CA10 assumes Playpen warrant violated Rule 41 and upholds it solely on GFE

Assuming that Playpen search warrant for child pornography in this case issued in the Eastern District of Virginia was unlawful, the good faith exception would still apply to them. There was no reason the officers would not rely on them in good faith. United States v. Workman, 2017 U.S. App. LEXIS 13131 (10th Cir. July 21, 2017). Explaining the evidence:
On the good faith exception:

We start with the presumption that the executing agents “acted in good-faith reliance upon the warrant.” United States v. Campbell, 603 F.3d 1218, 1225 (10th Cir. 2010). This presumption is bolstered by what the executing agents would have known:

1. The software was installed in a government server located in the Eastern District of Virginia.

2. The magistrate judge, who issued the warrant, was in the Eastern District of Virginia.

3. All of the information yielded from the search would be retrieved in the Eastern District of Virginia.

With these facts, the executing agents could reasonably rely on the magistrate judge’s authority to issue a warrant authorizing installation of software and retrieval of information in the Eastern District of Virginia.

If the executing agents had sophisticated legal training, they might have recognized geographic constraints that had escaped the notice of the magistrate judge. These geographic constraints exist in both the Federal Magistrates Act and the Federal Rules of Criminal Procedure.

One potential problem involved the Federal Magistrates Act. Under this statute, the magistrate judge issuing the warrant had authority only in the Eastern District of Virginia. 28 U.S.C. § 636(a). But this magistrate judge authorized installation of software only in the Eastern District of Virginia. For many downloads, the data would move among districts, but the executing agents lacked precedent on whether magistrate judges could authorize a search of electronic data when it moves across other districts. See United States v. Rowland, 145 F.3d 1194, 1207 (10th Cir. 1998) (holding that the Leon exception was satisfied because the absence of Tenth Circuit precedent made it reasonable for the executing officers to rely on the magistrate judge’s authorization).

A second potential problem involved Rule 41(b) of the Rules of Criminal Procedure. The parties appear to agree that Rule 41(b) was satisfied if the FBI’s method of extracting the data constituted a “tracking device.” Mr. Workman insists that

• the affiant did not identify the FBI’s method of extracting data as a “tracking device” and

• the FBI’s method of extracting the data did not operate as a tracking device.

It is true that the affiant and magistrate judge never mentioned the term “tracking device,” and the FBI’s method differs from more conventional tracking devices. But the executing agents lacked precedents on these issues and could reasonably defer to the magistrate judge on these nuanced legal issues. See Rowland, 145 F.3d at 1207.

We expect agents executing warrants to be “reasonably well-trained,” but we do not expect them to understand legal nuances the way that an attorney would. See United States v. Corral-Corral, 899 F.2d 927, 938-39 (10th Cir. 1990) (stating that for the Leon exception, we do not require law enforcement officers to appreciate “‘constitutional intricacies’” under “‘the standards applicable to lawyers’” (quoting United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985))); see United States v. Leary, 846 F.2d 592, 609 (10th Cir. 1988) (“[W]e are not expecting the [executing agents] to anticipate legal determinations or resolve ambiguities in the law.”). “[B]ecause a reasonable jurist has more legal training than a reasonably well-trained officer, what would be reasonable for a well-trained officer is not necessarily the same as what would be reasonable for a jurist.” United States v. Taxacher, 902 F.2d 867, 872 (11th Cir. 1990). Thus, objective reasonableness sometimes turns on the clarity of existing law. See United States v. Barajas, 710 F.3d 1102, 1111 (10th Cir. 2013) (holding that the Leon exception applied in part because the law was “very much unsettled”).

For purposes of our discussion, we assume (without deciding) that the extraction of data from a user’s computer in another district would violate the Federal Magistrates Act and the Federal Rules of Criminal Procedure. But if a violation took place, it has escaped the notice of eight federal judges who have held that the same warrant complied with federal law and the federal rules even though data was being extracted from computers outside the Eastern District of Virginia. See United States v. Falso, 544 F.3d 110, 128-29 (2d Cir. 2008) (stating that a split among panel members shows that reasonable minds could differ, indicating satisfaction of the Leon exception).

These eight federal judges would have been mistaken if the warrant here were invalid. But executing agents could reasonably have made the same mistake and reasonably relied on the magistrate judge’s decision to issue the warrant. See United States v. Gonzales, 399 F.3d 1225, 1228-29 (10th Cir. 2005) (“[O]fficers are generally not required to second-guess the magistrate’s decision in granting a warrant.”). Thus, the district court erred in granting the motion to suppress.

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