                                                                                   FILED
                                                                       United States Court of Appeals
                                           PUBLISH                             Tenth Circuit

                             UNITED STATES COURT OF APPEALS                   July 21, 2017

                                                                          Elisabeth A. Shumaker
                                 FOR THE TENTH CIRCUIT                        Clerk of Court
                                 _________________________________

UNITED STATES OF AMERICA,

            Plaintiff - Appellant,

v.                                                              No. 16-1401

ANDREW JOSEPH WORKMAN,

            Defendant - Appellee.

------------------------------

ELECTRONIC FRONTIER
FOUNDATION,

            Amicus Curiae.
                                 _________________________________

                         Appeal from the United States District Court
                                 for the District of Colorado
                              (D.C. No. 1:15-CR-00397-RBJ-1)
                                 _________________________________

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.



                                          2
      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,
                                           3
          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.




                                        4
      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

                                       5
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,


                                         6
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

                                         7
involves only simple, ‘isolated’ negligence . . . .” Davis v. United States,

564 U.S. 229, 238 (2011) (citations omitted) (quoting United States v.

Leon, 468 U.S. 897, 909 (1984) and Herring v. United States, 555 U.S.

135, 137 (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.

      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 (2009), and Arizona v.

Evans, 514 U.S. 1 (1995).
                                         8
      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. 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 been recalled

months earlier. Id. at 138. The Supreme Court agreed, explaining that

improperly obtained evidence is ordinarily excluded only to deter official

misconduct, and here there was nothing to deter because the officer was

acting based on the clerk’s record-keeping error. Id. at 144-48. As a result,

the Supreme Court applied the Leon exception even though the warrant had

no longer existed at the time of the search. Id. at 147-48.

      Arizona v. Evans was similar. There too a law enforcement officer

arrested an individual based on computerized information showing an

outstanding arrest warrant. 514 U.S. at 4. The arrest led to a search, which

revealed marijuana in the individual’s possession. Id. Authorities later

learned that the computerized entry was a mistake, as the prior arrest

                                         9
warrant had been quashed. Id. Even though the warrant had been quashed,

the Supreme Court held that the evidence was admissible because the

arresting officer had reasonably relied on the computerized entry showing

an outstanding warrant. Id. at 11-16.

     Under Herring and Evans, the Leon exception applies even if the

magistrate judge had exceeded geographic constraints in issuing the

warrant. In these circumstances, the executing agents could reasonably

have relied on the warrant, just as the agents had relied in Herring and

Evans on warrants that had been recalled or quashed.

     In Herring and Evans, the absence of a valid warrant 1 did not

preclude application of the Leon exception because there was no

misconduct to deter. Herring, 555 U.S. at 147-48; Evans, 514 U.S. at 15-

16. 2 Here too there was nothing to deter if the agents had mistakenly relied


1
      Mr. Workman argues that the warrant here was void ab initio and that
a valid warrant had earlier existed in Herring and Evans. This distinction
is invalid for two reasons. First, the warrant here was not void ab initio,
for the warrant could validly be executed by extracting data from
computers within the magistrate judge’s district (the Eastern District of
Virginia). E.g., United States v. Anzalone, 208 F. Supp. 3d 358, 372 (D.
Mass. 2016). Second, in Herring and Evans, the warrants were no longer in
existence by the time of the searches. The prior existence of the warrants
had no bearing on the applicability of the Leon exception. For both
reasons, we reject Mr. Workman’s effort to distinguish Herring and Evans.
2
     Prior to Herring, the Sixth Circuit Court of Appeals had held that the
Leon exception did not apply when the judge lacked legal authority to issue

                                        10
on the magistrate judge’s authority to issue the warrant. As a result,

Herring and Evans would require us to apply the Leon exception even if we

were to conclude that the warrant had exceeded geographical constraints. 3

      Mr. Workman attempts to distinguish Herring and Evans, arguing

that in these cases, “there was no question that the third party lawfully

exercised its power in taking whatever action the officers relied on.”

Appellee’s Resp. Br. at 38. This distinction is questionable and immaterial.

      The distinction is questionable because

           in Herring, the third party stated that an outstanding warrant
            existed even though it had been recalled and

           in Evans, the third party programmed information into a
            computer stating that a warrant had remained even though it
            hadn’t.




the warrant. United States v. Scott, 260 F.3d 512, 515 (6th Cir. 2001). The
court later held that this approach was no longer viable after Herring.
United States v. Master, 614 F.3d 236, 242-43 (6th Cir. 2010).
3
       In United States v. Krueger, 809 F.3d 1109 (10th Cir. 2015), we
upheld suppression of evidence when a magistrate judge authorized a
search in another district. In upholding the district court’s ruling, we stated
that “suppression furthers the purpose of the exclusionary rule by deterring
law enforcement from seeking and obtaining warrants that clearly violate
Rule 41(b)(1).” 809 F.3d at 1117 (citations omitted). But we did not
consider the Leon exception because the government had waived the issue.
Id. at 1113 n.5.

                                         11
See pp. 9-10, above. Mr. Workman does not explain why he believes that

the third parties had lawful authority to communicate the existence of

outstanding warrants when they had already been terminated.

     Mr. Workman’s distinction is also immaterial. Even if the third

parties in Herring and Evans had lawful authority to communicate

misinformation to law enforcement officers, the misinformation would still

have constituted mistakes just like the mistake that we have assumed here.

     Mr. Workman suggests that the mistake in our case rendered the

warrant void because the magistrate judge had exceeded geographic

constraints. Let’s assume, for the sake of argument, that Mr. Workman is

right and that the warrant lacked any legal effect. In Herring and Evans,

law enforcement officers had based the searches on warrants that were no

longer in existence. How can we say that an agent is unable to rely on a

warrant exceeding a magistrate judge’s reach if the agent is able to rely on

a warrant that doesn’t even exist?

     In our view, Herring and Evans govern, requiring application of the

Leon exception when the search is based on a warrant exceeding the

issuing judge’s authority.




                                        12
IV.   The agents acted with an objectively reasonable belief in the
      validity of the warrant.

      The district court did not apply the Leon exception, mistakenly

thinking that it did not apply. Thus, we must consider this exception in the

first instance. To apply this exception, we consider whether a reasonably

well-trained agent would have known that the warrant was invalid despite

the magistrate judge’s authorization. United States v. Leon, 468 U.S. 897,

922 n.23 (1984). 4

      We start with the presumption that the executing agents “acted in

good-faith reliance upon the warrant.” United States v. Campbell, 603 F.3d

1218, 1225 (10th Cir. 2010). This presumption is bolstered by what the

executing agents would have known:

      1.    The software was installed in a government server located in
            the Eastern District of Virginia.

      2.    The magistrate judge, who issued the warrant, was in the
            Eastern District of Virginia.

      3.    All of the information yielded from the search would be
            retrieved in the Eastern District of Virginia.




4
      Mr. Workman and the amicus curiae also argue that the search was
unconstitutional because the warrant lacked particularity. But Mr.
Workman and the amicus curiae do not question the executing agents’
objective reasonableness in regarding the warrant as adequately
particularized.

                                        13
With these facts, the executing agents could reasonably rely on the

magistrate judge’s authority to issue a warrant authorizing installation of

software and retrieval of information in the Eastern District of Virginia.

     If the executing agents had sophisticated legal training, they might

have recognized geographic constraints that had escaped the notice of the

magistrate judge. These geographic constraints exist in both the Federal

Magistrates Act and the Federal Rules of Criminal Procedure.

     One potential problem involved the Federal Magistrates Act. Under

this statute, the magistrate judge issuing the warrant had authority only in

the Eastern District of Virginia. 28 U.S.C. § 636(a). But this magistrate

judge authorized installation of software only in the Eastern District of

Virginia. For many downloads, the data would move among districts, but

the executing agents lacked precedent on whether magistrate judges could

authorize a search of electronic data when it moves across other districts.

See United States v. Rowland, 145 F.3d 1194, 1207 (10th Cir. 1998)

(holding that the Leon exception was satisfied because the absence of

Tenth Circuit precedent made it reasonable for the executing officers to

rely on the magistrate judge’s authorization).

     A second potential problem involved Rule 41(b) of the Rules of

Criminal Procedure. The parties appear to agree that Rule 41(b) was



                                        14
satisfied if the FBI’s method of extracting the data constituted a “tracking

device.” Mr. Workman insists that

          the affiant did not identify the FBI’s method of extracting data
           as a “tracking device” and

          the FBI’s method of extracting the data did not operate as a
           tracking device.

It is true that the affiant and magistrate judge never mentioned the term

“tracking device,” and the FBI’s method differs from more conventional

tracking devices. But the executing agents lacked precedents on these

issues and could reasonably defer to the magistrate judge on these nuanced

legal issues. See Rowland, 145 F.3d at 1207.

     We expect agents executing warrants to be “reasonably well-trained,”

but we do not expect them to understand legal nuances the way that an

attorney would. See United States v. Corral-Corral, 899 F.2d 927, 938-39

(10th Cir. 1990) (stating that for the Leon exception, we do not require law

enforcement officers to appreciate “‘constitutional intricacies’” under “‘the

standards applicable to lawyers’” (quoting United States v. Cardall, 773

F.2d 1128, 1133 (10th Cir. 1985))); see United States v. Leary, 846 F.2d

592, 609 (10th Cir. 1988) (“[W]e are not expecting the [executing agents]

to anticipate legal determinations or resolve ambiguities in the law.”).

“[B]ecause a reasonable jurist has more legal training than a reasonably

well-trained officer, what would be reasonable for a well-trained officer is
                                        15
not necessarily the same as what would be reasonable for a jurist.” United

States v. Taxacher, 902 F.2d 867, 872 (11th Cir. 1990). Thus, objective

reasonableness sometimes turns on the clarity of existing law. See United

States v. Barajas, 710 F.3d 1102, 1111 (10th Cir. 2013) (holding that the

Leon exception applied in part because the law was “very much

unsettled”).

      For purposes of our discussion, we assume (without deciding) that

the extraction of data from a user’s computer in another district would

violate the Federal Magistrates Act and the Federal Rules of Criminal

Procedure. But if a violation took place, it has escaped the notice of eight

federal judges who have held that the same warrant complied with federal

law and the federal rules even though data was being extracted from

computers outside the Eastern District of Virginia. 5 See United States v.


5
      See United States v. Jones, ___ F. Supp. 3d ___, 2017 WL 511883, at
*4 (S.D. Ohio Feb. 2, 2017) (holding that issuance of the same warrant was
authorized by Rule 41(b)(4)); United States v. Austin, ___ F. Supp. 3d ___,
2017 WL 496374, at *4 (M.D. Tenn. Feb. 2, 2017) (same); United States v.
Sullivan, ___ F. Supp. 3d ___, 2017 WL 201332, at *6 (N.D. Ohio Jan. 18,
2017) (same); United States v. Bee, No. 16-00002-01-CR-W-GAF, 2017
WL 424905, at *4 (W.D. Mo. Jan. 13, 2017) (unpublished) (report and
recommendation by magistrate judge, concluding that issuance of the same
warrant was authorized by Rule 41(b)(4)), adopted 2017 WL 424889 (W.D.
Mo. Jan. 31, 2017) (unpublished); United States v. Lough, 221 F. Supp. 3d
770, 777 (N.D. W. Va. 2016) (holding that issuance of the same warrant
was authorized by Rule 41(b)(4)); United States v. Smith, No. 15-CR-
00467, slip op. at 14-15 (S.D. Tex. Sept. 28, 2016) (unpublished) (same);

                                        16
Falso, 544 F.3d 110, 128-29 (2d Cir. 2008) (stating that a split among

panel members shows that reasonable minds could differ, indicating

satisfaction of the Leon exception).

      These eight federal judges would have been mistaken if the warrant

here were invalid. But executing agents could reasonably have made the

same mistake and reasonably relied on the magistrate judge’s decision to

issue the warrant. See United States v. Gonzales, 399 F.3d 1225, 1228-29

(10th Cir. 2005) (“[O]fficers are generally not required to second-guess the

magistrate’s decision in granting a warrant.”). 6 Thus, the district court

erred in granting the motion to suppress.

      Reversed with instructions to deny the motion to suppress.




United States v. Jean, 207 F. Supp. 3d 920, 942-43 (W.D. Ark. 2016)
(same).
6
      The government also argues that the affiant could reasonably rely on
prior warrants authorizing the same investigative method. We need not
consider this argument.

                                         17
