In a child porn investigation, the government took over a server with child porn known as “Website A.” “The government used a “Network Investigative Technique (“NIT”) [warrant] that would allow the government covertly to transmit computer code to Website A users.” The court finds the NIT warrant unauthorized under the USMJ statute and Rule 41. This is a substantive and not merely ministerial issue. Thus, there could be no good faith exception. United States v. Levin, 2016 U.S. Dist. LEXIS 52907 (D.Mass. April 20, 2016):
As an initial step in their investigation, FBI agents seized control of Website A in February 2015. See id. at 21-23. Rather than immediately shutting it down, agents opted to run the site out of a government facility in the Eastern District of Virginia for two weeks in order to identify — and ultimately, to prosecute — users of Website A. See id. at 23. To do this required the deployment of certain investigative tools. See id. at 23-24.
To that end, the government sought and obtained a series of warrants. First, on February 20, 2015, the government procured an order pursuant to Title III from a district judge in the Eastern District of Virginia permitting the government to intercept communications between Website A users. Def.’s Mot., Ex. 2 (“Title III Warrant”), ECF No. 44-2. Second, also on that date, the government obtained a warrant from a magistrate judge in the Eastern District of Virginia to implement a Network Investigative Technique (“NIT”) that would allow the government covertly to transmit computer code to Website A users. NIT Warrant, ECF No. 44-3. This computer code then generated a communication from those users’ computers to the government-operated server containing various identifying information, including those users’ IP addresses. See Aff. Supp. NIT Warrant 24-26.
. . .
Because the violation here involved “substantive judicial authority” rather than simply “the procedures for obtaining and issuing warrants,” Krueger, 809 F.3d at 1115 n.7, the Court cannot conclude that it was merely ministerial; in fact, because Rule 41(b) did not grant her authority to issue the NIT warrant, the magistrate judge was without jurisdiction to do so.11 The government characterizes Levin’s challenge as targeting “the location of the search, not probable cause or the absence of judicial approval.” Gov’t’s Resp. 16. Here, however, because the magistrate judge lacked authority, and thus jurisdiction, to issue the NIT Warrant, there simply was no judicial approval. See United States v. Houston, 965 F. Supp. 2d 855, 902 n.12 (E.D. Tenn. 2013) (“A search warrant issued by an individual without legal authority to do so is ‘void ab initio'”) (quoting United States v. Master, 614 F.3d 236, 241 (6th Cir. 2010)); United States v. Peltier, 344 F.Supp.2d 539, 548 (E.D. Mich. 2004) (“A search warrant signed by a person who lacks the authority to issue it is void as a matter of law.”) (citation omitted); cf. State v. Surowiecki, 184 Conn. 95, 440 A.2d 798, 799 (Mont. 1981) (“[A] lawful signature on the search warrant by the person authorized to issue it [is] essential to its issuance[,]” such that an unsigned warrant is void under state law and confers no authority to act, despite existence of probable cause).
11. For the magistrate judge to have had jurisdiction to issue the warrant under Section 636(a), she must have had authority to do so under Rule 41(b), as the government has pointed to no alternative statutory authority or federal rule that could serve as the basis for such jurisdiction. Moreover, the government’s argument regarding courts’ inherent authority to issue warrants, see Gov’t’s Resp. 20-21, does not extend to magistrate judges, whose authority derives from — and is bounded by — the specific statutory provisions and rules discussed herein.
NITs, while raising serious concerns,12 are legitimate law enforcement tools. Indeed, perhaps magistrate judges should have the authority to issue these types of warrants. See In re Warrant to Search a Target Computer at Premises Unknown, 958 F.Supp.2d at 761 (noting that “there may well be a good reason to update the territorial limits of [Rule 41] in light of advancing computer search technology”).13 Today, however, no magistrate judge has the authority to issue this NIT warrant. Accordingly, the warrant here was void.
12. The Court expresses no opinion on the use of this particular police tactic under these circumstances, but notes that its use in the context of investigating and prosecuting child pornography has given rise to significant debate. See, e.g., The Ethics of a Child Pornography Sting, N.Y. Times, Jan. 27, 2016, http://www.nytimes.com/roomfordebate/2016/01/27/the-ethics-of-a-child-pornography-sting. The continuing harm to the victims of this hideous form of child abuse is the distribution of the photographs and videos in which the victims appear. See, e.g., United States v. Kearney, 672 F.3d 81, 94 (1st Cir. 2012) (internal citations omitted). Unlike those undercover stings where the government buys contraband drugs to catch the dealers, here the government disseminated the child obscenity to catch the purchasers– something akin to the government itself selling drugs to make the sting.
13. Whether magistrate judges should have the authority to issue warrants to search property located outside of their districts under circumstances like the ones presented here has been the subject of recent deliberations by the Advisory Committee on Criminal Rules. See Memorandum from Hon. Reena Raggi, Advisory Committee on Criminal Rules, to Hon. Jeffrey S. Sutton, Chair, Committee on Rules of Practice and Procedure (“Raggi Mem.”) (May 5, 2014); Letter from Mythili Raman, Acting Assistant Attorney General, to Hon. Reena Raggi, Chair, Advisory Committee on the Criminal Rules (“Raman Letter”) (Sept. 18, 2013); cf. Zach Lerner, A Warrant to Hack: An Analysis of the Proposed Amendments to Rule 41 of the Federal Rules of Criminal Procedure, 18 Yale J. L. & Tech. 26 (2016). As Levin points out in his motion, see Def.’s Mot. 18-19, the following proposed amendment to Rule 41(b) is currently under consideration: ***
2. Prejudice
Even were the Court to conclude that the Rule 41(b) violation was ministerial, suppression would still be appropriate, as Levin has demonstrated that he suffered prejudice. See Burgos-Montes, 786 F.3d at 109 (a Rule 41 violation “does not require suppression unless the defendant can demonstrate prejudice”) (emphasis added); cf. Krueger, 809 F.3d at 1117 (affirming district court’s order granting defendant’s motion to suppress “[b]ecause [the defendant] 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)”). “To show prejudice, defendants must show that they were subjected to a search that might not have occurred or would not have been so abrasive had Rule 41[] been followed.” Bonner, 808 F.2d at 869. Here, had Rule 41(b) been followed, the magistrate judge would not have issued the NIT Warrant, and therefore the search conducted pursuant to that Warrant might not have occurred. See Krueger, 809 F.3d at 1116 (holding that defendant suffered prejudice as a result of having been subjected to a search that violated Rule 41(b), since that search “might not have occurred because the Government would not have obtained [the warrant] had Rule 41(b)(1) been followed.”). Contrast United States v. Scott, 83 F.Supp.2d 187, 203 (D. Mass. 2000) (Rule 41(d) violation did not prejudice defendant, since “the nature of the search would not have changed even if [the defendant] had been given a copy of the warrant prior to the search, as required under the rules); United States v. Jones, 949 F.Supp.2d 316, 323 (D. Mass. 2013) (Saris, C.J.) (law enforcement officer’s failure to leave the defendant with a copy of the warrant, as required by Rule 41(f), was not prejudicial).
. . .
To rebut Levin’s prejudice argument, the government appears to ignore the NIT Warrant altogether, baldly stating that “[w]here there is probable cause, judicial approval, and the computer server which the defendant accessed to view child pornography was physically located in the jurisdiction where the issuing magistrate was located, there can be no prejudice to the defendant.” Gov’t’s Resp. 16. Simply put, this is not the standard for determining prejudice, and the government directs the Court to no authority to support its assertion. Moreover, as discussed above, the Rule 41(b) violation here had the effect of vitiating the purported judicial approval so, even by this standard, the government’s argument against prejudice must fail.
3. Good-Faith Exception
Finally, the government argues that, even if the NIT Warrant violated the Federal Magistrates Act and Rule 41(b), the Court ought not exclude the evidence seized pursuant to the NIT Warrant because the law enforcement officers here acted in good faith. See Gov’t’s Resp. 21 (citing United States v. Leon, 468 U.S. 897, 918, 926, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)). Whether the good-faith exception applies where a warrant was void is a question of first impression in this Circuit, and an unresolved question more broadly. See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 1.3(f) n.60 (“It is unclear whether the [Leon good-faith] rule extends to a warrant ‘that was essentially void ab initio’ because of ‘the issuing court’s lack of jurisdiction to authorize the search in the first instance.'”) (quoting United States v. Baker, 894 F.2d 1144, 1147 (10th Cir. 1990)). This Court holds that it does not.
. . .
Even were the Court to hold that the good-faith exception could apply to circumstances involving a search pursuant to a warrant issued without jurisdiction, it would decline to rule such exception applicable here. For one, it was not objectively reasonable for law enforcement — particularly “a veteran FBI agent with 19 years of federal law enforcement experience[,]” Gov’t’s Resp. 7-8 — to believe that the NIT Warrant was properly issued considering the plain mandate of Rule 41(b). See Glover, 736 F.3d at 516 (“[I]t is quite a stretch to label the government’s actions in seeking a warrant so clearly in violation of Rule 41 as motivated by ‘good faith.'”); cf. United States v. McKeever, 894 F.2d 712, 717 (5th Cir. 1990) (good-faith exception did not apply where sheriff “who was the prime mover in obtaining and executing the search … knew both that he had to obtain a warrant from a court of record … and that [the issuing judge] was not a judge of a court of record.”). Moreover, even analyzed under Herring, the conduct at issue here can be described as “systemic error or reckless disregard of constitutional requirements,”26 555 U.S. at 147, and the Court thus concludes that suppression is appropriate.
