## Facts

- The FBI investigated “Playpen,” a Tor-hidden online forum used to advertise and distribute child pornography.
- After seizing Playpen’s server and moving it to the Eastern District of Virginia, the FBI continued operating the site and deployed a Network Investigative Technique (NIT).
- The NIT caused computers that logged into Playpen to download code that collected identifying data (including IP address) and transmitted it to the FBI.
- A magistrate judge in the Eastern District of Virginia issued one warrant authorizing the NIT on “activating computers” of Playpen users, many located outside that district.
- NIT-derived information identified Gabriel Werdene in Pennsylvania.
- Agents obtained a separate warrant in the Eastern District of Pennsylvania to search Werdene’s home and seized digital evidence of child pornography.
- Werdene was charged with possession of child pornography under 18 U.S.C. § 2252(a)(4)(B) and entered a conditional guilty plea preserving his suppression challenge.

## Issues

1. Whether the Virginia magistrate judge had authority under Fed. R. Crim. P. 41(b) (pre-2016) and the Federal Magistrates Act to issue a warrant authorizing NIT searches of computers outside the issuing district.
2. Whether deploying the NIT on Werdene’s computer constituted a Fourth Amendment search and, if the warrant exceeded the magistrate’s authority, whether that defect amounted to a Fourth Amendment violation.
3. Whether the exclusionary rule requires suppression when agents relied on a warrant that was void ab initio for lack of magistrate authority, or whether the Leon good-faith exception applies.

## Decision

- The Third Circuit affirmed the denial of the motion to suppress and upheld the conviction.
- The NIT warrant violated Rule 41(b) and the Federal Magistrates Act because it authorized searches of computers outside the issuing district; the warrant was void ab initio.
- The NIT deployment constituted a Fourth Amendment search, and the jurisdictional defect rose to a Fourth Amendment violation.
- Despite the constitutional violation, suppression was unwarranted because the FBI acted in objective good faith reliance on the warrant.

## Legal Principles

- Under the pre-2016 version of Rule 41(b) and the Federal Magistrates Act, a magistrate judge’s warrant authority was territorially limited; exceeding that authority renders the warrant void ab initio.
- Government execution of code on a user’s computer to extract identifying information from within the home is a Fourth Amendment search.
- A Rule 41 jurisdictional defect can amount to a Fourth Amendment violation when the issuing magistrate lacked authority to issue the warrant.
- The Leon good-faith exception can apply even when a warrant is void ab initio, where agents reasonably rely on a warrant issued by a neutral magistrate and there is no culpable police misconduct to deter.

## Conclusion

The court held that the Playpen NIT warrant exceeded the issuing magistrate’s territorial authority and was therefore void, and that the NIT use was a Fourth Amendment search; however, because agents reasonably relied on the warrant, the good-faith exception barred suppression of the evidence.


United States v. Werdene, 883 F.3d 204 (3d Cir. 2018)