United States v. Arterbury

322 F. Supp. 3d 1195
CourtDistrict Court, N.D. Oklahoma
DecidedApril 30, 2018
DocketCase No. 18-CR-0056-CVE
StatusPublished
Cited by1 cases

This text of 322 F. Supp. 3d 1195 (United States v. Arterbury) is published on Counsel Stack Legal Research, covering District Court, N.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Arterbury, 322 F. Supp. 3d 1195 (N.D. Okla. 2018).

Opinion

CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

Now before the Court are defendant Scott Frederick Arterbury's motion to enforce prior order suppressing evidence on grounds of collateral estoppel (Dkt. # 13), and motion, in the alternative, to suppress evidence and request for an evidentiary hearing (Dkt. # 14).

I. Background

According to plaintiff, defendant Scott Frederick Arterbury is among the hundreds nationwide whom the Federal Bureau of Investigations (FBI) discovered accessing the child pornography website PlayPen. Dkt. # 18, at 1; see generally United States v. Workman, 863 F.3d 1313, 1314-16 (10th Cir. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 1546, 200 L.Ed.2d 748 (2018).

*1197To identify these individuals, the FBI obtained a warrant (the PlayPen warrant) from a magistrate judge in the Eastern District of Virginia (E.D. Va.). Work man, 863 F.3d at 1315-16. The PlayPen warrant permitted the FBI to install software onto PlayPen's server (which the FBI seized and loaded onto a separate, government server located in the E.D. Va.), and when a user accessed PlayPen, this software would install malware onto the user's computer. Id. For the user, the coup de grâce was that the malware would then search his or her computer for identifying information, such as an IP address, and transmit it back to the FBI. Id. Identifying information in hand, the FBI would then obtain a warrant in the district in which the user lived to search his residence and computer for child pornography. Id.

In prosecuting these so-called PlayPen cases in federal courts throughout the country, plaintiff, in some instances, has encountered a roadblock in the form of a two-part legal question that district courts have answered differently: i.e. does a magistrate judge in the E.D. Va. have the authority to issue a warrant seeking to search property outside of her judicial district? And, even if no, does the good faith exception to the Fourth Amendment's exclusionary rule (see United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ) nevertheless require district courts to admit evidence obtained pursuant to the PlayPen warrant? See generally Christine W. Chen, Comment, The Graymail Problem in a World Going Dark: Balancing the Interests of the Government and Defendants in Prosecutions Using Network Investigative Techniques, 19 Colum. Sci. & Tech L. Rev. 185, 187 (2017) (noting divide among district courts as to these questions and collecting cases).

Defendant, who plaintiff alleges accessed PlayPen from a computer in Oklahoma, answers both questions in the negative. And, in a prior prosecution against him, based on facts identical to the instant matter, a different judge in this district agreed. See United States of America v. Scott Frederick Arterbury, 15-CR-182 (N.D. Okla. filed Dec. 7, 2015) (Arterbury I ), Dkt. # 47.

In Arterbury I, on December 7, 2015, a grand jury indicted defendant on one count of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). Id. at Dkt. # 14. Defendant filed a motion to suppress the photos and videos of child pornography that the FBI obtained in searching his residence and computer. Id. at 33. The magistrate judge handling pretrial matters issued a report and recommendation recommending that the district judge grant defendant's motion, finding: (1) under Fed. R. Crim. P. 41 and the Federal Magistrate Judges Act, the E.D. Va. magistrate judge lacked the authority to issue a warrant seeking to search property outside of her judicial district; and (2) the good faith exception did not apply to evidence obtained pursuant to the PlayPen warrant, as the E.D. Va. magistrate judge's lack of jurisdictional authority rendered the warrant void ab initio. Id. at Dkt. # 42. The district court accepted the magistrate judge's report and recommendation and granted defendant's motion to suppress. Id. at Dkt. # 47. After the district court denied plaintiff's motion to reconsider the suppression order, on July 26, 2016, plaintiff filed a notice of interlocutory appeal with the Tenth Circuit, challenging the suppression order. Id. at Dkt. ## 55-56. But shortly thereafter, plaintiff moved to voluntarily dismiss its interlocutory appeal and, in the district court, moved to voluntarily dismiss the indictment. Id. at Dkt. # 63, Dkt. # 66. On October 20, 2016, the Tenth Circuit dismissed plaintiff's interlocutory appeal. Id. at Dkt. # 63.2

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Arterbury
Tenth Circuit, 2020

Cite This Page — Counsel Stack

Bluebook (online)
322 F. Supp. 3d 1195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-arterbury-oknd-2018.