*1 Defendant Mackenzie Stacey was charged by indictment with receipt and possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (a)(5)(B). See Dkt. No. 10 at 1-2. Currently before the Court are Defendant’s motion to suppress evidence and statements and Defendant’s motion to dismiss the indictment. See Dkt. Nos. 28, 30.

II. BACKGROUND

In December 2014, the Federal Bureau of Investigation (“FBI”) learned of a child pornography website called “Playpen” which operated on an anonymous internet network called “The Onion Router,” or Tor. See Dkt. No. 28-1 at 7; Dkt. No. 41 at 5. The FBI began to conduct an investigation into Playpen called “Operation Pacifier.” See Dkt. No. 41 at 5. In February 2015, the FBI located the operator of Playpen and seized the server that hosted Playpen. See Dkt. No. 28-1 at 8. The FBI then moved the server to a government facility in Virginia and continued to operate the website for approximately two weeks in order to identify and apprehend Playpen users. See id.

To that end, on February 20, 2015, the FBI applied for a search warrant to deploy a network investigative technique (“NIT”) on the computers of Playpen users. See id. at 9; Dkt. No. 34. The NIT was a set of computer instructions designed to transmit certain information from a Playpen user’s computer to a government computer, including the user’s actual IP address, which would otherwise be hidden on the Tor network. See Dkt. No. 41 at 7. The NIT would cause the user’s computer to send such information when the user entered a username and password on Playpen’s homepage to log into the website. See id. at 8; Dkt. No. 34 at 4.

FBI Special Agent Douglas Macfarlane (“SA Macfarlane”) submitted an affidavit in support of the search warrant application which extensively explained the nature of the Playpen website, including its dedication to the advertisement and distribution of child pornography and the discussion of matters pertaining to child sexual abuse, as well as the steps that had to be taken to access the website. See Dkt. No. 34 at 6, 17-28. SA Macfarlane also described the Tor network and the NIT in great detail. See id. at 15-17, 28-32. SA Macfarlane further explained that, when he accessed the website on February 18, 2015, the homepage of the website depicted images of “partially clothed prepubescent females with their legs spread apart.” Id. at 18. At some point on February 19, 2015, before the administrator of Playpen was apprehended, he changed the image of the homepage. See Dkt. No. 47-2 at 3-4. The new image depicted one young girl, whose exact age is unclear, wearing stockings with her legs crossed. See Dkt. No. 28-1 at 12; see also United States v. Darby, 190 F. Supp. 3d 520, 525 (E.D. Va. 2016) (describing the new image depicted on Playpen’s homepage as of February 20, 2015).

Magistrate Judge Theresa Carroll Buchanan from the Eastern District of Virginia issued the search warrant on February 20, 2015 (the “NIT Warrant”). See Dkt. No. 34 at 2-5. In describing the place to be searched, the warrant provided that the FBI could deploy the NIT on the Playpen server at the government facility in Virginia, and then use the NIT on “activating computers”—computers in which a user logs into the Playpen website by entering a username and password. See id. at 4. In describing the information to be seized, the warrant provided that certain information from “activating computers” would be sent to the government pursuant to the NIT.[1] See id. at 5.

*2 The FBI was able to identify hundreds of Playpen users through the NIT, and many users have been charged with federal offenses relating to child pornography. See Dkt. No. 41 at 9. In this case, the FBI identified a Playpen user, operating under the username “Shitbucket,” with an IP address belonging to a cable subscriber located at Defendant’s residence in Earlton, New York. See id.; Dkt. No. 34-2 at 22-23. On October 29, 2015, Magistrate Judge Christian Hummel issued a search warrant authorizing the search of Defendant’s home and various electronic data (the “Residual Warrant”). See Dkt. No. 41 at 9; Dkt. No. 34-2.

On October 30, 2015, FBI agents executed the search warrant of Defendant’s home. See Dkt. No. 41 at 10. Approximately ten to twelve FBI agents and task force officers were involved in the execution of the search warrant, and two county sheriff officers were present as well. See Dkt. No. 54-1 at 20, 24. Defendant and his sister, mother, and father were all home at the time of the search. See id. at 75. During the search, law enforcement agents learned that the computer Defendant admitted to solely using was the one that accessed the Playpen website. See id. at 99, 121. Defendant eventually admitted to accessing Playpen and viewing child pornography. See id. at 150-51.

A suppression hearing was held on June 30, 2017. The Government called three witnesses: FBI Special Agent Brian Seymour (“SA Seymour”); Task Force Officer Gary McMullen (“TFO McMullen”); and FBI Special Agent David Fallon (“SA Fallon”). Defendant also testified at the hearing. The parties submitted additional briefs following the hearing regarding the admissibility of the statements attributed to Defendant during the execution of the search warrant. See Dkt. Nos. 54, 58. After the hearing, the parties stipulated to the admission of another defense exhibit that was discussed at the hearing but not received into evidence at that time. See Dkt. No. 53.

III. DISCUSSION

A. Motion to Dismiss the Indictment

Defendant argues that the indictment should be dismissed because the Government’s conduct in taking over the Playpen server and allowing real child pornography to continue to be distributed, as opposed to immediately shutting down the server, was extreme and outrageous. See Dkt. No. 30-1 at 4-5. Defendant contends that “[t]he Government’s involvement in stimulating the demand for child pornography, and then facilitating that demand, is so excessive, so outrageous, and so shocking, as to violate our universal sense of justice. Dismissing the indictment is indeed an extreme remedy, but it is the only appropriate response to equally extreme government conduct.” Id. at 5. Defendant points to statements from the U.S. Department of Justice that victims of child pornography suffer from their images being traded and viewed by people worldwide. See id. at 6. Defendant further argues that “[t]he harm caused by the FBI will endure for years, felt by the victims whose images the FBI helped to distribute,” and that “[t]he FBI enabled [child pornography] to be printed, copied, and sent out into the world where untold thousands will get to victimize the subjects by watching their abuse.” Id. at 9-10.

As the Second Circuit has explained, “[g]overnment involvement in a crime may in theory become so excessive that it violates due process and requires the dismissal of charges against a defendant even if the defendant was not entrapped.” United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011) (citing United States v. Rahman, 189 F.3d 88, 131 (2d Cir. 1999)). “To establish a due process violation on this ground, a defendant must show that the government’s conduct is ‘so outrageous that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction.’ ” Id. (quoting United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997)) (other citation omitted). Indeed, the government’s conduct must be “so offensive that it ‘shocks the conscience.’ ” United States v. Chin, 934 F.2d 393, 398 (2d Cir. 1991) (quoting Rochin v. California, 342 U.S. 165, 172 (1952)). The Second Circuit has also held that defendants have a “ ‘very heavy’ burden in light of [the courts’] ‘well-established deference to the Government’s choice of investigatory methods.’ ” Al Kassar, 660 F.3d at 121 (quoting Rahman, 189 F.3d at 131).

*3 In Chin, the Second Circuit considered whether the government’s conduct could be “outrageous” as it pertains to the rights of third-party victims of the crimes being investigated. See Chin, 934 F.2d at 399-400. In that case, an undercover postal inspector for the United States Postal Inspection Service encouraged the defendant to travel to Amsterdam to obtain magazines containing child pornography. See id. at 395-96. The Second Circuit held that the undercover inspector’s encouragement of the defendant did not amount to outrageous government conduct such that the defendant’s due process rights were violated. See id. at 398-99. However, the Second Circuit did express concern from the perspective of third-party victims of the crime, noting as follows:

Id. at 399. However, the Second Circuit further held that “[a] necessary prerequisite for demonstrating that an undercover investigation violated the rights of third parties is proof that the governmental action actually caused the defendant to commit a crime that would otherwise not have been committed.” Id. at 400. The defendant in that case failed to make such a showing, and, therefore, failed to establish a due process violation based on the rights of third parties. See id.

The Court begins its analysis in the present matter by noting that “it appears that all courts that have considered the same due process challenge based on the NIT warrant have declined to dismiss the indictments in those cases.” United States v. Kim, No. 16-CR-191, 2017 WL 394498, *4 (E.D.N.Y. Jan. 27, 2017) (citing cases). Moreover, Chief Judge Suddaby of the Northern District of New York was recently confronted with the same question of whether the government’s conduct in taking over Playpen was outrageous, and Judge Suddaby declined to dismiss the indictment. See United States v. Caraher, 5:16-cr-00244, Dkt. No. 58 at 40 (N.D.N.Y. May 15, 2017). The Court has not been able to find a case where an indictment arising from the NIT Warrant was dismissed for violating due process.

The Court again notes that, “in view of the courts’ well-established deference to the Government’s choice of investigatory methods, the burden of establishing outrageous investigatory conduct is very heavy.” Rahman, 189 F.3d at 131 (internal citations omitted). As the Eastern District of New York reasoned in Kim, which involved a similar due process challenge to the Government’s conduct in taking over Playpen, “[t]he FBI’s weighing of the costs and benefits of allowing the Playpen website to remain fully functional during the investigation is precisely the type of difficult decision-making that law enforcement must be allowed to make without undue second-guessing by the judiciary. The decision not to render Playpen, in effect, a dummy website during the investigation ... was one for the FBI, and not the Court or Defendant, to make.” Kim, 2017 WL 394498, at *5. The Court agrees with this reasoning in Kim. The Court is certainly troubled that the Government’s conduct allowed real child pornography to continue to be accessed, and the Court acknowledges that victims of child pornography continue to be victimized by the sharing of these images. However, the Court also acknowledges that, as a result of the investigation, the Government was able to identify or rescue at least 49 children from abuse and charge at least 137 individuals in the United States, including 35 people who were considered “hands-on” child sexual offenders. See id. Furthermore, the Government did not create Playpen, and the Government contends that when the FBI seized the website, it took steps to mitigate the risks to victims, including continuously monitoring the site for immediate threats and removing a section of the website that encouraged the production and sharing of new child pornography. See Dkt. No. 40 at 9-10. In sum, the decision to leave Playpen functional was one for law enforcement to make, and it cannot be said that the FBI’s conduct was so outrageous as to violate due process.

*4 Defendant heavily relies on the Second Circuit’s decision in Chin, but Chin does not support Defendant’s argument that the indictment should be dismissed. As discussed above, the Second Circuit explicitly stated that “[a] necessary prerequisite for demonstrating that an undercover investigation violated the rights of third parties is proof that the governmental action actually caused the defendant to commit a crime that would otherwise not have been committed.” Chin, 934 F.2d at 400. Here, there is no indication whatsoever that the FBI’s conduct caused Defendant to commit a crime that would otherwise not have been committed. As the Kim court explained, “the FBI’s operation of the Playpen website, in reality, did not amount to the government committing or even inducing new crimes, but rather involved allowing ongoing criminal activity to continue for a two-week period while being monitored by the FBI.” Kim, 2017 WL 394498, at *7. Moreover, Defendant created a Playpen account on January 16, 2015, over a month before the FBI seized the website. See Dkt. No. 40 at 11; Dkt. No. 34-2 at 21. Accordingly, Chin does not warrant dismissal of the indictment in this case.

Defendant also compares the Government’s conduct in the present case to the Government’s conduct in United States v. Boffardi, 684 F. Supp. 1263 (S.D.N.Y. 1988) and United States v. Swanger, 679 F. Supp. 542 (W.D.N.C. 1988). Defendant contends that, in those cases, the Government was able to responsibly implement a child pornography sting operation, and in comparison, the FBI’s investigation in this case was outrageous. See Dkt. No. 30-1 at 8-9. However, as the Government points out, law enforcement already knew the identity of their targets in those cases. See Dkt. No. 40 at 9; Boffardi, 684 F. Supp. at 1264-65; Swanger, 679 F. Supp. at 546. Here, as explained above, the Tor network protected a user’s privacy by hiding the user’s actual IP address and other identifying information. As such, the FBI’s decision to seize the Playpen website and continue its operation in order to identify and apprehend its users was a decision for the FBI to make.

Accordingly, Defendant’s motion to dismiss the indictment is denied.

B. Defendant’s Motion to Suppress Evidence

1. Whether the NIT Warrant was Supported by Probable Cause

Since the NIT was deployed on computers as soon as a user logged into Playpen, the warrant application needed to establish probable cause to believe that anyone logging into Playpen did so to view or distribute child pornography. Defendant claims that merely logging into Playpen’s homepage did not establish probable cause that a crime had been committed since Playpen’s homepage “did not make plain that its essential purpose was related to child pornography.” Dkt. No. 28-1 at 19. Defendant further argues that the technical features of Playpen’s website, as described in the search warrant affidavit, did not create an inference that the website was used for child pornography. See id. The Government, on the other hand, contends that the search warrant affidavit “set forth in detail why there was probable cause to believe anyone who logged into Playpen did so intending to view and/or trade child pornography.” Dkt. No. 41 at 15. The Government argues that the images and text on the Playpen homepage strongly suggest that Playpen was dedicated to child pornography, and that anyone logging into Playpen did so for the purpose of accessing and sharing child pornography. See id. at 16. The Government further contends that the affidavit made clear that Playpen was a hidden service on Tor that was “accessible only to users who downloaded the necessary software and knew the precise algorithm-generated URL for Playpen.” Id. at 15.

As the Supreme Court stated in Illinois v. Gates:

*5 462 U.S. 213, 238-39 (1983) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). The Supreme Court has described this standard as “flexible” and has explained that “probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” Gates, 462 U.S. at 232, 239.

At the outset, it appears that all district courts that have considered whether the NIT Warrant was supported by probable cause have found that the magistrate judge had a substantial basis for determining that probable cause existed. See, e.g., Caraher, 5:16-cr-00244, Dkt. No. 58 at 62 (“First, as far as the Court can tell, no other federal district court addressing Operation Pacifier has concluded that the NIT Warrant lacked probable cause. The Court finds this unanimity to be a compelling reason to conclude that probable cause existed in this case.”). The Court has reviewed the analysis provided by a number of district courts regarding whether the NIT Warrant was supported by probable cause. See, e.g., United States v. Matish, 193 F. Supp. 3d 585, 603-04 (E.D. Va. 2016); United States v. Darby, 190 F. Supp. 3d 520, 531-32 (E.D. Va. 2016); United States v. Allain, 213 F. Supp. 3d 236, 244-45 (D. Mass. 2016).

Turning to the warrant application itself, SA Macfarlane explained that there were two images on the Playpen homepage “depicting partially clothed prepubescent females with their legs spread apart.” Dkt. No. 34 at 18. Underneath the images was text stating “No cross-board reposts, .7z preferred, encrypt filenames, include preview, Peace out.” Id. He also explained, based on his experience and training, that “ ‘no cross-board reposts’ refers to a prohibition against material that is posted on other websites from being ‘re-posted’ to the TARGET WEBSITE; and ‘.7z’ refers to a preferred method of compressing large files or sets of files for distribution.” Id. at 18-19. Moreover, SA Macfarlane explained that when a user accessed the “register an account” hyperlink, a message appeared warning the user not to enter a real email address or any information that could identify the user. See id. at 19-20.

The affidavit also contained extensive details regarding the Tor network and how to access the Playpen website. SA Macfarlane explained that the Tor network protects a user’s privacy by “masking the user’s actual IP address which could otherwise be used to identify a user.” Id. at 16. The affidavit provided great detail about how this process works on the Tor network, explaining that when a user accesses a website on the Tor network, “the IP address for a Tor ‘exit node,’ rather than the user’s actual IP address, shows up in the website’s IP log.” Id. While the anonymity surrounding the Playpen website and the Tor network does not alone establish a finding of probable cause, it certainly supports the magistrate’s conclusion that probable cause existed. See Darby, 190 F. Supp. 3d at 532 (finding that people in search of illegal content “would be encouraged by this promise” of anonymity offered by the Playpen website).

With respect to accessing the Playpen website, SA Macfarlane explained that a user could not perform a traditional Google-type search for the name of the website, but could only obtain the web address from other Playpen users or from “Internet postings describing the sort of content available on the website as well as the website’s location.” Id. at 17. The affidavit further explained that accessing Playpen “requires numerous affirmative steps by the user, making it extremely unlikely that any user could simply stumble upon the TARGET WEBSITE without understanding its purpose and content.” Id. at 17-18. Defendant argues that, on the contrary, a Tor network user could use a search engine similar to Google to find websites, and could be led to Playpen by merely searching for legal sexual content on the Tor browser. See Dkt. No. 28-1 at 28. The Eastern District of Virginia addressed this very argument in Darby, and held as follows:

Darby, 190 F. Supp. 3d at 532. The Court agrees with this reasoning set forth in Darby.

Furthermore, the affidavit described Playpen’s content, including a list of sections, fora, and sub-fora available to Playpen users, the majority of which referenced children. See Dkt. No. 34 at 20-22. The affidavit also described several images on Playpen that depicted child pornography, including images of prepubescent children being sexually abused by adults. See id. at 22-23. SA Macfarlane explained that various sub-fora “were reviewed and determined to contain the most egregious examples of child pornography” or were “dedicated to retellings of real world hands on sexual abuse of children.” Id. at 25-26. While the Court acknowledges that the NIT was deployed as soon as a user logged into Playpen, as other courts have noted, “[b]ecause the website itself was difficult to find, those who accessed it likely knew of its contents.” Darby, 190 F. Supp. 3d at 532. Accordingly, the content of the website was certainly relevant to the magistrate’s probable cause determination, and the description of the content lends further support that the magistrate had a substantial basis in determining that probable cause existed.

Defendant places significant emphasis on the fact that the image on Playpen’s homepage was different on the day that the NIT Warrant was issued than on the day that the search warrant application was submitted. See Dkt. No. 28-1 at 11-12, 28-29. As mentioned above, the affidavit provided that, “[o]n the main page of the site, located to either side of the site name were two images depicting partially clothed prepubescent females with their legs spread apart ....” Dkt. No. 34 at 18. However, it appears that the administrator of Playpen changed the image on the homepage sometime on February 19, 2015, before he was apprehended. See Dkt. No. 47-2 at 3-4. Thus, when the magistrate judge issued the NIT Warrant on February 20, 2015, the image on the homepage was not the same image as the one described in the search warrant application. Defendant contends that this second image “merely showed a picture of a fully clothed female who could be a young adult with her legs crossed,” and, thus, did not suggest that the website was dedicated to child pornography. Dkt. No. 28-1 at 11-12. Defendant argues that, “[w]hile the woman depicted on the home page appears to be young, the image is small and it is not at all clear that she is under the age of 18, let alone ‘prepubescent,’ nor does the pose appear lascivious.” Id. at 12.

The Court finds that the changed image on Playpen’s homepage does not alter the probable cause determination. Courts that have considered such a challenge have rejected it. See, e.g., Darby, 190 F. Supp. 3d at 531; Matish, 193 F. Supp. 3d at 606. In Darby, the court explained that the new image depicted a “child [who] is obviously under eighteen and not at all fully dressed. She is wearing a short top or dress and posed provocatively with her upper thigh exposed.”[2] Darby, 190 F. Supp. 3d at 531. The Darby court concluded that “[e]ither version of the homepage supports a finding of probable cause.” Id. Similarly, in Matish, the Eastern District of Virginia found that “replacing two images depicting partially clothed prepubescent females with their legs spread apart, with an image of a single prepubescent female wearing fishnet stockings and posed in a sexually suggestive manner, is not significant.” Matish, 193 F. Supp. 3d at 606 (quotations omitted). Furthermore, the court in Matish held that the logo change was insignificant to the probable cause determination because the finding of probable cause “rested not solely on the site’s logo but also on the affiant’s description that the entire site was dedicated to child pornography, Playpen’s suggestive name, the affirmative steps a user must take to locate Playpen, the site’s repeated warnings and focus on anonymity, and the actual contents of the site.” Id. This Court agrees.

*7 Defendant also relies on the Second Circuit’s decision in United States v. Falso, 544 F.3d 110 (2d Cir. 2008). See Dkt. No. 28-1 at 21. In Falso, the Second Circuit held that a search warrant application did not establish probable cause when it alleged only that the defendant gained access or attempted to access a non-membership website that contained some images of child pornography, but failed to provide details about the site that would give rise to an inference that the defendant accessed the website for the purpose of finding child pornography or that the defendant actually viewed or downloaded child pornography. See Falso, 544 F.3d at 121. Here, however, the affidavit contains extensive details explaining the nature of the Tor network and the Playpen website, as well as the content of the homepage and the site’s warnings about anonymity, which all strongly suggest that anyone who logged into Playpen did so to access child pornography.

Accordingly, the Court finds that the magistrate judge had a substantial basis to conclude that the NIT Warrant was supported by probable cause.

2. Whether the NIT Warrant was Unconstitutionally Overbroad

Defendant argues that the NIT Warrant was unconstitutionally overbroad and failed to satisfy the particularity requirement of the Fourth Amendment. See Dkt. No. 28-1 at 30-33. Defendant claims that, “[u]nlike a typical search warrant based upon facts establishing probable cause to search a particular location, the warrant gave the FBI broad discretion in deciding when and against whom to deploy the NIT.” Id. at 31. Defendant further contends that “[t]he warrant could easily have been narrowed to authorize searches of only those visitors who viewed or downloaded illegal pornography.” Id. at 32. For example, Defendant argues that the NIT could have been deployed on computers in which users accessed particular sub-directories that contained illegal content, instead of on computers of users who merely logged into the Playpen website. See id. Defendant also reiterates some of his arguments with respect to probable cause, claiming that “the NIT warrant may fairly be characterized as the Internet age equivalent of a general warrant, allowing the FBI to search tens of thousands of computers for which probable cause to search was not established.” Id.

The Fourth Amendment provides, in part, that “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. “To achieve its goal, the Warrants Clause requires particularity and forbids overbreadth.” United States v. Jacobson, 4 F. Supp. 3d 515, 521 (E.D.N.Y. 2014) (quotation omitted). Particularity and overbreadth “are two distinct legal issues: (1) whether the items listed as ‘to be seized’ in the warrant were overbroad because they lacked probable cause and (2) whether the warrant was sufficiently particularized on its face to provide the necessary guidelines for the search by the executing officers.” United States v. Hernandez, No. 09 CR 625, 2010 WL 26544, *7 (S.D.N.Y. Jan. 6, 2010).

With respect to the particularity requirement, the Second Circuit has explained that it “serves three related purposes: preventing general searches, preventing the seizure of objects upon the mistaken assumption that they fall within the magistrate’s authorization, and preventing the issuance of warrants without a substantial factual basis.” United States v. Young, 745 F.2d 733, 759 (2d Cir. 1984). “Law enforcement agents are thus barred from executing warrants that purport to authorize ‘a general, exploratory rummaging in a person’s belongings.’ ” United States v. Zemlyansky, 945 F. Supp. 2d 438, 452 (S.D.N.Y. 2013) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). The Second Circuit has held that there are three components to the particularity requirement. “First, a warrant must identify the specific offense for which the police have established probable cause.” United States v. Galpin, 720 F.3d 436, 445 (2d Cir. 2013) (citing United States v. Bianco, 998 F.2d 1112, 1116 (2d Cir. 1993)). “Second, a warrant must describe the place to be searched.” Id. at 445-46 (citing United States v. Voustianiouk, 685 F.3d 206, 211 (2d Cir. 2012)). “Third, the warrant must specify the ‘items to be seized by their relation to designated crimes.’ ” Id. at 446 (quoting United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010)) (other citation omitted). “Courts implement the particularity requirement by insisting that warrants not ‘leave to the unguided discretion of the officers executing the warrant the decision as to what items may be seized.’ ” Zemlyansky, 945 F. Supp. at 453 (quoting United States v. Riley, 906 F.2d 841, 844 (2d Cir. 1990)).

*8 With respect to Defendant’s arguments that the warrant was overbroad, “the overbreadth inquiry asks ‘whether the warrant authorized the search and seizure of items as to which there is no probable cause.’ ” United States v. Lustyik, 57 F. Supp. 3d 213, 228 (S.D.N.Y. 2014) (quoting United States v. Dupree, 781 F. Supp. 2d 115, 148 n.14 (E.D.N.Y. 2011)). “Thus, a warrant is overbroad if its ‘description of the objects to be seized ... is broader than can be justified by the probable cause upon which the warrant is based.’ ” Id. (quoting Galpin, 720 F.3d at 446).

In the present matter, the Court rejects Defendant’s arguments that the NIT Warrant was overbroad and in violation of the particularity requirement of the Fourth Amendment. Attachment A of the search warrant, entitled “Place to be Searched,” instructed that the NIT would be deployed on the “server operating the Tor network child pornography website” and on “any user or administrator who logs into the TARGET WEBSITE by entering a username and password.” Dkt. No. 34 at 4. Attachment B of the warrant, entitled “Information to be Seized,” authorized the seizure of specific information from the computers that logged into Playpen. See id. at 5. As another court stated when confronted with this same issue, “[t]he NIT Warrant is not a general warrant in that it clearly limited which computers could be searched and what information could be obtained as a result of that search.” United States v. Allain, 213 F. Supp. 3d 236, 248 (D. Mass. 2016). This Court agrees. The warrant specifically sets forth that the NIT would be deployed on computers accessing the Playpen website and specifically enumerates the information to be obtained from those computers. See Dkt. No. 34 at 4-5. Accordingly, the Court concludes that the NIT Warrant satisfied the Fourth Amendment’s particularity requirement. See Caraher, 5:16-cr-00244, Dkt. No. 58 at 63 (“[E]very other federal district court to consider this issue has found the NIT Warrant satisfies the Fourth Amendment’s particularity requirement.”).

Similarly, the NIT Warrant was not unconstitutionally overbroad. Although Defendant argues that the warrant should have been narrower, the Court has already determined that the warrant did not permit the search or seizure of any items or information without probable cause. Notably, other district courts have also rejected this argument. See, e.g., United States v. Michaud, No. 3:15-cr-05351, 2016 WL 337263, *5 (W.D. Wash. Jan. 28, 2016) (“Both the particularity and breadth of the NIT Warrant support the conclusion that the NIT Warrant did not lack specificity and was not a general warrant.”); Darby, 190 F. Supp. 3d at 533 (rejecting the defendant’s argument that the NIT Warrant was overbroad, even though the warrant authorized the search of potentially thousands of computers, because “there was probable cause to search the computers of individuals that logged into Playpen”).

Accordingly, the Court rejects Defendant’s argument that the NIT Warrant was overbroad and in violation of the Fourth Amendment’s particularity requirement.

3. Whether a Franks Hearing is Required

Defendant claims that he is entitled to a hearing pursuant to the Supreme Court’s decision in Franks v. Delaware, 438 U.S. 154 (1978). See Dkt. No. 28-1 at 26-30. “Ordinarily, a search carried out ‘pursuant to a warrant is presumed valid.’ ” United States v. Mandell, 752 F.3d 544, 551 (2d Cir. 2014) (quoting United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003)). “However, in ‘certain circumstances,’ Franks permits a defendant to ‘challenge the truthfulness of factual statements made in the affidavit, and thereby undermine the validity of the warrant and the resulting search or seizure.’ ” Id. at 551-52 (quoting Awadallah, 349 F.3d at 64). A Franks hearing is required “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.” Franks, 438 U.S. at 155-56.

*9 Defendant claims that the affidavit contained a “false and inaccurate description of the Playpen homepage,” and that this description “was a primary component of the affiant’s allegation in support of probable cause.” Dkt. No. 28-1 at 27. Furthermore, Defendant argues that the affidavit’s description of the Tor network was misleading, and that users could search for websites using a search engine similar to Google. See id. at 28. Defendant also argues that the affidavit contains misleading statements that the features of the website were indicative of criminality. See id. at 29. Defendant believes that all of these purported misrepresentations were necessary for the probable cause determination. See id. at 30.

The Court finds that Defendant is not entitled to a Franks hearing. It appears that all courts that have reviewed this search warrant application have refused to grant a Franks hearing. See, e.g., United States v. Gaver, No. 3:16-CR-88, 2017 WL 1134814, *5 (S.D. Ohio Mar. 27, 2017) (citing cases). With respect to the logo change, one FBI Special Agent, SA Alfin, did notice the logo change before the warrant was issued. See Dkt. No. 47-2 at 4. However, as one court noted, there is no evidence that SA Alfin informed SA Macfarlane of the change, and “it was not reckless for the affiant not to examine the website one more time on the day he sought the warrant’s authorization, as he had recently examined the website and confirmed that nothing had changed.” United States v. Matish, 193 F. Supp. 3d 585, 606 (E.D. Va. 2016). Accordingly, Defendant has not made a substantial preliminary showing that SA Macfarlane acted deliberately or with reckless disregard for the truth.

Moreover, as discussed above, the logo change does not alter the probable cause determination. The magistrate would have had a substantial basis for concluding that probable cause existed if either logo was described, and the magistrate’s determination was not solely based on the logo. As such, Defendant has failed to make a substantial preliminary showing that the false statement was necessary for the probable cause finding.

The Court also rejects Defendant’s arguments with respect to the other purported misrepresentations in the affidavit, namely the explanations of the Tor network and the Playpen website. In Gaver, the Southern District of Ohio specifically addressed these arguments, and concluded that the defendant “failed to make a preliminary showing that Macfarlane intentionally sought to mislead the magistrate judge” with his statements regarding the ability to search for websites on the Tor network and the primary purpose of the Playpen website. Gaver, 2017 WL 1134814, at *6. Likewise, the Allain court held that “[t]he Court has no reason to believe that the affiant’s assessment of the website was intended to mislead the magistrate judge, nor has Defendant made the substantial preliminary showing that any of these statements were knowingly and intentionally false, or made with a reckless disregard for the truth.” United States v. Allain, 213 F. Supp. 3d 236, 247 (D. Mass. 2016). The Court agrees that there is no indication that SA Macfarlane intended to mislead the magistrate.

Accordingly, Defendant’s request for a Franks hearing is denied.

4. Whether the NIT Warrant was an Anticipatory Warrant that Complied with the Fourth Amendment

The Supreme Court addressed anticipatory warrants in United States v. Grubbs, 547 U.S. 90 (2006). There, the Court held that “[a]n anticipatory warrant is a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place. Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time—a so-called ‘triggering condition.’ ” Grubbs, 547 U.S. at 94 (2006) (internal quotation omitted). “If the government were to execute an anticipatory warrant before the triggering condition occurred, there would be no reason to believe the item described in the warrant could be found at the searched location; by definition, the triggering condition which establishes probable cause has not yet been satisfied when the warrant is issued.” Id.

*10 The Supreme Court stated in Grubbs that “[a]nticpatory warrants are ... no different in principle from ordinary warrants.” Id. at 96. The Court then provided instruction as to how these warrants can comply with the Fourth Amendment:

Id. at 96-97 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

Defendant argues that, assuming that the search warrant application established probable cause based on the description of the logo on the homepage, that basis for probable cause was defeated when the logo changed before the warrant was issued. See Dkt. No. 28-1 at 34. According to Defendant, once the logo changed, there was nothing else about the homepage that was indicative of illegal activity. See id. Defendant believes that, when the warrant was actually issued, the homepage contained “little, if anything, that would lead an unwitting visitor to believe that Playpen was more than a common pornography site or sexually oriented chat room.” Id. at 34-35. As such, Defendant contends that “the triggering event as established in the warrant application, the visiting of an obviously illegal website, could not, and did not, occur.” Id. at 35.

The Government contends that there was “ample support for the magistrate’s finding of probable cause to believe that Playpen was accessed by users seeking child pornography,” regardless of the logo change. Dkt. No. 41 at 32. The Government argues that the triggering event was when Defendant entered his login information into Playpen’s homepage, and there was probable cause to believe that anyone logging into the homepage was seeking child pornography. See id.

The Court finds that the NIT Warrant was an anticipatory warrant that complied with the Fourth Amendment. The triggering event in this case was logging into the Playpen website. Despite Defendant’s contentions that the logo change altered the probable cause determination, the Court has already found that, even with the logo change, the magistrate had a substantial basis to conclude that anyone logging into the Playpen website was seeking child pornography. As such, the triggering event, which, according to Defendant, was “the visiting of an obviously illegal website,” did in fact occur despite the logo change. See Dkt. No. 28-1 at 35. Other district courts have reached this same conclusion. See, e.g., Darby, 190 F. Supp. 3d at 534 (“Even without [the images described in the affidavit] there was probable cause to search anyone who registered and logged into Playpen. Logging into Playpen was the triggering event, and all the computers searched under the NIT Warrant, including Defendant’s, logged into the site.”).

Moreover, as the Eastern District of Virginia noted in Matish, as well as Judge Suddaby in Caraher, there is a policy rationale for rejecting Defendant’s argument. See Matish, 193 F. Supp. 3d at 610; Caraher, 5:16-cr-00244, Dkt. No. 58 at 63-64. The court in Matish reasoned as follows:

Matish, 193 F. Supp. 3d at 610. This Court agrees with this reasoning.

5. Whether the NIT Warrant Violated 28 U.S.C. § 636(a) and Federal Rule of Criminal Procedure 41

The Federal Magistrates Act provides, in relevant part, that

28 U.S.C. § 636. Fed. R. Crim. P. 41(b) provides, in relevant part, as follows:

Fed. R. Crim. P. 41(b).[3]

As Judge Suddaby observed in Caraher, there are two different types of Rule 41 violations: fundamental and technical. See Caraher, 5:16-cr-00244, Dkt. No. 58 at 65. “Only a ‘fundamental’ violation of Rule 41 requires automatic suppression, and a violation is ‘fundamental’ only where it, in effect, renders the search unconstitutional under traditional fourth amendment standards.” United States v. Vasser, 648 F.2d 507, 510 (9th Cir. 1980) (citing United States v. Burke, 517 F.2d 377, 386 (2d Cir. 1975)) (other citations omitted). Violations which are not of a constitutional magnitude, or “non-fundamental” violations, only require suppression if “(1) there was ‘prejudice’ in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.” Id. (quoting United States v. Radlick, 581 F.2d 225, 228 (9th Cir. 1978)); see also Burke, 517 F.2d at 386-87 (2d Cir. 1975) (footnotes omitted).

*12 Defendant argues that the NIT Warrant violated Rule 41. See Dkt. No. 28-1 at 38-42. Defendant notes that Rule 41(b)(1) allows a magistrate to authorize a search and seizure within that magistrate’s district, and the search of Defendant’s computer occurred in New York, outside the Eastern District of Virginia. See id. at 40. Similarly, Defendant argues that Rule 41(b)(2) did not permit the magistrate to authorize the search since the rule requires the property to have been in the district when the warrant was issued, and “Defendant’s computer was never physically within the Eastern District of Virginia.” Id. at 41. Defendant further contends that Rule 41(b)(4) is inapplicable because the NIT was not a “tracking device” and because the NIT was installed on Defendant’s computer in New York. See id. at 42.

Defendant claims that the violation of Rule 41 requires suppression because it was of a constitutional magnitude. See id. at 43. To support this argument, Defendant relies on then-Judge Gorsuch’s concurrence in a Tenth Circuit opinion, in which he stated that “a warrant issued in defiance of positive law’s jurisdictional limitations on a magistrate judge’s powers ... is no warrant at all.” United States v. Krueger, 809 F.3d 1109, 1126 (10th Cir. 2015) (Gorsuch, J., concurring). Defendant also cites several cases that have held that, because the magistrate lacked authority to issue the warrant, the warrant was void ab initio. See Dkt. No. 28-1 at 49 (citing United States v. Croghan, 209 F. Supp. 3d 1080, 1090 (S.D. Iowa 2016); United States v. Levin, 186 F. Supp. 3d 26, 36-37 (D. Mass. 2016)). Even if the violation was not of a constitutional magnitude, Defendant argues that he “was prejudiced because the search authorized by the Residual Warrant would never have occurred but for information derived from the improperly issued NIT Warrant.” Id. at 44. Defendant also claims that the violation was intentional because “there is no credible argument that officers reasonably believed that none of the 214,898 members of [Playpen] were located outside of Virginia.” Id. at 46.

The Government contends that the warrant complied with Rule 41(b)(4). See Dkt. No. 41 at 35. The Government cites several cases that have held that when someone logged into the Playpen website, they made a “virtual trip” to the Eastern District of Virginia where the NIT was deployed or “installed,” and then the NIT functioned as a tracking device back to the person’s computer to identify the computer’s actual location. See id. The Government further argues that, even if the NIT Warrant violated Rule 41, suppression is not automatic because any error did not result in a constitutional violation. See id. at 38-40. Moreover, the Government argues that suppression is not permitted because any purported violation did not prejudice Defendant, nor was any purported violation intentional. See id. at 40-43.

A recent decision out of the Middle District of Tennessee outlined how courts have analyzed whether the NIT Warrant violated Rule 41. See United States v. Austin, 230 F. Supp. 3d 828 (M.D. Tenn. 2017). The Austin court explained that “[s]everal courts have determined that the NIT Warrant violated Rule 41(b), or assumed without deciding that the warrant violated Rule 41(b), but, nonetheless, concluded that suppression was not warranted.” Id. at 832 (citing cases). The court further explained that “[o]ther courts have determined that the NIT Warrant did not violate Rule 41(b) because it is a ‘tracking device’ authorized by Rule 41(b)(4), but even if that were not the case, suppression is not warranted.” Id. (citing cases). Finally, the Austin court observed that “a few courts have concluded that the NIT Warrant violated Rule 41(b), and ordered suppression as a remedy.” Id. at 833 (citing cases). The Austin court identified only four cases that fell into the third category and granted suppression. See id. The Austin court itself fell into the second category—holding that the NIT Warrant did not violate Rule 41 because the NIT can be considered a tracking device, but even if it did violate Rule 41, suppression was not warranted. See id. The Court also notes that, in Caraher, Judge Suddaby concluded that the NIT Warrant violated Rule 41, but held that suppression was not required or warranted. See Caraher, 5:16-cr-00244, Dkt. No. 58 at 65-67.

*13 In the present matter, the Court is not convinced of the Government’s argument that the NIT Warrant complied with Rule 41(b)(4).[4] The Court finds the reasoning set forth in United States v. Michaud, which dealt with this same issue, to be instructive and persuasive:

United States v. Michaud, No. 3:15-CR-05351, 2016 WL 337263, *6 (W.D. Wash. Jan. 28, 2016). Moreover, as the Croghan court explained, the NIT cannot be considered a “tracking device” since “it did not ‘track’ the ‘movement’ of anything; rather, it caused computer code to be installed on the activating user’s computer, which then caused such computer to relay specific information to the government-controlled computers in Virginia.” Croghan, 209 F. Supp. 3d at 1088. Accordingly, the Court finds that the magistrate judge did not have the authority to issue the NIT Warrant under Rule 41(b).

Having found that the NIT Warrant failed to comply with Rule 41, the Court must determine the appropriate remedy for such lack of compliance. Again, suppression is automatically required only if the violation is considered fundamental. See Vasser, 648 F.2d at 510. The Court holds that the violation was not fundamental because, as discussed above in detail, the NIT Warrant complied with the Fourth Amendment.[5] Other courts have reached this same conclusion. See, e.g., United States v. Jean, 207 F. Supp. 3d 920, 943 (W.D. Ark. 2016) (“[I]f there was any violation of the Rule at all, it was certainly non-fundamental. The search warrant was constitutionally sufficient in that it was supported by probable cause and satisfied the particularity requirement.”); United States v. Dzwonczyk, No. 4:15-CR-3134, 2016 WL 7428390, *13 (D. Neb. Dec. 23, 2016) (“[T]he defendant has not established ... that the Rule violation in any way implicated the Fourth Amendment’s fundamental requirements of probable cause, particularity, and neutrality.”).

*14 As discussed above, even though the violation was not fundamental, suppression still may be warranted if Defendant was prejudiced or if there is evidence of an intentional and deliberate disregard of the rule. See Vasser, 648 F.2d at 510. Here, however, Defendant has failed to show that he was prejudiced as a result of the violation. Defendant’s primary argument is that he was prejudiced because the search of his computer would not have occurred absent a violation of Rule 41. See Dkt. No. 28-1 at 44. The Michaud court also addressed this argument, and reasoned as follows:

Michaud, 2016 WL 337263, at *6. Instead, the Michaud court reasoned that the definition of prejudice “suggests that courts should consider whether the evidence obtained from a warrant that violates Rule 41(b) could have been available by other lawful means, and if so, the defendant did not suffer prejudice.” Id. at 6. The Court finds this explanation instructive in determining whether the violation prejudiced Defendant.

Courts analyzing whether the NIT Warrant violated Rule 41 have offered various reasons as to why defendants were not prejudiced by the Rule 41 violation. The court in Michaud held that the defendant did not suffer such prejudice because he had no reasonable expectation of privacy in his IP address, even on the Tor network, which was ultimately used to identify his geographic location.[6] See id. at 7. Similarly, in Jean, the court held that the defendant was not prejudiced because the NIT Warrant could have been legally authorized by an Article III judge in the Eastern District of Virginia. Jean, 207 F. Supp. at 944. In United States v. Acevedo-Lemus, the court held that the defendant was not prejudiced because “the FBI could have installed copies of Playpen in every judicial district in the country (there are 94) and then secured a corresponding number of Rule 41 warrants. It only chose not to do so because of the enormous burden and expense of such an undertaking.” United States v. Acevedo-Lemus, No. SACR 15-00137, 2016 WL 4208436, *7 (C.D. Cal. Aug. 8, 2016). The Court finds the reasoning set forth in these cases to be persuasive. Accordingly, Defendant has not shown that he suffered prejudice as a result of the Rule 41 violation.

Likewise, Defendant has not shown that the FBI intentionally and deliberately violated Rule 41. Although this Court has found that the NIT Warrant did not comply with Rule 41(b)(4), other courts have disagreed. See, e.g., Austin, 230 F. Supp. 3d at 833; Darby, 190 F. Supp. 3d at 536. As the Acevedo-Lemus court observed, “[t]he fact that courts are presently divided over whether the NIT Warrant even violated Rule 41 is compelling evidence that the FBI did not intentionally and deliberately violate that Rule by seeking the warrant in the first instance.” Acevedo-Lemus, 2016 WL 4208436, at *7.

*15 In sum, while Rule 41 was violated, suppression is not required or warranted in this case.[7]

6. Whether the Good-Faith Exception to the Exclusionary Rule Applies

“In United States v. Leon, the Supreme Court held that the exclusionary rule barring illegally obtained evidence from the courtroom does not apply to evidence seized ‘in objectively reasonable reliance on’ a warrant issued by a detached and neutral magistrate judge, even where the warrant is subsequently deemed invalid.” United States v. Falso, 544 F.3d 110, 125 (2d Cir. 2008) (quoting United States v. Leon, 468 U.S. 897, 922 (1984)). The Supreme Court explained that “even assuming that the rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” Leon, 468 U.S. at 918-19. There are four circumstances where the good-faith exception to the exclusionary rule does not apply, including “(1) where the issuing [judge] has been knowingly misled; (2) where the issuing [judge] wholly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; and (4) where the warrant is so facially deficient [such as by failing to particularize the place to be searched or the things to be seized] that reliance upon it is unreasonable.” Falso, 544 F.3d at 125 (quoting United States v. Moore, 968 F.2d 216, 222 (2d Cir. 1992)).

The Government argues that the good-faith exception to the exclusionary rule applies in this case. See Dkt. No. 41 at 45-47. According to the Government, the NIT Warrant particularly described the places to be searched and the items to be seized, and the thirty-one page affidavit amply demonstrated probable clause to deploy the NIT. See id. at 45-46. Furthermore, any violation of Rule 41, the Government argues, “was the product of a good faith effort to identify an appropriate venue, consistent with Rule 41, from which to seek a warrant, not an effort to circumvent the Rule’s requirements.” Id. at 46. The Government also points to the numerous district court decisions that have found that even if there was a flaw in the NIT Warrant, the good-faith exception applies. See id. at 10-13, 47.

*16 Defendant argues that the good-faith exception does not apply for several reasons. Defendant contends that the magistrate judge was knowingly misled and that she “abdicated her judicial role by condoning the illegal extra-jurisdictional reach of the application and issuing a warrant without probable cause.” Dkt. No. 47 at 23. Defendant also argues that the NIT Warrant was facially deficient because of its “extra-judicial reach,” which was “known by law enforcement to be illegal at the time it was issued.” Id. Defendant claims that “the officers were not simply acting with reasonable reliance on a search warrant later found invalid. Rather, officers are themselves ultimately responsible for the defects in the warrant.” Id. at 24-25. Accordingly, Defendant argues, the officers “cannot turn around and hide behind the good faith exception” when their own reckless conduct caused the defects in the warrant. Id. at 25.

The Court finds that, even if the Rule 41 violation prejudiced Defendant or can be considered fundamental, the good-faith exception would bar suppression in this case. As discussed in detail above, the magistrate judge was not knowingly misled, and had a substantial basis for concluding that there was probable cause to support the NIT Warrant. Moreover, despite the Rule 41 violation, the magistrate judge did not “wholly abandon” her judicial role. Other district courts have reached this same conclusion that the good-faith exception applies in this situation.[8] See, e.g., Caraher, 5:16-cr-00244, Dkt. No. 58 at 67; United States v. Acevedo-Lemus, No. SACR 15-00137, 2016 WL 4208436, *8 (C.D. Cal. Aug. 8, 2016). The Acevedo-Lemus court reasoned as follows:

Acevedo-Lemus, 2016 WL 4208436, at *8 (internal citations omitted). The Court agrees with this reasoning and concludes that the good-faith exception would apply and suppression would not be warranted in this case.[9]

C. Defendant’s Motion to Suppress Statements

Defendant has also moved to suppress statements attributed to him during the execution of the Residual Warrant at Defendant’s home in Earlton, New York. See Dkt. No. 28-1 at 51-53. The Court held a suppression hearing regarding the admissibility of these statements on June 30, 2017.

On October 30, 2015, at around 7:30 a.m., law enforcement officers executed a search warrant on Defendant’s home in Earlton, New York. See Dkt. No. 54-1 at 6. Defendant described his home as a “[s]mall mobile home, single wide,” and he believes its dimensions are 13 feet long by 70 feet wide. See id. at 132. Approximately ten to twelve FBI agents and task force officers were involved in the execution of the search warrant, along with two county sheriff officers. See id. at 20, 24. Defendant was at home with his sister, mother, and father at the time of the search. See id. at 75, 132. SA Seymour testified that FBI Special Agent Paris (“SA Paris”) knocked on the door and announced the presence of law enforcement. See id. at 29. Defendant’s mother answered the door. See id. at 33. Some law enforcement agents entered the trailer at that point and some stayed outside. See id. at 33-35. Several minutes later, Defendant appeared in the doorway. See id. at 34. SA Seymour and Task Force Officer Glenn Vidnansky (“TFO Vidnansky”) then asked Defendant to step onto the deck and speak with them. See id. at 35-36. SA Seymour asked Defendant some general questions, such as who he was, whether he was a resident there, and if they had internet service there. See id. at 40-41. Several minutes into the interview, Defendant asked to go back inside to put more clothes on because he was cold.[10] See id. at 42-43. SA Seymour and TFO Vidnansky followed Defendant into the house and then into Defendant’s bedroom. See id. at 43-44. While in Defendant’s bedroom, SA Seymour and TFO Vidnanksy asked him questions about his knowledge of computers, his use of the TOR network, and whether he looked at pornography. See id. at 49-50.

*17 Approximately fifteen to twenty minutes into the questioning, Defendant indicated that he needed to use the bathroom. See id. at 57, 159. SA Seymour testified that no one escorted Defendant to the bathroom. See id. at 59. Defendant testified that one of the officers told the other officers in the house to “keep an eye on him” while he was walking to the bathroom. See id. at 143. Defendant testified that someone followed him to the bathroom, but once he was in the bathroom, he does not believe that any officers waited outside the bathroom door for him. See id. at 158-59.[11] TFO McMullen testified that it is common practice for one agent to give a “heads-up” to another agent when someone is traveling throughout the house, although he does not specifically recall that happening in this instance. See id. at 87. He also testified that he kept an eye on Defendant while he traveled to the bathroom. See id. According to TFO McMullen, after Defendant was done using the bathroom, he walked back to his bedroom. See id. at 78.

At around the time Defendant exited the bathroom, Defendant’s father, Richard Stacey, began experiencing physical discomfort. See id. TFO McMullen advised one of the Greene County Deputy Sheriffs that was present to call 911 for an ambulance. See id. at 78-79. An ambulance arrived before 9:00 a.m., but a larger ambulance was needed, which did not arrive until after the search concluded. See id. at 66, 90.

Once Defendant was back in his bedroom, SA Fallon and SA Paris entered the bedroom to ask additional questions. See id. at 97-98. SA Fallon testified that they asked Defendant about his background in computers and his use of the TOR network. See id. at 98. According to SA Fallon, Defendant admitted that he viewed adult pornography but denied downloading child pornography. See id. After asking several more questions about Defendant’s education in computers, the interview stopped and the agents went back outside. See id. Once outside, SA Fallon learned that the Media Access Control number (“MAC address”) on the computer that Defendant admitted to solely using matched the MAC address that had accessed the Playpen website. See id. at 99, 121. According to SA Fallon, he and SA Paris returned to Defendant’s bedroom, read him his Miranda rights, and asked him more specific questions about the Playpen website. See id. at 99-100. Defendant then admitted to accessing Playpen and viewing child pornography. See id. at 100. The agents went back outside to call the U.S. Attorney’s Office and arrested Defendant shortly thereafter. See id. at 100-01.

SA Fallon testified that, during his questioning of Defendant in the bedroom, he and SA Paris were inside the bedroom on either side of the doorway, and Defendant was sitting on his bed. See id. at 123-24. There were beads in the doorway itself. See id. at 123. SA Fallon testified that, during the interviews, they did not physically secure Defendant in any way or pat him down. See id. at 99-100. SA Fallon did not tell Defendant that he was free to leave or that he did not have to answer their questions. See id. at 124.

Defendant offered a different version of events with respect to the interviews with SA Fallon and SA Paris. According to Defendant, two different agents than before entered his bedroom several minutes after he returned from the bathroom. See id. at 142, 147-48. These agents told Defendant that they had a positive MAC address for the computer in the living room that Defendant had admitted to using, and then asked Defendant specific questions about the Playpen website. See id. at 148. Defendant testified that they mentioned the username “Shitbucket” and told him that he must be guilty. See id. at 149. Eventually Defendant admitted to accessing Playpen and viewing child pornography. See id. at 149, 163-65. At that point, the agents left the room and came back shortly thereafter and read Defendant his Miranda rights. See id. at 149. Defendant testified that after he waived his rights, the agents asked him the same questions and had him again admit that he accessed Playpen and viewed child pornography. See id. at 150-51, 163-65.

*18 Defendant further testified that, when agents were asking him questions in his bedroom, they were in the doorway and would not let him leave. See id. at 140, 166. Defendant also testified that the agents had their hands on their holsters while they were questioning him. See id. at 166. Defendant admitted that during the questioning, the agents did not pat him down, touch him, yell at him, draw a gun on him, or promise to treat him leniently if he confessed. See id. at 163.

Defendant argues that he gave incriminating statements in a custodial interrogation before he was read his Miranda rights, and, thus, those statements should be suppressed. See Dkt. No. 58 at 14. Defendant argues that several factors lead to the conclusion that he was in custody during the interviews, including the fact that he was kept segregated in his bedroom where he could not escape and was never told that he was free to leave. See id. at 17. The Government, on the other hand, argues that Defendant was not in custody during the interviews with law enforcement. See Dkt. No. 54 at 5-8. The Government argues that the fact that Defendant was in his home during the interviews, that Defendant was free to move about his home, and that he was never physically touched or threatened all support a finding that he was not in custody. See id. at 7.

“Statements made during a custodial interrogation are generally inadmissible unless a suspect has first been advised of his or her rights.” United States v. Faux, 828 F.3d 130, 134 (2d Cir. 2016) (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). “ ‘[C]ustody’ for Miranda purposes is not coterminous with ... the colloquial understanding of custody.” Id. at 135 (quoting United States v. FNU LNU, 653 F.3d 144, 152-53 (2d Cir. 2011)). “In determining whether a suspect was in custody, a court looks at all the surrounding circumstances. The relevant inquiry is ‘how a reasonable man in the suspect’s position would have understood his situation.’ ” Id. (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). The Second Circuit has provided an objective test to determine whether someone is in custody, which consists of “(1) ‘whether a reasonable person would have thought he was free to leave the police encounter at issue’ and (2) whether ‘a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest.’ ” Id. (quoting United States v. Newton, 369 F.3d 659, 672 (2d Cir. 2004)).

“An individual who understands that her detention is ‘not likely to be temporary and brief’ and feels that she is ‘completely at the mercy of police’ could reasonably deem her situation comparable to formal arrest.” Id. (quoting Newton, 369 F.3d at 675). The Second Circuit has identified various factors for courts to consider to determine whether someone is in custody, including:

Id. (quotations omitted).

The Government relies on several cases that are instructive in the present matter. In Faux, the Second Circuit reversed a district court’s finding that a defendant was in custody. In that case, approximately ten to fifteen agents executed the search warrant at the defendant’s home at around sunrise. See Faux, 828 F.3d at 132. The defendant was questioned during a two-hour interview in the dining room, apart from her husband, and was not allowed to move freely about her home during the interview. See id. at 133. An agent escorted the defendant to the bathroom, where the agent stood outside, and to her bedroom so that she could get a sweater. See id. The agents never told her that her participation was voluntary or that she was free to leave. See id. at 134. Approximately twenty minutes into the interview, agents told the defendant that she was not under arrest. See id. The agents also seized the defendant’s cell phone. See id. at 133. The Second Circuit concluded as follows:

Id. at 138-39. The Second Circuit also noted that “courts rarely conclude, absent a formal arrest, that a suspect questioned in her own home ‘in custody.’ ” Id. at 135-36.

The Government also relies on United States v. Groezinger, 625 F. Supp. 2d 145 (S.D.N.Y. 2009). In Groezinger, law enforcement agents arrived at the defendant’s home at approximately 6:00 a.m. to execute a search warrant. See Groezinger, 625 F. Supp. 2d at 158. The agents conducted a protective sweep while the defendant was in the living room, and the agents told the defendant that he was not under arrest. See id. The agents then moved the defendant to the kitchen and two agents stayed with the defendant while other agents performed a search of the house. See id. The agents were positioned in the doorway of the kitchen, thus blocking the defendant’s exit. See id. The defendant tried to stand up once or twice and was told to sit down, but at one point was allowed to make coffee after requesting to do so. See id. Noting that the defendant was in his own home, was not restrained or removed from his home, was allowed to make coffee, and was told that he was not under arrest, the court concluded that “a reasonable person in [the defendant’s] shoes would not ‘have understood his freedom of action to have been curtailed to a degree associated with formal arrest.’ ” Id. at 158-59 (quotation omitted).

The Government also cites United States v. Brooks, No. 16-CR-6028L, 2016 WL 7409852 (W.D.N.Y. Dec. 22, 2016), report and recommendation adopted, No. 16-CR-6028L, 2017 WL 370810 (W.D.N.Y. Jan. 26, 2017), another case arising out of Operation Pacifier. In Brooks, an FBI agent knocked on the defendant’s door and announced the FBI’s presence, and entered the premises using a battering ram after waiting one minute without an answer. See Brooks, 2016 WL 7409852, at *3. The agent and several officers walked through the house, with the agent’s guns in the “low-ready position” when they encountered the defendant. See id. The agent identified himself and stayed with the defendant in the living room while the other officers conducted a security sweep. See id. at *4. The agent then interviewed the defendant for approximately ninety minutes in the laundry room with another FBI agent present at times during the interview. See id. The agents told the defendant that he was not under arrest, that he did not have to speak with them, and that he was free to leave at any time. See id. The agents had their weapons holstered during the interview, and their chairs did not block the exit of the laundry room, although the laundry room door was closed. See id. The court concluded that a reasonable person in the defendant’s position would have felt that he was free to leave. See id. at *9. Even if a reasonable person would not have felt free to leave, the court concluded that a reasonable person in the defendant’s position would not have felt that his freedom of action was restrained to the degree associated with a formal arrest. See id.

*20 In the present matter, around ten to twelve FBI agents and task force officers were involved in executing the search warrant, as well as two county sheriff officers. See Dkt. No. 54-1 at 20, 24. However, SA Fallon testified that only five to seven officers were in the residence in total.[12] See id. at 129. It is unclear exactly how long the interviews lasted for in total because they were conducted by different agents at various times, but the interviews ranged anywhere from five to twenty minutes, and Defendant was left alone for the intervals in which he was not being interviewed. See id. at 10-12, 96-99. Overall, law enforcement was at Defendant’s home for approximately ninety minutes, and Defendant was not being interviewed that entire time. See id. at 63-64. Although SA Seymour did not specifically remember telling Defendant that he was not in custody and that speaking with the agents is voluntary, SA Seymour attested that he generally informs people as such, and that he has “every reason to believe” that he so informed Defendant that day. See Dkt. No. 41-2 ¶ 4.

Moreover, Defendant stopped the interview with SA Seymour and TFO Vidnansky so that he could use the bathroom. While there is some debate about whether an agent followed Defendant to the bathroom, Defendant concedes that no one waited for him directly outside the bathroom door. See Dkt. No. 54-1 at 159. After Defendant used the bathroom, he walked back to his bedroom without anyone escorting him, and waited in his bedroom for another five to ten minutes alone before SA Fallon and SA Paris arrived to continue the questioning. See id. at 78, 159-61. At no point during the execution of the warrant did the agents touch, threaten, or raise their voices at Defendant. See id. at 162-63. Although the officers and agents were armed, no one drew their gun on Defendant that morning. See id. at 163.

In sum, the interviews were conducted in Defendant’s home and were not particularly lengthy; Defendant’s movement was somewhat restricted but he was free to move from the bathroom to the bedroom and sit in the bedroom without being monitored at times; and no agent touched, threatened, restrained, or drew their gun on Defendant throughout the entire encounter. Moreover, SA Seymour attested that he has every reason to believe that he followed his customary practice of informing Defendant that he was not in custody and that speaking to the agents was voluntary. On these facts, given the totality of the circumstances, the Court finds that Defendant was not in custody. While there may have been times throughout the morning where a reasonable person in Defendant’s position would not have felt free to leave the police encounter, it cannot be said that Defendant “would have understood his freedom of action to have been curtailed to a degree associated with formal arrest.” Faux, 828 F.3d at 135 (quotation omitted).

Defendant places significant emphasis on the interview with SA Fallon and SA Paris, which the Court will address briefly. During that interview, Defendant contends that the agents stood in front of the doorway, blocking the exit. See id. at 166. SA Fallon testified that he and SA Paris were standing on either side of the doorway, not blocking the exit. See id. at 123-24. However, even if the agents were blocking the exit such that a reasonable person would not have felt free to leave, Defendant has still failed to demonstrate the second prong of the inquiry—that a reasonable person would have understood his freedom of action to be restrained to a degree associated with formal arrest. The Groezinger court reached the same conclusion under similar circumstances. See Groezinger, 625 F. Supp. 2d at 158-59. Defendant also testified that the agents had their hands on their holsters. SA Fallon attested that he did not touch his firearm or his holster during the interview, and that his firearm was hidden from view underneath his jacket. See Dkt. No. 54-2 ¶ 3. The Court has serious doubts about Defendant’s testimony with respect to the agents’ hands on their holsters. There is no indication on this record that law enforcement acted aggressively in any manner throughout the morning. Defendant conceded that no one touched him, threatened him, drew their gun on him, or yelled at him. Moreover, it is clear that Defendant has not been entirely credible in his submissions to the Court. Defendant made various statements in an affidavit before the suppression hearing regarding the conduct of law enforcement officers, some of which were blatantly contradicted by his testimony at the hearing. See Dkt. No. 28-8 ¶¶ 3-7. For example, in Defendant’s affidavit, he claimed that he was “ordered” outside of his home, see id. ¶ 3, but he admitted on cross-examination that he was simply asked outside, see Dkt. No. 54-1 at 153. Defendant also claimed in his affidavit that he was not allowed to re-enter his home to put more clothes on, see Dkt. No. 28-8 ¶ 3, but then testified during the hearing that the agents asked him to go back inside when they saw that he was cold, see Dkt. No. 54-1 at 136-37, 153-54. Accordingly, the Court finds it much more probable that SA Fallon and SA Paris did not have their hands on their holsters during the questioning.[13] However, even if their hands were on their holsters, Defendant did not claim that he was threatened in any way, and he conceded that no guns were drawn on him throughout the entire encounter. See id. at 163.

*21 Since Defendant was not in custody, Miranda warnings were not necessary.[14] Accordingly, Defendant’s statements are not subject to suppression. Moreover, to the extent that Defendant argues that the FBI agents engaged in an unlawful two-step interrogation, the Court rejects this argument because no statements were obtained in violation of Miranda.[15] See United States v. Moore, 670 F.3d 222, 229 (2d Cir. 2012) (holding that, if the initial statement was not obtained in violation of Miranda, there is no impermissible two-step interrogation).

Finally, although Defendant did not make this argument in his post-hearing brief, Defendant originally appeared to argue that his statements were not voluntary. See Dkt. No. 28-1 at 52. “A confession is involuntary, and therefore inadmissible, if it is obtained by ‘techniques and methods offensive to due process, or under circumstances in which the suspect clearly had no opportunity to exercise a “free and unconstrained will.’ ”” United States v. Ortiz, 943 F. Supp. 2d 447, 456 (S.D.N.Y. 2013) (quoting Oregon v. Elstad, 470 U.S. 298, 394 (1985)). In the present matter, there is simply no indication whatsoever that Defendant’s confession was involuntary. Defendant was in his own home, was not in custody, and law enforcement did not threaten, touch, or raise their voices at Defendant at any point.

Accordingly, Defendant’s motion to suppress the statements attributed to him on October 30, 2015 is denied.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties’ submissions and the applicable law, and for the above-stated reasons, the Court hereby

ORDERS that Defendant’s motion to suppress evidence and statements (Dkt. No. 28) is DENIED; and the Court further

ORDERS that Defendant’s motion to dismiss the indictment (Dkt. No. 30) is DENIED; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.