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United States v. Kienast

United States District Court, E.D. Wisconsin

November 14, 2016

NEIL C. KIENAST, Defendant.


          William C. Griesbach, Chief Judge.

         Defendant Neil C. Kienast has been charged in a superseding indictment with two counts of receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The case is presently before the court on Kienast's motion to suppress the evidence seized from his home and computer pursuant to a search warrant issued by Magistrate Judge James R. Sickel, as well as any evidence derived therefrom. For the reasons that follow, Kienast's motion will be denied.

         The charges against Kienast stem from a nationwide child pornography investigation conducted by the FBI in conjunction with the U.S. Department of Justice. Acting in part upon a tip from a foreign law enforcement agency, the FBI was able to seize control of an online forum hosted at a facility in North Carolina which was dedicated to the advertisement and distribution of child pornography, “Website A”. Website A had 150, 000 members who collectively engaged in tens of thousands of postings of child pornography images and videos categorized according to the gender and age of the minor victim. The site did not advertise or distribute adult pornographic images.

         Website A operated as a “hidden service” on the anonymous TOR network and was generally not accessible through the traditional internet. To access Website A, a user had to know its exact web address on the TOR network. In addition, the TOR network allows users to hide their actual IP addresses while accessing the internet. To access the TOR network, a user must install TOR software which routes user communications around a distributed network of relay computers called nodes, which are run by volunteers around the world. 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 on the website's IP log. An exit node is the last computer through which the user's communications are routed. TOR is designed to prevent tracing the user's actual IP address back through the TOR exit node IP address. As a result, traditional IP-address-based identification techniques used by law enforcement agents investigating online crimes are not viable against a website operated on the TOR network. NIT Search Warrant (ECF No. 12-3).

         Faced with this investigative roadblock, FBI agents took an unusual step. Instead of immediately shutting Website A down, which would have allowed the users of the site to go unidentified and free to continue receiving and trafficking in child pornography, the FBI seized control of Website A and continued it in operation for a two-week period from a facility located in the Eastern District of Virginia. The FBI also obtained a search warrant from a magistrate judge in that District that authorized the agency to use a “Network Investigative Technique” (NIT) to identify individual users who were accessing content on the site. The NIT consisted of computer instructions which were downloaded to the computer of a registered user of Website A, along with the requested content from Website A, when Website A was accessed by such user. Once downloaded, the NIT would cause the user's computer to transmit to the FBI a limited amount of information-the computer's true IP address and other computer-related information-that would allow the FBI to identify the computer used to access Website A and its user. Id.

         Based upon data obtained from deployment of the NIT and the logs on Website A, law enforcement learned that a user with the user name “Playpendrifter” actively logged into Website A for a total of 10 hours and 39 minutes between December 9, 2014 and March 4, 2015. On February 25, 2015, Playpendrifter logged into Website A from an IP address of and accessed posts that contained child pornography including a video with 19 images of a prepubescent female between 4 and 6 years of age performing oral sex on an adult male's penis and exposing her vagina and anus. Using publicly available websites, FBI Special Agents were able to determine that the IP address from which Playpendrifter logged into Website A was operated by the Internet Service Provider (ISP) AT&T U-Verse. AT&T U-Verse then provided the FBI with the street address of the premises of the user assigned that IP address in response to an administrative subpoena. That address was the home of Kienast.

         Armed with this information, law enforcement agents obtained a warrant authorizing them to search Kienast's residence and seize and examine his computers and related equipment for evidence of the crimes related to child pornography. The warrant was executed on January 16, 2016, and resulted in the seizure of several computers and storage media from Kienast's residence. A subsequent search of the computers revealed child pornography video and image files. Law enforcement also undertook to interview Kienast, and he admitted viewing child pornography for the past several years and using the TOR network to do so. It is this evidence that forms the basis of the charges against him.

         Kienast argues that the evidence must be suppressed because the warrant to search his residence is invalid. That warrant is invalid, he contends, because it was obtained using evidence illegally retrieved from his computer via the NIT warrant. Kienast also initially argued that it was also obtained using information illegally obtained from the Social Security Administration (SSA), but he has since abandoned that argument in that whatever evidence law enforcement may have obtained from SSA was not used in its application for the warrant authorizing the search of his home. With respect to the NIT warrant, however, Kienast argues it is void because it was signed by a magistrate judge with no authority to authorize a search outside the boundaries of the district in which her court was located.

         Kienast's argument is a technical one based on the language of the statute and rule governing the authority of magistrate judges to issue search warrants. The Federal Magistrates Act provides, in relevant part, as follows:

(a) Each magistrate judge serving under this chapter shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law-
(1) all powers and duties conferred or imposed . . . by law or by the Rules of Criminal Procedure for the United States District Courts.

28 U.S.C. § 636(a) (emphasis added). Rule 41(b) of the Federal Rules of Criminal Procedure in turn sets out territorial limits on a magistrate judge's authority to issue a search warrant. It authorizes magistrate judges to issue warrants to (1) “search for and seize a person or property located within [the judge's] district”; (2) search for and seize a person or property located outside the judge's 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) search for and seize a person or property located outside the judge's district if the investigation relates to terrorism; (4) install within [the judge's] district a tracking device . . . to track the movement of a person or property located within the district, outside the district, or both; or (5) search for or seize a person or property outside the judge's district but within a United States territory, possession, commonwealth, or premises used by a United States diplomat or consular mission.

         Kienast argues that because the NIT was intended to search computers that were outside, as well as inside the Eastern District of Virginia, the magistrate judge in that District acted outside her authority in issuing the NIT warrant. More specifically, he argues that a magistrate judge in Virginia had no authority to authorize a search of his computer in Wisconsin. As a result, Kienast argues that the NIT warrant was void and thus any information obtained from it may not be used against him. And because information obtained from the search authorized by the NIT warrant was used to obtain the Wisconsin warrant that authorized the search of his house and seizure of his computers, Kienast argues that warrant was invalid as well. It thus follows, he contends, that all of the evidence seized from his home based upon that warrant, as well as derivative evidence such as his confession, must be suppressed.

         As the defendant notes, the validity of search warrants growing out of the FBI's investigation of Website A based on the NIT warrant has been addressed by courts in districts around the country, including this district. See United States v. Epich, 15-CR-163-PP, 2016 WL 953269 (E.D. Wis. Mar. 14, 2016); see also United States v. Broy, 16-CR-10030, 2016 WL 5172853, at *1 (C.D. Ill. Sept. 21, 2016) (collecting cases). Though most courts have denied the defendants' motion to suppress, Kienast relies primarily upon the decision in United States v. Levin, No. CR 15-10271-WGY, ___ F.Supp.3d ___, 2016 WL 2596010 (D.Mass. May 5, 2016), which did not. Levin held that because the NIT warrant authorized a search of property outside the territorial jurisdiction of the issuing magistrate judge, it was void ab initio and any evidence obtained from its execution was ...

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