United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ADOPTING RECOMMENDATION OF UNITED STATES
L. MAZZANT, UNITED STATES DISTRICT JUDGE
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. §
1, 2017, the report of the Magistrate Judge (Dkt. #47) was
entered containing proposed findings of fact and
recommendations that Defendant Jose Victor
Hernandez-Cuellar's Motion to Suppress Evidence (Dkt.
#25), Motion for Continuance of Suppression Hearing (Dkt.
#40), and Opposed Motion Requesting Evidentiary Hearing (Dkt.
#41) each be denied. Having received the report of the
Magistrate Judge (Dkt. #47), and having considered
Defendant's timely filed objections (Dkt. #49), and the
Government's Response thereto (Dkt. #50), the Court is of
the opinion that the recommendation of the Magistrate Judge
is correct and the Motion to Suppress, Motion for
Continuance, and Motion for Evidentiary Hearing each should
Government's search and seizure of information from
Defendant's computer and the subsequent search of his
home form the basis of the present evidentiary dispute
(see generally Dkt. #25; Dkt. #38; Dkts. #40-41;
Dkt. #47). The Magistrate Judge sets out the facts of this
case in further detail, and the Court need not repeat them
here in their entirety (see Dkt. #47 at 1-5).
Accordingly, the Court sets forth herein only those facts
pertinent to Defendant's objections.
was indicted on September 7, 2016, for violation of 18 U.S.C.
§ 2251(a), (e) (Production of Child Pornography) (Dkt.
#11). The Government's charges against Defendant arose
following search of his home and seizure of evidence pursuant
to a warrant issued by a United States Magistrate Judge in
the Eastern District of Texas (“Residential
Warrant”) (see Dkt. #25, Exhibit 1). The
Residential Warrant authorized search of Defendant's home
(2201 Rockbrook Dr., Apartment 1131, Lewisville, Texas,
75067) based upon an affidavit provided by FBI Special Agent
Christopher W. Thompson (Dkt. #25, Exhibit 1, Affidavit)
(“Thompson Affidavit”). The Thompson Affidavit
provides Thompson's credentials, explains Thompson's
bases for probable cause to search Defendant's home and
seize evidence therein, and describes the FBI's
background investigation of a website (and its users) called
“Playpen” or “Website A” (Thompson
Affidavit at 11-20). Specifically, the Thompson Affidavit
details the investigation of user “zapatero5” and
the FBI's discovery of Defendant's access of Website
A under such username (Thompson Affidavit at 20-23).
to the Thompson Affidavit, “law enforcement agents
acting pursuant to an order of the United States District
Court for the Eastern District of Virginia” conducted
an investigation of user zapatero5 (Thompson Affidavit at
14). More specifically, a United States Magistrate Judge in
the Eastern District of Virginia (“Eastern District of
Virginia Magistrate”) issued the order (warrant)
referenced in the Thompson Affidavit. This warrant authorized
the search of computers, including Defendant's, accessing
Website A's server (at a time when the server was located
in the Eastern District of Virginia) through a set of
computer instructions the FBI installed on the server called
a “Network Investigative Technique” or
“NIT” (Dkt. 25, Exhibit 2) (“NIT
challenges the Residential Warrant only to the extent it
relies upon the NIT Warrant as a basis for probable cause;
Defendant concedes that, if the Court finds the NIT Warrant
valid and legal, then the Residential Warrant would be
facially valid, as well (Dkt. #46 at 3).
Warrant includes two attachments specifying the
“[p]lace to be searched” (Attachment A) and the
“[i]nformation to be seized” (Attachment B).
Attachment A provides in whole as follows:
This warrant authorizes the use of a network investigative
technique (“NIT”) to be deployed on the computer
server described below, obtaining information described in
Attachment B from the activating computers described below.
The computer server is the server operating the Tor network
child pornography website referred to herein as the TARGET
WEBSITE, as identified by its URL - upf45jv3bziuctml.onion -
which will be located at a government facility in the Eastern
District of Virginia.
The activating computers are those of any user or
administrator who logs into the TARGET WEBSITE by entering a
username and password. The government will not employ this
network investigative technique after 30 days after this
warrant is authorized, without further authorization.
(NIT Warrant, Attachment A). Attachment B describes the
information to be seized as evidence of violations of various
criminal statutes proscribing the use, distribution, or
access of child pornography, namely the following:
From any “activating” computer described in
l . the “activating” computer's actual IP
address, and the date and time that the NIT determines ...