CA5, 1 & 10: Even if the Playpen SW was void ab initio, that does not mean the GFE would not apply

Even if, arguendo, the NIT warrant issued in the E.D.Va. was void ab initio for violating Rule 41, that does not mean that the good faith exception cannot apply. The court concludes that it does. United States v. Ganzer, 2019 U.S. App. LEXIS 12203 (5th Cir. Apr. 24, 2019):

With the focus properly on the behavior of the law enforcement officials involved, there is no reason to distinguish warrants that are void ab initio from warrants that are later invalidated or recalled, or even from later-invalidated precedent or statutes—each of which, the Supreme Court has held, can be reasonably relied upon by officers in conducting a search. See Leon, 468 U.S. at 900; Herring, 555 U.S. at 137-38, 144, 147-48; Davis, 564 U.S. at 232, 238-40; Krull, 480 U.S. at 342, 349-50. In other words, the conduct of an officer who reasonably and in good faith relies on a warrant issued by a magistrate lacking jurisdiction to issue it is no more culpable than that of an officer who reasonably and in good faith relies, for instance, on a faulty indication in a database that a recalled warrant remains outstanding. See Herring, 555 U.S. at 137-38, 144, 147-48. See also Werdene, 883 F.3d at 216 (“[T]he issuing magistrate’s lack of authority has no impact on police misconduct, if the officers mistakenly, but inadvertently, presented the warrant to an innocent magistrate.” (citation omitted)); Henderson, 906 F.3d at 1118 (holding that “[a]pplication of the good faith exception does not depend on the existence of a warrant, but on the executing officer’s objectively reasonable belief that there was a valid warrant”). Therefore, we reject Ganzer’s argument that the good faith exception to the exclusionary rule categorically cannot apply to warrants that are void ab initio. This holding is in accordance with the well-reasoned decisions of each of our sister circuits to have considered this issue in the context of the NIT warrant. See Moorehead, 912 F.3d at 968-69; Kienast, 907 F.3d at 527-28; Henderson, 906 F.3d at 1118-19; Werdene, 883 F.3d at 216-17; McLamb, 880 F.3d at 691; Horton, 863 F.3d at 1050-51; Workman, 863 F.3d at 1317-19.

The good faith exception upholds a Playpen warrant, and it’s already settled in the circuit. United States v. AnzaloneUnited States v. AnzaloneUnited States v. Anzalone, 2019 U.S. App. LEXIS 12145 (1st Cir. Apr. 24, 2019); see also United States v. Cookson, 2019 U.S. App. LEXIS 12551 (10th Cir. Apr. 26, 2019).

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