N.D.Ohio: Discovery of IP search software not permitted under Rule 16 after suppression denied; it won’t be coming up at trial

Defendant doesn’t get discovery of the Freenet software used to search for defendant’s IP address under the theory it might expose a problem with the search. This is really an attempt to inject the legality of the search into the trial, and that’s already settled. United States v. Popa, 2019 U.S. Dist. LEXIS 31350 (N.D. Ohio Feb. 27, 2019):

Defendant first argues that the inner workings of the Law Enforcement Freenet software might expose inaccuracies that would impeach Agent Anschutz’s search-warrant affidavit. ECF No. 23 at PageID#: 75-76. Consequently, he argues, the later-discovered evidence would necessarily be suppressed. Id. This argument confuses the motions at bar. A motion to compel under Rule 16 is not a motion to suppress. At trial, the jury will not be asked to assess the legality of the FBI’s search or the sufficiency of the evidence supporting the predicate search warrant. “[I]n the context of Rule 16 ‘the defendant’s defense’ means the defendant’s response to the Government’s case in chief,” not pretrial motions. Armstrong, 517 U.S. at 463; see United States v. Arambula, 82 F. Supp. 3d 1316, 1319 (D.N.M. 2014) (“‘[P]reparing the defense’ in this context deals exclusively with rebuttal of the government’s case-in-chief, not the preparation of affirmative defenses, much less challenging the sufficiency of the evidence that supported a warrant.”). Defendant’s first argument fails.

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