8th Circuit Nixes Lower Court Ruling Suppressing Evidence Against 2 in Playpen Sting

Lavenski Smith, Bobby Shepherd and Gary Fenner ruled in Monday's opinion (in Pacer) written by Smith that the FBI warrant authorizing the search of computers using a network investigative technique (NIT) violated Rule 41 of the Federal Rules of Criminal Procedure, which said a magistrate judge in one jurisdiction can't authorize a search of a computer in another jurisdiction. In Playpen, a magistrate judge in the Eastern District of Virginia issued the NIT warrant in February 2015 to track down defendants' IP addresses, along with hundreds of others implicated in the sting. (The rule was updated in December (see 1612140051) to permit a judge to issue a single warrant for multiple jurisdictions.) Defendants in the 8th Circuit case, Beau Croghan and Steven Horton, argued the warrant violated Rule 41 and the government was prohibited from doing extraterritorial searches and seizures. Last September, U.S. District Court for the Southern District of Iowa sided with their argument. But the 8th Circuit panel said even though the warrant violated Rule 41, an exception based on U.S. v. Leon can be applied here since there was no "bad faith" by FBI agents. "A reasonable reader [of the warrant] would have understood that the search would extend beyond the boundaries of the district because of the thorough explanation provided in the attached affidavit. This does not amount to a reckless disregard for the truth," the ruling said. It said suppression could affect other cases. It said the "marginal benefit" of deterring such warrants doesn't "outweigh" related costs of "'letting guilty and possibly dangerous defendants go free.'" Fenner concurred and dissented in part. He said he didn't think the NIT warrant violated Rule 41.