Agents’ Failure to Provide Sufficient Notice of Warrant Did Not Violate the Fourth Amendment
The Court of Appeals for the Eighth Circuit recently held that the procedural violations of FBI agents in failing to provide sufficient notice of a warrant did not violate a defendant’s Fourth Amendment rights.
In 2012, the FBI investigated a computer server in Nebraska hosting child pornography websites. One of those websites, “PedoBook,” was accessible only with special software designed to obscure a users’ identity and prevent the FBI from discovering their IP addresses.
On November 19, 2012, the FBI obtained a Network Investigative Technique (“NIT”) warrant to install software on the server to circumvent the website’s network and provide agents with information about any user accessing the website’s content. This information included the user’s IP address, the date and time the user accessed the content, and his or her computer’s operating system. After operating the website for about three weeks, the FBI obtained an IP address, eventually revealing the name of Mr. Joshua Welch. The FBI obtained a warrant to search Welch’s residential address on April 4, 2013, and executed it on April 9, 2013.
Welch filed a motion to suppress the introduction of evidence obtained as a result of the NIT warrant, arguing that the FBI agents’ failure to provide him a copy of the warrant within the time allowed under Federal Rule of Criminal Procedure 41violated his rights under the Fourth Amendment. The rule requires a copy of an executed search warrant be provided to the owner of the property seized. However, a delay is allowed in providing the warrant under 18 U.S.C. § 3103a(b) for thirty days after the date of execution or later if justified.
Welch contended that the thirty day period began to run from the date the government received the user information for his IP address in December 2012. Because he did not receive notice of the warrant until April 2013, he argued the delay was 122 days. The district court, however, found that the NIT warrant intended the thirty day notice period to begin when the FBI identified the individual “behind the keyboard” in April 2013. The district court held that the rule was not violated and that any violation did not amount to a constitutional violation. After trial, the jury returned a guilty verdict.
Welch filed an appeal with the U.S. Court of Appeals for the Eighth Circuit, contending that the district court should have suppressed evidence obtained from the NIT warrant. Welch argued that the district court erred in admitting evidence obtained as a result of the warrant because he was provided notice beyond the thirty day period, violating his Fourth Amendment rights. The court of appeals reviewed the district court’s factual findings for clear error and de novo whether the Fourth Amendment was violated.
First, the court of appeals determined that the thirty day extension runs from the execution of the NIT warrant, which occurred on November 19, 2012. Notice was required within thirty days of that date, but the FBI agents failed to provide notice within this time period. Second, the court of appeals concluded that Welch should have been given a copy of the NIT warrant. While the government contended that Welch received notice through the testimony of an FBI agent as to the warrant, the court of appeals found this “notice” insufficient. Thus, because notice was not timely given and the notice that was given was itself insufficient, the court of appeals found that the FBI violated the procedural requirements of Rule 41.
Despite finding a procedural violation, the court of appeals did not believe that it amounted to an unreasonable search and seizure. Citing United States v. Spencer, 439 F.3d 905, 913 (8th Cir. 2006), the court of appeals stated that “a Rule 41 violation amounts to a violation of the Fourth Amendment warranting exclusion ‘only if a defendant is prejudiced or if reckless disregard of proper procedure is evident.’”
Though the NIT warrant indicated that a thirty day delay was granted, it did not specify when the period would begin to run. Still, the court of appeals did not find any evidence suggesting the delay was a deliberate violation or due to reckless disregard. The application for the NIT warrant specifically requested the period begin to run when the FBI identified an individual accessing the website. Thus, the court of appeals determined that the FBI agents, believing the warrant ran from the point in which they identified Welch, acted good faith. Additionally, the court of appeals stated that the FBI agents’ failure to provide Welch an actual copy of the warrant was an error made in good faith and not a deliberate procedural violation.
Similarly, the court of appeals did not find evidence of prejudice. To make such a finding, the court would need to determine the search of Welch’s residential address would not have occurred had there been no procedural violation. Nothing in the record made this showing. In fact, the court of appeals noted that the FBI agents could have easily obtained extensions if sought.
Therefore, the delayed notice to Welch did not violate his Fourth Amendment rights and demand suppression of the evidence obtained from it.
Read the full case: United States v. Welch
This case law update was written by Michael J. Sgarlat, associate attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.
Posted in Case Law Update