17-3154-cr
United States v. Allen

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
5th day of August, two thousand nineteen.

Present:
            DEBRA ANN LIVINGSTON,
            DENNY CHIN,
                  Circuit Judges,
            PAUL A. CROTTY,
                  District Judge.*
_____________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                  v.                                                     17-3154-cr

TIMOTHY ALLEN,

                  Defendant-Appellant.
_____________________________________


For Defendant-Appellant:                     JAMES P. MAGUIRE, Assistant Federal Defender, for
                                             Terry S. Ward, Federal Public Defender for the
                                             District of Connecticut, New Haven, Connecticut.


*
  Judge Paul A. Crotty, of the United States District Court for the Southern District of New York, sitting
by designation.


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For Appellee:                               JACABED RODRIGUEZ-COSS (Marc H. Silverman, on
                                            the brief), for John H. Durham, United States Attorney
                                            for the District of Connecticut, New Haven,
                                            Connecticut.

       Appeal from a judgment of the United States District Court for the District of

Connecticut (Covello, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Timothy Allen (“Allen”) appeals from a judgment of the United

States District Court for the District of Connecticut, filed September 25, 2017, sentencing him to

24 months’ imprisonment and 5 years of supervised release following his guilty plea to one

count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).         See

Joint Appendix (“J.A.”) 497.    We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal, which we note only to the extent

necessary to explain our decision.

       Allen pled guilty following the denial of his motion to suppress on March 8, 2017.    That

motion is the focus of his appeal. His case arose out of evidence gathered under the auspices of

the same warrant that is the subject of our simultaneously-filed opinion in United States v.

Eldred, which involved the use of a search program called a Network Investigative Technique

(“NIT”) by the government to circumvent the anonymizing features of the dark web for

registered users of a child pornography site known as “Playpen.” See Slip Op. at 2-3, No.

17-3367-cr (2d Cir. Aug 5, 2019).

                                        *        *       *

       “On appeal from a district court’s ruling on a motion to suppress, we review the court's

factual findings for clear error.” United States v. Raymonda, 780 F.3d 105, 113 (2d Cir. 2015).


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“We review the court’s legal determinations . . . de novo.” Id.       In reviewing a district court

decision, this Court is “free to affirm an appealed decision on any ground which finds support in

the record, regardless of the ground upon which the trial court relied.” McCall v. Pataki, 232

F.3d 321, 323 (2d Cir. 2000) (quoting Leecan v. Lopes, 893 F.2d 1434, 1439 (2d Cir. 1990)).

Probable Cause

       At the time Allen visited Playpen, the website’s logo was not identical to the logo that the

FBI had presented in the warrant application submitted to the magistrate judge. Allen first

argues that this change constituted new information that needed to be presented to the magistrate

and that, considered in light of this new information, the warrant application to deploy the NIT

(the “NIT warrant”) lacked probable cause. We disagree. In order “[t]o suppress evidence

obtained pursuant to an affidavit containing erroneous information, the defendant must show

that: (1) the claimed inaccuracies or omissions are the result of the affiant’s deliberate falsehood

or reckless disregard for the truth; and (2) the alleged falsehoods or omissions were necessary to

the issuing judge’s probable cause finding.” United States v. Canfield, 212 F.3d 713, 717-18

(2d Cir. 2000) (internal quotation marks and brackets omitted).        To determine whether “the

false information was necessary to the issuing judge’s probable cause determination, i.e.,

material, a court should disregard the allegedly false statements and determine whether the

remaining portions of the affidavit would support probable cause to issue the warrant.” Id. at

718 (internal quotation marks omitted).

       Even assuming, arguendo, that law enforcement agents deliberately did not tell the

magistrate judge that the website’s logo had changed, this change cannot be deemed material to

the magistrate’s finding of probable cause.     First, while the logo submitted with the warrant

application depicted two young girls, the new logo, also depicting one young girl posed, as the


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district court described it, “in a sexual manner,” J.A. 468, hardly suggests that Playpen was not

devoted to child pornography.      Moreover, the additional indicia supporting probable cause did

not change: (1) the site’s suggestive name, “Playpen”; (2) the texts near the logo, which the NIT

affiant explained were terms of art on sites such as these; (3) the fact that Playpen was a hidden

service on Tor, and thus could not be accessed absent affirmative steps by users, likely reflecting

knowledge of the sort of information the website contained; and (4) the site’s registration notice,

which emphasized anonymity and the inability of anyone, even the site’s administrators, to see

who accessed it.     As the district court aptly observed, “Playpen’s major defining characteristics,

as described by the FBI agent in his search warrant affidavit, remained the same.” Id.

Good Faith

          Next, Allen argues that the warrant was issued in violation of both statutory and rule

constraints on the magistrate judge’s authority, that its issuance was a violation of his

constitutional rights, and that it cannot be saved by application of the good faith exception. As

in Eldred, we see no need to consider whether the NIT warrant violated either Federal Rule of

Criminal Procedure 41(b), or the territorial restrictions of the Federal Magistrates Act, see 28

U.S.C. § 636(a).     Even assuming, arguendo, that there was such a violation—and that the

violation was of constitutional significance—suppression of evidence is not a “necessary

consequence of a Fourth Amendment violation.” Herring v. United States, 555 U.S. 135, 141

(2009).     On the contrary, “[w]here suppression fails to yield appreciable deterrence, exclusion is

clearly . . . unwarranted.”   Davis v. United States, 564 U.S. 229, 237 (2011) (internal quotation

marks omitted).     “[W]hen the police act with an objectively reasonable good-faith belief that

their conduct is lawful . . . the deterrence rationale loses much of its force, and exclusion cannot

pay its way.” Id. at 238 (internal quotation marks omitted) (alteration in original).


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       For the same reasons we expounded upon in Eldred, we uphold the district court’s

decision to deny suppression of the evidence collected pursuant to the NIT Warrant because we

conclude the good faith doctrine applies.       As noted in that opinion, we decline to make any

categorical exception to the good faith doctrine for warrants that are allegedly void ab initio, as

the good faith doctrine does not punish law enforcement for the errors of magistrates. See

Eldred, Slip Op. at 26 (“Even assuming, arguendo, that statutory or rule limitations on a

magistrate judge’s jurisdiction also rise to the level of independent constitutional requirements,

we see no reason to treat a magistrate judge’s non-compliance with these requirements

differently than non-compliance with a fundamental Fourth Amendment constraint on the

issuance of warrants, such as probable cause.”). And to the extent Allen suggests the district

court inappropriately put the burden on him to prove bad faith, on de novo review we conclude

the government proved the “objective reasonableness of [its] officers’ good faith reliance.”

United States v. Clark, 638 F.3d 89, 100 (2d Cir. 2011).    When faced with the difficult problem

of applying existing law to new circumstances, the government turned to the courts for guidance,

something we see “no benefit in deterring.” See Eldred, Slip Op. at 24 (quoting United States

v. Levin, 874 F.3d 316, 323 (1st Cir. 2017)).

       We have considered Allen’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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