United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
case arises from the FBI's investigation of
“Playpen”-a website hosting child pornography. In
late 2014, the FBI discovered Playpen. Later, it determined
the physical location of the server used by the website. And,
in January 2015, the FBI seized that server. After seizing
the server, law enforcement operated the Playpen site from a
location in the Eastern District of Virginia from February
20, 2015, until the FBI permanently disabled the website on
March 4, 2015.
law enforcement operated Playpen, they deployed a computer
program known as the Network Investigative Technique
(“NIT”) trying to ascertain the identity of
Playpen's users. The FBI traced one
user-“soldiermike”-to an IP address registered to
defendant Wesley Wagner. Using this information, the FBI
secured a search warrant for Mr. Wagner's residence in
White City, Kansas. When the FBI executed the search warrant,
agents interviewed Mr. Wagner.
Mr. Wagner claims that the government secured his statements
during the interview by using unconstitutional means. So, he
asks the court to suppress those statements. Mr. Wagner also
asks the court to dismiss the Indictment against him because,
he says, the FBI's continued operation of Playpen
amounted to outrageous conduct. The court disagrees with Mr.
Wagner's motions and denies them both.
two-count Indictment, the government charged defendant Wesley
Wagner with receipt and possession of child pornography.
These charges arise from an investigation of the website,
“Playpen” (also referred to as “Website
A”). Playpen was a hidden service website operating on
the Tor network; it allowed registered users to access child
seized control of the Playpen website around February 20,
2015. The FBI then secured a warrant to deploy the NIT to any
computer accessing the Playpen website. The FBI operated the
website from a government facility located in the Eastern
District of Virginia from about February 20, 2015, to March
the FBI controlled Playpen, it did not alter the
website's functionality, add additional images, or
actively solicit new users. Its passivity did not keep some
100, 000 users from logging into the site more than 1, 000,
000 times during that 13-day period. The government has
acknowledged that a minimum of 22, 000 pictures, videos, and
additional links to child pornography were distributed while
it controlled Playpen. The FBI also maintained a “How
To” advice section on the site. The section explained
how users could go about sexually abusing children and
avoiding detection, as part of an effort to enhance
Playpen's credibility as an illicit site. To be clear,
the FBI did not create this section of the website or draft
any of the content that users could access there. But during
the FBI's control of Playpen, users could add-and did
add-new posts to this section.
the investigation, a Playpen user with the username
“soldiermike” actively logged into the website
for a total of eight hours and 59 minutes between January 31,
2015 and March 4, 2015. “soldiermike” logged into
Playpen on February 28, 2015, using IP address
18.104.22.168-an address controlled and operated by The
Tri-County Telephone Association. The account information for
Tri-County's subscriber shows that, on February 28, 2015,
this IP address belonged to Mr. Wagner in White City, Kansas.
September 15, 2015, Task Force Officer (“TFO”)
Angie Jones, a Kansas Bureau of Investigation agent assigned
to the FBI, procured a federal search warrant for Mr.
Wagner's residence. The affidavit supporting the search
warrant included information about Playpen and how the FBI
had identified the IP addresses using it. The affidavit also
identified “soldiermike” as a user of Playpen,
and the connection between the IP address associated with
“soldiermike” and Mr. Wagner's internet
September 17, 2015, TFO Jones and other investigators
executed the search warrant at Mr. Wagner's residence.
Six law enforcement officers participated in the search. The
search began around 7:00 a.m., and concluded at about 9:30
the search of Mr. Wagner's residence, investigators
seized many electronics, including laptops, storage devices,
and a desktop computer. According to the FBI, when they
examined the electronic devices, they found items relevant to
the investigation on the hard drive of a Dell Inspiron 1501.
Investigators had seized this laptop from a common area of
Mr. Wagner's residence.
while executing the search warrant, TFO Jones and FBI Special
Agent Mike Daniels interviewed Mr. Wagner twice. The initial
interview lasted about 48 minutes. The second interview
lasted about five minutes. The investigators recorded the
audio of both interviews. See Pl Ex. 9.
TFO Jones and Agent Daniels engaged Mr. Wagner and his wife
together. Almost immediately, TFO Jones informed them that
neither were under arrest and that they were free to leave at
any time. About one minute later, TFO Jones repeated that
neither Mr. Wagner nor his wife were “going with [the
FBI] today, ” and that the investigators would
“get out of [their] hair as soon as [they]
[could].” Ex. 9 (Audio Recording of Sept. 17, 2015
interview, titled “approach and Wesley.WMA”) at
1:01-07. During this interview, the investigators gathered a
shirt and shoes for Mr. Wagner and a jacket for his wife to
two minutes into the interview, the investigators told Mr.
Wagner's wife that she could wait on the porch so they
could speak with Mr. Wagner first. TFO Jones, Agent Daniels,
and Mr. Wagner then went to sit on a bench under a tree in
the Wagner's front yard. Later, when it started to rain,
they got inside one of the police vehicles, on-site. About
six minutes into the interview, TFO Jones again advised Mr.
Wagner that when the interview was finished, he could
“hang out” on the porch until investigators had
concluded their search.
this initial interview, Mr. Wagner said that no one other
than he and his wife had stayed at the residence since 2013,
and that his wi-fi service was password protected. Mr. Wagner
denied knowing anything about the “Tor browser”
or “the Onion network.”
25 minutes into the interview, the investigators informed Mr.
Wagner that someone from his house had accessed the Tor
network and specifically, a child pornography website.
Investigators informed Mr. Wagner that it must have been him
or his wife, and they assumed it was not his wife.
Investigators also informed Mr. Wagner that they “just
want[ed] to get to the bottom of this and what's going
on” . . . “so [they] [could] wrap this up and
move on because” they really wanted to identify people
who were harming children. Ex. 9 at 26:50- 27:10. A few
minutes later, the investigators emphasized their desire to
confirm that no one else had stayed at the residence and no
one else could access Mr. Wagner's wireless network. He
confirmed both points. About 30 minutes into the interview,
the investigators emphasized that they knew Mr. Wagner's
computer had accessed the Tor network. The investigators then
asked Mr. Wagner-if he had not accessed Playpen, then was he
telling them that his wife had accessed it?
minutes into the interview, the investigators said they were
going to talk to Mr. Wagner's wife, and if necessary come
back and talk with him again. TFO Jones advised Mr. Wagner
that this was “really his only opportunity”
because, once the investigators left the residence, the
“computer speaks for itself so just spit it out, tell
[them] what [they] need[ed] to know.” Id. at
this initial interview, the investigators discussed the side
effects of Mr. Wagner's “PTSD” diagnosis with
him. Mr. Wagner said he suffered from depression, anger
issues, sleep disorder, and hypervigilance. Mr. Wagner also
said that he took a sleep medication. Earlier in the
interview, the investigators asked Mr. Wagner whether he
needed any of medications. They also told him if he needed a
medication, he should let them know.
investigators were searching the house under the search
warrant, they previewed the electronic devices. They quickly
located the Tor icon on a laptop that Mr. Wagner identified
as his. The laptop also contained folders with child
pornography saved in them.
Daniels began the second interview with Mr. Wagner by showing
him the Tor icon on the laptop's desktop. But Mr. Wagner
continued to deny any knowledge of Tor or of the child
pornography saved on the laptop. Agent Daniels again pointed
out that just two people had used the computer, and that
someone was responsible for the child pornography on the
computer. Agent Daniels informed Mr. Wagner that either he or
his wife were responsible for it.
the tone of the initial interview was cordial, Mr.
Wagner's attitude changed during the second interview.
After investigators confronted him with the evidence on the
computer, Mr. Wagner ordered the investigators to read him
his rights or get out of his house. Another Task Force
Officer advised him that investigators were not leaving his
house, and were not reading him his rights ...