United States v. James Ganzer, Jr.
United States v. James Ganzer, Jr.
Opinion
This case is one of many filed around the country concerning the implications of a warrant issued in the Eastern District of Virginia ("EDVA"), which authorized the Federal Bureau of Investigation ("FBI") to use certain malware to identify and prosecute users of a child-pornography website known as "Playpen" that operated on an anonymity network. Defendant-Appellant, James Kenneth Ganzer, Jr. ("Ganzer"), like dozens of others similarly-situated, moved the district court to suppress the evidence obtained against him as a result of the warrant, which led to his prosecution for possession of child pornography. He now appeals the district court's denial of his motion.
To date, eight of our sister circuits have addressed issues identical to those before us.
See generally
,
United States v. Moorehead
,
For the reasons set forth herein, we now join each of those circuits in holding that the good-faith exception to the exclusionary rule set forth in
United States v. Leon
,
I.
In December of 2014, the FBI learned from a foreign law enforcement agency that a United States-based Internet Protocol ("IP") address was associated with the child-pornography website Playpen. A search warrant obtained in January of 2015 allowed FBI agents to seize a copy of the server that was assigned the suspect IP address; 1 determine that the IP address in fact contained a copy of Playpen; and place a copy of the server on a computer server at a government facility in the EDVA. Subsequently, the FBI was able to apprehend the administrator of Playpen at his home in Naples, Florida and assume control of the website. For investigative purposes, the FBI continued to operate the website from the government-controlled server in the EDVA for a limited period of time.
Playpen operated on an anonymity network known as "The Onion Router" or "Tor." 2 Tor software, which is publicly accessible, protects the privacy of network users by "bouncing their communications around a distributed network of relay computers run by volunteers all around the world, thereby masking the user's actual IP address." This feature made it impossible for federal agents to determine the identities of the administrators and users of Playpen without employing additional investigative techniques.
Accordingly, the FBI requested and obtained a warrant from a magistrate judge in the EDVA ("the EDVA magistrate"), which allowed it to deploy a Network Investigative Technique ("NIT") from the government-controlled server in the EDVA. (Such warrant will hereinafter be referred to as the "NIT warrant.") The NIT was a form of malware that augmented the content sent by Playpen to the computers of Playpen users with directions instructing those computers to send identifying information to a computer controlled by the government. Specifically, per the terms of the NIT warrant, the NIT collected the following information from each computer used to login into Playpen: the computer's IP address and when the NIT determined same; a unique identifier for the computer generated by the NIT; the type of operating system used by the computer and the operating system's active username; whether the NIT had already *582 been sent to the computer; the computer's host name; and the computer's media access control.
Through its use of the NIT, the FBI was able to link a Playpen user operating under the username of "marleyboy" with an IP address that it later determined was associated with an individual named Robert Ahr ("Ahr") residing in Austin, Texas. With this and other information, the FBI obtained a warrant from a magistrate judge in the Western District of Texas allowing a search of Ahr's residence. 3 Both Ahr and Ganzer were present at the time federal agents executed the warrant. Ahr denied any involvement with child pornography. Ganzer, on the other hand, agreed to be interviewed and admitted to using his laptop to view child pornography and access Playpen under the username "marleyboy." He subsequently confirmed these admissions in writing during an interview at the Austin Police Station. A preliminary examination of Ganzer's laptop revealed approximately 61 video files and 16,546 images containing child pornography. On December 20, 2016, an indictment was filed in the United States District Court for the Western District of Texas charging Ganzer with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).
In advance of his trial date, Ganzer filed a motion to suppress "the evidence illegally obtained during the search of his home and all fruits of this illegal search, including, but not limited to, inculpatory statements Ganzer made to police"-all of which he contended was discovered as a result of the NIT warrant. Ganzer argued that the NIT warrant, which allowed the government "to deploy malware to search [his] computer in Texas and countless computers all over the world ... was invalid because it (1) violated the Federal Magistrate's Act, (2) violated Rule 41(b) of the Federal Rules of Criminal Procedure, and (3) lacked particularity." Ganzer also argued that even if the NIT warrant was valid, its scope was limited to computers in the EDVA and, therefore, did not extend to his computer in Texas. Additionally, he urged that the good-faith exception to the exclusionary rule recognized by the Supreme Court in
United States v. Leon
,
The district court denied Ganzer's motion to suppress. The court agreed with Ganzer that the issuance of the NIT warrant violated § 636(a) of the Federal Magistrates Act ("§ 636(a)"),
4
II.
"When examining a district court's ruling on a motion to suppress, we review questions of law de novo and factual findings for clear error," viewing the evidence "in the light most favorable to the prevailing party."
United States v. Wallace
,
III.
On appeal, Ganzer claims that the district court correctly concluded that the EDVA magistrate did not have authority to issue the NIT warrant under § 636(a) and Rule 41(b), since the warrant authorized a search of computers outside of her jurisdiction. He contends that the court erred, however, in determining that the good-faith exception to suppression is applicable under the circumstances of this case. First, Ganzer asserts that because the EDVA magistrate did not have jurisdiction to issue the NIT warrant, the warrant was void ab initio , making the searches conducted pursuant to it akin to warrantless searches. He states that the Supreme Court has never extended the good-faith exception to apply in the context of a warrant so-categorized. Ganzer *584 recognizes that all other circuit courts to address challenges to the NIT warrant have found the good-faith exception to be applicable but maintains that those courts reached the incorrect result and urges this court to decline to extend the exception to cases involving warrants that are void ab initio . 7
Ganzer next argues that, in any event, the good-faith exception should not apply here because the government "acted recklessly or with gross negligence" in seeking the NIT warrant, since it knew that Rule 41(b) did not allow for its issuance. As discussed in more detail below, Ganzer supports this assertion by pointing to pre-NIT-warrant efforts of the Department of Justice ("DOJ") to have Rule 41(b) amended to permit magistrates to issue warrants authorizing the use of remote-access investigative techniques. Ganzer consequently concludes that suppressing the evidence at issue in this case will serve the goal of deterrence by discouraging the government from asking magistrate judges to issue warrants that it knows they do not have jurisdiction to issue.
For its part, the government makes little effort to defend the validity of the warrant. Instead, it focuses on the applicability of the good-faith exception and urges us to follow the lead of the other circuits courts that have addressed the issue.
IV.
A.
Because the primary focus of the parties' briefing is on the good-faith exception to the exclusionary rule and because we conclude that the exception is applicable here, we decline to address the merits of whether the EDVA magistrate had legal authority to issue the NIT warrant and assume, without deciding, that she lacked such authority. We further assume that a Fourth Amendment violation occurred as a result of the warrant's issuance. Thus, we proceed directly to our discussion of the good-faith exception and the propriety of its application in the context of this case.
The exclusionary rule was created by the Supreme Court to "supplement the bare text" of the Fourth Amendment, which "protects the right to be free from 'unreasonable searches and seizures,' but ... is silent about how this right is to be enforced."
Davis v. United States
,
Expounding upon on these principles and following an evolving line of cases in
*585
which it had developed a cost-benefit balancing approach to application of the exclusionary rule, the Supreme Court officially recognized a "good-faith" exception to the rule in
United States v. Leon
.
In conducting its analysis, the
Leon
Court further pointed to the "substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights"-namely, "guilty defendants go[ing] free or receiv[ing] reduced sentences as a result of favorable plea bargains."
Since its inception, the Supreme Court has expanded the reach of the good-faith exception to other contexts.
See
,
e.g.
,
Davis
,
*586
Herring
,
[T]he deterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue. When the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. But when police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrence rationale loses much of its force, and exclusion cannot pay its way.
Davis
,
B.
As previously indicated, Ganzer's primary argument on appeal is that the good-faith exception categorically cannot apply under circumstances where a warrant is void ab initio -a description he gives to the NIT warrant. Ganzer does not cite any authority in support of his proposition. Instead, he relies on the fact that the Supreme Court has not specifically considered and applied the good-faith exception in the context of a warrant that is void from its inception. He further insists, without explanation, that warrants that are void ab initio have a defect that is "fundamental" and, therefore, require unique treatment in a good-faith exception analysis. Having assumed that the EDVA magistrate lacked statutory authority to issue the NIT warrant, we will also assume, for argument's sake, that the warrant was void ab initio and, therefore, never had any legal effect. Even with these assumptions, Ganzer's argument fails.
As the Supreme Court has recognized, whether a Fourth Amendment violation exists and what type of violation is present are separate and distinct questions from the question of whether the sanction of exclusion is appropriate in a certain case.
See
Leon
,
With the focus properly on the behavior of the law enforcement officials involved, there is no reason to distinguish warrants that are void
ab initio
from warrants that are later invalidated or recalled, or even from later-invalidated precedent or statutes-each of which, the Supreme Court has held, can be reasonably relied upon by officers in conducting a search.
See
Leon
,
C.
Having concluded that the good-faith exception can apply in circumstances involving a warrant that is void
ab initio
, we turn to the question of whether the exception can properly be applied under the facts of this case, again presuming that the EDVA magistrate lacked statutory authority to issue the NIT warrant. As previously noted, Ganzer asserts that the exception does not apply because of the government's lack of good faith. Specifically, he argues that the government acted either "recklessly or with gross negligence in seeking the [NIT] warrant," since it knew the warrant it sought was "beyond the scope of Rule 41(b)." He contends that such knowledge is demonstrated by efforts of the DOJ well before the NIT warrant was issued to have Rule 41(b) amended to specifically allow for warrants like the NIT warrant.
11
Ganzer claims that these
*588
efforts resulted from the refusal of a magistrate judge in the Southern District of Texas to issue a similar warrant in the context of a fraud investigation.
See
In re Warrant to Search a Target Computer at Premises Unknown
,
Preliminarily, we note that in
Leon
, the Supreme Court identified four situations that would indicate the presence of bad faith and call for application of the exclusionary rule, despite a warrant having been issued: 1) "the magistrate or judge in issuing [the] warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth"; 2) "the issuing magistrate wholly abandoned his judicial role"; 3) the "affidavit [in support of the warrant is] so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; and 4) the "warrant [is] so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized-that the executing officers cannot reasonably presume it to be valid."
To be sure, whether the NIT warrant's issuance was legitimate under § 626(a) and Rule 41(b) was questionable at the time it was issued. The government does not dispute this. This is because the NIT warrant "pose[d] difficult conceptual questions" regarding the search that it authorized.
Kienast
,
Under these circumstances, we do not construe the government's efforts to have Rule 41(b) amended to specifically allow for warrants like the NIT warrant as an admission that such warrants were not previously allowed, but rather as an attempt to clarify an existing law's application to new circumstances. The government did not act unreasonably in seeking such a clarification. We note that this conclusion is consistent with the Fourth Circuit's holding in
McLamb
with respect to a similar argument by the appellant. In
McLamb
, the appellant argued that the FBI's consultation with DOJ attorneys prior to seeking the NIT warrant regarding such a warrant's legality demonstrated a "guilty conscience" on the part of the FBI.
See
McLamb
,
Moreover, we do not otherwise detect foul play in the process by which the FBI sought the NIT warrant. As the First Circuit aptly recognized in Levin :
Faced with the novel question of whether an NIT warrant can issue-for which there was no precedent on point-the government turned to the courts for guidance. The government presented the magistrate judge with a request for a warrant, containing a detailed affidavit from an experienced officer, describing in detail its investigation, including how the NIT works, which places were to be searched, and which information was to be seized.
In light of the foregoing, we reject Ganzer's assertion that the good-faith exception cannot apply under the facts of this case due to bad faith, gross negligence or reckless conduct by the government officials
*590
involved. To the contrary, we conclude that the law enforcement officials involved in the issuance and execution of the NIT warrant acted "with an objectively reasonable good-faith belief that their conduct [was] lawful."
Davis
,
V.
Considering the reasonable behavior on the part of the federal agents involved in seeking and executing the NIT warrant, we do not ascertain any deterrence benefit to be derived from applying the exclusionary rule here, much less one that would outweigh the substantial cost that would result from applying the rule,
i.e.
, the inability to effectively prosecute potentially thousands of Playpen users.
Herring
,
Accordingly, we hold that the good-faith exception to the exclusionary rule is applicable to the NIT warrant and its fruits and, therefore, AFFIRM the district court's denial of Ganzer's motion to suppress.
The computer server hosting Playpen was seized from a web-hosting facility in Lenoir, North Carolina.
The network, a project of the United States Naval Research Laboratory, was originally designed and used to protect government communications but is now available to the public.
Warrants similar to the warrant issued in the Western District of Texas have issued around the country as a result of the NIT warrant, spawning a multitude of challenges in federal courts to the validity of the NIT warrant.
See
United States v. Taylor
,
Section 636(a), a jurisdictional statute, provides in pertinent part:
Each United States magistrate judge serving under this chapter shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law-(1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts.
Rule 41(b), titled "Authority to Issue a Warrant," generally provides that a magistrate judge "has authority to issue a warrant to search for and seize a person or property located within [his or her] district." Fed . R. Crim . P. 41(b)(1). The rule also allows a magistrate judge to issue a warrant pertaining to a person or property outside of his or her district under certain specified circumstances. Fed . R. Crim . P. 41(b). Two of those circumstances-those referenced in Rule 41(b)(2) and (b)(4) -were potentially relevant to the NIT warrant at the time of its issuance. Rule 41(b)(2) provides that "a magistrate judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed." Fed . R. Crim . P. 41(b)(2). Rule 41(b)(4) provides that "a magistrate judge with authority in the district has authority to issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both." Fed . R. Crim . P. 41(b)(4).
In reaching its conclusion, the district court found that the NIT warrant did not fit within Rule 41(b)(2) or (b)(4), either of which would allow it to have extraterritorial effect. Specifically, the district court found that "logging into a website, the server for which is in the appropriate district, does not rise to the level of the computer being 'located within the district' [as required by Rule 41(b)(2) ]." With respect to the applicability of Rule 41(b)(4), the district court rejected the notion that the NIT was a "tracking device," finding that "[t]he NIT is not a device, but a technique" and that it "did not 'track' Ganzer's computer under the ordinary understanding of the word 'track.' "
The appellate court cases that had addressed the propriety of the NIT warrant and suppression of its fruits at the time the parties' briefs were filed are:
Werdene
,
Specifically, the Court explained:
Many of the factors that indicate that the exclusionary rule cannot provide an effective "special" or "general" deterrent for individual offending law enforcement officers apply as well to judges or magistrates. And, to the extent that the rule is thought to operate as a "systemic" deterrent on a wider audience, it clearly can have no such effect on individuals empowered to issue search warrants. Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions. The threat of exclusion thus cannot be expected significantly to deter them.
Leon
,
As discussed
supra
, the Court laid out four specific scenarios in which it would be clear that the law enforcement official involved had "no reasonable grounds for believing that the warrant was properly issued."
Id
. at 922-23,
We add that although this court has not specifically addressed the issue of applicability of the good-faith exception to warrants that are void
ab initio
, it has recognized that the exception can apply in the case of a warrantless search.
See
United States v. De Leon-Reyna
,
In support of his contention, Ganzer points to a letter dated September 23, 2013 from the DOJ to the chair of the Advisory Committee on the Criminal Rules requesting an amendment that would "authorize[ ] a court in a district where activities related to a crime have occurred to issue a warrant-to be executed via remote access-for electronic storage media and electronically stored information located within or outside that district." Mythili Raman, Letter to the Honorable Reena Raggi, in Advisory Committee on Criminal Rules, Materials for April 7-8, 2014 Meeting at 171 (2013); available at http://www.uscourts.gov/sites/default/files/fr_import/CR2014-04.pdf. According to the letter, "[t]he proposed amendment would better enable law enforcement to investigate and prosecute botnets and crimes involving Internet anonymizing technologies." See Raman letter at 171. Ganzer further points out that at an April 7-8, 2014 meeting of the Advisory Committee on Criminal Rules, a DOJ representative acknowledged that Rule 41(b)"on its face does not work with" crimes involving anonymizing networks, like Tor, and suggested that, absent the requested amendment, the government would be left to litigate the issue and "hope the courts [would] create an exception to the rule." Advisory Committee on Criminal Rules, Minutes at 13 (Apr. 7-8, 2014); available at http://www.uscourts.gov/sites/default/files/fr_import/criminal-min-04-2014.pdf. The government does not dispute that these interactions occurred or the DOJ's efforts to have Rule 41(b) amended. Notably, Rule 41(b) was eventually amended to specifically allow for warrants like the NIT warrant. However, this amendment did not take effect until December 1, 2016-almost two years after the NIT warrant's issuance.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellee v. James Kenneth GANZER, Jr., Defendant - Appellant
- Cited By
- 26 cases
- Status
- Published