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United States v. Wheeler

United States District Court, N.D. Georgia, Atlanta Division

August 21, 2017

UNITED STATES OF AMERICA
v.
WILLIAM BRYANT WHEELER, Defendant.

          ORDER

          MARK H. COHEN UNITED STATES DISTRICT JUDGE

         This 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] ("Def.'s Objs.").

         In 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 Cir. 1983).

         On 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].

         At the 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.

         Defendant 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 14-28.

         At the 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.

         Two 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 good-faith exception:

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 this one.
***

Because Leon provides an exception for good faith, we apply it as long as the circumstances do not demonstrate bad faith[.]

***

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 citations omitted).

         Three 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.

         Workman, 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 retrieval ...


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