Accessing Playpen Site Provided Probable Cause to Search House

United States v. Tagg, 886 F.3d 579 (6th Cir. 2018)

Officers executed a search warrant for illegal child pornography at Derek Tagg’s residence. At the residence, officers found over 20,000 files containing pornography stored on Tagg’s computer. The search warrant was supported by an affidavit that someone at Tagg’s residence spent over five hours browsing a child pornography “dark web” site known as “Playpen” and clicked on more than 160 links leading to child pornography. However, there was no explicit evidence that Tagg was at the keyboard.

Tagg asked the trial court to suppress the evidence, arguing there was no probable cause to believe he was the one accessing the illegal materials; the trial court agreed. The prosecution then appealed and the court of appeals reversed the decision.

The court observed, “the unique challenges of child-pornography crimes demand a practical approach to the probable-cause question.” Citing a recent Supreme Court case of District of Columbia v. Wesby (138 S.Ct. 577 (2018)), the court noted that “probable cause deals with probabilities and depends on the totality of the circumstances.” Relying on “common-sense conclusions about human behavior,” the magistrate who issued the search warrant could easily conclude there was probable cause to believe Tagg possessed child pornography. The statute prohibits possession and distribution; the prosecution is not required to show Tagg actually viewed illegal content.

This case is one of many connected to investigators’ temporary takeover of the Playpen child pornography website as part of a sting operation. Because the takeover involved planting “bugs” allowing investigators to track back to those who accessed the site, the takeover method constituted a unique type of search. Other defendants have challenged the global warrant allowing investigators to use software to identify those accessing the “dark web” site. One of those cases may yet wind its way to the Supreme Court and be the basis of the next application of the Fourth Amendment, adopted in 1791, to heinous crimes committed with 21st-century technology.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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