Last week’s post discussed how bringing the investigation of John Wayne Gacy into the investigative criminal procedure classroom benefits teaching the material on probable cause. We shift gears this week to discuss how the federal government’s investigation into Alex Levin makes for a fantastic discussion (and illustration) of the Fourth Amendment’s exclusionary rule. Compared to the defendants featured in prior posts, Alex Levin is no Adnan Syed or OJ Simpson in terms of pop culture fame, but that’s largely because the government’s methods to investigate Levin stole the show.
In Operation Pacifier, the government embodied the phrase “it takes a thief to catch a thief” by operating a child pornography server as part of a wide-ranging child pornography investigation that caught hundreds of users—including, Alex Levin. Investigative methods aside, Levin’s case grew in prominence because his victory at the motion to suppress stage gave other defendants hope—if just for a while.
But we’re getting ahead of ourselves.
The exclusionary rule (in brief)
Many students read the Fourth Amendment and consider the text to be fairly simple. Nothing could be further from the truth. I find that studying the Fourth Amendment can take up nearly sixty percent of the investigative criminal procedure course—sometimes more. When it comes to studying the exclusionary rule, I have students read the Fourth Amendment’s text and answer this question: What remedy does the Fourth Amendment textually provide? The question is not as simple as it seems. Contrary to the Fifth Amendment, the Fourth Amendment’s text contains no express remedy for its violation. That, however, does not mean that no Fourth Amendment remedy exists. Since 1914, the Supreme Court has recognized that the Amendment implicitly contains a remedy for its violation—namely, suppression of illegally obtained evidence. But despite its historic roots, the modern Supreme Court has steadily backed away from recognizing the exclusionary rule as a constitutionally required remedy, choosing instead to apply the rule only when its deterrent benefit outweighs the cost of excluding evidence of guilt.
Even if the exclusionary rule applies, an exception may still permit the prosecution to introduce and rely on illegally seized evidence. In 1984, the Supreme Court created a now well-known “good faith” exception to the exclusionary rule in United States v. Leon. In brief, that exception allows the prosecution to use illegally obtained evidence against a defendant when, as the Leon majority explained, “the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible in the prosecution’s case-in-chief.
The largest hacking operation in U.S. history (that also led to Alex Levin)
On February 20, 2015, Judge Theresa Buchanan, United States Magistrate Judge for the Eastern District of Virginia, issued a search warrant which allowed the Federal Bureau of Investigation (FBI) to launch the most extensive hacking operation in U.S. history: Operation “Pacifier.” The operation began after FBI Special Agents, operating in the District of Maryland, connected to the internet via an anonymous server and gained access to a pornographic website called “Playpen.” Less than two weeks later, a user of Playpen—later identified as Alex Levin—logged onto the server and downloaded a picture of child pornography. During the investigation that followed, agents secured and executed a warrant to search Levin’s home and found additional images of child pornography.
Investigating “Playpen”
As an anonymous message board, Playpen existed on an internet network only available to users operating a software known as “Tor,” which stands for “the Onion Router.” The Tor software, which is available to the public at large, protects users’ online privacy by routing their communications around a distributed network of relay computers. Doing so renders the IP address of a user’s computer virtually untraceable. Although the Tor software itself is legal, its anonymity feature makes for an attractive tool to facilitate crime.
Based on its anonymous nature, Playpen primarily served to advertise and distribute child pornography. According to the FBI, Playpen had a total of 95,148 posts, over 9,333 total topics, and a total of 158,094 members. The website furnished a number of chat room forums on subjects such as: Jailbait-Boy or Jailbait-Girl (which refers to an underage but post-pubescent minor); Pre-teen Videos; Toddlers; and Family (i.e., familial incest). After reviewing the content of those forums, the FBI found that the majority hosted discussions that included images appearing to depict child pornography and child erotica of prepubescent teenagers and toddlers.
Upon further investigation, agents discovered that many of the forum posts contained references to a private messaging function also offered by the site. Users appeared to be utilizing this message service to privately discuss topics related to child pornography. Based on those observations, the FBI concluded that Playpen was “[d]edicated to the advertisement and distribution of child pornography, the discussion of matters pertinent to child sexual abuse, including methods and tactics offenders use to abuse children, as well as methods and tactics offenders use to avoid law enforcement detection while perpetrating online child sexual exploitation.” Thus, although the FBI was aware that Playpen was operating as a conduit for the distribution of child pornography, the Tor network prevented it from connecting any specific individual to the observed criminal activity.
As a result, the FBI sought a warrant to deploy what it referred to as a “Network Investigative Technique” (“NIT” and “NIT Warrant”). The NIT Warrant would allow the FBI to maintain administrative control of Playpen from a government-controlled computer server in Virginia for a period of thirty days. It would also allow the FBI to hack into each individual computer that connected to Playpen’s host server, bypassing Tor’s anonymity feature, in order to learn (1) the IP address of the computer used to access Playpen, (2) the operating system running on that computer, and (3) the physical location of the equipment that connects the computer to the internet. On February 20, 2015, Magistrate Judge Theresa Buchanan in the United States District Court of the Eastern District of Virginia reviewed and approved the NIT Warrant.
Enter Alex Levin
The timing of the NIT Warrant’s issuance could not have been worse for Alex Levin. On February 10, 2015, just ten days before the NIT Warrant was issued, a profile named “Manakaralupa” was registered on Playpen’s server. Then, on March 4, Manakaralupa accessed a forum titled, “Strawberry Shortcake Reuped on 03/04/2015.” The forum contained, among other things, a link to an image of a picture collage that depicted a pre-pubescent female between five and seven years of age posed in a variety of positions, including one image that had a penis placed in her mouth and others that focused on her vagina and anus.
Relying on data obtained pursuant to the NIT Warrant, the FBI determined that Manakaralupa accessed Playpen from the IP address 108.20.181.106. Additionally, the warrant allowed the FBI to discover information about Manakaralupa’s computer, including its host and login names—“Alex-PC” and “Alex” respectively. Pursuant to an administrative subpoena, Verizon provided the name of the user who was assigned that IP address, Alex Levin, and the address where he received internet service: 64 Plymouth Drive, Apartment C, Norwood, Massachusetts. As a result, United States Magistrate Judge Marianne B. Bowler issued a search warrant for the residence on August 11, 2015. The warrant was executed shortly after at 6:00 a.m. on August 12.
Law enforcement encountered Levin during the search warrant’s execution. As the sole occupant of the residence, Levin told officers that he owned two HP laptops, a cellphone, and two tablet computers. A subsequent forensic review of one of Levin’s HP laptops revealed seven videos and one still image that appeared to depict pre-pubescent females and males engaging in sexual acts of intercourse and masturbation. As a result, Alex Levin was indicted for illegally possessing child pornography.
Levin moves to suppress
On February 19, 2016, Levin filed a motion to suppress all evidence obtained from the government’s search of his computer pursuant to the NIT Warrant, as well as all evidence, including digital images, seized from his home on August 12, 2015. Levin argued that the NIT warrant was invalid because it improperly sought for a judge in Virginia to authorize the search of a computer located in Massachusetts. Levin’s motion reasoned that, because the judge did not have jurisdictional authority to issue the NIT warrant, the court should treat the search of Levin’s computer as if it were conducted without a warrant. Because searches conducted without a warrant are per se unreasonable, Levin concluded, suppression of the evidence obtained pursuant to the NIT warrant was required in order to remedy the government’s illegal search.
In response to Levin’s motion, the government argued that even if the NIT Warrant was deficient, the evidence seized pursuant to that search warrant and the subsequent residential warrant remained admissible under Leon’s good-faith exception to the exclusionary rule. The government reasoned that, because the exclusionary rule is intended to deter police misconduct rather than punish the errors of judges, the FBI’s reliance on the NIT Warrant meant that the officers who executed the NIT and residential warrants reasonably relied on warrants issued by federal magistrates.
A hearing on Levin’s motion took place on March 25, 2016, before Judge William Young, in the United States District Court of Massachusetts. Following the hearing, the court agreed with Levin that the NIT Warrant violated the territorial restrictions placed on the issuing magistrate’s authority. Accordingly, the district court granted Levin’s motion and suppressed the media files seized from his home on August 12, 2015.
The district court’s decision to suppress the evidence against Levin was controversial to say the least. The ruling threatened the viability of hundreds of other Operation Playpen prosecutions. Accordingly, the government appealed the district court’s order to the U.S. Court of Appeals for the First Circuit. But more on that in a moment.
How does Operation Playpen benefit students in the classroom?
Like our prior conversations about Syed, Simpson, and Gacy, there is just so much to unpack from the investigation into Alex Levin. This post therefore seeks only to scratch the surface of Levin’s case by offering two big picture benefits it brings to the investigative criminal procedure classroom. First, Levin’s motion to suppress illustrates for students how to approach and analyze an exclusionary rule issue. Second, the government’s responsive arguments show off the wide-ranging application of Leon’s good faith exception to the exclusionary rule. Collectively, and I think most importantly, Levin’s case provides students with a real-world example demonstrating why both prosecutors and defense attorneys must consider the exclusionary rule and Leon’s good faith exception together.
Structuring the application of the exclusionary rule
As a starting point to considering how to apply the exclusionary rule, I think it’s critical for students to learn how to identify a primary illegality; that is, the fundamental police conduct that violates the defendant’s Fourth Amendment rights. It’s likewise important for students to identify the “fruit” of the initial illegality. With that basic structural framework in place, I first use Levin’s case to ask students what a basic application of the exclusionary rule would exclude from the government’s case-in-chief as an initial illegality. Separately, I ask what would also be suppressed as the fruit of that illegality.
In Levin’s case, two Fourth Amendment actions might constitute a primary illegality. First, the NIT Warrant is the most compelling primary illegality. Assuming so, the fruit of the poisonous tree doctrine would keep out anything and everything the government learned as a result of its execution, particularly that Levin was a user of the Playpen website. That would, in turn, invalidate the subsequently obtained search warrant for his home and exclude all of the evidence obtained therefrom. But that argument, if accepted, would have wide-ranging implications for the legality of Operation Pacifier as a whole; indeed, all defendants outside the Eastern District of Virginia could automatically seek suppression. I cannot imagine that a suppression court would be particularly enthusiastic about that outcome.
There is a second possibility. That is, the search of Levin’s home pursuant to the Massachusetts warrant might also constitute a primary illegality. That too would preclude the government from admitting evidence seized from his home pursuant to the residential warrant. As I like to point out for students, associating the primary illegality with the search warrant lessons the impact on the government’s case. If accepted, the remedy would apply solely to Levin and no other Operation Playpen suspect.
Highlighting those two possibilities for students helps to start a broader conversation: assignment of the primary illegality is arguable. More critically, both defense attorneys and prosecutors should strategically assign the primary illegality on a case-by-case basis. It generally behooves the defense to construe the primary illegality as broadly as possible because doing so offers the defense an array of touchpoints to prove a Fourth Amendment violation. The prosecution, by contrast, benefits by limiting when a primary illegality occurred. In sum, I want students to leave this portion of the Levin conversation with the understanding that it matters where litigants assign the primary illegality.
Thinking through application of Leon’s good faith exception
With the structure of Levin’s suppression arguments in mind, I turn next to consider the power and scope of Leon’s good faith exception to the exclusionary rule. The government argued in straightforward fashion that the rationale underlying the good faith exception precluded suppression because, well, the government reasonably relied on issuance of the NIT Warrant. But in doing so, the government missed the opportunity to argue what Leon called the “substantial social costs exacted by the exclusionary rule.” Indeed, in Levin’s case, there were substantial costs. After all, if suppression was appropriate for Levin, then presumably every other defendant discovered pursuant to the NIT Warrant could likewise successfully argue for suppression in their respective cases. In addition to failing to brief that argument, the government would wait to even mention Leon until the very end of its oral argument before Judge Young. And the government paid the price—at least initially.
During Levin’s suppression hearing, the district court first held that the issuing magistrate did not, in fact, have jurisdiction to issue the NIT Warrant. It then secondarily held that Leon did not save the warrant. Accordingly, the district court suppressed the media found during the August 12 search of Levin’s home. The court’s decision was potentially devastating—for the government at least. By the time of Levin’s motion, the government had arrested more than 800 individuals worldwide for using Playpen to obtain child pornography. Like Levin, many of those defendants had few viable legal arguments. Consequently, as you might imagine, those defendants and their legal teams were acutely interested in the results of Levin’s suppression hearing. After all, if he won, the vast majority of defendants identified pursuant to the NIT Warrant would presumably file successful motions to suppress as well. To put it modestly, the district court’s decision to suppress the evidence in Levin’s case had potentially wide-ranging implications.
But as you may recall, the district court’s order was not the end of the story. The First Circuit reversed the district court on appeal by interpreting Leon to save the FBI’s reliance on the NIT Warrant. It did so by focusing on the role of police deterrence, noting that the FBI correctly sought judicial oversight by obtaining a warrant before investigating the Playpen site—even though the warrant was flawed. Accordingly, the First Circuit reasoned, there was nothing about the FBI’s behavior to deter. In a particularly compelling passage, the court wrote:
[W]e are unpersuaded that there was any bad faith on the part of the executing officers. The officers acted pursuant to the warrant. To the extent that a mistake was made in issuing the warrant, it was made by the magistrate judge, not by the executing officers, and the executing officers had no reason to suppose that a mistake had been made and the warrant was invalid. As discussed [previously], the NIT warrant was not written in general terms that would have signaled to a reasonable officer that something was amiss. *** Therefore, because the government acted in good faith reliance on the NIT warrant, and because the deterrent effects on law enforcement do not outweigh the great cost to society of suppressing the resulting evidence, suppression is not warranted.
That seems a narrow view of deterrence. Recall the government argued in support of obtaining the NIT Warrant that because it really had no idea who or what that warrant would turn up, it could seek a single warrant in the Eastern District of Virginia—the geographic location where the Playpen website operated—to investigate Playpen users nationwide. But that argument raises some uncomfortable individual privacy concerns. To begin with, its approach contradicts how criminal investigations should (and typically do) work. The Fourth Amendment requires that a warrant specify who and/or what is to be searched and/or seized with particularity. Despite that requirement, the government’s argument—viewed uncharitably—invited the magistrate to sign a general warrant with the promise that lingering details could be added to the warrant as the investigation proceeded. Viewed in that context, it seems there was indeed police behavior to deter in Levin’s case.
If nothing else, the government’s approach and the First Circuit’s decision collectively show just how powerful and wide-reaching the Leon good faith doctrine is. Relatedly, I hope students emerge from the Leon-focused portion of the Levin discussion with the somber realization that having a strong case for exclusion is often insufficient to actually merit exclusion. Rather, Leon presents a separate and very real challenge to obtaining suppression. For that reason, I likewise hope that students come to view Leon as an immensely important case.
Looking ahead
I’ll be back next week with thoughts on the plain view doctrine as explained through the investigation of Aaron Hernandez (the former New England Patriots tight end).
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