Tuesday, October 23, 2018

US v. Henderson, No. 17-10230 (10-23-18)(O’Scannlain w/Bea & Stearns).

This appeal concerns a search of a computer which revealed child porn. The evidence was obtained pursuant to a warrant that authorized a search of computers located outside the issuing magistrate judge’s district. The 9th held that the search violated Fed R Crim P 41 and was a fundamental constitutional error. Nonetheless, the 9th did not suppress, holding that the “good faith” exception applied.
The magistrate sat in VA E and issued a Network Investigative Technique (NIT) warrant for thirty days. NIT can reveal concealed in addresses and locations. The thirty day warrant sought information about child porn being downloaded via tracking information, including an IP address, from an outside the district computer visitor to the website in the district by having his computer respond to the government server. In this case, evidence pointed specifically to a computer in San Mateo in Northern California. A warrant in Cal N for a search of the home address was issued. Child porn was found. The defendant eventually entered a conditional plea and appealed the search.

The 9th joined the 3rd and 8th circuits in holding that the magistrate acted outside the jurisdiction of Rule 41 for the thirty day warrant. The language of the rule is clear that the jurisdiction is within the district. The warrant was not for a computer within the district. It authorized a search for a computer outside the district. This was not like tracking. Nor was the venue requirement of a magistrate merely technical. It is essential to authority.
However, the evidence is not suppressed because the officers acted in objective reasonable belief that the warrant was valid. It was here. The law was unclear and the officers sought to act in compliance. A number of district courts found such warrants valid. Thus, there was good faith.

Rule 41 was subsequently amended (2016) to allow such warrants when the computer addresses are being hidden.
Kudos to AFPD Hanni Fakhoury of Cal N (San Francisco) for this hard fought and argued appeal.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/23/17-10230.pdf

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