Ninth Circuit: Reliance on NIT Warrant to Conduct Search Outside of Issuing Jurisdiction Violates the Fourth Amendment

Recently, the Ninth Circuit held that Network Investigative Technique (“NIT”) warrants relied on to authorize a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment. Still, the court of appeals found that the good faith exception applied to admit the evidence obtained as a result of the unconstitutional search.

In 2014, the FBI conducted an investigation into a website, “Playpen,” which was used to send and receive child pornography. The website operated on an anonymous network, “Tor.” Tor allowed users to access websites only accessible through the Tor network. Users were required to download and install the network software on their computers to use Tor.

The FBI determined Playpen was hosted on servers in North Carolina, and obtained and executed a valid search warrant in the Western District of North Carolina in January 2015. The FBI removed Playpen servers and operated them from Virginia. The FBI subsequently opened an additional investigation to identify Playpen users.

In February 2015, the FBI obtained a warrant from a magistrate judge in the Eastern District of Virginia, authorizing searches for 30 days using an NIT. The NIT warrant authorized the search of all computers of any website visitor, wherever located, who logged into Playpen with a username and password. The NIT mechanism allowed the FBI, while controlled the website from Virginia, to discover identifying information about the website visitors’ computers.

In March 2015, a visitor with the username “askjeff” logged into Playpen. The NIT mechanism revealed the visitor’s IP address and that the visitor logged into Playpen for over 32 hours since September 2014. The FBI traced the IP address to Comcast, and provided Comcast with an administrative subpoena requesting information about the IP address. The IP address was associated with a computer in California at the home of Defendant Bryan Henderson’s grandmother. A magistrate judge in California issued a warrant to the home, and the FBI discovered thousands of images and hundreds of videos of child pornography.

Henderson was indicted on charges of receipt and possession of child pornography. Henderson moved to suppress all evidence, including the evidence obtained pursuant to the NIT warrant. The district court denied Henderson’s motion to suppress, and Henderson entered into a conditional guilty plea to receipt of child pornography.

Henderson appealed the denial of his motion to suppress to the U.S. Court of Appeals for the Ninth Circuit. Henderson argued that the NIT warrant violated his Fourth Amendment rights because it was issued in violation of Federal Rule of Criminal Procedure 41(b), and that no provision in Rule 41(b) authorized a magistrate judge to issue the NIT warrant to search computers located outside her district.

The government conceded that a search occurred when the NIT mechanism was deployed and returned visitors’ identifying information. The court of appeals agreed with the government and two other circuit courts that a defendant has a reasonable expectation of privacy in the contents of his personal computer and the execution of an NIT mechanism requires a warrant.

The government still contended that the NIT warrant was nonetheless authorized under Rule 41(b)’s specific provision for tracking devices, which permits a magistrate judge with authority in the district to issue a warrant to install within the district a tracking device to track the movement of a person or property located within or outside the district. The government argued that Henderson’s computer made a “virtual trip” to the server in Virginia when he logged onto Playpen, and the NIT caused identifying location information to be transmitted back to the government, like a beeper or tracking device would.

The court of appeals disagreed with the government. The NIT mechanism did not track the movement of a person or property as required by Rule 41(b)’s tracking-device provision. The NIT mechanism was a set of computer instructions that directed visitors’ computers, regardless of location, to send certain information to the Virginia server. The visitors’ computers did not travel to Virginia, and the information relayed did not reveal the physical location of any person or property. The NIT warrant therefore violated Rule 41(b) by authorizing a search outside of the issuing magistrate’s territorial authority.

The court then considered whether the violation required suppression of evidence to safeguard Henderson’s Fourth Amendment rights. Suppression is justified where there is a “fundamental error” that results in a constitutional violation unless the officers can show an “objective good faith reliance” to the exclusionary rule to the Fourth Amendment. Henderson argued that the violation here was fundamental because the magistrate judge acted beyond her constitutional authority. The court agreed. By issuing the NIT warrant, the magistrate judge exceed the bounds of the authority conferred to her. 

Having concluded that the magistrate judge issued a warrant outside of her jurisdictional authority, the court of appeals next addressed whether the search conducted pursuant to a search warrant violated Henderson’s Fourth Amendment rights. Other circuit courts have held that a Rule 41(b) violation is a fundamental, constitutional error. Using the authority of its sister circuits, the court of appeals concluded that “a warrant purportedly authorizing a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment.”

However, the court found that even though there was a fundamental, constitutional error, suppression of evidence obtained in violation of the Fourth Amendment is not appropriate since the government acted in good faith. The exclusionary rule does not apply when law enforcement officers acted in objective good faith. Relevant here, suppression of evidence is not appropriate if officers acted in “objectively reasonable reliance” on an invalidated search warrant.

The court of appeals therefore affirmed the judgment of the district court.

Read the full case: United States v. Henderson

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


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