Monday, January 11, 2016

The Kansas Search Warrant, the Oklahoma Search and “Prejudice”


This post examines a recent opinion from the U.S. Court of Appeals for the Tenth Circuit: U.S. v. Krueger, 805 F.3d 965 (2015).  The court begins the opinion by explaining that the appeal
arises from the district court's order granting Zachary Krueger's motion to suppress evidence seized in in Oklahoma pursuant to a warrant that was issued by a United States magistrate judge in Kansas. In granting Krueger's motion, the district court concluded that suppression was necessary because (1) the warrant violated Federal Rule of Criminal Procedure 41, which generally limits a federal magistrate judge's warrant-issuing authority to the district where he or she sits, and (2) Krueger established that he was prejudiced by the Rule 41 violation. On appeal, PlaintiffAppellant the United States (`Government’) argues that reversal is necessary because the district court applied the wrong legal standard in determining that Krueger established prejudice.
U.S. v. Krueger, supra (emphasis in the original).
The Court of Appeals Judge who wrote this opinion went on to explain that in
June 2013, Homeland Security Investigations (`HIS’) [sic] Agent Rick Moore learned that child pornography was being distributed over the internet from an IP address registered to Krueger, a Kansas resident. Agent Moore thereafter obtained a warrant from a United States magistrate judge in the District of Kansas (`Warrant 1’) to search Krueger's Kansas residence for items such as computers and cell phones that may be used to depict child pornography visually. Upon executing Warrant 1 at 6:40 a.m. on June 13, however, Agent Moore discovered Krueger was not home and his computer and cell phone were not in the residence. Krueger's roommate, who was present when Agent Moore executed the warrant, indicated that Krueger was in Oklahoma City visiting a friend, Nate Benner, and that Krueger may have taken his computer and cell phone with him to Oklahoma.

Based on this information, Agent Moore asked Oklahoma-based HSI Agent Jeff Perkins to verify Krueger's whereabouts. That same day, June 13, Agent Perkins identified Krueger's automobile parked outside of Benner's Oklahoma residence. Agent Moore then sought and obtained a second warrant from a different United States magistrate judge in the District of Kansas (`Warrant 2’). This warrant—which was issued just hours after Agent Moore had executed Warrant 1—authorized law enforcement to search both Benner's Oklahoma residence and Krueger's automobile parked outside of Benner's residence for electronic devices belonging to Krueger or in his possession.

Agent Moore transmitted Warrant 2 to Agent Perkins in Oklahoma immediately after it was issued by the United States magistrate judge in Kansas. Upon receiving Warrant 2, Perkins and a team of other agents went to Benner's Oklahoma residence. Krueger was present when the agents executed Warrant 2 at 12:30 p.m. on June 13, seizing (among other things) Krueger's computer and external hard drive.
U.S. v. Krueger, supra.  If you would like to see a federal search warrant (“search and seizure warrant”), check this out.
The opinion goes on to explain what happened next:
Shortly after entering Benner's residence, however, one of the agents noticed that Warrant 2 had been issued by a federal magistrate judge in the District of Kansas—rather than a federal magistrate judge in the Western District of Oklahoma, the district within which Benner's residence is located—and asked Perkins if that was acceptable. Perkins promptly called Agent Moore in Kansas, who was then advised by the Assistant United States Attorney handling the case to refrain from searching the computer and hard drive until consent or an additional warrant could be obtained. Around the time Perkins was on the phone, an agent who was not aware of the potential defect in Warrant 2 was interviewing Krueger. During this interview, Krueger waived his Miranda rights, admitted to viewing child pornography and trading it with others over the internet, and authorized HSI agents to assume his online presence with respect to his peer-to-peer networking account for investigative purposes.

Consistent with the Assistant United States Attorney's advice, the agents who seized Krueger's computer and hard drive in Oklahoma waited to search the devices until a Kansas Police Department officer visited Krueger's residence a few weeks later and obtained Krueger's written consent. A subsequent search of Krueger's computer and hard drive revealed evidence that Krueger had downloaded and traded child pornography using his peer-to-peer networking account. As a result, Krueger was charged with distribution of child pornography in violation of 18 U.S. Code §2252(a)(2).
U.S. v. Krueger, supra.  Consent is an exception to the Fourth Amendment’s requirement that officers obtain a warrant to seize and/or search property.
The Court of Appeals’ opinion goes on to explain that Krueger then filed a
pretrial motion to suppress the evidence seized in Oklahoma as well as the statements he made to law enforcement. See Federal Rule of Criminal Procedure12(b)(3), 41(h). Most relevant on appeal, Krueger asserted that suppression was necessary because Warrant 2 violated Rule 41 of the Federal Rules of Criminal Procedure, the general provision governing all searches and seizures that are `federal in character.’ See U.S. v. Pennington, 635 F.2d 1387 (U.S. Court of Appeals for the 10th Circuit 1980).

Specifically, Krueger argued that Warrant 2–which was issued by a federal magistrate judge in the District of Kansas for property already located in Oklahoma—violated Rule 41(b)(1), which provides that `a magistrate judge with authority in the district—or if none is reasonably available, a judge of a state court of record in the district—has authority to issue a warrant to search for and seize a person or property located within the district.’

According to Krueger, this Rule 41 violation required suppression because Warrant 2, having been issued by a federal magistrate judge without authority to do so, was void from the outset, thereby rendering the Oklahoma search warrantless and unconstitutional. Even if Warrant 2 was not void from the outset, Krueger argued that suppression was nonetheless necessary because he was prejudiced by the Rule 41 violation in the sense that he would not have cooperated with law enforcement had he known that Warrant 2 was issued by a federal magistrate judge who lacked warrant-issuing authority under the Rule.

After a suppression hearing, the district court granted Krueger's motion. In so doing, the district court concluded that Warrant 2 violated Rule 41(b)(1). Although the district court noted that not all Rule 41 violations require suppression, the court determined that suppression was necessary here because Krueger demonstrated prejudice in the sense that the Kansas magistrate judge would not have issued Warrant 2 had Rule 41 `been followed to the letter.’ Applt. App. at 168 (Order Granting Mot. to Suppress at 7) (internal quotation marks omitted).

The district court thereafter set the matter for trial. Shortly before trial commenced, the Government filed a timely notice of appeal.
U.S. v. Krueger, supra.  In other words, the prosecution decided to take an interlocutory appeal to the U.S. Court of Appeals rather than try the case, perhaps get a conviction, and then deal with Krueger’s appealing his conviction based, at least in part, on the problem the Court of Appeals is addressing in this opinion.
The Court of Appeals began the part of its opinion in which it addresses the issue on appeal by explaining that
[o]n appeal, the Government concedes for the first time that Warrant 2 violated Rule 41(b)(1) because the United States magistrate judge in the District of Kansas did not have authority to issue a warrant for property already located in Oklahoma. Given the obviousness of this Rule 41 defect on the record before us, the Government's belated concession is a prudent one. See Government Br. at 21 n. 4 (explaining that the district court found Warrant 2 `was so facially deficient that the good-faith exception should not apply’ and expressly not appealing that ruling).

Notwithstanding Warrant 2's Rule 41 defect, the Government urges us to reverse the district court's order granting Krueger's motion to suppress, because, according to the Government, the district court applied the wrong legal standard in determining that Krueger demonstrated prejudice as a result of the Rule violation. For the reasons outlined below, we disagree.
U.S. v. Krueger, supra.  
The Court of Appeals then outlined the “standard of review” it applies in cases like this:
[a] defendant who moves to suppress evidence obtained through a search with a warrant bears the initial burden of establishing that the search was illegal. See 3A Federal Practice& Procedure –§ 689 (4th edition) (online database updated April 2015). We review a district court's legal rulings on such a motion de novo. U.S. v. McDowell, 713 F.3d 571 (U.S. Court of Appeals for the 10th Circuit 2013).
U.S. v. Krueger, supra.  
Next, it explained that,
[w]here, as here, a district court determines that a Rule 41 violation justifies suppression, our review is guided by the analytical framework this Court adopted in U.S. v. Pennington, 635 F.2d 1387 (U.S. Court of Appeals for the 10th Circuit 1980).  See U.S. v. Pulliam, 748 F.3d 967 (U.S. Court of Appeals for the 10th Circuit 2014) (applying the Pennington framework to determine whether a purported Rule 41 violation justified suppression).

Under this framework, we begin by considering whether Rule 41 was in fact violated. If so, we typically proceed by determining whether that specific Rule 41 violation rises to the level of a Fourth Amendment violation. See U.S. v. Pennington, 635 F.2d at 1390; see generally David B. Levendusky, Annotation, Noncompliance with requirements of Rule 41 of Federal Rules of Criminal Procedure as ground for exclusion, in federal prosecution, of evidence procured under state search warrant, 25 A.L.R. Fed. 247 (2015) (explaining that Rule 41 is not coextensive with the Fourth Amendment because Rule 41 incorporates standards that are in some respects `more specific and more stringent’).

If we determine the Rule 41 violation is not of constitutional import, we then consider whether the defendant can establish that, as a result of the Rule violation, `(1) there was “prejudice” in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.’ U.S. v. Pennington, supra. Unless the defendant can establish prejudice or intentional disregard of the Rule, a non-constitutional violation of Rule 41 will not, by itself, justify suppression. U.S. v. Pennington, supra.
U.S. v. Krueger, supra (emphasis in the original). For more on the exclusionary rule, check out this Wikipedia entry.
The Court of Appeals then began its analysis of Krueger’s arguments, noting that
[t]he first step in the Pennington framework is easily established because the Government concedes that Warrant 2 violated Rule 41(b)(1) s within-district limitation on federal magistrate judges' warrant-issuing authority. . . .

Because there is a clear Rule 41(b)(1) violation here, we would typically proceed through the Pennington framework by considering whether this specific Rule 41 violation rises to the level of a Fourth Amendment violation—i.e., we would consider whether an outside-of-district warrant issued by a federal magistrate judge who lacks authority to do so under Rule 41 violates the Fourth Amendment. The district court did not address this question, which would present an issue of first impression in this Circuit. The Government urges us to conclude that there was no constitutional violation in this case, arguing that any within-district limitation on federal magistrate judges' warrant-issuing authority is a feature of Rule 41 and the Federal Magistrates Act, 28 U.S. Code § 636(a)(1) -- not a Fourth Amendment requirement. According to the Government, when it comes to who issues a warrant, all that the Fourth Amendment requires is a neutral and detached magistrate.

However, we need not decide the constitutionality of the Rule 41(b)(1) violation at issue here because doing so would not alter the outcome of this appeal. See U.S. v. Cusumano, 83 F.3d 1247 (U.S. Court of Appeals for the 10th Circuit 1996) (en banc) (declining to decide the constitutionality of the warrantless use of a thermal imager to scan the defendant's residence because the detective's affidavit was by itself sufficient to establish probable cause). On appeal, the Government abandoned all of the arguments it made against suppression below except its argument that Krueger failed to establish prejudice. . . . Because the Government offers no other basis for reversal, and because (as explained in more detail below) we conclude that Krueger has established prejudice as a result of Warrant 2's Rule 41 defect, we affirm the district court's suppression order regardless of whether the Fourth Amendment contains a within-district limitation on magistrate judges' warrant-issuing authority. Thus, consistent with the fundamental rule of judicial restraint, we decline to reach a constitutional question that is not necessary to our resolution of this appeal. . . .
U.S. v. Krueger, supra (emphasis in the original).
The Court of Appeals then took up the substance of Krueger’s argument,
[a]ccepting for purposes of our analysis the Government's contention that this Rule 41(b)(1) violation does not offend the Fourth Amendment, we next consider whether Krueger established that suppression was justified by showing either (1) prejudice in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) intentional disregard for a provision of the Rule. . . . Because Krueger does not contest the district court's determination that neither the Kansas magistrate judge nor the HSI agents acted in bad faith, meaning that they did not intentionally disregard Rule 41, our analysis focuses on whether Krueger established prejudice.
U.S. v. Krueger, supra.  The Court of Appeals then explained that it
has not yet had occasion to consider whether suppression is justified when a warrant is issued by a federal magistrate judge who clearly lacks authority to do so under Rule 41(b)(1). The district court concluded that suppression was warranted because Krueger demonstrated prejudice in the sense that the federal magistrate judge in the District of Kansas would not have issued Warrant 2—meaning that the Oklahoma search might not have occurred-had Rule 41(b)(1) `been followed to the letter.’ Order Granting Mot. to Suppress at 7 & n. 3 (internal quotation marks omitted).

On appeal, the Government argues that the district court applied the wrong prejudice standard in determining that the search might not have occurred. According to the Government, instead of asking whether the federal magistrate judge in the District of Kansas could have issued Warrant 2 in compliance with Rule 41, the district court should have asked whether any federal magistrate judge in the Western District of Oklahoma, the district within which Benner's residence is located, could have issued Warrant 2. We disagree.
U.S. v. Krueger, supra.  
The court went on to explain that,
[u]nlike the standard that the district court adopted—which would allow defendants to establish prejudice when the Government seeks and obtains a search warrant from a federal magistrate judge who lacks warrant issuing authority under Rule 41—the Government's proposed standard would preclude defendants from establishing prejudice in this context so long as the Government hypothetically could have obtained the warrant from a different federal magistrate judge with warrant-issuing authority under the Rule. When it comes to something as basic as who can issue a warrant, we simply cannot accept such a speculative approach. Thus, instead of focusing on what the Government could have done to comply with Rule 41(b)(1), we conclude that prejudice in this context should be anchored to the facts as they actually occurred. . . . Accordingly, we adopt the district court's standard for determining whether a defendant established prejudice as a result of a Rule 41(b)(1) violation and ask whether the issuing federal magistrate judge could have complied with the Rule.
U.S. v. Krueger, supra (emphasis in the original).
The Court of Appeals then outlined its conclusion and holding in this case:
Applying this standard, we conclude that Krueger established prejudice in the sense that the Oklahoma search might not have occurred because the Government would not have obtained Warrant 2 had Rule 41(b)(1) been followed. The Government sought and obtained Warrant 2 from a federal magistrate judge in the District of Kansas who clearly lacked Rule 41 authority to issue a warrant for property already located in Oklahoma. Had the magistrate judge recognized that clear and obvious fact, he surely would not have issued Warrant 2. And, had Warrant 2 not been issued, the Oklahoma search would not have occurred as it did, meaning that the Government would not have had occasion to secure Krueger's cooperation or seize his hard drive and computer.

Although the Government may have been able to obtain a warrant from a federal magistrate judge in the Western District of Oklahoma, meaning it may have ultimately secured Krueger's cooperation and seized his devices without violating Rule 41, such hypotheticals simply cannot cure the Government's gross negligence in failing to comply with Rule 41(b)(1) in the first instance. Cf. U.S. v. Glover, 736 F.3d 509 (U.S. Court of Appeals for the District ofColumbia Circuit 2013) (explaining that a warrant issued in `blatant disregard’ of a judge's territorial jurisdiction under 18 U.S. Code § 2518(3) and Rule 41 cannot be excused as a mere `technical defect’).
U.S. v. Krueger, supra (emphasis in the original).
The Court of Appeals therefore held that,
[b]ecause Krueger met his burden of establishing prejudice and because suppression furthers the purpose of the exclusionary rule by deterring law enforcement from seeking and obtaining warrants that clearly violate Rule 41(b)(1), see Herring v. U.S.,555 U.S. 135 (2009) (exclusionary rule serves to deter not only deliberate and reckless police conduct but also grossly negligent conduct); U.S. v. McCane, 573 F.3d 1037 (U.S. Court of Appeals for the 10th Circuit 2009) (exclusionary rule is appropriate only if the law enforcement activity at issue was not objectively reasonable), we affirm the district court's order granting Krueger's motion to suppression. . . .

For the foregoing reasons, we affirm the district court's order and remand for further proceedings consistent with this opinion.
U.S. v. Krueger, supra.   

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