17-2989-cr
United States v. Scanlon

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
5th day of August, two thousand nineteen.

Present:
            DEBRA ANN LIVINGSTON,
            DENNY CHIN,
                  Circuit Judges,
            PAUL A. CROTTY,
                  District Judge.*
_____________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                 v.                                                      17-2989-cr

CHRISTOPHER JOSEPH SCANLON,

                  Defendant-Appellant.
_____________________________________


For Defendant-Appellant:                     BARCLAY T. JOHNSON, Assistant Federal Defender, for
                                             Michael L. Desautels, Federal Public Defender for the
                                             District of Vermont, Burlington, Vermont.


*
  Judge Paul A. Crotty, of the United States District Court for the Southern District of New York, sitting
by designation.


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For Appellee:                                BARBARA A. MASTERSON (Gregory L. Waples, on the
                                             brief), for Christina E. Nolan, United States Attorney
                                             for the District of Vermont, Burlington, Vermont.

        Appeal from a judgment of the United States District Court for the District of Vermont

(Reiss, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Defendant-Appellant Christopher Joseph Scanlon (“Scanlon”) appeals from a judgment

of the United States District Court for the District of Vermont, dated September 6, 2017,

sentencing him to 8 months’ imprisonment and 10 years of supervised release following his

guilty plea to one count of accessing child pornography with intent to view, in violation of 18

U.S.C. § 2252(a)(4)(B), (b)(2).   See Joint Appendix (“J.A.”) 327-29. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal,

which we note only to the extent necessary to explain our decision.

        Scanlon pled guilty following the denial of his motion to suppress on April 26, 2017.

That motion is the focus of his appeal.       His case arose out of evidence gathered under the

auspices of the same warrant that is the subject of our simultaneously-issued opinion in United

States v. Eldred, which involved the use of a search program called a Network Investigative

Technique (“NIT”) by the government to circumvent the anonymizing features of the dark web

for registered users of a child pornography site known as “Playpen.” See Slip Op. at 2-3, No.

17-3367-cr (2d Cir. Aug. 5, 2019).

                                         *        *       *

        “On appeal from a district court’s ruling on a motion to suppress, we review the court's

factual findings for clear error.” United States v. Raymonda, 780 F.3d 105, 113 (2d Cir. 2015).



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“We review the court’s legal determinations, including . . . the good faith of officers relying on a

search warrant, de novo.” Id.       In reviewing a district court decision, this Court is “free to

affirm an appealed decision on any ground which finds support in the record, regardless of the

ground upon which the trial court relied.” McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000)

(quoting Leecan v. Lopes, 893 F.2d 1434, 1439 (2d Cir. 1990)).

       Scanlon spends much of his briefing arguing that the warrant used by the government to

deploy the NIT (the “NIT Warrant”) violated both Federal Rule of Criminal Procedure 41(b) and

the Federal Magistrates Act, see 28 U.S.C. § 636(a).      Because of these violations, according to

Scanlon, his constitutional rights were violated, and he suffered prejudice.        As in Eldred,

however, we see no need to consider whether the NIT warrant violated either Federal Rules of

Criminal Procedure or the territorial restrictions of the Federal Magistrates Act.            Even

assuming, arguendo, that there was such a violation—and that the violation was of constitutional

significance—suppression of evidence is not a “necessary consequence of a Fourth Amendment

violation.” Herring v. United States, 555 U.S. 135, 141 (2009). On the contrary, “[w]here

suppression fails to yield appreciable deterrence, exclusion is clearly . . . unwarranted.”   Davis

v. United States, 564 U.S. 229, 237 (2011) (internal quotation marks omitted).        “[W]hen the

police act with an objectively reasonable good-faith belief that their conduct is lawful . . . the

deterrence rationale loses much of its force, and exclusion cannot pay its way.” Id. at 238

(internal quotation marks omitted) (alteration in original).

       For the same reasons we expounded upon in Eldred, we uphold the district court’s

decision to deny suppression of the evidence collected pursuant to the NIT Warrant because we

conclude the good faith doctrine applies.     As noted in that opinion, we make no categorical

exception to the good faith doctrine for allegedly void ab initio warrants, as the good faith


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doctrine does not punish law enforcement for the errors of magistrates. See Eldred, Slip Op. at

26 (“Even assuming, arguendo, that statutory or rule limitations on a magistrate judge’s

jurisdiction also rise to the level of independent constitutional requirements, we see no reason to

treat a magistrate judge’s non-compliance with these requirements differently than

non-compliance with a fundamental Fourth Amendment constraint on the issuance of warrants,

such as probable cause.”).   Similarly, we disagree with Scanlon that the actions taken by law

enforcement in this case evince anything but a laudable attempt to receive advice from counsel

and the courts in a situation in which existing law did not clearly map on to new circumstances.

See id. at 23-24 (quoting United States v. McLamb, 880 F.3d 685, 691 (4th Cir. 2018)); see also

United States v. Levin, 874 F.3d 316, 323 (1st Cir. 2017).

       We have considered Scanlon’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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