Monday, May 29, 2017

The Warrant, the Network Investigative Technique and Child Pornograph


This post examines an opinion from the U.S. District Court for the Northern District of Texas: U.S. v. Perdue, 2017 WL 661378 (2017). The judge begins the opinion by explaining that
[t]he instant motions to suppress and dismiss the indictment challenge the Federal Bureau of Investigation's (`FBI's’) seizure of a computer server that hosted a child pornography website called `Playpen,’ and the FBI's ensuing operation of the website on a government server.
U.S. v. Perdue, supra.
The Judge goes on to explain why, and how, the prosecution arose:
The facts of this case that are material to the court's decision are undisputed. In early 2015, acting on a tip from a foreign law enforcement agency, the FBI located and seized a computer server that contained a child pornography website called Playpen. Playpen existed as a hidden website on the Tor Network, also known as the dark web. Through sophisticated encryption, the Tor Network anonymizes and actively conceals identifying information about website users, including a user's true Internet Protocol (`IP’) address. To access Playpen, it was necessary for users to know the website's address on the Tor Network. Users could not, for example, stumble upon Playpen while browsing the Internet. Once on the Playpen website, users logged in with dedicated usernames and passwords. Playpen offered users various forums for different child pornography topics, including `Incest’ and `Toddlers.’ Inside each forum were discussion posts, images, and videos related to the particular topic.

Because the Tor Network anonymizes its users, the FBI could not uncover who was operating or accessing the Playpen website through normal investigative techniques. The FBI devised a plan to investigate Playpen's users, who would normally be untraceable. The plan called for the FBI to copy the Playpen server and continue to operate the Playpen website on the FBI server. While operating the website, the FBI would use a network investigative technique (`NIT’) that allowed it to retrieve information from the computers of the persons who logged in to the Playpen website. The NIT—computer code developed by the FBI—would be attached to various files uploaded to Playpen. When the website user downloaded a file, the NIT would force the user's computer to send to the FBI the user's actual IP address and other identifying information. With the actual IP address, the FBI could identify and locate the user.

Acting according to the plan, the FBI copied the Playpen server and brought it to a government facility located in the Eastern District of Virginia. On February 20, 2015 the FBI applied for and obtained from a United States Magistrate Judge of the Eastern District of Virginia a search warrant (the `NIT Warrant’) authorizing the FBI to deploy the NIT program for a period of up to 30 days.

On or about February 23, 2015, Perdue accessed the Internet from his residence using a personal computer. Using the Tor Network, he logged in to the Playpen website and clicked on a post entitled, `8 Year Old Blonde,’ which contained child pornography. As the content from this post downloaded onto the computer, the NIT computer code was sent automatically. The NIT relayed Perdue's IP address and other information back to the FBI in the Eastern District of Virginia.

Based on this information, the FBI issued a subpoena to AT & T, the Internet service provider connected with Perdue's IP address, and learned that Perdue was the account holder associated with the address. The FBI obtained a warrant to search Perdue's residence, and it found (1) a computer containing child pornography, and (2) a flash drive containing an 80–page Microsoft Word document containing links to child pornography websites. Perdue subsequently confessed to accessing Playpen and using the Tor Network to obtain child pornography.
U.S. v. Perdue, supra.
The federal judge goes on to point out that
[t]he grand jury later indicted Perdue for the offenses of receipt of child pornography, in violation of 18 U.S. Code §2252A(a)(2)(A), and possession of child pornography involving a prepubescent minor, in violation of 18 U.S. Code § 2252A(a)(5)(B). Perdue moves to suppress all evidence obtained from the NIT, alleging that the authorizing warrant was made without jurisdiction under 28 U.S. Code §636(a) and Fed. R. Crim. P. 41. He also moves to dismiss the indictment. The government opposes both motions.
U.S. v. Perdue, supra. This opinion only examines the court’s analysis of Perdue’s motion to suppress.
The District Court Judge began his analysis of the issues in the case with Perdue’s motion to suppress evidence, in which he argued that the evidence at issue was obtained in violation of the Fourth Amendment.  U.S. v. Perdue, supra. He began the analysis by explaining that
[t]he general rule under the Fourth Amendment is that searches of private property are reasonable if conducted pursuant to a valid warrant issued upon probable cause. See, e.g., Katzv. United States, 389 U.S. 347, 357 (1967). `A defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional.’ United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005 (citing United States v. Guerrero–Barajas, 240 F.3d 428, 432 (5th Cir. 2001)). `The exclusionaryrule prohibits introduction at trial of evidence obtained as the result of an illegal search or seizure.’ United States v. Runyan, 275 F.3d 449, 466 (5th Cir. 2001). The exclusionary rule also `encompass[es] evidence that is the indirect product or ‘fruit” of unlawful police conduct.’ Id. (citing WongSun v. United States, 371 U.S. 471, 488 (1963)).
The judge goes on to explain that Perdue argued that the
magistrate judge in the Eastern District of Virginia who issued the NIT Warrant lacked authority under both Fed. R. Crim. P. 41(b) (2015) and § 636(a) of the Federal Magistrate Judges Act, 28 U.S.C. § 636(a), to authorize the search of a computer in Texas. The government responds that the NIT is functionally a tracking device that `was used to track the movement of [information] both within and outside of Virginia.’ Gov't Br. 10. According to the government, `[t]he NIT program, by way of operation, used [a communication stream between the government's server in Virginia and Perdue's computer in Texas] to track from where Perdue's computer signal emanated.’ Id.
U.S. v. Perdue, supra.
The District Court Judge went on to explain that
Rule 41(b)(4) provides that `a magistrate judge with authority in the district has authority to issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both.’ A `tracking device’ is `an electronic . . . device which permits the tracking of the movement of a person or object.’ 18 U.S. Code § 3117see also Rule 41(a)(2)(E) (incorporating definition in § 3117). And the rules indicate that `property’ includes `information.’ Rule 41(a)(2)(A).

The courts that have considered the NIT Warrant have split on the issue. See United States v. Torres, 2016 WL 4821223, at *4 (W.D. Tex. Sept. 9, 2016) (collecting cases). Courts that have held that Rule 41(b) was not violated have concluded that the defendants `voluntarily and deliberately came to the Eastern District of Virginia when [they] took affirmative steps to log into the Playpen website by entering a username and password.’ United States v. Sullivan, ––– F.Supp.3d ––––, ––––, 2017 WL 201332, at *6 (N.D. Ohio Jan. 18, 2017); see also United States v. Anzalone, 208 F.Supp.3d 358, 370 (D. Mass. 2016) (collecting cases). It was therefore permissible for the magistrate judge to authorize affixing a tracking device—i.e., the NIT code—to the defendants' computers once they were present in the district. Courts that have held that the magistrate judge violated Rule 41(b) have reasoned that the government's defense of the magistrate judge's authority stretches the Rule. See, e.g., United States v. Hammond, ––– F.Supp.3d ––––, ––––, 2016 WL 7157762, at *4 (N.D. Cal. Dec. 8, 2016) (`[Defendant's] computer is a physical object that at all times remained in his home in the Northern District of California, and the download, too, occurred here and not ‘virtually’ in the Eastern District of Virginia.’).
U.S. v. Perdue, supra.
The judge goes on to explain that the
court agrees with the courts that have concluded that Rule 41(b)(4) does not extend to the NIT Warrant. Although caselaw suggests that the court is to construe Rule 41broadly, see United States v. N.Y. Tel. Co., 434 U.S. 159, 169 (1977) (holding that Rule 41(b) `is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause’), it cannot render it meaningless. As one court has explained:

`[i]f the “installation” occurred on the government-controlled computer, located in the Eastern District of Virginia, applying the tracking device exception breaks down, because [defendant] never controlled the government-controlled computer, unlike a car with a tracking device leaving a particular district. If the installation occurred on [defendant's] computer, applying the tracking device exception again fails, because [defendant's] computer was never physically located within the Eastern District of Virginia.’

United States v. Michaud, 2016 WL 337263, at *6 (W.D. Wash. Jan. 28, 2016). Accordingly, the court holds that the NIT Warrant exceeded the magistrate judge's authority under Rule 41(b) by authorizing the search of a computer in Texas.
U.S. v. Perdue, supra.
The judge then took up the issue of whether, since the magistrate exceeded his/her authority by authorizing the search, the evidence should be suppressed. U.S. v. Perdue, supra. He began his analysis of this issue by explaining that the
exclusionary rule precludes the government from relying on illegally-seized evidence. United States v. Houltin, 566 F.2d 1027, 1030 (5th Cir. 1978). `The purpose of the exclusionary rule is to deter unlawful police conduct.’ United States v. Pope, 467 F.3d 912, 916 (5th Cir. 2006). This purpose will not be served, and thus the rule is inapplicable, where evidence is obtained in `objectively reasonable good-faith reliance upon a search warrant.’ Id. (citations and internal quotation marks omitted). `Under the good-faith exception, evidence obtained during the execution of a warrant later determined to be deficient is admissible nonetheless, so long as the executing officers' reliance on the warrant was objectively reasonable and in good faith.’ United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003) (citing United States v. Leon, 468 U.S. 897, 921–25 (1984)). The good-faith exception cannot apply if `the issuing magistrate/judge was misled by information in an affidavit that the affiant knew was false or would have known except for reckless disregard of the truth[.]’ Id. at 399 (quoting United States v. Webster, 960 F.2d 1301, 1307 n.4 (5th Cir. 1992) (per curiam)). `The “good faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization.”’ Pope, 467 F.3d at 917 (quoting Leon, 468 U.S. at 922 n.23, 104 S.Ct. 3405).
In the context of a Rule 41 violation,
`where there is no constitutional violation nor prejudice in the sense that the search would likely not have occurred or been as abrasive or intrusive had Rule 41 been followed, suppression ... is not appropriate if the officers concerned acted in the affirmative good faith belief that the warrant was valid and authorized their conduct.’

United States v. Comstock, 805 F.2d 1194, 1207 (5th Cir. 1986). This is because the balance of interests inherent in an exclusionary rule analysis `weighs much less heavily [when] the [Rule 41] violation is neither of constitutional dimensions nor intentional.’ Id. at 1210.
U.S. v. Perdue, supra.
For these and other reasons, the judge denied Perdue’s motion to suppress evidence and his motion to dismiss the indictment against him. U.S. v. Perdue, supra.


Friday, May 26, 2017

Child Pornography, the Laptop and Asset Forfeiture

This post examines a recent opinion from the U.S. DistrictCourt for the Western District of North Carolina: United States v. Chase, 2017 WL 1966747 (2017). The issue in the case is whether Chase should be required to forfeit his laptop computer, a thumb drive and his home because they were used to carry out the offenses of which he was convicted. United States v. Chase, supra.
If you are interested in what criminal forfeiture of assets involve, check out Rule 32.2 of the Federal Rules of Criminal Procedure, which you can find here. And as Wikipedia explains, “criminal forfeiture is usually carried out in a sentence following a conviction and is a punitive act against the offender.”
Getting back to the Chase case, the District Court Judge begins the opinion by explaining that
THIS MATTER is before the Court on the United States of America's Motion for Preliminary Order of Forfeiture. The United States requests, pursuant to 18 U.S. Code § 2253(a)(3), Fed. R.Crim. P. 32.2(b), and the Special Verdict (Doc. 99) on forfeiture, that this Court order forfeiture of the following properties that the United States contends constitute properties used or intended to be used to commit or promote the commission of the Count One 18 U.S. Code § 2251A(g) offense of engaging in a child exploitation enterprise and the Count Three 18 U.S.C. § 2251(d) offense of advertising child pornography:

• One ASUS laptop, serial number E1N0CV090739012 (hereafter, `ASUS Laptop’);
• One Cruzer 128GB thumbdrive (hereafter, `Cruzer Thumbdrive’); and
• The real property at 3570 15th Avenue, SW, Naples, Florida, identified in a deed to Steve Chase and Barbara Chase, husband and wife, recorded at Book 2337, Page 0771 of the Collier County Clerk of the Circuit Court, also known as Parcel 37988440001, and more particularly described as follows:

THE EAST 105' OF THE EAST 180' OF TRACT 90, UNIT 27, GOLDEN GATE ESTATES, ACCORDING TO A PLAT THEREOF RECORDED IN PLAT BOOK 7, PAGES 17 AND 18, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA.
(hereafter, `Naples Residence’).

For good cause, this Court GRANTS the Motion.
United States v. Chase, supra.
The Judge then goes on to explain why he is granting the forfeiture motion:
On August 19, 2015, a Grand Jury in the Western District of North Carolina returned a Second Superseding Indictment (Doc. 31; hereafter, `Indictment’) against Defendant and others, charging Defendant with, inter alia, engaging in a child exploitation enterprise as set forth in Count One; a conspiracy to advertise child pornography as set forth in Count Two; advertising child pornography as set forth in Count Three; transporting child pornography as set forth in Count Four; transporting child pornography as set forth in Count Five; transporting child pornography as set forth in Count Six; and possessing child pornography as set forth in Count Seven. The charges were based on Defendant's role as administrator of a worldwide child pornography website known as `Playpen’ on the TOR network on the so-called `dark-web.’ The Government contends that Playpen facilitated the worldwide sharing of in excess of approximately 100,000 in images among in excess of 150,000 Playpen users.

The Indictment also contained a `Notice of Forfeiture and Finding of Probable Cause’ whereby the Grand Jury found probable cause that the Naples Residence was subject to forfeiture. Defendant resided at the Naples Residence during the course of the offenses. Further, the Naples Residence was titled to Defendant and his deceased spouse.

Defendant pled not guilty and elected a jury trial. Ahead of trial, the Government filed a Notice of Proposed Jury Instructions and Verdict Sheet (Doc. 88) and a Trial Brief (Doc. 90), informing Defendant and the Court that the Government intended to pursue forfeiture of, not only the Naples Residence, but also the ASUS Laptop and Cruzer Thumbdrive, all such forfeitures based on the allegation that Defendant used these items to promote his Count One, Count Two, and Count Three offenses.1 Defendant elected (Doc. 89) to retain the Jury to decide forfeiture.
United States v. Chase, supra.
The opinion then explains that
[d]uring the criminal trial, the Government introduced and the Court admitted evidence that established, among other facts, the following:

• On multiple occasions, from the Naples Residence, Defendant logged-in to an email account that he used to register Playpen;
• On at least one occasion, from the Naples Residence, Defendant accessed a PayPal account that he used to fund Playpen;
• On multiple occasions, from the Naples Residence, Defendant logged in to Playpen; and
• At execution of a Search Warrant by law enforcement at the Naples Residence, Defendant fought entry by law enforcement and, once law enforcement entered, law enforcement discovered the ASUS Laptop on, logged-in to the server hosting Playpen with Defendant logged-in as Playpen administrator, with the Cruzer Thumbrive inserted into the ASUS Laptop. Further, law enforcement discovered on the ASUS Laptop a browser history that reflected a history of access to the administrative forum of Playpen. Law enforcement also discovered passwords and administrative instructions for Playpen on the Cruzer Thumbdrive.

Based on, among other evidence, the above-referenced evidence, the Jury found (Doc. 98) Defendant guilty on all counts except for Count Two, on which the Jury was instructed not to return a verdict should the Jury find Defendant guilty on Count One. As to the Count One offense, the Jury found that predicate offenses included advertising child pornography from 2014 through 2015; transporting child pornography on February 1, 2015; transporting child pornography on October 12, 2014; transporting child pornography on September 26, 2014; and possession of child pornography on August 19, 2014 and February 17, 2015. Simply put, the Jury found Defendant guilty of numerous egregious crimes, wide-spread in their duration and impact.
United States v. Chase, supra.
The opinion goes on to point out that
[f]urther, following brief argument by the Government and Defendant, the Jury also returned a Special Verdict (Doc. 99) for forfeiture of the Naples Residence, ASUS Laptop, and Cruzer Thumbdrive. The Special Verdict constituted a finding by the Jury that there was a nexus between Counts One and Three, and the properties. The Government now requests that this Court issue a Preliminary Order of Forfeiture for these same items.
United States v. Chase, supra. If you are interested, you can find a special interrogatory verdict form here.
The opinion then takes up the legal issues in the case, noting, initially that
Title 18 U.S.C. §2253(a)(3) and Fed. R. Crim. P. 32.2(b)(1) provide for preliminary forfeiture of property used or intended to be used to commit or promote violation of the child exploitation enterprise statute as charged in Count One and a violation of the advertising child pornography statute as charged in Count Three. Forfeiture is appropriate upon a court finding of a nexus, or connection, between the property and the violations. Fed. R. Crim. P. 32.2(b)(1)(A). The finding may be based on evidence already in the record and any additional evidence or information submitted by the parties and accepted by the court as relevant and reliable. Fed. R. Crim. P. 32.2(b)(1)(B). The burden of proof on forfeiture is preponderance of the evidenceSee, e.g., United States v. Cherry, 330 F.3d 658, 669 (4th Cir. 2003). Here, the preponderance standard is easily satisfied.
United States v. Chase, supra.
The opinion then explains why the standard is “easily satisfied” in this case:
Specifically, at the trial of this matter, the Government introduced evidence, detailed above, that, on numerous occasions, Defendant accessed an email account from the privacy of the Naples Residence so that he could operate Playpen; that Defendant accessed a PayPal account from the privacy of the Naples Residence so that he could operate Playpen; that, on numerous occasions, Defendant accessed the Playpen server from the privacy of the Naples Residence; and that Defendant was operating Playpen via the ASUS Laptop and Cruzer Thumbrive, in the privacy of the Naples Residence, when law enforcement executed the Search Warrant. Further, the Jury returned a Special Verdict of forfeiture based on this evidence.

The Government submits that such evidence, along with the Verdict and Special Verdict, are more than sufficient to establish by a preponderance of the evidence that the assets were used or intended to be used to commit or promote the commission of the Count One and Count Three offenses. 18 U.S.C. § 2253(a)(3); see also United States v. Ownby, 926 F.Supp. 558, 566 (W.D. Va. 1996) (Overruling defendant's objection that forfeiture of residence in which he used computer to possess, receive, and transport child pornography was excessive; reasoning that `it is clear that the privacy afforded by the dwelling was essential to Ownby's commission of the charged offenses.’), aff'd, 131 F.3d 138 (4th Cir. 1997) (Table); United States v. Wilk, 2007 WL 2263942, at *1 (S.D. Fl. Aug. 6, 2007) (same in case of forfeiture of residence when in excess of 90 images were on computer in home); cf. United States v. 7046 Park Vista Road, 537 F.Supp.2d 929, 940–41 (S.D. Ohio 2008) (determining, on Government's summary judgment motion in civil forfeiture case, that residence in which Section 2251 and 2252 violations occurred was forfeitable).
United States v. Chase, supra.
The opinion then goes on to outline precisely what steps the court is ordering:
The Court agrees.
It is, therefore ORDERED:

1. Based upon Defendant's convictions, the trial evidence, the Verdict, and the Special Verdict, the United States is authorized to take and maintain possession of the following property belonging to Defendant, and the property is hereby forfeited to the United States for disposition according to law, provided, however, that such forfeiture is subject to any and all third party claims and interests, pending final adjudication herein:
• One ASUS laptop, serial number E1N0CV090739012;
• One Cruzer 128GB thumbdrive; and
• The real property at 3570 15th Avenue, SW, Naples, Florida, identified in a deed to Steve Chase and Barbara Chase, husband and wife, recorded at Book 2337, Page 0771 of the Collier County Clerk of the Circuit Court, also known as Parcel 37988440001, and more particularly described as follows:
THE EAST 105' OF THE EAST 180' OF TRACT 90, UNIT 27, GOLDEN GATE ESTATES, ACCORDING TO A PLAT THEREOF RECORDED IN PLAT BOOK 7, PAGES 17 AND 18, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA.
2. Pursuant to 21 U.S. Code § 853(n)(1), the Government shall publish notice of this order; notice of its intent to dispose of the property in such manner as the Attorney General may direct; and notice that any person, other than the Defendant, having or claiming a legal interest in any of the above-listed forfeited property must file a petition with the Court within thirty days of the final publication of notice or of receipt of actual notice, whichever is earlier. This notice shall state that the petition shall be for a hearing to adjudicate the validity of the petitioner's alleged interest in the property, shall be signed by the petitioner under penalty of perjury, and shall set forth the nature and extent of the petitioner's right, title or interest in the forfeited property and any additional facts supporting the petitioner's claim and the relief sought. The United States may also, to the extent practicable, provide direct written notice to any person known to have alleged an interest in property that is the subject of this Order of Forfeiture, as a substitute for published notice as to those persons so notified.
3. Upon adjudication of all third-party interests, this Court will enter a Final Order of Forfeiture.
https://www.law.cornell.edu/uscode/text/21/853
            SO ORDERED.

United States v. Chase, supra

Wednesday, May 24, 2017

The Undocumented Aliens, the State Insurance Database and the Fourth Amendment

This post examines a recent opinion from the U.S. Court of Appeals for the 5th Circuit: United States v. Broca-Martinez, 2017 WL 1521492 (2017).  As Wikipedia explains, this court is one of several U.S. Courts of Appeals which have jurisdiction over federal cases in the territory their Circuit encompasses.
The court, like most courts, begins the opinion by explaining how and why the prosecution arose:
Defendant–Appellant Cecilio Broca-Martinez appeals the district court's denial of his motion to suppress. While on patrol in December 2015, Officer Juan Leal began following Broca-Martinez's vehicle because it matched a description Homeland Security agents had provided the Laredo Police Department (`LPD’). Officer Leal stopped Broca-Martinez after a computer search indicated the vehicle's insurance status was `unconfirmed.’ The stop led to the discovery that Broca-Martinez was in the country illegally and that he was harboring undocumented immigrants at his residence. Broca-Martinez entered a conditional guilty plea to one count of conspiracy to transport undocumented aliens in violation of 8U.S. Code § 1324. On appeal, he contends that there was no reasonable suspicion justifying the initial stop. 
United States v. Broca-Martinez, supra.
For an overview of the vehicle insurance requirements of the U.S. states, check out this Wikipedia entry.
The Court of Appeals goes on to explain, in some detail, how the prosecution arose:
On December 2, 2015, Broca-Martinez was stopped by Officer Leal in Laredo, Texas. That day, Homeland Security Investigations (`HIS’) received a tip that undocumented immigrants were being housed at a residence on Zacatecas Avenue in Laredo. While surveilling the residence, HSI agents saw two men leave and enter a gray Nissan Altima. HSI subsequently notified the LPD to have its officers `be on the lookout’ for the vehicle. After receiving a radio transmission to `be on the lookout’ for this vehicle, Officer Leal saw an Altima that matched the description. He followed the vehicle and entered its license plate number into an `in-vehicle computer’ database designed to return vehicle information such as insurance status.

The computer indicated the insurance status was `unconfirmed.’ Based on his experience using this system, Officer Leal concluded that the vehicle was likely uninsured—a violation of Texas's driver financial responsibility law. Official Leal then stopped the vehicle. After being stopped, Broca-Martinez gave his name to Officer Leal and admitted he was in the United States illegally. While they waited for HSI agents to arrive, Officer Leal issued Broca-Martinez a citation for violating the insurance requirement and driving without a license.

When HSI agents arrived, they interviewed Broca-Martinez. The agents obtained verbal consent from Broca-Martinez to search the Zacatecas Avenue residence, where fourteen undocumented immigrants were being sheltered. On December 22, 2015, Broca-Martinez was indicted by a grand jury on three counts of conspiring to harbor illegal aliens in violation of 8 U.S.C. § 1324. Broca-Martinez filed a motion to suppress evidence on January 25, 2016. He argued there was no reasonable suspicion justifying the initial stop and that the exclusionary rule barred all evidence obtained as a result of the stop.

Officer Leal testified to the following at a hearing on the motion to suppress: At the time of the stop, Leal knew the radio-transmission instruction involved a Homeland Security investigation but was unaware of any details. Upon seeing a vehicle that matched the given description, he ran the `license plates through what is called the NCIC/TCIC system, which gives a return on the vehicle, make, model, [and] year’ as well as “a VIN number” and “a confirmation to see if the vehicle is insured.’ Officer Leal has in the past `performed multiple traffic stops for vehicles not having insurance’ and was familiar with the Texas law requiring drivers to have liability insurance. Leal did not stop the vehicle because of Broca-Martinez's undocumented status—a fact he did not know—but because he believed Broca-Martinez was uninsured. He explained that when he types a license plate number into the NCIC/TCIC system, it will either report `insurance confirmed’ or `unconfirmed,’ and after getting a response he knows, `with the knowledge and experience of working,’ whether the vehicle is uninsured.
United States v. Broca-Martinez, supra.
The Court of Appeals goes on to explain that
During the stop, Officer Leal did not ask for proof of insurance. He stated that he `already knew that the vehicle wasn't insured’ based on the `unconfirmed’ status generated by the computer. However, the district court questioned why Officer Leal did not seek to confirm the computer's report, asking specifically whether `reports are sometimes inaccurate.’ Leal responded: `For the most part, no.’ Later, Broca-Martinez's attorney pressed Officer Leal on the `unconfirmed’ status:

`Q: Officer Leal, you said that the information you got on the insurance is that it was unconfirmed?
A: Yes.
Q: So, in other words, he could have or not have insurance, correct?
A: No.
Q: It's unconfirmed?
A: Yes.’

The district court denied Broca-Martinez's motion to suppress. Broca-Martinez entered a conditional plea to one count of conspiracy to transport undocumented aliens in violation of 8 U.S. Code § 1324. Broca-Martinez preserved his right to appeal the district court's denial of his motion to suppress. On June 8, 2016, Broca-Martinez was sentenced to twelve months and one day imprisonment. He timely appealed.
United States v. Broca-Martinez, supra.
The Court of Appeals then takes up its analysis of the issues in the case, explaining that
`[i]n reviewing a district court's denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo.’ United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005). `Whether an officer had reasonable suspicion to support a stop is treated as a question of law.’ United States v. Castillo, 804 F.3d 361, 364 (5th Cir. 2015). Nonetheless, this Court views the evidence `in the light most favorable to the prevailing party in the district court—in this case, the Government.’ Id. The district court had jurisdiction under 18 U.S. Code § 3231, and this Court has appellate jurisdiction pursuant to 28 U.S. Code § 1291.
United States v. Broca-Martinez, supra.
The Court of Appeals then began its analysis of the issues, and the arguments, in the case:
Under Texas law, `[a] person may not operate a motor vehicle in [Texas] unless financial responsibility is established for that vehicle through’ either a `motor vehicle liability insurance policy’ or other means such a surety bond, a deposit, or self-insurance. Tex. Transp. Code Ann. § 601.051. Violating this statute is a misdemeanor. Id. § 601.191. At issue in this case is whether Officer Leal had reasonable suspicion that Broca-Martinez was in violation of this statute.
United States v. Broca-Martinez, supra. In a footnote appended to the last sentence above, the court explains that
Broca-Martinez acknowledges that the only reason for the stop was a traffic violation and that Officer Leal `had no information regarding any suspicion of any criminal activity by the passengers’ in the vehicle.
United States v. Broca-Martinez, supra.
The opinion goes on to take up the Fourth Amendment issue, explaining that the amendment
protects individuals against warrantless searches and seizures. U.S. Const. amend. IV. It `applies to seizures of the person, including brief investigatory stops such as the stop of the vehicle here.’ United States v. Cortez, 449 U.S. 411, 417(1981). When a vehicle is stopped, the officer `must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ Id. at 417–18, 101 S.Ct. 690. This `reasonable suspicion’ exists `when the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the search and seizure. Lopez-Moreno, 420 F.3d at 430. And while the officer must have more than a `mere hunch’ that the person stopped is engaged in illegal activity, `reasonable suspicion need not rise to the level of probable cause.’ Id. Indeed, it requires only `”some minimal level of objective justification” for making the stop.” Castillo, 804 F.3d at 367 (quoting United States v. Sokolow, 490 U.S. 1,7 (1989)).
United States v. Broca-Martinez, supra.
The Court of Appeals then took up the issue in controversy in this case, explaining that
[w]e have not yet addressed whether a state computer database indication of insurance status may establish reasonable suspicion. However, several other circuits have found that such information may give rise to reasonable suspicion as long as there is either some evidence suggesting the database is reliable or at least an absence of evidence that it is unreliable.
United States v. Broca-Martinez, supra.
The opinion then goes on to explain that
[i]n United States v. Cortez-Galaviz, 495 F.3d 1203 (10th Cir. 2007), the Tenth Circuit encountered similar facts and affirmed the denial of a motion to suppress. Id. at 1204. In that case, a Drug Enforcement Agency agent stopped a vehicle after inputting its license plate information into a computer database and receiving the following notification: `INSURED/Not Found: AS OF/9/30/2005 Recommend request proof of insurance.’ Id. The court found this information was `particularized and objective’ and `suggestive of a traffic violation.’ Id. at 1206. While acknowledging that the message `did not as definitively indicate criminal activity as a `no’ response,’ it also did not `equate to an `exculpatory “yes,”’ and the suggestive ambiguity of the particularized and objective information [the officer] had at hand justified his decision to warrant a brief traffic stop. Id. Like Broca-Martinez, the defendant in Cortez-Galaviz argued that the stop was not justified because there were alternative means of complying with the state insurance law. Id. at 1207. But the Tenth Circuit found that argument `overstate[d] the requirements for reasonable suspicion under the Fourth Amendment.’ Idsee also United States v. Miranda-Sotolongo, 827 F.3d 663, 669 (7th Cir. 2016) (`Reasonable suspicion ... does not require the officer to rule out all innocent explanations of what he sees.’). Additionally, although the defendant in Cortez-Galaviz challenged the reliability of the computer database, the court found limited evidence of unreliability, especially when viewed in the light most favorable to the government. 495 F.3d at 1208.
United States v. Broca-Martinez, supra.
And it went on to explain that
[b]y contrast, the Tenth Circuit reached a different conclusion in United States v. Esquivel-Rios, 725 F.3d 1231 (10th Cir. 2013), where there was evidence the database was unreliable. In that case, a Colorado state trooper stopped a vehicle after inquiring into the validity of its temporary registration tag. Id. at 1234. Even though the tag `looked genuine,’ the trooper `called in the tag number to a dispatcher who soon replied “that's a negatory on record, not returning.”’ Id. The trooper stopped the vehicle solely based on that information and found illegal drugs after obtaining consent for a search. Id. at 1234–35. On appeal, the Tenth Circuit found this case distinguishable from Cortez-Galaviz and other cases in which `the record suggested no reason to worry about the database's reliability.’ Id. at 1235. Here, the dispatcher provided critical testimony that `Colorado temp tags usually don't return,’ which the court regarded as `a piece of evidence our cases haven't confronted before: evidence admitted by a district court suggesting that the database on which the officer relied to justify his stop might bear a real problem.’ Id. (emphasis in original).

Cases from the Seventh, Sixth, and Eighth Circuits confronting similar fact patterns are generally consistent with the reasoning in Cortez-Galaviz and Esquivel-RiosSee Miranda-Sotolongo, 827 F.3d at 671 (finding reasonable suspicion established when the database showed no vehicle registration record, `at least in the absence of evidence that [the officer] could not reasonably rely on the absence of a registration record to support an investigative stop’); United States v. Sandridge, 385 F.3d 1032, 1036 (6th Cir. 2004) (concluding there was reasonable suspicion for a stop when license plate check three weeks prior had indicated the driver was driving without a valid license); United States v. Stephens, 350 F.3d 778, 779 (8th Cir. 2003) (holding that when database check showed license plates were `not on file,’ there was reasonable suspicion to stop the vehicle).
United States v. Broca-Martinez, supra.
The court went on to address another issue, explaining that
Broca-Martinez relies only on state court cases to support his argument. See Gonzalez-Gilando v. State, 306 S.W.3d 893, 896–97 (Tex. App.—Amarillo 2010, pet. ref'd) (finding database information insufficient to establish reasonable suspicion because there was no `evidence developing the source of the information comprising the database, explaining what was meant when insurance information was unavailable, . . . [or] illustrating the accuracy of the database’); State v. Daniel, 446 S.W.3d 809, 815 (Tex. App.—San Antonio 2014, no pet.); Contraras v. State, 309 S.W.3d 168, 173 (Tex. App.—Amarillo 2010, pet. ref'd). But although states may `impos[e] more stringent constraints on police conduct than does the Federal Constitution,’ this does not dictate our Fourth Amendment analysis. California v. Greenwood, 486 U.S. 35, 43 (1988). Even so, Broca-Martinez's case is distinguishable from Gonzalez-Gilando; here, there was testimony regarding Officer Leal's experience with the database and suggesting the system was reliable.
United States v. Broca-Martinez, supra. As this Wikipedia entry on precedent in U.S. and other common law countries explains, the decisions of a particular court are usually binding on that court, and may serve as persuasive precedent with regard to other courts. So, it is usual for litigators before a particular court to rely on that court’s precedent, as much as possible.
The Court of Appeals then began the process of enunciating its “holding” – its decision in the case:
[w]e agree with the other circuits that have confronted this question. A state computer database indication of insurance status may establish reasonable suspicion when the officer is familiar with the database and the system itself is reliable. If that is the case, a seemingly inconclusive report such as “unconfirmed” will be a specific and articulable fact that supports a traffic stop. Lopez-Moreno, 420 F.3d at 430. Viewed in the light most favorable to the government, Officer Leal's testimony provides sufficient support for the reliability of the database. Officer Leal explained the process for inputting license plate information, described how records in the database are kept, and noted that he was familiar with these records. He explained that `with the knowledge and experience of working,’ he knows the vehicle is uninsured when an `unconfirmed’ status appears because the computer system will either return an `insurance confirmed’ or `unconfirmed’ response. When Broca-Martinez's attorney questioned the system's reliability, Officer Leal confirmed that it was usually accurate. (`Q: So, in other words, he could have or not have insurance, correct? A: No.’) (`Q: You asked him for his insurance? A: Not that I recall. I already knew that the vehicle wasn't insured.’) (`Q: I mean reports are sometimes inaccurate, right? A: For the most part, no.’).
United States v. Broca-Martinez, supra.
It went on to point out that
[e]ven if Officer Leal was not positive Broca-Martinez was uninsured, he cleared the bar for reasonable suspicion. An officer does not have to be certain a violation has recurred. See Castillo, 804 F.3d at 366. `This would raise the standard for reasonable suspicion far above probable cause or even a preponderance of the evidence, in contravention of the Supreme Court's instructions.’ Id.
United States v. Broca-Martinez, supra.
The court therefore held that “[f]or the foregoing reasons, we AFFIRM the denial of Broca-Martinez's motion to suppress and AFFIRM Broca-Martinez's conviction and sentence.”
United States v. Broca-Martinez, supra.