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.
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)