Wednesday, April 27, 2016

The NIT Warrant, the Federal Magistrate and Jurisdiction

This post examines an opinion from the U.S. District Court for the District of Massachusetts:  U.S. v. Levin, 2016 WL 1589824 (2016).  The U.S. District Court Judge who has the case began the opinion by explaining that Alex Levin is:
charged with possession of child pornography. Complaint 1, ECF No. 1. The government obtained evidence of Levin's alleged crime in three steps. First, it seized control of a website that distributed the illicit material at issue (`Website A’). Next, it obtained a series of search warrants that allowed the government to identify individual users who were accessing content on Website A. One of these warrants involved the deployment of a Network Investigative Technique (the `NIT Warrant’). Finally, the government searched the computers of certain of these individuals, including Levin.

Levin has moved to suppress the evidence obtained as a result of the issuance of the NIT Warrant, arguing that the NIT Warrant is void for want of jurisdiction under the Federal Magistrates Act, 28 U.S.C. § 636(a), and additionally that it violated FederalRule of Criminal Procedure 41(b). Def.'s Mot. Suppress Evidence (`Def.'s Mot.’) 5-6, ECF No. 44. The government contends that the NIT Warrant was valid and that, in any event, suppression is not an appropriate remedy on these facts. Gov't's Resp. Def.'s Mot. Suppress (`Gov't's Resp.’) 1, ECF No. 60.
U.S. v. Levin, supra.
The opinion then outlines how, and why, the prosecution arose:
This case involves a far-reaching and highly publicized investigation conducted by the Federal Bureau of Investigation in early 2015 to police child pornography. The investigation focused on Website A, which was accessible to users only through the `Tor’ network — software designed to preserve users' anonymity by masking their IP addresses. . . . 

As an initial step in their investigation, FBI agents seized control of Website A in February 2015. See id. at 21-23. Rather than immediately shutting it down, agents opted to run the site out of a government facility in the Eastern District of Virginia for two weeks in order to identify — and ultimately, to prosecute — users of Website A. See id. at 23. To do this required the deployment of certain investigative tools. . . .

To that end, the government sought and obtained a series of warrants. First, on February 20, 2015, the government procured an order pursuant to Title III from a district judge in the Eastern District of Virginia permitting the government to intercept communications between Website A users. Def.'s Mot., Ex. 2 (`Title III Warrant’), ECF No. 44-2. Second, also on that date, the government obtained a warrant from a magistrate judge in the Eastern District of Virginia to implement a Network Investigative Technique (“NIT”) that would allow the government covertly to transmit computer code to Website A users. NIT Warrant, ECF No. 44-3. This computer code then generated a communication from those users' computers to the government-operated server containing various identifying information, including those users' IP addresses. See Aff. Supp. NIT Warrant 24-26.
U.S. v. Levin, supra.
The opinion also goes on to explain that, through the use of the NIT, 
government agents determined that a Website A user called `Manakaralupa’ had accessed several images of child pornography in early March 2015, and they traced the IP address of that user to Levin's home address in Norwood, Massachusetts. Def.'s Mot., Ex. 1 (`Residential Warrant’), Aff. Supp. Application for Search Warrant (`Aff. Supp. Residential Warrant’) 11-12, ECF No. 44-1. On August 11, 2015, law enforcement officials obtained a third and final warrant (the `Residential Warrant’) from Magistrate Judge Bowler in this District to search Levin's home.  See Residential Warrant. Agents executed the Residential Warrant on August 12, 2015, and in their search of Levin's computer, identified eight media files allegedly containing child pornography. See Compl., Ex. 2, Aff. Supp. Application Criminal Compl. ¶ 7, ECF No. 1-2.

Levin was subsequently indicted on one count of possession of child pornography, 18 U.S. Code § 2252A(a)(5)(B). Indictment, ECF No. 8. He has since moved to suppress all evidence seized pursuant to the NIT Warrant and the Residential Warrant. Def.'s Mot. After holding a hearing on March 25, 2016, the Court took Levin's motion under advisement. . . . 
U.S. v. Levin, supra.
The opinion also explains that in
support of his motion to suppress, Levin contends that the NIT Warrant violated the territorial restrictions on the issuing magistrate judge's authority, and further that the evidence obtained pursuant to the NIT Warrant must be suppressed in light of law enforcement agents' deliberate disregard for the applicable rules and the prejudice Levin suffered as a consequence. . . . The government refutes each of these arguments, and additionally argues that the good-faith exception to the exclusionary rule renders suppression inappropriate. 
U.S. v. Levin, supra.
The District Court Judge began his analysis of Levin’s argument by explaining that
Levin argues that the issuance of the NIT Warrant ran afoul of both Section 636(a) of the Federal Magistrates Act and Rule 41(b) of the Federal Rules of Criminal Procedure. See Def.'s Mot. 5-7, 12. The conduct underlying each of these alleged violations is identical: the magistrate judge's issuance of a warrant to search property located outside of her judicial district. See id. Moreover, because Section 636(a) expressly incorporates any authorities granted to magistrate judges by the Federal Rules of Criminal Procedure, . . . the Court's analyses of whether the NIT Warrant was statutorily permissible and whether it was allowed under Rule 41(b) are necessarily intertwined.
U.S. v. Levin, supra.
Hewent on to analyze the applicability of the Federal Magistrates Act and Rule 41(b): 
Section 636(a) of the Federal Magistrates Act establishes jurisdictional limitations on the power of magistrate judges[.]’ U.S. v. Krueger, 809 F.3d 1109, 1122 (U.S. Court of Appeals for the 10th Circuit 2015) (Gorsuch, J., concurring). It provides, in relevant part:

(a) Each United States magistrate judge serving under this chapter shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law--
(1) all powers and duties conferred or imposed . . . by law or by the Rules of Criminal Procedure[.]

28 U.S. Code § 636(a).

Levin argues that the magistrate judge's issuance of a warrant to search property outside of her judicial district violated the territorial restrictions provided in the first paragraph of Section 636(a). Def.'s Mot. 12. In other words, because the NIT Warrant approved a search of property outside the Eastern District of Virginia (`the district in which sessions are held by the court that appointed the magistrate’), and neither of the other clauses in the first paragraph of Section 636(a) applies, Levin contends that the magistrate judge lacked jurisdiction to issue it. See id. The government, for its part, notes that Levin does not meaningfully distinguish between the requirements of the statute and of Rule 41(b), and advances the same arguments to support the magistrate judge's authority to issue the NIT Warrant under Section 636(a) and under Rule 41(b). Gov't's Resp. 21.

As discussed in more detail infra . . ., the Court is persuaded by Levin's argument that the NIT Warrant indeed purported to authorize a search of property located outside the district where the issuing magistrate judge sat. The magistrate judge had no jurisdiction to issue such a warrant under the first paragraph of Section 636(a). The Court also concludes that Section 636(a)(1) is inapposite because Rule 41(b) did not confer on the magistrate judge authority to issue the NIT Warrant Levin challenges here, . . . and the government points to no other `law or . . . Rule[ ] of Criminal Procedure’ on which the magistrate judge could have based its jurisdiction pursuant to Section 636(a)(1). . . .. Consequently, the Court holds that the Federal Magistrates Act did not authorize the magistrate judge to issue the NIT Warrant here.
U.S. v. Levin, supra.
The District Court Judge then took up the issue as to whether Rule 41(b) of the Federal Rules of Criminal Procedure authorized the Magistrate Judge to issue the NIT Warrant:
Rule 41(b), titled `Authority to Issue a Warrant, provides as follows:
At the request of a federal law enforcement officer or an attorney for the government:
(1) a magistrate judge with authority in the district — or if none is reasonably available, a judge of a state court of record in the district — has authority to issue a warrant to search for and seize a person or property located within the district;
(2) a magistrate judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed;
(3) a magistrate judge — in an investigation of domestic terrorism or international terrorism — with authority in any district in which activities related to the terrorism may have occurred has authority to issue a warrant for a person or property within or outside that district;
(4) a magistrate judge with authority in the district has authority to issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both; and
(5) a magistrate judge having authority in any district where activities related to the crime may have occurred, or in the District of Columbia, may issue a warrant for property that is located outside the jurisdiction of any state or district, but within any of the following:
(A) a United States territory, possession, or commonwealth;
(B) the premises — no matter who owns them — of a United States diplomatic or consular mission in a foreign state, including any appurtenant building, part of a building, or land used for the mission's purposes; or
(C) a residence and any appurtenant land owned or leased by the United States and used by United States personnel assigned to a United States diplomatic or consular mission in a foreign state.
U.S. v. Levin, supra.
The judge went on to explain that the prosecution
argues for a liberal construction of Rule 41(b) that would authorize the type of search that occurred here pursuant to the NIT Warrant. See Gov't's Resp. 18-20. Specifically, it argues that subsections (1), (2), and (4) of Rule 41(b) are each sufficient to support the magistrate judge's issuance of the NIT Warrant. Id. This Court is unpersuaded by the government's arguments. Because the NIT Warrant purported to authorize a search of property located outside the Eastern District of Virginia, and because none of the exceptions to the general territorial limitation of Rule 41(b)(1) applies, the Court holds that the magistrate judge lacked authority under Rule 41(b) to issue the NIT Warrant. . . .

The government advances two distinct lines of argument as to why Rule 41(b)(1) authorizes the NIT Warrant. One is that all of the property that was searched pursuant to the NIT Warrant was actually located within the Eastern District of Virginia, where the magistrate judge sat: since Levin — as a user of Website A — `retrieved the NIT from a server in the Eastern District of Virginia, and the NIT sent [Levin's] network information back to a server in that district,’ the government argues the search it conducted pursuant to the NIT Warrant properly can be understood as occurring within the Eastern District of Virginia. Gov't's Resp. 20. This is nothing but a strained, after-the-fact rationalization. In its explanation of the `Place to be Searched,’ the NIT Warrant made clear that the NIT would be used to `obtain[ ] information” from various “activating computers[.]’ NIT Warrant 32.

As is clear from Levin's case — his computer was in Massachusetts — at least some of the activating computers were located outside of the Eastern District of Virginia. That the Website A server is located in the Eastern District of Virginia is, for purposes of Rule 41(b)(1), immaterial, since it is not the server itself from which the relevant information was sought. See U.S.v. Michaud, 2016 WL 337263 at *6 (U.S. District Court for the Western District of Washington Jan. 28, 2016) (examining the permissibility of the same NIT Warrant and concluding that Rule 41(b)(1) did not authorize the search `because the object of the search and seizure was Mr. Michaud's computer, not located in the Eastern District of Virginia’).
U.S. v. Levin, supra.
The judge then pointed out that the
government's other argument is that where, as here, it is impossible to identify in advance the location of the property to be searched, Rule 41(b)(1) ought be interpreted to allow `a judge in the district with the strongest known connection to the search’ to issue a warrant. See Gov't's Resp. 20. This argument fails, though, because it adds words to the Rule. See Lopez-Soto v. Hawayek, 175 F.3d 170, 173 (U.S. Court of Appeals for the 1st Circuit 1999) (`Courts have an obligation to refrain from embellishing statutes by inserting language that Congress opted to omit’).
U.S. v. Levin, supra.
He went on to address the applicability of two other provisions of Rule 41 of the Federal Rules of Criminal Procedure, beginning with Rule 41(b)(2), explaining that it
confers on magistrate judges the authority `to issue a warrant of a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed.’ Fed. R. Crim. P. 41(b)(2). The government argues that because the NIT (i.e., the computer code used to generate the identifying information from users' computers) was located in the Eastern District of Virginia at the time the warrant was issued, this subsection applies. Gov't's Resp. 19. As discussed above, however, the actual property to be searched was not the NIT nor the server on which it was located, but rather the users' computers. Therefore, Rule 41(b)(2) is inapposite.
U.S. v. Levin, supra.
Next, the judge took up the possible applicability of Rule41(b)(4), noting that he was
similarly unpersuaded by the government's argument regarding Rule 41(b)(4), which authorizes magistrate judges in a particular district `to issue a warrant to install within the district a tracking device,’ even where the person or property on whom the device is installed later moves outside the district, see Fed. R. Crim. P. 41(b)(4). The government likens the transmittal of the NIT to Website A users' computers to the installation of a tracking device in a container holding contraband, insofar as each permits the government to identify the location of illegal material that has moved outside the relevant jurisdiction. Gov't's Resp. 19-20. This analogy does not persuade the Court that the NIT properly may be considered a tracking device, regardless of where the `installation’ occurred.
U.S. v. Levin, supra.
The District Court Judge then took up the issue of “suppression,” explaining that
[h]aving concluded that neither the Federal Magistrates Act nor Rule 41(b) authorized the issuance of the NIT Warrant, the Court now turns to the question of whether suppression of the evidence obtained pursuant to the NIT Warrant is an appropriate remedy. Levin argues that this evidence ought be suppressed because the magistrate judge lacked jurisdiction to issue the NIT Warrant and because Levin was prejudiced by the Rule 41 violation. . . . The government argues that even if the issuance of the NIT Warrant was not sanctioned by Rule 41 or Section 636(a), suppression is too extreme a remedy, as any violation of the relevant rule or statute was merely ministerial and there was no resulting prejudice to Levin. . . . Further, the government contends that the good-faith exception to the exclusionary rule ought preclude suppression of the evidence seized. . . .

The Court concludes that the violation at issue here is distinct from the technical Rule 41 violations that have been deemed insufficient to warrant suppression in past cases, and, in any event, Levin was prejudiced by the violation. Moreover, the Court holds that the good-faith exception is inapplicable because the warrant at issue here was void ab initio.
U.S. v. Levin, supra.
He then took up Levin’s motion to suppress noting, that the prosecution argued that
even if the NIT Warrant violated the Federal Magistrates Act and Rule 41(b), the Court ought not exclude the evidence seized pursuant to the NIT Warrant because the law enforcement officers here acted in good faith. See Gov't's Resp. 21 (citing U.S. v. Leon, 468 U.S. 897 (1984)). Whether the good-faith exception applies where a warrant was void is a question of first impression in this Circuit, and an unresolved question more broadly. See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 1.3(f) n.60. . . . This Court holds that it does not.

In Leon, the Supreme Court held that suppression was unwarranted where evidence was obtained pursuant to a search warrant that was later determined to be unsupported by probable cause, since the executing officers acted in objectively reasonable reliance on the warrant's validity. See U.S. v. Leon, supra. In reaching this conclusion, the Supreme Court observed that `[r]easonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according great deference to a magistrate judge's determination.’ U.S. v. Leon, supra.

Leon contains not the slightest suggestion, however, that the same deference ought apply when magistrate judges determine their own jurisdiction. Indeed, the Supreme Court's conclusion presupposes that the issuing magistrate judge was authorized to issue the challenged warrant. . . .  Moreover, Leon deals explicitly with a `subsequently invalidated warrant,’ . . . rather than a warrant that was void at the time of its issuance. The latter raises qualitatively different concerns, as several post-Leon courts have recognized.
U.S. v. Levin, supra (emphasis in the original).
The judge went on to explain that in the years since the Leon case was decided, the
Supreme Court has expanded the good-faith exception to contexts beyond those Leon specifically addressed. None of the Supreme Court's post-Leon good-faith cases, however, involved a warrant that was void ab initio, and therefore none direct the conclusion that the good–faith exception ought apply to this case. This Court is aware of only one federal circuit court to address the question of whether Leon's good-faith exception applies in these circumstances: the Sixth Circuit. See U.S. v. Master, 614 F.3d 236 (U.S. Court of Appeals for the 6th Circuit 2010); U.S. v. Scott, 260 F.3d 512 (U.S. Court of Appeals for the 6th Circuit 2001). Scott involved a search warrant issued by a retired judge who lacked authority to do so. . . . After holding that such warrant was necessarily void ab initio, . . . the court concluded that, `[d]espite the dearth of case law, we are confident that Leon did not contemplate a situation where a warrant is issued by a person lacking the requisite legal authority.’ Id. 
Nine years later, the Sixth Circuit effectively reversed itself in Master, which involved a warrant issued by a state judge to search property outside his district, which was unauthorized under Tennessee law. . . . The court held that the warrant was invalid for the same reason as was the warrant in Scott, . . . but that the good-faith exception to the exclusionary rule applied because Scott's reasoning was `no longer clearly consistent with current Supreme Court doctrine.’ . . . [I]t noted that `t]he Supreme Court has effectively created a balancing test by requiring that in order for a court to suppress evidence following the finding of a Fourth Amendment violation, “the benefits of deterrence must outweigh the costs.”’ U.S. v. Master, supra (quoting Herring v. U.S., 555 U.S. 135 (2000)).
U.S. v. Levin, supra.
The Judge went on to find that the Master court read the Supreme Court’s
recent good-faith cases too broadly This Court is persuaded instead by the rationale in Scott and cases applying the holding of that decision, see, e.g., U.S. v. Neering, 194 F.Supp.2d 620 (U.S. District Court for the Eastern District of Michigan 2002) (warrant issued by an official who was not properly appointed and therefore lacked issuing authority was void, and under Scott, the good-faith exception did not apply). Neither Hudson nor Herring — both of which the Master court cited in support of its conclusion that Scott's holding is no longer tenable — requires the conclusion that the good-faith exception applies to evidence seized pursuant to a warrant that was void ab initio.

Because a warrant that was void at the outset is akin to no warrant at all, cases involving the application of the good-faith exception to evidence seized pursuant to a warrantless search are especially instructive. In U.S. v. Curzi, 867 F.2d 36 (U.S. Court of Appeals for the 1st Circuit 1989), the First Circuit declined to `recognize[ ] a good-faith exception in respect to warrantless searches.’ . . .To hold that the good-faith exception is applicable here would collapse the distinction between a voidable and a void warrant.

But this distinction is meaningful: the former involves `judicial error,’ such as `misjudging the sufficiency of the evidence or the warrant application's fulfillment of the statutory requirements[,]’ while the latter involves `judicial  authority,’ i.e., a judge `act[ing] outside of the law, outside of the authority granted to judges in the first place.’ State v. Hess, 770 N.W.2d 769 (Wisconsin Court of Appeals 2009); cf. U.S. v. Scott, supra (‘Leon presupposed that the warrant was issued by a magistrate or judge clothed in the proper legal authority, defining the issue as whether the exclusionary rule applied to 'evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause’) . . .; State v. Vickers, 964 P.2d 756 (Montana Supreme Court 1998) (distinguishing Leon and concluding that `[i]f a search warrant is void ab initio, the inquiry stops and all other issues pertaining to the validity of the search warrant, such as whether the purpose of the exclusionary rule is served, are moot’).

Were the good-faith exception to apply here, courts would have to tolerate evidence obtained when an officer submitted something that reasonably looked like a valid warrant application, to someone who, to the officer, appeared to have authority to approve that warrant application. . . . This Court holds that such an expansion of the good-faith exception is improvident, and not required by current precedent.
U.S. v. Levin, supra.
The opinion then goes on to note that,
[e]ven were the Court to hold that the good-faith exception could apply to circumstances involving a search pursuant to a warrant issued without jurisdiction, it would decline to rule such exception applicable here. For one, it was not objectively reasonable for law enforcement -- particularly [`a veteran FBI agent with 19 years of federal law enforcement experience[,]’ Gov't's Resp. 7-8 -- to believe that the NIT Warrant was properly issued considering the plain mandate of Rule 41(b) . See U.S. v. Glover, 736 F.3d 509 (U.S. Court of Appeals for theD.C. Circuit 2013) (`[I]t is quite a stretch to label the government's actions in seeking a warrant so clearly in violation of Rule 41 as motivated by “good faith”’); cfU.S. v. McKeever, 894 F.2d 712 (U.S.Court of Appeals for the 5th Circuit 1990) (good-faith exception did not apply where sheriff `who was the prime mover in obtaining and executing the search . . . knew both that he had to obtain a warrant from a court of record . . .  and that [the issuing judge] was not a judge of a court of record). Moreover, even analyzed under Herring, the conduct at issue here can be described as `systemic error or reckless disregard of constitutional requirements,’ and the Court thus concludes that suppression is appropriate.
U.S. v. Levin, supra.
The judge therefore held that
[b]ased on the foregoing analysis, the Court concludes that the NIT Warrant was issued without jurisdiction and thus was void ab initio. It follows that the resulting search was conducted as though there were no warrant at all. Since warrantless searches are presumptively unreasonable, and the good-faith exception is inapplicable, the evidence must be excluded. Accordingly, Levin's motion to suppress . . . is GRANTED.
U.S. v. Levin, supra. 

1 comment:

Unknown said...

But see proposed changes to Rule 41....