S.D.Iowa joins minority and finds Playpen NIT warrant violation of Rule 41 also a Fourth Amendment violation. United States v. Croghan, 2016 U.S. Dist. LEXIS 127479 (S.D.Iowa Sept. 19, 2016):
The Court notes that the NIT Warrant at issue in this case has resulted in a great deal of litigation across the country. The numerous district courts to consider motions similar to the present Motions to Suppress have reached varying conclusions on the legal issues at play. At least two courts have concluded that the NIT Warrant was unlawfully issued and suppressed all fruits of it. See, e.g., United States v. Levin, No. 15-10271, 2016 U.S. Dist. LEXIS 52907, 2016 WL 2596010 (D. Mass. May 5, 2016); United States v. Arterbury, No. 15-cr-182, Clerk’s No. 42, 2016 U.S. Dist. LEXIS 67091 (N.D. Okla. Apr. 25, 2016). Several others have found that while the NIT Warrant may have been issued unlawfully, suppression was not warranted, either under the exclusionary rule in general or pursuant to the Leon good faith exception. See United States v. Torres, No. 5:16-cr-285, 2016 U.S. Dist. LEXIS 122086, 2016 WL 4821223 (W.D. Tex. Sept. 9, 2016); United States v. Henderson, No. 15-cr-565, 2016 U.S. Dist. LEXIS 118608, 2016 WL 4549108 (N.D. Cal. Sept. 1, 2016); United States v. Adams, No. 6:16-cr-11, 2016 U.S. Dist. LEXIS 105471, 2016 WL 4212079 (N.D. Fla. Aug. 10, 2016); United States v. Acevedo-Lemus, No. 15-00137, 2016 U.S. Dist. LEXIS 105195, 2016 WL 4208436 (C.D. Cal. Aug. 8, 2016); United States v. Werdene, No. 15-434, 2016 U.S. Dist. LEXIS 66311, 2016 WL 3002376 (E.D. Pa. May 18, 2016); United States v. Epich, No. 15-cr-163-PP, 2016 U.S. Dist. LEXIS 32459, 2016 WL 953269 (E.D. Wis. Mar. 14, 2016); United States v. Michaud, No 3:15-cr-05351-RJB, 2016 U.S. Dist. LEXIS 11033, 2016 WL 337263 (W.D. Wash. Jan. 28, 2016). And, at least four decisions, three from the Eastern District of Virginia and one from the Western District of Arkansas, have concluded that the magistrate judge possessed adequate authority to issue the NIT Warrant under Rule 41 such that there was no legal violation that would require suppression. See, e.g., United States v. Jean, No. 5:15-cr-50087, 2016 U.S. Dist. LEXIS 123869, 2016 WL 4771096 (W.D. Ark. Sept. 13, 2016); United States v. Eure, No 2:16cr43, 2016 U.S. Dist. LEXIS 99168, 2016 WL 4059663 (E.D. Va. July 28, 2016); United States v. Matish, No. 4:16cr16, 2016 U.S. Dist. LEXIS 82279, 2016 WL 3545776 (E.D. Va. June 23, 2016); United States v. Darby, No. 2:16cr36, 2016 U.S. Dist. LEXIS 74960, 2016 WL 3189703 (E.D. Va. June 3, 2016).
. . .
As Defendants correctly point out in their briefs, Wheelock is plainly distinguishable. See Croghan Br. at 19. In Wheelock, law enforcement obtained the defendant’s IP address from the defendant’s ISP. Here, by contrast, law enforcement caused an NIT to be deployed directly onto Defendants’ home computers, which then caused those computers to relay specific information stored on those computers to the Government without Defendants’ consent or knowledge. There is a significant difference between obtaining an IP address from a third party and obtaining it directly from a defendant’s computer. See Riley, 134 S. Ct. at 2492-93 (finding a distinction between evidence about phone usage obtained from the phone company and evidence about phone usage obtained directly from the phone itself). If a defendant writes his IP address on a piece of paper and places it in a drawer in his home, there would be no question that law enforcement would need a warrant to access that piece of paper-even accepting that the defendant had no reasonable expectation of privacy in the IP address itself. Here, Defendants’ IP addresses were stored on their computers in their homes rather than in a drawer. Law enforcement has admitted, however, that it had no way to learn Defendants’ IP addresses without deploying the NIT and essentially forcing Defendants’ computers to relay identifying information to Virginia. While the IP addresses may have themselves been evidence of a crime, Defendants nonetheless had a reasonable expectation of privacy in the locations where the IP addresses were stored, necessitating that law enforcement obtain a valid warrant before searching such locations. See, e.g., United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008) (recognizing that individuals generally have an objectively reasonable expectation of privacy in their personal computers); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (“Individuals generally possess a reasonable expectation of privacy in their home computers.”). This distinction supports the Court’s conclusion that a valid warrant was required to obtain information directly from Defendants’ home computers, even assuming the Defendants lacked an objectively reasonable expectation of privacy in the information actually gathered.
It is clear in this case that neither the search pursuant to the NIT Warrant nor the searches pursuant to the Iowa Warrants would have occurred without the violation of Rule 41(b). Had Rule 41 been complied with, law enforcement would not have obtained Defendants’ IP addresses, would not have been able to link those IP addresses to Defendants through subsequent investigation and the use of administrative subpoenas, and would not have had sufficient probable cause to obtain the Iowa Warrants. Thus, Defendants have satisfied their burden to prove that they were prejudiced by the Rule 41(b) violation. Suppression is an appropriate means to deter law enforcement from seeking warrants from judges lacking jurisdiction to issue them, and this deterrence function outweighs the societal costs associated with suppression. Moreover, the Court finds that law enforcement was sufficiently experienced, and that there existed adequate case law casting doubt on magisterial authority to issue precisely this type of NIT Warrant, that the good faith exception is inapplicable. See Levin, 2016 U.S. Dist. LEXIS 52907, 2016 WL 2596010, at *13 (finding that the good faith exception would be inapplicable even if the Rule 41(b) violation was not constitutional because the “conduct at issue here can be described as ‘systemic error or reckless disregard of constitutional requirements'” and because “it was not objectively reasonable for law enforcement-particularly ‘a veteran FBI agent with 19 years of federal law enforcement experience’—to believe the NIT Warrant was properly issued considering the plain mandate of Rule 41(b)” (citing 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.'”)); Croghan Br. at 20-21 (citing case law supporting a conclusion that law enforcement should have been aware that Rule 41(b) had jurisdictional limits that would prevent issuance of the NIT Warrant).
