CA8 upholds Playpen warrant strictly on GFE despite Rule 41 violation

Playpen warrant upheld purely on good faith exception of Davis and Herring. Rule 41 was violated, but the court finds the costs of exclusion outweight deterrence, particularly where the rule was modified to permit such later warrants. United States v. Horton, 2017 U.S. App. LEXIS 13333 (8th Cir. July 24, 2017):

Having determined that the Leon exception may apply to a warrant void ab initio, the question remains whether it should apply here. “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring, 555 U.S. at 144. “As with any remedial device, the rule’s application has been restricted to those instances where its remedial objectives are thought most efficaciously served.” Arizona, 514 U.S. at 11. “Suppression of evidence … has always been our last resort, not our first impulse.” Hudson, 547 U.S. at 591. In this case, the district court found that because “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 … the good faith exception is inapplicable.” Croghan, 209 F. Supp. 3d at 1093. We disagree.

Because Leon provides an exception for good faith, we apply it as long as the circumstances do not demonstrate bad faith, such as:

(1) when the affidavit or testimony supporting the warrant contained a false statement made knowingly and intentionally or with reckless disregard for its truth, thus misleading the issuing judge; (2) when the issuing judge “wholly abandoned his judicial role” in issuing the warrant; (3) when the affidavit in support of the warrant is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) when the warrant is “so facially deficient” that no police officer could reasonably presume the warrant to be valid.

Houston, 665 F.3d at 995 (quoting United States v. Proell, 485 F.3d 427, 431 (8th Cir. 2007)).

The defendants argue that the NIT warrant demonstrates such bad faith. The defendants argue that the NIT warrant affidavit exhibited a reckless disregard for its truth by listing the Eastern District of Virginia as the place to be searched, when law enforcement knew that computers could be searched anywhere in the country. At least one court has agreed with this reasoning. See Workman, 205 F. Supp. 3d at 1264 (“In my view, had [the magistrate judge] understood that the NIT technology would search computers in other districts—rather than track information as it traveled from her district to others—she probably would not have issued the NIT Warrant given the limitations of the Rule.”). The warrant, however, discusses at length the NIT and how it would be used to connect to computers “wherever located.” Even if it were misleading to label the place to be searched as the Eastern District of Virginia, a reasonable reader would have understood that the search would extend beyond the boundaries of the district because of the thorough explanation provided in the attached affidavit. This does not amount to a reckless disregard for the truth.

The defendants also argue that the NIT warrant was facially deficient because FBI agents should have known that a warrant purporting to authorize thousands of searches throughout the country could not be valid. Specifically, Horton argues that “there can be no credible argument that officers reasonably believed that none of the 214,898 members of [Playpen] were located outside of Virginia.” E.g., In re Warrant to Search a Target Compt. at Premises Unknown, 958 F. Supp. 2d 753 (S.D. Tex. 2013) (finding a similar warrant that exceeded the territorial limits of Rule 41 invalid). We, however, will not find an obvious deficiency in a warrant that a number of district courts have ruled to be facially valid. See, e.g., Johnson, 2016 U.S. Dist. LEXIS 145180, 2016 WL 6136586, at *5; Jean, 207 F. Supp. 3d at 943. Further, we have declined to impose an obligation on law enforcement to “know the legal and jurisdictional limits of a judge’s power to issue interstate search warrants.” Houston, 665 F.3d at 996. Law enforcement did not demonstrate bad faith, and we will apply the Leon balancing test as instructed by the Supreme Court.

“For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” Davis, 564 U.S. at 237. Because Rule 41 has been updated to authorize warrants exactly like this one, there is no need to deter law enforcement from seeking similar warrants. As noted above, we do not believe that law enforcement acted in bad faith, and “[e]xclusion of the evidence seized pursuant to the NIT warrant would serve little deterrent purpose where the mistaken conduct of the magistrate judge, not the officers, invalidated the warrant.” Taylor, 2017 U.S. Dist. LEXIS 61417, 2017 WL 1437511, at *16. And the costs of exclusion in this case are substantial. Suppression here would extend beyond the present defendants and impact multiple cases within this circuit. On balance, the marginal benefit of deterrence fails to outweigh the associated costs: “letting guilty and possibly dangerous defendants go free—something that ‘offends basic concepts of the criminal justice system.'” Herring, 555 U.S. at 141 (quoting Leon, 468 U.S. at 908). We therefore apply the Leon exception to this case and reverse the district court’s grant of suppression.