     Case: 18-40022      Document: 00515141420         Page: 1    Date Filed: 10/02/2019




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

                                    No. 18-40022                          FILED
                                  Summary Calendar                  October 2, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE VICTOR HERNANDEZ-CUELLAR,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 4:16-CR-111-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       A jury convicted Jose Victor Hernandez-Cuellar of the sexual
exploitation of children, specifically, the production of child pornography, a
violation of 18 U.S.C. § 2251(a) and (e). The district court sentenced him to
247 months in prison. On appeal, Hernandez-Cuellar challenges the denial of
a pretrial motion to suppress evidence discovered and seized under an
allegedly invalid search warrant.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-40022

      The warrant was issued in 2015 by a federal magistrate judge in the
Eastern District of Virginia.    It authorized the FBI to deploy a network
investigative technique (“NIT”) on a computer server that hosted a child
pornography website known as “Playpen.” See United States v. Ganzer, 922
F.3d 579, 581–82 (5th Cir. 2019) (explaining the background of the
investigation).   Through the use of the NIT warrant, law enforcement
identified Hernandez-Cuellar as the user of the Playpen website from his home
in Texas. Pursuant to a second search warrant, obtained from the Eastern
District of Texas, a search of Hernandez-Cuellar’s home computer revealed the
evidence that led to his conviction.
      In his motion to suppress the evidence obtained through the NIT
warrant, Hernandez-Cuellar argued that the warrant was unlawfully issued
by the magistrate judge in Virginia in violation of Federal Rule of Criminal
Procedure 41(b) and 28 U.S.C. § 636(a).         He argued that no good-faith
exception to the exclusionary rule should apply because that warrant was
facially invalid and void ab initio, and because the warrant lacked sufficient
particularity to be relied upon in good faith by executing officers. After a
hearing, the district court denied the motion to suppress. The district court
concluded that the NIT warrant was technically unlawful under Rule 41 and
Section 636, but that the evidence would not be suppressed because of the
good-faith exception to the exclusionary rule announced in United States v.
Leon, 468 U.S. 897 (1984).
      On appeal, Hernandez-Cuellar challenges the denial of the motion to
suppress and repeats his arguments that the good-faith exception should not
apply. The good-faith exception provides that “evidence obtained in objectively
reasonable reliance on a subsequently invalidated search warrant” typically
should not be excluded. Leon, 468 U.S. at 922. The rationale behind the



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                                  No. 18-40022

exclusionary rule is “to deter police misconduct” not to punish judicial errors.
Id. at 916. The rule “should not be applied to deter objectively reasonable law
enforcement activity.” Id. at 919 (punctuation omitted). “[T]o the extent that
application of the exclusionary rule could provide some incremental deterrent,
that possible benefit must be weighed against [its] substantial social costs.”
Herring v. United States, 555 U.S. 135, 141 (2009) (alterations in original).
      The district court’s ruling will be upheld “if there is any reasonable view
of the evidence to support it.” Ganzer, 922 F.3d at 583. In Ganzer we addressed
this same NIT warrant. Id. at 580–90. We assumed without deciding that the
federal magistrate judge in Virginia lacked authority to issue the warrant. Id.
at 584.    Nonetheless, we held that the good-faith exception precluded
suppression of the evidence. Id. at 589–90. We do the same here.
      Even if the NIT warrant were issued without proper authority, Ganzer
dictates the rejection of Hernandez-Cuellar’s contention that the good-faith
exception cannot apply because the warrant was void ab initio and thus
prejudicial to him. See id. at 583–84, 586–87. In Ganzer, though, we did not
need to address whether, as Hernandez-Cuellar contends, the warrant was so
facially deficient in failing to particularize the place to be searched or things to
be seized that officers could not reasonably presume it to be valid. Ganzer, 922
F.3d at 588; see Leon, 468 U.S. at 923 (stating the particularity requirement).
The test for sufficient particularity is whether the warrant would permit an
executing officer reasonably to ascertain what was to be seized. United States
v. Beaumont, 972 F.2d 553, 560 (5th Cir. 1992); see United States v. Allen, 625
F.3d 830, 834–35 (5th Cir. 2010). In assessing particularity, we consider the
affidavits incorporated into the warrant by reference. See United States v.
Triplett, 684 F.3d 500, 505 (5th Cir. 2012).




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                                 No. 18-40022

      The district court correctly reasoned that the NIT warrant was
sufficiently particular because it limited searches only to computers that
activated Playpen by entering a username and password, and because the
information to be seized under the warrant was limited to specific items that
would constitute evidence of specific offenses related to child pornography.
Hernandez-Cuellar cites no authority holding that the warrant lacked
sufficient particularity. Rather, he relies on a case in which the Supreme Court
invalidated an eavesdropping statute because it required no particularity as to
the place to be searched, the things to be seized, or the specific crime that was
suspected of being committed, as specifically required by the Fourth
Amendment. Berger v. New York, 388 U.S. 41, 56 (1967). Berger is readily
distinguishable because the NIT warrant identified and required all of those
things.
      Moreover, as we concluded in Ganzer, there is no “deterrence benefit to
be derived from applying the exclusionary rule here, much less one that would
outweigh the substantial cost that would result from applying the rule, i.e., the
inability to effectively prosecute potentially thousands of Playpen users.”
Ganzer, 922 F.3d at 590 (citing Herring, 555 U.S. at 141). As the district court
noted, the place to be searched, that is, a computer containing child
pornography, was exactly what the NIT warrant was intended to discover. If
the Government had known where the defendant’s computer was and that it
contained child pornography, it would not have needed the NIT warrant. Thus,
adopting Hernandez-Cuellar’s proposed particularity requirement would risk
negating the use of methods like the NIT to identify and prosecute users of
hidden and illegal websites.
      The good-faith exception to the exclusionary rule applies here.
AFFIRMED.



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