UNITED STATES of America, Plaintiff-Appellant, v. Andrew Joseph WORKMAN, Defendant-Appellee.
No. 16-1401
United States Court of Appeals, Tenth Circuit
July 21, 2017
863 F.3d 1313
Electronic Frontier Foundation, Amicus Curiae.
Kearn provides two reasons why this condition was improper. First, the condition is not “reasonably related” to thе offense of conviction, as the statute requires. See
But Kearn has waived this issue by failing to argue for plain error. Neither of these arguments—reasonable relationship or familial association—was raised аt sentencing. See R., Vol. 2 at 885-87 (relevant portion of the sentencing colloquy). Generally, “the failure to argue for plain error and its application on appeal marks the end of the road for an argument for reversal not first presented to the district court.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011).
We therefore affirm the no-contact-with-victims condition. Kearn‘s failure to argue these points under the plain-error standard marks the end of the road.4
III. Conclusion
For the reasons above, we AFFIRM the judgment and sentence of the district court and DISMISS without prejudice Kearn‘s claim of ineffective assistance of counsel.
Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the brief), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellee.
Mark Rumold and Andrew Crocker, Electronic Frontier Foundation, San Fran-
Before LUCERO, BACHARACH, and PHILLIPS, Circuit Judges.
BACHARACH, Circuit Judge.
The advent of the internet created new opportunities for viewers of child pornography, allowing immediate access to illicit websites. Use of these sites frequently leaves a computerized trail, allowing the FBI to find viewers of child pornography. But technological advances hаve allowed viewers of child pornography to access illicit websites without leaving a 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 and find the individuals accessing child pornography.
Though the FBI controlled the website, users lived throughout the nation. To find the users, the FBI needеd 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 difficult because of geographic constraints on the FBI‘s ability to obtain a warrant. Notwithstanding these constraints, the FBI obtained a warrant that led to the discovery of hundreds of viewers of child pornograрhy. One was the defendant, who faced prosecution in the District of Colorado.
In this prosecution, the district court held that the warrant was invalid and suppressed evidence resulting from the search. We reverse this ruling. Even when a search warrant is invalid, the resulting evidence should not be suppressed if the executing agents could reasonably rely on 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.
I. The FBI finds Mr. Workman by seizing the website.
The website was named “Playpen,” and it contained thousands of images and videos of child pornography. Unlike many websites, Playpen made it difficult to detect its users.
Deteсtion is often possible from communication of a user‘s Internet Protocol address when accessing a website. But such communication did not take place with Playpen. To access this website, a user had to employ software that routed the connections through third-party computers called “nodes.” With connections routed through a series of nodes, usеrs could access Playpen without communicating their Internet Protocol addresses.
But the FBI set out to find the users who were viewing child pornography on Playpen. The FBI carried out this effort by
- seizing the internet server that hosted Playpen,
- loading the contents onto a government server in the Eastern District of Virginia,
- arresting the administrator of Playpen, and
- hosting Playpen from the government‘s server.
Even with these steps, the FBI remained unable to identify and locate the individuals accessing Playpen.
To find these individuals, the FBI obtained a warrant from a magistrate judge in the Eastern District of Virginia. This
The FBI executed the warrant by installing this software on the government‘s Playpen server in the Eastern District of Virginia. With this software, the FBI learned that Playpen was being accessed by someone in Colorado. With this user‘s Internet Protocol address, the FBI identified the user as Andrew Joseph Workman and obtained a search warrant in the District of Colorado to search Mr. Workman‘s computer.
Executing the warrant, FBI agents found Mr. Workman at home in the act of downloading child pornography onto his computer. He confessed and was indicted for receiving and possessing child pornography. See
II. Mr. Workman successfully obtains suppression of his confession and the evidence found on his computer.
Mr. Workman moved tо suppress the evidence consisting of his confession and the child pornography found on his computer. For this motion, Mr. Workman challenged the validity of the warrant issued by the magistrate judge in the Eastern District of Virginia. Mr. Workman did not question the existence of probable cause; instead, he argued that the warrant had been inadequately particularized and that the magistrate judge had lacked territorial jurisdiction under
But evidence illegally obtained can be admitted in some circumstances when the
III. Even if the warrant had been invalid, the Leon exception would still apply.
To justify suppression based on a violation of
- the magistrate judge in the Eastern District of Virginia lacked authority to issue the warrant and
- the resulting search violated the U.S. Constitution or led to prejudice.
United States v. Krueger, 809 F.3d 1109, 1113-14 (10th Cir. 2015).
But even improperly obtained evidence can often be considered admissible under the so-called ”Leon exception.” Under this exception, 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 conclusion. We disagree. In our view, the Leon exception applies.
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 (2) the resulting search was unconstitutional or a prejudicial violation of 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 evidence would remain admissible under the Leon exception). According to Mr. Workman, these assumptions would essentially result in a warrantless search, where the Leon exception does not apply. We disagree with Mr. Workman.
We engage in de novo review on the overаrching ruling on a motion to suppress. United States v. Krueger, 809 F.3d 1109, 1113 (10th Cir. 2015). In this case, the correctness of that ruling turns on application of the Leon exception. On this issue, we also engage in de novo review. United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000).
Under the Leon exception, improperly obtained evidence remains admissible when the executing agents “act with an objectively ‘reasonable good-faith belief that their conduct is lawful or when their conduct involves only simple, “isolated” negligence....‘” Davis v. United States, 564 U.S. 229, 238, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (citations omitted) (quoting United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) and Herring v. United States, 555 U.S. 135, 137, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009)). The Suprеme Court has identified five situations where the exception does not apply:
- the affiant obtains the warrant by recklessly or intentionally supplying false information to the judge,
- the judge abandons his or her judicial role,
- the executing officers cannot reasonably believe that probable cause existed,
- the warrant is facially deficient, and
- the warrant is based on a “bare bones” affidavit” and the officers
“then rely on colleaguеs who are ignorant of the circumstances under which the warrant was obtained to conduct the search.”
Leon, 468 U.S. at 923 & n.24, 104 S.Ct. 3405.
The present case does not fit any of these five situations. But Mr. Workman argues that
- the Leon exception applies only when a warrant is issued and
- a warrant is essentially non-existent (void ab initio) when the judge lacks authority to issue the warrant.
In our view, however, this argument is foreclosed by the Supreme Court‘s opinions in Herring v. United States, 555 U.S. 135 (2009) and Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995).
In Herring, the issue was whether the Leon exceptiоn applied when 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, 129 S.Ct. 695. With this information, the officer arrested the individual. Id. The arrest led the officer to search the individual, finding methamphetamine in his pocket. Id.
The clerk‘s error was eventually discovered, and the government argued that evidence of the methamphetamine was admissible even though the officer was relying on the existence of a warrant that had been recalled months earlier. Id. at 138, 129 S.Ct. 695. The Supreme Court agreed, explaining that improperly obtained evidence is ordinarily excluded only to deter official misconduct, and here there was nothing to deter because the officer was acting based on the clerk‘s record-keeping error. Id. at 144-48, 129 S.Ct. 695. As a result, the Supreme Court applied the Leon exception even though the warrant had no longer existed at the time of the search. Id. at 147-48, 129 S.Ct. 695.
Arizona v. Evans was similar. There too a law enforcement officer arrested an individual based on computerized information shоwing an outstanding arrest warrant. 514 U.S. at 4, 115 S.Ct. 1185. The arrest led to a search, which revealed marijuana in the individual‘s possession. Id. Authorities later learned that the computerized entry was a mistake, as the prior arrest warrant had been quashed. Id. Even though the warrant had been quashed, the Supreme Court held that the evidence was admissible because the arresting officer had reasonably relied on the computerized entry showing an outstanding warrant. Id. at 11-16, 115 S.Ct. 1185.
Under Herring and Evans, the Leon exception applies even if the magistrate judge had exceeded geographic constraints in issuing the warrant. In these circumstances, the executing agents could reasonably have relied on the warrant, just as the agents had relied in Herring and Evans on warrants that had been recalled or quashed.
In Herring and Evans, the absence of a valid warrant1 did not preclude application of the Leon exception because there was
Mr. Workman attempts to distinguish Herring and Evans, arguing that in these cases, “there was no question that the third party lawfully exercised its power in taking whatever action the officers relied on.” Appellee‘s Resp. Br. at 38. This distinction is questionable and immaterial.
The distinction is questionable because
- in Herring, the third party stated that an outstanding warrant existed even though it had been recalled and
- in Evans, the third party programmed information into a computer stating that a warrant had remained even though it hadn‘t.
See pp. 9-10, above. Mr. Workman does not explain why he believes that the third parties had lawful authority to communicate the existеnce of outstanding warrants when they had already been terminated.
Mr. Workman‘s distinction is also immaterial. Even if the third parties in Herring and Evans had lawful authority to communicate misinformation to law enforcement officers, the misinformation would still have constituted mistakes just like the mistake that we have assumed here.
Mr. Workman suggests that the mistake in our case rendered the warrant void becаuse the magistrate judge had exceeded geographic constraints. Let‘s 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 longer in existence. How can we say that an agent is unable to rely on a warrant exceeding a mаgistrate judge‘s reach if the agent is able to rely on a warrant that doesn‘t even exist?
In our view, Herring and Evans govern, requiring application of the Leon exception when the search is based on a warrant exceeding the issuing judge‘s authority.
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
We start with the presumption that the executing agents “acted in 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 executing agents would have known:
- The software was installed in a government server located in the Eastern District of Virginia.
- The magistrate judge, who issued the warrant, was in the Eastern District of Virginia.
- All of the information yielded from the search would be retrieved in the Eastern District of Virginia.
With these facts, the executing agents could reasonably rely on the magistrate judge‘s authority to issue a warrant authorizing installation of software and retrieval of information in the Eastern District of Virginia.
If the executing agents had sophisticated legal training, they might have recognized geographic constraints that had escaped the notice of the magistrate judge. These geographic constraints exist in both the Federal Magistrates Act and the
One potential problem involved the Federal Magistrates Act. Under this statute, the magistrate judge issuing the warrant had authority only in the Eastern District of Virginia.
A second potential problem involved
- the affiant did not identify the FBI‘s method of extracting data as a “tracking device” and
- the FBI‘s method of extracting the data did nоt operate as a tracking device.
It is true that the affiant and magistrate judge never mentioned the term “tracking device,” and the FBI‘s method differs from more conventional tracking devices. But the executing agents lacked precedents on these issues and could reasonably defer to the magistrate judge on these nuanced legal issues. See Rowland, 145 F.3d at 1207.
For purposes of our discussion, we assume (without deciding) that the extraction of data from a user‘s computer in another district would violate the Federal Magistrates Act and the
These eight federal judges would have been mistaken if the warrant here were invalid. But executing agents could reasonably have made the same mistake and reasonably relied on the magistrate judge‘s decision to 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 magistrate‘s decision in granting a warrant.“).6 Thus, the district court erred in granting the motion to suppress.
Reversed with instructions to deny the motion to suppress.