Publish United States Court of Appeals For The Tenth Circuit
Publish United States Court of Appeals For The Tenth Circuit
Publish United States Court of Appeals For The Tenth Circuit
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
Plaintiff - Appellant,
v. No. 16-1401
Defendant - Appellee.
------------------------------
ELECTRONIC FRONTIER
FOUNDATION,
Amicus Curiae.
_________________________________
these sites frequently leaves a computerized trail, allowing the FBI to find
trail. To monitor access to one such website, the FBI has tried to keep up;
in this case, the FBI seized and assumed control, using malware to identify
Though the FBI controlled the website, users lived throughout the
nation. To find the users, the FBI needed a warrant. But, a paradox existed.
The FBI maintained the website in the Eastern District of Virginia, but
users were spread out all over the country. Finding those users could prove
2
In this prosecution, the district court held that the warrant was
invalid and suppressed evidence resulting from the search. We reverse this
the warrant. Here, we may assume for the sake of argument that the
warrant was invalid. But in our view, the executing agents acted in an
objectively reasonable manner. Thus, the evidence should not have been
suppressed.
not take place with Playpen. To access this website, a user had to employ
But the FBI set out to find the users who were viewing child
Even with these steps, the FBI remained unable to identify and locate the
the FBI to install software onto the Playpen server. When Playpen was
accessed, the software would automatically install malware onto the users
computer. This malware would search the users computer for identifying
software, the FBI learned that Playpen was being accessed by someone in
Colorado. With this users Internet Protocol address, the FBI identified the
4
Executing the warrant, FBI agents found Mr. Workman at home in
and was indicted for receiving and possessing child pornography. See 18
confession and the child pornography found on his computer. For this
motion, Mr. Workman challenged the validity of the warrant issued by the
5
magistrate judge in the Eastern District of Virginia. Mr. Workman did not
warrant had been inadequately particularized and that the magistrate judge
had lacked territorial jurisdiction under Rule 41(b) of the Federal Rules of
evidence. The district court agreed and suppressed the evidence, prompting
III. Even if the warrant had been invalid, the Leon exception would
still apply.
United States v. Krueger, 809 F.3d 1109, 1113-14 (10th Cir. 2015).
6
evidence can be considered admissible if the executing agents could
reasonably believe that the warrant was valid. The district court concluded
that this exception did not apply, and Mr. Workman defends that
For the sake of argument, we assume that (1) the magistrate judge in
the Eastern District of Virginia lacked authority to issue the warrant and
federal law or a federal rule. See United States v. Potts, 586 F.3d 823, 832
(10th Cir. 2009) (assuming a constitutional violation and holding that the
search, where the Leon exception does not apply. We disagree with Mr.
Workman.
to suppress. United States v. Krueger, 809 F.3d 1109, 1113 (10th Cir.
United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000).
7
involves only simple, isolated negligence . . . . Davis v. United States,
564 U.S. 229, 238 (2011) (citations omitted) (quoting United States v.
Leon, 468 U.S. 897, 909 (1984) and Herring v. United States, 555 U.S.
135, 137 (2009)). The Supreme Court has identified five situations where
The present case does not fit any of these five situations. But Mr.
opinions in Herring v. United States, 555 U.S. 135 (2009), and Arizona v.
officers had mistakenly relied on a warrant even though it had been earlier
recalled. This issue arose when a clerk mistakenly told a law enforcement
officer that an arrest warrant had been issued for a named individual. 555
U.S. at 137. With this information, the officer arrested the individual. Id.
the officer was relying on the existence of a warrant that had been recalled
months earlier. Id. at 138. The Supreme Court agreed, explaining that
misconduct, and here there was nothing to deter because the officer was
the Supreme Court applied the Leon exception even though the warrant had
outstanding arrest warrant. 514 U.S. at 4. The arrest led to a search, which
learned that the computerized entry was a mistake, as the prior arrest
9
warrant had been quashed. Id. Even though the warrant had been quashed,
the Supreme Court held that the evidence was admissible because the
Under Herring and Evans, the Leon exception applies even if the
have relied on the warrant, just as the agents had relied in Herring and
misconduct to deter. Herring, 555 U.S. at 147-48; Evans, 514 U.S. at 15-
16. 2 Here too there was nothing to deter if the agents had mistakenly relied
1
Mr. Workman argues that the warrant here was void ab initio and that
a valid warrant had earlier existed in Herring and Evans. This distinction
is invalid for two reasons. First, the warrant here was not void ab initio,
for the warrant could validly be executed by extracting data from
computers within the magistrate judges district (the Eastern District of
Virginia). E.g., United States v. Anzalone, 208 F. Supp. 3d 358, 372 (D.
Mass. 2016). Second, in Herring and Evans, the warrants were no longer in
existence by the time of the searches. The prior existence of the warrants
had no bearing on the applicability of the Leon exception. For both
reasons, we reject Mr. Workmans effort to distinguish Herring and Evans.
2
Prior to Herring, the Sixth Circuit Court of Appeals had held that the
Leon exception did not apply when the judge lacked legal authority to issue
10
on the magistrate judges authority to issue the warrant. As a result,
Herring and Evans would require us to apply the Leon exception even if we
that in these cases, there was no question that the third party lawfully
exercised its power in taking whatever action the officers relied on.
the warrant. United States v. Scott, 260 F.3d 512, 515 (6th Cir. 2001). The
court later held that this approach was no longer viable after Herring.
United States v. Master, 614 F.3d 236, 242-43 (6th Cir. 2010).
3
In United States v. Krueger, 809 F.3d 1109 (10th Cir. 2015), we
upheld suppression of evidence when a magistrate judge authorized a
search in another district. In upholding the district courts ruling, we stated
that suppression furthers the purpose of the exclusionary rule by deterring
law enforcement from seeking and obtaining warrants that clearly violate
Rule 41(b)(1). 809 F.3d at 1117 (citations omitted). But we did not
consider the Leon exception because the government had waived the issue.
Id. at 1113 n.5.
11
See pp. 9-10, above. Mr. Workman does not explain why he believes that
have constituted mistakes just like the mistake that we have assumed here.
Mr. Workman suggests that the mistake in our case rendered the
constraints. Lets assume, for the sake of argument, that Mr. Workman is
right and that the warrant lacked any legal effect. In Herring and Evans,
law enforcement officers had based the searches on warrants that were no
12
IV. The agents acted with an objectively reasonable belief in the
validity of the warrant.
The district court did not apply the Leon exception, mistakenly
thinking that it did not apply. Thus, we must consider this exception in the
well-trained agent would have known that the warrant was invalid despite
the magistrate judges authorization. United States v. Leon, 468 U.S. 897,
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
4
Mr. Workman and the amicus curiae also argue that the search was
unconstitutional because the warrant lacked particularity. But Mr.
Workman and the amicus curiae do not question the executing agents
objective reasonableness in regarding the warrant as adequately
particularized.
13
With these facts, the executing agents could reasonably rely on the
have recognized geographic constraints that had escaped the notice of the
this statute, the magistrate judge issuing the warrant had authority only in
Virginia. For many downloads, the data would move among districts, but
See United States v. Rowland, 145 F.3d 1194, 1207 (10th Cir. 1998)
(holding that the Leon exception was satisfied because the absence of
Criminal Procedure. The parties appear to agree that Rule 41(b) was
14
satisfied if the FBIs method of extracting the data constituted a tracking
the affiant did not identify the FBIs method of extracting data
as a tracking device and
It is true that the affiant and magistrate judge never mentioned the term
tracking device, and the FBIs method differs from more conventional
issues and could reasonably defer to the magistrate judge on these nuanced
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
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]
States v. Taxacher, 902 F.2d 867, 872 (11th Cir. 1990). Thus, objective
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).
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
5
See United States v. Jones, ___ F. Supp. 3d ___, 2017 WL 511883, at
*4 (S.D. Ohio Feb. 2, 2017) (holding that issuance of the same warrant was
authorized by Rule 41(b)(4)); United States v. Austin, ___ F. Supp. 3d ___,
2017 WL 496374, at *4 (M.D. Tenn. Feb. 2, 2017) (same); United States v.
Sullivan, ___ F. Supp. 3d ___, 2017 WL 201332, at *6 (N.D. Ohio Jan. 18,
2017) (same); United States v. Bee, No. 16-00002-01-CR-W-GAF, 2017
WL 424905, at *4 (W.D. Mo. Jan. 13, 2017) (unpublished) (report and
recommendation by magistrate judge, concluding that issuance of the same
warrant was authorized by Rule 41(b)(4)), adopted 2017 WL 424889 (W.D.
Mo. Jan. 31, 2017) (unpublished); United States v. Lough, 221 F. Supp. 3d
770, 777 (N.D. W. Va. 2016) (holding that issuance of the same warrant
was authorized by Rule 41(b)(4)); United States v. Smith, No. 15-CR-
00467, slip op. at 14-15 (S.D. Tex. Sept. 28, 2016) (unpublished) (same);
16
Falso, 544 F.3d 110, 128-29 (2d Cir. 2008) (stating that a split among
These eight federal judges would have been mistaken if the warrant
here were invalid. But executing agents could reasonably have made the
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
United States v. Jean, 207 F. Supp. 3d 920, 942-43 (W.D. Ark. 2016)
(same).
6
The government also argues that the affiant could reasonably rely on
prior warrants authorizing the same investigative method. We need not
consider this argument.
17