United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
REBECCA BEACH SMITH CHIEF JUDGE
matter comes before the court on the Defendant's Third
Motion to Suppress ("Motion") . ECF No. 45. In his
Motion, the Defendant seeks to suppress "all evidence
seized from [the Defendant's] home computer by the FBI on
or about February 28, 2015 through the use of a network
investigative technique ("NIT"), as well as all
fruits of that search." Mot. at 1. Neither the Defendant
nor the government has requested a hearing. This matter is
ripe for decision. For the reasons stated herein, the Motion
Defendant was charged following an investigation into a
website called "Playpen, " which the government
asserts operated as a child pornography site. First Mot. to
Suppress, ECF No. 14, at 4. The Playpen website was unusual
in that it operated on what is known as the "Tor"
network. See id. The Tor network enables its users
to conceal their Internet Protocol ("IP")
addresses, after they download the Tor browser from the Tor
website. See id. The government, however, can still
recover identifying information, despite Tor network use, by
way of the NIT. Resp. to First Mot. to Suppress, ECF No. 19,
February 19, 2015, the Federal Bureau of Investigation
("FBI") arrested the then-operator of Playpen,
gained control of the Playpen website, and thereafter
operated it on a server in Virginia. Macfarlane Aff., ECF No.
14-2, ¶ 30. On February 20, 2015, the government
obtained a warrant ("NIT Warrant") enabling it to
use the NIT to investigate Playpen users. NIT Search Warrant
and Application, ECF 19-9. Although the NIT warrant
authorized the NIT to be deployed as soon as a user logged
into Playpen, here, the NIT was not deployed until a posting
thread in the "kinky fetish-zoo subforum" was
accessed. Resp. to Mot. to Compel, ECF No. 21, at 18.
of coding that the government had integrated into the Playpen
website, the NIT was deployed on or about February 28, 2015,
to the Defendant's computer. See Resp., ECF No.
49, at 1-2. This code instructed the computer to send
identifying information to a different, government-controlled
computer. This identifying information was the only
information the government obtained under the NIT Warrant.
After deploying the NIT, the FBI was able to identify an IP
address associated with a particular Playpen username
("slutwhore"). Resp. to First Mot. to Suppress at
7. On March 10, 2015, Cox Communications was served with a
subpoena ("Cox subpoena") seeking subscriber
information associated with the IP address obtained through
the February 28, 2015 NIT deployment. ECF 45-6 at 1, 4. It
was pursuant to this subpoena that the government became
aware of the Defendant's name and address.
December 1, 2015, the government obtained a residential
search warrant ("Residential Warrant") for the
Defendant's home. Resp. to First Mot. to Suppress at 7-8.
The Residential Warrant was executed on December 8, 2015,
while the Defendant was home. Id. at 8. The
Defendant acknowledged to agents that he viewed child
pornography and that "slutwhore" was his username.
See id. Child pornography was found on electronic
devices owned by the Defendant during the execution of the
Residential Warrant. Id. According to the Search
Warrant Execution Log dated December 8, 2015, a copy of a
warrant was provided to the Defendant at the FBI office in
Chesapeake, Virginia. ECF No. 45-7 at 1. According to the
Defendant, the warrant he received at that time was the
Residential Warrant. Mot. at 3.
government sought multiple extensions in order to
delay-service of the NIT Warrant under 18 U.S.C. §
3103a(b). Id. at 3. The extension most recently
sought by the government expired on March 21, 2016.
Id. The NIT Warrant was provided to the Defendant
through defense counsel after defense counsel "received
it as part of a second discovery production made by the
government in response to a specific request" on July
21, 2016. IcL at 4.
22, 2016, a federal grand jury returned an indictment, which
charged McLamb with four counts of receipt of child
pornography, in violation of 18 U.S.C. § 2252(a)(2), and
one count of possession of child pornography, in violation of
18 U.S.C. § 2252(a)(4). ECF No. 1. The court set a
preliminary motions deadline of July 29, 2016. ECF No. 10.
The parties' agreed discovery order was filed on July 1,
2016. ECF No. 11. The Defendant filed the First and Second
Motions to Suppress and the Motion to Compel Discovery, on
July 29, 2016. ECF Nos. 14, 15, 16. These motions were denied
on November 28, 2016. ECF No. 41. After the Defendant's
Motion for Leave to File a Late Motion to Suppress was
granted, the Defendant filed a Third Motion to Suppress on
December 19, 2016. ECF No. 45. The government filed a
Response in Opposition on January 3, 2017. ECF No. 49. The
Defendant did not file a reply.
moving party has the burden to prove that suppression is
proper." United States v. Simons, 107 F.Supp.2d
703, 705 (E.D. Va. 2000) (citing United States v.
Chaar, 137 F.3d 359, 363 (6th Cir. 1998)), aff
'd, 5 F.App'x 332 (4th Cir. 2001). Federal Rule
of Criminal Procedure 41(f)(1)(C) requires the executing
officer to give a copy of the warrant and a receipt for any
property taken to the person from whom, or from whose
premises, it was taken. Rule 41(f)(2)(C), which applies to
warrants for tracking devices, requires "the officer
executing a tracking-device warrant" to serve "a
copy of the warrant on the person . . . whose property was
tracked." However, if the government so requests,
"a magistrate judge . . . may delay any notice required
by [Rule 41] if the delay is authorized by statute."
Fed. R. Crim. P. 41(f)(3). Rule 41 also allows defendants to
move for suppression, "as Rule 12 provides." Fed.
R. Crim. P. 41(h).
violations of Rule 41 merit suppression, only if there is
prejudice or evidence of intentional or deliberate disregard
for proper procedure. United States v. Simons, 206
F.3d 392, 403 (4th Cir. 2000) . Failure to leave a correct
copy of a search warrant at the premises searched does not
violate the Fourth Amendment. United States v.
Hanton, 189 F.App'x 247, 250 n.3 (4th Cir. 2006).
However, failure to give the defendant a copy of the warrant
at the proper time does violate Rule 41. See United
States v. Riesselman, 646 F.3d 1072, 1078 (8th Cir.
2011), cert, denied, 132 S.Ct. 1065 (2012). Whether
a Rule 41 violation was intentional or deliberate is a
factual matter. See id. Importantly, mere negligence
is not enough to merit suppression for a violation of the
notice provisions of Rule 41. See United States v.
Simons, 5 F.App'x 332, 332 (4th Cir. 2001).