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Dark web search warrant issued in good faith.

Byline: Rebecca M. Lightle

A warrant executed in good faith, even if unconstitutional, did not render resulting evidence of child-pornography crimes inadmissible, the court of appeals held. Appellant Robert McLamb was identified by the FBI as a visitor to Playpen, a website accessible only on the dark web (a collection of encrypted networks providing strong privacy protections to users) whose welcome page depicted two partially-clothed prepubescent girls with their legs spread apart. After seizing the Playpen server, the FBI sought to identify Playpen users through the use of a computer script called the Network Investigative Technique that would overcome the dark webs anonymity protections. The NIT works by corrupting the target server and supplementing child-pornography data with the NIT script. Information downloaded by users is supplemented with the NIT instructions. Once delivered and installed to a users computer, the NIT deploys a payload software that searches the users computer for identifying information, including the IP address, operating system, username, and the location where the computer connects to the internet. The NIT then transmits all of that data to the FBI. At the time of the Playpen investigation, lower courts differed on the permissibility of remote-access investigative techniques, and no appellate court had addressed the issue. Before applying for the NIT warrant in this case, the FBI consulted with attorneys at the Department of Justices Child Exploitation and Obscenity Section, as well as the FBIs Remote Operations Unit. An FBI agent prepared an affidavit in support of a warrant authorizing use of the NIT for 30 days on any user entering a username and password into the Playpen welcome page, which the FBI continued to operate during that period. Good-faithsearches The use of the search warrant in this case, even if unconstitutional, does not merit suppression. The th, 1st, and th Circuits have analyzed the same NIT warrant at issue in this case, and each concluded that, even if the NIT warrant violates the Fourth Amendment, the good-faith exception set forth in United States v. Leon, 36 U.S. 97 (194), precludes suppression of the resulting evidence. Under U.S. Supreme Court precedent, central to the question of suppression is the culpability of law-enforcement conduct. Evidence should be suppressed only if it can be said that the law enforcement officer had knowledge or may properly be charged with knowledge that the search was unconstitutional under the Fourth Amendment. Suppression applies only where it results in appreciable deterrence of deliberate, reckless, or grossly negligent conduct. Although the Supreme Court has articulated limits to the good-faith exception, none apply in this case. The affidavit supporting the warrant application devoted several pages to explaining the NITs mechanism, sufficient to inform the magistrate judge of the scope of the warrant sought. While the application named the Eastern District of Virginia the location of the search, the affidavit properly explained that the NIT would cause activating computers wherever located to transmit data to the FBI. In light of rapidly developing technology, the FBIs consultation with government attorneys does not indicate a guilty conscience as McLamb has argued; rather, it is precisely what Leons good faith expects of law enforcement. This court declines to conclude that a warrant is facially deficient where the legality of an investigative technique is unclear and law enforcement seeks advice from counsel before applying for the warrant. The exclusionary rule is designed to deter police misconduct, rather than to punish the errors of judges and magistrates. Suppressing evidence merely because it was obtained pursuant to a warrant that reached beyond the boundaries of a magistrate judges jurisdiction would not, under the facts of this case, produce an appreciable deterrence on law enforcement. Affirmed. United States v. McLamb, Case No. 17-4299, Jan. 25, 201; 4th Cir. (Thacker); EDVA (Smith). Andrew William Grindrod for Appellant; Richard Daniel Cooke for Appellee. VLW 01-2-016, pp.

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Author:Lightle, Rebecca M.
Publication:Virginia Lawyers Weekly
Date:Feb 8, 2018
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