AMENDED MEMORANDUM & ORDER
I. INTRODUCTION
Alex Levin is charged with possession of child pornography. Compl. 1, ECF No. 1.
Levin has moved to suppress,the evidence obtained as a result of the issuance of the NIT Warrant, arguing that the NIT Warrant is void for want of jurisdiction under the Federal Magistrates Act, 28 U.S.C. § 636(a), and additionally that it violated Federal Rule of Criminal Procedure 41(b). Def.’s Mot. Suppress Evidence (“Def.’s Mot.”) 5-6, ECF No. 44. The government contends that the NIT Warrant was valid and that, in any event, suppression is not an appropriate remedy on these facts. Gov’t’s Resp. Def.’s Mot. Suppress (“Gov’t’s Resp.”) 1, ECF No. 60.
II. FACTUAL BACKGROUND
This case involves a far-reaching and highly publicized investigation conducted by the Federal Bureau of Investigation in early 2015 to police child pornography.
To that end, the government sought and obtained a series of warrants. First, on February 20, 2015, the government procured an order pursuant to Title III from a district judge in the Eastern District of Virginia permitting the government to intercept communications between Website A users. Def.’s Mot., Ex. 2 (“Title III Warrant”), EOF No. 44-2. Second, also on that date, the government obtained a warrant from a magistrate judge in the Eastern District of Virginia to implement a Network Investigative Technique (“NIT”) that would allow the government covertly to transmit computer code to Website A users.
Through the use of the NIT, government agents determined that a Website A user called “Manakaralupa” had accessed several images of child pornography in early March 2015, and they traced the IP address of that user to Levin’s home address in Norwood, Massachusetts. Def.’s Mot., Ex. 1 (“Residential Warrant”), Aff. Supp. Application for Search Warrant (“Aff. Supp. Residential Warrant”) 11-12, EOF No. 44-1. On August 11, 2015, law enforcement officials obtained a third and final warrant (the “Residential Warrant”) from Magistrate Judge Bowler in this District to search Levin’s home. See Residential Warrant. Agents executed the Residential Warrant on August 12, 2015, and in their search of Levin’s computer, identified
Levin was súbsequently indicted on one count of possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B). Indictment, ECF No. 8. He has .since moved to suppress all evidence seized pursuant to the NIT Warrant and the Residential Warrant.
III. ANALYSIS
In support of his motion to suppress, Levin contends that the NIT Warrant violated the territorial restrictions on the issuing magistrate judge’s authority,
A. Magistrate Judge’s Authority Under the Federal Magistrates Act and Rule 41(b)
Levin argues that the issuance of the NIT Warrant ran afoul of both Section 636(a) of the Federal-Magistrates Act and Rule 41(b) of the Federal Rules of Criminal Procedure, See Def.’s Mot. 5-7,12. The conduct underlying each of these alleged violations is identical: the magistrate judge’s issuance of a. warrant to search property located outside of her judicial district. See id. Moreover, because Section 636(a) expressly incorporates any authorities granted to magistrate judges by the Federal Rules of Criminal Procedure, see infra Part 111(A)(1), the Court’s analyses of whether the NIT Warrant was statutorily permissible and- whether -it was allowed under Rule 41(b) are- necessarily intertwined.
1. Federal Magistrates Act
Section 636(a) of the Federal Magistrates Act establishes “jurisdictional limitations on the power of magistrate judges[.]” United States v. Krueger,
(a) Each United States magistrate judge serving under this chapter shall havewithin the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law—
(1)all powers and duties conferred or imposed ... by law or by the Rules of Criminal Procedure!.]
28 U.S.C. § 636(a). Levin argues that the magistrate judge’s issuance of a warrant to search property outside of her judicial district violated the territorial restrictions provided in the first paragraph of Section 636(a). Def.’s Mot. 12. In other words, because the NIT Warrant approved a search of property outside the Eastern District of Virginia (“the district in which sessions are held by the court that appointed the magistrate”), and neither of the other clauses in the first paragraph of Section 636(a) applies, Levin contends that the magistrate judge lacked jurisdiction to issue it. See id. The government, for its part, notes that Levin does not meaningfully distinguish between the requirements of the statute and of Rule 41(b), and advances the same arguments to support the magistrate judge’s authority to issue the NIT Warrant under Section 636(a) and under Rule 41(b). Gov’t’s Resp. 21.
As discussed in more detail infra Part III(A)(2)(i), the Court is persuaded by Levin’s argument that the NIT Warrant indeed purported to authorize a search of property located outside the district where the issuing magistrate judge sat. The magistrate judge had no jurisdiction to issue such a warrant under the first paragraph of Section 636(a). The Court also concludes that Section 636(a)(1) is inapposite because Rule 41(b) did not confer on the magistrate judge authority to issue the NIT Warrant Levin challenges here, see infra Part 111(A)(2), and the government points to no other “law or ... Rule[ ] of Criminal Procedure” on which the magistrate judge could have based its jurisdiction pursuant to Section 636(a)(1), see infra. Consequently, the Court holds that the Federal Magistrates Act did not authorize the magistrate judge to issue the NIT Warrant here.
2. Rule 41(b)
Rule 41(b), titled “Authority to Issue a Warrant,” provides as follows:
At the request of a federal law enforcement officer or an attorney for the government:
(1) a magistrate judge with authority in the district—or if none is reasonably available, a judge of a state court of record in the district—has authority to issue a warrant to search for and seize a person or property located within the district;
(2) a magistrate judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed;
(3) a magistrate judge—in an investigation of domestic terrorism or international terrorism—with authority in any district in which activities related to the terrorism may have occurred has authority to issue a warrant for a person or property within or outside that district;
(4) a magistrate judge with authority in the district has authority to issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both; and
(5) a magistrate judge having authority in any district where activities related to the crime may have occurred, or in theDistrict of Columbia, may issue a warrant for property that is located outside the jurisdiction of any state or district, but within any of the following:
(A) a United States territory, possession, or commonwealth;
(B) the premises—no matter who owns them—of a United States diplomatic or consular mission in a foreign state, including any appurtenant building, part of a building, or land used for the mission’s purposes; or
(C) a residence and any appurtenant land owned or leased by the United States and used by United States personnel assigned to a United States diplomatic or consular mission in a foreign state.
Fed. R. Crim. P. 41(b).
The government argues for a liberal construction of Rule 41(b) that would authorize the type of search that occurred here pursuant to the NIT. Warrant. See Gov’t’s Resp. 18-20. Specifically, it argues that subsections (1), (2), and' (4) of Rule 41(b) are each sufficient to support the magistrate judge’s issuance of the NIT Warrant. Id. This Court is unpersuaded by the government’s arguments. Because the NIT Warrant purported to authorize a search' of property located outside the Eastern District of Virginia, and because none of the exceptions to the general territorial limitation of Rule 41(b)(1) applies, the Court holds that the magistrate judge lacked authority under Rule 41(b) to issue the NIT Warrant.
i. Rule 41(b)(1)
The government advances two distinct lines of argument as to why Rule 41(b)(1) authorizes the NIT Warrant. One is that all of the property that was searched pursuant to the NIT Warrant was actually located within the Eastern District of Virginia, where the magistrate judge sat: since Levin—as a user of Website A— “retrieved the NIT from a server in the Eastern District of Virginia, and the NIT sent [Levin’s] network information back to a server in that district,” the government argues the search it conducted pursuant to the NIT Warrant properly can be understood as occurring within the Eastern District of Virginia. Gov’t’s Resp. 20. This is nothing but a strained, after-the-fact rationalization. In its explanation of the “Place to be Searched,” the NIT Warrant made clear that the NIT would be used to “obtain[ ] information” from various “activating computers[.]”
The government’s other argument is that where, as here, it is impossible to
ii. Rule 41(b)(2)
Rule 41(b)(2) confers on magistrate judges the authority “to issue a warrant of a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed.” Fed. R. Crim. P. 41(b)(2). The government argues that because the NIT (he., the computer code used to generate the identifying information from users’ computers) was located in the Eastern District of Virginia at the time the warrant was issued, this subsection applies. Gov’t’s Resp. 19. As discussed above, however, the actual property to be searched was not the NIT nor the server on which it was located, but rather the users’ computers. Therefore, Rule 41(b)(2) is inapposite.
iii. Rule 41(b)(4)
The Court is similarly unpersuaded by the government’s argument regarding Rule 41(b)(4), which authorizes magistrate judges in a particular district “to issue a warrant to install within the district a tracking device,” even where the person or property on whom the device is installed later moves outside the district, see Fed. R. Crim. P. 41(b)(4). The government likens the transmittal of the NIT to Website A users’ computers to the installation of a tracking device in a container holding contraband, insofar as each permits the government to identify the location of illegal material that has moved outside the relevant jurisdiction. Gov’t’s Resp. 19-20. This analogy does not persuade the Court that the NIT properly may be considered a tracking device, regardless of where the “installation” occurred.
B. Suppression
Having concluded that neither the Federal Magistrates Act nor Rule 41(b) authorized the issuance of the NIT Warrant, the Court now turns to the question of whether suppression of the evidence obtained pursuant to the NIT Warrant is an appropriate remedy. Levin argues that this evidence ought be suppressed because
The Court concludes that the violation at issue here is distinct from the technical Rule 41 violations that have been deemed insufficient to warrant suppression in past cases, and, in any event, Levin was prejudiced by the violation. Moreover, the Court holds that the good-faith exception is inapplicable because the warrant at issue here was void ab initio.
1. Natui’e of the Rule 41 Violation-
A violation of Rule 41 that is purely technical or ministerial gives rise to suppression only where the defendant demonstrates that he suffered prejudice as a result of the violation. See United States v. Bonner,
Rule 41, however, has both procedural and substantive provisions—and the differ-énce matters. Courts faced with violations of Rule 41’s procedural requirements have generally found such violations to be merely ministerial or technical, and as a result have determined suppression to be unwarranted.
NITs, while raising serious concerns,
2. Prejudice
Even were the Court to conclude that the Rule 41(b) violation was ministerial, suppression would still be appropriate, as Levin has demonstrated that he suffered prejudice. See Burgos-Montes,
To rebut Levin’s prejudice argument, the government appears to ignore the NIT Warrant altogether, baldly stating that “[w]here there is probable cause, judicial approval, and the computer server which the defendant accessed to view child pornography was physically located in the jurisdiction where the issuing magistrate was located, there can be no prejudice to the defendant.” Gov’t’s Resp. 16. Simply put, this is not the standard for determining prejudice, and the government directs the Court to no authority to support its assertion. Moreover, as discussed above, the Rule 41(b) violation here had the effect of vitiating the purported judicial approval so, even by this standard, the government’s argument against prejudice must fail.
3. Good-Faith Exception
Finally, the government argues that, even if the NIT Warrant violated the Federal Magistrates Act and Rule 41(b), the Court ought not exclude the evidence seized pursuant to the NIT Warrant because the law enforcement officers here acted in good faith. See Gov’t’s Resp. 21 (citing United States v. Leon,
In Leon, the Supreme Court held that suppression was unwarranted where evidence was obtained pursuant to a search warrant that was later determined to be unsupported by probable cause, since the executing officers acted in objectively reasonable reliance on the warrant’s validity. See
Leon contains not the slightest suggestion, however, that the same deference ought apply when magistrate judges determine their own jurisdiction. Indeed, the Supreme Court’s conclusion presupposes that the issuing magistrate judge was authorized to issue the challenged warrant. Cf. United States v. Houston, No. 3:13-09-DCR,
Over the years since Leon, the Supreme Court has expanded the good-faith exception to contexts beyond those Leon specifically addressed.
Nine years later, the Sixth Circuit effectively reversed itself in Master, which involved a warrant issued by a state judge to search property outside his district, which was unauthorized under Tennessee law.
The Master court read the Supreme Court’s recent good-faith cases too broadly.
Even were the Court to hold that the good-faith exception could apply to circumstances involving a search pursuant to a warrant issued without jurisdiction, it would decline to rule such exception applicable here. For one, it was not objectively reasonable for law enforcement—particularly “a veteran FBI agent with 19 years of federal law enforcement experience[.]” Gov’t’s Resp. 7-8—to believe that the NIT Warrant was properly issued considering the plain mandate of Rule 41(b). See Glover,
Notwithstanding the Court’s doctrinal analysis—which has now concluded—the Court is mindful of the thorny practical questions this motion raises. The government asserts that to hold that the magistrate judge lacked authority to issue the NIT Warrant, and accordingly to suppress the evidence obtained pursuant thereto, would create “an-insurmountable legal barrier” to law enforcement efforts in this realm. Gov’t’s Resp. 16. The Court is unmoved by the government’s argument for two reasons.
First, it cannot fairly be said that the legal barrier to obtaining this type of NIT Warrant from a magistrate judge is “insurmountable,” because the government itself has come up with a way of surmounting it—namely, to change Rule 41(b), see supra note 13.
Second, it does not follow from this opinion that there was no way for the government to have' obtained the NIT Warrant. Section 636(a) and Rule 41(b) limit the territorial scope of magistrate judges—they say nothing about the authority of district judges to issue warrants to search property located outside their judicial districts. Indeed, the quotation from United States v. Villegas,
Of course, were the government to present its NIT Warrant application to a district judge, it would still have to meet the requirements of the Fourth Amendment, which guarantees that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched.” U.S. Const, amend. IV. Of special concern here is the particularity requirement, since, as the government points out, “the defendant’s use of the Tor hidden service made it impossible for investigators to know what other districts, if any, the execution of the warrant would take place in,” Gov’t’s Resp. 20.
IV. CONCLUSION
Based on the foregoing analysis, the Court concludes that the NIT Warrant was issued without jurisdiction and thus was void ab initio. It follows that the resulting search was conducted as though there were no warrant at all. Since war-rantless searches are presumptively unreasonable, and the good-faith exception is inapplicable, the evidence must be excluded. Accordingly, Levin’s motion to suppress, EOF No. 44, is GRANTED.
SO ORDERED.
Notes
. The government has waived any argument that its investigative conduct here did not amount to a search by failing to raise this argument in its memorandum. The Court therefore assumes that Levin had a reasonable expectation of privacy as to the information obtained through the execution of the various warrants.
. For coverage of this investigation, see, for example, Ellen Nakashima, This is How the Government is Catching People Who Use Child Porn Sites, Wash. Post, Jan 21, 2016, https://www.washingtonpost.com/world/ national-security/how-the-government-is-using-malware-to-ensnare-child-pom-users/ 2016/01/2 l/fb8ab5f8-bec0-lleS-83d4-42e3 bceea902_story.html; Mary-Ann Russon, FBI Crack Tor and Catch 1,500 Visitors to Biggest Child Pornography Website on the Dark Web, Inti Bus. Times, Jan. 6, 2016, http://www,' ibtimes.co.uk/fbi-crack-tor-catch-1500-visitors-biggest-child-pomography-website-dark-web-1536417.
. “Tor,” which stands for “The Onion Router,” is “the main browser people use to access” the "Darknet”—“a specific part of th[e] hidden Web where you can operate in total anonymity.” Going Dark: The Internet Behind the Internet, Nat’l Pub. Radio, May 25, 2014, http://www.npr.org/sections/alltech considered/2014/05/25/315821415/going-dark-the-internet-behind-the-internet. Tor itself is lawful and has various legitimate uses. See id. Indeed, it was developed by the United States Navy, which continues to use it "as a means of communicating with spies and informants[.]” John Lanchester, When Bitcoin Grows Up, 28 London R. Books No. 8, http:// www.lrb.co.uk/v38/n08/john-lanchester/when-bitcoin-grows-up. Tor has, however, produced difficulties for law enforcement officials, "especially those pursuing child pornography, Internet fraud and black markets,” since it allows criminals to evade detection. Martin Kaste, When a Dark Web Volunteer Gets Raided by the Police, Nat’l Pub. Radio, April 4, 2016, http://www.npr.org/sections/alltech considered/2016/04/04/472992023/when-a-dark-web-volunteer-gets-raided-by-the-police; see also Lanchester, supra' (describing Tor as "the single most effective web tool for terrorists, criminals and paedos” and noting that it “gives anonymity and geographical unlocata-bility to all its users”). At the same time, its legal users have raised concerns about the privacy implications of government "sting” operations on the Tor network. See Kaste, supra.
. For a discussion of the government's recent use of these types of warrants, see Brian L, Owsley, Beware of Government Agents Bearing Trojan Horses, 48 Akron L. Rev. 315 (2015).
. The affidavit the government submitted in support of its application for the NIT Warrant describes this process:
In the normal course of operation, websites send content to visitors, A user's computer downloads that content and uses it to display web pages on the user's computer. Under the NIT authorized by this warrant, [Website A], which will be located ... in the Eastern District of Virginia, would augment that content with additional computer instructions. When a user’s computer successfully downloads those instructions from [Website A] ... the instructions, which comprise the NIT, are designed to cause the user's 'activating' computer to transmit certain information to a computer controlled by or known to the government.
Aff. Supp. NIT Warrant 24. The particular information seized pursuant to the NIT Warrant included:
1. the 'activating' computer's actual IP address, and the date and time that the NIT determines what that IP address is;
2. a unique identifier generated by the NIT (e.g., a series of numbers, letters, and/or special characters) to distinguish data from that of other 'activating' computers, that will be sent with and collected by the NIT;
3. the type of operating system running on the computer, including type (e.g., Windows), version (e.g., Windows 7), and architecture (e.g., x 86);
4. information about whether the NIT has already been delivered to the 'activating' computer;
5. the 'activating' computer's Host Name;
6. the 'activating' computer's active operating system username; and
7. the ‘activating’ computer’s media access control ('MAC’) address[.]
NIT Warrant, Attach. B (Information to be Seized).
. The government does not contest Levin’s argument that absent' the NIT Warrant, it would not have had probable cause to support its Residential Warrant application, see Def.’s Mót. 14. For the sake of simplicity, the Court uses the phrase "evidence seized pursuant to the NIT Warrant” to include evidence seized pursuant to the Residential Warrant because all of that evidence is derivative of the NIT Warrant.
. A more precise characterization of Levin's challenge would be thát the magistrate judge who issued the NIT Warrant had no authority to do so under the relevant statutory framework and federal rules—not that the issuance of the warrant ‘‘violated” these provisions, by, for example, failing to comply with procedural requirements. In the Court’s view, this distinction is meaningful, see infra Part 111(B)(1), though it is one that neither the parties nor other courts evaluating similar challenges seem to appreciate, see, e.g., United States v. Michaud, No. 3:15-cr-05351-RJB,
. That the cover page of the NIT Warrant application indicated that the property to be searched was located in the Eastern District of Virginia, see NIT Warrant 1, does not alter this conclusion. See Michaud,
. Indeed, as the court pointed out in Mi-chaud, which involved the same NIT Warrant:
If the ‘installation’ occurred on the government-controlled computer, located in the Eastern District of Virginia, applying the tracking device exception breaks down, because [users of Website A] never controlled the government-controlled computer, unlike a car with a tracking device leaving a particular district. If the installation occurred on [the individual Website A user's] computer, applying the tracking device exception again fails, because [the user's] computer was never physically located within the Eastern District of Virginia.
. These violations implicate the various subsections of Rule 41, with the exception of subsection (b). See, e.g., Burgos-Montes,
. For the magistrate judge to have had jurisdiction to issue the warrant under Section 636(a), she must have had authority to do so under Rule 41(b), as the government has pointed to no alternative statutory authority or federal rule that could serve as the basis for such jurisdiction. Moreover, the government’s argument regarding courts' inherent authority to issue warrants, see Gov't’s Resp. 20-21, does not extend to magistrate judges, whose authority derives from—and is bounded by—the specific statutory provisions and rules discussed herein.
. The Court expresses no opinion on the use of this particular police tactic under these circumstances, but notes that its use in the context of investigating and prosecuting child pornography has given rise to significant debate. See, e.g,, The Ethics of a Child Pornography Sting, N.Y. Times, Jan. 27, 2016, http:// www.nytimes.com/roomfordebate/2016/01/27/ the-ethics-of-a-child-pomography-sting. The continuing harm to the victims of this hideous form of child abuse is the distribution of the photographs and videos in which the victims appear. See, e.g., United States v. Kearney,
.Whether magistrate judges should have the authority to issue warrants to search property located outside of their districts under circumstances like the ones presented here has been the subject of recent deliberations by the Advisory Committee on Criminal Rules. See Memorandum from Hon, Reena Raggi, Advisory Committee on Criminal Rules, to Hon. Jeffrey S. Sutton, Chair, Committee on Rules of Practice and Procedure ("Raggi Mem.”) (May 5, 2014); Letter from Mythili Raman, Acting Assistant Attorney General, to Hon. Reena Raggi, Chair, Advisory Committee on the Criminal Rules ("Raman Letter”) (Sept. 18, 2013); cfi Zach Lerner, A Warrant to Hack: An Analysis of the Proposed Amendments to Rule 41 of the Federal Rules of Criminal Procedure, 18 Yale J. L. & Tech. 26 (2016). As Levin points out in his motion, see Def.'s Mot. 18-19, the following proposed amendment to Rule 41(b) is currently under consideration:
(6) a magistrate judge with authority in any district where activities related to a crimemay have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:
(A) the district where the media or information is located has been concealed through technological means; or
(B) in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.
Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure 337-38 ("Proposed Rule 41 Amendment”), Committee, on Rules of Practice and Procedure of the Judicial Conference of the United States (August 2014), http://www.uscourts.gov/file/ preliminary-draft-proposed-amendments-federal-rules-appellate-bankruptcy-civil-and-criminal.
Proponents of the amendment contend that it ought be adopted in order "to address two increasingly common situations: (1) where the warrant sufficiently describes the computer to be searched but the district within which that computer is located is unknown, • and (2) where the investigation requires law enforcement to coordinate searches of numerous computers in numerous districts.” Raman Letter 1.
While the Advisory Committee on Criminal Rules unanimously approved the' proposed amendment, Raggi Mem. 5, it has drawn criticism from stakeholders ranging from the American Civil Liberties Union, see Letter from American Civil Liberties Union to Members of the Advisory Committee on Criminal Rules (Oct. 31, 2014), to Google, see Letter from. Richard Salgado, Director, Law Enforcement and Information Security, Google Inc., to Judicial Conference Advisory Committee on Criminal Rules (Feb. 13, 2015).
. Courts outside this district faced with Rule 41(b) violations have considered (and in some cases, adopted) alternative formulations of the prejudice inquiry. See, e.g., Krueger,
. This is not to say that a district judge could not have issued the NIT Warrant, since Rule 41(b) and Section 636(a) bear only on the authority of magistrate judges to issue warrants. See infra Part 111(B)(4).
. It follows from this that the government might not have obtained the evidence it seized pursuant to the Residential Warrant, since the application for that warrant was based on information it acquired through the execution of the NIT Warrant. As the government itself points out, it “had no way to know where the defendant was without first using the NIT[.]” Gov’t’s Resp. 15.
. Courts' interpreting the scope of Leon have repeatedly held or acknowledged in dicta that where evidence is obtained pursuant to a warrant that is void ab initio, the good-faith exception has no application. See, e.g., State v. Wilson,
. Leon, along with its companion case, Massachusetts v. Sheppard,
. The good-faith exception has been held to apply where officers execute a warrant in reliance on existing law. See Davis v. United States,
The Supreme Court has also applied the good-faith exception in circumstances involv
.The difference between the issuer of the warrant in Scott and in Master—namely, a retired judge with "no authority to approve any warrants," and an active judge with authority to issue warrants within his district, respectively—was "immaterial” for the purpose of determining whether the warrant was valid. Master,
. Even in Master, it should be noted, the court acknowledged that the recent Supreme Court cases addressing the good-faith exception "do[] not directly overrule our previous decision in Scott.”
. In Hudson v. Michigan,
Herring, too, is distinguishable. There, law enforcement officers executed an arrest warrant that had been rescinded.
. While no case has directly disturbed this holding, the First Circuit has since held that the good-faith exception may exempt from exclusion evidence seized pursuant to an unconstitutional warrantless search “ ‘conducted in objectively reasonable reliance on binding appellate precedent!.]’" United States v. Sparks,
. While the exclusionary rule has its detractors, see, e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 785-800 (1994) (arguing that suppression is an "awkward and embarrassing remedy” that is unsupported by the text of the Fourth Amendment), "when a criminal conviction is predicated on a violation of the Constitution’s criminal procedure requirements, including the Fourth Amendment, the conviction works an ongoing deprivation of liberty without due process,” Richard M. Re, The Due Process Exclusionary Rule, 127 Harv. L. Rev. 1885, 1887 (2014); see also Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820, 848-852 (1994).
. In its oral argument opposing this motion, Elec. Clerk's Notes, ECF No. 62, the government indicated that the particular officers executing the search cannot be charged with the knowledge that the warrant was issued in violation of the Federal Magistrates Act and Rule 41(b). But it would be incongruous to view these officers' conduct in isolation. As Professor Amsterdam articulated:
[S]urely it is unreal to treat the offending officer as a private malefactor who just happens to receive a government paycheck. It is the government that sends him out on the streets with the job of repressing crime and of gathering criminal evidence in order to repress it. It is the government that motivates him to conduct searches and seizures as a part of his job, empowers him and equips him to conduct them. If it also receives the products of those searches and seizures without regard to their constitutionality and uses them as the means of convicting people whom the officer conceives it to be his job to get convicted, it is not merely tolerating but inducing unconstitutional searches and seizures.
Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L, Rev. 349, 432 (1974).
. The Supreme Court does not define "systemic negligence,” Herring,
. The Court acknowledges that suppression is an extreme remedy, and consequently it considered whether, on this occasion—but never again under these circumstances—the
. Surprisingly, a number of courts have apparently understood Rule 41(b) to apply to district judges. See, e.g., United States v. Golson,
. Indeed, objectors to the proposed amendment to Rule 41(b), see supra note 13, have argued that a warrant that permitted law enforcement to remotely search computers at unknown locations would violate the Fourth Amendment’s particularity requirement. See, e.g., Written Statement of the Center for Democracy & Technology Before the Judicial Conference Advisory Committee on Criminal Rules 2, Oct. 24, 2014.