Thursday, September 19, 2019

Playpen dissent: good faith doesn't apply where agents "deliberately or recklessly misled the magistrate"

The majority opinion in United States v. Taylor, out of the 11th Circuit, joins a chorus. It finds that a warrant related to the Playpen child-pornography investigation exceeded the magistrate judge’s jurisdiction under Federal Rule of Criminal Procedure 41(b) (since amended), but declines to suppress any evidence under the good-faith exception to the exclusionary rule. Ten other courts of appeal have reached a similar result. The notable part is Judge Tjoflat's dissent, which concludes that the good-faith exception cannot apply because the FBI agents "deliberately or recklessly misled the magistrate" in the warrant application.

If you’re not familiar with the investigation, Playpen was a child-pornography-distribution site. The FBI arrested the site administrator then covertly continued operating the site from a server in Virginia. To snare users, the FBI employed the Network Investigative Technique, or “NIT,” malware. The malware piggybacked on downloads from the site, invaded the host computer, and forced the computer to send its IP address and other information back to the FBI. The FBI could then identify the user. To deploy the NIT via the Playpen site, FBI agents submitted a search-warrant application to a magistrate judge in the Eastern District of Virginia. The warrant authorized transmission of the NIT from the site, which would then conduct digital searches of each user's computer.

The dissent concludes that the officers knew or should have known of a jurisdictional problem with the warrant, which sought to conduct searches in dozens of districts outside the judge's authority. But the warrant application falsely and repeatedly told the magistrate judge that the searches would take place in the district and "buried" the implication that most searches would in fact occur in other districts. Because the agents at least recklessly misled the magistrate judge by obfuscating the jurisdictional issue, the dissent would not apply good faith. The majority's approach, says the dissent, "essentially gives officials permission to try to hoodwink magistrates: they can make false statements to the court so long as they include enough information to uncover their chicanery. If the magistrate fails to spot the issue, officials can cloak themselves in good faith reliance and execute the warrant without fear of suppression."

Multiple Playpen cases are pending or probably will be pending on petitions for certiorari to the Supreme Court. Will one judge’s dissent persuade the Court that eleven circuits have gotten this wrong?

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