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United States v. Halgren

United States District Court, W.D. Texas, San Antonio Division

August 30, 2017

UNITED STATES OF AMERICA,
v.
ZACHARY AUSTIN HALGREN, Defendant.

          ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE.

         Defendant is charged with receipt of child pornography and possession of child pornography. Defendant seeks to suppress the evidence in this case. The motion is denied.

         Background

         In December 2014, the Government became aware of a website named Playpen that contained child pornography. One of the servers for that website was in North Carolina. Ultimately the Government seized that server pursuant to a warrant, relocated the server to Virginia, and assumed the role of administrator. When the Government was unable to identify the identity of the approximate 150, 000 members of the website, the Government obtained a warrant on February 20, 2015 to deploy Network Investigative Technique (NIT) malware. The warrant authorized the search for persons located in the Eastern District of Virginia. The malware, however, reached all computers accessing the website, including Defendant Halgren's computer in San Antonio, Texas.

         Through the malware the Government discovered that a user named “Platch” accessed the site, and the Government discovered the IP address associated with “Platch.” Defendant Halgren was the user associated with the IP address.

         On December 15, 2016, the Government sought a search warrant for the Defendant's home, computers, and car. When the warrant was executed agents questioned Halgren and he gave incriminating statements in response to the questions. He was arrested eight days later.

         Motion to Suppress

         Defendant argues that the deployment of the NIT malware was a search for Fourth Amendment purposes and that the NIT warrant lacked particularity. The defendant argues that the NIT warrant should have described with particularity the place to be searched. The NIT warrant, however, captured information from thousands of computers in 120 countries.

         Alternatively, Defendant argues that the NIT warrant was issued in violation of the Federal Magistrate Act and former Federal Rule of Criminal Procedure 41 because an Eastern District of Virginia warrant was used to search a computer located in the Western District of Texas. Defendant further argues that since the Magistrate Judge lacked jurisdiction to issue the NIT warrant, the NIT warrant was void from inception.

         Further, Defendant argues that the affiant for the search warrant of his home made false statements in his affidavit.

         Analysis

         A. The NIT warrant did not lack particularity.

         The Magistrate Judge signed a warrant that authorized in Attachment A (Place to be Searched) that a NIT be deployed on the computer server already seized by the Government (“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 . . . .”). The Magistrate Judge further identified in Attachment A of her Warrant that the NIT was to be deployed to obtain information as that term was defined in Attachment B from “activating computers.” “Activating computers” was defined as “those of any user or administrator who logs into the TARGET WEBSITE by entering a username and password.” Attachment B of the Warrant authorized the seizure of any activating computer's actual IP address and other specific information that was evidence of any receipt, access, or distribution of child pornography.

         As recognized by many courts, “Playpen operated on ‘the onion router' or ‘Tor' network.” United States v. Matish, 193 F.Supp.3d 585, 593 (E.D. Va. 2016). Individuals download the Tor browser from the Tor website. The “Tor network possesses two primary purposes: (1) it allows users to access the Internet in an anonymous fashion and (2) it allows some websites-hidden services-to operate only within the Tor network. Although a website's operator usually can identify visitors to his or her site ...


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