12-01-2024, 07:42 PM
"In this case, police obtained a search warrant for every electronic device in the home Daugherty shared with his parents. This warrant was based on a threat made on an internet message board without first establishing the post was made by Daugherty. After it became clear it was not Daugherty who made the threatening post, police handed off the devices to the FBI to conduct a search, despite having neither probable cause nor a valid warrant. Then, almost two years after this warrantless search uncovered suspected contraband, the FBI sought a second warrant that laundered the prior illegal acts of local police and the FBI by claiming that the contraband was found in plain view while executing a valid state warrant. These numerous constitutional and statutory violations require suppression."
"On March 16, 2018, an anonymous person using the name "Mark" provided a tip to the FBI stating "I don't know if this is real or not but this guy is crazy with numerous arrests (Todd Daugherty) but he just posted to a message board. 'FUCK YOU YOU STALKING MOTHER FUCKERS. I'LL SHOW YOU WHO IS AUSTIC. I'LL GO TO FUCKING MEMORIAL ELEMENTARY SCHOOL AND MAKE SANDY HOOK LOOK LIKE A SUNDAY SCHOOL PICNIC."" FBI 1057 9-SI-2610873 See FBI 1057. (Exhibit A). The statement was conspicuously posted under username "Todd Daugherty N90GL" (N90GL is Daugherty's ham radio call sign) and included two photos of Daugherty holding a handgun. Although this anonymous tipster provided their location as the United States, their internet protocol ("IP") address' resolved to France, likely because the tipster was utilizing the Tor network2 or a proxy server3 to mask their identity and physical location. See id. No investigation was made into the anonymous tipster.
Further calling into question the reliability of the tip is the nature of the site on which it was posted, www.hateandflame.com. This website is full of users posting anonymously, under false names, and impersonating one another or historical figures. Hateandflame.com, March 6-20, 2018 (Exhibit x). For example, some of the usernames include: "Ernist Hemingay", "Buddy Che Hinton", "Harry Tard Snortz", "Loyd Davies, Timelord", "THE PINKLE WHEEZLE”, “STAINLESS STEEL FUCKBOT" or just "". Id. Furthermore, people on the forum openly discuss doxing", spreading lies about users they are sparring with on the website, and victimizing one another in real life. Id. For example, on March 10, 2018, one user, "Hal Turner", indicates that someone sent "hookers and pizza" to his home without his consent. Id. Another user replies that the hookers and pizza were supposed to be sent to "Toad's place" (Toad is a name used on the site to belittle Todd Daugherty). Id. Another user "NewsGuy, Real Deal" posted "everytime that N90GL files a complaint against the board I write he neighbors to tell them that he is a sexual predatory to watch their kids." Id. The forum is also rife with claims that users are posting under fake names and using proxy servers to hide their identities and physical location. Id. In short, the usernames on hateandflame.com are obviously unreliable, the atmosphere clearly toxic, and users are openly engaging in tactics designed to harm one another's reputations in real life. See id. Furthermore, the individuals on the forum clearly had extensive knowledge of Todd Daugherty's personal life. They were aware of and used his ham radio call sign and his twitter handle. See id. A user operating under the name "Tom Randal" posted his home address. Id. They taunted him for collecting Japanese dolls. Id. The user "Loyd Davies, Timelord" accused him of plagiarism using his ham radio call sign, N90GL. Id. All of this was readily apparent from posts made on the days leading up to March 17, 2018.
On March 17, 2018, officers Dickey and Thomason visited with Daugherty at his home regarding the threatening post bearing his name and photograph. See Report of Officer C. Dickey, at pg. 1 (Exhibit B). After being transported to the Taylorville Police Department, Daughtery denied making the post, explained to them that someone had been impersonating him online, and stated that he personally did not post on hateandflame.com. Id. He also explained he believed a user "squashtoad" was the one impersonating him. Id. Thomason recognized the photographs on the post of Daugherty holding a gun from a previous incident, and Daugherty explained he had previously posted them on a blog and so they were publicly available. Id. Despite the fact that the identity of the person who reported the threat to the FBI could not be confirmed, and that there was no evidence that Daugherty was responsible for the post, he was arrested. No investigation was made into "squashtoad" or the very likely possibility that someone had simply posted using Daugherty's name as a form of harassment or swatting." Subsequent investigation further supported Daugherty's claims that the posts were made by someone impersonating him. On March 18, 2018, Todd Daugherty's brother Jeremy Daugherty contacted the Taylorville Police Department and provided screenshots and links to hateandflame demonstrating that individuals were making posts purporting to be Todd Daugherty while he was in police custody. See Jeremy Daugherty emails, (3/18/2018) (Exhibit C). On March 19, 2018, Jeremy Daugherty contacted FBI special agent Alaina Arnold to report that his brother had been set up by someone,likely named Bryan Crow, who had been harassing his brother online and over ham radio communications for years. See SA Arnold 302, 7/2/18 (Exhibit D). Arnold then called the State's Attorney, Mike Havera, who indicated that he had spoken to a Canadian man named Karl Madera who also said Todd Daugherty was being set up by someone named Bryan Crow. Id. Havera informed Arnold he was waiting on further information before dropping the charges. Id. On March 19, 2018, police obtained a warrant for Computer Techniques Inc. (hereinafter the "CTI Warrant") (the internet service provider for Daugherty) for "any and all electronic data transfers and/or records..." related to Daugherty's account. They obtained these records on the same day. Warrant Return, 18-MR-37 (Exhibit E). The records showed Daugherty's MAC address to be EC:4F:82:29:B4:03 and his IP address was 72.9.123.215. Id.
On March 21, 2018, officer Christian Nelson obtained a warrant for Daugherty's home (hereinafter the "Device Warrant") to seize "any and all computers... including but not limited to hard disk drives, floppy disks, compact discs, DVD's USB devices... and any and all information and data stored in the form of magnetic or electronic coding on computer media or media capable of being read by a computer..." Search Warrant, 18-MR-40 (Exhibit F). The Device Warrant further provided "authority to analyze and search any magnetic or optical media seized for the relevant evidence as outlined in this search warrant..." The Device Warrant did not mention what electronic evidence or data the police could seize pursuant to this warrant, nor did it name the crime for which the police had probable cause. Instead, it allowed an unlimited search of all of the devices. Furthermore, it did not expressly incorporate the affidavit into the warrant terms. Pursuant to this warrant, police seized fifteen items: a black and blue Seagate hard drive, serial number NA7DWTK4; one Seagate 1TB hard drive, serial number 5vPG12DV, a Cyperton computer tower, serial number GA-78LMT-USB3; a Compaq computer, serial number CNH4520P00; a Gateway 7320 laptop, serial number N3451-710-03782; a Gateway computer, serial number PTE590XD01960595B2700; three DVD-Rs, one CDR, one CTI router, and four assorted USB drives. Warrant Return, 18-MR-40.
The affidavit for the Device Warrant stated that the "FBI Springfield office received a tip that Todd E. Daugherty (M/W D.O.B. 07/05/1968 posted on internet social forum Hateandflame.com the following comment 'FUCK YOU YOU STALKING MOTHER FUCKERS. I'LL SHOW YOU WHO IS AUSTIC. I'LL GO TO FUCKING MEMORIAL ELEMENTARY SCHOOL AND MAKE SANDY HOOK LOOK LIKE A SUNDAY SCHOOL PICNIC." The affidavit also stated that the post was "issued by someone" with the username "N90GL", which was Daugherty's ham radio call sign. The affidavit also stated that his "profile picture" and the post included the same photos of Daugherty holding a handgun. No other explanation was provided about how they knew that was his profile. No explanation was provided about the website, how one could set up a profile, make posts, or about its user base, or its contents. No IP address was provided linking Daugherty to the post. Furthermore, the affidavit did not explain that the tipster intentionally obscured their identity through the Tor network. Nor did the affidavit explain that multiple people indicated that Daugherty had been set up. Significantly, the affidavit did not even include that posts continued to appear under his name while he was in custody and had no access to electronic devices. Instead, the Device Warrant affidavit contained conclusory assertions that it was Todd Daugherty's account that made the post.
On March 29, 2018, officer Christian Nelson obtained warrant for NFSN inc., the company W hosting the website www.hateandflame.com (hereinafter the "Hateandflame Warrant"). Search Warrant, 18-MR-45 (Exhibit G). In response to that warrant, police learned that neither Daugherty's IP address nor his MAC address had been used to post on hateandflame.com during the time of the threatening post. Warrant Return, 18-MR-45 at p. 6-7 (Exhibit G). Instead, they learned that the IP address responsible for the threatening post was associated with the TOR network and was therefore anonymous. Id. Further police learned that "90% [of people posting on the website] use tor or proxy sites...No registration is required. No email address is checked. Impersonation is part of the status quo for the board... anybody can post as anybody else." Id. at p. 5.
On April 4, 2018, despite knowing that they definitively lacked probable cause to search the devices they seized from Mr. Daugherty's home, the Taylorville Police Department enlisted the FBI to conduct search of the devices that remained in their custody. See SA Arnold 1057, 4/6/18. On April 11, 2018, Arnold seized the devices from the Taylorville Police Department and placed them in an FBI storage facility. Chain of Custody Form, 343 G-SI-2610873, pg. 1-5. On April 16, 2018, the State's Attorney filed a motion to dismiss the charges against Daugherty. See Motion to Dismiss, 18-CF-62 (April 16, 2018) (Exhibit H). The motion was based on the following facts: (1) the website used to disseminate the threat did not require any login credentials, (2) while Daugherty was in custody more messages appeared under his name, (3) posts on the website were made by people impersonating "judges, the president, and other such individuals" (4) Daugherty's internet activity have shown nothing to implicate him in the case. Id. The court granted the motion and specifically stated "[a]ny warrants or summonses previously issued are hereby quashed Order of Dismissal (April 16, 2018) (Exhibit I). The case was officially dismissed on the record and all warrants quashed by 11:32 a.m. See People v. Daugherty 18-CF-62, Tr. (April 16, 2018) (Exhibit J). Daugherty was released the same day. Upon his release from jail on April 16, 2018 and within the following weeks, Daugherty and his father both demanded return of his devices from the Taylorville Police Department and the State's Attorney.
However, none of the devices were returned, nor were they given any formal denial of their request or a justification for the police retaining the devices. Meanwhile, on April 16, 2018, as the case against Daugherty was being dismissed and the warrants quashed, FBI agent William O'Sullivan removed the devices from evidence and conducted an inventory. See CART Examination Notes 343G-SI-2610873 pg. 1 (Exhibit K). Three days after the warrant was quashed he began the process of extracting the devices pursuant to the invalid Device Warrant. See Id.; see also Chain of Custody Form, 343G-SI-2610873, pg. 1-5 (Exhibit L). On April 23, 2018, a week after the warrant had been quashed and therefore was no longer valid, O'Sullivan began to search the device. See CART Examination Notes 343G-SI-2610873 pg. 3 (Exhibit K). During that warrantless search, O'Sullivan found what he noted what appeared to be a computer-generated image of a minor child with an adult male penis in his mouth. Id. Approximately two years later, despite no additional evidence against Daughtery emerging, the evidence seen during this warrantless search would be used as the basis for a federal search warrant. See Warrant Application, 20-MJ-3023 (Exhibit M).
On March 2, 2020, Special Agent Anthony Wright applied for a warrant (hereinafter the "Federal Warrant") to search the following eight devices: a black and blue Seagate hard drive, serial number NA7DWTK4; a Cyperton computer tower, serial number GA-789MT-USB38; a Compaq computer, serial number CNH4520P00; a Gateway 7320 laptop, serial number N3451-710-03782; and four assorted USB drives. The affidavit for the Federal Warrant stated only that the devices were in the "lawful possession of the FBI" because they were seized from Daugherty based on a search warrant that allowed for a "search and seizure of any and all computers..." Id. at ¶ 6. The affidavit then stated that "Examiner William O'Sullivan found suspected child pornography on the black and blue Seagate desktop hard drive bearing serial number NA7DWTK4..." specifically, a "visual depiction of a three to five-year-old with an adult male's penis in his mouth." Id. at ¶ 9. The affidavit did not explain that O'Sullivan recognized it to be a computer-generated image. See id. Nor did the affidavit provide any other relevant information about the state case. Specifically, the affidavit omitted: (1) that the case against Daugherty had been dismissed for a lack of probable cause, (2) that the search by O'Sullivan had been conducted after the dismissal of the case and the quashing of the warrant, and (3) a copy of the allegedly valid Device Warrant upon which that search was conducted."
People of the State of Illinois v Todd E Daugherty
Motion to Suppress (page 1 - 6) (2024)
"On March 16, 2018, an anonymous person using the name "Mark" provided a tip to the FBI stating "I don't know if this is real or not but this guy is crazy with numerous arrests (Todd Daugherty) but he just posted to a message board. 'FUCK YOU YOU STALKING MOTHER FUCKERS. I'LL SHOW YOU WHO IS AUSTIC. I'LL GO TO FUCKING MEMORIAL ELEMENTARY SCHOOL AND MAKE SANDY HOOK LOOK LIKE A SUNDAY SCHOOL PICNIC."" FBI 1057 9-SI-2610873 See FBI 1057. (Exhibit A). The statement was conspicuously posted under username "Todd Daugherty N90GL" (N90GL is Daugherty's ham radio call sign) and included two photos of Daugherty holding a handgun. Although this anonymous tipster provided their location as the United States, their internet protocol ("IP") address' resolved to France, likely because the tipster was utilizing the Tor network2 or a proxy server3 to mask their identity and physical location. See id. No investigation was made into the anonymous tipster.
Further calling into question the reliability of the tip is the nature of the site on which it was posted, www.hateandflame.com. This website is full of users posting anonymously, under false names, and impersonating one another or historical figures. Hateandflame.com, March 6-20, 2018 (Exhibit x). For example, some of the usernames include: "Ernist Hemingay", "Buddy Che Hinton", "Harry Tard Snortz", "Loyd Davies, Timelord", "THE PINKLE WHEEZLE”, “STAINLESS STEEL FUCKBOT" or just "". Id. Furthermore, people on the forum openly discuss doxing", spreading lies about users they are sparring with on the website, and victimizing one another in real life. Id. For example, on March 10, 2018, one user, "Hal Turner", indicates that someone sent "hookers and pizza" to his home without his consent. Id. Another user replies that the hookers and pizza were supposed to be sent to "Toad's place" (Toad is a name used on the site to belittle Todd Daugherty). Id. Another user "NewsGuy, Real Deal" posted "everytime that N90GL files a complaint against the board I write he neighbors to tell them that he is a sexual predatory to watch their kids." Id. The forum is also rife with claims that users are posting under fake names and using proxy servers to hide their identities and physical location. Id. In short, the usernames on hateandflame.com are obviously unreliable, the atmosphere clearly toxic, and users are openly engaging in tactics designed to harm one another's reputations in real life. See id. Furthermore, the individuals on the forum clearly had extensive knowledge of Todd Daugherty's personal life. They were aware of and used his ham radio call sign and his twitter handle. See id. A user operating under the name "Tom Randal" posted his home address. Id. They taunted him for collecting Japanese dolls. Id. The user "Loyd Davies, Timelord" accused him of plagiarism using his ham radio call sign, N90GL. Id. All of this was readily apparent from posts made on the days leading up to March 17, 2018.
On March 17, 2018, officers Dickey and Thomason visited with Daugherty at his home regarding the threatening post bearing his name and photograph. See Report of Officer C. Dickey, at pg. 1 (Exhibit B). After being transported to the Taylorville Police Department, Daughtery denied making the post, explained to them that someone had been impersonating him online, and stated that he personally did not post on hateandflame.com. Id. He also explained he believed a user "squashtoad" was the one impersonating him. Id. Thomason recognized the photographs on the post of Daugherty holding a gun from a previous incident, and Daugherty explained he had previously posted them on a blog and so they were publicly available. Id. Despite the fact that the identity of the person who reported the threat to the FBI could not be confirmed, and that there was no evidence that Daugherty was responsible for the post, he was arrested. No investigation was made into "squashtoad" or the very likely possibility that someone had simply posted using Daugherty's name as a form of harassment or swatting." Subsequent investigation further supported Daugherty's claims that the posts were made by someone impersonating him. On March 18, 2018, Todd Daugherty's brother Jeremy Daugherty contacted the Taylorville Police Department and provided screenshots and links to hateandflame demonstrating that individuals were making posts purporting to be Todd Daugherty while he was in police custody. See Jeremy Daugherty emails, (3/18/2018) (Exhibit C). On March 19, 2018, Jeremy Daugherty contacted FBI special agent Alaina Arnold to report that his brother had been set up by someone,likely named Bryan Crow, who had been harassing his brother online and over ham radio communications for years. See SA Arnold 302, 7/2/18 (Exhibit D). Arnold then called the State's Attorney, Mike Havera, who indicated that he had spoken to a Canadian man named Karl Madera who also said Todd Daugherty was being set up by someone named Bryan Crow. Id. Havera informed Arnold he was waiting on further information before dropping the charges. Id. On March 19, 2018, police obtained a warrant for Computer Techniques Inc. (hereinafter the "CTI Warrant") (the internet service provider for Daugherty) for "any and all electronic data transfers and/or records..." related to Daugherty's account. They obtained these records on the same day. Warrant Return, 18-MR-37 (Exhibit E). The records showed Daugherty's MAC address to be EC:4F:82:29:B4:03 and his IP address was 72.9.123.215. Id.
On March 21, 2018, officer Christian Nelson obtained a warrant for Daugherty's home (hereinafter the "Device Warrant") to seize "any and all computers... including but not limited to hard disk drives, floppy disks, compact discs, DVD's USB devices... and any and all information and data stored in the form of magnetic or electronic coding on computer media or media capable of being read by a computer..." Search Warrant, 18-MR-40 (Exhibit F). The Device Warrant further provided "authority to analyze and search any magnetic or optical media seized for the relevant evidence as outlined in this search warrant..." The Device Warrant did not mention what electronic evidence or data the police could seize pursuant to this warrant, nor did it name the crime for which the police had probable cause. Instead, it allowed an unlimited search of all of the devices. Furthermore, it did not expressly incorporate the affidavit into the warrant terms. Pursuant to this warrant, police seized fifteen items: a black and blue Seagate hard drive, serial number NA7DWTK4; one Seagate 1TB hard drive, serial number 5vPG12DV, a Cyperton computer tower, serial number GA-78LMT-USB3; a Compaq computer, serial number CNH4520P00; a Gateway 7320 laptop, serial number N3451-710-03782; a Gateway computer, serial number PTE590XD01960595B2700; three DVD-Rs, one CDR, one CTI router, and four assorted USB drives. Warrant Return, 18-MR-40.
The affidavit for the Device Warrant stated that the "FBI Springfield office received a tip that Todd E. Daugherty (M/W D.O.B. 07/05/1968 posted on internet social forum Hateandflame.com the following comment 'FUCK YOU YOU STALKING MOTHER FUCKERS. I'LL SHOW YOU WHO IS AUSTIC. I'LL GO TO FUCKING MEMORIAL ELEMENTARY SCHOOL AND MAKE SANDY HOOK LOOK LIKE A SUNDAY SCHOOL PICNIC." The affidavit also stated that the post was "issued by someone" with the username "N90GL", which was Daugherty's ham radio call sign. The affidavit also stated that his "profile picture" and the post included the same photos of Daugherty holding a handgun. No other explanation was provided about how they knew that was his profile. No explanation was provided about the website, how one could set up a profile, make posts, or about its user base, or its contents. No IP address was provided linking Daugherty to the post. Furthermore, the affidavit did not explain that the tipster intentionally obscured their identity through the Tor network. Nor did the affidavit explain that multiple people indicated that Daugherty had been set up. Significantly, the affidavit did not even include that posts continued to appear under his name while he was in custody and had no access to electronic devices. Instead, the Device Warrant affidavit contained conclusory assertions that it was Todd Daugherty's account that made the post.
On March 29, 2018, officer Christian Nelson obtained warrant for NFSN inc., the company W hosting the website www.hateandflame.com (hereinafter the "Hateandflame Warrant"). Search Warrant, 18-MR-45 (Exhibit G). In response to that warrant, police learned that neither Daugherty's IP address nor his MAC address had been used to post on hateandflame.com during the time of the threatening post. Warrant Return, 18-MR-45 at p. 6-7 (Exhibit G). Instead, they learned that the IP address responsible for the threatening post was associated with the TOR network and was therefore anonymous. Id. Further police learned that "90% [of people posting on the website] use tor or proxy sites...No registration is required. No email address is checked. Impersonation is part of the status quo for the board... anybody can post as anybody else." Id. at p. 5.
On April 4, 2018, despite knowing that they definitively lacked probable cause to search the devices they seized from Mr. Daugherty's home, the Taylorville Police Department enlisted the FBI to conduct search of the devices that remained in their custody. See SA Arnold 1057, 4/6/18. On April 11, 2018, Arnold seized the devices from the Taylorville Police Department and placed them in an FBI storage facility. Chain of Custody Form, 343 G-SI-2610873, pg. 1-5. On April 16, 2018, the State's Attorney filed a motion to dismiss the charges against Daugherty. See Motion to Dismiss, 18-CF-62 (April 16, 2018) (Exhibit H). The motion was based on the following facts: (1) the website used to disseminate the threat did not require any login credentials, (2) while Daugherty was in custody more messages appeared under his name, (3) posts on the website were made by people impersonating "judges, the president, and other such individuals" (4) Daugherty's internet activity have shown nothing to implicate him in the case. Id. The court granted the motion and specifically stated "[a]ny warrants or summonses previously issued are hereby quashed Order of Dismissal (April 16, 2018) (Exhibit I). The case was officially dismissed on the record and all warrants quashed by 11:32 a.m. See People v. Daugherty 18-CF-62, Tr. (April 16, 2018) (Exhibit J). Daugherty was released the same day. Upon his release from jail on April 16, 2018 and within the following weeks, Daugherty and his father both demanded return of his devices from the Taylorville Police Department and the State's Attorney.
However, none of the devices were returned, nor were they given any formal denial of their request or a justification for the police retaining the devices. Meanwhile, on April 16, 2018, as the case against Daugherty was being dismissed and the warrants quashed, FBI agent William O'Sullivan removed the devices from evidence and conducted an inventory. See CART Examination Notes 343G-SI-2610873 pg. 1 (Exhibit K). Three days after the warrant was quashed he began the process of extracting the devices pursuant to the invalid Device Warrant. See Id.; see also Chain of Custody Form, 343G-SI-2610873, pg. 1-5 (Exhibit L). On April 23, 2018, a week after the warrant had been quashed and therefore was no longer valid, O'Sullivan began to search the device. See CART Examination Notes 343G-SI-2610873 pg. 3 (Exhibit K). During that warrantless search, O'Sullivan found what he noted what appeared to be a computer-generated image of a minor child with an adult male penis in his mouth. Id. Approximately two years later, despite no additional evidence against Daughtery emerging, the evidence seen during this warrantless search would be used as the basis for a federal search warrant. See Warrant Application, 20-MJ-3023 (Exhibit M).
On March 2, 2020, Special Agent Anthony Wright applied for a warrant (hereinafter the "Federal Warrant") to search the following eight devices: a black and blue Seagate hard drive, serial number NA7DWTK4; a Cyperton computer tower, serial number GA-789MT-USB38; a Compaq computer, serial number CNH4520P00; a Gateway 7320 laptop, serial number N3451-710-03782; and four assorted USB drives. The affidavit for the Federal Warrant stated only that the devices were in the "lawful possession of the FBI" because they were seized from Daugherty based on a search warrant that allowed for a "search and seizure of any and all computers..." Id. at ¶ 6. The affidavit then stated that "Examiner William O'Sullivan found suspected child pornography on the black and blue Seagate desktop hard drive bearing serial number NA7DWTK4..." specifically, a "visual depiction of a three to five-year-old with an adult male's penis in his mouth." Id. at ¶ 9. The affidavit did not explain that O'Sullivan recognized it to be a computer-generated image. See id. Nor did the affidavit provide any other relevant information about the state case. Specifically, the affidavit omitted: (1) that the case against Daugherty had been dismissed for a lack of probable cause, (2) that the search by O'Sullivan had been conducted after the dismissal of the case and the quashing of the warrant, and (3) a copy of the allegedly valid Device Warrant upon which that search was conducted."
People of the State of Illinois v Todd E Daugherty
Motion to Suppress (page 1 - 6) (2024)
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