Thursday, January 14, 2016

Rule 41 Violation Affirmed as Basis for Suppression Order

U.S. v. Krueger, 2015 WL 6904338 (11/10/2015) (KS): The panel upholds the district court’s suppression order grounded on a Rule 41 violation. I understand you may be astonished because, after all, the 10th Circuit has never held that the government’s violation of Rule 41 justifies the suppression of evidence. A point which Judge Ebel noted in his majority decision. Here, however, the panel addressed Rule 41(b)(1) which prohibits a magistrate from issuing warrants outside the district in which he sits. It had to decide whether Krueger had shown that any prejudice he suffered justified the suppression of evidence.

A federal magistrate in Kansas issued a warrant that allowed agents to search Krueger’s residence in Kansas for computers and cell phones. When the agents got to the house, Krueger’s roommate told them that he was in Oklahoma City. Agents there found out where he was staying and a different federal magistrate in Kansas issued a warrant authorizing the agents to search for the same items in Oklahoma. As a result the agents got into the place where Krueger was staying, convinced him to waive his Miranda rights, got a confession and his permission to assume his on line presence on his peer to peer networking account. This evidence of course led to an indictment for distribution of child pornography.

The district court ruled that the second warrant violated Rule 41(b)(1). It concluded the magistrate in Kansas did not have authority to issue a warrant for property already located in Oklahoma. Since the government conceded this point, the only issue on appeal was whether Krueger had shown that he was prejudiced by the Rule violation. The panel found that he had, in the sense that the Oklahoma search would not have happened because the government would not have obtained the Oklahoma warrant if Rule 41(b)(1) had been followed.

In his concurrence Judge Gorsuch used a different (better?) approach. He said that the Rule 41 violation here was a Fourth Amendment violation (an issue the majority refused to decide). A warrant issued for a search and seizure beyond the territorial jurisdiction of a magistrate’s powers is no warrant at all and is null and void. He explained that repeatedly, state and federal courts have found that a warrant issued in defiance of a law’s restrictions on the territorial reach of the issuing authority will not qualify as a warrant for Fourth Amendment purposes. In his view, this ends the court’s inquiry - proving prejudice or disputing harmlessness is not part of this analysis. And to demonstrate his discriminating acumen in today’s pop cultural Judge Gorsuch tells us that, “[o]urs is not supposed to be the government of the Hunger Games with power centralized in one district, but a government of diffused and divided power, the better to prevent its abuse.”