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United States v. Carlson

United States District Court, D. Minnesota

August 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRY LEE CARLSON, SR. Defendant.

          CAROL M. KAYSER, ASSISTANT UNITED STATES ATTORNEY, FOR PLAINTIFF.

          LEE R. JOHNSON, JOHNSON & GREENBERG PLLP, FOR DEFENDANT.

          MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          JOHN R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT

         This case resulted from a 2015 FBI investigation into a website that facilitated the distribution of child pornography available on a hidden network designed to shroud users with anonymity. The FBI commenced the investigation pursuant to a warrant issued by a magistrate judge sitting in the Eastern District of Virginia (the “Authorizing Judge”). On February 8, 2017, Defendant Terry Lee Carlson, Sr. moved to suppress evidence and statements obtained through the FBI investigation. On March 23, 2017, United States Magistrate Judge Franklin Noel (the “Magistrate Judge”) issued a Report and Recommendation (“R&R”) recommending that the Court grant Carlson's motion to suppress evidence obtained as a result of the FBI investigation and grant in part and deny in part Carlson's motion to suppress statements that he made to the FBI. On April 24, 2017, the government filed several objections to the R&R.

         This case implicates novel issues involving sophisticated technology and the scope of the Fourth Amendment. The underlying FBI investigation has resulted in numerous district courts addressing the very same issues in this case - the validity of the warrant issued in the Eastern District of Virginia and the admissibility of evidence obtained under that warrant. Most courts have denied motions to suppress evidence obtained as a result of the warrant, but have applied varying approaches.

         On July 24, 2017, the Eighth Circuit issued its decision in United States v. Horton, No. 16-3976, 2017 WL 3122073 (8th Cir. July 24, 2017), which reversed a ruling by the District Court for the Southern District of Iowa to suppress evidence discovered under the same warrant at issue in this case. The Court has considered these new developments in the law, the well-reasoned R&R, and the parties' thorough and well-written briefings. Because the Horton decision addressed the same warrant and held that the Leon[1] good-faith exception to the exclusionary rule of evidence applies (see 2017 WL 3122073, at *7), the Court will deny Carlson's motions to suppress statements and evidence law enforcement obtained as a result of the warrant, sustain the government's objections, and adopt the R&R to the extent it denies Carlson's motion to suppress.

         FACTUAL BACKGROUND[2]

         I. THE FBI INVESTIGATION OF PLAYPEN

         Since approximately August 2014, a website called “Playpen”[3] operated on the anonymous “Tor” network, sometimes called the “dark web, ” which is a network that “protects users' privacy online by bouncing their communications around a distributed network of relay computers run by volunteers all around the world, thereby masking the user's actual IP address which could otherwise be used to identify a user.” (Gov't's Resp. to Def.'s Mem. in Supp. of Mot. to Suppress (“Gov't's Resp.”), Ex. 1 at 3-33 (“Macfarlane Aff.”), ¶¶ 7-8, 11, Jan. 31, 2017, Docket No. 25.) Because communications on the Tor network are routed to obscure a user's true location, “[t]here is no practical way to trace the user's actual IP.” (Id. ¶ 8.)

         A user could only access Playpen if the user connected to the Tor network, knew the hidden Playpen web address, [4] and entered a Playpen username and password. (Id. ¶¶ 10, 12, 14.) Playpen instructed its visitors “not [to] post information here that can be used to identify you” and that “[t]his website is not able to see your IP and can not [sic] collect or send any other form of information to your computer except what you expressly upload.” (Id. ¶ 13.)

         Once logged into Playpen, users could access a number of forums and topics where they could upload, view, and discuss child pornography. (Id. ¶¶ 14, 16-18.) The images and videos shared through the website were categorized according to victim age, gender, and type of sexual activity. (Id. ¶¶ 14-18.) Playpen also contained certain features such as private messaging and file hosting that facilitated the distribution of child pornography. (Id. ¶¶ 20-25.) On February 19, 2015, the FBI investigators apprehended the administrator of Playpen and took control of the website. (Id. ¶ 30.) The agents then planned to allow the website to operate for a limited period of time to identify users of the website and to locate and rescue children from ongoing abuse. (Id.)

         II. THE NETWORK INVESTIGATIVE TECHNIQUE WARRANT

         On February 20, 2015, FBI investigators submitted an application for a search warrant, supporting attachments, and FBI Special Agent Douglas Macfarlane's affidavit to the Authorizing Judge sitting in the Eastern District of Virginia. (Gov't's Resp., Ex. 1 at 2-35.) Agent Macfarlane's affidavit explained that the FBI sought to use a network investigative technique (“NIT”) to identify Playpen users, which the FBI considered necessary due to the “unique nature of the Tor network” and because other investigative procedures were unsuccessful. (Macfarlane Aff. ¶¶ 31-32.) Under the NIT, the FBI would augment Playpen's web content with instructions, so that once an activating computer would log in and download Playpen's web content, the instructions would cause the activating computer to send specific location-identifying information back to the government. (Id. ¶ 33.) Agent Macfarlane also explained that the FBI had moved a copy of the Playpen server, which contained the Playpen website contents, to a server at a government facility in the Eastern District of Virginia (id. ¶ 28) where the NIT would then “be deployed on [Playpen], while [Playpen] operates in the Eastern District of Virginia” (id. ¶ 32).

         The FBI presented a warrant application to the Authorizing Judge, which stated that the government sought to search property described in “Attachment A” and seize property as described in “Attachment B.” (Gov't's Resp., Ex. 1 at 2, 34-35.) Attachment A provides that the NIT would be deployed on the seized computer server located in the Eastern District of Virginia to obtain information from “activating computers, ” which are computers that log in Playpen by entering a username in password. (Id. at 34.) Attachment B provides the limited information that would be seized from activating computers. (Id. at 35.) It states that by operation of the NIT, an activating computer would send only the following: the computer's IP address, the date and time the NIT determined the IP address, a unique identifier generated by the NIT to distinguish data from other activating computers, the type of operating system running on the computer, information about whether the NIT had already been delivered to the computer, and the computer's host name, active operating system username, and medial access control address. (Id.)

         On February 20, 2015, the Authorizing Judge approved the warrant application and issued a warrant (the “NIT Warrant”). (Gov't's Resp., Ex. 1 at 36-38.)

         III. IDENTIFICATION OF CARLSON

         The FBI deployed the NIT on Playpen between February 20, 2015, and March 4, 2015. (Id. at 40.) In February and March 2015, a Playpen user named “waytocool” accessed child pornography posts on Playpen's website. (Gov't's Resp., Ex. 2 at 3-34 (“Moule Aff.”), ¶¶ 31-40.) According to data obtained from the NIT, the FBI ultimately determined that Carlson was the user “waytocool, ” and on October 22, 2015, FBI Special Agent Glenn Moule obtained a warrant to search Carlson's apartment in Minnesota (the “Second Warrant”). (Gov't's Resp. Ex. 2 at 2, 41; Moule Aff. ¶¶ 38-43.)

         A. November 2015 Statements and Evidence

         On November 2, 2015, FBI agents, in coordination with local police, executed the Second Warrant at Carlson's apartment in Waseca, Minnesota. (Gov't's Resp., Ex. 2 at 41-45; Tr. of Mot. Hr'g at 8:12-16, 9:1-15, Feb. 13, 2017, Docket No. 33.) That morning, Agent Moule met Carlson in the front of his apartment building and explained the FBI had a warrant to search Carlson's apartment. (Tr. of Mot. Hr'g at 12:20-22, 14:17-22.) After agents cleared the apartment, Agent Moule and another agent interviewed Carlson. (Id. at 16:19-20:8.)[5] At one point during the interview, Carlson stated that he was fascinated by child pornography. (Id. at 33:17-23.) During the search of Carlson's apartment, agents seized electronic devices; a subsequent forensic exam revealed that Carlson used his desktop computer to access child pornography on Playpen and that Carlson produced and distributed child pornography. (Id. at 35:5-36:18.)

         B. November 2016 Statements

         A year later, on November 17, 2016, Agent Moule executed another warrant (the “Third Warrant”), which authorized Carlson's arrest and a search of his person and residence, which was located at that time in Coleraine, Minnesota. (Id. at 8:17-21, 37:6-21, 38:20-22.) After Agent Moule arrested Carlson, Agent Moule and another FBI agent interviewed Carlson at the Coleraine Police Department. (Id. at 38:6-39:15.) Before the interview began, Carlson signed an Advice of Rights form, acknowledging that he understood and waived ...


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