     Case: 17-51042   Document: 00514928710        Page: 1   Date Filed: 04/24/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                    No. 17-51042                         FILED
                                                                     April 24, 2019
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

             Plaintiff - Appellee

v.

JAMES KENNETH GANZER, JR.,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.
ENGELHARDT, Circuit Judge:
      This case is one of many filed around the country concerning the
implications of a warrant issued in the Eastern District of Virginia (“EDVA”),
which authorized the Federal Bureau of Investigation (“FBI”) to use certain
malware to identify and prosecute users of a child-pornography website known
as “Playpen” that operated on an anonymity network. Defendant-Appellant,
James Kenneth Ganzer, Jr. (“Ganzer”), like dozens of others similarly-
situated, moved the district court to suppress the evidence obtained against
him as a result of the warrant, which led to his prosecution for possession of
child pornography. He now appeals the district court’s denial of his motion.
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                                   No. 17-51042
      To date, eight of our sister circuits have addressed issues identical to
those before us. See generally, United States v. Moorehead, 912 F.3d 963 (6th
Cir. 2019); United States v. Kienast, 907 F.3d 522 (7th Cir. 2018), petition for
cert. filed (U.S. Mar. 22, 2019) (No. 18-1248); United States v. Henderson, 906
F.3d 1109 (9th Cir. 2018), petition for cert. filed (U.S. Apr. 1, 2019) (No. 18-
8694); United States v. Werdene, 883 F.3d 204 (3rd Cir. 2018), cert. denied, 139
S.Ct. 260 (Oct. 1, 2018); United States v. McLamb, 880 F.3d 685 (4th Cir. 2018),
cert. denied, 139 S.Ct. 156 (Oct. 1, 2018); United States v. Levin, 874 F.3d 316
(1st Cir. 2017); United States v. Horton, 863 F.3d 1041 (8th Cir. 2017), cert.
denied, 138 S.Ct. 1440 (Apr. 2, 2018); and United States v. Workman, 863 F.3d
1313 (10th Cir. 2017), cert. denied, 138 S.Ct. 1546 (Apr. 16, 2018).
      For the reasons set forth herein, we now join each of those circuits in
holding that the good-faith exception to the exclusionary rule set forth in
United States v. Leon, 468 U.S. 897 (1984), applies to save the fruits of the
warrant at issue from suppression.         Accordingly, we AFFIRM the district
court’s denial of Ganzer’s motion to suppress.
                                          I.
      In December of 2014, the FBI learned from a foreign law enforcement
agency that a United States-based Internet Protocol (“IP”) address was
associated with the child-pornography website Playpen. A search warrant
obtained in January of 2015 allowed FBI agents to seize a copy of the server
that was assigned the suspect IP address; 1 determine that the IP address in
fact contained a copy of Playpen; and place a copy of the server on a computer
server at a government facility in the EDVA. Subsequently, the FBI was able
to apprehend the administrator of Playpen at his home in Naples, Florida and



      1  The computer server hosting Playpen was seized from a web-hosting facility in
Lenoir, North Carolina.
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                                    No. 17-51042
assume control of the website. For investigative purposes, the FBI continued
to operate the website from the government-controlled server in the EDVA for
a limited period of time.
      Playpen operated on an anonymity network known as “The Onion
Router” or “Tor.” 2 Tor software, which is publicly accessible, protects the
privacy of network users by “bouncing their communications around a
distributed network of relay computers run by volunteers all around the world,
thereby masking the user’s actual IP address.” This feature made it impossible
for federal agents to determine the identities of the administrators and users
of Playpen without employing additional investigative techniques.
      Accordingly, the FBI requested and obtained a warrant from a
magistrate judge in the EDVA (“the EDVA magistrate”), which allowed it to
deploy a Network Investigative Technique (“NIT”) from the government-
controlled server in the EDVA. (Such warrant will hereinafter be referred to
as the “NIT warrant.”) The NIT was a form of malware that augmented the
content sent by Playpen to the computers of Playpen users with directions
instructing those computers to send identifying information to a computer
controlled by the government. Specifically, per the terms of the NIT warrant,
the NIT collected the following information from each computer used to login
into Playpen: the computer’s IP address and when the NIT determined same;
a unique identifier for the computer generated by the NIT; the type of
operating system used by the computer and the operating system’s active
username; whether the NIT had already been sent to the computer; the
computer’s host name; and the computer’s media access control.




      2  The network, a project of the United States Naval Research Laboratory, was
originally designed and used to protect government communications but is now available to
the public.
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                                      No. 17-51042
       Through its use of the NIT, the FBI was able to link a Playpen user
operating under the username of “marleyboy” with an IP address that it later
determined was associated with an individual named Robert Ahr (“Ahr”)
residing in Austin, Texas. With this and other information, the FBI obtained
a warrant from a magistrate judge in the Western District of Texas allowing a
search of Ahr’s residence. 3 Both Ahr and Ganzer were present at the time
federal agents executed the warrant. Ahr denied any involvement with child
pornography.      Ganzer, on the other hand, agreed to be interviewed and
admitted to using his laptop to view child pornography and access Playpen
under the username “marleyboy.”                  He subsequently confirmed these
admissions in writing during an interview at the Austin Police Station. A
preliminary examination of Ganzer’s laptop revealed approximately 61 video
files and 16,546 images containing child pornography. On December 20, 2016,
an indictment was filed in the United States District Court for the Western
District of Texas charging Ganzer with possession of child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).
       In advance of his trial date, Ganzer filed a motion to suppress “the
evidence illegally obtained during the search of his home and all fruits of this
illegal search, including, but not limited to, inculpatory statements Ganzer
made to police”—all of which he contended was discovered as a result of the
NIT warrant.       Ganzer argued that the NIT warrant, which allowed the
government “to deploy malware to search [his] computer in Texas and
countless computers all over the world . . . was invalid because it (1) violated
the Federal Magistrate’s Act, (2) violated Rule 41(b) of the Federal Rules of



       3 Warrants similar to the warrant issued in the Western District of Texas have issued
around the country as a result of the NIT warrant, spawning a multitude of challenges in
federal courts to the validity of the NIT warrant. See United States v. Taylor, 250 F. Supp.
3d 1215, 1222–23 (N.D. Ala. 2017) (compiling cases).
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                                       No. 17-51042
Criminal Procedure, and (3) lacked particularity.” Ganzer also argued that
even if the NIT warrant was valid, its scope was limited to computers in the
EDVA and, therefore, did not extend to his computer in Texas. Additionally,
he urged that the good-faith exception to the exclusionary rule recognized by
the Supreme Court in United States v. Leon, 468 U.S. 897 (1984), is
inapplicable with respect to the NIT warrant, since the warrant was issued
without jurisdiction, and its constitutional defects were so obvious that a
reasonable law enforcement officer could not rely upon it.
        The district court denied Ganzer’s motion to suppress. The court agreed
with Ganzer that the issuance of the NIT warrant violated § 636(a) of the
Federal Magistrates Act (“§ 636(a)”), 4 28 U.S.C. § 636, and Rule 41(b) of the
Federal Rules of Criminal Procedure (“Rule 41(b)”), 5 finding that the warrant
impermissibly authorized a search of Ganzer’s computer outside of the EDVA




       4  Section 636(a), a jurisdictional statute, provides in pertinent part:
        Each United States magistrate judge serving under this chapter shall have
        within the district in which sessions are held by the court that appointed the
        magistrate judge, at other places where that court may function, and elsewhere
        as authorized by law—(1) all powers and duties conferred or imposed upon
        United States commissioners by law or by the Rules of Criminal Procedure for
        the United States District Courts.
28 U.S.C. § 636(a)(1).
        5 Rule 41(b), titled “Authority to Issue a Warrant,” generally provides that a

magistrate judge “has authority to issue a warrant to search for and seize a person or
property located within [his or her] district.” FED. R. CRIM. P. 41(b)(1). The rule also allows
a magistrate judge to issue a warrant pertaining to a person or property outside of his or her
district under certain specified circumstances. FED. R. CRIM. P. 41(b). Two of those
circumstances—those referenced in Rule 41(b)(2) and (b)(4)—were potentially relevant to the
NIT warrant at the time of its issuance. Rule 41(b)(2) provides that “a magistrate judge with
authority in the district has authority to issue a warrant for a person or property outside the
district if the person or property is located within the district when the warrant is issued but
might move or be moved outside the district before the warrant is executed.” FED. R. CRIM.
P. 41(b)(2). Rule 41(b)(4) provides that “a magistrate judge with authority in the district has
authority to issue a warrant to install within the district a tracking device; the warrant may
authorize use of the device to track the movement of a person or property located within the
district, outside the district, or both.” FED. R. CRIM. P. 41(b)(4).
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                                        No. 17-51042
magistrate’s district. 6 Nevertheless, the court concluded that suppression was
not warranted since the Leon good-faith exception to the exclusionary rule
applied. After his motion to suppress was denied, Ganzer pleaded guilty to the
charge against him, specifically reserving in his plea agreement the right to
appeal the motion’s denial, and was sentenced to 60 months of imprisonment,
followed by ten years of supervised release. This appeal followed.
                                               II.
       “When examining a district court’s ruling on a motion to suppress, we
review questions of law de novo and factual findings for clear error,” viewing
the evidence “in the light most favorable to the prevailing party.” United States
v. Wallace, 885 F.3d 806, 809 (5th Cir. 2018) (internal quotation marks and
citations omitted). We will “uphold a district court’s denial of a suppression
motion if there is any reasonable view of the evidence to support it.” United
States v. Contreras, 905 F.3d 853, 857 (5th Cir. 2018) (quoting United States v.
Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc)). Along these lines, “[w]e
may affirm the district court’s ruling on a motion to suppress based on any
rationale supported by the record.” Wallace, 885 F.3d at 809 (quoting United
States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005)).
                                              III.
       On appeal, Ganzer claims that the district court correctly concluded that
the EDVA magistrate did not have authority to issue the NIT warrant under §
636(a) and Rule 41(b), since the warrant authorized a search of computers



       6  In reaching its conclusion, the district court found that the NIT warrant did not fit
within Rule 41(b)(2) or (b)(4), either of which would allow it to have extraterritorial effect.
Specifically, the district court found that “logging into a website, the server for which is in
the appropriate district, does not rise to the level of the computer being ‘located within the
district’ [as required by Rule 41(b)(2)].” With respect to the applicability of Rule 41(b)(4), the
district court rejected the notion that the NIT was a “tracking device,” finding that “[t]he NIT
is not a device, but a technique” and that it “did not ‘track’ Ganzer’s computer under the
ordinary understanding of the word ‘track.’”
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                                       No. 17-51042
outside of her jurisdiction. He contends that the court erred, however, in
determining that the good-faith exception to suppression is applicable under
the circumstances of this case. First, Ganzer asserts that because the EDVA
magistrate did not have jurisdiction to issue the NIT warrant, the warrant was
void ab initio, making the searches conducted pursuant to it akin to
warrantless searches. He states that the Supreme Court has never extended
the good-faith exception to apply in the context of a warrant so-categorized.
Ganzer recognizes that all other circuit courts to address challenges to the NIT
warrant have found the good-faith exception to be applicable but maintains
that those courts reached the incorrect result and urges this court to decline to
extend the exception to cases involving warrants that are void ab initio. 7
       Ganzer next argues that, in any event, the good-faith exception should
not apply here because the government “acted recklessly or with gross
negligence” in seeking the NIT warrant, since it knew that Rule 41(b) did not
allow for its issuance. As discussed in more detail below, Ganzer supports this
assertion by pointing to pre-NIT-warrant efforts of the Department of Justice
(“DOJ”) to have Rule 41(b) amended to permit magistrates to issue warrants
authorizing the use of remote-access investigative techniques.                        Ganzer
consequently concludes that suppressing the evidence at issue in this case will
serve the goal of deterrence by discouraging the government from asking
magistrate judges to issue warrants that it knows they do not have jurisdiction
to issue.




       7 The appellate court cases that had addressed the propriety of the NIT warrant and
suppression of its fruits at the time the parties’ briefs were filed are: Werdene, 883 F.3d 204;
McLamb, 880 F.3d 685; Levin, 874 F.3d 316; Horton, 863 F.3d 1041; and Workman, 863 F.3d
1313. Three additional circuits took up these issues following the briefing in this case, and,
for the most part, resolved the issues like the circuits that had previously addressed them.
See Moorehead, 912 F.3d 963; Kienast, 907 F.3d 522; Henderson, 906 F.3d 1109.
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                                   No. 17-51042
      For its part, the government makes little effort to defend the validity of
the warrant. Instead, it focuses on the applicability of the good-faith exception
and urges us to follow the lead of the other circuits courts that have addressed
the issue.
                                        IV.
                                         A.
      Because the primary focus of the parties’ briefing is on the good-faith
exception to the exclusionary rule and because we conclude that the exception
is applicable here, we decline to address the merits of whether the EDVA
magistrate had legal authority to issue the NIT warrant and assume, without
deciding, that she lacked such authority. We further assume that a Fourth
Amendment violation occurred as a result of the warrant’s issuance. Thus, we
proceed directly to our discussion of the good-faith exception and the propriety
of its application in the context of this case.
      The exclusionary rule was created by the Supreme Court to “supplement
the bare text” of the Fourth Amendment, which “protects the right to be free
from ‘unreasonable searches and seizures,’ but . . . is silent about how this right
is to be enforced.” Davis v. United States, 564 U.S. 229, 231 (2011). It operates
by generally “bar[ring] the prosecution from introducing evidence obtained by
way of a Fourth Amendment violation.” Id. The purpose of the rule is to deter
violations of the Fourth Amendment—not to redress the injury of the victim of
an unreasonable search or seizure. Id. at 236–37. Thus, application of the rule
is “not a personal constitutional right.” Id. at 236 (quoting Stone v. Powell, 428
U.S. 465, 486 (1976)). Nor is it automatic in the face of a Fourth Amendment
violation. Herring v. United States, 555 U.S. 135, 140 (2009) (citing Illinois v.
Gates, 462 U.S. 213, 223 (1983)).
      Expounding upon on these principles and following an evolving line of
cases in which it had developed a cost-benefit balancing approach to
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application of the exclusionary rule, the Supreme Court officially recognized a
“good-faith” exception to the rule in United States v. Leon. 468 U.S. at 907–
913. The Leon Court narrowly defined the exception as allowing admission at
trial of “evidence obtained by officers acting in reasonable reliance on a search
warrant issued by a detached and neutral magistrate” but later invalidated.
Id. at 900. The Court, however, invoked broader Fourth Amendment and
exclusionary-rule principles in arriving at its holding.              In particular, and
relevant to the case before us, the Court emphasized that “the exclusionary
rule is designed to deter police misconduct”—not judicial errors or misconduct. 8
Id. at 916. On the flip side, the Court noted, “it cannot be expected, and should
not be applied, to deter objectively reasonable law enforcement activity.” Id.
at 919. Indeed, where “the officer is acting as a reasonable officer would and
should act in similar circumstances,” “excluding the evidence will not further
the ends of the exclusionary rule in any appreciable way.” Id. at 920 (internal
quotation marks and citation excluded).
       In conducting its analysis, the Leon Court further pointed to the
“substantial social costs exacted by the exclusionary rule for the vindication of
Fourth Amendment rights”—namely, “guilty defendants go[ing] free or
receiv[ing] reduced sentences as a result of favorable plea bargains.” Id. at
907. “Particularly when law enforcement officers have acted in objective good


8Specifically, the Court explained:
       Many of the factors that indicate that the exclusionary rule cannot provide an
       effective “special” or “general” deterrent for individual offending law
       enforcement officers apply as well to judges or magistrates. And, to the extent
       that the rule is thought to operate as a “systemic” deterrent on a wider
       audience, it clearly can have no such effect on individuals empowered to issue
       search warrants. Judges and magistrates are not adjuncts to the law
       enforcement team; as neutral judicial officers, they have no stake in the
       outcome of particular criminal prosecutions. The threat of exclusion thus
       cannot be expected significantly to deter them.
Leon, 468 U.S. at 916-17.

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faith or their transgressions have been minor,” the Court noted, “the
magnitude of the benefit conferred on such guilty defendants offends basic
concepts of the criminal justice system.” Id. at 907–08. Ultimately, the Court
concluded that its “evaluation of the costs and benefits of suppressing reliable
physical evidence seized by officers reasonably relying on a warrant issued by
a detached and neutral magistrate” compelled “the conclusion that such
evidence should be admissible in the prosecution’s case in chief.” Id. at 913.
The Court clarified, however, that suppression remains an appropriate remedy
where “it is clear that . . . the officer [had] no reasonable grounds for believing
that the warrant was properly issued.” 9 Id. at 922–23.
       Since its inception, the Supreme Court has expanded the reach of the
good-faith exception to other contexts. See, e.g., Davis, 564 U.S. at 232, 238–
40 (discussing a line of Supreme Court cases applying the good-faith exception
and extending application of the exception to searches conducted “in objectively
reasonable reliance on binding appellate precedent” that is later overruled);
Herring, 555 U.S. at 137–38, 144, 147–48 (applying the good-faith exception
where police reasonably relied upon a computer database record that, due to
the negligence of a police employee, showed a recalled warrant to still be in
effect); Arizona v. Evans, 514 U.S. 1, 3–4, 15–16 (1995) (applying the good-faith
exception where an officer who conducted a search incident to an arrest had
reasonably relied on an electronic police record that, due to a clerical error,
indicated that a quashed arrest warrant remained outstanding); Illinois v.
Krull, 480 U.S. 340, 342, 349–50 (1987) (extending application of the good-faith
exception to searches conducted in reasonable reliance on subsequently



       9 As discussed supra, the Court laid out four specific scenarios in which it would be
clear that the law enforcement official involved had “no reasonable grounds for believing that
the warrant was properly issued.” Id. at 922–23.

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invalidated statutes). In Davis, the Supreme Court summarized the core of its
post-Leon exclusionary-rule holdings as follows:
      [T]he deterrence benefits of exclusion vary with the culpability of
      the law enforcement conduct at issue. When the police exhibit
      deliberate, reckless, or grossly negligent disregard for Fourth
      Amendment rights, the deterrent value of exclusion is strong and
      tends to outweigh the resulting costs. But when police act with an
      objectively reasonable good-faith belief that their conduct is
      lawful, or when their conduct involves only simple, isolated
      negligence, the deterrence rationale loses much of its force, and
      exclusion cannot pay its way.

Davis, 564 U.S. at 238 (internal quotation marks and citations omitted).
                                     B.
      As previously indicated, Ganzer’s primary argument on appeal is that
the good-faith exception categorically cannot apply under circumstances where
a warrant is void ab initio—a description he gives to the NIT warrant. Ganzer
does not cite any authority in support of his proposition. Instead, he relies on
the fact that the Supreme Court has not specifically considered and applied
the good-faith exception in the context of a warrant that is void from its
inception. He further insists, without explanation, that warrants that are void
ab initio have a defect that is “fundamental” and, therefore, require unique
treatment in a good-faith exception analysis. Having assumed that the EDVA
magistrate lacked statutory authority to issue the NIT warrant, we will also
assume, for argument’s sake, that the warrant was void ab initio and,
therefore, never had any legal effect. Even with these assumptions, Ganzer’s
argument fails.
      As the Supreme Court has recognized, whether a Fourth Amendment
violation exists and what type of violation is present are separate and distinct
questions from the question of whether the sanction of exclusion is appropriate
in a certain case. See Leon, 468 U.S. at 906 (“The wrong condemned by the

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                                  No. 17-51042
[Fourth] Amendment is ‘fully accomplished’ by the unlawful search or seizure
itself, . . . and the exclusionary rule is neither intended nor able to ‘cure the
invasion of the defendant’s rights which he has already suffered.’” (quoting
Stone, 428 U.S. at 540)). The fundamental flaw in Ganzer’s argument is that
it improperly focuses the exclusion inquiry on the character of the underlying
Fourth Amendment violation, as opposed to whether exclusion would
sufficiently further the purpose of the Fourth Amendment. See Herring, 555
U.S. at 141 (“[T]he exclusionary rule . . . applies only where it results in
appreciable deterrence.” (internal quotation marks and citation omitted)). The
latter question is answered by looking at “the culpability of the law
enforcement conduct.” Herring, 555 U.S. at 143.
      With the focus properly on the behavior of the law enforcement officials
involved, there is no reason to distinguish warrants that are void ab initio from
warrants that are later invalidated or recalled, or even from later-invalidated
precedent or statutes—each of which, the Supreme Court has held, can be
reasonably relied upon by officers in conducting a search. See Leon, 468 U.S.
at 900; Herring, 555 U.S. at 137–38, 144, 147–48; Davis, 564 U.S. at 232, 238-
40; Krull, 480 U.S. at 342, 349–50. In other words, the conduct of an officer
who reasonably and in good faith relies on a warrant issued by a magistrate
lacking jurisdiction to issue it is no more culpable than that of an officer who
reasonably and in good faith relies, for instance, on a faulty indication in a
database that a recalled warrant remains outstanding. See Herring, 555 U.S.
at 137–38, 144, 147–48. See also Werdene, 883 F.3d at 216 (“[T]he issuing
magistrate’s lack of authority has no impact on police misconduct, if the officers
mistakenly, but inadvertently, presented the warrant to an innocent
magistrate.” (citation omitted)); Henderson, 906 F.3d at 1118 (holding that
“[a]pplication of the good faith exception does not depend on the existence of a
warrant, but on the executing officer’s objectively reasonable belief that there
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                                        No. 17-51042
was a valid warrant”). Therefore, we reject Ganzer’s argument that the good-
faith exception to the exclusionary rule categorically cannot apply to warrants
that are void ab initio. 10 This holding is in accordance with the well-reasoned
decisions of each of our sister circuits to have considered this issue in the
context of the NIT warrant. See Moorehead, 912 F.3d at 968–69; Kienast, 907
F.3d at 527–28; Henderson, 906 F.3d at 1118–19; Werdene, 883 F.3d at 216–
17; McLamb, 880 F.3d at 691; Horton, 863 F.3d at 1050–51; Workman, 863
F.3d at 1317–19.
                                               C.
       Having concluded that the good-faith exception can apply in
circumstances involving a warrant that is void ab initio, we turn to the
question of whether the exception can properly be applied under the facts of
this case, again presuming that the EDVA magistrate lacked statutory
authority to issue the NIT warrant. As previously noted, Ganzer asserts that
the exception does not apply because of the government’s lack of good faith.
Specifically, he argues that the government acted either “recklessly or with
gross negligence in seeking the [NIT] warrant,” since it knew the warrant it
sought was “beyond the scope of Rule 41(b).” He contends that such knowledge
is demonstrated by efforts of the DOJ well before the NIT warrant was issued
to have Rule 41(b) amended to specifically allow for warrants like the NIT




       10 We add that although this court has not specifically addressed the issue of
applicability of the good-faith exception to warrants that are void ab initio, it has recognized
that the exception can apply in the case of a warrantless search. See United States v. De
Leon-Reyna, 898 F.2d 486, 491 (5th Cir. 1990) (citing United States v. Williams, 622 F.2d 830,
840 n.1 (5th Cir. 1980) (en banc)); United States v. Comstock, 805 F.2d 1194, 1210 n.18 (5th
Cir. 1986) (recognizing that reliance on a magistrate is not a requirement for applicability of
the good-faith exception). If the good-faith exception can save the fruits of an illegal search
from suppression where no warrant was issued, then, logically, the classification of a warrant
as “void ab initio” should have no bearing on the applicability of the exception in this circuit.
For this reason too, we find Ganzer’s argument to be without merit.
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                                      No. 17-51042
warrant. 11 Ganzer claims that these efforts resulted from the refusal of a
magistrate judge in the Southern District of Texas to issue a similar warrant
in the context of a fraud investigation. See In re Warrant to Search a Target
Computer at Premises Unknown, 958 F. Supp. 2d 753 (S.D. Tex. 2013).
According to Ganzer, “the fact that the DOJ took specific and concrete action
in response to that decision demonstrates an official recognition on the part of
the federal law enforcement apparatus as a whole that the decision set forth
the correct interpretation of Rule 41’s limits in this setting;” and, therefore,
federal agents could not have acted in good faith in requesting the NIT
warrant. We disagree with Ganzer’s assessment.
       Preliminarily, we note that in Leon, the Supreme Court identified four
situations that would indicate the presence of bad faith and call for application
of the exclusionary rule, despite a warrant having been issued:                     1) “the
magistrate or judge in issuing [the] warrant was misled by information in an



       11 In support of his contention, Ganzer points to a letter dated September 23, 2013
from the DOJ to the chair of the Advisory Committee on the Criminal Rules requesting an
amendment that would “authorize[] a court in a district where activities related to a crime
have occurred to issue a warrant—to be executed via remote access—for electronic storage
media and electronically stored information located within or outside that district.” Mythili
Raman, Letter to the Honorable Reena Raggi, in Advisory Committee on Criminal Rules,
Materials     for   April   7-8,   2014      Meeting    at   171    (2013);   available    at
http://www.uscourts.gov/sites/default/files/fr_import/CR2014-04.pdf. According to the letter,
“[t]he proposed amendment would better enable law enforcement to investigate and
prosecute botnets and crimes involving Internet anonymizing technologies.” See Raman
letter at 171. Ganzer further points out that at an April 7-8, 2014 meeting of the Advisory
Committee on Criminal Rules, a DOJ representative acknowledged that Rule 41(b) “on its
face does not work with” crimes involving anonymizing networks, like Tor, and suggested
that, absent the requested amendment, the government would be left to litigate the issue and
“hope the courts [would] create an exception to the rule.” Advisory Committee on Criminal
Rules,       Minutes       at     13        (Apr.      7-8,     2014);      available      at
http://www.uscourts.gov/sites/default/files/fr_import/criminal-min-04-2014.pdf.          The
government does not dispute that these interactions occurred or the DOJ’s efforts to have
Rule 41(b) amended. Notably, Rule 41(b) was eventually amended to specifically allow for
warrants like the NIT warrant. However, this amendment did not take effect until December
1, 2016—almost two years after the NIT warrant’s issuance.

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                                  No. 17-51042
affidavit that the affiant knew was false or would have known was false except
for his reckless disregard of the truth”; 2) “the issuing magistrate wholly
abandoned his judicial role”; 3) the “affidavit [in support of the warrant is] so
lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable”; and 4) the “warrant [is] so facially deficient—i.e., in
failing to particularize the place to be searched or the things to be seized—that
the executing officers cannot reasonably presume it to be valid.” 468 U.S. at
923 (internal quotation marks and citations omitted). The challenge posed by
Ganzer does not correspond to any of these scenarios, and we do not find it to
be otherwise compelling.
      To be sure, whether the NIT warrant’s issuance was legitimate under §
626(a) and Rule 41(b) was questionable at the time it was issued.             The
government does not dispute this. This is because the NIT warrant “pose[d]
difficult conceptual questions” regarding the search that it authorized.
Kienast, 907 F.3d at 528. The NIT was a “sophisticated tool” developed by the
FBI in a world of rapidly changing cyber technology in response to the
“daunting task of [unmasking, locating, and] apprehending tens of thousands
of individuals engaged in perverse crimes but cloaked in anonymity through
their use of Tor.” Id. at 529. Whether this new technology fit within the bounds
of Rule 41(b) when it was developed was not readily apparent, particularly
given that there was no federal appellate court precedent regarding the
permissibility of remote-access investigative techniques at the time. McLamb,
880 F.3d at 689, 691. That being said, it was neither plain nor obvious that
NIT warrant could not properly be issued under Rule 41(b). This is confirmed
by the fact that several federal district courts have concluded that the EDVA
magistrate had authority to issue the warrant under Rule 41(b)(4) concerning
“tracking device[s].” See United States v. Austin, 230 F. Supp. 3d 828, 832–34


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                                  No. 17-51042
(M.D. Ten. 2017) (collecting cases and concluding that the NIT constitutes a
“tracking device” within the meaning of Rule 41(b)(4)).
      Under these circumstances, we do not construe the government’s efforts
to have Rule 41(b) amended to specifically allow for warrants like the NIT
warrant as an admission that such warrants were not previously allowed, but
rather as an attempt to clarify an existing law’s application to new
circumstances. The government did not act unreasonably in seeking such a
clarification.   We note that this conclusion is consistent with the Fourth
Circuit’s holding in McLamb with respect to a similar argument by the
appellant. In McLamb, the appellant argued that the FBI’s consultation with
DOJ attorneys prior to seeking the NIT warrant regarding such a warrant’s
legality demonstrated a “guilty conscience” on the part of the FBI.           See
McLamb, 880 F.3d at 691. The court rejected this argument, instructing that
where there is not “definitive precedent upon which law enforcement can rely
when utilizing cutting edge investigative techniques . . . consultation with
government attorneys is precisely what Leon’s ‘good faith’ expects of law
enforcement.”     Id.   See also Moorehead, 912 F.3d at 970 (rejecting the
appellant’s argument that government attempts to have Rule 41(b) amended
demonstrated knowledge of the NIT warrant’s illegality).           Likewise, we
conclude that the government acted in accordance with the expectations of the
Fourth Amendment by seeking to clarify the bounds of an imprecise statutory
grant of authority in the face of advancing technology.
      Moreover, we do not otherwise detect foul play in the process by which
the FBI sought the NIT warrant. As the First Circuit aptly recognized in
Levin:
      Faced with the novel question of whether an NIT warrant can
      issue—for which there was no precedent on point—the government
      turned to the courts for guidance. The government presented the
      magistrate judge with a request for a warrant, containing a
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                                 No. 17-51042
      detailed affidavit from an experienced officer, describing in detail
      its investigation, including how the NIT works, which places were
      to be searched, and which information was to be seized.

874 F.3d at 323. Like the Levin court, “[w]e see no benefit in deterring such
conduct” and agree that, “if anything, such conduct should be encouraged,
because it leaves it to the courts to resolve novel legal issues.” Id. See also
Workman, 863 F.3d at 1320–21 (concluding that it was reasonable for the
federal agents who applied for and executed the NIT warrant to “defer to the
magistrate judge on . . . nuanced legal issues”). To the extent that the EDVA
magistrate erred in issuing the NIT warrant, as we have noted, such an error
is not within the purview of the exclusionary rule. See Leon, 468 U.S. at 916.
      In light of the foregoing, we reject Ganzer’s assertion that the good-faith
exception cannot apply under the facts of this case due to bad faith, gross
negligence or reckless conduct by the government officials involved. To the
contrary, we conclude that the law enforcement officials involved in the
issuance and execution of the NIT warrant acted “with an objectively
reasonable good-faith belief that their conduct [was] lawful.” Davis, 564 U.S.
at 238 (internal quotation marks and citations omitted). Again, our conclusion
is consistent with the holdings of each of our sister circuits to have considered
challenges to the NIT warrant. See Moorehead, 912 F.3d at 970–71; Kienast,
907 F.3d at 528–29; Henderson, 906 F.3d at 1119; Werdene, 883 F.3d at 217–
18; McLamb, 880 F.3d at 690–91; Levin, 874 F.3d at 322–4; Horton, 863 F.3d
at 1051–52; Workman, 863 F.3d at 1319–21.
                                       V.
      Considering the reasonable behavior on the part of the federal agents
involved in seeking and executing the NIT warrant, we do not ascertain any
deterrence benefit to be derived from applying the exclusionary rule here,
much less one that would outweigh the substantial cost that would result from

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                                 No. 17-51042
applying the rule, i.e., the inability to effectively prosecute potentially
thousands of Playpen users. Herring, 555 U.S. at 141 (“To the extent that
application of the exclusionary rule could provide some incremental deterrent
[to Fourth Amendment violations], that possible benefit must be weighed
against its substantial social costs.” (quoting Krull, 480 U.S. at 352–53)).
      Accordingly, we hold that the good-faith exception to the exclusionary
rule is applicable to the NIT warrant and its fruits and, therefore, AFFIRM
the district court’s denial of Ganzer’s motion to suppress.




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