Friday, August 28th, 2020

Government operation of child pornography website to catch visitors is not outrageous government misconduct and the good faith exception applied to evidence found through a warrant based on the site.

United States v. Caraher, No. 18-511 (2d Cir. August 25, 2020)(Hall, joined by Lynch and Menashi), involved the government’s takeover and operation of the child pornography website “Playpen” for two weeks so that it could track visitors to the site, identify their identities and locations, and search their computers. The FBI obtained a warrant allowing them to search “activating computers” of “any user or administrator who logs into the Playpen website by entering a username and password.” Caraher was such a visitor and agents located him and searched his computer. The district court held that the warrant violated Fed. Rule Crim P. 41(b) and 28 U.S.C. 636(a) but applied the good faith exception to the exclusionary rule.

The Court followed its prior decision in United States v. Eldred, 933 F.3d 110, 111 (2d Cir. 2019), addressing the same warrant and holding that, even if the search and the warrant violated Rule 41(b) and the Fourth Amendment, the good faith exception applied. It further rejected Caraher’s argument that the warrant was so deficient of probable cause that no officer could reasonably rely on it based on the summary order in United States v. Allen, 782 F. App’x 21 (2d Cir. 2019) concluding that the warrant was supported by probable cause. Although the summary order had no precedential value, the Court concluded one panel’s finding of probable cause meant that it was reasonable for the agents to rely on it. The Court affirmed the denial of a Franks hearing on the ground that probable cause existed without the false statement that Playpen was a “hidden” website and could not be accessed without prior knowledge. Although the website’s logo had been changed to depict a more innocent-looking young woman that would not immediately suggest child pornography, the Court held that the the suggestive name “Playpen”, the texts near the logo using terms of art, and the promise of anonymity in the registration notice were sufficient to establish probable cause that anyone logging in knew what they were accessing.

The Court also rejected the argument that the change in logo since the warrant was drafted changed the event that would “trigger”  probable cause because Caraher did not log in to the website “as described in the warrant application.” The trigger in the warrant itself, the court held, was logging into the URL, and was not based on the description in the affidavit.

Finally, the Court rejected the claim that the operation of a child pornography website was “outrageous government misconduct” warranting dismissal of the indictment because the government’s actions did not cause the crime but only failed to stop it. The government did not create the website or encourage Caraher to visit it and it removed part of the site encouraging members to share new pornography.


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