Cops Could Rely On Warrant Permitting Electronic Searches Outside of Issuing Court's Jurisdiction, Tenth Says

U.S. v. Workman, 863 F.3d 1313 (7/21/17) (Col.) (Published) - The 10th reverses a suppression order because the good faith exception saves a warrant permitting electronic searches outside the district of the issuing court. As you've probably heard, the FBI seized control of an illicit child porn website, "Playpen", and used malware to identify and find individuals accessing child porn. The FBI obtained a warrant from a magistrate judge in the Eastern District of Virginia. The warrant allowed the FBI to install software onto the Playpen server. When Playpen was accessed, the software would automatically install malware onto the user's computer. The malware searched the user's computer for identifying information, e.g. an IP address, and sent it to the FBI. Through one of the IP addresses the FBI identified the user as Mr. Workman who lived in Colorado. The FBI got a warrant in Colorado to search his computer. The 10th gives us no guidance as to whether the warrant was unlawful. Instead it assumes it was and finds good faith. Mr. Workman argued the good faith exception didn't apply because there was essentially no warrant at all. It was void from the beginning [or ab initio for us Latin fans]. The 10th doesn't think that matters. In Herring v. U.S., 555 U.S. 135 (2009) and Arizona v. Evans, 514 U.S. 1 (1995), officers mistakenly believed warrants existed when they really didn't. Yet the good faith exception applied. So here, even if the magistrate judge exceeded geographic constraints, the agents could have reasonably relied on the warrant because the software was installed in Virginia, the issuing judge was in Virginia and all the information was retrieved in Virginia. The 10th concedes that agents with sophisticated legal training might have recognized the Federal Magistrate Act and Fed. R. Crim. P. Rule 41(b) prohibited the warrant. But we don't expect officers to understand "legal nuances" that an attorney would. And besides, 8 district court judges have held the same warrant complied with federal law. The Tenth distinguished U.S. v. Krueger, 809 F.3d 1109 (10th Cir. 2015) in which the 10th upheld suppression of evidence when the magistrate judge authorized a search in another district. The 10th said in that case suppression served the purpose of the exclusionary rule by deterring law enforcement from seeking and obtaining warrants that clearly violate Rule 41(b)(1). Ordinarily that rationale would eliminate application of the good faith exception. The Workman court, however, dismisses Krueger on the grounds that the government didn't raise the exception in that case.