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United States v. Dorosheff

United States District Court, C.D. Illinois, Springfield Division

April 26, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD DOROSHEFF, Defendant.

          OPINION AND ORDER

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Donald Dorosheff's Amended Motion to Suppress Evidence (d/e [21])[1](Motion). For the reasons set forth below, the motion is DENIED.

         I. BACKGROUND

         In his Motion, Defendant challenges the legality of the search of his residence, including his electronics, that led to law enforcement's recovery of images that form the basis of the charges in the Indictment in this case (d/e [1]). On March 20, 2017, the Court held a hearing on Defendant's Motion.

         Defendant's Motion concerns two warrants: one issued on February 20, 2015, in the Eastern District of Virginia (hereinafter the “NIT warrant, ” described below), and the other issued on March 1, 2016, in this district (hereinafter the residence warrant). Defendant seeks to suppress evidence obtained during the search of his residence on several grounds. Defendant argues: (1) the residence warrant affidavit failed to set forth sufficient facts to establish probable cause; (2) the good faith exception did not apply because the residence warrant was facially deficient and the executing officer could not reasonably rely on it; (3) the residence warrant affidavit was based on evidence obtained during a search pursuant to the NIT warrant, whose affidavit also failed to set forth sufficient facts to establish probable cause; and (4) the NIT warrant violated Federal Rule of Criminal Procedure 41(b).

         The charges in this case arise from an investigation of a website called Playpen, a global online forum through which registered users distributed and accessed child pornography. Government's Response to Defendant's Motion to Suppress Evidence (d/e [18]) at 2 (Government's Response). Playpen operated on the Tor network, which allows users to maintain anonymity by masking the user's actual Internet Protocol (IP) address by bouncing user communications around a network of relay computers called nodes.

         In January 2015, the FBI seized the Playpen website and allowed it to continue to operate at a government facility in the Eastern District of Virginia from February 20, 2015 through March 4, 2015. The FBI obtained a warrant (the NIT warrant) from the Eastern District of Virginia to monitor the site users' communications and to deploy a Network Investigative Technique (NIT) on the site, in order to attempt to identify registered users.

         Using the NIT, the FBI identified an IP address associated with Playpen user “Grite” and traced it to Defendant. On March 1, 2016, Judge Schanzle-Haskins issued a search warrant (the residence warrant) to FBI Special Agent David Harmon.

         On March 3, 2016, agents executed the residence warrant at Defendant's home. The search yielded 1, 114 images and 1 video of confirmed child pornography. Government's Response at 6. On October 5, 2016, a four-count indictment was filed against Defendant, charging him with two counts of Receiving Child Pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1) and two counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The indictment also asserted a forfeiture claim against Defendant for two laptops, five flash drives, and one media card.

         II. LEGAL STANDARD

         The Fourth Amendment to the Constitution guarantees the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. In the absence of certain circumstances that are not applicable in this case, it is a violation of the Fourth Amendment for a police officer to search a defendant's residence without a warrant. A court may issue a search warrant only upon a finding that there is probable cause to believe that a crime has been committed and that the person in question has committed that crime. See Maryland v. Pringle, 540 U.S. 366, 372-73 (2003).

         An affidavit establishes probable cause when, based on the totality of the circumstances, the affidavit sets forth sufficient evidence that would cause a reasonable person to believe that a search will uncover evidence of criminal activity. United States v. Watzman, 486 F.3d 1004, 1007 (7th Cir. 2007). Officers have probable cause to conduct a search if “the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Ornelas v. United States, 517 U.S. 690, 696 (1996). “This common-sense, non-technical determination is based not on individual facts in isolation but on the totality of the circumstances known at the time a warrant is requested.” United States v. Aljabari, 626 F.3d 940, 944 (7th Cir. 2010). Officers only need to have a “reasonable probability” of uncovering evidence of a crime, not an “absolute certainty” or a “preponderance of the evidence.” Id. Probable cause “does not require direct evidence linking a crime to a particular place; reasonable inferences are permitted.” Watzman, 486 F.3d at 1008 (internal quotation marks omitted).

         III. ANALYSIS

         A. The Affidavit Supporting the Residence Warrant Set Forth Sufficient Facts to Establish Probable Cause.

         Special Agent Harmon sought the residence warrant after the NIT warrant led to the discovery that a user named “Grite” was accessing the Playpen site. Officers determined that Grite's IP address, obtained from the NIT, was operated by AT&T. In response to the Government's subpoena, AT&T revealed that the subscriber was Defendant, the service address was Defendant's home address, and Defendant had received service from AT&T since December 2012. The NIT program also determined that the computer's Host Name was Donald, which is Defendant's first name. Officers confirmed with building management at Defendant's address that Defendant had resided alone in the apartment for the last three years. These facts, set forth in the residence warrant affidavit, support a finding of probable cause.

         1. The residence warrant was not based on stale information.

         Defendant argues that the year-old information from the NIT on which the residence warrant affidavit is based is stale and ...


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