USA v. Schwier

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MATTHEW WILLIAM SCHWIER,
Defendant.
Case No. 3:17-cr-00095-SLG
ORDER RE S-1 MOTION TO SUPPRESS EVIDENCE: COUNTS 3&4 OF
THE FOURTH SUPERSEDING INDICTMENT
Before the Court at Docket 317 is Defendant Matthew William Schwier’s S-1
Motion to Suppress Evidence: Counts 3 & 4 of the Fourth Superseding Indictment.
The government’s Response in Opposition is at Docket 325. The defense’s Reply
is at Docket 329. The defense did not request an evidentiary hearing on the
motion.
BACKGROUND
On April 28, 2017, a magistrate judge issued a search warrant for the
defendant’s home.1 The search warrant application was supported by an affidavit
of FBI Special Agent Daryl Allison.2 In the affidavit, Agent Allison states that twice
on October 20, 2016, “an FBI agent working in an undercover capacity connected
to a P2P [peer to peer] file sharing program” operating from an IP address later
1 Docket 325-1 at 1.
2 Docket 325-1 at 2–74.
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associated with the defendant’s computer.3 On each occasion, the undercover
agent attempted to download data “uniquely identified by . . . info
hash[es] . . . known to consist of photos and/or video containing child
pornography.”4 The undercover agent was not successful in downloading the
data.5 The affidavit provides a narrative description of the content of several of
the files that the agent was unable to download from the IP address, noting for
each that “[n]o part of this video was received” by the FBI. 6 The narrative
descriptions are derived from archived law enforcement copies of the files.7
Agent Allison states in the affidavit that an undercover agent connected to a
second IP address, also later associated with the defendant’s computer, several
times in November 2016.8 From November 20 to November 21, an undercover
3 Docket 325-1 at 27–34, ¶¶ 21–23. The affidavit describes peer-to-peer file-sharing in detail.
Docket 325-1 at 27–28, ¶¶ 18–20. The affidavit also describes the process by which the IP
address was identified as relating to the defendant. Docket 325-1 at 41–43, ¶¶ 31–36.
4 Docket 325-1 at 29–34, ¶¶ 22–23. The affidavit defines a “hash value” as “a mathematical
algorithm generated against data to produce a numeric value that is representative of that data,”
and Agent Allison states that he is “unaware of any instance in which two files have been
naturally assigned the same SHA-1 hash value.” Docket 325-1 at 11, ¶ 10.b.v.
5 Docket 325-1 at 29–34, ¶¶ 22–23.
6 Docket 325-1 at 30–34, ¶¶ 22–23.
7 Docket 325-1 at 39–41, ¶¶ 27–29. According to the affidavit, “[t]hese [archived] files are
verified to be identical to the files described by the torrent by hashing algorithms.” Docket 325-
1 at 40, ¶ 20.
8 Docket 325-1 at 34–39, ¶¶ 24–26.
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agent made two unsuccessful attempts to download data identified by info hashes
“known to consist of photos and/or videos containing child pornography.”9 The
affidavit provides a narrative description of several of these files, noting again that
“[n]o part of this video was received” by the FBI.10 The affidavit states that from
November 22 to November 24, an undercover agent made a third, successful
attempt to download data from the second IP address.11 The undercover agent
downloaded two complete files, reviewed them, “and determined that one of the
files contained child pornography.”12 Agent Allison’s affidavit provides a narrative
description of this file, and notes that “[t]his image is being made available to the
magistrate judge to review at the time the warrant is sworn.”13
Although Agent Allison’s affidavit does not name the forensic software used
by the FBI agent to connect to the IP addresses associated with the defendant—
later identified as Torrential Downpour—it describes the program as follows:
“This P2P program identifies other computers on the network that are sharing
image and video files of child pornography. The program identifies these files by
9 Docket 325-1 at 34–37, ¶¶ 25–26.
10 Docket 325-1 at 34–38, ¶¶ 25–26.
11 Docket 325-1 at 38–39, ¶ 26.
12 Docket 325-1 at 38, ¶ 26.
13 Docket 325-1 at 38–39, ¶ 26.
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comparing hash values of previously identified images and videos of child
pornography with the hash values being shared on the network.”14 Agent Allison
also identifies in the affidavit several limitations of the Torrential Downpour
software and provides several explanations for why the program may have been
unable to download the majority of the data it sought from the two subject IP
addresses.15
The magistrate judge issued the search warrant,16 which the FBI executed
on May 1, 2017.17 The government subsequently charged the defendant with
multiple counts of possession, distribution, and receipt of child pornography. The
Fourth Superseding Indictment, filed on December 19, 2019, contains four
counts.18 Counts 1 and 2 respectively charge possession and distribution of child
pornography and stem from the government’s use of Torrential Downpour to
identify files on the defendant’s computer.19 Counts 3 and 4 respectively charge
possession and receipt of child pornography and stem from physical evidence
14 Docket 325-1 at 29, ¶ 21.
15 Docket 325-1 at 39–41, ¶¶ 27–30.
16 Docket 325-1 at 1.
17 Docket 317 at 6; Docket 325 at 4.
18 Docket 279.
19 Docket 279 at 2.
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seized from defendant’s premises on May 1, 2017, pursuant to the search
warrant.20
On November 8, 2019, the Court granted the defense’s motion to compel
production of Torrential Downpour, finding that defense testing of the software was
material to the defense of Counts 1 and 2 of the indictment then in place.21 The
government ultimately decided to dismiss Counts 1 and 2 rather than produce
Torrential Downpour to the defense for testing; the Court granted the government’s
motion to dismiss those counts on February 3, 2020.22 The defense filed the
instant motion to suppress on February 12, 2020.23
DISCUSSION
The defense contends that “the search warrant was issued without probable
cause” and that “the search violated the defendant’s rights under the fourth and
fifth amendments.”24 As such, the defense requests that “[t]he evidence seized
20 Docket 279 at 3. The government’s briefing explains that evidence indicating that child
pornography that had been downloaded to defendant’s computer but deleted prior to the May 1,
2017 search “led to Count 4 of the Fourth Superseding Indictment.” Docket 325 at 5.
21 Docket 243 at 3–7. Counts 1 and 2 of the Third Superseding Indictment, filed April 25, 2019,
are not materially different from Counts 1 and 2 of the Fourth Superseding Indictment.
Compare Docket 138 (Third Superseding Indictment) with Docket 279.
22 Docket 314. The subsequent Judgment of Partial Discharge is at Docket 315.
23 Docket 317.
24 Docket 317 at 11.
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under the warrant . . . be suppressed as fruit of the poisonous tree.” 25 The
defense analogizes Torrential Downpour to a confidential informant and notes that
“[w]hen the information contained in the [probable cause] affidavit comes from an
informant, the magistrate is to consider the ‘informant’s veracity, reliability and
basis of knowledge . . . .’”26 The defense maintains that “there is nothing in the
record before the magistrate judge who granted the search warrant application that
establishes the reliability of the software used,” and thus asserts “there is no basis
on which the court can conclude that there was probable cause to support the
issuance of the search warrant.”27
The government contends that the defense’s motion fails to cite to the
appropriate law in support of its suppression argument.28 The government also
claims that even if the defense had done so, “the argument would be meritless
because the evidence would not be suppressed because the FBI relied in good
faith when executing [the search warrant].” 29 In United States v. Leon, the
25 Docket 317 at 12 (citing Wong Sun v. United States, 371 U.S. 471 (1963)).
26 Docket 317 at 9 (emphasis in defense briefing) (quoting United States v. Alvarez, 358 F.3d
1194, 1203 (9th Cir. 2004)); see also id. at 10–11 (“As with a human informant or a canine alert,
only software that is established before the magistrate to be reasonably reliable can support a
finding of probable cause.”).
27 Docket 317 at 11.
28 Docket 325 at 8–11.
29 Docket 325 at 11 (citing United States v. Leon, 468 U.S. 897 (1984)). The government also
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Supreme Court held that suppression of “evidence obtained in objectively
reasonable reliance on a subsequently invalidated search warrant” was not an
appropriate remedy under the Fourth Amendment. 30 The Supreme Court
explained that “[i]n the ordinary case, an officer cannot be expected to question
the magistrate’s probable-cause determination or his judgment that the form of the
warrant is technically correct,” and concluded that “[p]enalizing the officer for the
magistrate’s error, rather than his own, cannot logically contribute to the deterrence
of Fourth Amendment violations.”31
The Supreme Court carved out several exceptions to the rule announced in
Leon. In its reply, the defense argues that two of those exceptions apply to this
case.32 The first exception, which is governed by Franks v. Delaware,33 applies
when “the magistrate or judge in issuing a warrant was misled by information in an
affidavit that the affiant knew was false or would have known was false except for
his reckless disregard of the truth.”34 Determinations under Franks are proper
maintains that “the affidavit established ample probable cause.” Docket 325 at 12 n.15.
30 468 U.S. 897, 922 (1984).
31 Id. at 921.
32 Docket 329 at 2, 4.
33 438 U.S. 154 (1978).
34 Leon, 468 U.S. at 923 (citing Franks v. Delaware, 438 U.S. 154 (1978)).
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only where the defendant “makes . . . ‘a substantial preliminary showing that the
affidavit contain[ed] intentionally or recklessly false statements, and . . . [that] the
affidavit purged of its falsities would not be sufficient to support a finding of
probable cause.’”35
The defense contends that Agent Allison misled the magistrate in this case
by
fail[ing] to inform the magistrate of the name of the software used, let
alone that the software was not commercially tested but a privately
developed program made exclusively for law enforcement that never
underwent alpha or beta testing like commercially available software,
and that the software had never been independently tested by a non-
interested third party to establish that the software worked as
intended.36
The defense further maintains that Agent Allison “had a duty to inform the
magistrate of various claims that had already been made in other cases about the
unreliability of the Torrential Downpour software.”37 The defense cited four cases
to support this assertion; in each, the district court rejected an argument almost
identical to the defense’s in this case.38
35 United States v. Bennett, 219 F.3d 1117, 1124 (9th Cir. 2000) (alterations in original) (quoting
United States v. Meling, 47 F.3d 1546, 1553 (9th Cir. 1995)).
36 Docket 329 at 2. Deliberate or reckless omission can constitute false statements for the
purposes of a Franks inquiry. See United States v. Perkins, 850 F.3d 1109, 1119 (9th Cir.
2017); United States v. Hall, 113 F.3d 157, 159 (9th Cir. 1997).
37 Docket 329 at 3.
38 Docket 329 at 3 n.2 (citing United States v. Maurek, 131 F. Supp. 3d 1258 (W.D. Okla. 2015);
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For example, in United States v. Maurek, the district court rejected the
defense’s argument that a search warrant affidavit was deficient because it omitted
the fact that Torrential Downpour “is only accessible to law enforcement and [that]
there was nothing that attested to the program’s technical or scientific reliability.”39
The district court reasoned:
The material fact law enforcement was obligated to disclose was its
use of investigative technology to track, identify, and download the
files from Defendant’s computer. This fact was fully disclosed.
More exacting details and disclosures simply were not required to
establish probable cause.40
The district court relied on United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012),
where the First Circuit held that “the issuing magistrate[’s] . . . sensible
determination, based on a detailed affidavit [describing use of a program similar to
Torrential Downpour], that a search of the defendant’s residence was likely to turn
up illicit images” was “sufficient to find probable cause.”41
For similar reasons, the Court finds that the Franks exception does not apply
in this case. Like the affiants in Chiaradio and Maurek, Agent Allison provided a
United States v. Waguespack 3:16-cr-00058-JWD-RLB (M.D. La. March 20, 2017), ECF No. 60;
United States v. Case, No. 2:13-cr-120-LA (E.D. Wis. March 17, 2014), ECF No. 43; and United
States v. Hoeffener, No. 4:16-cr-00374 (E.D. Mo. June 13, 2018), ECF No. 110.)
39 131 F. Supp. 3d at 1263.
40 Id. at 1266 (citing United States v. Biglow, 562 F.3d 1272, 1280 (10th Cir. 2009)).
41 Id. at 1265 (citing Chiaradio, 684 F.3d at 279).
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detailed affidavit that disclosed the use of an investigative software program to
download a file containing child pornography from the defendant’s computer. He
was not required to disclose any as yet unsuccessful challenges to the reliability
of Torrential Downpour,42 nor does the Court find that this omission constituted
reckless disregard for the truth.43 In short, the defense has not made the requisite
substantial preliminary showing that Agent Allison’s affidavit recklessly omitted key
information that, if provided, would have prevented the magistrate judge from
finding probable cause.44
The second exception to Leon applies when “a warrant [is] based on an
affidavit ‘so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.’” 45 The defense argues that “[b]ecause the
42 The defense has not cited, nor has the Court identified, a case in which Torrential Downpour
was found to be unreliable. Cf. Hall, 113 F.3d at 158–61 (suppressing evidence produced by
search warrant where state trooper “withheld information bearing on [informant’s] credibility”
including “conviction for the offense of falsely reporting a crime” (emphasis added)).
43 Indeed, Agent Allison states in his affidavit that he “ha[s] not included each and every fact
known to me or the government” and “ha[s] only included those facts necessary to establish
probable cause” to search defendant’s premises. Docket 325-1 at 4, ¶ 6. Cf. Perkins, 850
F.3d at 1119 (concluding that affiant had “‘omitted facts required to prevent technically true
statements in the affidavit from being misleading”’ (quoting United States v. Ruiz, 758 F.3d
1144, 1149 (9th Cir. 2014))).
44 See Chiaradio, 684 F.3d 265, 279–80 (holding that omission of statements “about the
reliability of EP2P [investigative software similar to Torrential Downpour], including, but not
limited to, the absence of peer review . . . would not have diluted the affidavit’s showing of
probable cause”).
45 United States v. Leon, 468 U.S. 897, 923 (1984) (quoting Brown v. Illinois, 422 U.S. 590,
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affidavit contained absolutely no information establishing the reliability of Torrential
Downpour, no officer could have had an objectively reasonable belief that the
warrant was based on probable cause.”46 The defense relies on United States v.
Luong, where the Ninth Circuit held that a sparse affidavit that “relie[d] on an
unverified tip” had “no appreciable indicia of probable cause.”47 The defense
compares Torrential Downpour to an anonymous tip or a dog sniff and contends
that “no officer could have an objectively reasonable belief that an affidavit lacking
any . . . showing [of reliability and/or veracity] establishes probable cause.”48
In Luong, the Ninth Circuit explained that for this exception to apply, the
affidavit must lack even “a colorable argument for probable cause.” 49 The
relevant “inquiry [is] whether the affidavit is ‘sufficient to create disagreement
among thoughtful and competent judges as to the existence of probable cause.’”50
Agent Allison’s affidavit clearly demonstrates indicia of probable cause sufficient
to support the issuance of a search warrant of the defendant’s home. The Court
610–11 (1975) (Powell, J., concurring in part)).
46 Docket 329 at 4.
47 470 F.3d 898, 903 (9th Cir. 2006).
48 Docket 329.
49 470 F.3d at 903 (citing Leon, 468 U.S. at 923).
50 Id. (quoting Leon, 468 U.S. at 926).
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is not convinced that investigative software like Torrential Downpour is analogous
to an unverified tip; however, even if it were, the affidavit’s description of the use
of the software to investigate the defendant’s IP addresses does not suffer from
the same deficiencies as the unverified tip in Luong. A “tip must include a ‘range
of details,’ and it must predict future actions by the suspect that are subsequently
corroborated by the police.”51 Agent Allison’s affidavit supplied a range of details
produced by the Torrential Downpour investigative software. Most importantly,
the affidavit included the hash values of the files the software had identified as
present on the defendant’s computer. And, according to the affidavit, these
details were corroborated by the FBI agent’s review of the files downloaded from
the defendant’s computer, one of which the agent determined to be child
pornography. The affidavit is, at the very least, sufficient to create disagreement
among reasonable jurists about the existence of probable cause. Accordingly,
the second Leon exception raised by the defense does not apply.
The Court finds that the FBI reasonably relied upon the April 28, 2017 search
warrant and that suppression would therefore be an improper remedy even if that
warrant is assumed to be invalid.52 Accordingly, the Court does not reach the
51 Id. (quoting United States v. Morales, 252 F.3d 1070, 1075 (9th Cir. 2001)).
52 See Leon, 468 U.S. at 922 (“‘[S]earches pursuant to a warrant will rarely require any deep
inquiry into reasonableness,’ for ‘a warrant issued by a magistrate normally suffices to establish’
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remainder of the defense’s arguments in favor of suppression.53
CONCLUSION
In light of the foregoing, the defense’s Motion to Suppress at Docket 317 is
DENIED.
DATED this 16th day of March, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
that a law enforcement officer has ‘acted in good faith in conducting the search.’” (alteration in
original) (first quoting Illinois v. Gates, 462 U.S. 213, 267 (1983) (White, J., concurring in
judgment), then quoting United States v. Ross, 456 U.S. 798, 823 n.32 (1982))).
53 To the extent that the defense intimates that the government is required under Brady v.
United States, 397 U.S. 742 (1970), to produce Torrential Downpour as evidence material to the
defense’s Fourth Amendment claim, see Docket 317 at 8–11, that argument is moot in light of
the findings set out above.
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