In United States v. Henderson, --- F.3d ---, No. 17-10230 (9th Cir. 2018), the Court affirmed the district court's denial of the defendant's motion to suppress.
This was a CP case focused on the dark website, playpen.
The government obtained a Network Investigative Technique
(“NIT”) warrant from a magistrate judge in the Eastern
District of Virginia, which authorized the
search of all “activating” computers—that is, those of any
website visitor, wherever located, who logged into Playpen
with a username and password.
"The NIT technology is
computer code consisting of a set of instructions. When a
person logged into the Playpen site, the NIT caused
instructions to be sent to his computer, which in turn caused
the computer to respond to the government-controlled server
with seven pieces of identifying information, including its IP
address. The NIT mechanism allowed the FBI, while
controlling the website from within the Eastern District of
Virginia, to discover identifying information about
activating computers" anywhere they happened to be located.
As a result, via the warrant, the government obtained the defendant's IP address, and then his home address.
The first issue on appeal concerned the validity of the warrant. Joining its sister Circuits, the Court held the warrant was invalid under Rule 41, because it authorized a search outside of the issuing
magistrate judge’s territorial authority. The Court further concluded the Rule violation was not merely a technical mistake, but went to the magistrate judge’s jurisdiction to act in this
case.
Thus, the Court held, a warrant authorizing
a search beyond the jurisdiction of the issuing magistrate
judge is void under the Fourth Amendment: "The weight of authority is clear: a warrant purportedly
authorizing a search beyond the jurisdiction of the issuing
magistrate judge is void under the Fourth Amendment. We
agree with our sister circuits’ analysis and conclude that the
Rule 41 violation was a fundamental, constitutional error."
However, the Court also concluded the agents acted in good faith reliance on the warrant, and denied suppression.
