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United States v. Workman

United States Court of Appeals, Tenth Circuit

July 21, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellant,

         Appeal from the United States District Court for the District of Colorado (D.C. No. l:15-CR-00397-RBJ-l)

          John P. Taddei, Attorney (Robert C. Troyer, Acting United States Attorney, Robert M. Russel, Assistant United States Attorney, Leslie R. Caldwell, Assistant Attorney General, and Sung-Hee Suh, Deputy Assistant Attorney General, with him on the briefs), Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellant.

          Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the brief), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellee.

          Mark Rumold and Andrew Crocker, Electronic Frontier Foundation, San Francisco, California, filed a brief for Amicus Curiae Electronic Frontier Foundation.

          Before LUCERO, BACHARACH, and PHILLIPS, Circuit Judges.

          BACHARACH, Circuit Judge.

         The advent of the internet created new opportunities for viewers of child pornography, allowing immediate access to illicit websites. Use of these sites frequently leaves a computerized trail, allowing the FBI to find viewers of child pornography. But technological advances have allowed viewers of child pornography to access illicit websites without leaving a trail. To monitor access to one such website, the FBI has tried to keep up; in this case, the FBI seized and assumed control, using malware to identify and find the individuals accessing child pornography.

         Though the FBI controlled the website, users lived throughout the nation. To find the users, the FBI needed a warrant. But, a paradox existed. The FBI maintained the website in the Eastern District of Virginia, but users were spread out all over the country. Finding those users could prove difficult because of geographic constraints on the FBI's ability to obtain a warrant. Notwithstanding these constraints, the FBI obtained a warrant that led to the discovery of hundreds of viewers of child pornography. One was the defendant, who faced prosecution in the District of Colorado.

         In this prosecution, the district court held that the warrant was invalid and suppressed evidence resulting from the search. We reverse this ruling. Even when a search warrant is invalid, the resulting evidence should not be suppressed if the executing agents could reasonably rely on the warrant. Here, we may assume for the sake of argument that the warrant was invalid. But in our view, the executing agents acted in an objectively reasonable manner. Thus, the evidence should not have been suppressed.

         I. The FBI finds Mr. Workman by seizing the website.

         The website was named "Playpen, " and it contained thousands of images and videos of child pornography. Unlike many websites, Playpen made it difficult to detect its users.

         Detection is often possible from communication of a user's Internet Protocol address when accessing a website. But such communication did not take place with Playpen. To access this website, a user had to employ software that routed the connections through third-party computers called "nodes." With connections routed through a series of nodes, users could access Playpen without communicating their Internet Protocol addresses.

         But the FBI set out to find the users who were viewing child pornography on Playpen. The FBI carried out this effort by

. seizing the internet server that hosted Playpen,
. loading the contents onto a government server in the Eastern District of Virginia,
. arresting the administrator of Playpen, and
. hosting Playpen from the government's server.

Even with these steps, the FBI remained unable to identify and locate the individuals accessing Playpen.

         To find these individuals, the FBI obtained a warrant from a magistrate judge in the Eastern District of Virginia. This warrant allowed the FBI to install software onto the Playpen server. When Playpen was accessed, the software would automatically install malware onto the user's computer. This malware would search the user's computer for identifying information, such as the Internet Protocol address, and transmit this information to the FBI.

         The FBI executed the warrant by installing this software on the government's Playpen server in the Eastern District of Virginia. With this software, the FBI learned that Playpen was being accessed by someone in Colorado. With this user's Internet Protocol address, the FBI identified the user as Andrew Joseph Workman and obtained a search warrant in the District of Colorado to search Mr. Workman's computer.

         (IMAGE OMITTED)

         Executing the warrant, FBI agents found Mr. Workman at home in the act of downloading child pornography onto his computer. He confessed and was indicted for receiving and possessing child pornography. See 18 U.S.C. § 2252A(a)(2), (a)(5)(B).

         II. Mr. Workman successfully obtains suppression of his confession and the evidence found on his computer.

         Mr. Workman moved to suppress the evidence consisting of his confession and the child pornography found on his computer. For this motion, Mr. Workman challenged the validity of the warrant issued by the magistrate judge in the Eastern District of Virginia. Mr. Workman did not question the existence of probable cause; instead, he argued that the warrant had been inadequately particularized and that the magistrate judge had lacked territorial ...

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