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United States v. Ganzer

United States Court of Appeals, Fifth Circuit

April 24, 2019

UNITED STATES OF AMERICA, 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.

         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 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.

         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 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 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 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 ...


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