Monday, March 02, 2015

Tweets, Terroristic Threats and "True Threats"

For reasons we will get to in a moment, the State of Missouri charged Robert Metzinger with “making a terroristic threat under [Missouri Revised Statutes] § 574.115(4).”  State v. Metzinger, 2015 WL 790463 (Missouri Court of Appeals 2015). Section 574.115(4) makes it a “class A misdemeanor” to
communicate[] a threat to cause an incident or condition involving danger to life, communicates a knowingly false report of an incident or condition involving danger to life, or knowingly causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life: . . . [w]ith criminal negligence with regard to the risk of causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation.
State v. Metzinger, supra.
The charge against Metzinger was based on four tweets he sent via Twitter:
● October 21, 2013: Going to be tailgating with a # PressureCooker during games 3–4–5 in # STL during # WorldSeries. # STLStrong # GoCards # postseason from Springfield, MO.
● October 22, 2013: Putting my loft up for ridiculous `Boston-only’ rate on @airbnb for the # WorldSeries. Pressure cooker sold separately.
● October 22, 2013: The # WorldSeries will be another finish line not crossed by # Boston.
● October 25, 2013: Listening to the Offspring's `Bad Habit’ and the lyrics just ring true of what will go down very soon.
State v. Metzinger, supra.
After being charged, Metzinger filed a motion to dismiss the information pursuant to
Rule 24.04(b)(2). In his motion, [Metzinger[ claimed that `the information does not, and cannot, allege all essential elements of § 574.115’ because [his] `sarcastic posts on Twitter did not constitute “true threats” as a matter of law and cannot be punished by the State.’

More specifically, [he] argued that the information was insufficient because it failed to: `identify which tweets the State intends to argue were threatening’; allege that [he] communicated a `true threat’; and allege that [his] speech `created a substantial and unjustifiable risk of the evacuation of Busch Stadium.’ [Metzinger] stressed that his tweets `express[ed] insensitive sarcasm, competition, and overt trash talking’ in the excitement surrounding the Major League Baseball World Series, but did not communicate `any threat, let alone a “true threat.”’ (emphasis in original).
State v. Metzinger, supra.
The prosecution filed a response, “in which it identified the `four specific tweets that are relevant to this case’ and asserted that the information alleged `all essential elements of § 574.115.’” State v. Metzinger, supra.
On February 28, 2014, the trial judge held a hearing on Metzinger’s motion to dismiss. State v. Metzinger, supra.  At the hearing, Metzinger argued, among other things, that
the tweets failed to constitute a `true threat’ and argued that [he] was `protected by the 1st Amendment because it's not a threat.’ The State responded, among other things: `. . . the context of a tweet with Boston coming to the World Series, and mentioning pressure cooker, the same explosive device that was used, and saying the finish line won't be crossed, which is where the bomb was placed at the Boston Marathon, that makes this in the context a threat.’ Finally, the State advised the trial court that: `You can't joke about setting off a pressure cooker bomb after the Boston Marathon.’
State v. Metzinger, supra.
After hearing arguments from both sides, the trial judge said
I do not find any of the tweets, in totality, even if you throw the music lyrics on top of it, rising even remotely to the level of a true threat or an implied threat. . . .

These are untimely ramblings, that upon his inner circle advising him of the ridiculousness of them, he sought to pull them off prior to any intervention from any outside source. Therefore, I don't believe they're true threats or implied threats.
State v. Metzinger, supra.  The judge therefore dismissed the charges with prejudice, which meant the case was over. State v. Metzinger, supra.
The Court of Appeals began its analysis of the issues in this appeal by noting that, because the judge dismissed the case before a trial had started, “jeopardy” under the 5th Amendment’s prohibition on double jeopardy had not attached, so the judge’s ruling was appealable.  State v. Metzinger, supra.
The court went on to address the prosecution’s argument that the judge erred in dismissing the prosecution because the information
charged the essential elements of the offense and apprised [Metzinger] of the facts constituting the offense. . . . [He] contends in response that: `[t]his case is not—and never has been—about whether the charging document the State submitted mechanically recites the elements of the crime charged.’

The 6th Amendment of the United States Constitution and article I, section 18(a) of the Missouri Constitution guarantee a defendant the right `to be informed of the nature and cause of the accusation. . . .’ [Missouri Rule of Criminal Procedure] 23.01 provides that the indictment or information shall `[s]tate plainly, concisely, and definitely the essential facts constituting the elements of the offense charged. . . .’ Rule 23.01(b)(2). `Measured by these standards, the test of the sufficiency of an indictment is whether it contains all the essential elements of the offense as set out in the statute and clearly apprises defendant of the facts constituting the offense in order to enable him to meet the charge and to bar further prosecution.’ State v. Reese, 697 S.W.2d 635 (Missouri Court of Appeals 1985). . . . 

Generally, an information or indictment is sufficient if it contains all essential elements of the offense as set out in the statute creating the offense. . . . However, where `the statute uses generic terms in defining the offense, it is necessary to recite sufficiently the conduct constituting the offense in order to accomplish the purpose of the indictment or information.”  In addition, an . . . information is generally sufficient `if it is substantially consistent with the forms of indictments or informations which have been approved by the Missouri Supreme Court.’Griffin v. State, 185 S.W.3d 763 (Missouri Court of Appeals 2006). . . .     
State v. Metzinger, supra.
The court then explained that, in this case, the information “purported to charge [Metzinger] with the class A misdemeanor of making a terrorist threat in violation of § 574.115.“ State v. Metzinger, supra. It went on to note that the “Missouri Approved Charge” for this offense states, “in relevant part,” that the
(Grand Jurors) (Circuit Attorney) (Prosecuting Attorney) of the (City) (County) of, State of Missouri, charge(s) that the defendant, in violation of Section 574.115, . . .  committed the (class C felony) (class D felony) (class A misdemeanor) of making a terroristic threat, punishable upon conviction under [ Insert appropriate punishment provision. See Notes on Use 2.], in that (on) (on or about) [ date ], in the (City) (County) of, State of Missouri, the defendant [ Insert one of the following. Omit brackets and number] knowingly
communicated to [ Identify person, place, organization, etc. to whom threat was communicated. ] a threat to cause [ Describe incident or condition threatened. ], (an incident) (a condition) involving a danger to life, by [ Describe how threat was communicated.],

with criminal negligence with regard to the risk of causing the (evacuation) (quarantine) (closure) of (any portion of) [ Describe building or place.], (a building) (an inhabitable structure) (a place of assembly) (a facility of transportation).
State v. Metzinger, supra.
The information filed against Metzinger alleged that
on or between October 21, 2013 and October 25, 2013, in the City of St. Louis, State of Missouri, the defendant knowingly communicated to the public a threat to cause an explosion, an incident involving danger to life, by tweeting repeated messages involving the detonation of an explosive device, and the defendant did so with criminal negligence with regard to the risk of causing the closure of any portion of Busch Stadium, a place of assembly.
State v. Metzinger, supra.
In his motion to dismiss the information, Metzinger argued,
among other things, that the information was insufficient because the State failed to include the tweets upon which the information was based. More specifically, [he] argued: `Without [the tweets], the information is insufficient in that it does not clearly apprise defendant of the facts constituting the offense so as to enable defendant to prepare a defense to bar future prosecution for the same offense, and to permit the trial court to decide whether sufficient facts are alleged to support a conviction.’ (internal quotation omitted). We need not determine whether the words `tweeting repeated messages involving detonation of an explosive device’ clearly apprised Defendant of the essential facts constituting the charged offense because the State remedied any alleged deficiency by providing the specific language at issue in its response to Defendant's motion to dismiss.
State v. Metzinger, supra.
The court went on to explain that
[n]either the State nor [Metzinger] disputes that [he] tweeted the statements that formed the basis for the charge of making a terrorist threat. The dispute is whether the tweets constituted the type of threatening communication that the legislature intended to and may, consistent with the Missouri and U.S. Constitutions, criminalize. If . . . the tweets did not, as a matter of law, constitute `true threats,’ the information is fatally deficient for failure to allege an essential element of a crime under § 574.115 -- `communicates a threat to cause an incident or condition involving danger to life.’ (emphasis added). Point one is denied.
State v. Metzinger, supra.
The court then proceeded to address Metzinger’s argument that “the communications were not true threats because the tweets were: (1) facially non-threatening; (2) not directed at an individual or identifiable group; and (3) posted on Twitter, `the modern epitome of a public forum.’”  State v. Metzinger, supra.  It began its analysis by explaining that, in Virginia v. Black, 538 U.S. 343 (2002), the U.S. Supreme Court
reaffirmed that the 1st Amendment allows states to ban `true threats.’ . . . However, the Court provided minimal guidance to courts tasked with the challenge of distinguishing `true threats’ from protected speech. . . .

In Black, the Court held that `”[t]rue threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat.’ Virginia v. Black, supra. . . . The Court further explained that `[i]ntimidation in the constitutionally prescribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.’ Virginia v. Black, supra.

Following Black, federal courts have held that an indictment sufficiently charges the defendant with the crime of transmitting a `true threat’ in violation of 18 U.S. Code § 875(c) when it alleges that the defendant communicated a statement that `a reasonable jury could find . . .  expressed an intent to injure in the present or future.’ U.S. v. Stock, 728 F.3rd (U.S. Court of Appeals for the 3rd Circuit 2013). See also U.S. v. Martinez, 736 F.3d 981 (U.S. Court of Appeals for the 11th Circuit 2013) (`true threats’ are statements that contain a `serious expression of violent intent’).
State v. Metzinger, supra.
The Court of Appeals then took up the issue of whether Metzinger’s tweets were “true threats”, noting that “[n]either the Missouri legislature nor the Missouri Supreme Court has defined the term `threat as it is used in § 574.115.”  State v. Metzinger, supra.
But it also noted that another district of the Missouri Court of Appeals addressed this issue in In the Interest of C.G.M., II v. Juvenile Officer, 258 S.W.3d 879 (2008): “In C.G.M., the Western District held that a statement is not a true threat when a listener could not reasonably consider the statement to be a serious expression of an intent to cause injury to another.”  State v. Metzinger, supra.
This court then held that
[h]ere, as in C.G.M., the language of the tweets at issue demonstrated on their face that they were not serious expressions of an intent to cause injury to another. The parties do not dispute that [Metzinger] published the statements on Twitter during the 2013 World Series. In his tweet of October 21, 2013, [he] referred to `tailgating . . . during games 3–4–5’ and included the following: `# WorldSeries. # STLStrong # GoCards # postseason’ . . .

[His] tweets of October 22, 2013 also contained `# WorldSeries.’ [Metzinger’s] tweets facially reveal that they were made in the context of sports rivalry, an area often subject to impassioned language and hyperbole. While [his] references to pressure cookers and allusions to the Boston Marathon bombing were tasteless and offensive, the context of his tweets was such that a reasonable recipient would not interpret them as serious expressions of an intent to commit violence. . . .
State v. Metzinger, supra.
The Court of Appeals therefore held that
the trial court properly considered the language of the four tweets and, under the rather unique circumstances of this case, correctly determined, as a matter of law, that the four tweets did not constitute `true threats’ and, therefore, were improperly criminalized. Accordingly, the information did not charge the offense of making a terrorist threat within the meaning of § 574.115 and the trial court did not err in dismissing the information for insufficiency. Point three is denied.
State v. Metzinger, supra.  It therefore affirmed the trial judge’s ruling. State v. Metzinger, supra.
You can, if you are interested, read more about the case in the articles you can find here and here.


Friday, February 27, 2015

The Lottery Terminal, Computer Crime and "Authorization"

After Caryn Aline Nascimento was “convicted of one count of aggravated first-degree theft and one count of computer crime”, she appealed.  State v. Nascimento, 2015 WL 465188 (Court of Appeals of Oregon 2015).  On appeal, Nascimento raised a
single assignment of error to the trial court's denial of her motion for judgment of acquittal of the computer-crime count. Defendant argues that she did not access the lottery terminal `without authorization,’ as required by Oregon Revised Statutes 164.377(4), because, as part of her duties at the store, she was authorized by the store manager to access the machine to sell lottery tickets to paying customers. 
State v. Nascimento, supra.
The Court of Appeals began its analysis of Nascimento’s argument by explaining that in
October 2007, [she] was hired to work at the deli counter in a convenience store. The store had a touch-screen lottery terminal that produced draw-game tickets and was connected by phone line to the Oregon Lottery network. From the terminal, a clerk could print out a ticket for a selected game, and also could print ticket-sales reports.

The store manager trained [Nascimento] on the use of the lottery terminal and authorized [her] to sell lottery tickets to, and validate tickets for customers, because deli clerks would assist at the counter when the counter employee was busy or on break, even though it was not their job. The general manager testified, however, that operating the lottery terminal and cash register was not part of [Nascimento’s] job description as a deli clerk and that [she] did not have authorization to use the terminal. Store policy prohibited employees from purchasing lottery tickets or validating their own lottery tickets while on duty.

About a year after [Nascimento] was hired, the store manager fell a few months behind in reconciling daily lottery ticket sales with the store's cash receipts. In February 2009, she discovered shortfalls in cash receipts for lottery sales of Keno tickets between November 2008 and February 2009, which prompted the general manager to investigate his records and involve the police.

The investigation uncovered that large shortfalls and high-dollar wagers on Keno occurred only during [Nascimento’s] shifts. The store's surveillance video showed that, when no one was around, [she] would leave the deli counter and print out and pocket lottery tickets from the lottery terminal. One of the high-dollar winning tickets printed during [Nascimento’s] shift was redeemed by her by mail, and others were redeemed by her at a local grocery store. 
State v. Nascimento, supra.
The prosecution’s brief on appeal provides more detail on the facts, noting that
[Nascimento] worked as a clerk at the deli counter of the Tiger Mart, a gas station mini-mart. . . . Under her job description set by the store owner, deli clerks were not authorized to operate the store cash registers or the Oregon lottery machines located behind the counter in the store. . . .Unknown to the store owner, the store manager allowed deli clerks occasionally to operate the cash registers and lottery machines as backups when register clerks took breaks or when the store was unusually busy. . . . Company policy prohibited on-duty employees from purchasing or redeeming lottery tickets during their shift. . . .

About one year after [Nascimento] began working, her store manager fell significantly behind in reconciling the daily lottery sales with store cash receipts. . . . Eventually, internal auditing revealed significant shortages in receipts from Keno lottery games - a total of $16,923 between November 2008 and February 2009. . . . Before that period, the store experienced occasional shortages in lottery receipts, but they typically were for less than $20. . . . During the 11/08 to 2/09 span, daily shortages just from Keno sales ranged from $150 to $1300. . . .

The store owner reviewed employee timecards and some store video surveillance tapes and determined that the `severe shortages’ occurred only on Keno lottery receipts during shifts when [Nascimento] had been working. . . . Several of the surveillance videos showed [her] go from her work station behind the deli counter to the cash register and lottery machine (only at times when the register cashier was absent), use the lottery machine, and pocket the tickets. . . . The store owner confronted [Nascimento] with his suspicions and the surveillance videos, and she denied stealing any tickets; the store owner immediately fired her. . . .

The store owner contacted police to investigate these suspected thefts. . . . [Oregon State Police] Detective Owren, of the lottery security section, examined lottery records, store records, and store surveillance videotapes. . . . Lottery records showed an unusually large number of Keno ticket sales during [Nascimento’s] shifts - many of them maximum individual wages of $100 per ticket. . . .

Many of those tickets were printed out back-to-back within seconds of each other, indicating that the same person had printed them. . . . All 82 of the $100 Keno tickets in this 4-month period were printed during [her] shifts. . . . No pattern of large sales of Keno tickets was seen during the times [Nascimento’ was not working at the store. . . .

Detective Owren determined that some of the Keno tickets from the Tiger Mart were redeemed by mail, with the redeemer listing [Nascimento’s] name, address, and Social Security number. . . . Winning tickets paying out more than $600 must be redeemed by mail or in person from the lottery office; those with smaller prizes can be redeemed from any lottery retailer. . . . Clerks at a local Thriftway store near [her] home (and where [Nascimento’s] daughter formerly worked) reported that [she] cashed large lottery tickets at their store several times. (Tr 217, 253, 257). Based on his investigation, Detective Owren believed the loss in lottery sales to the Tiger Mart was $10,030.
Respondent’s Answering Brief, State v. Nascimento, 2012 WL 6892903.
Nascimento was, as noted above, later charged with “one count of computer crime under Oregon RevisedStatutes 164.377(4),” which say that
[a]ny person who knowingly and without authorization uses, accesses or attempts to access any computer, computer system, computer network, or any computer software, program, documentation or data contained in such computer, computer system or computer network, commits computer crime.
State v. Nascimento, supra.
At her trial, when the prosecution rested its case, Nascimento
moved for a judgment of acquittal on the computer-crime count, arguing that her use of the lottery terminal was not `without authorization,’ because she had `implied if not direct authorization to use the machine * * *. And clearly [her] use of the lottery machine itself was with authorization.’ The trial court denied [her] motion.
State v. Nascimento, supra.
As the Court of Appeals noted, in Nascimento’s appeal she
reprises her argument that she was `authorized,’ as that word is used Oregon Revised Statutes 164.377(4), `to use the lottery computer at [the store] because she was specifically given permission to do so by her direct supervisor, trained to do so by her supervisor, and expected to do so as part of her work duties.’

[Nascimento] argues that the statute cannot be applied to her conduct because `Oregon Revised Statutes 164.377(4) does not criminalize committing theft on a computer which a person is otherwise authorized to access’; rather, Nascimento asserts that that act is criminalized only under Oregon Revised Statutes 164.377(2)(c), a crime for which [she] was not charged. [Nascimento] argues that subsection (4) is expressly directed at unauthorized use or access of a computer, that is, the use of the device itself is unauthorized -- it is not directed at taking unauthorized actions on a computer that the person otherwise has authorization to access.
State v. Nascimento, supra (emphasis in the original).
The court went on to explain that the prosecution
does not deny that [Nascimento] had limited, implicit authorization from the store manager to access the lottery terminal to sell tickets to paying customers. However, the state responds that a jury could reasonably conclude that [her] use of the lottery machine was `without authorization’ because `she had no authorization to use the lottery computer to purchase a lottery ticket for herself during her work shift—much less to steal a lottery ticket by printing it and not paying for it.’

The state also points to the legislative history of § 164.377, which it argues demonstrates that the legislature intended to `criminalize instances where someone had authorization to use part of a computer system for some legitimate purpose but instead accessed other portions of the system.’ Citing Tape Recording, House Committee on Judiciary, Subcommittee 1, HB 2795, May 6, 1985, Tape 576 (statement of Sterling Gibson, General Telephone Co.).
State v. Nascimento, supra.
The Court of Appeals goes on the explain that the case,
as argued by [Nascimento], boils down to whether Oregon Revised Statute 164.377(4) encompasses conduct that (1) only involves a person accessing a device itself without authorization or (2) also encompasses using a device, which the person otherwise has authorization to physically access, in a manner contrary to company policy or against the employer's interests.

Under the circumstances of this case, however, we need not resolve that issue. There is evidence in the record that [Nascimento’s] store manager gave [her] limited authorization to physically access the lottery terminal to only sell tickets to, and validate tickets for, paying customers and only when the counter employee was not available to do so.

This is not the case that [Nascimento] tries to make it out to be. This is not a case where [she] had general authorization to be on a computer to carry out her duties, but then used that computer in a manner that violated company policy—such as, to use [her] example, by playing solitaire during work hours.

For [Nascimento’s] duties, the lottery terminal had but one function: to sell and validate lottery tickets. There was evidence from which the jury could conclude that she was authorized to access the physical device itself—the lottery terminal—only to serve paying customers. Thus, even taking [her] construction of the statute, there was sufficient evidence in the record from which the jury could rationally conclude that [Nascimento] accessed the lottery terminal without authorization.
State v. Nascimento, supra.

You can, if you are interested, see a photo of Nascimento in the news story you can access here, which also explains that she was sentenced to “32 months in prison for stealing from two separate local employers.”

Wednesday, February 25, 2015

The 4th Amendment, the Search Warrant, the Network Investigation Technique

After Gary Reibert was charged with “with the receipt and attempted receipt of child pornography (Count I) in violation of 18 U.S.Code § 2252A(a)(2) and (b)(1) and the accessing of a computer in interstate commerce with the intent to view child pornography (Count II) in violation of 18 U.S. Code § 2252A(a)(5)(B) during the period of November 16, 2012, and December 2, 2012”, he filed a motion to suppress certain evidence.  U.S. v. Reibert, 2015 WL 366716 (U.S. District Court for the District of Nebraska 2015).
The motion to suppress “sought to suppress evidence seized as a result of the issuance of a warrant to deploy a Network Investigative Technique (NIT) on a child pornographic website”.  U.S. v. Reibert, supra.  The opinion explains that on November 15, 2012,
Federal Bureau of Investigation Special Agent Jeffrey Tarpinian applied for and obtained a search warrant permitting the deployment of a NIT on a website. . . . Tarpinian noted the investigation concerned alleged violations of several statutes related to child pornography. . . .

Tarpinian explained Website A operated on an anonymity network, `The Onion Router’ (Tor), which protects users' privacy by masking a user's actual IP address. . . . The affidavit detailed an investigation undertaken to find and access Website A on the Tor network. . . . 

Tarpinian averred Website A is `dedicated to the advertisement and distribution of child pornography and the discussion of matters pertinent to the sexual abuse of children,’ extensively described the content of Website A, and explained how users accessed and used Website A. . . .

Tarpinian explained that each time a user of Website A accessed any page in particular sections of Website A, the NIT sent one more communications to the user's computer which would then cause the receiving or activating computer to deliver to a computer known to or controlled by the government data that would help identify the computer accessing Website A, its location, its user, and other information about the computer. . . . Tarpinian disclosed the specific information the NIT would gather and explained the limits of the NIT. . . .
U.S. v. Reibert, supra. 
It goes on to explain that on April 4, 2013, FBI Special Agent Andrea R. Kinzig
applied for and obtained a residential search warrant for Reibert's home at 1309 Kenton Way, Troy, Ohio 45373. . . . In the affidavit in support of the warrant, Kinzig provided extensive detail regarding an investigation into child pornography. . . .

Kinzig explained an internet account with IP address 50.102.45.107 was identified as accessing Website A. . . . [He] described how Website A operated, how individuals accessed it, and what messages and images Website A contained, as in the type of and quantity of child pornography. . . . Further, Kinzig explained how law enforcement officers were able to investigate users of Website A. . . .

[L]aw enforcement discovered the user with the specifically identified IP address accessed pages on Website A that contained twelve separate message threads consisting approximately of 288 images of minors, at least one hundred of which consisted of child pornography images. . . . The content of four of the message threads were detailed extensively, including descriptions of the images found within. . . .

Subsequently, law enforcement learned the IP address was assigned to Reibert's home address. . . . A search on the internet revealed Reibert lived in the Dayton, Ohio, area and he possessed special skills, abilities, and expertise in the area of computer systems. . . . Kinzig stated in her experience, individuals who access child pornography maintain hard copies of child pornographic material. . . .

Kinzig stated the individual using the target IP address displayed characteristics common with individuals who access with intent to view child pornography. . . . The affidavit extensively described how child pornography can be accessed and maintained on computers and related devices. . . . 

Kinzig averred there was probable cause to believe evidence of crimes related to child pornography would be located at the subject premises. . .
U.S. v. Reibert, supra.  The news story you can find here provides background on “Website A” and the events that led to Reibert’s being apprehended.
In moving to suppress the evidence the government acquired by using the NIT, Reibert argued that he was
entitled to a Franks hearing on the issue of whether the affidavit in support of the warrant to employ the NIT failed to include evidence that negated probable cause. He also argues the government conducted a warrantless search of Reibert's computer by employing a NIT and contends he was entitled to present testimony of an expert, Tami Loehrs, on this issue. Further, he states the search warrant permitting the NIT was a general warrant and did not permit a search of Reibert's computer, nor was it a warrant authorizing a search of Reibert's computer.
U.S. v. Reibert, supra. 
As the opinion notes, the affidavit an officer submits to obtain a search warrant must
contain probable cause of four ingredients: time, crime, objects, and place. . . . When reviewing the sufficiency of an affidavit `[a] totality of the circumstances test is used to determine whether probable cause exists. Courts should apply a common sense approach and . . . determine whether probable cause exists.’  U.S. v. Hager, 710 F.3d 830 (U.S. Court of Appeals for the 8th Circuit 2013). . . .
U.S. v. Reibert, supra. 
As this site explains, a “Franks Hearing is a hearing to determine whether a police officer's affidavit used to obtain a search warrant that yields incriminating evidence was based on false statements by the police officer.” IF the defendant shows that the officer’s affidavit included one more false statements and IF the false statements were essential to establishing probable cause, the defendant will be allowed to prove that at a hearing.  If the defendant succeeds in that, then the warrant will be voided and evidence obtained by executing it will be suppressed.
The U.S. District Court Judge rejected Reibert’s Franks argument, holding that the
affidavit in support of the NIT warrant contained sufficient probable cause to issue the NIT warrant. In the affidavit, Tarpinian averred, with detail, the contents of a specific website which contained messages and images related to the sexual exploitation of children and the offenses related to the viewing of such material. . . . Tarpinian explained how a user could access the material. . . .

Tarpinian stated the government would employ a NIT to identify the activating computer accessing the information, its location, and potentially the user of the computer. . . . Tarpinian then provided an explanation of how the NIT functions, the NIT's purpose and necessity, and the information the NIT would collect from activating computers. . . .

Further, Tarpinian explained, based on his training and experience, he believed there existed, on the activating computers, evidence of criminal activity related to the sexual exploitation of children. . . . The NIT was not a general warrant lacking particularity as it noted the specific offenses alleged, described the places to be searched, and described the information to be seized. Upon review of the totality of the circumstances, there existed probable cause to issue the NIT warrant. Contrary to Reibert's argument the NIT violated his right to be secure from unreasonable searches and seizures; law enforcement deployed the NIT pursuant to a search warrant supported by probable cause.
U.S. v. Reibert, supra. 
When Reibert filed his motion to suppress, the U.S. District Court Judge referred it to a U.S. Magistrate Judge, who drafted a Report & Recommendation in which the Magistrate Judge analyzed Reibert’s arguments for suppressing the evidence.  U.S. v. Reibert, supra.  The Magistrate Judge submitted the Report & Recommendation to the District Court Judge, who agreed with
the judge's conclusion that Reibert failed to make the substantial preliminary showing that law enforcement intentionally or recklessly omitted information from the warrant affidavit so as to entitle him to a Franks hearing. [Reibert] argues, in effect, that the government did not disclose in affidavits that it had installed a `trojan, in essence a virus, onto [defendant Reibert's] computer.’ . . .

[Reibert] made an offer of proof on the expert testimony it would proffer in support of that contention. . . . The court has reviewed the offer of proof and agrees with the magistrate judge that it does not satisfy the heavy burden of showing an intentional falsehood or omission. The court finds no error in the magistrate judge's denial of defendant Reibert's motion for a Franks hearing.
U.S. v. Reibert, supra. 
As to Reibert’s argument that the
expert testimony of Tami Loehrs, a purported computer forensics expert, would establish that the court-authorized deployment of the NIT constituted a warrantless search of his computer `that went into [the defendant's] house, modified the workings of his computer, in order to send back data to the government.’ . . . The magistrate judge sustained the government's objection to the expert's testimony on Daubert grounds, but allowed an offer of proof with respect to her testimony. . . .

The court finds no error in the magistrate judge's Daubert ruling. Loehrs conceded that she `had no idea’ whether `the investigative technique returned any more information than it was authorized.’ . . . She also conceded that flash applications are present on many websites and flash applications can reveal the IP and user. . . . Even if allowed, her testimony does little to undermine the information contained in the affidavit that supports the NIT warrant.
U.S. v. Reibert, supra. 

The District Court Judge therefore denied Reibert’s motion to suppress.  U.S. v. Reibert, supra.