First Circuit Appeals Court Latest To Overturn Playpen Suppression Order

from the Rule-41-changes-create-another-foregone-conclusion dept

A third Appeals Court has ruled on the tactics the FBI used to track down users of a dark web child porn site. And the third one to rule -- the First Circuit Appeals Court -- continues the government's shut out of suppression orders at the appellate level.

In the two previous cases to reach this level (Tenth and Eighth), the judges found the FBI's Network Investigative Technique to be a search under the Fourth Amendment. This wasn't much of an issue because the FBI had a warrant. The real issue was the warrant's reach: it was issued in Virginia but the NIT found a home in computers all over the US, not to mention the rest of the world.

The lower courts' decisions ordering suppression of evidence for the use of an invalid warrant have all been rejected by US appeals courts. Good faith has been granted to the agent securing the warrant, thus preventing suppression of evidence. In one case, the court even conjectured the deterrent effect of evidence suppression made little sense now that the FBI has statutory permission to ignore jurisdictional limitations when seeking warrants.

The First Circuit Appeals Court's decision [PDF] is no different than those preceding it. The previously-granted suppression is reversed and the FBI awarded good faith for its warrant application, which clearly told the Virginia magistrate judge the agency intended to violate the warrant's jurisdictional limits. This decision, however, limits its discussion to the good faith exception and the judges refuse to draw possibly precedential conclusions about the magistrate judge's legal authority to grant a "search anywhere" warrant.

The "search anywhere" part of the warrant the lower court found invalid is all academic at this point. Rule 41 jurisdictional limits have been lifted. But that did not happen until after this warrant was procured and deployed. Like the Eighth Circuit before it, the First Circuit decides this after-the-fact rule change somewhat negates the deterrent effect of suppression.

The First Circuit says good faith prevails, as the warrant was more or less explicit in its intentions and still managed to be signed by a judge. In fact, the court praises the FBI for applying for a warrant it likely knew violated pre-rule change jurisdiction limitations.

We are unpersuaded by Levin's argument that because, at least according to him, the government was not sure whether the NIT warrant could validly issue under Rule 41, there is government conduct here to deter. Faced with the novel question of whether an NIT warrant can issue -- for which there was no precedent on point -- the government turned to the courts for guidance. The government presented the magistrate judge with a request for a warrant, containing a detailed affidavit from an experienced officer, describing in detail its investigation, including how the NIT works, which places were to be searched, and which information was to be seized. We see no benefit in deterring such conduct -- if anything, such conduct should be encouraged, because it leaves it to the courts to resolve novel legal issues.

I guess the court would prefer to tangle with legal issues it hasn't seen before. This would be one of them -- at least in terms of thousands of searches performed with a single warrant from a seized child porn server located in Virginia. The legal issues may be novel but the end result is more of the same: good faith exception granted and the admission of evidence questionably obtained.

Filed Under: doj, evidence, fbi, first circuit, gag order, nit, playpen, suppression order


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  1. identicon
    SirWired, 2 Nov 2017 @ 8:27am

    Can you read your own quotes?

    "In fact, the court praises the FBI for applying for a warrant it likely knew violated pre-rule change jurisdiction limitations."

    The court did NOT say that the FBI likely knew the warrant was invalid; it DID mention that the defense asserted this, but explicitly refused to accept this assertion.

    The court DID praise the FBI for making it explicit to the magistrate what it was asking for when applying for the warrant.

    The FBI applied for the warrant, made it clear what it was asking for, engaged in no judge-shopping jurisdictional games when applying for it (the hosting server was located in the district the warrant application was flied in), and the warrant was granted in a reasonable, if ultimately ruled incorrect, application of the rules. This exactly the sort of situation the good-faith exception exists for. This was not at all like the cases where officers make up their own traffic laws and then use them to justify stops, or shopping around for an ignorant magistrate to obtain what is obviously a completely bogus warrant.

    I'd also like to point out that the rule, as applied here, made little sense to begin with, and there's a reason it was quickly amended so as to not make this a problem in the future. How is justice served by having to apply for 94 separate warrants for what is essentially the same search? It'd be a pointless waste of judicial and law-enforcement resources. Moreover, there's no reason to think that if the FBI HAD filed all this pointless paperwork, that any of the applications for the warrants would have been refused.

    There can certainly be an argument over if we should ever have a good-faith exception to the "poisonous tree" doctrine, but if there is going to be one, it was certainly applied correctly here.

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