Sunday, February 25, 2018

Good faith exception applied to evidence seized as the result of a warrant with extraterritorial application in violation of a then existing rule


United States of America v. Gabriel Werdene, No 10-3588 (3d Cir., 2/21/2018)




In an opinion dealing with a search warrant from the Eastern District of Virginia that eventually resulted in a change to a Federal Rule of Criminal Procedure, the Court ruled that the Defendant's right against unreasonable search and seizure was violated when under a pre-12/1/2016 version of Fed.R.CrimPro. 41(b), a magistrate approved a warrant authorizing searches of and seizure of data from computers located outside of the magistrate's district. It then ruled that despite the request for and authorization of a search and seizure not allowed any Federal Rule of Criminal Procedure, the evidence should be admitted anyway because the FBI agents who procured the warrant acted in good faith.

Investigating dark web distribution of child pornography, the FBI seized a server for an online forum called Playpen in North Carolina, arrested its Florida owner, and moved the server to a location in the Eastern District of Virginia. It obtained a warrant from a magistrate in that district to monitor communications on the server and then continued to operate the Playpen forum,  using NIT, ("government created malware") to gather IP addresses and other information from computers logging in. (See note 1, infra.)  Mr. Werdene was one of the Playpen users who logged in, commenting on the pornography, and sharing links using the username "thepervert." A separate search warrant for his home was obtained as a result of the investigation, where the FBI seized a USB drive and a DVD containing child pornography. He was charged with a single count of possessing child pornography. He sought suppression of the evidence seized from him because Fed.R.Crim.Pro. 51(b) did not authorize searches of computers outside of the issuing magistrate's district. He pled guilty and was sentenced, reserving the right to appeal the denial of his suppression motion.

Magistrates cannot authorize searches outside of their districts unless specifically authorized by law. 28 U.S.C. §636(a). Rule 41(b), which sets forth the territorial limits of warrants for various searches, did not, at the time of the issuance of the search warrant, authorize searches of computers outside of the issuing magistrate's district. (That was changed with an amendment to Rule 41 on December 1, 2016, following the numerous motions to dismiss filed all over the country as a result of the Playpen investigation.) The Court, like many, if not all courts that have considered this issue, concluded that the warrant should not have issued for any search outside of the Eastern District of Virginia. The Court considered, and rejected, arguments that the government has raised in other districts, such as the search was analogous to one using a tracking device (for which Rule 42(b) does authorize extra-territorial application) (see Note 2, infra), and that the violation of Rule 41(b) was not a violation of the 4th Amendment. ("[T]he Rule 41(b) violation was of constitutional magnitude because 'at the time of the framing . . . a warrant issued for a search or seizure beyond the territorial jurisdiction of a magistrate's powers under positive law was treated as no warrant at all.'") The warrant was void ab initio.

However, like many, though not all, other courts that have considered this issue, the Court concluded that the good faith exception prevented suppression of the evidence obtained from the computers ensnared in the investigation. It rejected Mr. Werdene's argument that the exception cannot apply to warrants that are void ab initio because such warrants do not have the force of law.  The Court ruled that the deterrence effect of the exclusionary rule is not advanced by a blanket rule excluding such warrants form the goof faith exception.

In this Circuit, there are four circumstances on which reliance on a faulty warrant is unreasonable:
  1.  the magistrate issued the warrant in reliance on a deliberately or recklessly false affidavit;
  2.  the magistrate abandoned his judicial role and failed to perform his neutral and detached function;
  3. the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or
  4. the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized.
The Court found that none of these criteria applied to the E.D.Va. warrant. The Court also found that the FBI's reliance on the warrant was not unreasonable even though it violated an advisory in the U.S. Attorney's manual that suggested that '[a]gents should obtain multiple warrants if they have reason to believe that a network search will retrieve data stored in multiple locations." The advice in the manual was for attorneys, and not FBI agents, who are not expected to understand legal nuances the way that an attorney would.

Note 1. A district court, in a prosecution in another district arising from the same investigation and search warrant, considering a motion to dismiss due to outrageous government conduct, said of the entire investigation, "[T]he government's investigation had disturbing consequences: while investigating child pornography, the government facilitated the distribution of child pornography and did so in way that did not allow the pornography it distributed to be retrieved or cabined. Thus, the child pornography distributed by the government might live on and be redistributed in the internet ether for an indeterminate period. Furthermore, the Court is concerned by [the defendant's] allegations that traffic to Playpen increased after the government took over operation of the site." United States v. Allain. 1:15-cr-10251-ADB (D.Mass. 9/29/2016), https://www.gpo.gov/fdsys/pkg/USCOURTS-mad-1_15-cr-10251/pdf/USCOURTS-mad-1_15-cr-10251-0.pdf 

Note 2. In his concurring opinion, Judge Nygaard wrote that he would not have considered the tracking device argument because in the district court the government conceded that none of Rule 41's exceptions to the bar on extraterritorial scope of a search warrant applied. The Government argued that it could raise the issue on appeal because as the prevailing party, it could advance any reason in support of affirmance. Judge Nygaard would have held the Government bound to concessions it made in the district court.

Image from PC Magazine, "Inside the Dark Web," 2/4/2015, https://www.pcmag.com/article2/0,2817,2476003,00.asp