In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-1840

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NEIL C. KIENAST,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 1:16-cr-00103-WCG-1 — William C. Griesbach, Chief Judge.

____________________

No. 17-1989

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARCUS A. OWENS,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:16-cr-00038-JPS-1 — J.P. Stadtmueller, Judge.

____________________
2 Nos. 17-1840, et al.

No. 17-2439

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRAMAN B. BROY,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Central District of Illinois

No. 1:16-cr-10030-MMM-JEH-1 — Michael M. Mihm, Judge.

___________________

ARGUED FEBRUARY 6, 2018 — DECIDED OCTOBER 23, 2018

____________________

Before RIPPLE, SYKES, and BARRETT, Circuit Judges.

BARRETT, Circuit Judge. In 2015, federal agents infiltrated a 

child pornography website called Playpen and deployed a 

computer program to identify Playpen’s users. This operation 

resulted in the successful prosecution of defendants all 

around the country, including Neil Kienast, Marcus Owens, 

and Braman Broy, whose appeals are consolidated before us. 

Kienast, Owens, and Broy, like many other defendants caught 

in this sting, argue that the warrant authorizing the Playpen 

searches was invalid and that the fruit of those searches—the

defendants’ identities—should therefore have been suppressed. Every circuit that has considered the suppression argument has rejected it, and so do we. Even assuming that 

these digital searches violated the Fourth Amendment, the 
Nos. 17-1840, et al. 3

good-faith exception to the exclusionary rule applies. We affirm all three judgments.

I.

In 2014, the Federal Bureau of Investigation began investigating a child pornography forum called Playpen. This site 

created an anonymous space for its membership of over 

150,000 people to discuss, consume, and share child pornography.

Playpen exists solely on the dark web, so it can be accessed

only through a series of affirmative steps. First, the user must 

download The Onion Router (Tor) software. The Tor software 

makes user information untraceable by relaying it through a 

series of interconnected computers. It also allows a user to access the Tor network, where Playpen and other “hidden services” websites are hosted. Once on this network, a user must 

enter a specific sixteen-character web address to visit Playpen. 

Finally, Playpen requires visitors to create a username and 

password before granting them access to its contents.

In 2015, FBI agents gained access to Playpen’s servers and 

relocated them to a government facility in the Eastern District 

of Virginia. The FBI then operated the website for about two 

weeks in order to observe Playpen users. But while the FBI 

could observe Playpen traffic, Tor prevented it from identifying any specific user information. 

To unmask and apprehend the anonymous Playpen users, 

the FBI sought a warrant in the Eastern District of Virginia to 

use a Network Investigative Technique (NIT). The NIT deployed computer code instructing computers that accessed 

Playpen to send identifying information to the government. 
4 Nos. 17-1840, et al.

In support of its warrant application to deploy the NIT, the 

FBI submitted a 31-page affidavit from a special agent who 

specialized in child pornography cases. The affidavit detailed 

Playpen’s architecture and contents, explained the nature of 

the Tor network, and described the numerous affirmative 

steps a user had to take to locate Playpen and access its contents. The affidavit further asserted that use of the NIT was 

necessary to identify and locate the users and administrators 

of Playpen, because other investigative procedures had either 

failed or would likely fail. 

The affidavit also provided details about the proposed

NIT. Special computer code would be added to the digital 

content on the Playpen website. After a user entered a 

username and password to access Playpen, the website would 

cause the user’s computer to download that code. The code 

would then instruct the user’s computer to send back the following information: (1) the computer’s IP address and the 

date and time that it was determined; (2) a unique identifier 

to distinguish data from that of other computers accessing

Playpen; (3) the computer’s operating system; (4) information 

about whether the NIT had already been delivered to the 

computer; (5) the computer’s host name; (6) the operating system’s username; and (7) the computer’s media access control 

address. 

A federal magistrate judge in the Eastern District of Virginia issued the NIT Warrant in February 2015. The magistrate judge approved the use of the NIT to obtain information 

from all “activating computers,” which the warrant described

as the computers “of any user or administrator who logs into 

[Playpen] by entering a username and password.”
Nos. 17-1840, et al. 5

The three defendants on appeal were such users. At various times during the nearly two weeks that the government 

hosted the Playpen servers, Neil Kienast, Marcus Owens, and 

Braman Broy accessed Playpen. By entering their usernames 

and passwords, they unknowingly triggered the NIT, which 

unmasked their identities. Once identified, FBI agents in the 

Eastern District of Virginia notified FBI regional offices in the 

defendants’ home districts. Local FBI agents then obtained

warrants to search the defendants’ computers and homes. 

Each search unearthed child pornography.

On the basis of evidence recovered in these searches, 

grand juries charged the defendants with receiving, possessing, or viewing child pornography in violation of 18 

U.S.C. § 2252A. The defendants each moved to suppress the 

evidence obtained as a result of the NIT Warrant, raising assorted challenges to its validity. The respective district courts

denied their motions to suppress and the defendants entered 

conditional guilty pleas, reserving the right to appeal the denial of their suppression motions. These appeals followed.

II.

All three defendants assert that the searches performed by 

the NIT violated the Fourth Amendment and that the evidence obtained by them should have therefore been suppressed. We need not decide, however, whether the searches 

violated the Fourth Amendment. Even if they did, the district 

courts did not err by declining to suppress the evidence, because the good-faith exception to the exclusionary rule applies.

Suppression of evidence is a “last resort.” Hudson v. Michigan, 547 U.S. 586, 591 (2006). It is not a personal constitutional 
6 Nos. 17-1840, et al.

right, nor is it intended to remedy the injury of having one’s 

rights violated. Davis v. United States, 564 U.S. 229, 236 (2011). 

Instead, it is a judge-made rule meant to deter future Fourth 

Amendment violations. Id. at 236–37. And its application has 

been strictly limited by the Supreme Court.

The Court has instructed that the exclusionary rule be limited to cases in which its deterrent effect on police conduct 

will outweigh its “heavy costs.” Id. at 237. Strong cases for exclusion involve “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights” on the part of the police. Id. at 238 (internal quotation marks omitted). In such 

cases, “the deterrent value of exclusion is strong and tends to 

outweigh the resulting costs.” Id. But exclusion is not appropriate where “the police act with an objectively reasonable 

good-faith belief that their conduct is lawful.” Id. (internal 

quotation marks omitted). In that type of case, “the deterrence 

rationale loses much of its force, and exclusion cannot pay its 

way.” Id. (internal quotation marks and citations omitted).

The flagship case for this “good faith” principle is United 

States v. Leon, 468 U.S. 897 (1984).

The defendants offer two major arguments against applying the good-faith exception in this case. The first is that the 

good-faith exception is categorically inapplicable when the

warrant is void ab initio (or “from the beginning”). According 

to the defendants, this warrant is void because the magistrate 

judge lacked the authority to issue it. Federal Rule of Criminal 

Procedure 41(b)(1) authorizes a magistrate judge “to issue a 

warrant to search for and seize a person or property located 

within the [magistrate judge’s] district.” This warrant, they 

say, extended to people and property located outside the 

magistrate’s district. Defendants contend that a void warrant 
Nos. 17-1840, et al. 7

is tantamount to no warrant at all, nullifying the good-faith 

exception.1

We disagree. Even if the warrant were void ab initio, we 

would treat this like any other constitutional violation. We see 

no reason to make the good-faith exception unavailable in 

such cases. The deterrence rationale for the exclusionary rule 

aims at the conduct of the police, not the conduct of the magistrate judge. See Davis, 564 U.S. at 238 (focusing the cost-benefit analysis in exclusion cases on the “flagrancy of the police 

misconduct” at issue). Thus, whether the magistrate judge 

lacked authority has no impact on the rule. As Leon explains, 

“[p]enalizing the officer for the magistrate’s error, rather than 

his own, cannot logically contribute to the deterrence of 

Fourth Amendment violations.” 468 U.S. at 921; see also Herring v. United States, 555 U.S. 135, 136–37 (2009) (invoking the 

good-faith exception where an officer reasonably but wrongly 

believed that there was an outstanding arrest warrant for the 

defendant); cf. United States v. Cazares-Olivas, 515 F.3d 726, 730 

(7th Cir. 2008) (concluding that even though the violation of 

Rule 41 was “regrettable,” allowing the defendants to go free 

on that basis “would be a remedy wildly out of proportion to 

the wrong”). Other circuits have similarly held that the goodfaith exception can apply to warrants that are void ab initio. 

See United States v. Levin, 874 F.3d 316, 323–24 (1st Cir. 2017); 

United States v. Werdene, 883 F.3d 204, 216–17 (3d Cir. 2018);

United States v. McLamb, 880 F.3d 685, 691 (4th Cir. 2018); 

United States v. Horton, 863 F.3d 1041, 1050 (8th Cir. 2017); 

United States v. Workman, 863 F.3d 1313, 1319 (10th Cir. 2017);

 1

We note that Rule 41 was amended in 2016 to expressly permit magistrate judges to issue warrants such as the NIT Warrant here. See Fed. R. 

Crim. P. 41(b)(6)(A). 
8 Nos. 17-1840, et al.

see also United States v. Master, 614 F.3d 236, 242–43 (6th Cir. 

2010) (repudiating a prior pronouncement that ab initio warrants preclude application of the good-faith exception in light 

of intervening Supreme Court precedent). 

The defendants’ second argument is that the good-faith 

exception fails on its own terms because the agents did not 

execute this search in good faith.2 Leon states that the goodfaith exception might not apply in cases where: (1) “the issuing magistrate wholly abandoned his judicial role”; (2) the 

warrant was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; or (3) 

“a warrant [was] so facially deficient” that the “executing officers [could not] reasonably presume it to be valid.” Leon, 468 

U.S. at 923.

The defendants focus on the third scenario, arguing that 

the officers should have recognized this warrant as facially invalid. They maintain that a well-trained officer, familiar with 

computer investigations and associated warrants, knows that 

a magistrate judge lacks the authority to authorize a warrant 

outside his or her own district. This warrant permitted the officers to access information originating from computers 

around the country. Thus, the defendants say, the officers 

should have known that the magistrate judge lacked authority to issue it. 

The defendants are wrong—the officers could have reasonably relied on the magistrate judge’s conclusion that this 

 2

Sometimes, the defendants’ arguments seem centered on the agents 

located in the Eastern District of Virginia; other times, their arguments 

drift to attack the local agents who executed the search warrants. Our analysis does not depend on which agents were allegedly at fault.
Nos. 17-1840, et al. 9

warrant was consistent with Rule 41. This warrant poses difficult conceptual questions about what occurred. Perhaps the 

warrant impermissibly allowed the search of computers outside the magistrate judge’s district, as the defendants suggest. 

But the government suggests another theory. It notes that under Rule 41(b)(4), a magistrate judge can issue a warrant for 

the installation of a “tracking device” within the district that 

can track movement outside the district. Fed. R. Crim. P. 

41(b)(4). The government characterizes the NIT as such a device, maintaining that its installation occurred in-district because the defendants were accessing servers located in that 

district. Choosing between these frameworks has split district 

courts across the country, which underscores the difficulty of 

the question.3 See United States v. Taylor, 250 F. Supp. 3d 1215, 

1222–23 (N.D. Ala. 2017) (collecting cases). We do not decide 

this question today because we hold that the good-faith exception applies in any event. But the fact that so many district 

judges have differed on this question is strong evidence that 

any error on the part of the magistrate judge would not necessarily have been obvious to the officers.

The defendants raise other theories of bad faith. They note 

that “where the officer seeking the warrant was dishonest or 

reckless in preparing the affidavit,” the good-faith exception 

does not apply. United States v. Harris, 464 F.3d 733, 740 (7th 

Cir. 2006). Owens maintains that the affidavit accompanying 

the NIT Warrant contained dishonest statements that omitted 

material information. The affidavit, for example, describes the 

Playpen homepage as featuring “two images depicting 

 3 Two courts of appeals have held that the NIT Warrant violated Rule 

41 but that the good-faith exception applied. See Werdene, 883 F.3d at 217; 

Horton, 863 F.3d at 1052.
10 Nos. 17-1840, et al.

partially clothed prepubescent females with their legs spread 

apart,” which was true as of February 18, 2015. But on February 19, the site administrator changed the homepage to instead depict a prepubescent girl wearing a short dress. Owens 

makes much of the fact that the affidavit had not been updated to reflect this change when the magistrate judge signed 

the warrant on February 20. This change is immaterial. And 

even if it were not, the failure to update the affidavit in real 

time would not begin to approach the dishonesty that Harris

describes. 

Nor do we think that the police behavior here was reckless. The defendants believe that the warrant was reckless because it was overinclusive. They insist that it sweeps up innocent actors that stumble upon Playpen but don’t engage in 

any illegal activity. But by the time such actors have downloaded the software needed to access the dark web, entered 

the specific, sixteen-digit character jumble that is Playpen’s 

web address, and logged into the site featuring at least one 

sexually suggestive image of a child, we are very skeptical 

that they are surprised to find themselves on a website offering child pornography. 

The record establishes that the FBI acted reasonably both 

when it prepared its affidavit and when it executed the search 

warrants. Faced with the daunting task of apprehending tens 

of thousands of individuals engaged in perverse crimes but 

cloaked in anonymity through their use of Tor, the FBI developed a sophisticated tool to unmask and locate those suspected criminals. The agency fully and accurately described 

the NIT to the neutral and detached magistrate judge who 

signed the warrant. We join the five circuits who have held the 

good-faith exception applicable to this NIT Warrant. See Levin, 
Nos. 17-1840, et al. 11

874 F.3d at 324, Werdene, 883 F.3d at 217–19; McLamb, 880 F.3d 

at 689–90; Horton, 863 F.3d at 1052; Workman, 863 F.3d at 1321.

In the absence of culpable police conduct, the exclusionary 

rule cannot “pay its way.” Davis, 564 U.S. at 238.

III.

Kienast and Owens individually raise additional challenges to their convictions. We address these in turn.

Kienast asserts that the district court erred by denying his 

motion to compel the government to allow him to review the 

NIT source code and cross-examine the FBI special agent who 

created the affidavit. According to Kienast, he needs this information to establish the scope of the Fourth Amendment violation. The district court rejected his motion, holding that the 

information Kienast sought was immaterial to the good-faith 

determination. We review a district court’s ruling on a motion 

to compel discovery for abuse of discretion. Thermal Design, 

Inc. v. Am. Soc'y of Heating, Refrigerating & Air-Conditioning 

Eng’rs, Inc., 755 F.3d 832, 838 (7th Cir. 2014). The district court 

did not abuse its discretion in holding that the discovery 

sought was immaterial and “essentially a fishing trip.” Testimony from the FBI agent and access to the source code would 

not have affected the good-faith determination. 

Owens argues that the fruit of the NIT search should be 

suppressed because the government’s conduct was so “outrageous” that it violated his right to due process. He cites Rochin 

v. California, which holds that certain conduct that “shocks the 

conscience” can constitute a due process violation. 342 U.S. 

165, 172 (1952) (police pumping the stomach of a suspect to 

obtain evidence violated due process). Owens asserts that by 

operating the Playpen website after seizing it, the 
12 Nos. 17-1840, et al.

“government distributed over a million images of child pornography,” which he believes qualifies as “outrageous conduct” that shocks the conscience. His theory is that this unconstitutional behavior “absolutely bar[s] the government 

from invoking judicial processes,” which he thinks justifies 

suppression. United States v. Russell, 411 U.S. 423, 431–32 

(1973). The district court denied relief on this ground, but it 

noted a “tension” between our circuit and the Supreme Court 

concerning the availability of this defense. United States v. Owens, 2016 WL 7079617, at *4 (E.D. Wis. Dec. 5, 2016). 

There is no conflict between our cases and the Supreme 

Court’s. In United States v. Russell, the Court left open the possibility that the government’s engagement in illegal activity 

might violate due process if it is “shocking to the universal 

sense of justice.” 411 U.S. at 431–32. In that case, an undercover agent supplied the defendant with an essential ingredient for the manufacture of methamphetamine as part of an 

operation to gather evidence against him. While the Court determined that this conduct did not shock the conscience, it

said that it “may some day be presented with a situation in 

which the conduct of law enforcement agents is so outrageous 

that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” 

Id.

Thus, the Supreme Court did not foreclose the “outrageous conduct” defense—but it did not mandate its application either. And “[w]e repeatedly have reaffirmed our decision not to recognize the defense.” United States v. Smith, 792 

F.3d 760, 765 (7th Cir. 2015); see also United States v. Stallworth, 

656 F.3d 721, 730 (7th Cir. 2011) (“Outrageous government 

conduct is not a defense in this circuit.”). Our cases are 
Nos. 17-1840, et al. 13

consistent with those of the Court and they control here. And 

in any event, the defense would do Owens no good even if it 

were available. In Russell, the defendant was the victim of the 

government’s allegedly outrageous conduct. Russell, 411 U.S. 

at 431–32. Here, Owens does not charge the government with 

harming him; he complains that the government’s allegedly 

outrageous conduct harmed the children whose images were 

distributed while the government operated the server. Owens’s argument is itself more than a little outrageous: he seeks 

to shield himself from prosecution because the children he 

victimized were allegedly victimized by someone else too. 

Owens makes one last pitch: he asks us to remand his case 

for a Franks hearing. In Franks v. Delaware, the Court held that 

the Fourth Amendment entitles a defendant to an evidentiary 

hearing when a defendant makes a substantial preliminary 

showing that the police procured a warrant to search his 

property with intentional or reckless misrepresentations in 

the warrant affidavit and such statements were necessary to a

finding of probable cause. 438 U.S. 154, 171–72 (1978). The district court rejected Owens’s argument because it found that 

Owens failed to make the requisite “substantial preliminary 

showing” to justify a hearing. Owens, 2016 WL 7079609, at *7. 

We agree with the district court. As we explained, law enforcement made no reckless misrepresentations. Owens further gives us no “firm and definite” reasons, under the requisite clear error review, why the district court erred. United 

States v. Pace, 898 F.2d 1218, 1226–27 (7th Cir. 1990). The district court, armed with all the information that we reviewed, 

made a reasoned determination to deny Owens a Franks 
14 Nos. 17-1840, et al.

hearing.

IV.

The arguments that the defendants raise on appeal concerning the constitutionality of the NIT Warrant all lead to the 

same outcome: the agents acted in good-faith reliance on the 

NIT Warrant, and there is nothing to deter by applying the 

exclusionary rule. The defendants’ distinct arguments are 

without merit. Each defendant’s judgment of conviction is accordingly AFFIRMED.