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United States v. McCormick

United States District Court, District of Columbia

August 6, 2019

UNITED STATES OF AMERICA
v.
THOMAS KENNEDY MCCORMICK, Defendant.

          MEMORANDUM OPINION

          JOHN D. BATES UNITED STATES DISTRICT JUDGE

         Thomas McCormick was indicted on December 4, 2018, on seven counts of Racketeer Influenced Corrupt Organization conspiracy in violation of 18 U.S.C. § 1962(d), conspiracy to commit bank and wire fraud in violation of 18 U.S.C. § 1349, and aggravated identity theft in violation of 18 U.S.C. § 1028A. The government alleges that McCormick, under the alias “fubar, ” engaged in a variety of illegal activities on Darkode, an invitation-only online forum that facilitated the sale of malware and other illicit goods and services. Before the Court is McCormick's motion to suppress evidence obtained pursuant to a December 2013 search warrant or, alternatively, to hold a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), about information omitted from the application for that warrant. Defs.' Mot. to Suppress or, in the Alternative, Request for a Franks Hr'g (“Def.'s Mot.”) [ECF No. 27] at 5-15. The government opposes the motion. Gov't's Opp'n to Def.'s Mot. to Suppress (“Gov't's Opp'n”) [ECF No. 28]. For the reasons that follow, the motion is denied.

         I. Factual Background

         An online user operating under the moniker “fubar” came to the FBI's attention in 2009 for allegedly coding, advertising, and selling malware. Aff. of Special Agent David Hitchcock in Supp. of an Appl. for a Search Warrant (“Hitchcock Aff.”), Ex. 2 to Gov't's Opp'n [ECF No. 28- 2] ¶¶ 6-17. In January 2010, fubar allegedly sold malware used to harvest banking credentials to an undercover FBI agent. Id. ¶¶ 11-14. By August 2010, the FBI had traced online activity of fubar to McCormick's parents' home address in Cambridge, Massachusetts, where the teenaged McCormick then resided, but FBI agents did not immediately identify McCormick as residing at that address. See Aug. 5, 2010, FBI communication, Ex. 3 to Def.'s Mot. [ECF No. 27-3] at 1-2. At the time, FBI investigators explained that fubar might not appear in law enforcement databases because he “may be in high school and not hav[e] a significant credit history.” Id. at 2-3. FBI agents finally matched McCormick to his online moniker fubar in January 2011, shortly after McCormick's eighteenth birthday. See FBI email, Ex. 2 to Def.'s Mot. [ECF No. 27-2] at 1-2.

         In the months that followed, McCormick finished high school and moved away to college. In early December 2013-almost three years after first identifying McCormick as “fubar” and about a month after McCormick turned twenty-one-the FBI sought a search warrant to search McCormick's college dorm room for evidence related to his online activities. Search Warrant, Ex. 1 to Gov't's Opp'n [ECF No. 28-1] at 1. FBI Special Agent David Hitchcock submitted an affidavit in support of the warrant application. See Hitchcock Aff. In addition to outlining the January 2010 controlled buy of malware from fubar, the affidavit explained that the FBI had obtained records in 2012 and 2013 from Google, Microsoft (McCormick's employer during a summer internship), and other sources that corroborated the connection between McCormick and fubar. Hitchcock Aff. ¶¶ 11-14, 17a-d. Information obtained from a confidential informant in the Darkode community had also provided evidence that fubar continued to participate in Darkode forums and had logged in as a Darkode administrator as recently as September 10, 2013. Id. ¶ 7- 9. Pen trap information obtained in early 2013 from McCormick's university further showed that he had continued to access his fubar Darkode account from the university. Id. ¶ 17c, 17e. The affidavit does not mention that FBI agents made the connection between fubar and McCormick as early as January 2011. See id.

         A magistrate judge issued the search warrant on December 4, 2013. Search Warrant at 1. The FBI executed the search warrant on December 5, 2013, recovering a laptop computer, tablet, smartphone, several external storage devices, and some papers. Id. at 2.

         McCormick alleges that “the only rational explanation” for the years-long delay between identifying McCormick and seeking the search warrant “was to ‘run the clock' until [he] turned twenty-one years old and thus would no longer have the protections of juvenile status.” Def.'s Mot. at 15. Accordingly, McCormick argues that probable cause was lacking for the warrant because the information supporting the warrant was stale, and that, in the alternative, a Franks hearing is necessary “to investigate why the agents failed to provide material information in the search warrant application, namely the fact that they had identified Mr. McCormick as their suspect nearly three years prior to the date of application.” Id. at 1-2.

         II. Legal Standard

         The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Law enforcement actions taken under a warrant are preferred to searches and seizures without one, and “in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.” United States v. Ventresca, 380 U.S. 102, 106-07 (1965).

         For a valid warrant to issue, “[s]ufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” Illinois v. Gates, 462 U.S. 213, 239 (1983). However, the magistrate's task is not a technical one. “[T]he issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238. The corresponding “duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Id. at 238-39 (alterations and citation omitted). Because “[r]easonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, ” the Supreme Court has “accord[ed] ‘great deference' to a magistrate's determination” even though that deference “is not boundless.” United States v. Leon, 468 U.S. 897, 914 (1984) (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)).

         III. Motion to Suppress

          The first issue raised by McCormick is whether the December 2013 search warrant relied on stale information that could not support a finding of probable cause. Def.'s Mot. 7-12.

         A warrant will lack adequate support-and hence be invalid-if the facts contained in its supporting affidavit have “become stale by the passage of time.” Sgro v. United States, 287 U.S. 206, 215 (1932). For a valid search warrant to issue, law enforcement officers must offer “proof . . . of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.” Id. at 210. “Whether the proof meets this test must be determined by the circumstances of each case, ” id. at 210-11, and “different kinds of information go stale at different rates, ” United States v. Johnson, 437 F.3d 69, 72 (D.C. Cir. 2006). In determining the “likelihood that the evidence sought is still in place, ” courts consider

the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere ...

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