United States v. Hammond

263 F. Supp. 3d 826
CourtDistrict Court, N.D. California
DecidedDecember 8, 2016
DocketCase No. 16-cr-00102-JD-1
StatusPublished

This text of 263 F. Supp. 3d 826 (United States v. Hammond) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hammond, 263 F. Supp. 3d 826 (N.D. Cal. 2016).

Opinion

ORDER RE MOTIONS TO SUPPRESS AND DISMISS

JAMES DONATO, United States District Judge

This case raises the question of whether evidence obtained under a search warrant issued in excess of a magistrate judge’s authority should be suppressed. Under controlling Ninth Circuit authority, the answer is no. This case also raises the question of whether the defendant should have been advised of his Miranda rights before making incriminating statements to law enforcement officers during an interrogation at dawn in his home. This evidence must be suppressed.

BACKGROUND

The background facts are largely undisputed. Defendant Dumaka Hammond is a registered sex offender with two prior convictions for possession of child pornography. In July 2015, an FBI special agent applied to a magistrate judge in this district for a search warrant for Hammond’s home in Richmond, California. The application stated that an IP address linked to an online child pornography site had been traced to a Comcast account in Hammond’s name and with his home address.

The FBI linked Hammond to the online site during an investigation under a search warrant issued in the Eastern District of Virginia. In January 2015, the FBI had seized in North Carolina a server hosting a website known as “Playpen.” Playpen was a website dedicated to child pornography, including discussion forums and a multitude of images and videos organized by various categories. Users could access the Playpen website only through the Tor network, a free online network designed to [829]*829anonymize a user’s actual IP address and hide his true location by routing Internet activities through thousands of volunteer relay computers. Playpen required a user-name, password and e-mail account for access but it expressly warned users not to enter their real e-mail addresses.

After seizing Playpen, the government decided to keep it in operation on a government server housed in Newington, Virginia in order to locate and identify Playpen users. To that end, the government filed in the Eastern District of Virginia 'an application for a search warrant authorizing the use of a Network Investigative Technique (“NIT”) to work around the anonymizing technology of Tor and uncover the identity of Playpen users. The NIT was software that would be deployed on the Playpen website and sent to the computer of any user or administrator who logged into Playpen with a username and password. Once embedded in the user’s computer, the NIT would cause the computer to send back to the FBI its IP address and other identifying information. The warrant application sought authorization to deploy the NIT to any user who accessed Playpen wherever the user was located, regardless of whether the user’s geographic location was inside or outside the Eastern District of Virginia,

On February 20, 2015, a magistrate judge in the Eastern District of Virginia signed the warrant authorizing use of the NIT for a 30-day period. On the same day, the government also obtained authorization of a separate wiretap order — to intercept the communications taking place on' Playpen — from a district judge in the Eastern District of Virginia. On March 4, 2015, the government decided to terminate the NIT search and take Playpen permanently offline, after approximately two weeks of operation. Hammond accessed-Playpen while the warrant was in effect and the NIT sent his user information to the FBI, which resulted in the search warrant issued in this district.

The search warrant here was issued by a magistrate judge on July 16, 2015, and executed the next morning. Twelve federal special agents from the FBI and the U.S. Postal Inspectors, and three federal and state non-officers (a state senior investigator and two FBI support personnel) arrived at Hammond’s home at approximately 6 a.m. There were also two marked Richmond police department cars that were present during at least the initial service of the warrant. Hammond was only half-dressed and.was not wearing a shirt when the law enforcement personnel arrived. He saw at least one officer holding a gun. Hammond and his mother, sister and fourteen-year-old niece were all initially handcuffed outside the house while the officers searched the interior of Hammond’s home. Hammond was later interviewed in his bedroom. His handcuffs were removed for the interview, but he remained shirtless. There were at least two agents in the room with Hammond, and the door to his bedroom was closed. Hammond was interviewed for 65 minutes, and he was not at any point read his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At the conclusion of his interview, he signed a written statement in which he confessed to and apologized for viewing child pornography.

DISCUSSION

I. SUPPRESSION OF THE NIT WARRANT (DKT. NOS. 19, 31)

Hammond challenges only the NIT warrant issued by the magistrate judge in the Eastern District of Virginia, and not the search warrant for his home that was issued by the magistrate judge in this district. . He challenges the NIT warrant on two separate grounds: that it violated Federal Rule of Criminal Procedure 41 [830]*830and the Fourth Amendment’s particularity requirement. Dkt. NosV 19, 31.

The first question is whether a warrant was needed at all for the NIT to be deployed. The government takes the position that it was not because Hammond had no reasonable expectation of privacy in his IP address. That argument might have carried the- day if the government had obtained Hammond’s IP address from a third party, see U.S. v. Forrester, 512 F.3d 500, 509-11 (9th Cir. 2008), but here, the government obtained it directly from Hammond’s computer via the NIT. This distinction makes all the difference. See, e.g., Riley v. California, — U.S.-, 134 S.Ct. 2473, 2492-93, 189 L.Ed.2d 430 (2014) (distinguishing between using a pen register at a telephone company’s premises, which is “not a ‘search’ at all,” versus the police searching' a defendant’s cell phone directly, even if for the call log only). . ■■■

In Riley, the Supreme Court took a significant step in advancing Fourth Amendment standards into the digital age. Among other holdings, the Court underscored the fact that modern cell phones are effectively - “minicomputers” with immense storage capacity that users rely on for “a digital record of nearly every aspect of their lives — from the mundane to the intimate.” Id. at 2490. Consequently, a law enforcement search of a cell phone directly implicates the user’s privacy interests. Id. at 2489-90. These privacy concerns apply equally and arguably even more strongly to law enforcement’s search of a laptop computer. Cf. U.S. v. Bare, 806 F.3d 1011, 1021 (9th Cir. 2015) (Kozinski, J., dissenting) (search of a defendant’s, laptop computer would “certainly do no less” than the search of a cell phone in “allowing police to reconstruct ‘[t]he sum of an individual’s private life.’ ”) (quoting Riley, 134 S.Ct. at 2489); U.S. v. Kim, 103 F.Supp.3d 32, 54 n.14 (D.D.C. 2015) (“The fact that Riley

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Bluebook (online)
263 F. Supp. 3d 826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hammond-cand-2016.