The government conceded that the search warrant executed violated Rule 41(b)(1)’s within-district limitation on federal magistrate judges’ warrant-issuing authority. Because the government offered no other basis for reversal, and because the court concluded that defendant established prejudice as a result of the Rule 41 defect, the court affirmed the district court’s suppression order regardless of whether the Fourth Amendment had a jurisdictional limitation on magistrate judges’ warrant-issuing authority. The court adopted the district court’s standard for determining whether a defendant established prejudice as a result of a Rule 41(b)(1) violation and asked whether the issuing federal magistrate judge could have complied with the rule. The fact a state judge probably wouldn’t have issued a warrant helps show prejudice. United States v. Krueger, 2015 U.S. App. LEXIS 19622 (10th Cir. Nov. 10, 2015):
3. Krueger established prejudice in the sense that the Oklahoma search might not have occurred had Rule 41(b)(1) been followed
Accepting for purposes of our analysis the Government’s contention that this Rule 41(b)(1) violation does not offend the Fourth Amendment, we next consider whether Krueger established that suppression was justified by showing either (1) 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) intentional disregard for a provision of the Rule. See Pennington, 635 F.2d at 1390. Because Krueger does not contest the district court’s determination that neither the Kansas magistrate judge nor the HSI agents acted in bad faith, meaning that they did not intentionally disregard Rule 41, our analysis focuses on whether Krueger established prejudice.
This Court has not yet had occasion to consider whether suppression is justified when a warrant is issued by a federal magistrate judge who clearly lacks authority to do so under Rule 41(b)(1).7 The district court concluded that suppression was warranted because Krueger demonstrated prejudice in the sense that the federal magistrate judge in the District of Kansas would not have issued Warrant 2—meaning that the Oklahoma search might not have occurred—had Rule 41(b)(1) “been followed to the letter.” Order Granting Mot. to Suppress at 7 & n.3 (internal quotation marks omitted).
On appeal, the Government argues that the district court applied the wrong prejudice standard in determining that the search might not have occurred. According to the Government, instead of asking whether the federal magistrate judge in the District of Kansas could have issued Warrant 2 in compliance with Rule 41, the district court should have asked whether any federal magistrate judge in the Western District of Oklahoma, the district within which Benner’s residence is located, could have issued Warrant 2. We disagree.
Unlike the standard that the district court adopted—which would allow defendants to establish prejudice when the Government seeks and obtains a search warrant from a federal magistrate judge who lacks warrant issuing authority under Rule 41—the Government’s proposed standard would preclude defendants from establishing prejudice in this context so long as the Government hypothetically could have obtained the warrant from a different federal magistrate judge with warrant-issuing authority under the Rule. When it comes to something as basic as who can issue a warrant, we simply cannot accept such a speculative approach. Thus, instead of focusing on what the Government could have done to comply with Rule 41(b)(1), we conclude that prejudice in this context should be anchored to the facts as they actually occurred.9 Cf. Coolidge v. New Hampshire, 403 U.S. 443, 450-51, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) (explaining that a search warrant issued by the state Attorney General was invalid even if a magistrate confronted with the same showing of probable cause would have issued the warrant and rejecting “the proposition that the existence of probable cause renders noncompliance with the warrant procedure an irrelevance”). Accordingly, we adopt the district court’s standard for determining whether a defendant established prejudice as a result of a Rule 41(b)(1) violation and ask whether the issuing federal magistrate judge could have complied with the Rule.
Applying this standard, we conclude that Krueger established prejudice in the sense that the Oklahoma search might not have occurred because the Government would not have obtained Warrant 2 had Rule 41(b)(1) been followed. The Government sought and obtained Warrant 2 from a federal magistrate judge in the District of Kansas who clearly lacked Rule 41 authority to issue a warrant for property already located in Oklahoma. Had the magistrate judge recognized that clear and obvious fact, he surely would not have issued Warrant 2. And, had Warrant 2 not been issued, the Oklahoma search would not have occurred as it did, meaning that the Government would not have had occasion to secure Krueger’s cooperation or seize his hard drive and computer. Although the Government may have been able to obtain a warrant from a federal magistrate judge in the Western District of Oklahoma, meaning it may have ultimately secured Krueger’s cooperation and seized his devices without violating Rule 41, such hypotheticals simply cannot cure the Government’s gross negligence in failing to comply with Rule 41(b)(1) in the first instance. Cf. United States v. Glover, 736 F.3d 509, 514-15, 407 U.S. App. D.C. 189 (D.C. Cir. 2013) (explaining that a warrant issued in “blatant disregard” of a judge’s territorial jurisdiction under 18 U.S.C. § 2518(3) and Rule 41 cannot be excused as a mere “technical defect”).
Because Krueger met his burden of establishing prejudice and because suppression furthers the purpose of the exclusionary rule by deterring law enforcement from seeking and obtaining warrants that clearly violate Rule 41(b)(1), see Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (explaining that the exclusionary rule serves to deter not only deliberate and reckless police conduct but also grossly negligent conduct); United States v. McCane, 573 F.3d 1037, 1045 (10th Cir. 2009) (explaining that the exclusionary rule is appropriate only if the law enforcement activity at issue was not objectively reasonable), we affirm the district court’s order granting Krueger’s motion to suppression, cf. State v. Rupnick, 280 Kan. 720, 125 P.3d 541, 552 (Kan. 2005) (suppressing evidence obtained through a warrant that violated state statute requiring warrants to be executed within the judicial district where the issuing judge resides).
