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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
Plaintiff,

4:15CR3134

vs.

FINDINGS, RECOMMENDATION
AND ORDER

DOMINIC C. DZWONCZYK,
Defendant.

This matter is before the court on Defendant Dominic C. Dzwonczyk’s Motion to
Suppress evidence (Filing No. 37). For the reasons set forth below, the motion should be
denied.
BACKGROUND
This case is one of many originating from a search warrant issued in the Eastern
District of Virginia, each such case consisting of a similar fact pattern. In January of
2015, the Federal Bureau of Investigation (“FBI”) received a warrant to seize a computer
server.

The server supported a website called “Playpen” which contained child

pornography (referred throughout law enforcement affidavits as the “Target Website”).
The Playpen website was operated on The Onion Router (“Tor network”). The Tor
network is accessed only through Tor software available as “an add-on to the user’s web
browser

or

by

downloading

the

free

‘Tor:

browser

bundle’

available

at

www.torproject.org.” (Filing No. 40 at CM/ECF p. 16).
Websites on the Tor network typically cannot be accessed through traditional
internet search means – e.g., the Playpen website could not be found through a traditional
search engine like Google or Yahoo. As explained in the warrant application, a user must:
a) have access to the Tor network, and b) know the Tor Network address for Playpen.

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Even after connecting the TOR network, however, a user must know the
web address of the website in order to access the site. Moreover, TOR
“hidden services” are not indexed like websites on the traditional internet.
Accordingly, unlike the traditional internet, a user may not simply perform
a Google search for the name of one of the websites on TOR to obtain and
click on a link to the site. A user might obtain the web address directly from
communicating with other users of the board, or from internet postings
describing the sort of content available on the website, as well as the
websites location. For example, there is a TOR “hidden service” page that
is dedicated to pedophilia and child pornography. That “hidden service”
contains a section with links to TOR “hidden services” that contain child
pornography. The [Playpen] website is listed in that section.
(Filing No. 40 at CM/ECF p. 17, ¶10).
“The

Tor

software

protects

users’

privacy

online

by

bouncing

their

communications around a distributed network or relay computers run by volunteers all
around the world, thereby masking the user’s actual IP address1 which could otherwise be
used to identify a user.” (Filing No. 40 at CM/ECF p. 16, ¶ 8). These relay computers are
known as “nodes.” “An exit node is the last computer through which a user’s
communications were routed.” (Filing No. 39 at CM/ECF p. 16, ¶ 8). “When a user on
the Tor network accesses a website . . . the IP address of a Tor ‘exit node,’ rather than the
user’s actual IP address, shows up in the website’s IP log.” Id.
The server seized in January of 2015 was moved to a Government facility in
Newington, Virginia. The FBI then took administrative control over the server. Once the
seized server was under FBI control, the FBI sought and received a warrant in the Eastern
District of Virginia to deploy a Network Investigative Technique (“NIT”) – a method
1

An IP address or Internet Protocol Address “refers to a unique number used by a
computer to access the Internet. IP addresses can be “dynamic,” meaning that the Internet
Service Provider ( “‘ISP’”) assigns a different unique number to a computer every time it
accesses the Internet, IP addresses might also be “Static,” if an ISP assigns user's
computer a particular IP address which is used each time the computer accesses the
Internet. IP addresses are also used by computer servers, including web servers, to
communicate with other computers.” Filing No. 40 at CM/ECF pp. 13-14, ¶5(m).
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used to force a computer to send its actual IP address to the website in question. As
described in the warrant application:
In the normal course of operation, websites send content to visitors. A
user’s computer downloads that content and uses it to display webpages on
the user’s computer. Under the NIT authorized by this warrant, the
[Playpen website], which will be located in Newington, Virginia, in the
Eastern District of Virginia, would augment that content with additional
computer instructions. When a user’s computer successfully downloads
those instructions from the [Playpen website], located in the Eastern
District of Virginia, the instructions, which comprise the NIT, are designed
to cause the user’s “activating” computer to transmit certain information to
a computer controlled by or known to the government. That information is
described with particularity on the warrant (in attachment B of this
affidavit), and the warrant authorizes obtaining no other information. The
NIT will not deny the user of the “activating” computer access to any data
or functionality of the user’s computer.
(Filing No. 40 at CM/ECF p. 29, ¶33).
The NIT allows law enforcement to gather information about users contacting the
Playpen website.

All of this information can assist the FBI with identifying the actual

user of the website, thereby circumventing the masking effect of the Tor Network.
The warrant application submitted to Magistrate Judge Theresa Carroll Buchanan
in the Eastern District of Virginia sought authorization for the NIT to “cause an activating
computer – wherever located – to send to a computer controlled by or known to the
government network level messages containing information that may assist in identifying
the computer, its location, other information about the computer and the user of the
computer . . . .” (Filing No. 40 at CM/ECF pp. 34-35, ¶ 46(a)). The “other” information
included the computer’s actual IP address, active operating system username, and the
computer’s Media Access Control (“MAC”) address. The Magistrate Judge found
probable cause and signed the warrant.

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During the government’s control and administration of the Playpen website, a user
with the username “RebeckaBecka” accessed the Playpen website and was accessing
images of child pornography. Though the use of the NIT, the FBI determined IP address
68.226.50.32 was assigned to “RebeckaBecka.”

Further investigation determined the IP

address used by “RebeckaBecka” was assigned to Cox Communications, an internet
service provider serving Bellevue, Nebraska. Law enforcement ascertained through Cox
Communications that the IP address was assigned to defendant Dominic C. Dzwonczyk
at a residence in Bellevue, Nebraska. Law enforcement requested and received a warrant
in Nebraska (the “Nebraska Warrant”)

to search Dzwonczyk’s residence. During

execution of the Nebraska Warrant, law enforcement officers found evidence of child
pornography on the computers located in Defendant’s residence.
Dzwonczyk has moved to suppress all evidence obtained from the search of his
residence and the computers therein. He asserts: 1) the warrant from the Eastern District
of Virginia (the “Virginia Warrant”) was issued in violation of Fed. R. Crim. P. 41 and 28
U.S.C. § 636(a) because a Magistrate Judge does not have the power to issue a warrant to
authorize the search of computers outside her district; 2) since information improperly
seized through the invalid Virginia Warrant provides the probable cause basis for the
Nebraska Warrant, the evidence found during the search of Defendant’s Nebraska
residence must be suppressed; and 3) the Virginia Warrant was void at the outset, so the
Leon good faith exception is inapplicable.

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ANALYSIS
Several district courts have ruled on similar motions to suppress evidence
discovered in connection with the Virginia Warrant. See, e.g., United States v. Jean, case
no. 5:15cr50087, 2016 WL 4771096 (W.D. Ark, Sept. 13, 2016); United States v.
Henderson; case no. 15cr0565, 2016 WL 4549108 (N.D. Cal. September 1, 2016); United
States v. Ammons, case no. 3:16cr00011, 2016 WL 4926438 (W.D. Ken. September 14,
2016); United States v. Levin, --- F. Supp. 3d ---, 2016 WL 2596010 (D. Mass. May 5,
2016); United States v. Weredene, --- F. Supp. 3d. ---, 2016 WL 3002376 (E.D. Penn.
May 18, 2016); United States v. Matish, --- F. Supp. 3d ---, 2016 WL 3545776 (E.D. Vir.
June 23, 2016); United States v. Darby, --- F. Supp. 3d ---, 2016 WL 3189703 (E.D. Vir.
June 3, 2016); United States v. Michaud, case no. 3:15cr5351, 2016 WL 337263 (W.D.
Wash. Jan. 28, 2016). Although, the courts have employed different reasoning, the vast
majority have held suppression of the evidence gained through the Virginia Warrant and
various other local warrants was not appropriate.
Defendant’s motion requests suppression for violation of his Fourth Amendment
rights. As such, the threshold question is whether Defendant has a reasonable expectation
of privacy in the location searched and/or the evidence obtained through execution of the
Virginia Warrant. If Defendant can assert a privacy interest society is willing to
recognize, then the court must decide whether using a NIT from a Virginia server to
obtain an IP address from a Nebraska computer was a search beyond the borders of
Virginia such that a warrant authorizing this activity was beyond the statutory and rule
authority of the Virginia magistrate judge. Finally, even assuming Defendant has a
privacy interest in his IP address and, as applied to computers outside Virginia, the
Virginia magistrate judge exceeded her territorial authority when she issued the Virginia
Warrant, the court must determine whether officers acted reasonably when they relied on

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the Virginia and Nebraska warrants; that is, whether Defendant’s motion must be denied
under the Leon good faith exception.
1.

Defendant’s “Reasonable Expectation of Privacy” in the Property Searched.

The Fourth Amendment provides, in part, that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend. IV.

“It is clear that a physical

intrusion or trespass by a government official constitutes a search within the meaning of
the Fourth Amendment.” United States v. De L'Isle, 825 F.3d 426, 431 (8th Cir.
2016)(citing United States v. Jones, --- U.S. ---, 132 S.Ct. 945, 949, 181 L.Ed.2d 911
(2012)). But “[a] search is reasonable if the officer has a valid search warrant or if the
search fits within a specific warrant exception.” Id.
For a “search” to occur within the meaning of the Fourth Amendment, an
individual must have a “reasonable expectation of privacy” in the place or thing subjected
to search. United States v. Jones, --- U.S. ---, 132 S.Ct. 945, 950, 181 L.Ed.2d 911
(2012). “For this type of violation, the claimant must show both “an actual (subjective)
expectation of privacy, and ... that the expectation [is] one that society is prepared to
recognize as ‘reasonable.’” DE L'Isle, 825 F.3d at 431 (internal quotations omitted). If a
law enforcement official’s search does not offend a person’s reasonable expectation of
privacy, the Fourth Amendment is not implicated. Id.
The Eighth Circuit held that a person has no reasonable expectation of privacy in
internet subscriber data, “including his IP address and name from third-party service
providers.” United States v. Wheelock, 772 F.3d 825, 828-29 (8th Cir. 2014)(internal
citations omitted); see United States v. Laurita, case no. 8:13cr107, 2016 WL 4179365
(D. Neb. August 5, 2016)(Hon. Joseph F. Bataillon)(“Generally, one has no reasonable
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expectation of privacy in an IP address when using the internet”)(citing United States v.
Forrester, 512 F.3d 500, 509-11(9th Cir. 1999)). The lack of an expectation of privacy
exists because an individual necessarily shares the IP address assigned to his computer to
and from third parties, such as an Internet Service Provider (“ISP”). “A person has no
legitimate expectation of privacy in information he voluntarily turns over to third
parties.” United States v. Miller, 425 U.S. 435, 442-44 (1976); see also United States v.
Christie, 624 F.3d 558, 574 (3d Cir. 2010) (a person has “no reasonable expectation of
privacy in his IP address” because the information is conveyed to and from third parties).
If the sole question was whether a Defendant has a reasonable expectation of
privacy in his IP Address, applying Eighth Circuit law, the answer would simply be
“No.” But under the facts of this case, the issue is complicated by Defendant’s use of the
Tor Network to hide his IP address. And unlike the facts in the Eighth Circuit’s holding
in Wheelock, Defendant’s IP address was obtained using a NIT which prompted
Defendant’s computer to reveal the actual IP address, and not through a subpoena served
on a third-party internet service provider. Wheelock, 772 F.3d at 828-29 (finding the
government’s acquisition of the defendant’s IP address through a third-party subpoena to
an internet service provider did not violate the defendant’s Fourth Amendment rights).
Thus, the court must consider “whether the Tor user’s expectation of privacy in his IP
address may be stronger, or more legitimate, than that of an internet user who has taken
no steps to conceal his IP address.” Jean, 2016 WL 4771096 at *9.
As explained above, the Tor Network conceals a user’s IP address prior to
connecting with the end website. The main purpose of the Tor Network is for a user to
avoid being identified. But even when using the Tor Network, an individual’s IP address
is disclosed to the first “node” in the Tor Network before being bounced to subsequent
“nodes.” “Using the Tor network does not strip users of all anonymity, because users
accessing [Playpen] must still send and receive information, including IP addresses,
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through another computer . . . at a specific location.” Michaud, 2016 WL 337263 at *7.
“[A] necessary aspect of Tor is the initial transmission of a user’s IP address to a thirdparty.”

Werdene, --- F. Supp. 3d at ---, 2016 WL 3002376 at *8. “[I]n order for a

prospective user to use the Tor network they must disclose information, including their IP
addresses, to unknown individuals running Tor nodes, so that communications can be
directed toward their destinations.” United States v. Farrell, 2016 WL 705197 at *2
(W.D. Wash. Feb. 23, 2016). The Tor project itself warns users: “Tor cannot solve all
anonymity problems. It focuses only on protecting the transport of data. You need to use
protocol-specific support software if you don’t want sites you visit to see your identifying
information.”
See

https://www.torproject.org/about/overview.html.en#stayinganonymous,

last

visited

September 23, 2016.
With or without Tor, Defendant was sharing his IP address with others—total
strangers, to potentially include law enforcement officers—with the hope and belief that
the users of the first “node” computer would keep his IP address secret. While
Defendant’s choice to use Tor may be evidence of his “actual, (subjective) expectation of
privacy” in his IP address, using Tor does not elevate that expectation to “one that society
is prepared to recognize as ‘reasonable.’” DE L'Isle, 825 F.3d at 431. Under the facts
presented, like other courts, this court finds a user of the Tor network does not have a
reasonable expectation of privacy in his IP address. See Werdene, --- F. Supp. 3d at ---,
2016 WL 3002376 at *9 ([Defendant] was aware that his IP address had been conveyed
to a third party and he accordingly lost any subjective expectation of privacy in that
information”); Michaud, 2016 WL 337263 at *7 (“Even though it was difficult for the
Government to secure that information tying the IP address to [Defendant], the IP address
was public information, like an unlisted telephone number, and eventually could have
been discovered”). See also Jean, 2016 WL 4771096 at *7-10 (holding a search warrant
to retrieve Defendant’s IP address was unnecessary); Matish, --- F. Supp. 3d ---, 2016
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WL 354776 at *22-24 (same); United States v. Acevedo-Lemus, case no. SACR 1500137, 2016 WL 4208436 (C.D. Cal. August 8, 2008) (same).
The court must also decide whether a search occurred when the government
deployed a NIT from the Target Server when contacted by Defendant’s computer. While
Defendant has no reasonable expectation of privacy in his IP address, he does have a
privacy interest in his home and its contents.

And absent exigent circumstances, law

enforcement could not lawfully conduct a warrantless search of Defendant’s home
computer to obtain Defendant IP address.
But deploying the NIT to reveal the IP address was not a computer search.
Defendant’s IP address is not a “physical component” of the computer or a file residing
on his computer like electronic documents or pictures. See Acevedo-Lemus, 2016 WL
4208436 at *5; Jean, 2016 WL 4771096 at *5. Rather, the IP address is assigned to a user
by the ISP and typically is “maintained on the internet modem that connects an internet
device to the internet.” Jean, 2016 WL 4771096 at *5. Thus, the NIT essentially
compelled Defendant’s computer to produce its IP address (similar to a return address on
an envelope) when the NIT instructed the computer to send other information identified
in the Virginia Warrant. See Jean, 2016 WL 4208436 at *5. And the NIT was deployed
only after Defendant sought out and visited the Playpen website. “The FBI did not come
looking for Defendant. Instead it waited until he came to them and engaged in illicit
activity by downloading content from Playpen.” Acevedo-Lemus, 2016 WL 4208436 at
*5. See also Matish, --- F. Supp. 3d ---, 2016 WL 3545776 at *22-24 (holding that with
the prevalence of computer hacking and the “compromise of unprecedented amounts of
data previously thought to be private,” all individuals have a diminished expectation of
privacy once they log onto the internet.)

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This magistrate judge finds the government’s act of deploying the NIT from the
Target Server was not an authorized search of a home computer for the purposes of
Fourth Amendment analysis, and it did not reveal information for which Defendant had a
reasonable expectation of privacy. For these reasons alone, Defendant’s motion to
suppress should be denied.
2.

Rule 41(b): Validity of the Virginia Warrant.

Assuming using a NIT from a Virginia server to obtain an IP address from a
Nebraska computer was a search, the court must consider whether the Virginia warrant
was valid.

Defendant argues the Virginia Magistrate Judge exceeded the authority

granted by statute and Rule 41 of the Federal Criminal Rules when she signed a warrant
allowing officers to search computers outside the Eastern District of Virginia. Defendant
argues that since the Virginia Warrant was void, the Nebraska Warrant, which relied on
information obtained through the Virginia Warrant, is likewise void.
Rule 41(b) provides:
At the request of a federal law enforcement officer or an attorney for
the government:
(1)
a magistrate judge with authority in the district -- or if none is
reasonably available, a judge of a state court of record in the district -- has
authority to issue a warrant to search for and seize a person or property
located within the district;
(2)
a magistrate judge with authority in the district has authority to issue
a warrant for a person or property outside the district if the person or
property is located within the district when the warrant is issued but might
move or be moved outside the district before the warrant is executed;
(3)
a magistrate judge--in an investigation of domestic terrorism or
international terrorism--with authority in any district in which activities
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related to the terrorism may have occurred has authority to issue a warrant
for a person or property within or outside that district;
(4)
a magistrate judge with authority in the district has authority to issue
a warrant to install within the district a tracking device; the warrant may
authorize use of the device to track the movement of a person or property
located within the district, outside the district, or both; and
(5)
a magistrate judge having authority in any district where activities
related to the crime may have occurred, or in the District of Columbia, may
issue a warrant for property that is located outside the jurisdiction of any
state or district, but within any of the following:
(A)

a United States territory, possession, or commonwealth;

(B)
the premises--no matter who owns them--of a United States
diplomatic or consular mission in a foreign state, including any
appurtenant building, part of a building, or land used for the
mission's purposes; or
(C) a residence and any appurtenant land owned or leased by the
United States and used by United States personnel assigned to a
United States diplomatic or consular mission in a foreign state.
Fed.Crim.R. 41(b).
Defendant asserts the plain language of Rule 41 does not authorize a United States
Magistrate Judge to issue a warrant to search property outside of her assigned district.
Moreover, he argues subpart (4) does not apply because even if the NIT is a “tracking
device,” it was not installed in the magistrate judge’s assigned district. The Government’s
argues the NIT is a “tracking device” and the magistrate judge’s warrant was properly
issued pursuant to Rule 41(b)(4).
Defendant relies heavily on Levin, --- F. Supp. 3d ---, 2016 WL 2596010 at *5-6.
In Levin, the court determined the Virginia Warrant was not issued for searching or
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seizing property only within the Eastern District of Virginia. The warrant was used to
“obtain information” from various “activating computers” wherever located, including
outside the district where the issuing Magistrate Judge was located. Levin determined the
NIT technology was not akin to a tracking device. See also United States v. Croghan, --F. Supp. 3d. ---, 2016 WL 4992105 (S.D. Iowa September 19, 2016); United States v.
Henderson, case no. 15cr565, 2016 WL 4549108 (N.D. Cal. Sept. 1, 2016). Other courts
have determined that even if it was a tracking device, the requirement of Rule 41(b)(4)
was not fulfilled. That is, because the object of the search is a computer out of the district
and that computer was never “physically located within the Eastern District of Virginia,
law enforcement officers could not attach a tracking device to it while it was in the
Eastern District of Virginia. See Mirchaud, 2016 WL 337263 at *6.
In contrast, other courts have found Magistrate Judge Buchanan was authorized by
Rule 41(b)(4) to sign the Virginia Warrant. Darby, --- F. Supp. 3d ---, 2016 WL 3189703
at *12; Jean, 2016 WL 4771096 at *15-16; Matish, --- F. Supp. 3d ---, 2016 WL 3545776
at *17; see also United States v. Laurita, case no. 8:13cr107, 2016 WL 4179365 (D. Neb.
August 5, 2016)(analogizing NIT to a pen register). Relying on the definitions set forth in
Fed. R. Crim. P. 4, these courts have held the NIT operates as a “tracking device” for the
purposes of Rule 41(b)(4), with installation of the tracking device occurring in the
Eastern District of Virginia when a Defendant’s computer contacts the Target Server
located in Virginia.
Rule 41 defines a “tracking device” as any “electronic or mechanical device which
permits the tracking of the movement of a person or object.” Fed. R. Crim. P.
41(a)(2)(E)(cross-referencing 18 U.S.C. § 3117(b). Rule 41(b)(4) expressly authorizes
the tracking of “property” “which is specifically defined to include the tracking of mere
intangible ‘information.’” Jean, 2016 WL 4771096 at *16 (citing Fed. R. Crim. P.
41(a)(2)(A)). As explained in Jean:
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Here, the government was essentially seeking authority to conduct a sting
operation, whereby it would re-launch the Playpen website from its own
server in Virginia, after which the FBI would then monitor the flow of
electronic information as Playpen users accessed the website for allegedly
unlawful purposes. Upon entering this “watering hole,” a user—while still
immersed—would become infected with the malware as it was deployed to
the user's computer incident to the process of downloading child
pornography.
Jean, 2016 WL 4771096 at *16.

And consistent with the purpose of a tracking device,

the NIT provides information which assists the FBI in locating those computers accessing
the government-controlled Playpen website.
Defendant argues Defendant and his computer were never physically present in
Virginia; that the NIT was “installed” in Nebraska—beyond the territorial limits of the
Virginia magistrate judge’s authority. But the FBI agents were also never physically
present in Nebraska to “install” a tracking device. As with many technology based law
enforcement measures, the NIT does not fit traditional notions of how tracking devices
are installed or attached because “[i]nternet crime and surveillance defy traditional
notions of place.” Jean, 2016 WL 4771096 at *15.
Like Jean, I find that by logging into the Playpen website hosted on the Target
Server in Virginia, Defendant’s computer made a “virtual trip” to the Eastern District of
Virginia. As explained in the Virginia Warrant application, once Defendant’s computer
contacted the Playpen website, that website sent information back to Defendant’s
computer which, in turn, installed the NIT on Defendant’s computer.
transmitted location information (the IP
computer to the FBI.

The NIT then

address) being accessed by Defendant’s

Thus, even assuming the government’s use of a NIT impacted

Defendant’s reasonable expectation of privacy sufficient to raise a Fourth Amendment
claim, the officers acted pursuant to a warrant issued by a magistrate judge acting within
the territorial boundaries of her authority under Fed. R. Crim. P. 41(b)(4).

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Even assuming the Virginia magistrate judge acted beyond her authority under
Rule 41(b), any such violation was not sufficiently fundamental to justify suppressing the
evidence found.
The Court's first step in this analysis is to determine whether the violation
of Rule 41(b)—assuming such occurred—was either “fundamental” and
rendered the search unconstitutional under traditional Fourth Amendment
standards, or “non-fundamental.” United States v. Freeman, 897 F.2d 346,
350 (8th Cir. 1990). A fundamental violation would require automatic
suppression of the evidence, whereas a non-fundamental violation, where
no constitutional error occurred, would not trigger automatic suppression.
Id. A non-fundamental violation would only justify suppression where there
was prejudice to the defendant, “in the sense that the search might not have
occurred or would not have been so abrasive if the Rule had been
followed,” or if the defendant were able to show that law enforcement
and/or the magistrate judge demonstrated an “intentional and deliberate
disregard of a provision in the Rule. Id.
Jean, 2016 WL 4771096, at *17.
In his reply brief, Defendant argues (for the first time) that the Virginia magistrate
judge’s violation of Rule 41 was not merely “procedural.” But he does not explain how
that alleged violation rose to a constitutional level. “[A] violation is ‘fundamental’ only
where it, in effect, renders the search unconstitutional under traditional fourth amendment
standards.” Freeman, 897 F.2d at 346.

“The Fourth Amendment imposes three

requirements: (1) a search warrant must be issued by a neutral magistrate; (2) it must be
based on a showing of probable cause, and (3) it must satisfy the particularity
requirement. United States v. Ryan Anthony Adams, case no. 6:16cr11, 2016 WL
4212079, at *7 (M.D. Fla. Aug. 10, 2016)(citing Dalia v. United States, 441 U.S. 238,
255 (1979)); see also Bowling v. Rector, 584 F.3d 956, 967-68 (10th Cir. 2009).
“A warrant is supported by probable cause from the viewpoint of a reasonably
prudent police officer acting in the circumstances of a particular case.” United States v.
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Reinholz, 245 F.3d 765, 776 (8th Cir. 2001). “The determination of whether or not
probable cause exists to issue a search warrant is to be based upon a common-sense
reading of the entire affidavit.” United States v. Seidel, 677 F.3d 334, 338 (8th Cir.
2012)(internal quotations omitted). “To satisfy the particularity requirement of the fourth
amendment, the warrant must be sufficiently definite to enable the searching officers to
identify the property authorized to be seized.” United States v. Horn, 187 F.3d 781, 788
(8th Cir. 1999).
Defendant does not challenge the Virginia magistrate judge’s neutrality in
reviewing and signing the Virginia Warrant. And the Virginia Warrant was supported by
sufficient

probable

Amendment.

cause

and

met

the

particularity requirements of the Fourth

The law enforcement officers provided Magistrate Judge Buchanan with

more than enough information about the content of the Playpen website for her to make a
finding there was a “fair probability that evidence of a crime would be found” if the NIT
was deployed. Likewise, the particularity requirement was met:

The Virginia warrant

clearly states officers were allowed to obtain the IP addresses of individuals visiting the
Playpen website for the purpose of viewing and/or distributing child pornography.
Accordingly, even assuming the NIT is not a tracking device, the Virginia magistrate
judge did not commit a “fundamental” violation of Rule 41 by signing the Virginia
warrant. See, e.g., Darby, --- F. Supp. 3d at ---, 2016 WL 3189703 at * 8 (the affidavit
provided probable cause for the warrant); Jean, 2016 WL 4771096 at *10-12 (finding the
Virginia warrant met the probable cause and particularity requirements of the Fourth
Amendment); Werdene, --- F. Supp. 3d at ---, 2016 WL 3002376 at *7-10 (Virginia
warrant met Fourth Amendment requirements); Matish, --- F. Supp. 3d at ---, 2016 WL
3545776 at *9-10 (Virginia warrant was supported by probable cause); Michaud, 2016
WL 337263 at *3-4 (finding the Virginia warrant met the particularity requirement).

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3.

Any non-fundamental violation did not prejudice Defendant.

Defendant argues even if the violation of Rule 41 was not fundamental, the
evidence should be suppressed because he was prejudiced by the search. Filing No. 30 at
CM/ECF p. 9. Non-fundamental violations require suppression only if: 1) the search
would not have occurred but for the violation of Rule 41, or 2) the investigators
“recklessly disregarded proper procedure.” United States v. Welch, 811 F.3d 275, 280-81
(8th Cir. 2016).
The search could have commenced even if the magistrate judge had determined
Rule 41(b) prevented her from issuing the warrant. Levin, --- F. Supp. 3d at ---, 2016
WL 2596010 at *14; Jean, 2016 WL 4771096 at *18 (“both parties appear to agree . . .
that an Article III judge in the Eastern District of Virginia could have authorized this
particular search warrant.”) “Section 636(a) and Rule 41(b) limit the territorial scope of
magistrate judges – they say nothing about the authority of district judges to issue
warrants to search property located outside their judicial district.” Levin, --- F. Supp. 3d
at ---, 2016 WL 2596010 at *14 (emphasis in original). Thus, had the FBI interpreted
Rule 41 as prohibiting a Virginia magistrate judge from issuing the Virginia warrant, it
could have presented the application to a district judge in the Eastern District of Virginia.
Defendant’s IP address would have still been revealed and the Nebraska warrant would
still have been supported by probable cause.
I therefore find that assuming Defendant shows the initial requirement of standing
to challenge the Virginia warrant, that magistrate judge who signed the warrant did not
exceed the bounds of her jurisdictional authority under Rule 41(b), and committed no
fundamental or non-fundamental violation of Rule 41.
execution of the Virginia Warrant should not be suppressed.

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The evidence found upon

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4.

Good Faith Exception

Even assuming a Defendant can and has raised a valid Fourth Amendment
challenge to a warrant, the evidence obtained from executing that warrant will not be
suppressed if the executing officers relied ‘in objective good faith on a search warrant.’ ”
United States v. Hessman, 369 F.3d 1016, 1020 (8th Cir. 2004) (citing Leon, 468 U.S.
897, 922 (1984)). The purpose of suppression is two-fold:
Two inseparable principles have emerged from the Supreme Court cases
and each builds upon the underlying purpose of the exclusionary rule:
deterrence. First, the exclusionary rule seeks to deter objectively
unreasonable police conduct, i.e., conduct which an officer knows or should
know violates the Fourth Amendment. See, e.g., Herring, 129 S.Ct. at 70104; Krull, 480 U.S. at 348-49 . . . . Second, the purpose of the exclusionary
rule is to deter misconduct by law enforcement officers, not other entities,
and even if it was appropriate to consider the deterrent effect of the
exclusionary rule on other institutions, there would be no significant
deterrent effect in excluding evidence based upon the mistakes of those
uninvolved in or attenuated from law enforcement.
United States v. McCane, 573 F.3d 1307, 1044 (10th Cir. 2009).

This good-faith

exception does not apply:
(1)

when the issuing judge is misled by information in the affidavit the
affiant knows or should know is false;

(2)

when the issuing judge completely abandons his or her judicial role;

(3)

when the affidavit includes so little indicia of probable cause that
official belief in its existence is entirely unreasonable; and

(4)

when the warrant is so facially deficient that the executing officer
cannot reasonably presume it to be valid.

Hessman, 369 F.3d at 1020 (citing Leon, 468 U.S. at 923, 104 S.Ct. 3405; LaMorie, 100
F.3d at 555).

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Defendant argues the Leon exception is inapplicable to the Virginia Warrant
because the agents should have known that the warrant was facially void:

“The

Government could not have acted in good faith when it was clearly aware that there was
no authority to issue a warrant seeking seizure of information outside its territorial
limits.” (Filing No. 38 at CM/ECF p. 10).
In considering whether the good-faith exception applies, the court must consider
the totality of the circumstances, recognizing the judge as “the final reviewing authority .
. . must shoulder the ultimate responsibility” for errors in a warrant application. United
States v. Berry, 113 F.3d 121, 124 (8th Cir. 1997). The Eighth Circuit has held that even
when a facially obvious error exists on a warrant, the Leon good-faith exception may still
apply. Hessman, 369 F.3d at 1021.
There is no evidence that the FBI misled Magistrate Judge Buchanan when
presenting the warrant application. To the contrary, the warrant application clearly states
the Government-controlled Target Server was located in the Eastern District of Virginia
and the NIT would obtain information from computers located outside that district when
those computers accessed the Playpen website. The warrant application accurately
described the facts to Magistrate Judge Buchanan.
And contrary to Defendant’s assertions, there is no evidence Magistrate Judge
Buchanan abandoned her judicial role by acting as a “rubber stamp” or an “adjunct law
enforcement officer” in issuing the warrant. Leon, 468 U.S. at 914. There is no evidence
Judge Buchanan did not read the warrant carefully, nor is the warrant full of boiler plate
language. See United States v. Farlee, 910 F. Supp. 2d 1174, 1187 (D.S.D. 2012). Rather,
the warrant application is replete with very specific information regarding the Playpen
website and its connection with child pornography.

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And while the Defendant argues the Magistrate Judge should have known Rule 41
“clearly” did not provide her with authority to issue the warrant, this court is certainly not
convinced. Some courts have concluded Magistrate Judge Buchanan was authorized to
sign the Virginia warrant:

Other courts disagree.

In and of itself, this divergence in

judicial opinions provides ample evidence that under the facts of this case, there was
nothing “clear” about the magistrate judge’s authority, or lack thereof.
“For the Leon exception to apply when the warrant is based on evidence obtained
through a Fourth Amendment violation, the detectives' prewarrant conduct must have
been ‘close enough to the line of validity to make the officers' belief in the validity of the
warrant objectively reasonable.’” United States v. Cannon, 703 F.3d 407, 413 (8th Cir.
2013) (quoting United States v. Conner, 127 F.3d 663, 667 (8th Cir.1997)).

“The

Supreme Court's line of good-faith cases clearly indicates that the reach of the
exclusionary rule does not extend beyond police conduct to punish the mistakes of others,
be they judicial officers or employees. . . .” McCane, 573 F.3d at 1045 (10th Cir. 2009).
Here, Defendant has provided no evidence indicating the Virginia Warrant lacked
a showing of probable cause or judicial authority such that a reasonable officer would not
have relied upon it in conducting a search.

The warrant application provided the

magistrate judge with copious amounts of information linking the Playpen website to
child pornography; the affiant officers did not conceal the fact that the NIT would deploy
to computers located outside the Eastern District of Virginia; and law enforcement may
reasonably rely upon the interpretation of the law by the magistrate judge issuing the
warrant. Leon’s aim is to deter officer misconduct. Excluding evidence due to a mistake
of law attributable to the court, not the law enforcement officer, would undermine the
purpose of the Leon good faith exception. See McCane, 573 F.3d at 1045.
Accordingly,
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IT IS THEREFORE RECOMMENDED to the Honorable John M. Gerrard,
United States District Judge, pursuant to 28 U.S.C. § 636(b), that the motion to suppress
filed by Dominic C. Dzwonczyk, (Filing No. 37), be denied in all respects.
The parties are notified that failing to file an objection to this recommendation as
provided in the local rules of this court may be held to be a waiver of any right to appeal
the court's adoption of the recommendation.
IT IS ORDERED: A status conference to discuss defendant’s pending motion for
discovery is set for October 12, 2016 at 1:00 p.m.

Counsel for the Government shall

initiate the call.
Dated this 5th day of October, 2016
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.

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