UNITED STATES OF AMERICA v. BRYAN GILBERT HENDERSON
No. 17-10230
United States Court of Appeals, Ninth Circuit
October 23, 2018
D.C. No. 3:15-cr-00565-WHO-1
FOR PUBLICATION
OPINION
Aрpeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding
Argued and Submitted August 14, 2018 San Francisco, California
Filed October 23, 2018
Before: Diarmuid F. O‘Scannlain and Carlos T. Bea, Circuit Judges, and Richard G. Stearns,* District Judge.
Opinion by Judge O‘Scannlain
* The Honorable Richard G. Stearns, United States District Judge for the District of Massachusetts, sitting by designation.
SUMMARY**
Criminal Law
The panel affirmed the district court‘s denial of a motion to suppress evidence, including evidence seized in California, pursuant to a Network Investigative Technique (“NIT“) warrant issued by a magistrate judge in the Eastern District of Virginia, in a case in which the defendant entered a conditional guilty plea to recеipt of child pornography.
The panel held that the NIT warrant violated
Considering whether the violation of Rule 41(b) compels suppression, the panel agreed with the defendant that Rule 41(b) is not merely a technical venue rule, but rather is essential to the magistrate judge‘s jurisdiction to act in this case. The panel held that a warrant purportedly authorizing a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment, and that the Rule 41 violation was a fundamental, constitutional error.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
The panel concluded that the good faith exception to the exclusionary rule applied to bar suppression of the evidence obtained against the defendant pursuant to the NIT warrant. The panel rejected the defendant‘s contention that the good faith exception does not apply to warrants that are void ab initio. The panel rejected the defendant‘s contention that the government acted in bad faith in seeking the warrant, noting that at the time the government applied for the NIT warrant, the legality of the investigative technique was unclear. The panel wrote that there is no evidence that the officers executing the NIT warrant acted in bad faith; and that suppression of the evidence against the defendant is unlikely to deter future violations of this specific kind because the conduct at issue is, after a December 2016 amendment, authorized by
COUNSEL
Hanni M. Fakhoury (argued), Assistant Federal Public Defender; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, Oakland, California; for Defendant-Appellant.
John P. Taddei (argued), Appellate Section; Matthew S. Miner, Deputy Assistant Attorney General; John P. Cronan, Acting Assistant Attorney General; Criminal Division, United States Department of Justice, Washington, D.C.; J. Douglas Wilson, Assistant United States Attorney; Alex G. Tse, United States Attorney; United States Attorney‘s Office, San Francisco, California; for Plaintiff-Appellee.
Mark Rumold and Andrew Crocker, Electronic Frontier Foundation, San Francisco, Califоrnia, for Amicus Curiae Electronic Frontier Foundation.
Jennifer S. Granick, American Civil Liberties Union Foundation, San Francisco, California; Brett Max Kaufman and Vera Eidelman, American Civil Liberties Union Foundation, New York, New York; Linda Lye, American Civil Liberties Union Foundation of Northern California, San Francisco, California; Mateo Caballero, ACLU of Hawai‘i Foundation, Honolulu, Hawai‘i; Kathleen E. Brody, ACLU Foundation of Arizona, Phoenix, Arizona; Mathew dos Santos, ACLU Foundation of Oregon Inc., Portland, Oregon; for Amici Curiae American Civil Liberties Union, ACLU of Northern California, ACLU of Arizona, ACLU of Hawai‘i, and ACLU of Oregon.
O‘SCANNLAIN, Circuit Judge:
In this child pornography case, we must decide whether evidence that was obtained pursuant to a warrant that authorized a search of computers located outside the issuing magistrate judge‘s district must be suppressed.
I
A
In 2014, the Federal Bureau of Investigation (“FBI“) began investigating the internet website upf45jv3bziuctml.onion, “Playpen,” which was used to send and to receive child pornography. Playpen operated on an anonymous network known as “The Onion Router” or “Tor“. To use Tor, the user must download and install the network software on his computer. Tor then allows the user to visit any website without revealing the IP address,1 geographic location, or other identifying information of the user‘s computer by using a network of relay computers.
Playpen operated as a hidden-service website and required users to log in with a username and password to access its discussion forums, private messaging servicеs, and images of child pornography. After determining that Playpen was hosted on servers located in Lenoir, North Carolina, the FBI obtained and executed a valid search warrant in the Western District of North Carolina in January 2015, and seized the Playpen servers. The FBI removed the servers to its facility in Newington, Virginia. Because Tor conceals its users’ locations and IP addresses, additional investigation was required to identify Playpen users. The FBI then operated the Playpen website from a government-controlled server in Newington in the Eastern District of Virginia, from which it obtained a valid court order authorizing it to intercept еlectronic communications sent and received by the site‘s administrators and users.
The FBI later obtained a warrant from a United States magistrate judge in the Eastern District of Virginia on February 20, 2015, authorizing searches for thirty days using what is known as a Network Investigative Technique (“NIT“). Specifically, such “NIT warrant” authorized the search of all “activating” computers—that is, those of any website visitor, wherever located, who logged into Playpen with a username and password.2 The NIT technology is computer code consisting of a set of instructions. When a person logged into the Playpen site, the NIT caused instructions to be sent to his computer, which in turn caused the computer to respond to the government-controlled server with seven pieces of identifying information, including its IP address. The NIT mechanism allowed the FBI, while controlling the website from within the Eastern District of Virginia, to discover identifying information about activating computers, even though Playpen operated on the Tor network.
On March 1, 2015, a person logged into Playpen under the username “askjeff.” The NIT instructions were sent to askjeff‘s computer, which revealed its IP address through its response to the government-controlled server. The computer response also revealed that askjeff had been actively logged into Playpen for more than thirty-two hours since September 2014 and had accessed child pornography. The FBI traced the IP address to an internet service provider (“ISP“), Comcast Corporation, which was served with an administrative subpoena requesting information about the user assigned to the IP address. The IP address turned out to be associated with a computer at the San Mateo, California, home of Bryan Henderson‘s grandmother, with whom Henderson lived. A local federal magistrate judge in the Northern District of California issued a warrant to search the home, where the FBI then discovered thousands of images and hundreds of videos depicting child pornography
B
Henderson was indicted in the Northern District of California on charges of receipt and possession of child pornography, in violation of
Henderson moved to suppress all evidence, including the evidence seized at his grandmother‘s home in California, obtained pursuant to the “NIT warrant” issued by the Eastern District of Virginia.3 The district court denied Henderson‘s motion to suppress.
Henderson then pled guilty to receipt of child pornography, but expressly reserved the right to appeal the district court‘s denial of his motion to suppress. Henderson was sentenced to sixty months in prison and a ten-year term of supervised release.
Henderson timely appealed, chаllenging the denial of his motion to suppress.
II
Henderson argues that the motion to suppress should have been granted because the NIT warrant was issued in violation of
A
Henderson urges that no provision within Rule 41(b) authorizes a magistrate judge to issue the NIT warrant to search computers located outside of her district.
In general, Rule 41(b) permits “a magistrate judge with authority in the district ... to issue a warrant to search for and seize a person or property located within the district.”
However, the government counters that the NIT warrant was nonetheless authorized under Rule 41(b)(4)‘s specific provision for tracking devices, which permits “a magistrate judge with authority in the district ... to issue a warrant to install within the district a tracking device ... to
The government contends that Henderson‘s computer made a “virtual trip” to the government server in the Eastern District of Virginia when he logged into the Playpen website. According to the government, his computer then “brought” the NIT instructions, along with the usual Playpen website content, back with it from the government server to his computer‘s physical location in California. The NIT instructions then caused identifying location information to be transmitted back to the government, just like a beeper or other tracking device would.
We are not persuaded by the government‘s assertions. The NIT instructions did not actually “track the movement of a person or property,” as required by the tracking-device provision.
Interestingly, Rule 41(b) was amended on December 1, 2016—after the issuance of the NIT warrant here—to authorize magistrate judges to issue warrants to search computers located outside their district if “the district where the media or information is located has been concealed through technological means.”
In sum, the NIT mechanism is not a “tracking device” within the meaning of
B
But does a warrant issued in violation of Rule 41(b) compel suppression of evidence? Not necessarily.
Only certain Rule 41 violations justify suppression. The suppression of evidence is “a judicially created remedy designed to safeguard Fourth Amendment
1
Henderson contends that the violation here was fundamental. Specifically, he argues that the NIT warrant violated the Fourth Amendment because, by issuing the warrant in violation of Rule 41(b), the magistrate judge acted beyond her constitutional authority. The government disagrees, characterizing Rule 41(b) as merely a technical “venue provision” that does not implicate the scope of a magistrate judge‘s underlying authority or the Fourth Amendment.
We agree with Henderson that Rule 41(b) is not merely a technical venue rule, but rather is essential to the magistrate judge‘s authority to act in this case.
Federal magistrate judges “are creatures of statute.” NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415 (9th Cir. 1994). The Federal Magistrates Act,
Relevant here, § 636 authorizes magistrate judges to exercise “all рowers and duties conferred or imposed” by the Federal Rules of Criminal Procedure.
Having concluded that the magistrate judge issued a warrant in excess of her jurisdictional authority to do so, we next must determine whether conducting a search pursuant to such a warrant violates the Fourth Amendment. See Negrete-Gonzales, 966 F.2d at 1283 (noting that fundamental Rule 41 violations are those that result in constitutional violations).
The Fourth Amendment to the U.S. Constitution guarantees:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and рarticularly describing the place to be searched, and the persons or things to be seized.
At the time of the framing, it was understood that “[w]hen a warrant is received by [an] officer, he is bound to execute it,” only “so far as the jurisdiction of the magistrate and himself extends.” 4 William Blackstone, Commentaries *291 (cited by Krueger, 809 F.3d at 1123 n.4). And, “[a]cts done beyond, or without jurisdiction,” according to Blackstone, “are utter nullities.” Samuel Warren, Blackstone‘s Commentaries, Systematically Abridged and Adapted 542 (2d. ed. 1856). Sir Matthew Hale likewise wrote that a warrant is valid only “within the jurisdiction of the justice granting or backing the same.” 2 Matthew Hale, Historia Placitorum Coronae 110 n.6 (1736). Thomas Cooley later recognized the same principle in his canonical treatise on American constitutional law: in order for a reasonable search or seizure to be made, “a warrant must issue; and this implies ... a court or magistrate empowered by the law to grant it.” Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 210 (1880) (cited by Krueger, 809 F.3d at 1124).
Contemporary courts have agreed. In United States v. Krueger, for example, the Tenth Circuit considered a territorially deficient warrant issued by a magistrate judge in the District of Kansas that authorized
[L]ooking to the common law at the time of the framing it becomes quickly obvious that a warrant issued for a search or seizure beyond the territorial jurisdiction of a magistrate‘s powers under positive law was treated as no warrant at all—as ultra vires and void ab initio ...—as null and void without regard to potential questions of ‘harmlessness.’
809 F.3d at 1123. Therefore, “a warrant may travel only so far as the power of its issuing official.” Id. at 1124.
Two other circuits have considered this question in relation to the same Eastern District of Virginia NIT warrant at issue here, and each adopted the approach of then-Judge Gorsuch in Krueger. Both circuits concluded that the Rule 41 violation is a fundamental, constitutional error.6 In Werdene, the Third Circuit determined that the NIT warrant was “void ab initio because it violated § 636(a)‘s jurisdictional limitations and was not authorized by any positive law.” 883 F.3d at 214. Citing then-Judge Gorsuch‘s observation in Krueger that, at the time of the framing, such a warrant “was treated as no warrant at all,” the court held that the violation was therefore “of constitutional magnitude.” Id. (citing Krueger, 809 F.3d at 1123 (Gorsuch, J., concurring)). Similarly, in Horton, the Eighth Circuit agreed that the NIT warrant was “invalid at its inception and therefore the constitutional equivalent of a warrantless search.” Horton, 863 F.3d at 1049. Therefore, the Eighth
Circuit concluded, “the NIT warrant was void ab initio, rising to the level of a constitutional infirmity.” Id.
Thе weight of authority is clear: a warrant purportedly authorizing a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment. We agree with our sister circuits’ analysis and conclude that the Rule 41 violation was a fundamental, constitutional error.
C
Even though the Rule 41 violation was a fundamental, constitutional error, suppression of evidence obtained in violation of the Fourth Amendment is still not appropriate if, as it asserts, the government acted in good faith. See Negrete-Gonzales, 966 F.2d at 1283.
Indeed, whether to suppress evidence under the exclusionary rule is a separate question from whether a Fourth Amendment violation has occurred. See Herring v. United States, 555 U.S. 135, 140 (2009); Leon, 468 U.S. at 906. The exclusionary rule applies only when “police conduct [is] sufficiently deliberate that exclusion
1
Henderson contends that the good faith exception to the exclusionary rule should not apply here.
First, Henderson urges that the good faith exception does not apply to warrantless searches, and therefore does nоt apply to searches pursuant to warrants that are void ab initio because they are effectively warrantless. We find no support for such a sweeping assertion.
We have held that the good faith exception “may apply to both technical and fundamental errors” under Rule 41. Negrete-Gonzales, 966 F.2d at 1283. And “our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all the circumstances.” Herring, 555 U.S. at 145 (internal quotation marks omitted).
In focusing on the notion of a warrantless search, Henderson asks the wrong question. Application of the good faith exception does not depend on the existence of a warrant, but on the executing officers’ objectively reasonable belief that there was a valid warrant. “The exclusionary rule was crafted to curb police rather than judicial misconduct.” Herring, 555 U.S. at 142. For example, the Supreme Court has applied the good faith exception where a clerk mistakenly told an officer that an arrest warrant that had been recalled was still outstanding, id. at 137-38, and where officers have relied on a computer entry that mistakenly showed that an arrest warrant existed, Arizona v. Evans, 514 U.S. 1, 15-16 (1995). Contrary to Henderson‘s argument, the exception therеfore may preclude suppression of evidence obtained during searches executed even when no warrant in fact existed—if the officers’ reliance on the supposed warrants was objectively reasonable.
If the exception may apply in cases where an officer relied on a valid warrant which had been revoked or a warrant which never existed, may the exception apply where the officer relied on a warrant subsequently recognized as void due to the issuing judge‘s jurisdictional violation? As the Third Circuit has explained, “the good faith exception applies to wаrrants that are void ab initio because ‘the issuing magistrate‘s lack of authority has no impact on police misconduct.‘” Werdene, 883 F.3d at 216-17 (quoting United States v. Master, 614 F.3d 236, 242 (6th Cir. 2010)). The Eighth Circuit likewise holds that “relevant Supreme Court precedent leads ... to a similar conclusion: that the Leon exception can apply to
2
Henderson next argues that, even if the exception does apply to warrants that are void ab initio, it should not apply here because the government acted in bad faith. Further, Henderson argues that suppression of the evidence would deter similarly improper conduct in the future.
Prior to the Rule 41(b)(6) addition, the Federal Rules of Criminal Procedure did not directly address a NIT-type of warrant. At the time the government applied for the NIT warrant, “the legality of [the] investigative technique [was] unclear.” McLamb, 880 F.3d at 691. In fact, although every circuit court that has addressed the question has found that the NIT warrant violated Rule 41, “a number of district courts have ruled [it] to be facially valid.” Horton, 863 F.3d at 1052. Henderson‘s argument that the government acted in bad faith in seeking the warrant is not compelling.
Furthermore, there is no evidence that the officers executing the NIT warrant acted in bad faith. “To the extent that a mistake was made in issuing the warrant, it was made by the magistrate judge, not by the executing officers.” United States v. Levin, 874 F.3d 316, 323 (1st Cir. 2017). Henderson correctly notes that officers’ reliance on a warrant is not objectively reasonable when the warrant is “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Leon, 468 U.S. at 923; accord. United States v. Luong, 470 F.3d 898, 902 (9th Cir. 2006). However, the NIT warrant sufficiently described the “place” to be searched—any “activating computer“—and specified the seven pieces of identifying information—including the computer‘s IP address—that would be seized, and presented no other facial deficiency that rendered the officers’ reliance unreasonable.
Again, one is left to wonder how an executing agent ought to have known that the NIT warrant was void when several district courts have found the very same warrant to be valid. We agree with our sister circuits that have concluded that “[t]he warrant was ... far from facially deficient.” Werdene, 883 F.3d at 217; accord. McLamb, 880 F.3d at 691; Levin, 874 F.3d at 323; Horton, 863 F.3d at 1052; United States v. Workman, 863 F.3d 1313, 1317-18 (10th Cir. 2017).
Further, suppression of the evidence against Henderson is unlikely to deter future violations of this specific kind, because the conduct at issue is now authorized by
“[A] warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search.” Leon, 468 U.S. at 922 (internal quotation marks omitted). The NIT warrant is not facially deficient and there is no specific evidence that the officers did not act in good faith. We are satisfied that the NIT warrant falls squarely within the Leon gоod faith exception: the executing officers exercised objectively reasonable reliance on the NIT warrant, and “the marginal or nonexistent benefits produced by suppressing evidence ... cannot justify the substantial costs of exclusion.” Id. Indeed, the five circuits that have addressed motions to suppress evidence obtained pursuant to the NIT warrant have denied suppression on the basis of the good faith exception. See Werdene, 883 F.3d at 218-19; McLamb, 880 F.3d at 690-91; Levin, 874 F.3d at 324; Horton, 863 F.3d at 1051-52; Workman, 863 F.3d at 1319-21.
We agree with our sister circuits, and hold that the good faith exception applies to bar suppression of evidence obtained against Henderson pursuаnt to the NIT warrant.
III
The judgment of the district court is AFFIRMED.