There is no reasonable expectation of privacy in IP addresses, but planting software on a computer to cause it to transmit its address is “unquestionably a search.” Recognizing the split of authority, Rule 41 was violated, but the court declines to suppress because of the good faith exception. United States v. Torres\, 2016 U.S. Dist. LEXIS 122086 (W.D.Tex. Sept. 9, 2016):
This Court disagrees with the reasoning in Darby and Matish, and instead finds persuasive the reasoning in Michaud, a case from the Western District of Washington, addressing the NIT Warrant. 2016 WL 337263. The court in Michaud reasoned that the installation of the NIT “occurred on the government-controlled computer, located in the Eastern District of Virginia,” because the activating computer in Michaud, like the “activating computer” at issue in the instant case, never physically entered the Eastern District of Virginia. Id. at *6. The Michaud court concluded that “even applying flexibility to Rule 41(b) … the NIT Warrant technically violates the letter, but not the spirit, of Rule 41(b).” Id. at *6. Likewise, this Court finds that the “activating computer” was never physically present within the Eastern District of Virginia, and that any digital presence of the “activating computer” was insufficient to convey jurisdiction under Rule 41(b)(4).
Bolstering this argument, on April 28, 2016, the Supreme Court submitted the following proposed amendment to Rule 41(b) to the Congress:
(b) at the request of a federal law enforcement officer or an attorney for the government . . .
(6) 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:
(A) the district where the media or information is located has been concealed through technological means; or …
Letter from Justice John G. Roberts to the Honorable Paul D. Ryan and the Honorable Joseph R. Biden, Jr. (Apr. 28, 2016), www.uscourts.gov/file/19848/download. This proposed amendment, if adopted, will directly address the issue before the Court today. Until that time, the existence of the proposed amendment indicates at a minimum that there is currently ambiguity as to the state of the law.
Clearly, Rule 41(b), as it applies to electronic searches, is currently an ambiguous area of the law where reasonable minds may differ. Nevertheless, this Court finds that the plain language of Rule 41(b)(4) did not grant the magistrate judge in the Eastern District of Virginia the jurisdiction to issue the NIT Warrant at issue here. It is inappropriate for this Court to engage in a process of finesse justifying an ethereal presence of the defendant’s computer in Virginia, where the plain language of the rule as now written does not provide jurisdiction under these circumstances. As no provision of Rule 41(b) gave the magistrate judge authority to issue the NIT warrant, the warrant technically violates Rule 41.
. . .
Applying the exclusionary rule here would “exact a substantial social cost for the vindication of Fourth Amendment rights,” and could result in the suppression of a significant quantity of evidence currently being used to prosecute individuals who allegedly downloaded child pornography from “Website A” during a two-week period in 2015. See Rakas, 439 U.S. at 137. There is no evidence that the violation of Rule 41(b) was willful, that it was acquired in bad faith, or that suppression of the evidence at issue here will deter future illegality. Rather, the instant NIT warrant has brought to light the need for Congressional clarification regarding a magistrate’s authority to issue a warrant in the internet age, where the location of criminal activity is obscured through the use of sophisticated systems of servers designed to mask a user’s identity. Suppression is not warranted here, and Mr. Torres’ Motion to Suppress is DENIED (Dkt. # 23).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)