Thursday, August 15th, 2019

Circuit Upholds, On Good Faith Grounds, A Search Warrant Issued By An Out-of-District Magistrate In Violation of Former Rule 41(b)and 28 U.S.C. §636(a).

United States v. Eldred, No. 17-3367-cr (August 9, 2019) involved a Network Investigative Technique warrant, essentially a government hacking tool that penetrates an anonymous “dark” web site to gain identifying data from computers communicating with the site. The warrant was issued by a magistrate judge in Virginia, but was used to obtain the IP address of a computer in Vermont, which agents subsequently seized. Eldred argued that the warrant was void because it violated the since-amended Federal Rule of Criminal Procedure 41(b) (limiting the authority of a magistrate-judge to issue warrants to persons and property within her district) and 28 U.S.C. 636(a)(limiting the jurisdiction of magistrates to the district in which they sit).

Rule 41 (b) was amended in 2016 to specifically allow this type of warrant. However, the Court acknowledged that the old Rule applied here and that Section 636(a) arguably provided independent statutory ground for suppression in future cases, despite the Rule’s amendment. The Court concluded that “the issue is not clear cut” that a violation of either provision constitutes a Fourth Amendment violation, although three Circuits have held so, or that section 636(a) provides independent restriction on magistrates’ authority. The Court declined to resolve those issues, ruling that even if there was a Fourth Amendment violation, “suppression is not warranted because the good-faith doctrine applies.”

Eldred argued that the good faith rule did not apply because the warrant was facially deficient. The Court ruled that given the affidavit’s detailed description of the NIT program and the warrant’s lack of any geographic limitation but authorization to search of any user who logs into the site, “a reasonable reader would have understood that the search would extend beyond the boundaries of the district.” Eldred argued that the government clearly knew such a warrant was invalid under the former Rule 41(b) because the Justice Department had urged amendment of the Rule to allow such a search. Following the Fifth Circuit, the Court construed this as “an attempt to clarify an existing law’s application to new circumstances” rather than an admission that NIT warrants were not allowed. Finally, the Court rejected Eldred’s argument that the good faith doctrine should not apply to a warrant that is void ab initio because the magistrate had no jurisdiction to issue it. The Court held that, as with any warrant, the only good faith at issue was that of the officers, not the magistrate.


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