Monday, April 25, 2016

Beware of magistrates issuing Trojan Horse warrants

Federal magistrates have no authority to issue warrants for searches of property outside of their judicial districts. A warrant purporting to authorize the government to send a Trojan Horse to the computers of a Tor website's users, regardless of district, generating a return of identifying information, is a warrant for a search of property outside the judicial district. A magistrate has no jurisdiction to issue such a warrant.

Such a magistrate-issued warrant is void ab initio---"akin to no warrant at all"---and Leon's good-faith exception to the exclusionary rule does not apply.

So says Reagan-appointed Massachusetts District Court Judge William G. Young, in a Memorandum and Order issued last week suppressing eight child-pornography files.

Some of the fun bits:

The government argued that the property searched was in fact in the magistrate's district, since the identifying information was returned to a server in that district. The court rejects this argument as "nothing but a strained, after-the-fact rationalization."

The government argued that Rule 41 ought to be read to allow the warrant here, out of necessity, since it was impossible to know in advance where the property to be searched was located. The court rejects this argument "because it adds words to the Rule."

In a footnote, the court "expresses no opinion" on the government's tactic of actively running a child pornography website for two weeks, but notes the "continuing harm" of disseminating child pornography---which is what the government did here.

The court questions whether this warrant to search unknown locations would have passed muster under the Fourth Amendment's particularity requirement.

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