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United States v. Grisanti

United States District Court, S.D. Indiana, Indianapolis Division

October 17, 2017

ADRIAN GRISANTI (01), Defendant.



         This matter is before the Court on Defendant Adrian Grisanti's (“Grisanti”) Motion to Suppress (Filing No. 27). Grisanti is charged with two counts of Receipt of Child Pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), seven counts of Knowing Access with Intent to View Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), one count of Knowing Possession of material containing Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and one count of Destruction of Evidence in violation of 18 U.S.C. § 1519. (Filing No. 1.) Grisanti petitions the Court to suppress any and all evidence obtained from a search of a computer located at his place of employment, Our Place Drug and Alcohol Services (“Our Place”), through the Federal Bureau of Investigation's (“FBI”) deployment of a Network Investigative Technique (“NIT”). He asserts the evidence collected should be suppressed because the magistrate judge overstepped her authority in issuing the warrant and there was no probable cause for the search warrant. For the reasons set forth below, the Court DENIES the Motion to Suppress.

         I. BACKGROUND

         In September 2014, the FBI began an investigation into a global online forum called “Playpen” which was dedicated to the advertisement, distribution, receipt and collection of child pornography through which registered users advertised, distributed, received, or accessed illegal child pornography. (Filing No. 35-6 at 16.) The scale of child sexual exploitation that occurred on the site contained more that 150, 000 total members who collectively engaged in tens of thousands of postings related to child pornography. Id. Playpen, was hosted on The Onion Router (“TOR”) network. TOR uses technology that provides anonymity to Internet users by masking user data, hiding Internet Protocol (“IP”) addresses, and bouncing user communications around a distributed network of relay computers (called “nodes”) (Filing No. 27 at 2). Playpen was set up as a “hidden service” within the TOR network. (Filing No. 35 at 5.) Thus, users could only reach “hidden services” if the user was using the TOR client software and operating in the TOR network. Id. Because the Playpen web server was hidden, in order to access the site a user would need to know Playpen's exact TOR-based web address, consisting of a series of algorithm-generated characters.

         In February 2015, the FBI seized Playpen from its web-hosting facility in North Carolina and interdicted the site allowing it to continue to operate at a government facility located in the Eastern District of Virginia during a two-week period between February 20, 2015 and March 4, 2015. Id. at 7. During that time, the FBI obtained a warrant from a magistrate judge in the United States District Court for the Eastern District of Virginia, to monitor and identify anonymous site users through the use of NIT technology. (Filing No. 35-6.) The NIT consisted of computer instructions which, when downloaded (along with the other content of Playpen) by a registered user's computer, were designed to cause the user's computer to transmit a limited set of information. (Filing No. 35 at 8.) This information allowed the FBI to capture the computer's true IP address and other computer related data that would assist in identifying the computer used to access Playpen and its user. The Playpen investigation and execution of the NIT warrant resulted in the identification and arrest of many individuals on child pornography-related crimes nationwide. United States v. Brooks, No. 16-CR-6028L, 2017 WL 3835884 at *9 (W.D. NY August 31, 2017).

         In March 2015, the FBI filed an administrative subpoena on AT&T for an IP address belonging to Playpen registered user “THISISMEE222”, which revealed that it belonged to a computer at Grisanti's place of employment, Our Place, located at 400 East Spring Street, New Albany, Indiana 47150. (Filing No. 27 at 2.) According to user profile records, this user was logged into Playpen for more than 9 hours and 13 minutes between January 28, 2015 and February 24, 2015. (Filing No. 35 at 9.) The FBI contacted the management at Our Place and learned that Grisanti was the sole user of the computer repeatedly accessing Playpen. On August 18, 2015, the FBI obtained a search warrant from the United States District Court for the Southern District of Indiana for Grisanti's work computer (Filing No. 35 at 10). The computer's unique Media Access Control (“MAC”) address, a feature of internal hardware, matched the one observed on Playpen. Id. The FBI conducted a search after business hours on August 18, 2015, but agents were only able to complete a limited forensic analysis using a triage search tool. The next day, August 19, 2015, the FBI obtained additional search warrants from this District and the Western District of Kentucky to search not only Grisanti's work computer, but also his person, residence, and vehicle. (Filing No. 35-3; Filing No. 35-4; Filing No. 35-5.) Upon returning, the FBI found the computer in Grisanti's car trunk with the hard drive missing. Id. The FBI also found a smashed thumb drive in the dumpster of the business. Id. Subsequent forensic analysis found child pornography on the devices recovered from Grisanti's residence, including common files found between THISISMEE222 user's activity records and his work computer (Filing No. 35 at 10). Thereafter, Grisanti was indicted for receiving child pornography from Playpen in violation of 18 U.S.C. § 2252A(a)(2)(A), and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Id.


         The Fourth Amendment provides,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. “If the search or seizure was effected pursuant to a warrant, the defendant bears the burden of proving its illegality.” United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985). In reviewing the issuance of a search warrant:

a magistrate's determination of probable cause…should be overruled only when the supporting affidavit, read as a whole in a realistic and common sense manner, does not allege specific facts and circumstances from which the magistrate could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated.

United States v. Norris, 640 F.3d 295, 300 (7th Cir. 2011) (quoting United States v. Spry, 190 F.3d 829, 835 (7th Cir. 1999)). Instead of focusing on technical aspects of probable cause, the reviewing court should consider all facts presented to the magistrate. United States v. Lloyd, 71 F.3d 1256, 1262 (7th Cir. 1995). And “[w]here the police have acted pursuant to a warrant, the independent determination of probable cause by a magistrate gives rise to a presumption that the arrest or search was legal.” Id. Probable cause affidavits supporting applications for warrants are to be “read as a whole in a realistic and common sense manner, ” and “doubtful cases should be resolved in favor of upholding the warrant.” United States v. Quintanilla, 218 F.3d 674, 677 (7th Cir. 2000) (citation omitted). A judge determines probable cause exists to search when the “known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Ornelas v. U.S., 517 U.S. 690, 696 (1996) (citations omitted). “When a search is authorized by a warrant, deference is owed to the issuing judge's conclusion that there is probable cause.” U.S. v. Sutton, 742 F.3d 770, 773 (7th Cir. 2014).


         Grisanti does not challenge the accuracy of the information articulated by law enforcement in any of the warrants and there are no disputed factual issues. Neither party requested a hearing on the motion to suppress and the Court is able to rule on the motion without a hearing. “District courts are required to conduct evidentiary hearings only when a substantial claim is presented and there are disputed issues of ...

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