United States v. Workman, 16-1401

• Decision Date: 21 July 2017
• Docket Number: No. 16-1401,16-1401
• Citation: 863 F.3d 1313
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Andrew Joseph WORKMAN, Defendant-Appellee. Electronic Frontier Foundation, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

863 F.3d 1313

UNITED STATES of America, Plaintiff-Appellant,

v. Andrew Joseph WORKMAN, Defendant-Appellee.Electronic Frontier Foundation, Amicus Curiae.

No. 16-1401

United States Court of Appeals, Tenth Circuit.

FILED July 21, 2017

John P. Taddei, Attorney (Robert C. Troyer, Acting United States Attorney, Robert M. Russel, Assistant United States Attorney, Leslie R. Caldwell, Assistant Attorney General, and Sung-Hee Suh, Deputy Assistant Attorney General, with him on the briefs), Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellant.

Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the brief), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellee.

Mark Rumold and Andrew Crocker, Electronic Frontier Foundation, San Francisco, California, filed a brief for Amicus Curiae Electronic Frontier Foundation.

Before LUCERO, BACHARACH, and PHILLIPS, Circuit Judges.

BACHARACH, Circuit Judge.

The advent of the internet created new opportunities for viewers of child pornography, allowing immediate access to illicit websites. Use of these sites frequently leaves a computerized trail, allowing the FBI to find viewers of child pornography. But technological advances have allowed viewers of child pornography to access illicit websites without leaving a trail. To monitor access to one such website, the FBI has tried to keep up; in this case, the FBI seized and assumed control, using malware to identify and find the individuals accessing child pornography.

Though the FBI controlled the website, users lived throughout the nation. To find the users, the FBI needed a warrant. But, a paradox existed. The FBI maintained the website in the Eastern District of Virginia, but users were spread out all over the country. Finding those users could prove difficult because of geographic constraints on the FBI's ability to obtain a warrant. Notwithstanding these constraints, the FBI obtained a warrant that led to the discovery of hundreds of viewers of child pornography. One was the defendant, who faced prosecution in the District of Colorado.

In this prosecution, the district court held that the warrant was invalid and suppressed evidence resulting from the search. We reverse this ruling. Even when a search warrant is invalid, the resulting evidence should not be suppressed if the executing agents could reasonably rely on the warrant. Here, we may assume for the sake of argument that the warrant was invalid. But in our view, the executing agents acted in an objectively reasonable manner. Thus, the evidence should not have been suppressed.

I. The FBI finds Mr. Workman by seizing the website.

The website was named "Playpen," and it contained thousands of images and videos of child pornography. Unlike many websites, Playpen made it difficult to detect its users.

Detection is often possible from communication of a user's Internet Protocol address when accessing a website. But such communication did not take place with Playpen. To access this website, a user had to employ software that routed the connections through third-party computers called "nodes." With connections routed through a series of nodes, users could access Playpen without communicating their Internet Protocol addresses.

But the FBI set out to find the users who were viewing child pornography on Playpen. The FBI carried out this effort by

• seizing the internet server that hosted Playpen,

• loading the contents onto a government server in the Eastern District of Virginia,

• arresting the administrator of Playpen, and

• hosting Playpen from the government's server.

Even with these steps, the FBI remained unable to identify and locate the individuals accessing Playpen.

To find these individuals, the FBI obtained a warrant from a magistrate judge in the Eastern District of Virginia. This warrant allowed the FBI to install software onto the Playpen server. When Playpen was accessed, the software would automatically install malware onto the user's computer. This malware would search the user's computer for identifying information, such as the Internet Protocol address, and transmit this information to the FBI.

The FBI executed the warrant by installing this software on the government's Playpen server in the Eastern District of Virginia. With this software, the FBI learned that Playpen was being accessed by someone in Colorado. With this user's Internet Protocol address, the FBI identified the user as Andrew Joseph Workman and obtained a search warrant in the District of Colorado to search Mr. Workman's computer.

Executing the warrant, FBI agents found Mr. Workman at home in the act of downloading child pornography onto his computer. He confessed and was indicted for receiving and possessing child pornography. See 18 U.S.C. § 2252A(a)(2), (a)(5)(B).

II. Mr. Workman successfully obtains suppression of his confession and the evidence found on his computer.

Mr. Workman moved to suppress the evidence consisting of his confession and the child pornography found on his computer. For this motion, Mr. Workman challenged the validity of the warrant issued by the magistrate judge in the Eastern District of Virginia. Mr. Workman did not question the existence of probable cause; instead, he argued that the warrant had been inadequately particularized and that the magistrate judge had lacked territorial jurisdiction under Rule 41(b) of the Federal Rules of Criminal Procedure and the Federal Magistrates Act, 28 U.S.C. § 636(a).

But evidence illegally obtained can be admitted in some circumstances when the executing agents rely in good faith on a warrant subsequently determined to be invalid. Mr. Workman insisted that these circumstances were absent here, requiring suppression of the incriminating evidence. The district court agreed and suppressed the evidence, prompting the government to appeal.

III. Even if the warrant had been invalid, the Leon exception would still apply.

To justify suppression based on a violation of Rule 41(b) or 28 U.S.C. § 636(a), Mr. Workman had to prove that

• the magistrate judge in the Eastern District of Virginia lacked authority to issue the warrant and

• the resulting search violated the U.S. Constitution or led to prejudice.

United States v. Krueger , 809 F.3d 1109, 1113-14 (10th Cir. 2015).

But even improperly obtained evidence can often be considered admissible under the so-called "Leon exception." Under this exception, evidence can be considered admissible if the executing agents could reasonably believe that the warrant was valid. The district court concluded that this exception did not apply, and Mr. Workman defends that conclusion. We disagree. In our view, the Leon exception applies.

For the sake of argument, we assume that (1) the magistrate judge in the Eastern District of Virginia lacked authority to issue the warrant and (2) the resulting search was unconstitutional or a prejudicial violation of federal law or a federal rule. See United States v. Potts , 586 F.3d 823, 832 (10th Cir. 2009) (assuming a constitutional violation and holding that the evidence would remain admissible under the Leon exception). According to Mr. Workman, these assumptions would essentially result in a warrantless search, where the Leon exception does not apply. We disagree with Mr. Workman.

We engage in de novo review on the overarching ruling on a motion to suppress. United States v. Krueger , 809 F.3d 1109, 1113 (10th Cir. 2015). In this case, the correctness of that ruling turns on application of the Leon exception. On this issue, we also engage in de novo review. United States v. Danhauer , 229 F.3d 1002, 1005 (10th Cir. 2000).

Under the Leon exception, improperly obtained evidence remains admissible when the executing agents "act with an objectively 'reasonable good-faith belief' that their conduct is lawful or when their conduct involves only simple, 'isolated' negligence...." Davis v. United States , 564 U.S. 229, 238, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (citations omitted) (quoting United States v. Leon , 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) and Herring v. United States , 555 U.S. 135, 137, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) ). The Supreme Court has identified five situations where the exception does not apply:

1. the affiant obtains the warrant by recklessly or intentionally supplying false information to the judge,

2. the judge abandons his or her judicial role,

3. the executing officers cannot reasonably believe that probable cause existed,

4. the warrant is facially deficient, and

5. the warrant is based on a " 'bare bones' affidavit" and the officers "then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search."

Leon , 468 U.S. at 923 & n.24, 104 S.Ct. 3405.

The present case does not fit any of these five situations. But Mr. Workman argues that

• the Leon exception applies only when a warrant is issued and

• a warrant is essentially non-existent (void ab initio) when the judge lacks authority to issue the warrant.

In our view, however, this argument is foreclosed by the Supreme Court's opinions in Herring v. United States , 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), and Arizona v. Evans , 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995).

In Herring , the issue was whether the Leon exception applied when officers had mistakenly relied on a warrant even though it had been earlier recalled. This issue arose when a clerk mistakenly told a law enforcement officer that an arrest warrant had been issued for a named individual. 555 U.S. at 137, 129 S.Ct. 695. With this information, the officer arrested the individual. Id. The arrest led the officer to search the individual, finding methamphetamine in his pocket. Id.

The clerk's error was eventually discovered, and the government argued that evidence of the methamphetamine was admissible even though the officer was relying on the existence of a warrant that had...