United States v. Derek Tagg , 886 F.3d 579 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0062p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellant, │
│ No. 17-1777
>
v. │
│
│
DEREK MICHAEL TAGG, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:16-cr-20597-1—Paul D. Borman, District Judge.
Argued: March 7, 2018
Decided and Filed: March 27, 2018
Before: COOK, McKEAGUE, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Mark J. Chasteen, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan,
for Appellant. Benton C. Martin, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for
Appellee. ON BRIEF: Mark J. Chasteen, UNITED STATES ATTORNEY’S OFFICE, Detroit,
Michigan, for Appellant. Benton C. Martin, FEDERAL DEFENDER OFFICE, Detroit,
Michigan, for Appellee.
McKEAGUE, J., delivered the opinion of the court in which COOK and STRANCH, JJ.,
joined. STRANCH, J. (pg. 16), delivered a separate concurring opinion.
No. 17-1777 United States v. Tagg Page 2
_________________
OPINION
_________________
McKEAGUE, Circuit Judge. In September 2015, police executed a warrant at Derek
Tagg’s residence, searching for child pornography. They found plenty of it—over 20,000 files,
all stored on Tagg’s computer. The search warrant was based primarily on digital evidence from
an FBI operation showing that Tagg had spent over five hours browsing a website (“Playpen”)
that obviously contained child pornography. The district court found that the police lacked
probable cause to search Tagg’s house because the search warrant did not state that Tagg
actually viewed any illegal images while on the site. Further, the court held that no reasonable
officer would have relied on the warrant, and therefore suppressed all the evidence seized from
Tagg’s home. Because the warrant was supported by probable cause, we REVERSE the order
granting the motion to suppress and REMAND the case for proceedings not inconsistent with
this opinion.
I
This case arises out of federal and state investigations into child exploitation on the “dark
web.” The “dark web” is a sophisticated, anonymous internet network used both by criminals
and by other individuals who, for whatever reason, do not want to be identified.
A
Until it was shut down by the FBI, Playpen operated a secret website on the “dark web.”
Although we think of websites as “out there” in the ether, the physical location of an ordinary
website is on a computer programmed to permit access by anyone connected to the internet.
Typical internet users access websites by searching for subjects through search engines (e.g.,
Google) in widely available web browsers (e.g., Mozilla Firefox), just like the ordinary shopper
can walk into a store and look for signs indicating the location of the goods they desire.
Clandestine websites like Playpen, however, sometimes require a “mask” before you can enter
the computer(s) housing them. In this case, that “mask” is a web browser called “Tor,” which
hides your online “face” from other people on the internet.
No. 17-1777 United States v. Tagg Page 3
Your online “face” is known as an “IP address,” a unique number assigned to every
computer connected to the internet. To hide your identity, Tor effectively masks your IP address
so that the people operating the website’s physical computers cannot trace your IP address back
to your personal identity or your residence. Because this makes it difficult for anonymous
websites to track customer preferences or allow users to interact with one another, websites like
Playpen require you to create an identifying “pseudonym” when you enter the website. Thus,
Playpen knows what each user likes and what it has looked at, but it cannot discern who the user
is outside the confines of the website.
Further, Tor can also hide a website from all search engines entirely. In other words, a
website operating on the Tor network can require you to know the exact combination of letters
and numbers comprising the website’s URL1 before permitting you to see its content. And
unlike intuitive URLs like cnn.com or nytimes.com, the URL of a secret Tor website like Playpen
is randomized—for example, upf45jv3bziuctml.onion. Absent some statistically impossible
stroke of luck, a site like Playpen is “an island that cannot be found, except by those who already
know where it is.” To access such a website, a newcomer must generally befriend someone who
knows the URL, usually the website owner or another frequent user.
But just like in real life, nothing on the internet can be kept totally secret. Police or
malicious website owners have discovered ways to work around Tor’s “mask” and identify the
people who visit a website. This is done by embedding software in the fabric of the website,
which creates a digital “fingerprint”2 identifying each user’s IP address. Police can then link the
1
“URL” stands for “uniform resource locator,” a combination of letters and numbers that comprise the
digital “address” of a website.
2
The technical details of how the FBI accomplishes this are mostly unimportant for the purposes of this
appeal. Anytime you click on a website’s content (e.g., a link, an image, a page), the website’s host computer
transmits data to your computer, allowing you to view the content that you requested. Ordinarily, this act is
harmless, since most website owners are careful to give the user only what they requested. However, hackers and
criminals sometimes embed secret “viruses” or “malware” in website content. If a user clicks on website content
containing these nefarious programs, they are transmitted to the user’s computer along with the requested content.
Viruses can be programmed to do a broad range of things, from simply shutting down the user’s machine to stealing
information.
What the FBI did here is obtain authorization to place a “benevolent virus” on the target website, which
installs itself on the user’s machine when he or she clicks on any website content. The virus, instead of wreaking
havoc, obediently transmits only the information permitted by the warrant. In this case, the warrant only permitted
the virus to transmit (a) information identifying the physical location of the user’s machine, and (b) information
No. 17-1777 United States v. Tagg Page 4
“fingerprint” to the user’s “pseudonym,” and track what the person has viewed on the website.
Police can also use a computer’s IP address to discern its physical location through publicly
available databases and routine subpoenas to companies like AT&T and Comcast. Thus, armed
with the user’s digital fingerprint, police can show a judge (a) what a user has viewed, and
(b) where the user’s computer is located in the real world.
B
This case began when the FBI obtained access to the physical computer running
Playpen’s website. The warrant permitting the FBI to use a bug is the “NIT warrant” in the
record here.3 Tagg does not really dispute that Playpen contained a significant amount of child
pornography; neither does the government deny that Playpen also contained legal child erotica.
After seizing Playpen’s computers, the FBI kept the website running to try and catch some of its
patrons. However, to identify Playpen’s users, the FBI had to place a digital bug in the fabric of
the website. Because this act counts as a Fourth Amendment “search” of the user’s home
computer—the bug creates a digital fingerprint that can identify the user—the FBI needed to
obtain a warrant before embedding it. United States v. Horton, 863 F.3d 1041, 1046–47 (8th Cir.
2017), cert. pet. filed in No. 17-6910 (Nov. 21, 2017).
After collecting identifying data on the individual users of the website, the FBI and its
local task-force affiliates sought separate, individual warrants for the homes of the identified
users (“Residential Warrants”). To support these warrants, officers explained to federal
magistrate judges how they cross-referenced the user’s digital fingerprint with their pseudonym
and IP address to connect three data points: (a) the user’s identity, (b) the items the user had
viewed on the website, and (c) the physical location and address of the user’s computer.
distinguishing the user’s machine from other computers at the same physical address. When a website is operating
on the Tor network, this appears to be the only practical way for law enforcement to identify a website’s users and
gather necessary evidence. See generally United States v. Workman, 863 F.3d 1313, 1315–17 (10th Cir. 2017)
(describing the technique), cert. pet. filed in No. 17-7042 (Oct. 3, 2017).
3
These warrants have been the subject of much litigation, and their validity is still an open question.
United States v. Kahler, 236 F. Supp. 3d 1009, 1017–18 (E.D. Mich. 2017) (collecting cases). The district judge
below did not address the NIT warrant. Since the NIT warrant is not the subject of this appeal, we express no
opinion on its validity today, and our opinion should not be construed to favor (or disfavor) these warrants as a
matter of law. We cite its contents here merely for their value as background facts.
No. 17-1777 United States v. Tagg Page 5
The affidavit supporting the Residential Warrant outlined Tagg’s browsing history, which
neither party disputes. The Residential Warrant therefore contained the following pieces of data.
(1). Tagg spent around five hours logged into Playpen’s website under the pseudonym
“derpderk.” (2). Tagg opened the website’s “index” and browsed them for topics of interest to
him. (3). He clicked on the “Pre-Teen Videos” entry in the index. That link took him to a
separate part of the index where he could browse “Pre-teen Videos” in more detail. (4). After
browsing that topic, Tagg viewed a collection of pages under the heading “Girls HC”—which, in
the pornography world, means explicit, penetrative sexual acts. (5). Tagg then accessed the
message board “video collection clow85.”4 (6). On other occasions, Tagg accessed pages titled,
“Drug(g)ed sleeping girl 10yo fuck—”, “girl Toy3-8y&man”, and “PTHC[5] Anal dildo.”
The affidavit did not, however, state whether Tagg actually viewed or downloaded any illegal
files.
The magistrate judge approved the Residential Warrant. The warrant indicated that
officers had established probable cause that Tagg violated 18 U.S.C. § 2252A(a)(5) (access of a
website with intent to view child pornography) and that evidence of the crime would be found at
Tagg’s residence. After searching Tagg’s home, police found over 20,000 files of child
pornography on his personal computers.
C
Tagg was charged with one count of receiving child pornography and one count of
possessing the same. 18 U.S.C. § 2252A(a)(2), (a)(5)(B). Tagg moved to suppress all the
evidence seized by the government, claiming that both the NIT Warrant and his individual
Residential Warrant violated the Fourth Amendment. As noted above, the district court only
addressed the Residential Warrant.
After a hearing, the district court held that the Residential Warrant was invalid.
Specifically, the court held that police could not establish probable cause to search Tagg’s home
4
Although the parties do not indicate what “clow85” means, it appears to be the pseudonym of another
user. Thus, “video collection clow85” is likely a collection of videos uploaded by the user clow85.
5
The information in the affidavit indicates that “PTHC” is probably an acronym for “Pre-Teen Hard-Core.”
No. 17-1777 United States v. Tagg Page 6
for child pornography unless the supporting materials established that he actually clicked on or
viewed an online file containing child pornography. Moreover, the court suppressed the
evidence, reasoning that the good-faith exception did not apply because police acted recklessly
and because no reasonable officer could have relied on the warrant. After its motion for
reconsideration was denied, the government timely appealed. We have jurisdiction under
18 U.S.C. § 3731.
II
The district judge found that the Residential Warrant lacked probable cause. This was
incorrect, particularly considering the Supreme Court’s recent instructions in District of
Columbia v. Wesby, 583 U.S. ___, 138 S. Ct. 577, 584–89 (2018) (examining probable cause “to
arrest . . . partygoers for unlawful entry” in a civil action under 42 U.S.C. § 1983).
A
The Fourth Amendment prohibits judges from issuing search warrants unless the
requesting officer demonstrates probable cause. U.S. Const. amend. IV. “A police officer has
probable cause to conduct a search when the facts available to [the officer] would warrant a
person of reasonable caution in the belief that contraband or evidence of a crime is present.”
Florida v. Harris, 568 U.S. 237, 243 (2013) (alterations and internal quotation marks omitted).
A Supreme Court opinion, fresh off the press, has reminded the courts that “probable cause deals
with probabilities and depends on the totality of the circumstances.” Wesby, 138 S. Ct. at 586
(internal quotation marks omitted). Therefore, “[p]robable cause is not a high bar” and “is a
fluid concept that is not readily, or even usefully, reduced to a neat set of legal rules.” Id.
(internal quotation marks omitted).
1
Probable cause “requires only a probability or substantial chance of criminal activity, not
an actual showing of such activity.” Id. (citation omitted). In determining probability, officers
and magistrates may rely on “common-sense conclusions about human behavior.” Id. at 587
(citation omitted); see also United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (en banc)
No. 17-1777 United States v. Tagg Page 7
(“Affidavits are not required to use magic words, nor does what is obvious in context need to be
spelled out . . . .”). Moreover, judges are not permitted to engage in “an excessively technical
dissection” of the record when determining probable cause. Wesby, 138 S. Ct. at 588 (internal
quotation marks omitted) (reversing the Court of Appeals for examining a case this way). Facts
must be considered together, not apart, since “the whole is often greater than the sum of its
parts.” Id. Finally—and most importantly for the purposes of this case—probable cause “does
not require officers to rule out a suspect’s innocent explanation for suspicious facts.” Id.
Instead, “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the
degree of suspicion that attaches to particular types of noncriminal acts.” Id. (quoting Illinois v.
Gates, 462 U.S. 213, 244 n.13 (1983)).
Further, the court reviewing a warrant does not write on a blank slate. A judicial officer
who issues a warrant “should be paid great deference.” Gates, 462 U.S. at 236 (internal
quotation marks omitted). The reviewing court is not permitted to attempt a de novo review of
probable cause; the issuing judge’s decision should be left undisturbed if there was a “substantial
basis” for the probable-cause finding. Id. at 238–39; United States v. King, 227 F.3d 732, 739
(6th Cir. 2000). In service of this standard, an “affidavit is judged on the adequacy of what it
does contain, not on what it lacks, or on what a critic might say should have been added.” Allen,
211 F.3d at 975. An appellate court examines the reviewing judge’s logic using a de novo
standard. United States v. Washington, 380 F.3d 236, 240 (6th Cir. 2004).
2
We have been over this ground before in child-pornography cases. The unique
challenges of child-pornography crimes demand a practical approach to the probable-cause
question. See United States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009). We have repeatedly
held that visiting or subscribing to a website containing child pornography creates a reasonable
inference that the user has stored child pornography on their computer. United States v. Wagers,
452 F.3d 534, 538–40 (6th Cir. 2006); Frechette, 583 F.3d at 379; United States v. Kinison,
710 F.3d 678, 683–84 (6th Cir. 2013); United States v. Elbe, 774 F.3d 885, 889 (6th Cir. 2014)
(discussing file exchanges on a peer-to-peer website). The fact that the website contains both
legal and illegal material, while relevant, does not automatically negate probable cause. Wagers,
No. 17-1777 United States v. Tagg Page 8
452 F.3d at 538–39. Indeed, we expressly rejected such an inflexible rule in Wagers,
recognizing that a fact-intensive approach to probable cause was sufficient to deter overzealous
law enforcement and prevent unwarranted invasions of privacy. Id. at 541–43.
We sustained this commitment to fact-based adjudication in Frechette. In that case, we
held that a one-month, paid subscription to a website containing child pornography justified a
reasonable officer in concluding that the user might have stored child pornography on his
computer. Frechette, 583 F.3d at 380–81. Although the pattern of conduct alleged in the
affidavit was less pervasive than in previous cases, we reasoned, “if someone spends $80 for
something, it is highly likely that the person will use it—whether it is a tie, a video game, or a
subscription to a pornographic web site.” Id. at 380. Thus, it was “not likely” that the defendant
“was innocently surfing the internet and accidentally paid $79.95 for a subscription” to a porn
site. Id. at 381. Therefore, it was reasonable to think that the website’s images may have ended
up on the suspect’s computer at some point, even though the warrant did not allege anything
besides the subscription. Id. Like in Wagers, the panel rejected the defendant’s bright-line rule,
reasoning instead that fact-based examinations are enough.
3
We have also addressed the Fourth Amendment’s nexus requirement as applied to the
digital age. Probable cause to believe a person committed a crime does not justify a search of his
or her residence absent some independent evidence linking the residence to the crime. See
United States v. Savoca, 761 F.2d 292, 297 (6th Cir. 1985). However, we have held that a nexus
exists when law enforcement connects the IP address used to access a website to the physical
location identified by the warrant. Elbe, 774 F.3d at 890; Kinison, 710 F.3d at 683–84. Pointing
to our “prior observations” that child pornography is typically possessed in the secrecy of the
home, the Kinison panel reasoned that a search of the home was a perfectly logical next step for
officers who have only circumstantial evidence of where the crime was committed and no
“inside scoop” on which they could rely. 710 F.3d at 683–84.
No. 17-1777 United States v. Tagg Page 9
B
The district court erred in holding that the warrant was not supported by probable cause.
For that reason, it should have denied the motion to suppress.
The warrant was based on 18 U.S.C. § 2252A. That statute punishes any person who
“knowingly accesses with intent to view, any . . . computer disk, or any other material that
contains an image of child pornography.” 18 U.S.C. § 2252A(a)(5)(B). It is elementary that an
applicant for a search warrant need not allege facts establishing that a crime occurred. Wesby
makes that perfectly clear. 138 S. Ct. at 586. Instead, the magistrate must ask whether the facts
in the affidavit justified an officer of reasonable caution in suspecting that Tagg had accessed
Playpen with the intent to view child pornography, and that evidence of that crime would be
found on his home computer. That standard is unquestionably met here.
1
Tagg admits that he accessed the website. And the warrant application contained plenty
of facts suggesting that he intended to view child pornography when he did so. First and
foremost, it is unlikely that Tagg stumbled upon Playpen by accident. To access the site, he had
to obtain the URL from someone “on the inside” who could provide the exact sequence of
numbers and letters to enter into his browser. This creates an inference that Tagg deliberately
accessed Playpen. Second, Tagg spent over five hours on the site, clicking on over
160 hyperlinks that were blatant advertisements for child pornography. See, e.g., R. 29-1,
Residential Warrant, PID 445, 451–52; id. at 446 (“Pre-teen Videos,” “Girls [Hard-Core]”); id. at
452 (“Drug(g)ed sleeping girl 10yo fuck—”); id. (“Girl Toy3-8y&man”); id. (“[Pre-Teen Hard-
Core] Anal dildo”). Indeed, when viewed alongside the other facts in the affidavit, such conduct
makes it even more likely that Tagg intended to view child pornography when he accessed
Playpen.
Further, the applicable criminal statute does not require a showing that Tagg actually
viewed illegal content on the site. The access-with-intent offense is complete the moment that
the elements of access and intent coincide. 18 U.S.C. § 2252A(a)(5)(B). Thus, even if the
person never viewed illegal child pornography, knowingly accessing a child-pornography
No. 17-1777 United States v. Tagg Page 10
website with the intent to view illegal materials is itself a criminal act. It follows from this
language that probable cause to search Tagg’s house would exist even if he was “curiosity
shopping” for child porn on Playpen but never actually viewed an illegal image. Id. This is the
most natural reading of the statute. Congress unambiguously set out to punish anyone who
“knowingly possesses, or knowingly accesses with intent to view, any . . . computer disk . . . or
other material . . . that contains an image of child pornography.” Id. (emphasis added).
Grammatically, the word “accesses” (the actus reus of the crime) is directed towards the
repository containing child pornography, not the child pornography itself.
The person who completes the circle and views the image has, instead, committed the
actus reus of possession. See, e.g., United States v. Ramos, 685 F.3d 120, 130–32 (2d Cir. 2012)
(holding that merely viewing child pornography in a web browser is sufficient to trigger
“possession” liability under § 2252A(a)(5)). We agree with the Second Circuit that Congress
intended the “possessing” actus reus to apply to someone who “intentionally searched for images
of child pornography, found them, and knowingly accepted them onto his computer,” even if that
acceptance was merely temporary. Id. at 132. The logical conclusion of this rule is that “access-
with-intent” liability is triggered when a person “intentionally searche[s] for images of child
pornography, f[inds] them,” but then stops short of viewing the images themselves. See id.;
Nat’l Ass’n of Mfrs. v. U.S. Dep’t of Def., 138 S. Ct. 617, 632 (2018) (reversing a panel of this
Court and reaffirming that we are “obliged to give effect, if possible, to every word Congress
used” in a statute) (internal quotation marks omitted).
This approach mirrors the long-standing doctrine of attempt, which imposes liability on
anyone who intends to do an illegal act and takes a substantial step toward that goal. United
States v. Resendiz-Ponce, 549 U.S. 102, 106–08 (2007). Even if it seems harsh, Congress has
unambiguously declared that the act of accessing a website containing child porn—when done
with criminal intent—is a sufficiently “substantial” step to warrant criminal sanctions. See id.;
18 U.S.C. § 2252A(a)(5). And when Congress speaks clearly, we may not frustrate its intent via
lenient interpretation. Cf. Shaw v. United States, 137 S. Ct. 462, 469 (2016).
No. 17-1777 United States v. Tagg Page 11
2
The Eighth Circuit has implicitly taken this broad view of the criminal liability provision
of the statute in two recent cases. United States v. DeFoggi, 839 F.3d 701, 711–12 (8th Cir.
2016); United States v. Huyck, 849 F.3d 432, 442–43 (8th Cir. 2017). In Huyck, the defendant
was convicted of separate instances of possession and access with intent to view child
pornography. Huyck, 849 F.3d at 442. In rejecting a sufficiency challenge to the access-with-
intent charge, the Eighth Circuit pointed to three facts which carried the government’s burden:
(a) circumstantial evidence that Huyck’s computers ran the same browser and operating system
detected by the NIT surveillance system; (b) a text file on Huyck’s computer containing
instructions on how to use Tor and links to several “secret” child-pornography websites; and
(c) Huyck’s admission that he had used Tor in the past. Id. The panel did not discuss whether or
not the government offered proof that Huyck had ever accessed images from that website,
instead reasoning that the conviction should stand because the evidence “demonstrat[ed] his
knowledge and intent to use the Tor network to receive and access child pornography.” Id.
DeFoggi is equally stern. In that case, the defendant was a member of “PedoBook,”
a child-pornography site on the Tor network. While on the site, he engaged in “copious amounts
of discussion concerning the exchange of child pornography with other users.” DeFoggi,
839 F.3d at 711–12 (citation omitted). The defendant sought to void his conviction, reasoning
that his chats were “mere fantasy” and did not indicate an intent to view child pornography. Id.
at 712. The court was not persuaded. Pointing out that he had “asked other members of
PedoBook where he could find certain videos and whether they had or could produce images for
him,” the court reasoned that the jury could have reasonably concluded that he intended to view
child pornography. Id. Although police caught the defendant in the act of downloading a video
when they executed a warrant at his residence, this fact did not seem particularly important to the
panel, as it would have been if it was an essential part of the proofs. Id. DeFoggi and Huyck are
out-of-circuit cases addressing the sufficiency of the evidence, not probable cause, but they
nevertheless provide some insight into what the access-with-intent clause of the statute prohibits.
We emphasize that the scienter requirement of this statute imposes an unforgiving
standard on the government. Indeed, the government conceded at oral argument that—in the
No. 17-1777 United States v. Tagg Page 12
absence of proof that a person actually viewed or possessed any child pornography—it may be
difficult to prove intent beyond a reasonable doubt at trial. This is as it should be. Child
pornography receives no protection from the First Amendment, but the Supreme Court has made
it clear that a strict mens rea is a key factor in policing overbreadth and ensuring that “unwitting”
users are not punished for protected speech. See United States v. Williams, 553 U.S. 285, 288–
89 (2008); United States v. Woods, 684 F.3d 1045, 1060 (11th Cir. 2012); United States v.
Brune, 767 F.3d 1009, 1020–21 (10th Cir. 2014). But in the probable-cause context, we are
content that on the facts of this case, a reasonable officer could infer that Tagg formed the
required intent at some point during the five hours he spent browsing Playpen.
Tagg insists that the affidavit “did not offer facts to show [he] acted with specific ‘intent
to access’” child pornography. This, again, conflates probable cause with proof; the affidavit
need not “show” that Tagg had unlawful intent—it only needed to allege facts that create a
reasonable probability that Tagg had an unlawful motive. See Wesby, 138 S. Ct. at 586 (stating
that probable cause does not require “an actual showing” of illegal conduct) (internal quotation
marks omitted). Tagg tries to weaken this inference by pointing out that the site also distributed
legal child erotica. He seizes on this fact to argue that he intended to view child erotica, not
illegal child pornography, and therefore that the warrant could not establish probable cause. The
Supreme Court disagrees. Wesby makes clear that the ultimate plausibility of an innocent
explanation cannot be used to snuff out the objectively suspicious inference that can be drawn
from the facts presented to a magistrate. See id. at 588. Tagg may or may not be guilty of a
crime, and we reiterate that this would be a different case if the government sought to sustain a
conviction based solely on the statements in this affidavit. But police need not “rule out a
suspect’s innocent explanation for suspicious facts” in order to establish probable cause, and
Tagg may not litigate the issue of guilt or innocence on a motion to suppress. See id.
In sum, the plain language of the statute penalizes anyone who knowingly accesses a
website that contains child pornography and who intends to view that illegal content, even if he
never actually does so. It follows that a warrant may issue against someone like Tagg when law
enforcement shows that the suspect (a) accessed a website containing actual child pornography,
No. 17-1777 United States v. Tagg Page 13
and (b) browsed the site for an extended period of time while clicking on links that were blatant
advertisements for child pornography.
3
Tagg also challenges the nexus element of the search. He insists that the mere fact that
he used a computer to commit a crime does not automatically justify a search of his residence.
This, of course, is correct. See generally Peffer v. Stephens, 880 F.3d 256, 266–74 (6th Cir.
2018); Savoca, 761 F.2d at 297. But Tagg ignores the fact that police linked the IP address he
used to access Playpen to the residence listed on the warrant, and even observed him entering
and exiting the premises. Our precedent holds that this is enough to establish a nexus. Elbe, 774
F.3d at 890; Kinison, 710 F.3d at 683–84; see also United States v. Lapsins, 570 F.3d 758, 766–
67 (6th Cir. 2009).
III
Tagg cites several out-of-circuit cases to persuade us to affirm the district court’s
suppression order. United States v. Raymonda, 780 F.3d 105 (2d Cir. 2015); United States v.
Falso, 544 F.3d 110 (2d Cir. 2008); United States v. Edwards, 813 F.3d 953 (10th Cir. 2015).
He misapprehends the helpfulness of these cases, however, as they actually support the
government’s position. In fact, the Second Circuit extended our decision in Frechette to an
unpaid registration for a pornographic website, reasoning that the mere act of signing up for a
“members-only” child-pornography site was enough to establish probable cause to search the
defendant’s home. Raymonda, 780 F.3d at 115–16 (discussing United States v. Martin, 426 F.3d
68 (2d Cir. 2005)).
Raymonda then contrasted Martin with Falso, the second case on which Tagg relies. In
Falso, the warrant merely alleged that the defendant tried (possibly unsuccessfully) to access a
website containing child pornography. 544 F.3d at 121. The Falso panel held that probable
cause could not exist under those circumstances unless the warrant contained “specific
allegations” that the defendant actually viewed child pornography. Id. In contrast, Tagg was a
registered member of Playpen and successfully accessed the site for over five hours.
No. 17-1777 United States v. Tagg Page 14
Thus, the Second Circuit’s cases are even less favorable to Tagg than our own. Indeed,
Raymonda endorsed a legal conclusion not yet present in our case law—that “the fact of
membership to a child-pornography website,” paid or unpaid, creates probable cause to search
the member’s home computer. Raymonda, 780 F.3d at 116 (quoting Falso, 544 F.3d at 121)
(emphasis added by the Raymonda panel). Tagg was a member of Playpen in the sense that
Martin used that word. Raymonda also emphasized that this fact was crucial in distinguishing
between Martin and Falso, since the Falso defendant had not subscribed to a members-only
website. Raymonda, 780 F.3d at 115–16.
Raymonda’s facts are also distinguishable. The warrant in Raymonda only alleged that
on one afternoon, nine months ago, the defendant opened one or two pages of a website
containing child-pornography files. Id. at 116–17. The Second Circuit was simply not
persuaded that this was sufficient to support probable cause for a residential search. In contrast,
Tagg accessed Playpen for five hours over thirty days and viewed hundreds of pages containing
child-pornography files. The facts here—critical in probable-cause determinations—simply do
not compare.
Finally, Tagg stretches the Tenth Circuit’s decision in Edwards to mean more than what
it says. In Edwards, the affidavit only alleged that the defendant possessed and shared child
erotica, not child pornography. Edwards, 813 F.3d at 960–61. Importantly, the warrant in that
case never alleged that the suspect possessed, searched for, browsed, or made any effort to
engage with actual child pornography. Id. at 962–63. In rejecting the government’s arguments,
the Tenth Circuit held that mere interest in child erotica or sexual attraction to children was
insufficient, standing alone, to cause an officer of reasonable caution to suspect someone of a
crime. Id. at 964–65.
We have rejected similar attempts by the government to use evidence of child
molestation to support warrants for child pornography. E.g., United States v. Hodson, 543 F.3d
286, 292–94 (6th Cir. 2008); see also United States v. Doyle, 650 F.3d 460, 472 (4th Cir. 2011)
(“The bulk of the information supplied in the affidavit concerned allegations of sexual assault.
But evidence of child molestation alone does not support probable cause to search for child
pornography.” (citing Hodson, 543 F.3d at 292)). However, the logic of Edwards and Hodson
No. 17-1777 United States v. Tagg Page 15
does not apply to defendants, like Tagg, who interact with the child-pornography components of
a website. In those cases, Frechette and Wagers must control. Frechette, 583 F.3d at 380–81;
Wagers, 452 F.3d at 538–40.
IV
The warrant below was supported by probable cause; it was error to suppress the
evidence seized under its authority. Therefore, the district court’s order granting the motion to
suppress is REVERSED, and the case is REMANDED for proceedings not inconsistent with
this opinion.
No. 17-1777 United States v. Tagg Page 16
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CONCURRENCE
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JANE B. STRANCH, Circuit Judge, concurring. I concur in today’s decision because,
taken together, Tagg’s registration of a Playpen account, which was necessary to access the
portions of the website that contained child pornography, his sustained activity on Playpen, and
his deliberate navigation to multiple forums clearly devoted to child pornography created
probable cause to issue the Residential Warrant. I write separately only to note that United
States v. Ramos, 685 F.3d 120 (2d Cir. 2012), is an out-of-circuit case concerning a later stage of
criminal prosecution and a different crime. Ramos is therefore immaterial to the probable cause
determination in Tagg’s case. See id. at 131 (holding that “that the evidence was sufficient to
prove [at trial] that Ramos was guilty of knowingly receiving and possessing child
pornography”). Although we have no cause to apply Ramos, I otherwise agree that the
constellation of facts contained in the affidavit call for reversing the district court’s suppression
decision.