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”’); cf. U.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.
But see proposed changes to Rule 41....
ReplyDelete