Another Appeals Court Denies Suppression Of Evidence Obtained With An Invalid FBI Warrant

Legal Issues

from the so-much-for-valid-warrants-being-better-than-invalid-ones dept

A second appeals court has handed down a ruling on the constitutionality of the Network Investigative Technique (NIT) deployed by the FBI during its Playpen child porn investigation. The Tenth Circuit Appeals Court overturned the suppression of evidence granted by the lower court, ruling that the FBI’s NIT warrant was invalid but that the agent’s “good faith” reliance on the warrant prevented exclusion of the evidence.

Multiple courts have found the NIT warrant invalid. The warrant was obtained in Virginia but the search the FBI’s malware performed accessed computers all over the world. Prior to the recent Rule 41 changes, warrant execution was limited to the jurisdiction it was obtained in. The Appeals Court worked around the jurisdictional limit by reasoning the NIT was sent from Virginia and returned info gathered in the same jurisdiction. It just kind of glossed over the part where computers located all over the nation were briefly infected by the NIT to obtain the information needed to pursue suspects.

The Eighth Circuit Appeals Court decision [PDF] finds more problems with the NIT warrant and execution than the Tenth Circuit did. The consolidated appeal, however, ultimately finds in favor of the government, overturning two lower court suppression orders.

First, the good news. The appeals court finds the FBI does indeed need warrants to perform these searches, even if IP addresses aren’t necessarily protected by the Fourth Amendment.

In this case, the FBI sent computer code to the defendants’ respective computers that searched those computers for specific information and sent that information back to law enforcement. Even if a defendant has no reasonable expectation of privacy in his IP address, he has a reasonable expectation of privacy in the contents of his personal computer. […] Moreover, the NIT retrieved content from the defendants’ computers beyond their IP addresses. We conclude the execution of the NIT in this case required a warrant.

The court also disposes of the government’s “but it’s kind of just a tracking device” argument:

Although plausible, this argument is belied by how the NIT actually worked: it was installed on the defendants’ computers in their homes in Iowa. The government rightly points out that our court interprets Rule 41 flexibly in light of advances in technology… but we agree with the district court that the “virtual trip” fiction “stretches the rule too far,” We agree with the majority of courts that have reviewed the NIT warrant. These courts have concluded that “the plain language of Rule 41 and the statutory definition of ‘tracking device’ do not . . . support so broad a reading as to encompass the mechanism of the NIT used in this case.” Id. Thus, we hold that the NIT warrant exceeded the magistrate judge’s jurisdiction.

It also agrees with the lower courts’ findings the warrant was invalid from the moment it was obtained, since the NIT was clearly going to be traveling outside of the issuing judge’s jurisdiction. But that’s where the good news ends. The appeals court applies the “good faith” exception and declares the requesting agent — who knew the NIT would travel outside the jurisdiction and suggested as much in the warrant request — could rely on a warrant signed by a judge to execute these extrajurisdictional searches.

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.” We, however, will not find an obvious deficiency in a warrant that a number of district courts have ruled to be facially valid. 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.” Law enforcement did not demonstrate bad faith, and we will apply the Leon balancing test as instructed by the Supreme Court.

So, law enforcement officers are not required to know the legal limits of the warrants they seek. Apparently, neither are judges, as the judge signed off on this warrant despite being told it would be executed outside of his jurisdiction.

But that’s not the worst part of the opinion. The worst part is this: the court says there’s no deterrent value in suppressing evidence obtained with a facially-invalid warrant because the law changed after the fact.

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.

Under this rationale, anyone currently incarcerated for marijuana possession or distribution in states where weed is now legal should have their sentences immediately vacated. After all, there’s no deterrent effect in keeping them locked up, now that both actions have become legal.

So, it’s now 2-0 in favor of the FBI in federal appeals courts. In the future, its NIT activities won’t receive much scrutiny. But it appears everything it did in violation of Rule 41 prior to the rule changes is being forgiven by higher courts — whether with generous applications of the “good faith” doctrine or by making the Rule 41 changes effectively retroactive.

Filed Under: 10th circuit, 4th amendment, 8th circuit, appeals court, evidence, fbi, malware, nit, playpen