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

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.