RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 18a0062p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

v. 

DEREK MICHAEL TAGG, 

Defendant-Appellee. 

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No. 17-1777 

Appeal from the United States District Court 

for the Eastern District of Michigan at Detroit. 

No. 2:16-cr-20597-1—Paul D. Borman, District Judge. 

Argued: March 7, 2018 

Decided and Filed: March 27, 2018 

Before: COOK, McKEAGUE, and STRANCH, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Mark J. Chasteen, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, 

for Appellant. Benton C. Martin, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for 

Appellee. ON BRIEF: Mark J. Chasteen, UNITED STATES ATTORNEY’S OFFICE, Detroit, 

Michigan, for Appellant. Benton C. Martin, FEDERAL DEFENDER OFFICE, Detroit, 

Michigan, for Appellee. 

 McKEAGUE, J., delivered the opinion of the court in which COOK and STRANCH, JJ., 

joined. STRANCH, J. (pg. 16), delivered a separate concurring opinion. 

>
No. 17-1777 United States v. Tagg Page 2

_________________ 

OPINION 

_________________ 

McKEAGUE, Circuit Judge. In September 2015, police executed a warrant at Derek 

Tagg’s residence, searching for child pornography. They found plenty of it—over 20,000 files, 

all stored on Tagg’s computer. The search warrant was based primarily on digital evidence from 

an FBI operation showing that Tagg had spent over five hours browsing a website (“Playpen”) 

that obviously contained child pornography. The district court found that the police lacked 

probable cause to search Tagg’s house because the search warrant did not state that Tagg 

actually viewed any illegal images while on the site. Further, the court held that no reasonable 

officer would have relied on the warrant, and therefore suppressed all the evidence seized from 

Tagg’s home. Because the warrant was supported by probable cause, we REVERSE the order 

granting the motion to suppress and REMAND the case for proceedings not inconsistent with 

this opinion. 

I

This case arises out of federal and state investigations into child exploitation on the “dark 

web.” The “dark web” is a sophisticated, anonymous internet network used both by criminals 

and by other individuals who, for whatever reason, do not want to be identified. 

A 

 Until it was shut down by the FBI, Playpen operated a secret website on the “dark web.” 

Although we think of websites as “out there” in the ether, the physical location of an ordinary 

website is on a computer programmed to permit access by anyone connected to the internet. 

Typical internet users access websites by searching for subjects through search engines (e.g., 

Google) in widely available web browsers (e.g., Mozilla Firefox), just like the ordinary shopper 

can walk into a store and look for signs indicating the location of the goods they desire. 

Clandestine websites like Playpen, however, sometimes require a “mask” before you can enter 

the computer(s) housing them. In this case, that “mask” is a web browser called “Tor,” which 

hides your online “face” from other people on the internet. 
No. 17-1777 United States v. Tagg Page 3

 Your online “face” is known as an “IP address,” a unique number assigned to every 

computer connected to the internet. To hide your identity, Tor effectively masks your IP address 

so that the people operating the website’s physical computers cannot trace your IP address back 

to your personal identity or your residence. Because this makes it difficult for anonymous 

websites to track customer preferences or allow users to interact with one another, websites like 

Playpen require you to create an identifying “pseudonym” when you enter the website. Thus, 

Playpen knows what each user likes and what it has looked at, but it cannot discern who the user 

is outside the confines of the website. 

Further, Tor can also hide a website from all search engines entirely. In other words, a 

website operating on the Tor network can require you to know the exact combination of letters 

and numbers comprising the website’s URL1 before permitting you to see its content. And 

unlike intuitive URLs like cnn.com or nytimes.com, the URL of a secret Tor website like Playpen 

is randomized—for example, upf45jv3bziuctml.onion. Absent some statistically impossible 

stroke of luck, a site like Playpen is “an island that cannot be found, except by those who already 

know where it is.” To access such a website, a newcomer must generally befriend someone who 

knows the URL, usually the website owner or another frequent user. 

 But just like in real life, nothing on the internet can be kept totally secret. Police or 

malicious website owners have discovered ways to work around Tor’s “mask” and identify the 

people who visit a website. This is done by embedding software in the fabric of the website, 

which creates a digital “fingerprint”2

 identifying each user’s IP address. Police can then link the 

 1

“URL” stands for “uniform resource locator,” a combination of letters and numbers that comprise the 

digital “address” of a website. 

2

The technical details of how the FBI accomplishes this are mostly unimportant for the purposes of this 

appeal. Anytime you click on a website’s content (e.g., a link, an image, a page), the website’s host computer 

transmits data to your computer, allowing you to view the content that you requested. Ordinarily, this act is 

harmless, since most website owners are careful to give the user only what they requested. However, hackers and 

criminals sometimes embed secret “viruses” or “malware” in website content. If a user clicks on website content 

containing these nefarious programs, they are transmitted to the user’s computer along with the requested content. 

Viruses can be programmed to do a broad range of things, from simply shutting down the user’s machine to stealing 

information. 

What the FBI did here is obtain authorization to place a “benevolent virus” on the target website, which 

installs itself on the user’s machine when he or she clicks on any website content. The virus, instead of wreaking 

havoc, obediently transmits only the information permitted by the warrant. In this case, the warrant only permitted 

the virus to transmit (a) information identifying the physical location of the user’s machine, and (b) information 
No. 17-1777 United States v. Tagg Page 4

“fingerprint” to the user’s “pseudonym,” and track what the person has viewed on the website. 

Police can also use a computer’s IP address to discern its physical location through publicly 

available databases and routine subpoenas to companies like AT&T and Comcast. Thus, armed 

with the user’s digital fingerprint, police can show a judge (a) what a user has viewed, and 

(b) where the user’s computer is located in the real world. 

B 

 This case began when the FBI obtained access to the physical computer running 

Playpen’s website. The warrant permitting the FBI to use a bug is the “NIT warrant” in the 

record here.3

 Tagg does not really dispute that Playpen contained a significant amount of child 

pornography; neither does the government deny that Playpen also contained legal child erotica. 

After seizing Playpen’s computers, the FBI kept the website running to try and catch some of its 

patrons. However, to identify Playpen’s users, the FBI had to place a digital bug in the fabric of 

the website. Because this act counts as a Fourth Amendment “search” of the user’s home 

computer—the bug creates a digital fingerprint that can identify the user—the FBI needed to 

obtain a warrant before embedding it. United States v. Horton, 863 F.3d 1041, 1046–47 (8th Cir. 

2017), cert. pet. filed in No. 17-6910 (Nov. 21, 2017). 

 After collecting identifying data on the individual users of the website, the FBI and its 

local task-force affiliates sought separate, individual warrants for the homes of the identified 

users (“Residential Warrants”). To support these warrants, officers explained to federal 

magistrate judges how they cross-referenced the user’s digital fingerprint with their pseudonym 

and IP address to connect three data points: (a) the user’s identity, (b) the items the user had 

viewed on the website, and (c) the physical location and address of the user’s computer. 

 distinguishing the user’s machine from other computers at the same physical address. When a website is operating 

on the Tor network, this appears to be the only practical way for law enforcement to identify a website’s users and 

gather necessary evidence. See generally United States v. Workman, 863 F.3d 1313, 1315–17 (10th Cir. 2017) 

(describing the technique), cert. pet. filed in No. 17-7042 (Oct. 3, 2017). 

3

These warrants have been the subject of much litigation, and their validity is still an open question. 

United States v. Kahler, 236 F. Supp. 3d 1009, 1017–18 (E.D. Mich. 2017) (collecting cases). The district judge 

below did not address the NIT warrant. Since the NIT warrant is not the subject of this appeal, we express no 

opinion on its validity today, and our opinion should not be construed to favor (or disfavor) these warrants as a 

matter of law. We cite its contents here merely for their value as background facts. 
No. 17-1777 United States v. Tagg Page 5

The affidavit supporting the Residential Warrant outlined Tagg’s browsing history, which 

neither party disputes. The Residential Warrant therefore contained the following pieces of data. 

(1). Tagg spent around five hours logged into Playpen’s website under the pseudonym 

“derpderk.” (2). Tagg opened the website’s “index” and browsed them for topics of interest to 

him. (3). He clicked on the “Pre-Teen Videos” entry in the index. That link took him to a 

separate part of the index where he could browse “Pre-teen Videos” in more detail. (4). After 

browsing that topic, Tagg viewed a collection of pages under the heading “Girls HC”—which, in 

the pornography world, means explicit, penetrative sexual acts. (5). Tagg then accessed the 

message board “video collection clow85.”4 (6). On other occasions, Tagg accessed pages titled, 

“Drug(g)ed sleeping girl 10yo fuck—”, “girl Toy3-8y&man”, and “PTHC[5] Anal dildo.” 

The affidavit did not, however, state whether Tagg actually viewed or downloaded any illegal 

files. 

 The magistrate judge approved the Residential Warrant. The warrant indicated that 

officers had established probable cause that Tagg violated 18 U.S.C. § 2252A(a)(5) (access of a 

website with intent to view child pornography) and that evidence of the crime would be found at 

Tagg’s residence. After searching Tagg’s home, police found over 20,000 files of child 

pornography on his personal computers. 

C

 Tagg was charged with one count of receiving child pornography and one count of 

possessing the same. 18 U.S.C. § 2252A(a)(2), (a)(5)(B). Tagg moved to suppress all the 

evidence seized by the government, claiming that both the NIT Warrant and his individual 

Residential Warrant violated the Fourth Amendment. As noted above, the district court only 

addressed the Residential Warrant. 

After a hearing, the district court held that the Residential Warrant was invalid. 

Specifically, the court held that police could not establish probable cause to search Tagg’s home 

 4

Although the parties do not indicate what “clow85” means, it appears to be the pseudonym of another 

user. Thus, “video collection clow85” is likely a collection of videos uploaded by the user clow85. 

5

The information in the affidavit indicates that “PTHC” is probably an acronym for “Pre-Teen Hard-Core.” 
No. 17-1777 United States v. Tagg Page 6

for child pornography unless the supporting materials established that he actually clicked on or 

viewed an online file containing child pornography. Moreover, the court suppressed the 

evidence, reasoning that the good-faith exception did not apply because police acted recklessly 

and because no reasonable officer could have relied on the warrant. After its motion for 

reconsideration was denied, the government timely appealed. We have jurisdiction under 

18 U.S.C. § 3731. 

II 

 The district judge found that the Residential Warrant lacked probable cause. This was 

incorrect, particularly considering the Supreme Court’s recent instructions in District of 

Columbia v. Wesby, 583 U.S. ___, 138 S. Ct. 577, 584–89 (2018) (examining probable cause “to 

arrest . . . partygoers for unlawful entry” in a civil action under 42 U.S.C. § 1983). 

A 

 The Fourth Amendment prohibits judges from issuing search warrants unless the 

requesting officer demonstrates probable cause. U.S. Const. amend. IV. “A police officer has 

probable cause to conduct a search when the facts available to [the officer] would warrant a 

person of reasonable caution in the belief that contraband or evidence of a crime is present.” 

Florida v. Harris, 568 U.S. 237, 243 (2013) (alterations and internal quotation marks omitted). 

A Supreme Court opinion, fresh off the press, has reminded the courts that “probable cause deals 

with probabilities and depends on the totality of the circumstances.” Wesby, 138 S. Ct. at 586 

(internal quotation marks omitted). Therefore, “[p]robable cause is not a high bar” and “is a 

fluid concept that is not readily, or even usefully, reduced to a neat set of legal rules.” Id.

(internal quotation marks omitted). 

1 

Probable cause “requires only a probability or substantial chance of criminal activity, not 

an actual showing of such activity.” Id. (citation omitted). In determining probability, officers 

and magistrates may rely on “common-sense conclusions about human behavior.” Id. at 587 

(citation omitted); see also United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (en banc) 
No. 17-1777 United States v. Tagg Page 7

(“Affidavits are not required to use magic words, nor does what is obvious in context need to be 

spelled out . . . .”). Moreover, judges are not permitted to engage in “an excessively technical 

dissection” of the record when determining probable cause. Wesby, 138 S. Ct. at 588 (internal 

quotation marks omitted) (reversing the Court of Appeals for examining a case this way). Facts 

must be considered together, not apart, since “the whole is often greater than the sum of its 

parts.” Id. Finally—and most importantly for the purposes of this case—probable cause “does 

not require officers to rule out a suspect’s innocent explanation for suspicious facts.” Id. 

Instead, “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the 

degree of suspicion that attaches to particular types of noncriminal acts.” Id. (quoting Illinois v. 

Gates, 462 U.S. 213, 244 n.13 (1983)). 

Further, the court reviewing a warrant does not write on a blank slate. A judicial officer 

who issues a warrant “should be paid great deference.” Gates, 462 U.S. at 236 (internal 

quotation marks omitted). The reviewing court is not permitted to attempt a de novo review of 

probable cause; the issuing judge’s decision should be left undisturbed if there was a “substantial 

basis” for the probable-cause finding. Id. at 238–39; United States v. King, 227 F.3d 732, 739 

(6th Cir. 2000). In service of this standard, an “affidavit is judged on the adequacy of what it 

does contain, not on what it lacks, or on what a critic might say should have been added.” Allen, 

211 F.3d at 975. An appellate court examines the reviewing judge’s logic using a de novo 

standard. United States v. Washington, 380 F.3d 236, 240 (6th Cir. 2004). 

2

We have been over this ground before in child-pornography cases. The unique 

challenges of child-pornography crimes demand a practical approach to the probable-cause 

question. See United States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009). We have repeatedly 

held that visiting or subscribing to a website containing child pornography creates a reasonable 

inference that the user has stored child pornography on their computer. United States v. Wagers, 

452 F.3d 534, 538–40 (6th Cir. 2006); Frechette, 583 F.3d at 379; United States v. Kinison, 

710 F.3d 678, 683–84 (6th Cir. 2013); United States v. Elbe, 774 F.3d 885, 889 (6th Cir. 2014) 

(discussing file exchanges on a peer-to-peer website). The fact that the website contains both 

legal and illegal material, while relevant, does not automatically negate probable cause. Wagers, 
No. 17-1777 United States v. Tagg Page 8

452 F.3d at 538–39. Indeed, we expressly rejected such an inflexible rule in Wagers, 

recognizing that a fact-intensive approach to probable cause was sufficient to deter overzealous 

law enforcement and prevent unwarranted invasions of privacy. Id. at 541–43. 

We sustained this commitment to fact-based adjudication in Frechette. In that case, we 

held that a one-month, paid subscription to a website containing child pornography justified a 

reasonable officer in concluding that the user might have stored child pornography on his 

computer. Frechette, 583 F.3d at 380–81. Although the pattern of conduct alleged in the 

affidavit was less pervasive than in previous cases, we reasoned, “if someone spends $80 for 

something, it is highly likely that the person will use it—whether it is a tie, a video game, or a 

subscription to a pornographic web site.” Id. at 380. Thus, it was “not likely” that the defendant 

“was innocently surfing the internet and accidentally paid $79.95 for a subscription” to a porn 

site. Id. at 381. Therefore, it was reasonable to think that the website’s images may have ended 

up on the suspect’s computer at some point, even though the warrant did not allege anything 

besides the subscription. Id. Like in Wagers, the panel rejected the defendant’s bright-line rule, 

reasoning instead that fact-based examinations are enough. 

3 

We have also addressed the Fourth Amendment’s nexus requirement as applied to the 

digital age. Probable cause to believe a person committed a crime does not justify a search of his 

or her residence absent some independent evidence linking the residence to the crime. See 

United States v. Savoca, 761 F.2d 292, 297 (6th Cir. 1985). However, we have held that a nexus 

exists when law enforcement connects the IP address used to access a website to the physical 

location identified by the warrant. Elbe, 774 F.3d at 890; Kinison, 710 F.3d at 683–84. Pointing 

to our “prior observations” that child pornography is typically possessed in the secrecy of the 

home, the Kinison panel reasoned that a search of the home was a perfectly logical next step for 

officers who have only circumstantial evidence of where the crime was committed and no 

“inside scoop” on which they could rely. 710 F.3d at 683–84. 
No. 17-1777 United States v. Tagg Page 9

B 

The district court erred in holding that the warrant was not supported by probable cause. 

For that reason, it should have denied the motion to suppress. 

 The warrant was based on 18 U.S.C. § 2252A. That statute punishes any person who 

“knowingly accesses with intent to view, any . . . computer disk, or any other material that 

contains an image of child pornography.” 18 U.S.C. § 2252A(a)(5)(B). It is elementary that an 

applicant for a search warrant need not allege facts establishing that a crime occurred. Wesby

makes that perfectly clear. 138 S. Ct. at 586. Instead, the magistrate must ask whether the facts 

in the affidavit justified an officer of reasonable caution in suspecting that Tagg had accessed 

Playpen with the intent to view child pornography, and that evidence of that crime would be 

found on his home computer. That standard is unquestionably met here. 

1 

Tagg admits that he accessed the website. And the warrant application contained plenty 

of facts suggesting that he intended to view child pornography when he did so. First and 

foremost, it is unlikely that Tagg stumbled upon Playpen by accident. To access the site, he had 

to obtain the URL from someone “on the inside” who could provide the exact sequence of 

numbers and letters to enter into his browser. This creates an inference that Tagg deliberately 

accessed Playpen. Second, Tagg spent over five hours on the site, clicking on over 

160 hyperlinks that were blatant advertisements for child pornography. See, e.g., R. 29-1, 

Residential Warrant, PID 445, 451–52; id. at 446 (“Pre-teen Videos,” “Girls [Hard-Core]”); id. at 

452 (“Drug(g)ed sleeping girl 10yo fuck—”); id. (“Girl Toy3-8y&man”); id. (“[Pre-Teen HardCore] Anal dildo”). Indeed, when viewed alongside the other facts in the affidavit, such conduct 

makes it even more likely that Tagg intended to view child pornography when he accessed 

Playpen. 

 Further, the applicable criminal statute does not require a showing that Tagg actually 

viewed illegal content on the site. The access-with-intent offense is complete the moment that 

the elements of access and intent coincide. 18 U.S.C. § 2252A(a)(5)(B). Thus, even if the 

person never viewed illegal child pornography, knowingly accessing a child-pornography 
No. 17-1777 United States v. Tagg Page 10

website with the intent to view illegal materials is itself a criminal act. It follows from this 

language that probable cause to search Tagg’s house would exist even if he was “curiosity 

shopping” for child porn on Playpen but never actually viewed an illegal image. Id. This is the 

most natural reading of the statute. Congress unambiguously set out to punish anyone who 

“knowingly possesses, or knowingly accesses with intent to view, any . . . computer disk . . . or 

other material . . . that contains an image of child pornography.” Id. (emphasis added). 

Grammatically, the word “accesses” (the actus reus of the crime) is directed towards the 

repository containing child pornography, not the child pornography itself. 

The person who completes the circle and views the image has, instead, committed the

actus reus of possession. See, e.g., United States v. Ramos, 685 F.3d 120, 130–32 (2d Cir. 2012) 

(holding that merely viewing child pornography in a web browser is sufficient to trigger 

“possession” liability under § 2252A(a)(5)). We agree with the Second Circuit that Congress 

intended the “possessing” actus reus to apply to someone who “intentionally searched for images 

of child pornography, found them, and knowingly accepted them onto his computer,” even if that 

acceptance was merely temporary. Id. at 132. The logical conclusion of this rule is that “accesswith-intent” liability is triggered when a person “intentionally searche[s] for images of child 

pornography, f[inds] them,” but then stops short of viewing the images themselves. See id.; 

Nat’l Ass’n of Mfrs. v. U.S. Dep’t of Def., 138 S. Ct. 617, 632 (2018) (reversing a panel of this 

Court and reaffirming that we are “obliged to give effect, if possible, to every word Congress 

used” in a statute) (internal quotation marks omitted). 

This approach mirrors the long-standing doctrine of attempt, which imposes liability on 

anyone who intends to do an illegal act and takes a substantial step toward that goal. United 

States v. Resendiz-Ponce, 549 U.S. 102, 106–08 (2007). Even if it seems harsh, Congress has 

unambiguously declared that the act of accessing a website containing child porn—when done 

with criminal intent—is a sufficiently “substantial” step to warrant criminal sanctions. See id.; 

18 U.S.C. § 2252A(a)(5). And when Congress speaks clearly, we may not frustrate its intent via 

lenient interpretation. Cf. Shaw v. United States, 137 S. Ct. 462, 469 (2016). 
No. 17-1777 United States v. Tagg Page 11

2

The Eighth Circuit has implicitly taken this broad view of the criminal liability provision 

of the statute in two recent cases. United States v. DeFoggi, 839 F.3d 701, 711–12 (8th Cir. 

2016); United States v. Huyck, 849 F.3d 432, 442–43 (8th Cir. 2017). In Huyck, the defendant 

was convicted of separate instances of possession and access with intent to view child 

pornography. Huyck, 849 F.3d at 442. In rejecting a sufficiency challenge to the access-withintent charge, the Eighth Circuit pointed to three facts which carried the government’s burden: 

(a) circumstantial evidence that Huyck’s computers ran the same browser and operating system 

detected by the NIT surveillance system; (b) a text file on Huyck’s computer containing 

instructions on how to use Tor and links to several “secret” child-pornography websites; and 

(c) Huyck’s admission that he had used Tor in the past. Id. The panel did not discuss whether or 

not the government offered proof that Huyck had ever accessed images from that website, 

instead reasoning that the conviction should stand because the evidence “demonstrat[ed] his 

knowledge and intent to use the Tor network to receive and access child pornography.” Id. 

DeFoggi is equally stern. In that case, the defendant was a member of “PedoBook,” 

a child-pornography site on the Tor network. While on the site, he engaged in “copious amounts 

of discussion concerning the exchange of child pornography with other users.” DeFoggi, 

839 F.3d at 711–12 (citation omitted). The defendant sought to void his conviction, reasoning 

that his chats were “mere fantasy” and did not indicate an intent to view child pornography. Id.

at 712. The court was not persuaded. Pointing out that he had “asked other members of 

PedoBook where he could find certain videos and whether they had or could produce images for 

him,” the court reasoned that the jury could have reasonably concluded that he intended to view 

child pornography. Id. Although police caught the defendant in the act of downloading a video 

when they executed a warrant at his residence, this fact did not seem particularly important to the 

panel, as it would have been if it was an essential part of the proofs. Id. DeFoggi and Huyck are 

out-of-circuit cases addressing the sufficiency of the evidence, not probable cause, but they 

nevertheless provide some insight into what the access-with-intent clause of the statute prohibits. 

We emphasize that the scienter requirement of this statute imposes an unforgiving 

standard on the government. Indeed, the government conceded at oral argument that—in the 
No. 17-1777 United States v. Tagg Page 12

absence of proof that a person actually viewed or possessed any child pornography—it may be 

difficult to prove intent beyond a reasonable doubt at trial. This is as it should be. Child 

pornography receives no protection from the First Amendment, but the Supreme Court has made 

it clear that a strict mens rea is a key factor in policing overbreadth and ensuring that “unwitting” 

users are not punished for protected speech. See United States v. Williams, 553 U.S. 285, 288–

89 (2008); United States v. Woods, 684 F.3d 1045, 1060 (11th Cir. 2012); United States v. 

Brune, 767 F.3d 1009, 1020–21 (10th Cir. 2014). But in the probable-cause context, we are 

content that on the facts of this case, a reasonable officer could infer that Tagg formed the 

required intent at some point during the five hours he spent browsing Playpen. 

Tagg insists that the affidavit “did not offer facts to show [he] acted with specific ‘intent 

to access’” child pornography. This, again, conflates probable cause with proof; the affidavit 

need not “show” that Tagg had unlawful intent—it only needed to allege facts that create a 

reasonable probability that Tagg had an unlawful motive. See Wesby, 138 S. Ct. at 586 (stating 

that probable cause does not require “an actual showing” of illegal conduct) (internal quotation 

marks omitted). Tagg tries to weaken this inference by pointing out that the site also distributed 

legal child erotica. He seizes on this fact to argue that he intended to view child erotica, not 

illegal child pornography, and therefore that the warrant could not establish probable cause. The 

Supreme Court disagrees. Wesby makes clear that the ultimate plausibility of an innocent 

explanation cannot be used to snuff out the objectively suspicious inference that can be drawn 

from the facts presented to a magistrate. See id. at 588. Tagg may or may not be guilty of a 

crime, and we reiterate that this would be a different case if the government sought to sustain a 

conviction based solely on the statements in this affidavit. But police need not “rule out a 

suspect’s innocent explanation for suspicious facts” in order to establish probable cause, and 

Tagg may not litigate the issue of guilt or innocence on a motion to suppress. See id. 

In sum, the plain language of the statute penalizes anyone who knowingly accesses a 

website that contains child pornography and who intends to view that illegal content, even if he 

never actually does so. It follows that a warrant may issue against someone like Tagg when law 

enforcement shows that the suspect (a) accessed a website containing actual child pornography, 
No. 17-1777 United States v. Tagg Page 13

and (b) browsed the site for an extended period of time while clicking on links that were blatant 

advertisements for child pornography. 

3

Tagg also challenges the nexus element of the search. He insists that the mere fact that 

he used a computer to commit a crime does not automatically justify a search of his residence. 

This, of course, is correct. See generally Peffer v. Stephens, 880 F.3d 256, 266–74 (6th Cir. 

2018); Savoca, 761 F.2d at 297. But Tagg ignores the fact that police linked the IP address he 

used to access Playpen to the residence listed on the warrant, and even observed him entering 

and exiting the premises. Our precedent holds that this is enough to establish a nexus. Elbe, 774 

F.3d at 890; Kinison, 710 F.3d at 683–84; see also United States v. Lapsins, 570 F.3d 758, 766–

67 (6th Cir. 2009). 

III 

Tagg cites several out-of-circuit cases to persuade us to affirm the district court’s 

suppression order. United States v. Raymonda, 780 F.3d 105 (2d Cir. 2015); United States v. 

Falso, 544 F.3d 110 (2d Cir. 2008); United States v. Edwards, 813 F.3d 953 (10th Cir. 2015). 

He misapprehends the helpfulness of these cases, however, as they actually support the 

government’s position. In fact, the Second Circuit extended our decision in Frechette to an 

unpaid registration for a pornographic website, reasoning that the mere act of signing up for a 

“members-only” child-pornography site was enough to establish probable cause to search the 

defendant’s home. Raymonda, 780 F.3d at 115–16 (discussing United States v. Martin, 426 F.3d 

68 (2d Cir. 2005)). 

Raymonda then contrasted Martin with Falso, the second case on which Tagg relies. In 

Falso, the warrant merely alleged that the defendant tried (possibly unsuccessfully) to access a 

website containing child pornography. 544 F.3d at 121. The Falso panel held that probable 

cause could not exist under those circumstances unless the warrant contained “specific 

allegations” that the defendant actually viewed child pornography. Id. In contrast, Tagg was a 

registered member of Playpen and successfully accessed the site for over five hours. 
No. 17-1777 United States v. Tagg Page 14

Thus, the Second Circuit’s cases are even less favorable to Tagg than our own. Indeed, 

Raymonda endorsed a legal conclusion not yet present in our case law—that “the fact of 

membership to a child-pornography website,” paid or unpaid, creates probable cause to search 

the member’s home computer. Raymonda, 780 F.3d at 116 (quoting Falso, 544 F.3d at 121) 

(emphasis added by the Raymonda panel). Tagg was a member of Playpen in the sense that 

Martin used that word. Raymonda also emphasized that this fact was crucial in distinguishing 

between Martin and Falso, since the Falso defendant had not subscribed to a members-only 

website. Raymonda, 780 F.3d at 115–16. 

Raymonda’s facts are also distinguishable. The warrant in Raymonda only alleged that 

on one afternoon, nine months ago, the defendant opened one or two pages of a website 

containing child-pornography files. Id. at 116–17. The Second Circuit was simply not 

persuaded that this was sufficient to support probable cause for a residential search. In contrast, 

Tagg accessed Playpen for five hours over thirty days and viewed hundreds of pages containing 

child-pornography files. The facts here—critical in probable-cause determinations—simply do 

not compare. 

Finally, Tagg stretches the Tenth Circuit’s decision in Edwards to mean more than what 

it says. In Edwards, the affidavit only alleged that the defendant possessed and shared child 

erotica, not child pornography. Edwards, 813 F.3d at 960–61. Importantly, the warrant in that 

case never alleged that the suspect possessed, searched for, browsed, or made any effort to 

engage with actual child pornography. Id. at 962–63. In rejecting the government’s arguments, 

the Tenth Circuit held that mere interest in child erotica or sexual attraction to children was 

insufficient, standing alone, to cause an officer of reasonable caution to suspect someone of a 

crime. Id. at 964–65. 

We have rejected similar attempts by the government to use evidence of child 

molestation to support warrants for child pornography. E.g., United States v. Hodson, 543 F.3d 

286, 292–94 (6th Cir. 2008); see also United States v. Doyle, 650 F.3d 460, 472 (4th Cir. 2011) 

(“The bulk of the information supplied in the affidavit concerned allegations of sexual assault. 

But evidence of child molestation alone does not support probable cause to search for child 

pornography.” (citing Hodson, 543 F.3d at 292)). However, the logic of Edwards and Hodson
No. 17-1777 United States v. Tagg Page 15

does not apply to defendants, like Tagg, who interact with the child-pornography components of 

a website. In those cases, Frechette and Wagers must control. Frechette, 583 F.3d at 380–81; 

Wagers, 452 F.3d at 538–40. 

IV

 The warrant below was supported by probable cause; it was error to suppress the 

evidence seized under its authority. Therefore, the district court’s order granting the motion to 

suppress is REVERSED, and the case is REMANDED for proceedings not inconsistent with 

this opinion. 

 
No. 17-1777 United States v. Tagg Page 16

_________________ 

CONCURRENCE 

_________________ 

JANE B. STRANCH, Circuit Judge, concurring. I concur in today’s decision because, 

taken together, Tagg’s registration of a Playpen account, which was necessary to access the 

portions of the website that contained child pornography, his sustained activity on Playpen, and 

his deliberate navigation to multiple forums clearly devoted to child pornography created 

probable cause to issue the Residential Warrant. I write separately only to note that United 

States v. Ramos, 685 F.3d 120 (2d Cir. 2012), is an out-of-circuit case concerning a later stage of 

criminal prosecution and a different crime. Ramos is therefore immaterial to the probable cause 

determination in Tagg’s case. See id. at 131 (holding that “that the evidence was sufficient to 

prove [at trial] that Ramos was guilty of knowingly receiving and possessing child 

pornography”). Although we have no cause to apply Ramos, I otherwise agree that the 

constellation of facts contained in the affidavit call for reversing the district court’s suppression 

decision.