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United States v. Taylor

United States Court of Appeals, Eleventh Circuit

August 28, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JAMES RYAN TAYLOR, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
STEVEN VINCENT SMITH, Defendant-Appellant.

          Appeals from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:16-cr-00203-KOB-JEO-1, 4:16-cr-00312-VEH-JHE-1

          Before TJOFLAT and NEWSOM, Circuit Judges, and ANTOON, [*] District Judge.

          NEWSOM, CIRCUIT JUDGE:

         James Taylor and Steven Smith are the latest in a long line of child-pornography consumers to argue that the evidence of their crimes should be suppressed because the warrant that led to its discovery-issued by a magistrate judge in the Eastern District of Virginia but purporting to authorize a nationwide, remote-access computer search-violated the Fourth Amendment. By our count, we become today the eleventh (!) court of appeals to assess the constitutionality of the so-called "NIT warrant." Although the ten others haven't all employed the same analysis, they've all reached the same conclusion-namely, that evidence discovered under the NIT warrant need not be suppressed. We find no good reason to diverge from that consensus here, but the case nonetheless calls for careful consideration, as it implicates several important issues.

         As an initial matter, did the NIT warrant violate Federal Rule of Criminal Procedure 41(b), which specifies where and in what circumstances a magistrate judge may issue a warrant-and relatedly, if the warrant did violate Rule 41(b), was that violation of constitutional magnitude? We hold that because the magistrate judge's actions exceeded not only Rule 41(b) but also her statutorily prescribed authority under the Federal Magistrates Act, 28 U.S.C. § 636(a)-which circumscribes the scope of a magistrate judge's jurisdiction-the warrant was void ab initio, rendering any search purporting to rely on it warrantless and thus presumptively unlawful under the Fourth Amendment.

         That leads us to the question of remedy, which we take in two parts: First, is exclusion required-without regard to the reasonableness of the officers' reliance-where, as here, the warrant was void from the outset, as Taylor and Smith urge? Or, as the government contends, should a void warrant be treated no differently from other defective warrants, such that the good-faith exception to the exclusionary rule can still apply? We hold that, because the exclusionary rule is concerned solely with deterring culpable police misconduct-and not at all with regulating magistrate judges' actions-void and voidable warrants should be treated no differently; accordingly, an officer's reasonable reliance on the former, like the latter, can provide the basis for applying the good-faith exception.

         Second, even if the good-faith exception can apply when an officer relies on a void warrant, should the exception apply in the particular circumstances of this case? We hold that the officers' warrant application here adequately disclosed the nature of the technology at issue and the scope of the intended search, that the officers reasonably relied on the magistrate judge's determination that the search was permissible, and, accordingly, that the good-faith exception applies in this case.

         I

         A

         We begin with a bit of context. In the normal world of web browsing, an internet service provider-Comcast or AT&T, for example-assigns an IP address to every computer that it provides with internet access. An IP address is a unique numerical identifier, tantamount to a computer's name. (OK, in the laptop era it's slightly more complicated than that, because the "name" changes as the computer moves around and connects to different service providers' networks-but you get the picture.) Websites can log IP addresses to keep track of the computers that visit, in essence creating a digital guest book. Internet browsing, therefore, isn't quite as private as most people think-it's actually pretty easy, for instance, for law enforcement to find out who visited what sites, when, and for how long simply by subpoenaing IP-address logs from service providers.

         Not so when it comes to the "dark web," the part of the internet "only accessible by means of special software, allowing users and website operators to remain anonymous or untraceable." Blog.OxfordDictionaries.com.[1] "The Onion Router"-usually abbreviated "Tor"-is one such software program. Tor, which was the brainchild of the U.S. Navy but has since been released to the public, works by routing a user's webpage requests through a series of computer servers operated by volunteers around the globe, rendering the user's IP address essentially unidentifiable and untraceable. In the words of the folks who currently administer the "Tor Project," a Massachusetts-based § 501(c)(3) organization responsible for maintaining Tor, you might think of what Tor does as "using a twisty, hard-to-follow route in order to throw off someone who is tailing you-and then periodically erasing your footprints."[2]

         As you can imagine, Tor has plenty of legitimate uses-think military and law-enforcement officers carrying out investigations, journalists seeking to maintain anonymity, and ordinary citizens researching embarrassing topics. As you can also imagine, Tor has spawned-and effectively enables-a cache of unsavory sites for black-market trading, child-pornography file-sharing, and other criminal enterprises. This is so because, in addition to allowing users to access public websites without leaving a trail, Tor also hosts a number of so-called "hidden services," i.e., sites accessible only through Tor. You can't just Google a hidden service; rather, a user can access one of these Tor-specific sites only by knowing its exact URL address. Most Tor-site addresses comprise a random jumble of letters and numbers followed by the address ".onion"-in place, say, of ".com" or ".org"-and are shared via message-board postings on the regular internet or by word of mouth.

         The hidden-service page at issue here, "Playpen," was a child-pornography-distribution site accessible only through Tor. At the time the FBI began monitoring Playpen, the site contained more than 95, 000 posts, had 160, 000 members, and hosted up to 1, 500 visitors per day. The FBI monitored the site for several months until, based on a foreign-government tip, it found and arrested the administrator. Rather than shuttering Playpen immediately, the FBI covertly took control of the site and began operating it out of a government server in Newington, Virginia, hoping to snare more users.

         As a means of ferreting out Playpen visitors whose identities were masked by Tor, the FBI sought to deploy government-created malware-specifically, a computer code called the Network Investigative Technique ("NIT")-that would transmit user information back to the FBI. Here's how the NIT worked: When a Playpen user downloaded images from a Tor-based site, the NIT would essentially "hitchhike" along, invade the host computer, and force it to send to the FBI (among other information) the computer's IP address, the computer's host name, and the username associated with the computer. Based on that information, the FBI could identify the user's internet service provider and the computer affiliated with the account that accessed Playpen, thereby unmasking the user and providing probable cause for the FBI to seek a warrant to seize computers and hard drives.

         B

         To effectuate this plan, FBI Agent Douglas Macfarlane submitted a search-warrant application to a magistrate judge in the Eastern District of Virginia, requesting authorization to deploy the NIT. The application wasn't a model of clarity or precision, particularly regarding the issue that most concerns us here- namely, the geographic scope of the requested search authority. In the case caption, the application described the "property to be searched"-seemingly without territorial restriction-as "COMPUTERS THAT ACCESS upf45jv3bziuctml.onion," which we now know to be associated with Playpen. Just below, however, in the body, the application asserted a reasonable belief that evidence of child-pornography-related crimes was contained on property "located in the Eastern District of Virginia." As part of the same statement-regarding the "property to be searched"-the application referred to an "Attachment A." Attachment A in turn stated that the NIT was "to be deployed on the computer server . . . operating the [Playpen] website" and specified that the server was "located at a government facility in the Eastern District of Virginia." Attachment A then went on to state, though, that the goal of deploying the NIT was to obtain information from "[t]he activating computers . . . of any user or administrator who logs into [Playpen] by entering a username and password."

         As is often the case, the NIT application also referenced an attached affidavit. Agent Macfarlane's affidavit summarized the applicable law, explained numerous technical terms of art, and described Tor and the "Target Website"-i.e., Playpen. On page 29 of 31, under the bolded heading "SEARCH AUTHORIZATION REQUESTS," the affidavit stated, for the first time expressly, that "the NIT may cause an activating computer-wherever located-to send to a computer controlled by or known to the government" certain information, including the IP address and host name.[3]

         A magistrate judge in the Eastern District of Virginia signed the warrant and the FBI deployed the NIT.

         C

         Not long thereafter, NIT-transmitted data revealed to the FBI that a certain Playpen user was linked to a computer with the host name "RyansComputer." After the user accessed several images of child pornography, the FBI sent an administrative subpoena to the user's internet service provider and discovered that the IP address associated with the computer was assigned to James Taylor in Birmingham, Alabama. A magistrate judge in the Northern District of Alabama then authorized a search warrant for Taylor's residence, where the FBI seized Taylor's laptop, hard drive, and USB drive. After analyzing the hardware twice, the FBI found what it was looking for.

         Steven Smith's Playpen activities were discovered in a nearly identical way. As in Taylor's case, the NIT revealed that someone had used Smith's computer and IP address to log into Playpen. Based on the NIT data, the FBI subpoenaed records from an internet service provider and used that information to secure a warrant from a magistrate judge in the Northern District of Alabama, allowing officers to search Smith's residence in Albertville, Alabama. The search revealed child-pornography images on a thumb drive. After arresting Smith, the officers obtained a search warrant for his office and seized his work computer, which also contained child pornography.

         Taylor and Smith were charged with receiving child pornography under 18 U.S.C. § 2252A(a)(2) and with possessing and accessing child pornography with the intent to view it under 18 U.S.C. § 2252A(a)(5)(B) & (b)(2). They both moved to suppress the evidence against them, asserting, as relevant here, that the NIT warrant violated the Fourth Amendment, Federal Rule of Criminal Procedure 41(b), and the Federal Magistrates Act, 28 U.S.C. § 636(a), and, accordingly, that the seized images should be suppressed as fruit of the poisonous tree. The district court in each case denied the motion to suppress. Both courts agreed that the NIT warrant violated the Fourth Amendment-and was thus void-but declined to suppress the evidence on the ground that the searches, and the resulting seizures, fell within the good-faith exception to the exclusionary rule. Both defendants appealed, and their cases were consolidated for review and decision.

         II

         All here agree that the NIT's extraction and transmission of Taylor's and Smith's information was a "search" within the meaning of the Fourth Amendment. U.S. Const. amend. IV.[4] All likewise agree that no exigency or other exception exempted the FBI from the usual requirement to obtain a search warrant. See United States v. Cooks, 920 F.3d 735, 741 (11th Cir. 2019) ("[W]arrantless searches are presumptively unreasonable, 'subject only to a few specifically established and well-delineated exceptions.'" (quoting Katz v. United States, 389 U.S. 347, 357 (1967))). There, the agreement ends. The parties vigorously dispute whether the NIT warrant was valid and, if not, whether (and to what extent) that fact should bear on the admissibility of the evidence found. Accordingly, we are faced with the following issues, each with its own twists and turns: (1) Did the NIT warrant violate Federal Rule of Criminal Procedure 41(b) and, if so, did it likewise violate the Fourth Amendment? And (2) if the NIT warrant did run afoul of the Fourth Amendment, does the exclusionary rule apply?[5]

         A

         1

         Federal Rule of Criminal Procedure 41(b), titled "Venue for a Warrant Application," both outlines the situations in which a magistrate judge may issue a warrant for a search within her district and specifies the more limited circumstances in which she may issue a warrant for a search outside her district. With respect to the former, Rule 41(b)(1) states that "a magistrate judge with authority in the district . . . has authority to issue a warrant to search for and seize a person or property located within the district." Fed. R. Crim. P. 41(b)(1). It is undisputed, though, that the NIT warrant sought authority to search for information outside the territorial confines of the Eastern District of Virginia. And the parties agree that, for present purposes, Rule 41(b)(4)-which authorizes "tracking device" warrants-is the only provision that could have empowered the magistrate judge to authorize the specific out-of-district search in this case. That rule permits a magistrate "to issue a warrant to install within the district a tracking device" to "track the movement of a person or property located within the district, outside the district, or both." Fed. R. Crim. P. 41(b)(4) (emphasis added).[6] Accordingly, the NIT warrant complies with Rule 41(b) only if we conclude that it was issued in accordance with subsection (b)(4).[7]

         We find two mismatches-one formal (but telling) and the other substantive. Initially, as a matter of form, although the government now defends the NIT warrant on a tracking-device basis, it conspicuously didn't seek the warrant under Rule 41(b)(4). Tracking-device warrants issued under subsection (b)(4) are generally requested pursuant to a specialized "Application for a Tracking Warrant."[8] Here, though, the FBI seems to have sought the NIT warrant under Rule 41(b)(1)'s general provision for warrants authorizing in-district searches. The warrant application's cover sheet represented that the FBI wished to search property "located in the Eastern District of Virginia," and neither the application nor the accompanying affidavit mentioned the term "tracking device" or otherwise indicated that the application sought authorization under subsection (b)(4). The government's revisionism on appeal-invoking Rule 41(b)(4) to defend what was, by all accounts, a Rule 41(b)(1) application-undermines its position that the Rule's tracking-device provision sanctions the NIT warrant.

         Moreover, and in any event, we reject the government's tracking-device argument on the merits. For Rule 41 purposes, a "tracking device" is "an electronic or mechanical device which permits the tracking of the movement of a person or object." 18 U.S.C. § 3117(b); see also Fed. R. Crim. P. 41(a)(2)(E) (explaining that "'[t]racking device' has the meaning set out in 18 U.S.C. § 3117(b)"). The government contends that the NIT constitutes a tracking device because "just as a GPS tracker attached to a car will send a receiver coordinates or other signals with locational information, the NIT augmented the content of Playpen and sent locational information back to a government-controlled computer." Br. of Appellee at 15.

         We disagree. The NIT didn't reveal "locational information" at all-it didn't even send a locational snapshot, let alone the type of ongoing, GPS-coordinate transmissions that would "permit[] the tracking of the movement of a person or object" within the meaning of Rule 41(b)(4). Rather, the NIT performed a one-time extraction of non-locational information-including a computer's IP address, username, and other identifying material-which it transmitted to the FBI. Of course, the identifying information that the NIT extracted and sent was then traced to a physical address using an internet service provider's records, but only in the same way that a person's name might be traced to a physical address using a phone book. In other words, that the FBI eventually used the NIT-transmitted information to discover additional facts that, in turn, enabled it to then determine a Playpen user's location in no way transformed the initial information transmittal into "tracking."[9]

         To be clear, it's not just that the NIT isn't exactly a tracking device-it's that it's exactly not a tracking device. A GPS tracker stuck to the bottom of a car can't tell you the car's make and model, its owner, or its place of registration-but it can tell you whether the car is parked at Starbucks or cruising down I-20. By contrast, the NIT malware can and did transmit the equivalent of a computer's name, to whom it was registered, and other identifying information-but it didn't (and couldn't) reveal whether the computer was at the owner's home or office, at Starbucks, or in the car on the move. In short, while a tracking device transmits location but not identifying information, the NIT sent identifying information but not location.[10]

         To sum up, we hold that the NIT is not a "tracking device" within the meaning of Federal Rule of Criminal Procedure 41(b), and we reject the government's post hoc attempts to classify it as such. Because the NIT warrant was not authorized by any of Rule 41(b)'s applicable subsections, the warrant violated the Rule.

         2

         So, what effect? While constitutional violations may merit suppression- more on that later-mere "technical noncompliance" with a procedural rule results in the exclusion of evidence only when (1) "there was 'prejudice' in the sense that the search might not have occurred or would not have been so abrasive if the rule had been followed," or (2) "there is evidence of intentional and deliberate disregard of a provision in the Rule." United States v. Williams, 871 F.3d 1197, 1203 (11th Cir. 2017) (citation omitted).

         Which do we have here-a constitutional violation or just a technical one? The government says that the violation in this case was merely technical because Rule 41(b) is just a venue provision-it has nothing to do with a magistrate's power or jurisdiction. The government points out, for instance, that as of 2016, Rule 41(b) is no longer titled "Authority to Issue a Warrant," but rather "Venue for a Warrant Application." See Fed. R. Crim. P. 41(b). And, the argument goes, if Rule 41(b) is an ordinary venue provision, a breach of its provisions would not rise to the level of a constitutional violation.

         Fair enough. As we've recently been at pains to emphasize-following the Supreme Court's lead-not every mandatory proclamation or prohibition creates a jurisdictional bar, and we are loath to "jurisdictionalize" issues unnecessarily. See, e.g., Orion Marine Constr., Inc. v. Carroll, 918 F.3d 1323, 1328-29 (11th Cir. 2019); Sec'y, U.S. Dep't of Labor v. Preston, 873 F.3d 877, 881-82 (11th Cir. 2017). Here, though, jurisdiction is squarely in play: While Rule 41(b) itself may address only venue, the statute behind the rule-the Federal Magistrates Act, 28 U.S.C. § 636-imposes clear jurisdictional limits on a magistrate judge's power. Section 636(a) states that magistrate judges "shall have within [their] district[s]" the "powers . . . conferred . . . by law or by the Rules of Criminal Procedure." 28 U.S.C. § 636(a)(1) (emphasis added). Because no one contends that any law or Rule other than Rule 41(b) gave the magistrate judge the authority to issue the NIT warrant in this case, when the magistrate issued the warrant outside of Rule 41(b)'s ambit, she necessarily transgressed the limits of her jurisdiction.

          We aren't breaking any new ground here. As now-Justice Gorsuch explained during his tenure on the Tenth Circuit, § 636(a) "expressly-and exclusively-refers to the territorial scope of a magistrate judge's power to adjudicate" and, further, is "found in Title 28 of the U.S. Code-the same title as the statutes that define a district court's jurisdiction." United States v. Krueger, 809 F.3d 1109, 1122 (10th Cir. 2015) (Gorsuch, J., concurring). Or, as the Ninth Circuit put it, "federal magistrates are creatures of [§ 636(a)], and so is their jurisdiction." N.L.R.B. v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415 (9th Cir. 1994); see also United States v. Hazlewood, 526 F.3d 862, 864 (5th Cir. 2008) ("In the Federal Magistrates Act, 28 U.S.C. § 636, Congress conferred jurisdiction to federal magistrate[]judge[s]."). Thus, as § 636(a) is the sole source of a magistrate judge's warrant authority, a warrant issued in defiance of its jurisdictional limitations is void-"no warrant at all." Krueger, 809 F.3d at 1118 (Gorsuch, J., concurring).

         To be fair, Krueger was an easier case-there, a magistrate judge in one district purported to authorize a search in an adjacent district, in which she clearly had no jurisdiction. The magistrate judge here, by contrast, issued a warrant purporting to allow a search of computers "wherever located"-which, of necessity, included her own district. But the fact that the warrant in its overbreadth happened to sweep in the Eastern District of Virginia along with the rest of the nation doesn't cure the fact that it was issued outside of the magistrate judge's statutorily prescribed (and proscribed) authority in the first place. Indeed, the idea that a warrant may be issued partially from a place of statutorily-granted authority and partially from the great beyond (with one foot inside and one foot outside the lines, so to speak) strikes us as nonsensical. Rather, it seems to us that a magistrate judge must act either pursuant to the authority granted her by statute or not, and thus have the authority either to issue a warrant (in toto) or not.[11]

         Because the NIT warrant was void at issuance, the ensuing search was effectively warrantless and therefore-because no party contends that an exception to the presumptive warrant requirement applies here-violative of the Fourth Amendment. Accord United States v. Werdene, 883 F.3d 204, 214 (3d Cir.), cert. denied, 139 S.Ct. 260 (2018); United States v. Horton, 863 F.3d 1041, 1050 (8th Cir. 2017), cert. denied, 138 S.Ct. 1440 (2018); United States v. Henderson, 906 F.3d 1109, 1116 (9th Cir. 2018), cert. denied, 139 S.Ct. 2033 (2019).[12]

         B

         So the search carried out under the NIT warrant violated not just Rule 41 but also the Fourth Amendment. But again: What effect? At last we come to the question at the heart of the remedy that Taylor and Smith seek. Can the good-faith exception to the exclusionary rule apply in a situation like this, where officers rely on a warrant that is later determined to have been void ab initio? And more specifically, does the good-faith exception apply in the particular circumstances of this case?

         1

         The "exclusionary rule"-which operates to bar the admission of evidence obtained in violation of the Fourth Amendment-appears nowhere in the Constitution's text. It is, the Supreme Court has said, not "a personal constitutional right," but rather a "judicially created" remedy, whose purpose is to "deter future Fourth Amendment violations" and "compel respect for the constitutional guaranty." Davis v. United States, 564 U.S. 229, 236-37, 238 (2011) (citation omitted). This remedy, however, doesn't follow automatically; society must swallow the "bitter pill" of suppression when necessary, id. at 238, but only when the "benefit" of exclusion outweighs its "substantial social costs," Illinois v. Krull, 480 U.S. 340, 352-53 (1987). The dual pillars of the exclusion decision, the Supreme Court recently emphasized, are deterrence and culpability: "Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield 'meaningfu[l]' deterrence, and culpable enough to be 'worth the price paid by the justice system.'" Davis, 564 U.S. at 240 (alteration in original) (quoting Herring v. United States, 555 U.S. 135, 144 (2009)); see also id. (suppression not warranted because officer did not act "deliberately, recklessly, or with gross negligence").

         The good-faith exception is a "judicially created exception to this judicially created rule." Id. at 248.[13] In United States v. Leon, the Supreme Court explained that exclusion is not warranted when police act "in objectively reasonable reliance" on a subsequently invalidated search warrant-in other words, when they act in "good faith." 468 U.S. 897, 922 (1984). "'[O]ur good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal' in light of 'all of the circumstances.'" Herring, 555 U.S. at 145 (quoting Leon, 468 U.S. at 922 n.23).

         To date, the Supreme Court has applied the good-faith exception when, among other things, officers reasonably relied on a warrant that was later deemed invalid for lack of probable cause, see Leon, 468 U.S. at 922, on a warrant that erroneously appeared outstanding due to an error in a court or police database, see Arizona v. Evans, 514 U.S. 1, 4 (1995); Herring, 555 U.S. at 137, on a statute that was later deemed unconstitutional, see Krull, 480 U.S. at 352-53, and on a judicial decision that was later overruled, Davis, 564 U.S. at 232. The Supreme Court hasn't, however, directly addressed the particular question before us today- whether the good-faith exception can be applied to a search conducted in reliance on a warrant that was void from the outset.

         Taylor and Smith insist that the void-voidable distinction is critical. Reliance on a voidable warrant-issued in error, perhaps, but by a judge with jurisdiction to act-is different, they contend, from reliance on a warrant that was void from the get-go. Because the latter is-as we've agreed-"no warrant at all," Taylor and Smith insist that reliance on it can't provide an exception to the exclusionary rule. This is so, they continue, because the "heart of the good faith exception is [] officers' reliance on a neutral third ...


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