Seventh Circuit Appeals Court Hands Fifth 'Good Faith' Win To FBI's Invalid Playpen Warrant

from the fixing-it-in-post dept

It doesn't appear the Supreme Court will have to resolve a circuit split on the FBI's malware warrant used in its Playpen child porn investigation. The same day the Ninth Circuit Appeals Court found in favor of the FBI, the Seventh Circuit reached the same conclusion [PDF], bringing the FBI's "good faith" total to five appellate wins versus zero losses.

The Seventh's reasoning echoes that of the other circuits: the warrant may have been invalid (seeing as its jurisdiction limits were immediately violated by the FBI's malware deployment), but the FBI was correct to rely on the magistrate's screwup.

Federal Rule of Criminal Procedure 41(b)(1) authorizes a magistrate judge “to issue a warrant to search for and seize a person or property located within the [magistrate judge’s] district.” This warrant, they say, extended to people and property located outside the magistrate’s district. Defendants contend that a void warrant is tantamount to no warrant at all, nullifying the good-faith exception.

We disagree. Even if the warrant were void ab initio, we would treat this like any other constitutional violation. We see no reason to make the good-faith exception unavailable in such cases.

I'm sure the Seventh didn't mean to make it sound like it would excuse "any other constitutional violation," but that's kind of how it reads. What the court is saying is that it won't suppress the evidence obtained with an invalid warrant. It doesn't go as far as other courts have and find that there's no deterrent effect in suppressing evidence because the illegal actions engaged in by the FBI were made legal after the fact. But it does say suppression is unreasonable because it punishes the FBI for the magistrate judge's error.

The deterrence rationale for the exclusionary rule aims at the conduct of the police, not the conduct of the magistrate judge. See Davis, 564 U.S. at 238 (focusing the cost-benefit analysis in exclusion cases on the “flagrancy of the police misconduct” at issue). Thus, whether the magistrate judge lacked authority has no impact on the rule. As Leon explains, “[p]enalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.”

What's more troubling is that its discussion of the FBI's "good faith" grants credence to one of the FBI's more disingenuous arguments: that the malware it sent was a "tracking device" rather than a search, making its deployment from a seized server in Virginia constitutional because the FBI obviously can't control where tracking devices end up after they're deployed. This legal theory has been criticized in other courts even while finding the FBI, overall, acted in good faith. Here's a quote from the Third Circuit's decision, which calls out the FBI for its appellate-level goalpost moving.

We need not resolve Werdene’s contention that the Government waived this argument because we find that the Government’s tracking device analogy is inapposite. As an initial matter, it is clear that the FBI did not believe that the NIT was a tracking device at the time that it sought the warrant. Warrants issued under Rule 41(b)(4) are specialized documents that are denominated “Tracking Warrant” and require the Government to submit a specialized “Application for a Tracking Warrant.” See ADMINISTRATIVE OFFICE OF U.S. COURTS, CRIMINAL FORMS AO 102 (2009) & AO 104 (2016). Here, the FBI did not submit an application for a tracking warrant – rather, it applied for, and received, a standard search warrant. Indeed, the term “tracking device” is absent from the NIT warrant application and supporting affidavit.

The Seventh Circuit gives the government credit where none is due.

Perhaps the warrant impermissibly allowed the search of computers outside the magistrate judge’s district, as the defendants suggest. But the government suggests another theory. It notes that under Rule 41(b)(4), a magistrate judge can issue a warrant for the installation of a “tracking device” within the district that can track movement outside the district. Fed. R. Crim. P. 41(b)(4). The government characterizes the NIT as such a device, maintaining that its installation occurred in-district because the defendants were accessing servers located in that district. Choosing between these frameworks has split district courts across the country, which underscores the difficulty of the question.

Having done that, the court declares it won't discuss the "tracking device" any further because it has already said suppression would punish the FBI for the magistrate's error. The evidence remains in play and the convictions of all three defendants are affirmed.

The problem with these decisions is they tacitly encourage law enforcement to ask judicial permission for illegal searches because if it's granted, it's the magistrate's fault, not the officers', and evidence obtained illegally won't be suppressed. When the FBI asked for permission to engage in extraterritorial searches, the DOJ was pushing for removal of Rule 41 jurisdiction limits. It's impossible the agent swearing out the warrant was unaware of this fact. It was a bad faith request converted to "good faith" by the magistrate's approval, whitewashing the FBI's actions and making the evidence unassailable in court.


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  • identicon
    Anonymous Coward, 31 Oct 2018 @ 4:05am

    Non faciat malum, ut inde veniat bonum.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 31 Oct 2018 @ 4:34am

    'It's not like the law is... you know, The Law or anything...'

    Federal Rule of Criminal Procedure 41(b)(1) authorizes a magistrate judge “to issue a warrant to search for and seize a person or property located within the [magistrate judge’s] district.” This warrant, they say, extended to people and property located outside the magistrate’s district. Defendants contend that a void warrant is tantamount to no warrant at all, nullifying the good-faith exception.

    The entire point of a warrant is to make legal that which would otherwise not be. If an invalid warrant isn't considered no different than no warrant at all then there's no point in getting one, just bank on 'good faith' and insults to the judicial profession like this group will almost certainly give you a pass.

    We disagree. Even if the warrant were void ab initio, we would treat this like any other constitutional violation.

    Which is apparently 'ignore them', when the proper response would be to punish them.

    Intentionally or not their statement here is a pretty blatant admission the they don't consider constitutional violations a problem. By saying that they would treat any other constitutional violation like this one, and giving this one a pass, they are all but saying flat out that they will most certainly do the same to other violations, even if they don't have the guts to honestly admit it.

    We see no reason to make the good-faith exception unavailable in such cases.

    Other than the fact that you just admitted that 'such cases' would involve constitutional violations? That isn't good enough, such that 'good faith' trumps the constitution?

    Yet another pack of spineless cowards in robes, too weak and pathetic to stand up to the FBI and defend the constitution and the law, no matter who that involves defending along with it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2018 @ 8:03am

      Re: 'It's not like the law is... you know, The Law or anything...'

      ..too weak and pathetic to stand up against the fbi..

      It is the nwo pushing these violations. Our GREAT country is so fucked. I think I will volunteer for Mars colonization. These people won't step foot inside that rocket. They don't have the balls.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2018 @ 12:34pm

      Re: 'It's not like the law is... you know, The Law or anything...'

      This. Even if I agree that the error wasn't on the part of the FBI, that doesn't change the fact that an error was made, the constitution was violated, and the evidence should be suppressed. The FBI isn't being punished - the defendant's constitutional rights are being protected.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 1 Nov 2018 @ 4:50am

        Re: Re: 'It's not like the law is... you know, The Law or anything...'

        The FBI isn't being punished - the defendant's constitutional rights are being protected.

        Nailed it in one. Even if the FBI won't do the same thing again(because they changed the relevant law) it's still important to protect the rights of the current defendant based upon what the law was at the time of the violation.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 1 Nov 2018 @ 12:49pm

          Re: Re: Re: 'It's not like the law is... you know, The Law or anything...'

          I've read over this decision and one of the other ones referred to, US v. Cazares-Olivas, and I've come to a rather disturbing though not really surprising conclusion. It seems to me that the courts are arbitrarily ignoring the Constitution based on their evaluation of the degree of wrong committed against the defendant vs the severity of the crime committed by the defendant. In other words, they look the other way regarding rights violations if they feel the crime is "bad enough."

          To be fair, I do understand where they're coming from and I am sympathetic. I don't want to see criminals getting off on technicalities - evidence suppressed because Form 37-XP-5 wasn't signed, that sort of thing. We're all human, sometimes we forget things, especially if time is of the essence and a warrant is needed NOW. In the Cazares case, the Court ruled against the defendants because they determined that the issue was a paperwork error, not a Constitutional one (that is, the police went to a judge, the judge had proper authority, they got approval for a search, then executed the search, but didn't follow the letter of the law for filing the proper forms). There wasn't really an "error" made in the sense that the warrant was invalid, so they didn't suppress. And in that case, I can see myself agreeing with the rationale. At the same time, I don't think it's unreasonable to expect law enforcement to DO THEIR JOBS RIGHT when people's life and liberty are on the line. I also don't like how that decision is used as a justification for refusing to suppress evidence in a case where the warrant should never have issued because it was outside of the judge's authority.

          I don't want to see CP users go free, but my concern is when the judges and/or the rest of the Government decide that some other action is too awful to enforce Constitutional protections against. Why even have a Constitution at that point?

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 1 Nov 2018 @ 1:49pm

            On teeny tiny exception, what could it hurt...?

            As much as it can grate on the nerves at times, tossing a case on a 'technicality' is the better option, because once you start giving passes on violations the loopholes and exceptions will grow and start encompassing even more over time, until you reach the point where 'following the law' becomes effectively if not actually entirely optional for certain groups, and where being in the 'wrong' group(or simply being accused of such) means the protections of the law simply don't apply to you(the penalties and restrictions on the other hand...)

            In a way it's an example of the 'first they came for' saying.

            That person/group is comprised of absolute monsters, so bending/ignoring the law to take them out, well, that's a small price to pay.

            And maybe down the line someone terrible but not quite that terrible needs to be locked up, so we'll just look the other way for the public good shall we?

            And a little ways after that someone you're sure is guilty of all sorts of horrible things, well why should a criminal be protected by the law, the law is only meant to protect law-abiding citizens(I have actually seen this very argument made by the way, and I'm pretty sure they were being serious at the time), and we're just so damn sure that they're guilty, so.

            Once you start poking holes in the law like that it's not 'will those holes grow?' but 'how quickly will they grow?', and as the legal/constitutional protections that those in cases like this use to defend themselves in court(unsuccessfully thanks to gutless judges, but still...) are the very same ones that protect everyone else, for your own sake if nothing else you should be all for those protections being upheld, even if it means allowing people you detest to walk free.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 1 Nov 2018 @ 2:39pm

              Re: On teeny tiny exception, what could it hurt...?

              >because once you start giving passes on violations the loopholes and exceptions will grow and start encompassing even more over time, until you reach the point where 'following the law' becomes effectively if not actually entirely optional for certain groups

              We're already there, with things like the good-faith exception and the 100-mile border exception. In the same way that the government says to us (usually in the cases where these exceptions are applied), "They broke the law, we can't let them get away with it," I would say to the government, "We can't let YOU get away with it either."

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 2 Nov 2018 @ 1:10am

                Re: Re: On teeny tiny exception, what could it hurt...?

                We the people know this government loves slippery slopes. This good faith exception rule is so slick, people are buying it. What are your heads made up with? Stuffed with cotton candy? We should be 20,000,000 people deep protesting washington dc for any governmental branch violations of the US Constitution. Saavy?

                reply to this | link to this | view in chronology ]

              • icon
                That One Guy (profile), 2 Nov 2018 @ 1:49am

                First you stop the house fire. Then you can fix the house

                We're already there, with things like the good-faith exception and the 100-mile border exception.

                Both of which serve as excellent examples of my point.

                'We need to stop The Bad Guys, a reading of the laws/constitutions would prohibit us from doing so in a way we want, but they are The Bad Guys, so we'll make an exception this time.'

                It's already happening to be sure, the point is to try to stop it from happening more, upon which you can then move on to rolling back the current abuses/violations.

                reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2018 @ 4:57am

    Neel is always careful...too careful

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2018 @ 6:26am

    Why don't the rest of us get "good faith" exceptions...

    to blatantly violating the law? Guns and badges?

    reply to this | link to this | view in chronology ]

    • icon
      ShadowNinja (profile), 31 Oct 2018 @ 9:03am

      Re: Why don't the rest of us get "good faith" exceptions...

      Silly AC, you only get "good faith" exceptions if you're going after some group of people everyone hates!

      reply to this | link to this | view in chronology ]

  • identicon
    bob, 31 Oct 2018 @ 7:59am

    regardless.

    I still contend that the NIT evidence is tainted because the chain of evidence was broken.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 31 Oct 2018 @ 8:43am

    I really want to see a normal person argue good faith as a defense to a crime.
    I want a court to have to explain how it isn't a defense to breaking the law but somehow it is when agents of the government do it.

    This is glaring evidence of there being multiple types of law depending on the power, prestige, wealth of the accused wrongdoer.

    If you can not catch the guilty without a court blessing you violating the suspects rights on 'good faith' you shouldn't be doing the job.
    Oh they didn't violate your rights making you strip on the side of the road, because we never told them that was bad... and we won't make our ruling a precedence just in case some other cop wants to remind you they have the power & can do whatever they want to you even when anyone not connected to the legal system would look at the actions and wonder why the cop isn't being punished for clear rights violations.

    Someone needs to remind the courts that while they managed to ensnare alleged pedophiles it is very tainted by them skirting the law & running a site that distributed & encouraged the creation of new CP.

    How can the courts keep ignoring that besides the warrant issue, children were abused on the FBI's watch but catching the bad guys, by being bad guy was more important than raped children.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2018 @ 8:48am

      Re:

      You ask a lot of questions we already know the answer too.

      It's simple... humans are corrupt and no matter what institution you give them they will corrupt it. And no matter what, from time to time you must destroy them and rebuild them or they will be allowed to fester until blood is required to destroy them.

      The Legislature is supposed to be destroying courts that do this, when was the last time that happened? How about... did you even know they should be doing this? Did you ever care? No, you didn't because like most other American they are too busy whining about a single person in a single branch of government to give any real flying shit about nothing.

      Keep voting those parties folks... so much WIN!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2018 @ 8:46am

    It is my personal contention that these public servants don't have a meaningful enough purpose in society. If I were king, I would make sure that all police or law enforcement spent half of their time selling clothing and other products to the public that makes the public safer and healthier. Maybe they would find more meaning to their sad lives other than harrassment and highway robbery which they now perform to appease those hungry people in their dark robes.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2018 @ 8:57am

      Re:

      If you were King huh? You would be quickly assassinated and replaced. Benevolent leaders must have an enormousness amount of power to be able to do things like that. And power like that would most certainly attract the worse people among us.

      There is a reason why powers are best being separated into different branches and agencies in government. The only other way for someone like that to stay in power that I can think of would be for society to have an extreme honor code like Japan for an actual benevolent person to remain in power for long. In fact this is why people in leadership positions quickly become assholes... they have a not of dipshits to keep suppressed and that takes a lot more effort than you might believe.

      reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 31 Oct 2018 @ 9:56am

    Constitutional violations only become an issue when the victim of said violations is sympathetic. If they're not sympathetic enough, the court isn't going to protect them.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Knowles S Thanido, 31 Oct 2018 @ 11:21am

    Settled law. Move on from defending child porn, Techdirt

    The real question of course is why the interest here. Techdirt is NOT on the right side of morality. Nor is it even on the right side of law, as explained above.

    So WHY this LONG continuing series without any actual interest except to lawyers, besides no real base in long settled law, unless Techdirt hopes for unequivocally knowing downloaders of child porn to be let escape?

    The mere Court Rule has been changed. Convictions stand FIVE times at Appeals Court level! Now, all that remains for this settled area of law is for Techdirt to DROP the topic.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2018 @ 12:40pm

      Re: Settled law. Move on from defending child porn, Techdirt

      >The mere Court Rule has been changed. Convictions stand FIVE times at Appeals Court level! Now, all that remains for this settled area of law is for Techdirt to DROP the topic.

      Freed slaves don't have rights! It's settled law! Drop the topic! --possible sentiment of someone in the South before the 14th Amendment.

      ...If the government keeps making the same mistake, that doesn't mean you stop pointing it out. Also, you point out the mistake even if it's happening to despicable people so that it gets fixed before it happens to someone else.

      reply to this | link to this | view in chronology ]

    • identicon
      Sharur, 31 Oct 2018 @ 12:44pm

      Re: Settled law. Move on from defending child porn, Techdirt

      But settled law can be overturned.

      It was settled law that slavery was legal.

      It was settled law that women could not vote, or in many cases own property.

      It was settled law that "separate but equal" facilities was legal, despite such accommodations never actually being equal.

      Hell, it was settled law for centuries that there was no freedom of religion, no freedom of speech, and one's position in life was determined all-but-completely by one's birth.

      Settled law is mutable. Even the Constitution is mutable. The first step towards changing something is talking about it.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2018 @ 1:00pm

      Re: Settled law. Move on from defending child porn, Techdirt

      Why do people ignorantly support breaking laws in order to prove someone else is guity of breaking the law. Whoops! I guess I answered my own question!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2018 @ 1:44pm

      Re: Settled law. Move on from defending child porn, Techdirt

      There is no such thing as "settled law".

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Oct 2018 @ 6:31pm

        Re: Re: Settled law. Move on from defending child porn, Techdirt

        There's also the fact that your definition of "settled" law probably differs from blue's. See: common law, and blue's "promise" to "stop" using the term.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Nov 2018 @ 12:52am

      Re: Settled law. Move on from defending child porn, Techdirt

      Which side of the Spanish Inquisition were you on? How about the Salem witch hunts? If society ever again will be ruled civally, history will also judge the methods used to take down these child rapists.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2018 @ 12:50pm

    The FBI committed a crime by knowingly distributing CP. What's you're excuse for that? You're ignorant if you think this will not set a dangerous precedent that WILL be applied to people the government doesn't like. I don't know if you're a troll or willfully ignorant, but in either case you need to read some history.

    reply to this | link to this | view in chronology ]


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