CA8: Exceeding the 30 day notice requirement for delayed notice under 18 U.S.C. § 3103a(b) not a Fourth Amendment violation

The government identified a child pornography server in Nebraska named Pedobook with sophisticated software designed to obscure the identity of all visiters. Rather than shut it down, they got a warrant to install tracking software on the computer and had a 30 day delay of notice requirement under 18 U.S.C. § 3103a(b). The 30 day limit was violated, but that’s not a violation of the Fourth Amendment. United States v. Welch, 2016 U.S. App. LEXIS 976 (8th Cir. Jan. 21, 2016):

Welch argues the district court erred in admitting evidence obtained as a result of the NIT warrant because he was provided notice beyond the thirty-day time period and that such delay violated Rule 41, and thereby the Fourth Amendment. “When reviewing a district court’s denial of a suppression motion, we review for clear error the district court’s factual findings and review de novo whether the Fourth Amendment was violated.” United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007). Importantly, a Rule 41 violation amounts to a violation of the Fourth Amendment warranting exclusion “only if a defendant is prejudiced or if reckless disregard of proper procedure is evident.” United States v. Spencer, 439 F.3d 905, 913 (8th Cir. 2006).

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As we have explained, however, a procedural violation is not per se an unreasonable search and seizure in violation of the Fourth Amendment. See United States v. Freeman, 897 F.2d 346, 348-49 (8th Cir. 1990). Welch must show, in addition to the Rule 41 violation, either that he was prejudiced by the violation or that the investigators recklessly disregarded proper procedure. Id. Welch argues the delay was a reckless disregard of proper procedure because it extended so far beyond the thirty-day period. We disagree.

The application for the search warrant requested authorization to postpone notice “until 30 days after any individual accessing [PedoBook] has been identified to a sufficient degree as to provide notice.” The NIT warrant indicated a thirty-day delay had been granted, but it did not specify whether that period ran from execution of the warrant or from identification of an individual. Because the warrant application specifically requested the latter, it appears the officers’ delay was a good-faith application of the warrant rather than a deliberate violation of Rule 41. This conclusion is corroborated by the agent that swore out the affidavit and applied for the NIT warrant, who testified that the “delayed notice period was to begin when the government identified the true name user of an individual that accessed one of these three websites.” Believing the warrant ran from the point at which they identified Welch as the individual at that address accessing PedoBook, officers promptly provided him with notice. That agents did not provide Welch an actual copy of the NIT warrant again appears to be an error made in good faith and not a deliberate procedural violation. The district court’s finding that any Rule 41 violation was not due to reckless disregard of proper procedure was not clearly erroneous.