Case 5:16-cr-00089-gwc Document 25 Filed 02/17/17 Page 1 of 24

U.S. DiSTR!CT COURT
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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
UNITED STATES OF AMERICA,
v.
ROBERT CLAY ELDRED,
Defendant.

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Case No. 5:16-cr-00089 ·

OPINION AND ORDER RE:
DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND STATEMENTS
(Doc. 16)
On June 23, 2016, the United States indicted Robert Clay Eldred ("Eldred") on one count
of knowingly possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The
indictment was based on evidence obtained during a March 2016 search ofEldred's laptop,
which was conducted in accordance with a warrant issued by Magistrate Judge Conroy of the
District of Vermont. (Doc. 16, Ex. B ("Vermont Warrant").) The Vermont Warrant was based
on evidence obtained in execution of a warrant issued by Magistrate Judge Buchanan in the
Eastern District of Virginia on February 20, 2015. (Id., Ex. A ("NIT Warrant").) The NIT
Warrant permitted agents :from the Federal Bureau of Investigation to deploy software that
revealed identifying information, including the concealed IP addresses, of users accessing a child
pornography website called Playpen. (Doc. 19 at 2.)
Eldred moves to suppress all evidence and statements obtained as a result of the NIT
Warrant on the grounds that Magistrate Judge Buchanan lacked jurisdiction under Federal Rule
of Criminal Procedure 41 to authorize a search that would be executed outside of the Eastern
District of Virginia. (Doc. 16 at 1.) Eldred moves to suppress all evidence and statements
obtained as a result of the seizure of his laptop on the grounds that it was seized without a

 Case 5:16-cr-00089-gwc Document 25 Filed 02/17/17 Page 2 of 24

warrant. (Id.) Eldred further moves to suppress all evidence and statements obtained as a result
of the search of his laptop on the grounds that Magistrate Judge Conroy issued the Vermont
Warrant without probable cause. (Id.)
Over three dozen motions to suppress in similar or related cases have been decided by
federal courts throughout the nation. 1 This Court agrees with the majority of these courts in

1

At minimum, twelve decisions have ruled that the NIT Warrant was authorized as a
tracking device pursuant to Rule 41(b)(4), and denied the defendants' motions to suppress.
See United States v. Darby, 190 F. Supp. 3d 520 (E.D. Va. 2016); United States v. Matish,
193 F. Supp. 3d 585 (E.D. Va. 2016); United States v. Eure, No. 2:16-cr-43, 2016 WL 4059663
(E.D. Va. July 28, 2016); United States v. Laurita, No. 8:13-cr-107, 2016 WL 4179365 (D. Neb.
Aug. 5, 2016) (finding a similar 2012 NIT warrant deployed on a Tor network child pornography
website to be properly authorized as a tracking device under Rule 41(b)(4)); United States v.
Jean, --- F. Supp. 3d ----,No. 5:15-cr-50087-001, 2016 WL 4771096 (W.D. Ark. Sept. 13,
2016); United States v. Johnson, No. 15-00340-01-cr-W-GAF, 2016 WL 6136586 (W.D. Mo.
Oct. 20, 2016); United States v. Kienast, No. 16-cr-103, 2016 WL 6683481 (E.D. Wis. Nov. 14,
2016); United States v. Lough, --- F. Supp. 3d ----,No. 1:16-cr-18, 2016 WL 6834003
(N.D. W. Va. Nov. 18, 2016); United States v. McLamb, --- F. Supp. 3d ----,No. 2:16-cr-92,
2016 WL 6963046 (E.D. Va. Nov. 28, 2016); United States v. Bee, No. 16-00002-01-cr-W-GAF,
2017 WL 424905 (W.D. Mo. Jan. 13, 2017), adopted by, 2017 WL 424889 (W.D. Mo. Jan. 13,
2017); United States v. Austin, --- F. Supp. 3d ----,No. 3:16-cr-00068, 2017 WL 496374
(M.D. Tenn. Feb. 2, 2017); United States v. Jones, --- F. Supp. 3d ----,No. 3:16-cr-026, 2017
WL 511883 (S.D. Ohio Feb. 2, 2017).
At minimum, twenty-four decisions have ruled that although the NIT Warrant was not
valid under Rule 41, suppression was inappropriate and denied the defendants' motions to
suppress. See United States v. Michaud, No. 3:15-cr-05351-RJB, 2016 WL 337263
(W.D. Wash. Jan. 28, 2016); United States v. Stamper, No. 1:15-cr-109, 2016 WL 695660
(S.D. Ohio Feb. 19, 2016); United States v. Epich, No. 15-cr-163-PP, 2016 WL 953269
(E.D. Wis. Mar. 14, 2016); United States v. Werdene, 188 F. Supp. 3d 431 (E.D. Pa. 2016);
United States v. Acevedo-Lemus, No. 15-00137-CJC, 2016 WL 4208436 (C.D. Cal. Aug. 8,
2016); United States v. Adams, No. 6:16-cr-11-0rl-40GJK, 2016 WL 4212079 (M.D. Fla.
Aug. 10, 2016); United States v. Henderson, No. 15-cr-00565-WH0-1, 2016 WL 4549108
(N.D. Cal. Sept. 1, 2016); United States v. Torres, No. 5:16-cr-285-DAE, 2016 WL 4821223
(W.D. Tex. Sept. 9, 2016); United States v. Knowles, --- F. Supp. 3d ----,No. 2:15-875-RMG,
2016 WL 6952109 (D. S.C. Sept. 14, 2016); United States v. Ammons, --- F. Supp. 3d ----,
No. 3:16-cr-00011-TBR-DW, 2016 WL 4926438 (W.D. Ky. Sept. 14, 2016); United States v.
Broy, --- F. Supp. 3d ----,No. 16-cr-10030, 2016 WL 5172853 (C.D. Ill. Sept. 21, 2016); United
States v. Anzalone, --- F. Supp. 3d ----,No. 15-10347-PBS, 2016 WL 5339723 (D. Mass. Sept.
22, 2016); United States v. Allain, --- F. Supp. 3d ----,No. 15-cr-10251, 2016 WL 5660452
(D. Mass. Sept. 29, 2016); United States v. Scarbrough, No. 3:16-cr-035, 2016 WL 5900152
(E.D. Tenn. Oct. 11, 2016); United States v. Libbey-Tipton, No. 1:16-cr-236, Doc. No. 19
2

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concluding that the motion to suppress should be denied. See, e.g., United States v. Michaud,
No. 3:15-cr-05351-RJB, 2016 WL 337263 (W.D. Wash. Jan. 28, 2016). Although the NIT
Warrant violates Rule 41 (b), suppression is inappropriate because the violation was not
constitutional, Eldred suffered no prejudice, the FBI agents did not act with deliberate and
intentional disregard for Rule 41, and the NIT Warrant was executed in good faith. Seizure of
Eldred's laptop was permitted under the Fourth Amendment based on the plain-view doctrine
and the exigent-circumstances doctrine. The search ofEldred's laptop was permissible because
the Vermont Warrant was supported by a finding of probable cause. Defendant's Motion to
Suppress Evidence and Statements (Doc. 16) is DENIED.

I.

Background

The following facts are drawn from the parties' filings and the testimony and evidence
admitted at the suppression hearing held on January 19, 2017.
Eldred is charged with knowingly possessing child pornography that he accessed through
the Playpen website. The Playpen website operated as a "hidden service" on an anonymity

(N.D. Ohio Oct. 19, 2016); United States v. Stepus, No. 15-30028-MGM, 2016 WL 6518427
(D. Mass. Oct. 28, 2016); United States v. Owens, No. 16-cr-38-JPS, 2016 WL 7053195
(E.D. Wis. Dec. 5, 2016); United States v. Duncan, No. 15-cr-00414-JO, 2016 WL 7131475
(D. Or. Dec. 6, 2016); United States v. Vortman, No. 16-cr-00210-TEH-1, 2016 WL 7324987
(N.D. Cal. Dec. 16, 2016); United States v. Dzwonczyk, No. 4:15-cr-3134, 2016 WL 7428390
(D. Neb. Dec. 23, 2016); United States v. Tran, --- F. Supp. 3d ----,No. 16-10010-PBS,
2016 WL 7468005 (D. Mass. Dec. 28, 2016); United States v. Sullivan, No. 1:16-cr-270,
2017 WL 201332 (N.D. Ohio Jan. 18, 2017); United States v. Deichert, No. 5:16-cr-201-FL-1,
2017 WL 398370 (E.D. N.C. Jan. 28, 2017); United States v. Kahler, No. 16-cr-20551, 2017 WL
586707 (E.D. Mich. Feb. 14, 2017).
At minimum, four decisions have ruled that suppression was required because the
magistrate judge for the Eastern District of Virginia lacked jurisdiction to issue the NIT Warrant.
See United States v. Levin, 186 F. Supp. 3d 26 (D. Mass. 2016); United States v. Arterbury,
No. 15-cr-182-JHP, 2016 U.S. Dist. LEXIS 67091 (N.D. Okla. Apr. 25, 2016), adopted by,
No. 15-CR-182-JHP, 2016 U.S. Dist. LEXIS 67092 (N.D. Okla. May 17, 2016); United States v.
Workman, --- F. Supp. 3d ----,No. 15-cr-00397-RBJ-1, 2016 WL 5791209 (D. Colo. Sept. 6,
2016); United States v. Croghan, --- F. Supp. 3d ----,No. 1:15-cr-48,2016 WL 4992105
(S.D. Iowa Sept. 19, 2016).
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Internet network known as "The Onion Router" or "Tor" Network, which masks a user's IP
address. (Doc. 16, Ex. A at 10.) To access the Tor Network, Internet users must install the Tor
software. (Id. at 11.) The Tor software grants its users anonymity by bouncing their Internet
communications through a global relay of computers. (Id.) As a result, a user's IP address is not
recorded when the user accesses a website through the Tor Network. (Id.) Instead, the website's
IP log records the IP address of"the last computer through which a user's communications were
routed." (Id.)
On the Tor Network, users can create and access "hidden services," or websites with
concealed IP addresses. (Id.) Hidden services mask their location by replacing the IP address of
the web server hosting the website "with a Tor-based web address, which is a series of
algorithm-generated characters ... followed by the suffix '.onion."' (Id. at 12.) Hidden services
are not searchable through traditional search engines. (Id.) Rather, "a user must know the web
address of the website in order to access the site." (Id.) A user may gain access to a hidden
service, such as the Playpen website, through communications with other users or through
"Internet postings describing the sort of content available on the website as well as the website's
location." (Id.) Thus, to access the Playpen website, or any other hidden service, a user must
take "numerous affirmative steps." (Id.)
Between September 16, 2014 and February 3, 2015, the FBI conducted a lengthy
investigation of Playpen. (Id. at 13.) The FBI determined the website "was a message board
website with a primary purpose of advertising and distributing child pornography." (Id.) In
February 2015, FBI agents located the computer server hosting the Playpen website and
apprehended the website's primary administrator. (Doc. 19 at 2.) The FBI then assumed
administrative control of the Playpen website from February 20, 2015 until March 4, 2015 to

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investigate users and administrators who accessed the site. (Id.) To conduct this investigation,
the FBI sought and obtained the NIT Warrant from Magistrate Judge Buchanan in the Eastern
District of Virginia. (Doc. 16 at 4.) The NIT Warrant permitted the FBI to "monitor the site
users' communications, and deploy a [Network Investigative Technique] NIT, which would
cause a computer logging into Playpen to reveal certain identifying information ... [, including]
the concealed IP address assigned to the computer to allow it to access the internet." (Doc. 19
at 2.) The FBI's purpose in deploying the NIT software was to "identify users who were actively
engaged in sexual abuse and exploitation of children that used Playpen to distribute child
pornography, and in so doing, locate and rescue children from imminent harm of ongoing
abuse." (Id.) Furthermore, the FBI used the NIT to identify individual users accessing and
viewing the child pornography posted on the Playpen website. (Id. at 3.)
On March 4, 2015, the FBI identified an individual accessing the Playpen website under
the user name "robertecach." (Doc. 16 at 4.) The user "robertecach" accessed posts containing
images of child pornography for 1 hour and 52 seconds until the FBI shuttered the site. (Doc. 19
at 3). Through the FBI's use of the NIT, the agents learned the IP address associated with the
user name "robertecach," that the computer name for the device accessing the Playpen website
was "Robert," and that the Windows username for the device accessing the website was
"Senior." (Doc. 16, Ex.Bat 19.)
The FBI then traced the IP address retrieved by the NIT to an address on Towne Hill
Road in East Montpelier, Vermont. (Doc. 19 at 3.) A records check showed that two residents
lived at this address. (Id.) A law enforcement investigation, however, revealed that the two
homeowners maintained a basement apartment with unknown tenants on the property. (Id.) On
March 4, 2016, an FBI agent interviewed the homeowners of the Towne Hill Road residence.

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(Id.) During this interview, the homeowners confirmed that a basement apartment had been

rented in the past, and that the previous tenants of the apartment included Eldred and his
girlfriend, Holly Belanger. (Id.) The homeowners also confirmed that they had shared the
password to the house's wireless internet connection with Eldred and Belanger. (Id.) When
questioned, both homeowners denied accessing the Playpen website. (Id.)
On March 15, 2016, FBI agents attempted to interview Eldred at his residence in
Northfield, Vermont, but Eldred was not at the residence because he was at work. (Id.) The
agents interviewed Eldred's girlfriend, Holly Belanger, and Eldred's adult son. (Id.) During the
interview, Belanger informed the agents that she and Eldred had lived in the basement apartment
on Towne Hill Road during the month of March 2015. (Id.) Belanger also stated that Eldred
was currently using the same laptop that he had used when the couple lived in that apartment.
(Id. at 3-4.) She further stated that Eldred had previously used the user name "robertccachel,"

that his laptop was password protected, and that the laptop was present in the living room of the
Northfield apartment where the interview was being conducted. (Id. at 4.)
Eldred's adult son stated that his father did not allow other people to use his laptop, and
that his father had previously used the user name "robertccach" and the email address
"robertccache@hotmail.com." (Id.) Both Belanger and Eldred's son consented to a field
examination of their computers by the agents. (Id.) The field examinations found no indications
of child pornography access or viewing on either computer. (Id.) The agents then phoned
Eldred. (Id.) During the telephone conversation, Eldred denied knowledge of the Playpen
website, refused to consent to a field examination of his laptop, and agreed to meet with law
enforcement officials the following day. (Id.)

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Prior to leaving the Northfield apartment, the agents seized Eldred's laptop. (Id.) During
the seizure, Detective Raymond conducted an inventory procedure, which required the detective
to open the laptop and document its physical condition. (Id.) Upon opening Eldred's laptop, the
detective observed that the log-in screen showed a user profile for Robert Eldred and the email
address "robertccache@hotmail.com." (Id.)
On March 16, 2016, law enforcement officials interviewed Eldred. (Id.) Initially, Eldred
denied ever using the user name "robertecach," but later he admitted to using it as a previous
Hotmail email account. (Id.) Eldred also acknowledged that he had previously resided in a
basement apartment, and he confirmed that he was using the same laptop he had used while
living in the basement apartment. (Id.)
On March 21, 2016, Magistrate Judge Conroy issued the Vermont Warrant authorizing a
search of Eldred' s laptop. (Id.) The search of the laptop revealed that the user had installed the
Tor software and that a substantial amount of adult pornography was stored on the laptop. (Id.)
Additionally, "116 files relating to child pornography were located: 27 photographs were located
in 'Robert's' pictures folder, with dates ranging between April 6, 2010 and March 6, 2016, and
89 additional images were located in unallocated space." (Id. at 4---5.)
Eldred was indicted on June 23, 2016. (Id. at 5.) On November 23, 2016, Eldred moved
to suppress all evidence and statements obtained in connection with the NIT Warrant, the seizure
of his laptop, and the search of his laptop pursuant to the Vermont Warrant. (Id.) The Court
held a hearing on the motion on January 19, 201 7. (Doc. 21.)

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II.

Analysis
A. NIT Warrant Violates Rule 41
Federal Rule of Criminal Procedure 41 (b) defines a magistrate judge's authority to issue

warrants. At the time of the NIT Warrant, Rule 41 (b) granted a magistrate judge authority to
issue a warrant in five different circumstances.2 Only three of these five circumstances are
relevant for the NIT Warrant:
(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;

(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
Fed. R. Crim. P. 41(b)(l), (2), and (4).
Eldred argues the NIT Warrant is invalid because the "[t]he Magistrate Judge in the
Eastern District of Virginia lacked jurisdiction under Rule 41 to issue a warrant for searches
outside that judicial district." (Doc. 16 at 8.) Eldred contends the NIT Warrant exceeded the
Magistrate Judge's jurisdiction because the NIT Warrant permitted the FBI to employ the NIT to
2

In 2016, Rule 41(b) was amended to add a sixth circumstance in which a magistrate
judge is authorized to issue a warrant. The new provision expressly addresses situations such as
the one the FBI agents encountered here. Rule 41 (b )(6) grants a magistrate judge in any district
the authority to issue a warrant "to use remote access to search electronic storage media and to
seize or copy electronically stored information located within or outside that district" when
certain conditions are met. This provision does not apply in the analysis of this case, however,
because the NIT Warrant was issued before this language was added to the Rule. (See Doc. 16,
Ex. A at 1 (noting the NIT Warrant was issued in February 2015).)
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search Playpen users' computers wherever the users were located. (Id. at 8-9.) And many of the
searched computers, including Eldred's, were never located inside the Eastern District of
Virginia. (Id.)
The government argues that "[t]hree provisions of Rule 41 support the issuance of the
NIT Warrant." (Doc. 19 at 6). The government maintains that the NIT Warrant is valid under
Rule 41(b)(l), (2), and (4) because "all Playpen users entered that district [the Eastern District of
Virginia] by accessing the Playpen server." (Id. at 8.) The government contends that the
Playpen users "reached into the District's jurisdiction to access the site," and while the users
were within the district, the NIT was sent and installed on their computers. (Id.) The
government further argues that even if the NIT Warrant fails to fall within a specific subsection
of Rule 41, the NIT Warrant is still authorized under the Rule because Rule 41 is to be read
broadly and flexibly "to permit searches where they are consistent with the Fourth Amendment,
even in cases involving searches [that] are not explicitly authorized by the text of the Rule." (Id.
at 9.)
The Court agrees with Eldred that the NIT Warrant is not valid under Rule 41.
Subsections (b )(1) and (2) are inapplicable because these provisions permit a magistrate judge to
issue a search warrant for property "located within the district" or "located within the district
when the warrant is issued." Fed. R. Crim. P. 41(b)(l)-(2). Here, the NIT search did not occur
in the Eastern District of Virginia. Rather, the NIT search occurred on Eldred's laptop at the
Towne Hill Road apartment in East Montpelier, Vermont. Eldred's laptop was never located
within the Eastern District of Virginia, therefore neither Rule 41(b)(l) or (2) applies. See, e.g.,

United States v. Henderson, No. 15-cr-00565-WH0-1, 2016 WL 4549108, at *3-4 (N.D. Cal.

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Sept. 1, 2016) (finding that neither Rule 41(b)(l) or (2) authorized the NIT Warrant as applied to
the defendant's computer in San Mateo, California).
The NIT Warrant also exceeds the scope of subsection (b)(4). This provision of the Rule
grants a magistrate judge the "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." Fed. R. Crim. P. 41 (b)(4). A
number of courts have concluded that the NIT Warrant was authorized by subsection (b)(4)
because the warrant "allow[s] the FBI to install a tracking device on the computers of Playpen
users which 'digitally touched down in the Eastern District of Virginia when they logged into the
site."' Henderson, 2016 WL 4549108, at *3 (quoting United States v. Darby, 190 F. Supp. 3d
520, 536 (E.D. Va. 2016)).
The court, however, agrees with the majority of decisions and finds that upholding the
NIT Warrant under subsection (b)(4) "stretches the rule too far." Michaud, 2016 WL 337263,
at *6. The tracking device exception cannot support the NIT Warrant for two reasons. First, if
the installation of the tracking device, the NIT, occurred on the government-controlled server,
located in the Eastern District of Virginia, Eldred never controlled the server. See id. Therefore,
this situation is distinguishable from a car with a tracking device leaving a particular district
because, in that case, the defendant controls the car being tracked. See id. Second, if the NIT
installation occurred on Eldred's laptop, the tracking device exception fails again, because
Eldred's laptop was never physically within the Eastern District of Virginia. See id. Indeed, the
computer information that the NIT search targeted was at all relevant times located outside the
Eastern District of Virginia, therefore, the NIT Warrant cannot be sustained under Rule 41(b)(l),
(2), or (4).

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The court agrees with the government that Rule 41 should be read broadly and flexibly.

See United States v. New York Telephone Co., 434 U.S. 159, 169 (1977) ("Rule 41 is sufficiently
flexible to include within its scope electronic intrusions authorized upon a finding of probable
cause."). Nevertheless, "[ e]ven a flexible application of the Rule .. .is insufficient to allow the
court to read into it powers possessed by the magistrate that are clearly not contemplated and do
not fit into any of the five subsections." United States v. Werdene, 188 F. Supp. 3d 431, 441
(E.D. Pa. 2016). Therefore, even under a broad interpretation of the Rule, the NIT Warrant was
not authorized under Rule 41 (b) because the search did not fall within any of the five subsections
to the Rule. The court must conclude that the NIT Warrant exceeded the magistrate judge's
authority under Rule 41(b).

B. Suppression of NIT Evidence is Inappropriate
Eldred argues that suppression of evidence and statements obtained pursuant to the NIT
Warrant is appropriate because the Rule 41 violation involves "systemic error or reckless
disregard of constitutional requirements." (Doc. 16 at 14 (quoting United States v. Levin,
186 F. Supp. 3d 26, 42 (D. Mass. 2016)).) Eldred argues the Rule 41(b) violation is
constitutional in nature because the magistrate judge lacked jurisdiction, therefore the NIT
Warrant was void ab initio. (Doc. 24 at 1.) Eldred further contends that the government's
violation of Rule 41 prejudiced Eldred, and that the good faith exception to the exclusionary rule
does not apply because "the government's actions were not objectively reasonable." (Doc. 16
at 12-13.)
The government argues that suppression is not appropriate because the NIT Warrant was
reasonable under the Fourth Amendment; therefore, any violation of Rule 41 is not constitutional
in nature. (Doc. 19 at 10.) The government further argues that any Rule 41 violation should not

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result in suppression because "Eldred did not suffer prejudice and law enforcement did not
engage in intentional or deliberate disregard for the provisions of Rule 41." (Doc. 19 at 12.) The
government maintains that the good faith exception to the exclusionary rule bars suppression of
the evidence. (Id.)
i. Rule 41(b) Violation Not of Constitutional Magnitude

Rule 41 violations "do not necessarily violate the Constitution." United States v.

Higgins, 2013 WL 1728269, at *5 (Mar. 22, 2013 S.D.N.Y.) (citing United States v. Burke,
517 F.2d 377, 384, 386 (2d Cir. 1975)); United States v. Allen, 169 Fed. App'x 634, 636 (2d Cir.
2006)). Rather, for a Rule 41 violation to be constitutional in nature, the contested warrant must
violate an individual's Fourth Amendment rights. See United States v. Turner, 558 F.2d 46, 4952 (2d Cir. 1977) (determining whether a violation was of "constitutional magnitude" based
upon a Fourth Amendment analysis of the contested search warrant). Eldred argues that the Rule
41 (b) violation is of constitutional magnitude because Magistrate Judge Buchanan lacked
jurisdiction to issue the NIT Warrant. (See Doc. 16 at 12-13.) Thus, the NIT Warrant was void

ab initio. (Id.) For this reason, Eldred maintains that the government's NIT search constituted a
warrantless search in violation of his Fourth Amendment rights because the NIT Warrant was
really "no warrant at all." (Doc. 24 at 4 (quoting United States v. Krueger, 809 F.3d 1109, 1126
(10th Cir. 2015) (Gorsuch, J., concurring)).
The Court concludes the Rule 41 (b) violation is not of constitutional magnitude, and that
the NIT Warrant was not void ab initio. First, the Rule 41 (b) violation is not of constitutional
magnitude because "the Fourth Amendment does not impose a venue requirement for applying
for a search warrant." United States v. Adams, No. 6:16-cr-11-0rl-40GJK, 2016 WL 4212079,
at *7 (M.D. Fla. Aug. 10, 2016). Rather, a search warrant must satisfy three requirements to be

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valid under the Fourth Amendment: (1) it 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.

Dalia v. United States, 441 U.S. 238, 255 (1979). Eldred does not allege that the NIT Warrant
failed to satisfy any of these three requirements. Therefore, the violation is not constitutional.
Second, the NIT Warrant is not void ab initio. Magistrate Judge Buchanan had authority
to issue search warrants-including the NIT Warrant at issue here-on computers within her
judicial district. See Adams, 2016 WL 4212079, at *6 ("The Court finds that the magistrate
judge in the Eastern District of Virginia had the authority to issue search warrants-that is, the
inherent power to do so."). See also United States v. Dzwonczyk, No. 4:15-cr-3134, 2016 WL
7428390, at *12 (D. Neb. Dec. 23, 2016) ("[C]ourts have implied that the NIT warrant cannot be
void, because at a minimum, the warrant validly authorized searches within the Eastern District
of Virginia."). A Rule 41(b) violation does not render the magistrate judge's authority to issue
search warrants void, nor does the violation render the NIT Warrant itself void. See Admas,
2016 WL 4212079, at *7.

ii. No Prejudice Nor Intentional and Deliberate Disregard of Rule 41
In the absence of a constitutional violation, a Rule 41 violation "should not lead to
exclusion unless (1) there was 'prejudice' in the sense that the search might not have occurred or
would not have been so abrasive ifthe Rule had been followed, or (2) there is evidence of
intentional and deliberate disregard of a provision in the Rule." Burke, 517 F.2d at 386-87
(footnote omitted).
Eldred did not suffer prejudice nor did the FBI agents intentionally and deliberately
disregard Rule 41. In a Rule 41 context, "prejudice" is not synonymous with "harm" or
"disadvantage." Obviously, Eldred suffered harm when inculpatory evidence was found on his

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laptop. The prejudice determination, however, depends on whether alternative legal mechanisms
existed that could have granted the FBI agents authority to conduct the same search and reach the
same inculpatory evidence. If such alternatives exist, then prejudice is not present. See Burke,
517 U.S. 386-87 (finding that the defendant did not suffer prejudice by a Rule 41 violation
because a warrant complying with the Rule could have been issued for the same search);

see also Henderson, 2016 WL 4549108, at *5 ("To determine whether [the defendant] has been
prejudiced, I must consider whether the evidence obtained could have been obtained through
other lawful means.").
Eldred was not prejudiced because he lacked a reasonable expectation of privacy in the
evidence obtained by the NIT search; namely, in the IP address he used at the Towne Hill Road
apartment. See Henderson, 2016 WL 4549108, at *5 (finding that "the FBI could have legally
discovered [the Defendant's] IP address absent the NIT Warrant" because the Defendant had no
expectation of privacy in his IP address). Indeed, the majority of circuits that have addressed this
question agree that Internet users lack a privacy expectation in their IP addresses because such
information is voluntarily conveyed to third-party service providers. See, e.g, United States v.

Christie, 624 F.3d 558, 573-74 (3d Cir. 2010) (finding "no reasonable expectation of privacy
exists in an IP address, because that information is also conveyed to and, indeed, from third
parties, including [Internet Service Providers] ISPs."); United States v. Perrine, 518 F3d 1196,
1204 (10th Cir. 2008) ("Every federal court to address this issue has held that subscriber
information provided to an internet provider is not protected by the Fourth Amendment's privacy
expectation."); Guest v. Leis, 255 F3d 325, 336 (6th Cir. 2001) ("[C]omputer users do not have a
legitimate expectation of privacy in their subscriber information because they have conveyed it
to another person-the system operator."). Cf United States v. Forrester, 512 F.3d 500, 510

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(9th Cir.2008) ("[E]-mail and Internet users have no expectation of privacy in the to/from
addresses of their messages or the IP addresses of the websites they visit because they should
know that this information is provided to and used by Internet service providers for the specific
purpose of directing the routing of information."); United States v. LifShitz, 369 F.3d 173, 190
(2d Cir.2004) ("Individuals generally possess a reasonable expectation of privacy in their home
computers .... They may not, however, enjoy such an expectation of privacy in transmissions
over the Internet or e-mail that have already arrived at the recipient.").
While the Tor Network hides a user's IP address, a user "must still send and receive
information, including IP addresses, through another computer, such as an Internet Service
Provider, at a specific location," to first access the network. Michaud, 2016 WL 337263, at *7.
Here, the FBI agents located Eldred by tracking his landlord's IP address to the landlord's
internet provider, Comcast Cable. (Doc. 19 at 3.) Eldred voluntarily granted a third-party,
Comcast Cable, access to the IP address he was using so that he could access online services.

See Henderson, 2016 WL 4549108, at *5 (citing Smith v. Maryland, 442 U.S. 735, 74344 (1979)
("[A] person has no legitimate expectation of privacy in information he voluntarily turns over to
third parties.")). Thus, because Eldred has no expectation of privacy in the IP address he was
using, the FBI could have legally obtained this information absent the NIT Warrant. See id.
Indeed, "the FBI could have installed copies of Playpen in every judicial district in the
country ... and then secured a corresponding number of Rule 41 warrants. United States v.

Acevedo-Lemus, No. SACR15-00137-CJC, 2016 WL 4208436, at* 7 (C.D. Ca. Aug. 8, 2016).
While the FBI chose not to pursue such a strategy due to the associated burden and costs, "the
fact remains that the issuance of a modified NIT Warrant that fully complied with the technical
requirements of Rule 41 was entirely possible." (Id.) Thus, because the FBI agents could have

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lawfully obtained the inculpatory evidence through other legal alternatives, Eldred was not
prejudiced by the NIT Warrant.
Moving to the second prong, Eldred argues that the FBI acted with deliberate and
intentional disregard for the Rule because "the potential limitations of Rule 41(b) were well
understood more than a year before the government sought the NIT warrant in this case."
(Doc. 24 9-10.) Eldred highlights the decision, In re Warrant to Search a Target Computer at
Premises Unknown, in which a magistrate judge from the South District of Texas denied a

request to issue a different NIT warrant. (Doc. 24 at 9 (citing 958 F. Supp. 2d 753, 757
(S.D. Tex. 2013)).) "While the In re Warrant court did find an NIT search impermissible under
Rule 41, a single court's decision analyzing a complicated and 'novel request' does not
definitively demonstrate that the FBI deliberately disregarded the Rule." Henderson, 2016 WL
4549108, at *5. Indeed, at least seven different district courts have now found the NIT Warrant
to be valid under Rule 41. (See cases cited supra note 1.) Eldred also argues that the FBI
deliberately disregarded Rule 41 because some of the government attorneys who reviewed the
NIT Warrant had previously "advocated for amendments that would authorize NIT Warrants that
were executed outside the issuing district." (Doc. 24 at 9.) According to Eldred, these
government attorneys and the law enforcement officials working with them impermissibly
pursued the NIT Warrant despite their "knowledge that the deficiencies in Rule 41 caused the
[government] to seek an amendment to Rule 41." (Id. at 10-11.) The Court finds "this argument
also fails, given that reasonable minds can differ as to the degree of Rule 41 (b)' s flexibility in
unchartered territory." Michaud, 2016 WL 337263, at *7. As demonstrated by the cases
analyzing the NIT Warrant, determining whether the NIT search is authorized under Rule 41(b)
is a close call. See Henderson, 2016 WL 4549108, at *5. The fact that government attorneys

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proposed an "amendment to the Rule demonstrates that [the government] recognized ambiguities
in the Rule, not that it acted with deliberate disregard for the Rule." Id.
iii. Good-Faith Exception Applies

Suppression is further inappropriate because the FBI agents acted in good faith.
See, e.g., Henderson, 2016 WL 4549108, at *6. The exclusionary rule is only appropriate in

"those unusual cases" where suppression will "deter police misconduct." United States v. Leon,
468 U.S. 897, 916, 918 (1984). In situations where law enforcement officials "acting in good
faith ha[ ve] obtained a search warrant from a judge or magistrate and acted within its scope,"
there exists "no police illegality and thus nothing to deter." Id. at 920-21. Indeed, "objectively
reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial
costs of exclusion." Id. at 922. Here, the FBI agents' reliance on the NIT Warrant was
objectively reasonable. See, e.g., Michaud, 2016 WL 337263, at *7. The agents in Vermont
rightfully relied on the NIT Warrant because "it was supported by substantial probable cause,
was sufficiently particular in describing the people and places to be searched, and was issued by
a neutral magistrate judge." Henderson, 2016 WL 4549108, at *6.
C. Seizure of Eldred's Laptop Was Permissible

Eldred argues that the evidence obtained from the seizure of his laptop should be
suppressed because the agents' warrantless seizure violated his Fourth Amendment rights.
(Doc. 16 at 15.) Eldred further argues that neither the plain-view doctrine nor the exigency
exception sufficiently justify the agents' seizure. (Id.) The government responds that the seizure
ofEldred's laptop did not violate his Fourth Amendment rights because the laptop was in plain
view. (Doc. 19 at 15.) The government further argues that based on the exigencies of the
circumstances, the seizure was necessary to preserve potential evidence. (Id.)

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The Fourth Amendment of the United States Constitution protects the people "against
unreasonable searches and seizures." U.S. Const. amend IV. "[S]eizure of personal property [i]s
per se unreasonable ... unless it is accomplished pursuant to a judicial warrant issued upon

probable cause and particularly describing the items to be seized." United States v. Place,
462 U.S. 696, 701 (1983). Despite the general rule requiring a warrant, there are "a few
specifically established and well-delineated exceptions." Mincey v. Arizona, 437 U.S. 385, 390
(1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). The "plain-view" doctrine is
one such "well-recognized exception to the Fourth Amendment warrant requirement." United
States v. Andino, 768 F.3d 94, 99 (2d Cir. 2014). For this exception to apply, the government

must satisfy two requirements. United States v. Delibac, 925 F.2d 610, 613 (2d Cir. 1991).
First, the government must show that the initial intrusion by the agents was lawful so the agents
"can justify being in a position to make [their] discovery." Id. (quoting United States v. BarriosMoriera, 872 F.2d 12 (2d Cir. 1989), cert. denied, 493 U.S. 953 (1990)). Second, the agents

"must have had probable cause to believe that the item seized was evidence of a crime." Id.
(quoting Barrios-Moriera, 872 F.2d at 16); see also United States v. Gamble, 388 F.3d 74, 76
(2d Cir. 2004) (per curiam).
Here, both conditions are met. First, the agents' initial entry into the Northfield apartment
was lawful. It is uncontested that Belanger consented to the agents' presence in her and Eldred's
apartment while the agents conducted their interviews of Belanger and Eldred's adult son. (See
Doc. 16 at 5.) Because Belanger consented to the agents' entry, the agents did not violate the
Fourth Amendment in arriving inside the Northfield apartment. See Soldal v. Cook Cty.,
506 U.S. 56, 65-66 (1992).

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Second, Eldred's laptop was in plain view once the agents entered the Northfield
apartment. Indeed, during her interview, Belanger identified Eldred's laptop and its current
location in the living room where the interview was conducted. (Doc. 19 at 16.) Throughout
Belanger's and Eldred's adult son's interviews, the agents learned that Eldred had previously
resided at the address that had accessed the Playpen website, that Eldred's laptop was the same
device he had used while living at the previous address, that Eldred had used online user names
that were substantially similar to the user name that had accessed the Playpen website, and that
Eldred restricted who could use his laptop. (Id.) Furthermore, the field examinations of
Belanger's computer and Eldred's adult son's computer detected no indications of child
pornography access or viewing. (Id.) Agent Alford had probable cause to seize Eldred's laptop
in plain view because he believed, based on his observations, the surrounding circumstances, and
his experience, that it was connected to viewing and accessing child pornography. See Walczyk
v. Rio, 496 F.3d 139, 156 (2d Cir. 2007) (highlighting that the focus of finding probable cause "is
on 'probabilities,' not 'hard certainties"' (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983))).
Moreover, exigent circumstances also permitted the agents' seizure ofEldred's laptop.
Under the Fourth Amendment, when law enforcement officials possess probable cause to believe
a container holds evidence of a crime, and "the exigencies of the circumstances demand it,"
seizure of the container is allowed until a warrant is issued to examine its contents. Place,
462 U.S. at 701. Under this exception, a "container" includes a range of items, such as closed
suitcases, briefcases, duffel bags, boxes, file folders, paper bags, and more. See Robbins v.
California, 453 U.S. 420, 427 (1981); see also United States v. Knoll, 16 F.3d 1313, 1321
(2d Cir. 1994). Based on this definition, a laptop is a "container" for Fourth Amendment
purposes. See United States v. Al-Marri, 230 F. Supp. 2d 535, 541 (S.D.N.Y. 2002) ("Courts

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have uniformly agreed that computers should be treated as it they were closed containers."
(citing United States v. Runyan, 275 F.3d 449, 458 (5th Cir. 2001); United States v. Barth,
26 F. Supp. 2d 929, 936 (W.D. Tex. 1998))); see also United States v. Arnold, 533 F.3d 1003,
1009 (9th Cir. 2008).
The need to preserve evidence from imminent destruction "has long been recognized as a
sufficient justification for a warrantless search." Kentucky v. King, 563 U.S. 452, 460 (2011).
Under the exigent-circumstances doctrine, the "core question" is whether the facts and
circumstances of the situation "would lead a reasonable, experienced officer to believe there was
an urgent need ... to take action." United States v. Caraballo, 831 F.3d 95, 102 (2d Cir. 2016)
(quoting United States v. Klump, 536 F.3d 113, 117-18 (2d Cir. 2008)). The law enforcement
official's actions "must be assessed on a case-by-case basis, taking into account the type of
emergency that appeared to be present." Andino, 768 F.3d at 99. The official's warrantless
actions must not exceed the scope of reasonable action needed to extinguish the exigency. See id.
An exigency can be created by the presence of a sympathetic third-party, who may potentially
destroy evidence before law enforcement is able to attain a warrant and lawfully seize it.

See United States v. Schaper, 903 F.2d 891, 894--95 (2d Cir. 1990) (finding an exigency because
the defendant's wife "and another woman were in the house, and the agents reasonably could
have believed that the occupants of the house were capable of removing or destroying further
evidence."). Moreover, a suspect's knowledge of a law enforcement investigation is also a
substantial factor in determining whether an exigency exists. See United States v. Zabare,
871F.2d282, 291-92 (2d Cir. 1989) (finding existence of exigent circumstances where law
enforcement's investigation would become apparent to the perpetrator of unlawful activity).

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Here, Agent Alford's warrantless seizure ofEldred's laptop was necessary to preserve
evidence from imminent destruction. Two exigent circumstances existed when law enforcement
officials seized the laptop. First, the presence of potentially sympathetic third-parties, namely
Belanger and Eldred's adult son, created an exigency because either party may have destroyed
evidence on Eldred's laptop, or may have destroyed the laptop itself, prior to its lawful seizure
by law enforcement. See United States v. Oates, 619 Fed. App'x. 955, 959 (11th Cir. 2015)
(finding the existence of exigent circumstances because the defendant or his daughter could
potentially tamper with the defendant's computer before law enforcement could secure a
warrant). Second, Eldred's knowledge of the agents' investigation also created an exigency.
(Doc. 19 at 17.) The agents had phoned Eldred and asked for his consent to search the laptop,
which he denied. (Id.) This phone conversation alerted Eldred to the agents' investigation, and
more specifically to the agents' interest in Eldred's laptop. (Id.) Eldred's knowledge of the
investigation, paired with the fact that his laptop was easily removable and subject to destruction
created the need for Agent Alford to seize the laptop to preserve evidence.
Finally, because the agents seized Eldred's laptop but did not search it until they acquired
a search warrant, the initial seizure affected only Eldred's possessory interest in his laptop.
See Segura v. United States, 468 U.S. 796, 810 (1984). Courts consider this lesser interference a
factor when upholding warrantless seizures. United States v. Bradley, 488 Fed. App'x. 99, 104
(6th Cir. 2012) (finding "no liberty interest was impinged by the seizure of [defendant's] laptop"
because law enforcement officials did not search the laptop until they acquired a search warrant)
(citing United States v. Mitchell, 565 F.3d 1347, 1350 (11th Cir. 2009) (finding seizure of
defendant's computer "to ensure that the hard drive was not tampered with before a warrant was
obtained" interfered with defendant's possessory interest)); United States v. Kicata, 761 F.2d

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537, 541 (9th Cir. 1985) ("A seizure of a closed container affects only the owner's possessory
interests and not the privacy interests vested in the contents.")). Unlike luggage seizure cases,
the seizure of Eldred's laptop did not implicate a privacy interest. See United States v. Martin,
157 F.3d 46, 54 (2d Cir. 1998) (finding that a seizure was more reasonable when "not a case
where seizure of property would effectively restrain the liberty interests of the person from
whom the property was seized, as is the case where officers seize a traveler's luggage and
thereby cause 'disruption of his travel plans."') (quoting Place, 462 U.S. at 708). Therefore,
while the Fourth Amendment does protect individuals from unreasonable interference to their
possessory interests, when deciding what is reasonable, interference to possessory interests may
be less significant than interference with privacy rights. See Bradley, 488 Fed. App'x at 105.
Based upon the limited scope of intrusion to Eldred's possessory interest, the sensitive
nature of electronic evidence, and the importance oflaw enforcement's goal ofreducing the
spread of child pornography, the court concludes that the government has successfully
established that its interests outweigh Eldred's individual interests at issue. Agent Alford's
conclusion that leaving Eldred's laptop in his residence risked the imminent destruction of
evidence was objectively reasonable. Therefore, Agent Alford's warrantless seizure ofEldred's
laptop was justified based on the exigent circumstances, together with the evidence supporting a
finding of probable cause that Eldred' s laptop contained evidence of accessing and viewing child
pornography.
D. Vermont Warrant Supported by Probable Cause

When examining a magistrate judge's issuance of a search warrant, a reviewing court
"should start with the proposition that the magistrate's finding of probable cause is entitled to
substantial deference." United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983) (citing

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United States v. Ventresca, 380 U.S. 102, 109 (1965); accordAguilarv Texas, 378 U.S. 108, 111
(1964); Jones v. United States, 362 U.S. 257, 270 (1960); United States v. Zucco, 694 F.2d 44,
46 (2d Cir. 1982)). "In fact, a search based upon a magistrate's determination will be upheld by
a reviewing court on less persuasive evidence than would have justified a police officer acting on
his own." Id. After reviewing the evidence under this standard, and after granting the
magistrate's finding of probable cause great deference, "it remains for the reviewing court to
decide whether the magistrate performed his neutral and detached function on the facts before
him, and did not merely serve as a rubber stamp for conclusions drawn by the police." Id.
Here, sufficient evidence supports the magistrate judge's finding of probable cause.
Indeed, nine distinct factual recitations in the Vermont Warrant support Magistrate Judge
Conroy's finding of probable cause. (See Doc. 16, Ex.Bat 19-26.) The nine factual recitations
are: (1) the similarity between the Playpen user name ("robertecach") and the user names
witnesses attribute to Eldred ("robertccachel" and "robertccach") (id. at 24-25); (2) the fact that
Eldred lived at the Towne Hill Road apartment in March 2015, the time when the Playpen
website was accessed by an Internet user at this address (id. at 22, 24); (3) the fact that Eldred
had access to the Internet while he lived at the residence where the Playpen website was accessed

(id. at 22); (4) the fact that Eldred owned and used the same Toshiba laptop on March 15, 2016
that he had owned in March of 2015 (id. at 24--25); (5) the fact that Eldred's laptop login screen
displayed an email address ("robertccach@hotmail.com") that was substantially similar to the
username that had accessed the Playpen website ("robertecach") (id. at 25); (6) the fact that
Eldred's girlfriend's and Eldred's son's laptops lacked any indications of viewing or accessing
child pornography (id. at 24); (7) the fact that the landlords of the Towne Hill Road residence
where the Playpen website was accessed had received a notice from their Internet provider,

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Comcast, about transmission of copyright-protected adult pornography from their Internet
connection (id. at 23); (8) the fact that the landlords of the Towne Hill Road residence denied
ever accessing the Playpen website (id.); and (9) the fact that Eldred falsely denied and later
admitted that he had previously used the online username "robertecache," which was also the
username for the Playpen user who had accessed the website from the former residence (id. 2526). These factual recitations from the search warrant affidavit provide substantial indicia to
support the magistrate judge's finding of probable cause based on the judge's own neutral and
detached judgment. The exclusionary rule is inapplicable for evidence obtained pursuant to the
Vermont Warrant.

III.

Conclusion

Defendant's Motion to Suppress Evidence and Statements (Doc. 16) is DENIED.
Although the NIT Warrant did violate Rule 41 (b ), the violation was not constitutional, and
therefore does not warrant suppression. The NIT Warrant was not void ab initio. Eldred did not
suffer prejudice nor is there evidence that the FBI agents acted with intentional and deliberate
disregard of Rule 41(b). The seizure ofEldred's laptop was permissible under the Fourth
Amendment due to the existing exigent circumstances. A finding of probable cause supported
the Vermont Warrant issued by Magistrate Judge Conroy.
Dated at Rutland, in the District of Vermont, this

12 day of February, 2017.
Geoffrey W. Crawford, Judge
United States District Court

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