Over the course of the last year, we learned of the FBI’s blatant disregard for the federal law during Operation Playpen. They hacked, at a minimum, 8,000 computers and only received a warrant from a magistrate judge in Virginia. Luckily for 19-year-old Lucas Zalesny, the District Attorney knew that Federal judges were throwing out the FBI’s evidence. After Zalesny had fallen into the FBI’s trap—the illegal network investigative technique,” or NIT—the feds raided his house the same day and found 16 illegal images.
“All it took for him to land on FBI radar was to log onto a phony website the FBI had created on the darknet specifically to snag distributors and viewers of child porn,” said District Attorney Steve Wagstaffe.
This case was full of holes from the beginning; they raided Zalesny before he ever downloaded anything, or at least under their watch. The police incarcerated him last year, and he only recently came to terms with the prosecution.
The San Carlos man, according to The Mercury News, received multiple felony child pornography charges—in the original indictment, that is. The indictment charged him with possession of child pornography and intent or conspiracy to distribute child pornography. However, after coming to an agreement with the prosecution, Zalesny fared better than many other suspects charged with of the same crime. District Attorney Steve Wagstaffe opted to drop the felony CP charges. He said that the way the FBI obtained the evidence was questionable. He also noted that federal judges threw out the evidence in 50 percent of the Operation Pacifier cases.
Furthermore, the FBI are on shaky ground regarding probable cause; they raided Zalesny after he logged into the site. They never saw him download or distribute any illegal material. After seizing his laptops, however, investigators found 16 photographs depicting the abuse of underage girls. However, the FBI raided the apartment before they possessed any of this evidence and Wagstaffe believed such an invasion would cause an issue. “They believed, since he was seeking child porn, that was probable cause to get the warrant,” Wagstaffe said, adding that Zalesny admitted to investigators that he had downloaded the images and that he had forwarded them to others. “It is not that often we get somebody that was that young committing this crime.”
Regarding the final sentencing, Wagstaffe said that “there is a legal issue about whether a magistrate can sign a warrant outside their jurisdiction; a federal judge can.” He continued, saying that there would be no way of knowing the side Superior Court Judge Elizabeth Lee would take: that the FBI were in the right or if, on the other hand, they were in the wrong. In the end, the plea deal allowed Zalesny to avoid the sex offender registry—he received six months in the county jail for computer fraud, followed by three years of probation.