United States v. Steven Vincent Smith , 935 F.3d 1279 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14915
________________________
D.C. Docket No. 2:16-cr-00203-KOB-JEO-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES RYAN TAYLOR,
Defendant - Appellant.
________________________
No. 18-11852
________________________
D.C. Docket No. 4:16-cr-00312-VEH-JHE-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
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STEVEN VINCENT SMITH,
Defendant - Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
________________________
(August 28, 2019)
Before TJOFLAT and NEWSOM, Circuit Judges, and ANTOON, * District Judge.
NEWSOM, Circuit Judge:
James Taylor and Steven Smith are the latest in a long line of child-
pornography consumers to argue that the evidence of their crimes should be
suppressed because the warrant that led to its discovery—issued by a magistrate
judge in the Eastern District of Virginia but purporting to authorize a nationwide,
remote-access computer search—violated the Fourth Amendment. By our count,
we become today the eleventh (!) court of appeals to assess the constitutionality of
the so-called “NIT warrant.” Although the ten others haven’t all employed the
same analysis, they’ve all reached the same conclusion—namely, that evidence
discovered under the NIT warrant need not be suppressed. We find no good
* Honorable John Antoon II, United States District Judge for the Middle District of Florida,
sitting by designation.
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reason to diverge from that consensus here, but the case nonetheless calls for
careful consideration, as it implicates several important issues.
As an initial matter, did the NIT warrant violate Federal Rule of Criminal
Procedure 41(b), which specifies where and in what circumstances a magistrate
judge may issue a warrant—and relatedly, if the warrant did violate Rule 41(b),
was that violation of constitutional magnitude? We hold that because the
magistrate judge’s actions exceeded not only Rule 41(b) but also her statutorily
prescribed authority under the Federal Magistrates Act, 28 U.S.C. § 636(a)—which
circumscribes the scope of a magistrate judge’s jurisdiction—the warrant was void
ab initio, rendering any search purporting to rely on it warrantless and thus
presumptively unlawful under the Fourth Amendment.
That leads us to the question of remedy, which we take in two parts: First, is
exclusion required—without regard to the reasonableness of the officers’
reliance—where, as here, the warrant was void from the outset, as Taylor and
Smith urge? Or, as the government contends, should a void warrant be treated no
differently from other defective warrants, such that the good-faith exception to the
exclusionary rule can still apply? We hold that, because the exclusionary rule is
concerned solely with deterring culpable police misconduct—and not at all with
regulating magistrate judges’ actions—void and voidable warrants should be
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treated no differently; accordingly, an officer’s reasonable reliance on the former,
like the latter, can provide the basis for applying the good-faith exception.
Second, even if the good-faith exception can apply when an officer relies on
a void warrant, should the exception apply in the particular circumstances of this
case? We hold that the officers’ warrant application here adequately disclosed the
nature of the technology at issue and the scope of the intended search, that the
officers reasonably relied on the magistrate judge’s determination that the search
was permissible, and, accordingly, that the good-faith exception applies in this
case.
I
A
We begin with a bit of context. In the normal world of web browsing, an
internet service provider—Comcast or AT&T, for example—assigns an IP address
to every computer that it provides with internet access. An IP address is a unique
numerical identifier, tantamount to a computer’s name. (OK, in the laptop era it’s
slightly more complicated than that, because the “name” changes as the computer
moves around and connects to different service providers’ networks—but you get
the picture.) Websites can log IP addresses to keep track of the computers that
visit, in essence creating a digital guest book. Internet browsing, therefore, isn’t
quite as private as most people think—it’s actually pretty easy, for instance, for
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law enforcement to find out who visited what sites, when, and for how long simply
by subpoenaing IP-address logs from service providers.
Not so when it comes to the “dark web,” the part of the internet “only
accessible by means of special software, allowing users and website operators to
remain anonymous or untraceable.” Blog.OxfordDictionaries.com. 1 “The Onion
Router”—usually abbreviated “Tor”—is one such software program. Tor, which
was the brainchild of the U.S. Navy but has since been released to the public,
works by routing a user’s webpage requests through a series of computer servers
operated by volunteers around the globe, rendering the user’s IP address essentially
unidentifiable and untraceable. In the words of the folks who currently administer
the “Tor Project,” a Massachusetts-based § 501(c)(3) organization responsible for
maintaining Tor, you might think of what Tor does as “using a twisty, hard-to-
follow route in order to throw off someone who is tailing you—and then
periodically erasing your footprints.” 2
1 See also Ahmed Ghappour, Searching Places Unknown: Law Enforcement Jurisdiction on the
Dark Web, 69 Stan. L. Rev. 1075, 1087 (2017) (“The dark web is a private global computer
network that enables users to conduct anonymous transactions without revealing any trace of
their location.”).
2 See Lee Matthews, What Tor Is, and Why You Should Use It to Protect Your Privacy, Forbes
(Jan. 27, 2017 2:30 p.m.), https://www.forbes.com/sites/leemathews/2017/01/27/what-is-tor-and-
why-do-people-use-it/#3186d5387d75 (last visited Aug. 27, 2019); see also Tor Project,
https://2019.www.torproject.org/projects/torbrowser.html.en (“[Tor] prevents somebody
watching your Internet connection from learning what sites you visit, it prevents the sites you
visit from learning your physical location, and it lets you access sites which are blocked.”) (last
visited Aug. 27, 2019).
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As you can imagine, Tor has plenty of legitimate uses—think military and
law-enforcement officers carrying out investigations, journalists seeking to
maintain anonymity, and ordinary citizens researching embarrassing topics. As
you can also imagine, Tor has spawned—and effectively enables—a cache of
unsavory sites for black-market trading, child-pornography file-sharing, and other
criminal enterprises. This is so because, in addition to allowing users to access
public websites without leaving a trail, Tor also hosts a number of so-called
“hidden services,” i.e., sites accessible only through Tor. You can’t just Google a
hidden service; rather, a user can access one of these Tor-specific sites only by
knowing its exact URL address. Most Tor-site addresses comprise a random
jumble of letters and numbers followed by the address “.onion”—in place, say, of
“.com” or “.org”—and are shared via message-board postings on the regular
internet or by word of mouth.
The hidden-service page at issue here, “Playpen,” was a child-pornography-
distribution site accessible only through Tor. At the time the FBI began
monitoring Playpen, the site contained more than 95,000 posts, had 160,000
members, and hosted up to 1,500 visitors per day. The FBI monitored the site for
several months until, based on a foreign-government tip, it found and arrested the
administrator. Rather than shuttering Playpen immediately, the FBI covertly took
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control of the site and began operating it out of a government server in Newington,
Virginia, hoping to snare more users.
As a means of ferreting out Playpen visitors whose identities were masked
by Tor, the FBI sought to deploy government-created malware—specifically, a
computer code called the Network Investigative Technique (“NIT”)—that would
transmit user information back to the FBI. Here’s how the NIT worked: When a
Playpen user downloaded images from a Tor-based site, the NIT would essentially
“hitchhike” along, invade the host computer, and force it to send to the FBI
(among other information) the computer’s IP address, the computer’s host name,
and the username associated with the computer. Based on that information, the
FBI could identify the user’s internet service provider and the computer affiliated
with the account that accessed Playpen, thereby unmasking the user and providing
probable cause for the FBI to seek a warrant to seize computers and hard drives.
B
To effectuate this plan, FBI Agent Douglas Macfarlane submitted a search-
warrant application to a magistrate judge in the Eastern District of Virginia,
requesting authorization to deploy the NIT. The application wasn’t a model of
clarity or precision, particularly regarding the issue that most concerns us here—
namely, the geographic scope of the requested search authority. In the case
caption, the application described the “property to be searched”—seemingly
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without territorial restriction—as “COMPUTERS THAT ACCESS
upf45jv3bziuctml.onion,” which we now know to be associated with Playpen. Just
below, however, in the body, the application asserted a reasonable belief that
evidence of child-pornography-related crimes was contained on property “located
in the Eastern District of Virginia.” As part of the same statement—regarding the
“property to be searched”—the application referred to an “Attachment A.”
Attachment A in turn stated that the NIT was “to be deployed on the computer
server . . . operating the [Playpen] website” and specified that the server was
“located at a government facility in the Eastern District of Virginia.” Attachment
A then went on to state, though, that the goal of deploying the NIT was to obtain
information from “[t]he activating computers . . . of any user or administrator who
logs into [Playpen] by entering a username and password.”
As is often the case, the NIT application also referenced an attached
affidavit. Agent Macfarlane’s affidavit summarized the applicable law, explained
numerous technical terms of art, and described Tor and the “Target Website”—i.e.,
Playpen. On page 29 of 31, under the bolded heading “SEARCH
AUTHORIZATION REQUESTS,” the affidavit stated, for the first time expressly,
that “the NIT may cause an activating computer—wherever located—to send to a
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computer controlled by or known to the government” certain information,
including the IP address and host name. 3
A magistrate judge in the Eastern District of Virginia signed the warrant and
the FBI deployed the NIT.
C
Not long thereafter, NIT-transmitted data revealed to the FBI that a certain
Playpen user was linked to a computer with the host name “RyansComputer.”
After the user accessed several images of child pornography, the FBI sent an
administrative subpoena to the user’s internet service provider and discovered that
the IP address associated with the computer was assigned to James Taylor in
Birmingham, Alabama. A magistrate judge in the Northern District of Alabama
then authorized a search warrant for Taylor’s residence, where the FBI seized
Taylor’s laptop, hard drive, and USB drive. After analyzing the hardware twice,
the FBI found what it was looking for.
Steven Smith’s Playpen activities were discovered in a nearly identical way.
As in Taylor’s case, the NIT revealed that someone had used Smith’s computer
and IP address to log into Playpen. Based on the NIT data, the FBI subpoenaed
3 The warrant also explained that the NIT would send the following information: the unique
identifier that distinguishes the data on the host computer from that of other computers, the type
of operating system the host computer is running, whether the NIT has already been downloaded
to the host computer, an active operating system username, and a Media Access Control address.
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records from an internet service provider and used that information to secure a
warrant from a magistrate judge in the Northern District of Alabama, allowing
officers to search Smith’s residence in Albertville, Alabama. The search revealed
child-pornography images on a thumb drive. After arresting Smith, the officers
obtained a search warrant for his office and seized his work computer, which also
contained child pornography.
Taylor and Smith were charged with receiving child pornography under 18
U.S.C. § 2252A(a)(2) and with possessing and accessing child pornography with
the intent to view it under 18 U.S.C. § 2252A(a)(5)(B) & (b)(2). They both moved
to suppress the evidence against them, asserting, as relevant here, that the NIT
warrant violated the Fourth Amendment, Federal Rule of Criminal Procedure
41(b), and the Federal Magistrates Act, 28 U.S.C. § 636(a), and, accordingly, that
the seized images should be suppressed as fruit of the poisonous tree. The district
court in each case denied the motion to suppress. Both courts agreed that the NIT
warrant violated the Fourth Amendment—and was thus void—but declined to
suppress the evidence on the ground that the searches, and the resulting seizures,
fell within the good-faith exception to the exclusionary rule. Both defendants
appealed, and their cases were consolidated for review and decision.
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II
All here agree that the NIT’s extraction and transmission of Taylor’s and
Smith’s information was a “search” within the meaning of the Fourth Amendment.
U.S. Const. amend. IV. 4 All likewise agree that no exigency or other exception
exempted the FBI from the usual requirement to obtain a search warrant. See
United States v. Cooks, 920 F.3d 735, 741 (11th Cir. 2019) (“[W]arrantless
searches are presumptively unreasonable, ‘subject only to a few specifically
established and well-delineated exceptions.’” (quoting Katz v. United States, 389
U.S. 347, 357 (1967))). There, the agreement ends. The parties vigorously dispute
whether the NIT warrant was valid and, if not, whether (and to what extent) that
fact should bear on the admissibility of the evidence found. Accordingly, we are
faced with the following issues, each with its own twists and turns: (1) Did the NIT
warrant violate Federal Rule of Criminal Procedure 41(b) and, if so, did it likewise
4 That Taylor and Smith used Tor to download child pornography is important because it takes
this case out of third-party-doctrine land. See Smith v. Maryland, 442 U.S. 735 (1979). Instead
of traveling along the equivalent of “public highways” (by browsing the open internet) or leaving
the equivalent of a calling card at each website visited (as with a normal internet search), Tor
users purposefully shroud their browsing, such that they have a reasonable expectation of privacy
in their online “movements.” See United States v. Davis, 785 F.3d 498, 507 (11th Cir. 2015)
(explaining that the Fourth Amendment’s protections apply where an individual has exhibited “a
subjective expectation of privacy” that society recognizes as reasonable (citation omitted)).
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violate the Fourth Amendment? And (2) if the NIT warrant did run afoul of the
Fourth Amendment, does the exclusionary rule apply? 5
A
1
Federal Rule of Criminal Procedure 41(b), titled “Venue for a Warrant
Application,” both outlines the situations in which a magistrate judge may issue a
warrant for a search within her district and specifies the more limited
circumstances in which she may issue a warrant for a search outside her district.
With respect to the former, Rule 41(b)(1) states that “a magistrate judge with
authority in the district . . . has authority to issue a warrant to search for and seize a
person or property located within the district.” Fed. R. Crim. P. 41(b)(1). It is
undisputed, though, that the NIT warrant sought authority to search for information
outside the territorial confines of the Eastern District of Virginia. And the parties
agree that, for present purposes, Rule 41(b)(4)—which authorizes “tracking
device” warrants—is the only provision that could have empowered the magistrate
judge to authorize the specific out-of-district search in this case. That rule permits
a magistrate “to issue a warrant to install within the district a tracking device” to
5 In reviewing a district court’s denial of a motion to suppress, we review factual findings for
clear error and the application of law to those facts de novo. United States v. Ramirez, 476 F.3d
1231, 1235 (11th Cir. 2007). Where, as here, the facts are undisputed, we simply review the
legality of a search de novo. United States v. Phillips, 834 F.3d 1176, 1179 (11th Cir. 2016).
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“track the movement of a person or property located within the district, outside the
district, or both.” Fed. R. Crim. P. 41(b)(4) (emphasis added). 6 Accordingly, the
NIT warrant complies with Rule 41(b) only if we conclude that it was issued in
accordance with subsection (b)(4). 7
We find two mismatches—one formal (but telling) and the other substantive.
Initially, as a matter of form, although the government now defends the NIT
warrant on a tracking-device basis, it conspicuously didn’t seek the warrant under
Rule 41(b)(4). Tracking-device warrants issued under subsection (b)(4) are
generally requested pursuant to a specialized “Application for a Tracking
Warrant.” 8 Here, though, the FBI seems to have sought the NIT warrant under
Rule 41(b)(1)’s general provision for warrants authorizing in-district searches. The
warrant application’s cover sheet represented that the FBI wished to search
property “located in the Eastern District of Virginia,” and neither the application
nor the accompanying affidavit mentioned the term “tracking device” or otherwise
indicated that the application sought authorization under subsection (b)(4). The
6 As it turns out, Rule 41(b) has since been amended to add a provision—subsection (b)(6)—for
remote electronic searches of the sort at issue in this case. See infra Section II.B.2.
7No court of appeals has found that the NIT warrant fits within the tracking-device exception,
although this argument has persuaded a few district courts. See United States v. Taylor, 250 F.
Supp. 3d 1215, 1222–23 (N.D. Ala. 2017) (compiling district and appellate court holdings on
NIT-warrant searches).
8 See, e.g., Administrative Office of U.S. Courts, Criminal Forms AO 102 (2009) & AO 104
(2016), http://www.uscourts.gov/forms/criminal-forms (last visited Apr. 26, 2019).
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government’s revisionism on appeal—invoking Rule 41(b)(4) to defend what was,
by all accounts, a Rule 41(b)(1) application—undermines its position that the
Rule’s tracking-device provision sanctions the NIT warrant.
Moreover, and in any event, we reject the government’s tracking-device
argument on the merits. For Rule 41 purposes, a “tracking device” is “an
electronic or mechanical device which permits the tracking of the movement of a
person or object.” 18 U.S.C. § 3117(b); see also Fed. R. Crim. P. 41(a)(2)(E)
(explaining that “‘[t]racking device’ has the meaning set out in 18 U.S.C. §
3117(b)”). The government contends that the NIT constitutes a tracking device
because “just as a GPS tracker attached to a car will send a receiver coordinates or
other signals with locational information, the NIT augmented the content of
Playpen and sent locational information back to a government-controlled
computer.” Br. of Appellee at 15.
We disagree. The NIT didn’t reveal “locational information” at all—it
didn’t even send a locational snapshot, let alone the type of ongoing, GPS-
coordinate transmissions that would “permit[] the tracking of the movement of a
person or object” within the meaning of Rule 41(b)(4). Rather, the NIT performed
a one-time extraction of non-locational information—including a computer’s IP
address, username, and other identifying material—which it transmitted to the FBI.
Of course, the identifying information that the NIT extracted and sent was then
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traced to a physical address using an internet service provider’s records, but only in
the same way that a person’s name might be traced to a physical address using a
phone book. In other words, that the FBI eventually used the NIT-transmitted
information to discover additional facts that, in turn, enabled it to then determine a
Playpen user’s location in no way transformed the initial information transmittal
into “tracking.” 9
To be clear, it’s not just that the NIT isn’t exactly a tracking device—it’s
that it’s exactly not a tracking device. A GPS tracker stuck to the bottom of a car
can’t tell you the car’s make and model, its owner, or its place of registration—but
it can tell you whether the car is parked at Starbucks or cruising down I-20. By
contrast, the NIT malware can and did transmit the equivalent of a computer’s
name, to whom it was registered, and other identifying information—but it didn’t
(and couldn’t) reveal whether the computer was at the owner’s home or office, at
Starbucks, or in the car on the move. In short, while a tracking device transmits
9 The government also points out that the NIT was deployed from a computer in the Eastern
District of Virginia—which, it says, is the equivalent of a tracking device being “installed within
the district.” But a GPS tracker that is physically attached to an item within the territorial
confines of a particular district is clearly “install[ed] within” that district. By contrast, the NIT
software, although deployed and activated from a government computer in the Eastern District of
Virginia, was not “installed within” that district—it was installed on suspects’ computers outside
of the district.
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location but not identifying information, the NIT sent identifying information but
not location. 10
To sum up, we hold that the NIT is not a “tracking device” within the
meaning of Federal Rule of Criminal Procedure 41(b), and we reject the
government’s post hoc attempts to classify it as such. Because the NIT warrant
was not authorized by any of Rule 41(b)’s applicable subsections, the warrant
violated the Rule.
2
So, what effect? While constitutional violations may merit suppression—
more on that later—mere “technical noncompliance” with a procedural rule results
in the exclusion of evidence only when (1) “there was ‘prejudice’ in the sense that
the search might not have occurred or would not have been so abrasive if the rule
had been followed,” or (2) “there is evidence of intentional and deliberate
disregard of a provision in the Rule.” United States v. Williams, 871 F.3d 1197,
1203 (11th Cir. 2017) (citation omitted).
Which do we have here—a constitutional violation or just a technical one?
The government says that the violation in this case was merely technical because
10If the term “tracking device” included every gadget capable of acquiring and transmitting
information that could somehow, in some way, aid in identifying a person’s location, the term
would be unimaginably broad, including any phone or camera capable of sending a photo, as
images of buildings, street signs, or other landmarks can surely be used to identify a location.
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Rule 41(b) is just a venue provision—it has nothing to do with a magistrate’s
power or jurisdiction. The government points out, for instance, that as of 2016,
Rule 41(b) is no longer titled “Authority to Issue a Warrant,” but rather “Venue for
a Warrant Application.” See Fed. R. Crim. P. 41(b). And, the argument goes, if
Rule 41(b) is an ordinary venue provision, a breach of its provisions would not rise
to the level of a constitutional violation.
Fair enough. As we’ve recently been at pains to emphasize—following the
Supreme Court’s lead—not every mandatory proclamation or prohibition creates a
jurisdictional bar, and we are loath to “jurisdictionalize” issues unnecessarily. See,
e.g., Orion Marine Constr., Inc. v. Carroll, 918 F.3d 1323, 1328–29 (11th Cir.
2019); Sec’y, U.S. Dep’t of Labor v. Preston, 873 F.3d 877, 881–82 (11th Cir.
2017). Here, though, jurisdiction is squarely in play: While Rule 41(b) itself may
address only venue, the statute behind the rule—the Federal Magistrates Act, 28
U.S.C. § 636—imposes clear jurisdictional limits on a magistrate judge’s power.
Section 636(a) states that magistrate judges “shall have within [their] district[s]”
the “powers . . . conferred . . . by law or by the Rules of Criminal Procedure.” 28
U.S.C. § 636(a)(1) (emphasis added). Because no one contends that any law or
Rule other than Rule 41(b) gave the magistrate judge the authority to issue the NIT
warrant in this case, when the magistrate issued the warrant outside of Rule 41(b)’s
ambit, she necessarily transgressed the limits of her jurisdiction.
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We aren’t breaking any new ground here. As now-Justice Gorsuch
explained during his tenure on the Tenth Circuit, § 636(a) “expressly—and
exclusively—refers to the territorial scope of a magistrate judge’s power to
adjudicate” and, further, is “found in Title 28 of the U.S. Code—the same title as
the statutes that define a district court’s jurisdiction.” United States v. Krueger,
809 F.3d 1109, 1122 (10th Cir. 2015) (Gorsuch, J., concurring). Or, as the Ninth
Circuit put it, “federal magistrates are creatures of [§ 636(a)], and so is their
jurisdiction.” N.L.R.B. v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415 (9th Cir. 1994);
see also United States v. Hazlewood, 526 F.3d 862, 864 (5th Cir. 2008) (“In the
Federal Magistrates Act, 28 U.S.C. § 636, Congress conferred jurisdiction to
federal magistrate[]judge[s].”). Thus, as § 636(a) is the sole source of a magistrate
judge’s warrant authority, a warrant issued in defiance of its jurisdictional
limitations is void—“no warrant at all.” Krueger, 809 F.3d at 1118 (Gorsuch, J.,
concurring).
To be fair, Krueger was an easier case—there, a magistrate judge in one
district purported to authorize a search in an adjacent district, in which she clearly
had no jurisdiction. The magistrate judge here, by contrast, issued a warrant
purporting to allow a search of computers “wherever located”—which, of
necessity, included her own district. But the fact that the warrant in its overbreadth
happened to sweep in the Eastern District of Virginia along with the rest of the
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nation doesn’t cure the fact that it was issued outside of the magistrate judge’s
statutorily prescribed (and proscribed) authority in the first place. Indeed, the idea
that a warrant may be issued partially from a place of statutorily-granted authority
and partially from the great beyond (with one foot inside and one foot outside the
lines, so to speak) strikes us as nonsensical. Rather, it seems to us that a magistrate
judge must act either pursuant to the authority granted her by statute or not, and
thus have the authority either to issue a warrant (in toto) or not. 11
Because the NIT warrant was void at issuance, the ensuing search was
effectively warrantless and therefore—because no party contends that an exception
to the presumptive warrant requirement applies here—violative of the Fourth
Amendment. Accord United States v. Werdene, 883 F.3d 204, 214 (3d Cir.), cert.
denied, 139 S. Ct. 260 (2018); United States v. Horton, 863 F.3d 1041, 1050 (8th
11 Nor do we see a persuasive case for “severing” the NIT warrant, so to speak, along
jurisdictional lines—such that it might be deemed valid in the Eastern District of Virginia, even
if invalid everywhere else, and thus not void ab initio and in toto (to really pour on the Latin).
We are aware, of course, that several courts have held that a warrant can be severed along what
might loosely be called subject-matter lines—i.e., with respect to probable cause or particularity.
See, e.g., United States v. George, 975 F.2d 72, 79 (2d Cir. 1992) (“When a warrant is severed
(or redacted) the constitutionally infirm portion—usually for lack of particularity or probable
cause—is separated from the remainder and evidence seized pursuant to that portion is
suppressed; evidence seized under the valid portion may be admitted.”). But the flaws in the two
situations, it seems to us, are fundamentally different. Subject-matter severance addresses an
error made by a properly empowered official; the error that plagues the NIT warrant is more
fundamental—it implicates the magistrate judge’s power to act in the first instance.
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Cir. 2017), cert. denied, 138 S. Ct. 1440 (2018); United States v. Henderson, 906
F.3d 1109, 1116 (9th Cir. 2018), cert. denied, 139 S. Ct. 2033 (2019). 12
B
So the search carried out under the NIT warrant violated not just Rule 41 but
also the Fourth Amendment. But again: What effect? At last we come to the
question at the heart of the remedy that Taylor and Smith seek. Can the good-faith
exception to the exclusionary rule apply in a situation like this, where officers rely
on a warrant that is later determined to have been void ab initio? And more
specifically, does the good-faith exception apply in the particular circumstances of
this case?
1
The “exclusionary rule”—which operates to bar the admission of evidence
obtained in violation of the Fourth Amendment—appears nowhere in the
Constitution’s text. It is, the Supreme Court has said, not “a personal
12The government also contends—in nearly identical terms in both cases—that “[b]ecause the
search of Taylor’s [and Smith’s] computer[s] would have been valid if a magistrate judge in the
Northern District of Alabama had signed the NIT Warrant, any Rule 41(b) violation did not
cause [them] prejudice” and suppression is not necessary. Br. of Appellee at 34 (emphasis
added) (Taylor); see also Br. of Appellee at 29 (Smith). “Taylor [and Smith] suffered no more
of an intrusion of [their] privacy,” the government contends, “than [they] would have if the FBI
had searched [their] computer[s] under a valid warrant.” Br. of Appellee at 31 (Taylor); see also
Br. of Appellee at 28 (Smith). No. Had the magistrate judge in the Eastern District of Virginia
acted within her jurisdiction, the warrant could not have extended to Alabama and the FBI would
not have identified Taylor or Smith, nor would it have had probable cause to apply for a second
warrant to search their homes.
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constitutional right,” but rather a “judicially created” remedy, whose purpose is to
“deter future Fourth Amendment violations” and “compel respect for the
constitutional guaranty.” Davis v. United States, 564 U.S. 229, 236–37, 238
(2011) (citation omitted). This remedy, however, doesn’t follow automatically;
society must swallow the “bitter pill” of suppression when necessary, id. at 238,
but only when the “benefit” of exclusion outweighs its “substantial social costs,”
Illinois v. Krull, 480 U.S. 340, 352–53 (1987). The dual pillars of the exclusion
decision, the Supreme Court recently emphasized, are deterrence and culpability:
“Police practices trigger the harsh sanction of exclusion only when they are
deliberate enough to yield ‘meaningfu[l]’ deterrence, and culpable enough to be
‘worth the price paid by the justice system.’” Davis, 564 U.S. at 240 (alteration in
original) (quoting Herring v. United States, 555 U.S. 135, 144 (2009)); see also id.
(suppression not warranted because officer did not act “deliberately, recklessly, or
with gross negligence”).
The good-faith exception is a “judicially created exception to this judicially
created rule.” Id. at 248. 13 In United States v. Leon, the Supreme Court explained
13Although “good faith” is most often framed as an “exception” to the exclusionary rule, it is
probably more accurately described as a reason for declining to invoke the exclusionary rule in
the first place. Compare, e.g., Davis, 564 U.S. at 238 (“The Court has over time applied this
‘good-faith’ exception across a range of cases.” (emphasis added)), with, e.g., id. at 239 (“The
question in this case is whether to apply the exclusionary rule when the police conduct a search
in objectively reasonable reliance on binding judicial precedent.” (emphasis added)), and
Herring v. United States, 555 U.S. 135, 139 (2009) (characterizing the question presented as
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that exclusion is not warranted when police act “in objectively reasonable reliance”
on a subsequently invalidated search warrant—in other words, when they act in
“good faith.” 468 U.S. 897, 922 (1984). “‘[O]ur good-faith inquiry is confined to
the objectively ascertainable question whether a reasonably well trained officer
would have known that the search was illegal’ in light of ‘all of the
circumstances.’” Herring, 555 U.S. at 145 (quoting Leon, 468 U.S. at 922 n.23).
To date, the Supreme Court has applied the good-faith exception when,
among other things, officers reasonably relied on a warrant that was later deemed
invalid for lack of probable cause, see Leon, 468 U.S. at 922, on a warrant that
erroneously appeared outstanding due to an error in a court or police database, see
Arizona v. Evans, 514 U.S. 1, 4 (1995); Herring, 555 U.S. at 137, on a statute that
was later deemed unconstitutional, see Krull, 480 U.S. at 352–53, and on a judicial
decision that was later overruled, Davis, 564 U.S. at 232. The Supreme Court
hasn’t, however, directly addressed the particular question before us today—
whether the good-faith exception can be applied to a search conducted in reliance
on a warrant that was void from the outset.
Taylor and Smith insist that the void-voidable distinction is critical.
Reliance on a voidable warrant—issued in error, perhaps, but by a judge with
“whether the exclusionary rule should be applied” when officers act in reasonable reliance on a
negligent police database error (emphasis added)).
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jurisdiction to act—is different, they contend, from reliance on a warrant that was
void from the get-go. Because the latter is—as we’ve agreed—“no warrant at all,”
Taylor and Smith insist that reliance on it can’t provide an exception to the
exclusionary rule. This is so, they continue, because the “heart of the good faith
exception is [] officers’ reliance on a neutral third party’s actions within the scope
of the third party’s authority.” Br. of Appellant Taylor at 29; Br. of Appellant
Smith at 27.
There is a certain logic to this argument: In fact, there was never a valid
warrant, so the search was illegal all along. What matters for exclusionary-rule
and good-faith purposes, though, isn’t the validity of the warrant “in fact,” but
rather the validity of the warrant as it would have reasonably appeared to an officer
tasked with executing it. The appropriate question, therefore, is whether, from the
perspective of a reasonable officer, there is any difference—for deterrence or
culpability purposes—between the warrant issued in this case and the warrants
issued in Leon, Evans, and Herring?
We don’t think so. The exclusionary rule is concerned with deterring officer
misconduct and punishing officer culpability—not with setting judges straight. See
Herring, 555 U.S. at 142 (observing that the “exclusionary rule was crafted to curb
police rather than judicial misconduct”). Viewed from an officer’s perspective,
relying on a facially valid warrant that, as it turns out, was void from the beginning
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is no different from relying on a facially valid warrant that, for instance, was later
deemed improper based on a dubious determination of probable cause, see Leon,
468 U.S. at 925–26, or appeared outstanding thanks only to a database error, see
Herring, 555 U.S. at 136–37. So long as an officer could reasonably have thought
that the warrant was valid, the specific nature of the warrant’s invalidity is
immaterial.
In so holding, we join every court of appeals to consider the question, all of
which have agreed that the good-faith exception applies—and the exclusionary
rule doesn’t—in a situation like this. See United States v. Eldred, No. 17-3367-cv,
2019 WL 3540415, at *8 (2d Cir. Aug. 5, 2019); United States v. Ganzer, 922 F.3d
579, 587–90 (5th Cir.), petition for cert. filed, No. 19-5339 (2019); United States v.
Moorehead, 912 F.3d 963, 971 (6th Cir.), petition for cert. filed, No. 19-5444
(2019); Werdene, 883 F.3d at 216–17; United States v. McLamb, 880 F.3d 685,
691 (4th Cir.), cert. denied, 139 S. Ct. 156 (2018); United States v. Kienast, 907
F.3d 522, 527–28 (7th Cir. 2018), cert. denied, 139 S. Ct. 1639 (2019); Henderson,
906 F.3d at 1118; United States v. Levin, 874 F.3d 316, 323–24 (1st Cir. 2017);
Horton, 863 F.3dat 1050; United States v. Workman, 863 F.3d 1313, 1319 (10th
Cir. 2017), cert. denied, 138 S. Ct. 1546 (2018). As the Sixth Circuit summarized,
“[t]he good-faith exception is not concerned with whether a valid warrant exists,
but instead asks whether a reasonably well-trained officer would have known that a
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search was illegal.” Moorehead, 912 F.3d at 968. The Third Circuit similarly
explained the “fundamental flaw” in the argument like the one that Taylor and
Smith make here: “[I]t does not appreciate the distinction between the validity of
the warrant and the deterrence rationale of the exclusionary rule and the good-faith
exception.” Werdene, 883 F.3d at 216.
In light of the exclusionary rule’s purpose of deterring culpable police
misconduct, there is no reason to distinguish between good-faith reliance on a void
warrant and any other warrant later deemed defective. We thus hold that the good-
faith exception to the exclusionary rule can apply when police officers reasonably
rely on a warrant later determined to have been void ab initio.
2
Finally, then, to this particular case: Having determined that the good-faith
exception can apply in situations involving void warrants, the question remains
whether the exception should apply to the cases before us today. In Leon, the
Supreme Court laid out several situations in which the good-faith exception should
not apply: (1) where the magistrate judge was misled by information in a warrant
application that the applicant knew was false or would have known was false but
for a reckless disregard of the truth; (2) where the magistrate “wholly abandoned”
her judicial role; (3) where the affidavit supporting the warrant application was “so
lacking in indicia of probable cause as to render official belief in its existence
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entirely unreasonable”; or (4) where the warrant was “so facially deficient” that
officers couldn’t have reasonably presumed it to be valid. 468 U.S. at 923.
Here, Taylor and Smith contend—and the dissent agrees—that the
magistrate was, within the meaning of Leon, “misled by information” in the
application that the FBI officers knew, or should have known, to be false. The face
of the application, they say, prominently represented that the “property to be
searched” was “located in the Eastern District of Virginia” and, more specifically,
asserted (in the incorporated Attachment A) that the Playpen server was “located at
a government facility in the Eastern District of Virginia.” Br. of Appellant Taylor
at 42; Br. of Appellant Smith at 41. It wasn’t until page 29 of Agent Macfarlane’s
31-page affidavit, Taylor and Smith say, that the application finally acknowledged
that the NIT would search computers “wherever located.” Br. of Appellant Taylor
at 42; Br. of Appellant Smith at 41. This approach, they contend, shows that the
FBI intentionally misled the magistrate judge and belies any claim to good-faith
reliance.
In responding that the good-faith exception should apply, the government
begins with the contention that there is no deterrent benefit to exclusion here
because Rule 41 was recently amended to add a new subsection to cover remote-
access warrants to search electronic storage both within and outside of a magistrate
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judge’s district—i.e., precisely the sort of search at issue in this case. 14 But that
argument cuts both ways. On the one hand, it indicates that we needn’t necessarily
deter this particular type of search on a going-forward basis. On the other, the
recent amendment of Rule 41 to allow remote-access search warrants underscores
that Rule 41(b) did not permit these warrants at the time the FBI deployed the NIT.
Even so, we find no indication that the FBI officers sought to deceive the
magistrate judge or otherwise acted culpably or in a way that necessitates
deterrence—and certainly no indication of the sort of “deliberate[], reckless[], or .
. . gross[ly] negligen[t]” conduct that the Supreme Court has recently highlighted
as the focus of the exclusionary-rule/good-faith inquiry. Davis, 564 U.S. at 240;
see also Herring, 555 U.S. at 144; Krull, 480 U.S. at 352–53. While the NIT-
warrant application was perhaps not a model of clarity, it seems clear to us that the
officers did the best they could with what they had—a general application form
that was perhaps ill-suited to the complex new technology at issue. 15 It is true, as
14Rule 41(b)(6) now states in relevant part: “[A] magistrate judge with authority in any district
where activities related to a crime may have occurred has authority to issue a warrant to use
remote access to search electronic storage media and to seize or copy electronically stored
information located within or outside that district if . . . the district where the media or
information is located has been concealed through technological means.”
15In concluding that the officers intended to “hoodwink” the magistrate judge, the dissent relies
heavily on DOJ’s proposals to amend Rule 41 to better address “remote searches for ‘crimes
involving Internet anonymizing technology.’” Dissenting Op. at 37–38, 46 (quoting Letter from
Mythili Raman, Acting Assistant Att’y Gen., to Hon. Reena Raggi, Chair, Advisory Comm. on
the Crim. Rules (Sept. 18, 2013)). Even setting aside the dubious proposition that knowledge of
communications between the “highest ranking officials in the Criminal Division” and Federal
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Taylor and Smith emphasize, that the face of the pre-printed warrant application
stated that “the property to be searched” was “located in the Eastern District of
Virginia.” It is also true that Attachment A, which described the target property,
reported that the Playpen server was “located at a government facility in the
Eastern District of Virginia.” That being said, there were indications that the FBI
was seeking more broad-ranging search authority. As already noted, the case
caption referred generally to “COMPUTERS THAT ACCESS” Playpen.
Somewhat more clearly, Attachment A explained that the NIT would be “deployed
on” the Playpen-operating server located in the Eastern District of Virginia as a
means of “obtaining information” from “activating computers,” defined as
computers “of any user or administrator who logs into” the Playpen site. Finally,
and most importantly—if a bit more obscurely than might have been ideal—Agent
Macfarlane’s affidavit stated that “the NIT may cause an activating computer—
wherever located—to send” identifying information to the FBI.
So, was the warrant application here perfect? Not close. But does it
evidence “chicanery,” “duplicity,” and “gamesmanship”? See Dissenting Op. at
Rules Advisory Committee Chairs can be imputed downstream to line-level law-enforcement
officers, see Dissenting Op. at 38–39, these communications in no way demonstrate that the
warrant application here was made in bad faith. We see no benefit to deterring officers from
attempting to describe cutting-edge countermeasures using the forms and resources at their
disposal while department heads simultaneously seek to amend the rules to better address
advancing technology. Cf. Eldred, 2019 WL 3540415, at *7; McLamb, 880 F.3d at 691. The
dissent’s argument to the contrary is based entirely on speculation about what different
government actors could have known.
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16, 25. It doesn’t. We conclude that, in their totality, the application and affidavit
sufficiently disclosed the bounds of the intended search. In light of the square-
peg/round-hole issue that they faced, the officers did what we would hope and
expect—they fully disclosed the mechanics of the intended search, left the
constitutional call to the magistrate judge, and acted in reasonable reliance on the
resulting warrant. 16 As already explained, the “exclusionary rule was crafted to
curb police rather than judicial misconduct.” Herring, 555 U.S. at 142. Because
we don’t find the officers’ behavior here culpable and see no deterrent value in
suppressing the evidence found on Taylor’s and Smith’s computers, we find that
the good-faith exception to the exclusionary rule applies in this case.
AFFIRMED.
16 To the extent that the dissent suggests that officers seeking a search warrant have an
affirmative obligation to “flag” potential legal issues in their application, we must respectfully
disagree. See, e.g., Dissenting Op. at 39–40 (stating that the officers here “should have known . .
. that the magistrate’s jurisdiction to issue the warrant was in doubt” and that they “had an
obligation to flag [this] for the magistrate”). Law-enforcement officers have a duty to lay out
facts—including jurisdictional facts—for reviewing courts, not to anticipate and articulate
possible legal hurdles. The warrant application here, particularly when read in conjunction with
Agent Macfarlane’s detailed 30-plus-page affidavit, adequately—if imperfectly—lays out the
facts. See, e.g., Levin, 874 F.3d at 323 (determining that there was “no benefit in deterring” the
government from “turn[ing] to the courts for guidance” when faced with a novel legal question
such as whether the NIT warrant could properly issue).
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TJOFLAT, Circuit Judge, concurring in part and dissenting in part: 1
As the majority points out, we are far from the first court to consider
whether the NIT warrant passes constitutional muster. I agree with the majority
that it does not. The majority also adds its voice to the unanimous chorus of ten
other courts of appeals who have found that, regardless of any constitutional
infirmity, the exclusionary rule should not apply. On this point, I must respectfully
dissent.
The evidence obtained as a result of the NIT warrant should be suppressed
because the law enforcement officials who sought the warrant are not entitled to
the good faith exception. The officials knew or should have known that there was
an issue with jurisdiction and that the search would occur outside the district. Yet,
the officials told the magistrate repeatedly that the search would take place in the
district. 2 If the law condones this conduct, it makes a mockery of the warrant
process.
I.
First, some background on the exclusionary rule. The purpose of the
exclusionary rule “is to deter future Fourth Amendment violations.” Davis v.
1I concur in all of the majority opinion except for part II.B.2.
2 The only reference to a search that potentially would occur outside the district comes
buried on page 29 of the 31-page affidavit after repeated representations by the officers that the
search would take place within the district. See infra part III.
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United States, 564 U.S. 229, 236–37 (2011). But the point is “to deter police
misconduct rather than to punish the errors of judges and magistrates.” United
States v. Leon, 468 U.S. 897, 916 (1984).
Courts look to all the officials involved in the warrant process, including
those who sought the warrant in the first place. Id. at 923 n.24 (“It is necessary to
consider the objective reasonableness, not only of the officers who eventually
executed a warrant, but also of the officers who originally obtained it or who
provided information material to the probable-cause determination.”). In this case,
the officials who sought the warrant include, at least, the FBI agent who submitted
the warrant application and the Assistant U.S. Attorney who reviewed it.
Whether to invoke the exclusionary rule turns largely on “the flagrancy of
the police misconduct.” See id. at 911; see also Herring v. United States, 555 U.S.
135, 143 (2009). Courts ask whether law enforcement officials knew or should
have known that their conduct was unconstitutional. See Herring, 555 U.S. at 143
(citing Illinois v. Krull, 480 U.S. 340, 348–49 (1987)).
Their conduct is evaluated under an objective reasonableness standard:
“whether a reasonably well trained officer would have known that the search was
illegal in light of all of the circumstances,” including this “particular officer’s
knowledge and experience.” Id. at 145 (quotation omitted). This standard
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“requires officers to have a reasonable knowledge of what the law prohibits.”
Leon, 468 U.S. at 919 n.20.
If, under this standard, courts determine that law enforcement’s conduct was
deliberate, reckless, or grossly negligent, exclusion is likely warranted. Davis, 564
U.S. at 238. Alternatively, if law enforcement reasonably relied on a warrant,
Leon, 468 U.S. at 922, or on binding judicial precedent, Davis, 564 U.S. at 249–50,
exclusion is not warranted. This is the so-called good faith exception, and it makes
sense: if law enforcement acted in objectively reasonable reliance, the conduct was
not culpable—i.e., it wasn’t deliberate, reckless, or grossly negligent—so there is
no misconduct to deter.
That does not mean that whenever law enforcement obtains a warrant, the
good faith exception applies. For example, if law enforcement officials misled the
magistrate in the warrant application with material information that they knew or
should have known was false, they are not entitled to good faith. Leon, 468 U.S. at
923 (“Suppression therefore remains an appropriate remedy if the magistrate or
judge in issuing a warrant was misled by information in an affidavit that the affiant
knew was false or would have known was false except for his reckless disregard of
the truth.”). That is what happened here.
There is no question that law enforcement made a false representation in the
NIT warrant application. On the application, the FBI agent told the magistrate, in
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no uncertain terms, that the property to be searched would be “located in the
Eastern District of Virginia.” Of course, it is “undisputed” that the search did not
take place within the district. Maj. Op. at 12. Thus, the issue is whether the
officials seeking the warrant made this false representation deliberately or
recklessly. This issue turns on what a reasonable officer standing in the shoes of
the officials in this case knew or should have known. For this determination, we
must consider the totality of the circumstances.
II.
A.
When the totality of the circumstances is considered, I have little doubt that
a reasonable FBI agent and federal prosecutor should have known there was a
jurisdictional problem. See United States v. Martin, 297 F.3d 1308, 1318 (11th
Cir. 2002) (holding that courts “can look beyond the four corners of the affidavit
and search warrant to determine whether” the good faith exception applies).
Specifically, the Justice Department’s efforts to change the Federal Rules of
Criminal Procedure in the wake of a similar failed FBI warrant application in
Texas should have made it clear that jurisdiction would likely be an issue with the
NIT warrant.
In 2013—two years before the warrant application in this case—the FBI
applied to a magistrate judge in Texas for a strikingly similar warrant. See In re
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Warrant to Search a Target Comput. at Premises Unknown, 958 F. Supp. 2d 753,
755 (S.D. Tex. 2013). The FBI was attempting to identify “[u]nknown persons”
who committed bank fraud and identity theft using “an unknown computer at an
unknown location.” Id. The warrant sought authorization to “surreptitiously
install” software on the target computer that would extract certain information and
send it back to “FBI agents within this district.” Id.
In a published decision, the magistrate denied the warrant application
because the search of the target computer would not take place within the district.
See id. at 756–58. The court explained its decision: “Since the current location of
the Target Computer is unknown, it necessarily follows that the current location of
the information on the Target Computer is also unknown. This means that the
Government’s application cannot satisfy the territorial limits of Rule 41(b)(1).” 3
Id. at 757. The same logic applies to the NIT warrant.
Notably, unlike this case, the FBI addressed the jurisdictional issue in its
supporting affidavit to the Texas magistrate. See id. at 756. The FBI “readily
admit[ted] that the current location of the Target Computer [was] unknown,” but
nevertheless maintained that the search would comply with Rule 41(b)(1)
“‘because information obtained from the Target Computer will first be examined in
3 The magistrate also found that the warrant did not satisfy any of the other territorial
limits of Rule 41(b), though it does not appear that the FBI claimed to satisfy any provision other
than Rule 41(b)(1). See id. at 756–58.
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this judicial district.’” Id. (quoting the FBI’s affidavit). The magistrate rightly
rejected the FBI’s argument, pointing out that it would “stretch the territorial limits
of Rule 41(b)(1)” to absurd lengths: “By the Government’s logic, a Rule 41
warrant would permit FBI agents to roam the world in search of a container of
contraband, so long as the container is not opened until the agents haul it off to the
issuing district.” Id. at 757.
The point is that there was federal precedent addressing the precise
jurisdictional issue raised by the NIT warrant. Thus, it is not true, as several of our
sister circuits have suggested, that the jurisdictional issue was a “novel question
. . . for which there was no precedent on point.” United States v. Levin, 874 F.3d
316, 323 (1st Cir. 2017); see also United States v. McLamb, 880 F.3d 685, 691 (4th
Cir. 2018) (stating that officials seeking the NIT warrant were “[w]ithout judicial
precedent for reference”), cert. denied, 139 S. Ct. 156 (2018).
Since the FBI sought the warrant in the Texas case, it seems to fair to say
that a reasonable FBI agent seeking a similar warrant should have been aware of
the issues presented by remote searches of unknown sources. Granted, the FBI is a
large organization, but the universe of people involved in these cutting-edge search
warrants designed to uncover anonymous computer users is surely much smaller.
Plus, we know that “the FBI consulted with attorneys at the . . . FBI’s Remote
Operations Unit” before applying for the warrant. McLamb, 880 F.3d at 689.
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Additionally, a reasonable federal prosecutor who did any research into the legal
issues raised by the NIT warrant should have come across the Texas case, so the
Assistant U.S. Attorney who reviewed the warrant should have known about it.
Thus, because of the Texas case, the officials applying for the NIT warrant should
have been aware that there was a potential problem with the magistrate’s
jurisdiction to issue the warrant.
Of course, a magistrate’s decision in Texas, even in a published opinion, is
not binding precedent for a warrant application in Virginia. I do not suggest that
the Texas case foreclosed officials from applying for the NIT warrant. Prosecutors
and the FBI could honestly “believe that reasonable magistrate judges could differ
on the legality of the NIT.” United States v. Werdene, 883 F.3d 204, 218 n.12 (3d
Cir. 2018), cert. denied, 139 S. Ct. 260 (2018). For that reason, it would have been
perfectly acceptable for these officials to have applied for the NIT warrant and
explained to the magistrate why they believed there was jurisdiction. But it was
unacceptable to ignore the jurisdictional issue altogether—to repeatedly assert that
the search was within the district and fail to mention to the magistrate the problems
that led another judge to deny a substantially similar warrant. 4
4 The Werdene court suggested that the Texas warrant is not analogous because it was
“significantly more invasive” than the NIT warrant. Werdene, 883 F.3d at 218 n.12. The more
invasive aspects of the Texas warrant are why the magistrate in that case found problems with
the particularity requirement and the constitutional standards for video surveillance. See In re
Warrant, 958 F. Supp. 2d at 758–61. Those aspects had nothing to do with the jurisdictional
analysis. See id. at 756–58. The jurisdictional analysis applies equally here.
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Moreover, the Texas case was not an isolated occurrence. It had far-
reaching consequences that make it almost unthinkable that the officials seeking
the NIT warrant were unaware of the jurisdictional problem.
Less than six months after the Texas decision, the Justice Department sent a
letter to the Advisory Committee on the Criminal Rules urging it to amend the
rules to allow for warrants like the one sought in the Texas case. Letter from
Mythili Raman, Acting Assistant Att’y Gen., to Hon. Reena Raggi, Chair,
Advisory Comm. on the Crim. Rules (Sept. 18, 2013). Specifically, the Justice
Department proposed amending “Rule 41 of the Federal Rules of Criminal
Procedure to update the provisions relating to the territorial limits for searches of
electronic storage media.” Id. The amendment would permit magistrate judges to
issue warrants for remote searches for “crimes involving Internet anonymizing
technologies.” Id. The letter cited the Texas case to justify the rule change. Id.
While the committee considered the proposed amendment, the Justice
Department continued to advocate for the change and submitted several
memorandums defending the amendment. In one memo, dated about two months
before the NIT warrant, the Justice Department explained as an example that the
amendment would “ensure that a court is available” to issue warrants
“investigating members of a child pornography group” using “the Tor network[] to
hide from law enforcement.” Memorandum from David Bitkower, Deputy
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Assistant Att’y Gen., to Hon. Reena Raggi, Chair, Advisory Comm. on the Crim.
Rules (Dec. 22, 2014). These warrants would authorize “the use of the NIT” to
“identify the location of the individuals accessing the site.” Id. Sound familiar?
Ultimately, the committee recommended adopting the amendment, which
became effective on December 1, 2016. Memorandum from Hon. Reena Raggi,
Chair, Advisory Comm. on Crim. Rules, to Hon. Jeffrey S. Sutton, Chair, Comm.
on Rules of Practice and Proc. (May 6, 2015). The Justice Department’s extensive
involvement in the rule change—including the two highest ranking officials in the
Criminal Division—makes it hard to accept that none of the Justice Department
officials involved in the NIT warrant was aware of the jurisdictional issue. 5
The Justice Department had a number of connections to the NIT warrant.
First of all, there is the Assistant U.S. Attorney who reviewed the warrant
application. The FBI also “consulted with attorneys at the [Department’s] Child
5 While the majority finds dubious the proposition that this knowledge could be imputed
to “downstream line-level law enforcement officers” and finds no deterrent effect in holding
such officers responsible for misleading magistrates regarding the jurisdictional defects in the
warrant application, Maj. Op. at 27 n.15, I disagree. I find it hard to believe that Assistant U.S.
Attorneys are not kept abreast of existing jurisdictional issues and the efforts their office is
taking to solve those issues. I also find it hard to believe that the “downstream line-level”
officers—who are doubtlessly experts in these technologies and techniques—were unaware of
the misleading nature of their statements of fact here. They repeatedly suggested in the affidavit
that a search would take place within a particular district when the true goal of the warrant was to
search any relevant computers, regardless of their location. Therefore, contrary to the majority’s
assertion that this argument is “based entirely on speculation about what different government
actors could have known,” id., I believe that the officers here should have known that they were
acting improperly, which triggers the exclusionary rule. See Herring, 555 U.S. at 143. The
burden should not rest on a magistrate to comb through a deceptively crafted and contradictory
affidavit to detect the true nature of the warrant request.
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Exploitation and Obscenity Section” before applying for the warrant. McLamb,
880 F.3d at 689. Significantly, as part of the same investigation of Playpen, the
FBI and the Justice Department applied for a wiretap order on the same day that
they applied for the NIT warrant. The wiretap order was to monitor the private
message and chat activity on Playpen. The affidavit supporting the wiretap
application included a thorough discussion of the NIT warrant. The same Assistant
U.S. Attorney who reviewed the NIT warrant applied for the wiretap order, along
with a trial attorney for the Department’s Child Exploitation and Obscenity
Section. And the Deputy Assistant Attorney General for the Criminal Division
approved the wiretap application. Between the Texas case and the rule change,
surely at least one of these officials should have known about the jurisdictional
issue.
The Texas case and the DOJ-requested rule change show that a reasonable
officer in the shoes of the law enforcement officials seeking the warrant should
have known that there was a jurisdictional issue. To be clear, I’m not suggesting
that the officials should have known that the magistrate did not have jurisdiction to
issue the warrant. I’m suggesting that because of these circumstances, they should
have known that the magistrate’s jurisdiction to issue the warrant was in doubt—
that there was a potential problem with jurisdiction. And if they knew that there
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would be an issue with jurisdiction, they had an obligation to flag it for the
magistrate. 6
B.
It is also clear that the officials seeking the warrant knew that the search
would not be contained to the Eastern District of Virginia. The FBI’s investigation
revealed that Playpen had over 150,000 members and that the site received over
11,000 unique users every week. It would be absurd to believe that all of the
users’ computers would be in the Eastern District of Virginia. A reasonable
official would have believed, correctly as it turns out, that the users’ computers
would be found in districts all over the country. 7
6 The majority construes this argument to place “an affirmative obligation to ‘flag’
potential legal issues in their [warrant] application.” Maj. Op. at 29 n.16. The majority
disagrees with this approach, instead concluding that “[l]aw-enforcement officers have a duty to
lay out facts—including jurisdictional facts—for reviewing courts, not to anticipate and
articulate possible legal hurdles,” and finding that the warrant application here “adequately—if
imperfectly—lay[ed] out the facts.” Id. However, the majority misunderstands the obligations I
propose. I suggest merely that, when the officers and lawyers involved in presenting the
affidavit have reason to believe that they are requesting a warrant that is improper, they not
conceal precedent which is entitled to persuasive authority. Further, and more importantly, I
disagree with the majority’s characterization of the application here as “imperfect” but
“adequate.” The application had the tendency to deceive the magistrate by presenting repeated
assertions of misleading facts, while burying the true goal at the back of the affidavit. I propose
that law enforcement has the obligation, at minimum, to avoid such action.
7 The only connection to the Eastern District of Virginia was the server that hosted the
site. But the server was originally in North Carolina; the FBI moved the server to Virginia. And
the site’s administrator lived in Florida. There truly was no reason to think the site had a special
connection to the Eastern District of Virginia.
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Granted, the NIT technology is complex, and the uninitiated could be
forgiven for not understanding exactly what is being searched and where that
search would take place. But no one could credibly argue that the officials who
developed the technology and who were responsible for deploying it were unclear
about how it worked. The FBI knew the search was of computers, and that those
computers could be anywhere.
III.
Having established that the officials seeking the warrant knew or should
have known that there was a potentially fatal jurisdiction problem with the warrant,
let’s take a closer look at how they presented this issue to the magistrate. 8
The caption to the warrant application states that the search will be of
“computers that access” the Playpen website. Beneath the caption, the FBI agent
seeking the warrant attests, under penalty of perjury, that he has “reason to
believe” the property to be searched is “located in the Eastern District of Virginia.”
The application directs the reader to “Attachment A” for a description of the
property to be searched. Attachment A, titled “Place to be Searched,” explains that
8 A party does not need to provide direct evidence that the false representation was made
deliberately or recklessly; instead, the court can infer from the warrant application itself that a
misrepresentation was deliberate or reckless if it would be clear to a reasonable official. Cf.
Madiwale v. Savaiko, 117 F.3d 1321, 1326 (11th Cir. 1997) (“A party need not show by direct
evidence that the affiant makes an omission recklessly. Rather, it is possible that when the facts
omitted from the affidavit are clearly critical to a finding of probable cause the fact of
recklessness may be inferred from proof of the omission itself.”) (quotation omitted).
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the “warrant authorizes the use of a network investigative technique (‘NIT’) to be
deployed on the computer server described below” to obtain certain information
“from the activating computers described below.” Below, it explains that the
“computer server is the server operating” the Playpen website, “which will be
located at a government facility in the Eastern District of Virginia.” And it
explains that the “activating computers are those of any user or administrator who
logs into the [Playpen] by entering a username and password.”
Thus, on the face of the warrant application, officials informed the
magistrate that the search would be in the Eastern District of Virginia. The
application then seemingly supported this assertion by noting that the server is in
the district—the only geographic reference in the application.
True, an especially discerning magistrate might have gathered that the search
is of computers, not of the server, so the location of the server is irrelevant, and the
computer of “any user” could be outside the district. But the question is not
whether it was possible for the magistrate to detect the error—the exclusionary rule
is concerned with police misconduct, not magistrates’ errors. See Leon, 468 U.S.
at 916. The question is whether the magistrate was misled, and whether law
enforcement officials were responsible for the deception. See id. at 923. Maybe
the magistrate should have noticed. But the officials who sought the warrant
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understood the technology and how the search would work better than anyone, and
if anyone should have noticed, it was they.
The affidavit supporting the warrant continues the charade. It mentions
repeatedly that the server is located in the magistrate’s district. Here are a few
examples:
• “Accordingly, I request authority to use the NIT, which will be deployed on
the TARGET WEBSITE, while the TARGET WEBSITE operates in the
Eastern District of Virginia, to investigate any user or administrator who
logs into the TARGET WEBSITE by entering a username and password.”
• “Under the NIT authorized by this warrant, the TARGET WEBSITE, which
will be located in Newington, Virginia, in the Eastern District of Virginia,
would augment [the content sent to visitor’s computers] with additional
computer instructions. When a user’s computer successfully downloads
those instructions from the TARGET WEBSITE, located in the Eastern
District of Virginia, the instructions, which comprise the NIT” will cause the
user’s computer to send certain information to the FBI.
• “During the up to thirty day period that the NIT is deployed on the TARGET
WEBSITE, which will be located in the Eastern District of Virginia, each
time that any user or administrator logs into the TARGET WEBSITE by
entering a username and password, this application requests authority for the
NIT authorized by this warrant to attempt to cause the user’s computer to
send the above-described information to a computer controlled by or known
to the government that is located in the Eastern District of Virginia.”
The repeated emphasis of the server’s location is especially suspicious given that
the location of the server was completely irrelevant. The search was of users’
computers, not of the server.
Why, then, did the affidavit repeatedly mention the server’s location? It
smacks of desperation, and it appears calculated to lull the magistrate into a false
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sense of jurisdictional security. I can think of no other reason to include so
irrelevant a piece of information so many times.
In contrast, the affidavit is nearly silent on the decisive data point: the
location of the computers. It is only on page 29 of 31 that the affidavit finally
acknowledges (somewhat explicitly) that “the NIT warrant may cause an activating
computer—wherever located—to send to a computer controlled by or known to the
government” the information sought. This is the closest law enforcement comes to
advising the magistrate that the search will occur outside the district. As a
disclosure, it leaves much to be desired. The affidavit mentions this detail once,
without any explanation of its impact. It does not say that, therefore, the search
might occur outside the Eastern District of Virginia. It forces the magistrate to
draw the conclusion. It is a breadcrumb, buried in a dense and complicated
affidavit, left for the magistrate to follow.
In other warrant applications, law enforcement officials were not nearly so
stingy with information about jurisdiction. For example, in the Texas case, the
government confronted the jurisdiction problem and supplied the magistrate with
an argument in the affidavit for why it thought there was jurisdiction. See In re
Warrant, 958 F. Supp. 2d at 756. Courts should expect nothing less.
Even in the wiretap application—submitted simultaneously with the NIT
application by the same Assistant U.S. Attorney—the application included a
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paragraph detailing the jurisdictional basis for the warrant, even though the
jurisdiction for that order was straightforward and uneventful. 9 Here, in contrast,
where there was a major problem with jurisdiction, any mention of jurisdiction is
conspicuously absent. Why would the same attorney include a discussion of
jurisdiction in one application, where it was less important, and omit any such
discussion from another, where it was more important? It is hard to escape the
conclusion that the officials seeking the warrant aimed to conceal the issue.
The comparison with these other examples illustrates why the officials in
this case did not do what we “hope and expect” of law enforcement. Maj. Op. at
29. The disclosure in the affidavit was woefully inadequate.
The warrant’s defenders argue that the disclosure on page 29 “cured” the
warrant of any ambiguity. See, e.g., McLamb, 880 F.3d at 690–91 (“To the extent
the form is misleading, [the affidavit] cured any ambiguity by informing the
magistrate judge that the NIT would cause activating computers ‘wherever located’
to transmit data to the FBI.”). First of all, it’s odd to say that the disclosure cured
the warrant. The disclosure that the warrant authorized searches of computers
“wherever located” is the fatal flaw; it’s the reason the magistrate didn’t have
9 Here is what the wiretap application said about jurisdiction: “This Court has territorial
jurisdiction to issue the requested order under 18 U.S.C. § 2518(3) because the computer server
intercepting all communications and on which the TARGET WEBSITE, including the TARGET
FACILITIES, are located will be in Newington, VA, in the Eastern District of Virginia during
the period of inspection.”
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jurisdiction to approve the warrant. How could revealing the fatal flaw cure the
warrant?
More accurately, the suggestion is that by eventually and indirectly revealing
the warrant’s defect, the officials seeking the warrant absolved themselves of any
bad faith. In other words, law enforcement officials cannot be accused of bad faith
so long as they technically, no matter how discreetly, disclose the truth somewhere
in the warrant application. This sets too low a bar. It essentially gives officials
permission to try to hoodwink magistrates: they can make false statements to the
court so long as they include enough information to uncover their chicanery. If the
magistrate fails to spot the issue, officials can cloak themselves in good faith
reliance and execute the warrant without fear of suppression. I refuse to invite
such gamesmanship. If law enforcement officials know of a problem with their
warrant, they need to be forthcoming about it.
Here’s the other problem with the “cure” argument: If the language in the
application might have been enough to show the magistrate that the search would
not be in the district, surely it was enough to reveal the same to the officials
seeking the warrant. After all, wouldn’t we expect the author to understand his
writing better than the reader—especially when the subject concerns an
exceedingly complex technology with which the author is familiar and the reader is
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not? And once the officials realize the problem, they need to address it, otherwise
they are misleading the magistrate.
Furthermore, the argument that the application disclosed enough for the
magistrate to discover the defect answers the wrong question. It focuses on
whether the magistrate should have spotted the issue. Cf. United States v. Horton,
863 F.3d 1041, 1052 (8th Cir. 2017) (“Even if it were misleading to label the place
to be searched as the Eastern District of Virginia, a reasonable reader would have
understood that the search would extend beyond the boundaries of the district
because of the thorough explanation provided in the attached affidavit.”) (emphasis
added), cert. denied, 138 S. Ct. 1440 (2018). But, again, the exclusionary rule is
concerned with curbing “police rather than judicial misconduct.” Herring, 555
U.S. at 142. Thus, the proper question is, given what the officials knew or should
have known, was it deliberately or recklessly misleading to present the application
the way that they did. Put differently, did they consciously disregard a serious risk
that the magistrate would think the search would occur in the Eastern District of
Virginia? It’s plain to me that they did.
If the officials knew that the search would be of computers outside the
district, it was unacceptable to swear that the search would be within the district.
If, perhaps, the officials had some other reasonable basis for believing that the
search was still within the magistrate’s jurisdiction, they needed to present it to the
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magistrate. It would be recklessly misleading to submit a warrant application to a
magistrate repeatedly stating the search would be within the district, with one
buried caveat, when the officials’ only reason for stating that is some novel theory
they declined to share with the magistrate.
Tellingly, at no point in this appeal, nor to our knowledge in any of the other
appeals concerning the NIT warrant, has the government defended the warrant on
the grounds that the search did in fact occur in the Eastern District of Virginia.
How could they? Instead, the government has argued that the NIT search
functioned like a tracking device that was installed within the district, and thus
satisfied Federal Rule of Criminal Procedure 41(b)(4). A number of district courts
have accepted this argument. See United States v. Workman, 863 F.3d 1313, 1321
n.5 (10th Cir. 2017) (listing cases), cert. denied, 138 S. Ct. 1546 (2018). In light of
these district court decisions, several of our sister circuits have said that they will
not fault law enforcement for thinking there was jurisdiction when a number of
federal judges have made the same mistake. See, e.g., United States v. Moorehead,
912 F.3d 963, 970 (6th Cir. 2019) (“But reasonable jurists have come to different
conclusions about whether the NIT Warrant was valid. We cannot, therefore,
expect officers to have known that this type of warrant was invalid at the time it
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was sought.”) (citations omitted), petition for cert. filed (U.S. May 20, 2019) (No.
19-5444). 10
After the fact, courts can uphold a warrant on any basis. That same luxury
should not extend to a good-faith analysis of the officials who sought the warrant.
The FBI agent swore in the warrant application that he had “reason to believe” the
property to be searched was in the Eastern District of Virginia. An official cannot
make that representation if he does not actually have a reason, but is instead hoping
for the magistrate to find one. Thus, the suggestion that because a few courts have
upheld the warrant on a tracking-device theory it was reasonable for the officials
seeking the warrant to believe there was jurisdiction, requires the assumption that
the officials believed there was jurisdiction for the warrant on a tracking-device
theory.
The problem with this logic is that law enforcement did not seek, nor did
they obtain, a tracking-device warrant. See Maj. Op. at 13. To obtain a tracking-
device warrant, law enforcement uses a different form from the one used for
typical searches within the district. Compare Administrative Office of U.S.
10 Some of the courts making this point are actually responding to a different argument.
In those cases, the argument was that the officers executing the warrant were not entitled to good
faith, because the warrant was plainly invalid on its face. See, e.g., United States v. Henderson,
906 F.3d 1109, 1119 (9th Cir. 2018) (“[O]ne is left to wonder how an executing agent ought to
have known that the NIT warrant was void when several district courts have found the very same
warrant to be valid.”) (emphasis added), cert. denied, 139 S. Ct. 2033 (2019). I agree with these
courts that it was objectively reasonable for the executing officers to rely on the warrant and to
defer to the magistrate’s judgment that there was jurisdiction to issue the warrant.
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Courts, Criminal Form AO 102, Application for a Tracking Warrant (2009), with
Criminal Form AO 106, Application for a Search Warrant (2010),
https://www.uscourts.gov/forms/criminal-forms (last visited August 19, 2019).
A reasonable law enforcement official, especially an FBI agent with 19
years of experience, would understand the difference between a tracking-device
warrant and a search warrant. A reasonable official would know that if the
jurisdictional basis for the warrant was a tracking-device theory, he should seek a
tracking-device warrant, or at least make the magistrate aware of the theory some
other way. Bottom line: it is objectively unreasonable for law enforcement to
believe there is jurisdiction on the basis of a warrant they did not seek and a theory
they did not present.
* * *
To recap, the officials knew or should have known that there was a
jurisdiction problem with the warrant. And they knew the search would not be
within the district. If the search was of computers outside the district, the only
possible basis for believing the magistrate had jurisdiction to issue the warrant
would have been a tracking-device theory. But a reasonable official would know
the warrant was not a tracking-device warrant, and it would be recklessly
misleading to seek a regular search warrant based on a tracking-device theory
without at least alerting the magistrate to the theory. As such, it appears to me that
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a reasonable official in these circumstances would have no basis for believing the
magistrate had jurisdiction.
Even assuming the officials believed there was jurisdiction, the warrant
application was misleading. The application states repeatedly that the search
would be in the district, even though they knew the search would be of computers
outside the district. They repeatedly emphasized the location of the server, which
was irrelevant, and completely omitted any discussion of jurisdiction. The late
disclosure that the computers could be “wherever located” did not eliminate the
risk that the magistrate would be misled and did not give the officials license to
make disingenuous representations elsewhere. For these reasons, I believe the
officials deliberately or recklessly misled the magistrate.
IV.
Whether the exclusionary rule should apply is, ultimately, a question of
whether the benefits of deterrence outweigh the costs of suppression. See Herring,
555 U.S. at 141. The costs—excluding reliable evidence and possibly allowing the
guilty to go free—are high. Davis, 564 U.S. at 237 (“[Exclusion] almost always
requires courts to ignore reliable, trustworthy evidence bearing on guilt or
innocence. And its bottom-line effect, in many cases, is to suppress the truth and
set the criminal loose in the community without punishment.”) (citation omitted).
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But what about the other side of the scale? What are the benefits of deterrence in
this case?
Other courts have given short shrift to the benefits of deterrence in this case.
They claim there is minimal deterrent value because (1) the blame lies with the
magistrate for approving the warrant, and (2) the NIT warrant would now be
lawful after the rule change. See, e.g., Moorehead, 912 F.3d at 970–71 (“The fact
that any jurisdictional error here was made by the magistrate, coupled with the fact
that Rule 41(b) has been amended to authorize warrants like the one at issue,
means the benefits of deterrence cannot outweigh the costs.”) (quotation omitted).
This misses the point. If the officials who sought the warrant are culpable for
misleading the magistrate, the fault lies with them. And the object of suppression
would be to deter law enforcement from misleading magistrates in the future, not
to prevent warrants like this one from issuing.
There is a reason the Supreme Court has said that if police conduct is
deliberate, reckless, or grossly negligent, “the deterrent value of exclusion is strong
and tends to outweigh the resulting costs.” Davis, 564 U.S. at 238. If courts
decline to invoke the exclusionary rule in the face of culpable misconduct, we
condone and encourage it. We effectively establish a new standard for law
enforcement. Thus, even though the NIT warrant would not be valid, this will not
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be the last time that law enforcement officials mislead a magistrate in their quest
for a warrant of dubious validity.
With this case, ten courts of appeals have sanctioned the following standard:
When law enforcement officials apply for a warrant, even if they know the warrant
is constitutionally suspect, so long as they technically disclose the facts that would
reveal the problem to a discerning magistrate, no matter how cursory or buried the
disclosure, the warrant is effectively unimpeachable if the magistrate fails to detect
the problem. I cannot believe that the law expects so little of law enforcement, or
so much of magistrates.
This standard creates a warped incentive structure. It encourages law
enforcement to obscure potential problems in a warrant application. Because
officials can be less upfront about problems in a warrant application, the onus is on
the magistrate to spot the issues. But it is well-established that if a magistrate
makes a mistake—e.g., misses an issue, gets the law wrong—that mistake will
almost always be forgiven because the police can generally rely on an approved
warrant in good faith. See Leon, 468 U.S. at 922. This is a system designed to
encourage mistakes.
Instead, we should demand the utmost candor in warrant applications.
Before today, I thought we did. The warrant process is premised on the good faith
of law enforcement. See Franks v. Delaware, 438 U.S. 154, 164 (1978) (“[T]he
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Warrant Clause . . . surely takes the affiant’s good faith as its premise . . . .”). It is
“unthinkable” that a warrant application, “revealed after the fact to contain a
deliberately or reckless false statement,” would be beyond “impeachment.” Id. at
165. Indeed, if law enforcement officials were permitted to deliberately or
recklessly include false representations in the warrant application, “and, having
misled the magistrate, then [were] able to remain confident that the ploy was
worthwhile,” it would neuter the Fourth Amendment. Id. at 168.
Similarly, candor underpins the rationale for the good faith exception. We
extend good faith to police executing the warrant because they are entitled to
presume that magistrates are competent. See Messerschmidt v. Millender, 565 U.S.
535, 547–48 (2012). But there is no reason to defer to magistrates’ judgments if
law enforcement officials do not present the court with the full and accurate
picture. See Leon, 468 U.S. at 914–15 (stating that courts should not defer to a
warrant when the magistrate’s determination was based on a “knowing or reckless
falsity” or when the magistrate was not presented with “[s]ufficient information”).
It is especially important to demand candor in warrant applications. The
warrant application process is ex parte, which increases the risk that false
information will be accepted or problems will be overlooked. See Franks, 438
U.S. at 169 (“The usual reliance of our legal system on adversary proceedings
itself should be an indication that an ex parte inquiry is likely to be less
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vigorous.”). That risk, in turn, creates a temptation to withhold or obscure
unfavorable information. See id. (“The magistrate has no acquaintance with the
information that may contradict the good faith and reasonable basis of the affiant’s
allegations.”).
I also don’t think candor is too much to ask for. When executing a warrant,
police are making decisions in real time. Plus, typically, they are not lawyers, so
we don’t expect them to have as much knowledge of the law as a magistrate
reviewing a warrant application from the comfort of her chambers. These
considerations do not apply, at least not to the same extent, to officials seeking a
warrant. Generally, these officials have just as much, if not more, time for
reflection while preparing the application, as the magistrate does while reviewing
it. And in the frequent cases where police work with prosecutors to prepare a
warrant application, it is fair to expect them to have a greater knowledge of the
law.
I’m not advocating to change the law—the law already requires candor in
warrant applications. I’m asking courts to take this requirement seriously.
When the Supreme Court established the good faith exception, the principal
dissent warned that it would “put a premium on police ignorance of the law.”
Leon, 468 U.S. at 955 (Brennan, J., dissenting). Justice Brennan predicted that in
close cases “police would have every reason to adopt a ‘let’s-wait-until-it’s-
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decided’ approach in situations in which there is a question about a warrant’s
validity or the basis for its issuance.” Id. With this decision, his premonition has
come true.
* * *
I recognize that my decision would have an unfortunate result. It would
invalidate a warrant that led to the arrest and prosecution of hundreds who
trafficked in child pornography. And it would suppress the evidence gathered
under that warrant’s authority, likely leading to the release of many of those
offenders. But this unfortunate result is almost always the consequence when
relevant, damning evidence is excluded. Such a result is the price we pay to
protect the Fourth Amendment rights of the public. Therefore, we must follow the
law even when faced with unpleasant outcomes. Otherwise, we excuse conduct,
like the conduct at issue here, which invites strategic duplicity into the warrant
process.
Because today’s decision undermines the integrity of the warrant process—
a process which plays a crucial role in protecting the rights guaranteed by our
Constitution—I respectfully dissent.
56