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United States v. Wagner

United States District Court, D. Kansas

July 18, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
WESLEY WAGNER (01), Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         This 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.

         While 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.

         Now, 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.

         I. Background

         In a 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 pornography.

         The FBI 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 4, 2015.

         While 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.

         During 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 205.214.245.193-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.

         On 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 service.

         On 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 a.m.

         During 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.

         Also, 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.

         Initially, 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 wear.

         About 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.

         During 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.”

         About 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?

         Some 40 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 40:18-31.

         During 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.

         While 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.

         Agent 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.

         Although 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 ...


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