Third Circuit Applies Good Faith Exception to FBI Reliance on Jurisdictionally Defective Search Warrant in Child Porn Malware Case

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

The Third Circuit has just decided the case of United States v. Werdene. In Werdene, the Third Circuit held that Federal Bureau of Investigation agents acted in good faith on a jurisdictionally defective search warrant which authorized them to install malware/tracking software on users outside of the district in which the warrant was issued as part of an investigation into child pornography. The facts of the case are notable because in this case, the Government seized a child pornography server and continued to operate it, thereby distributing child pornography as part of its attempt to identify the users of the server. Nonetheless, because agents believed they had obtained a valid search warrant, the Third Circuit held that the lower court properly declined to suppress the resulting evidence. 

United States v. Werdene

The Werdene case began with an FBI investigation into a website called Playpen. Playpen was a forum on the dark web that was used to distribute child porn. Specifically, Playpen was on the Tor network. Users were able to conceal their actual IP addresses while accessing the network, making it difficult for law enforcement to track the users of the website even if law enforcement seized the site itself. Under normal circumstances, when law enforcement seizes a website, officers can obtain logs of the IP addresses which have accessed the site. They can then trace those IP addresses back to specific internet accounts and obtain search warrants for those users’ homes or businesses. The Tor network prevents the server that the user accesses from recording the user’s actual IP address, thereby making it difficult, if not impossible, for law enforcement to obtain a list of IP addresses that accessed the site even after they seize the server itself. 

In 2014, the FBI learned that Playpen was actually being hosted on a computer in North Carolina. The FBI quickly arrested the owner of the site and also obtained a warrant to seize the server. The FBI then moved the server to a government facility in the Eastern District of Virginia and obtained a wiretap order to monitor the communications on the server. The FBI continued to operate the Playpen website and distribute child pornography in the hopes of developing a method to circumvent Tor and identify the users of the website.

In order to get around Tor's privacy protections, the FBI created a form of malware that would provide it with a user’s IP address when the user accessed the site. The FBI changed Playpen’s code so that when a user accessed the website, the user would automatically download software which would search the computer for its IP address and other identifying information and transmit that information to the FBI.

Prior to deploying this software, the FBI obtained a search warrant from a magistrate judge in the Eastern District of Virginia permitting it to deploy the malware on the computers that accessed the website. The order authorized the FBI to install the code on computers “wherever located.” Thus, this one warrant issued by a single Magistrate Judge in Virginia authorized the FBI to search computers across the world, most of which were located outside of that judicial district in Virginia.

The data from the malware eventually revealed that the defendant in the case had accessed the site and downloaded child pornography. The FBI obtained a search warrant for his home from a magistrate judge in the Eastern District of Pennsylvania, seized his computers, and found incriminating materials. Accordingly, federal prosecutors charged him with possession of child pornography in violation of 18 U.S.C. Sec. 2252(a)(4)(B).

Motion to Suppress

Werdene moved to suppress the evidence, arguing that FBI agents relied on an improperly issued search warrant because the warrant failed to comply with the jurisdictional requirements of then Rule 41(b) of the Federal Rules of Criminal Procedure. Rule 41(b) has since been amended to avoid the issues raised by this case. At the time, it gave a magistrate judge the power to “issue a warrant to search for and seize a person or property located within the district.” It also contained four exceptions, none of which authorized a magistrate judge to issue a search warrant for property outside of the judge’s district. Accordingly, the Third Circuit found that the search warrant was invalid because the magistrate judge did not have the authority under the rules to issue it. The court further concluded that the warrant was void ab initio, meaning it would be the same as if the Government had no warrant at all.

The Good Faith Exception to the Exclusionary Rule 

Nonetheless, the Third Circuit refused to suppress the evidence. Instead, it found that the agents acted in good faith when they relied on the defective search warrant. The purpose of the exclusionary rule, which requires the suppression of some illegally seized evidence, is to deter illegal police conduct. Where suppression of the evidence would have no deterrent effect because police acted in good faith, federal courts will refuse to suppress the evidence.

Notably, Pennsylvania courts have repeatedly rejected this good faith exception and held that the Pennsylvania Constitution, unlike the United States Constitution, requires the suppression of illegally seized evidence even where the police acted in good faith. Here, the court found that the FBI believed they had a valid search warrant. Therefore, there would be no deterrent effect to be gained suppressing the evidence. The error was committed by the judge, not by the FBI. Accordingly, the court found that the good faith exception applied and refused to reverse the trial court’s decision.

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