identify Internet Protocol ("IP")
addresses that accessed a network called "Playpen,
" hosted in the Eastern District of Virginia, which
contained a forum for sharing child pornography. See Search
& Seizure Warrant, In the Matter of the Search of
Computers That Access upf45]v3bziuctml.onion, No.
1:15-SW-89, (E.D. Va., Feb. 20, 2015) [Doc. 35-2] ("the
NIT warrant"). The government previously seized the
server that hosted Playpen, loaded the contents onto a
government server in the Eastern District of Virginia, and
hosted Playpen. The NIT warrant permitted the government to
install software on the Playpen server in order to identify
IP addresses that were accessing the child pornography. The
government operated the network for a two-week period, during
which time a number of users of IP addresses were obtained,
including one linked to Defendant's home address.
contends that the NIT warrant was void, arose to a
constitutional violation, and that the good-faith exception
contained to the exclusionary rule under United States v.
Leon, 468 U.S. 897 (1984), cannot apply. Def.'s Objs. at
2-7. Like a number of other judges, Judge King assumed that
the NIT warrant was void for the purpose of judicial economy,
but found that the good-faith exception applied. R&R at
time of Judge King's R&R, more than fifty decisions
had been issued by district courts considering motions to
suppress the NIT warrant raising the same issues as raised by
Defendant in this case. See e.g., United States v.
Hernandez-Cuellar, No. 4:16-CR-111, 2017 WL 2297171
(E.D. Tex. May 26, 2017); United States V. Barnes,
No. 3:15-CR-112-J-39PDB (M.D. Fla. May 8, 2017) (unpublished)
(collecting 50 cases); United States v. Taylor, No.
2:16-cr-203-KOB-JEO-1, 2017 WL 1437511, at *3-4 (N.D. Ala.
Apr. 24, 2017) (collecting 44 cases). Motions to suppress
evidence based on the NIT warrant were denied in the
overwhelming majority of cases based on one of the following
rationales: (1) the court found the NIT warrant did not
violate either 28 U.S.C. § 636(a) or Rule 41 of the
Federal Rules of Criminal Procedure; (2) the court found the
NIT warrant did violate either 28 U.S.C. § 636(a) or
Rule 41, but suppression of the evidence was unwarranted
based principally on the good-faith exception to the
exclusionary rule under United States v. Leon, 468 U.S. 897
(1984), or that the defendant suffered no prejudice because
the information was obtainable through other means or there
was no reasonable expectation of privacy in the IP address;
or (3) the court assumed a violation of either 28 U.S.C.
§ 636(a) or Rule 41, but held that suppression was
unwarranted based upon the good-faith exception under Leon.
At the time of Judge King's R&R, the only decisions
to hold that the NIT warrant was not authorized by Rule 41
and that the good-faith exception did not apply because the
warrant was void ab initio, were: United States v.
Carlson, No. 16-317 (JRT/FLN), 2017 WL 1535995 (D. Minn. Mar.
23, 2017) (report & recommendation); United States v.
Croghan, 209 F.Supp.3d 1080 (S.D. Iowa 2016); United States
v. Workman, 205 F.Supp.3d 26 (D. Colo. 2016); United States
V. Arterburv, No. 15-CR-182-JHP, 2016 U.S. Dist. LEXIS 67091,
at *19-35 (N.D. Okla. Apr. 25, 2016), R & R
adopted bv 2016 U.S. LEXIS 67092 (N.D. Okla. May 17,
2016); and United States v. Levin, No. 15-10271-WGY, 2016 WL
1589824 (D. Mass. Apr. 20, 2016), opinion amended and
superseded by 2016 WL 2596010 (D. Mass. May 5, 2016). At the
time of Judge King's decision, there were no court of
appeals decisions on this issue.
appellate decisions have been issued since Judge King's
R&R. In United States v. Horton, 863 F.3d 1041 (8th Cir.
2017), the Eighth Circuit Court of Appeals, although holding
that the NIT warrant exceeded the magistrate judge's
jurisdiction and was void ab initio, held that the
district court in Croghan erred by failing to apply the
Our review of relevant Supreme Court precedent leads us to a
similar conclusion [as the Sixth Circuit in United States v.
Master, 614 F.3d 236, 241 (6th Cir. 2010)]: that the Leon
exception can apply to warrants void ab initio like
Because Leon provides an exception for good faith, we apply
it as long as the circumstances do not demonstrate bad
The defendants also argue that the NIT warrant was facially
deficient because FBI agents should have known that a
warrant purporting to authorize thousands of searches
throughout the country could not be valid. Specifically,
Horton argues that there can be no credible argument that
officers reasonably believed that none of the 214, 898
members of Playpen were located outside of Virginia. We,
however, will not find an obvious deficiency in a warrant
that a number of district courts have ruled to be facially
valid. Further, we have declined to impose an obligation on
law enforcement to know the legal and jurisdictional limits
of a judge's power to issue interstate search warrants.
We therefore apply the Leon exception to this case and
reverse the district court's grant of suppression.
Horton, 863 F.3d at 1050-52 (internal punctuation and
days earlier, the Tenth Circuit Court of Appeals reversed the
district court's decision suppressing evidence based upon
the invalidity of the NIT warrant in United States v.
Workman, 863 F.3d 1313 (10th Cir. 2017). The Tenth
Circuit assumed, for the sake of argument, that the
magistrate judge lacked authority to issue the NIT warrant
and that the resulting search was unconstitutional or a
prejudicial violation of a federal law or rule. Nevertheless,
the court held the Leon exception applied:
Under Herring [v. United States, 555 U.S. 135 (2009)] and
[Arizona v.] Evans, [514 U.S. 1 (1995), ] the Leon exception
applies even if the magistrate judge had exceeded geographic
constraints in issuing the warrant. In these circumstances,
the executing agents could reasonably have relied on the
warrant, just as the agents had relied in Herring and Evans
on warrants that had been recalled or quashed.
In Herring and Evans, the absence of a valid warrant did not
preclude application of the Leon exception because there was
no misconduct to deter. Here too there was nothing to deter
if the agents had mistakenly relied on the magistrate
judge's authority to issue the warrant. As a result,
Herring and Evans would require us to apply the Leon
exception even if we were to conclude that the warrant had
exceeded geographical constraints.
863 F.3d at 1318-19 (citations and footnotes omitted). The
court then held that the "executing agents could
reasonably rely on the magistrate judge's authority to
issue a warrant authorizing installation of software and