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. icon
    That One Guy (profile), 3 Nov 2017 @ 8:42pm

    Re: Re: Re: Can you read your own quotes?

    Think about it. In order to make this work, they would have to apply for a warrant in each and every jurisdiction in the US, and potentially ask for an international warrant, just to start the ball rolling.

    Why yes, performing investigations that involve searches across wide areas would take work, just like if they wanted to search two physical properties owned by two different people located in two different jurisdictions.

    'It would have taken more work' is not a persuasive argument, as I noted above.

    Can you imagine having to ask for the same doe warrant in each of those jurisdictions, just so some comment writer on a website isn't butt hurt about it?

    So arguing that government agencies shouldn't be allowed to get one warrant to search everywhere counts as 'butthurt' now? Classy.

    If you can't figure out that justice is best served by having the justice system deal with criminals, not make work paperwork.

    Jurisdictional limitations exist solely to create 'make work paperwork', got it.

    This issue only exists because of something that has already been corrected by clarifying the law.

    Which I suspect was rushed through because they realized that their cases didn't have legal grounding under the current law, was then retroactively applied to excuse the actions taken, and opens the door wide for any foreign governments/agencies to return the favor.

    The intent wasn't to get around the law, otherwise they wouldn't have bothered with a warrant at all and would have just doxed the people they caught on reddit.

    'They could have done worse' is likewise not a persuasive argument.


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